Karnataka

Bidar

CC/47/2016

Dhanraj s/o Manmathappa - Complainant(s)

Versus

Asst. Executive Engineer GESCOM Aurad B - Opp.Party(s)

Smt. Kirti V. Bhalke

22 Aug 2017

ORDER

 

 

 

::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.47/2016

                                                                          Date of filing: 28.06.2016

                                                                   Date of disposal: 22.08.2017

 

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                     B.A., LL.B.,

                                                                                                President

 

                             (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

 

COMPLAINANT/S:                        Dhanraj S/o Manmathappa,

                                                Age :52 years, Occ:Agriculture,

                                                R/o Village Kotgyalwadi, 

                                                Tq. Aurad (B), DistBidar.

 

                   (By Smt. Kirti V.Bhalke, Adv.)

 

                                                       VERSUS

 

OPPONENT/S:          1)        The Asst. Executive Engineer,

                                                GESCOM Office,

                                                Aurad (B).

 

                                    2)        The Asst. Executive Engineer, 

                                                District Vigilance Team,  

                                                GESCOM office,

                                                Bidar.

 

                                           (By Sri. R.K.Ganure,Adv.)

 

 

::   J UD G M E N T  ::

 

By Shri. Jagannath Prasad Udgata, President.

 

1. The complainant is before this Forum alleging deficiency of service in the part of the O.P.1 and 2, by filing a complaint U/s.12 of the C.P. Act., 1986.

 

2. The sum total of the case of the complainant is as hereunder:

                        The complainant is resident of village KotgyalWadi, Tq. Aurad(B) having electricity connection vide R.R.No.KTGL/10934 provided by the office of the O.P.1.   The complainant has paid electricity bill regularly every month as per the consumption of the electricity.    In spite of paying the electricity bill regularly, the O.Ps intentionally registered a case in Crime No.866/2015 dated 24.9.2015 against the complainant for BBC amount of Rs.5,483/- and compounding bill for Rs.2,000/-, totally Rs.7,483/-.   The complainant got issued legal notice to the O.P.1 on 26.3.2016, for which the O.P.1 replied on 28.3.2016 stating that, his office is  not concerned with the registration of the case against the complainant, as the complaint was registered by O.P.2.  Thereafter, again notice got issued to O.P.2 on 24.5.2016, but there was no reply from the O.P.2.    The O.Ps. Willfully registered the complaint against the complainant.   The cause of action to file the complaint arose on 26.3.2016.  Hence, the complaint for quashing of the demand notice for Rs.7,483/- and compensation etc.

 

 

3. Notices were  served to O.P.1 and 2.   They had appeared, filed versions but has not preferred to file evidence affidavits or written arguments.  However, two case laws in C.A. No.5466 of 2012- U.P. Power corporation Ltd. And ors. v/s Anis Ahmed (SC) and ILR 2005 KAR 5206- E.E.K.P.T.C.L(Now GESCOM) v/s Ishwaramma And Anr.  have been quoted by them.  The opponents have also filed the copy of F.I.R. in Cr. No. 866/15 of the vigilance Police Station u/s 135 of the Electricity Act, 2003 registered against the complainant as Ex.R.1.

 

4. The complainant has filed documents, detailed at the end of this order, so also the complainant has filed evidence affidavit justifying his side. 

 

 

5.         Considering contention of the parties, the following points arise for our consideration:-

 

1. Does this forum has the jurisdiction to entertain this complaint?
2. Whether the complainant has proved that there is deficiency in service on the part of the O.P.?
3. What order?

 

6.         Our answers to the points stated above are as follows:-

 

1. In the negative
2. Does not survive for consideration.
3. As per final orders owing to the following:

 

 

:: REASONS ::

 

7.         Point No.1 :- Undoubtedly, the opponents have reached the zenith of in calcitrancy by not caring to lead their evidence or address the arguments.  The participation in the proceeding was alarmingly sporadic, which prove their scant regard for administration of justice.

 

 

 

8.         However, in the versions a valid point has been raised by the opponents regarding the jurisdiction of this Forum, citing two case laws as detailed herewith.

            Civil appeal No.5466/2012.(S.C.)

U.P. Power  Corpn. Ltd and ors. v/s Anis Ahmed.

 

9.         In this judgement, the Hon’ble Apex Court, extensively quoting the provisions of Electricity Act, 2003 inPara-46 and on wards has been pleased to hold as follows:-          

            The acts of indulgence in “unauthorized use of electricity” by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 neither has any relationship with “unfair trade practice” or  “restrictive trade practice” or “deficiency in service” nor does  it amounts to hazardous services by the licensee.  Such acts of “unauthorized use of electricity” has nothing do with charging price in excess of the price.  Therefore, acts of person in indulging in ‘unauthorized use of electricity’, do not fall within the meaning of “complaint”, as we have noticed above and, therefore, the “complaint” against assessment under Section 126 is not maintainable before the Consumer Forum.  The commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003.  In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.

In view of the observation made above, we hold that:

1. In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of “service” as defined under section 2(1) (0) or “complaint “as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
2. A “complaint” against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a consumer Forum.
3. The Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of “consumer” under section 2(1) (d) of the consumer protection Act, 1986 or the Central government or the State Government or association of consumers but it is limited to the dispute relating to “unfair trade practice” or a “restrictive trade practice adopted by the service provider”; or “if the consumer suffers from deficiency in service”; or “hazardous service”; or “the service provider has charged a price in excess of the price fixed by or under any law”.

 

10.       This judgement binds us under article 141 of the constitution of India.

11.       In another judgement quoted by the opponents reported in ILR 2005 KAR5206- The Executive Engineer, K.P.T.C.L. (now GESCOM) v/s Inshwaramma And Anr.  The Hon’ble High Court of Karnataka in Paras 7 & 9 has been pleased to hold as follows:-

 

The moot question with requires to be considered in this proceeding is whether the provisions of the Electricity Act,2003 would oust the jurisdiction of the Civil Court or any other forum. The relevant provision which deals with the ousting of jurisdiction of the Civil Court as well as any other forum is Section 145. Section 145 of the Electricity Act, 2003 (for short Act) would read as under:

 

           “145. Civil Court not to have jurisdiction:- No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellant authority referred to in Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and mo injunction shall be granted by any Court or other authority in respect of any action taken or to be taken pursuance of any power conferred by or under this Act.’

 

 

Section 126 of the said Act would deal with determination of the loss. Section 127  deal with appellant forum under which the aggrieved party can file an appeal and Section 44.01 of the Karnataka Electricity Regulatory commission would deal with the power of the appellant authority. A reading of Section 145 of Act would clearly indicate that no Civil Court shall have the jurisdiction to entertain any suit or proceeding in respect of any other matter which assessing officer referred to in Section 126 or an appellant authority referred to in Section 127 is empowered to determine or act, only on such conditions being satisfied the jurisdiction of the Civil Court as well as any other forum is ousted.

 

 

This question regarding the Civil Courts or any other forums having jurisdiction to deal with the situation on hand fell for consideration to before the Apex Court in the case of PUNJAB STATE ELECTRICITY BOARD AND ANR. Vs ASHWANI KUMAR. The Apex Court while interpreting the scope of Section 9 of the Code of Civil Procedure was the opinion that by necessary implication the cognizance of the Civil Court as contemplated in the present set of circumstances is ousted. As a consequence, the Apex Court held that the Civil Court in the circumstances will not be justified in entertaining the complaint or giving a declaration when an adequate remedy is provided under the act for the redressal of the grievances. The relevant discussion is to be found at para 10 which reads as hereunder:

 

The question then arises: whether the Civil Court would be justified in entertaining the suit and issue injunction as prayed for? It is true, as contended by Shri. Goyal, learned Senior Counsel, that the objections were raised in the written statement as to the maintainability of the suit but the same give up. Section 9 of C.P.C provides the Civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication is barred. Such suit would not be maintainable. It is true that ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and cognizance of the civil cause has been excluded. As a consequence, the Civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (supply) Act and the instructions issued by the Board in that behalf from time to time as stated above.”

 

 

The said decision is followed by this Court in the case B. NARAYANA SWAMY vs THE ASST. EXECUTIVE ENGINEER ELECL. K.E.B. AND ANR. An identical view is taken by this Court in the case of KARNATAKA ELECTRICITY BOARD, BANGALORE AND ORS. vs MESSRS. ORIENTAL TIMBER INDUSTRIES.

 

12.     Here in, a case has been registered against the complainant alleging electricity theft which is evident from Ex.R.1, relied upon by the opponents.  Both judgements quoted supra oust our jurisdiction to entertain this complaint and thereby we answer point No.1 in the negative.

 

13.      Owing to the reasons mentioned supra, the case does not survive for consideration and we proceed to pass the following:

                                                   

                                                 ::ORDER:: 

1. The case is dismissed as not due.
2. Parties to bear their own costs.

 

   

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 22^nd day of August-2017).

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                         

                                                                         

 

 

 

Documents produced by the complainant

1. Ex.P.1 to P.3-  Receipts of electricity bill payment (original)
2. Ex.P.4– Electricity bill (original)
3. Ex.P.5- Police Notice date: 03.03.2016(original)
4. Ex.P.6- Office copy of legal notice date: 26.03.2016 with postal  
                  receipt.
5. Ex.P.7- Reply by opponent No.1 date: 28.03.2016 (original).
6. Ex.P.8- Office copy of further legal notice date: 24.05.2016 to the 

              opponent No.2 with postal receipt.

 

Document produced by the Opponent.

 

1. Ex.R.1-  Copy of the F.I.R. and allied paper in Cr. No. 866/15 of  

               vigilance Police Station, Bidar.

 

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.