RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.1193 of 2002

1- Executive Engineer, Electricity Board,

    Now U.P. Power Corporation Limited,

    Electricity Distribution Division, Basit.

2- Sub Divisional Officer, Electricity Distribution

    Division-III, U.P. Power Corporation Limited,

    Basit. 

3- Junior Engineer, Rajeshwar Chaudhary,

    Electricity Distribution Sub-Division-III,

    Basit.

4- Line Man, Electricity Distribution

    Sub-Division-III, Basit                                ..Appellants.

Versus

Mathura Prasad s/o Sri Jagannath,

R/o Bharwalia, Post Office: Majhauwa,

Tappa Sikandarpur, Pargana: Basti Poorab,

Tehsil: Bhaanpur, Sonwa, Distt: Basti.     ..…Respondent.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Jugul Kishor, Member.

For Appellants    : Sri Isar Husain.

For Respondent   : None.

Date   1.12.2015

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 6.3.2002, passed by the Ld. DCDRF, Basti in complaint case No.86 of 2001, the appellants Executive Engineer, Electricity Board and 3 others have preferred the instant appeal under Section 15 of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the impugned order is arbitrary, perverse and is bad in the eye of law. It was delivered without proper appreciation of law and/or application of mind on the basis of surmises

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and conjectures and therefore, it has been prayed that the same be set aside in the interest of justice otherwise, the appellants will suffer irreparable financial loss.

From perusal of the records, it transpires that the matter relate to theft and assessment. The respondent/ complainant Sri Mathura Prasad s/o Sri Jagannath obtained 3 HP Electric Connection bearing no.0311/ 002830 for running his private Tube-well. He was regularly depositing the bills towards consumption of energy. However, in the year 2000, he fell ill and consequently, had to go out of station for a long period for treatment. The Tube-well was not used during this time and he could not also pay the statutory charges for the same period. After returning to his village, he tried to deposit the arrears but was told that a sum of Rs.19,695.80 was outstanding as dues in his name. His connection was de-energized on 31.1.2001 for not payment of bills. Consequently, he suffered a loss of about Rs.10,000.00 due to loss of standing crops. It has further been alleged that after much pursuance, the appellants Electricity Department agreed to look into the matter and subsequently, reduced the arrears from Rs.19,695.80 to Rs.1,675.00 only which was deposited by him on 3.2.2001. However, his connection was not restored as he failed to meet the illegal demand of money. Feeling aggrieved by this gross remiss and deficiency in service on the part of the appellant Electric Board, the respondent/complainant Sri Mathura Prasad filed complaint case no.86 of 2001 for restoration of the Electric Connection and other consequential reliefs.

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The appellants took the plea that the connection no.0311/002830 was situated at a distance of about 70 meter from the 63 KVA transformer. The meter was checked by the Raiding Party on 15.1.2001 whereupon, it was found that the respondent/complainant was unauthorizedly using the connection for running his Atta Chakki and Paddy Machine and thereby, he was found committing theft of electricity. The Raiding Party could not disconnect the line due to severe resistance made by the respondent/complainant and his goons. Consequently, the line was disconnected from jumper junction. Thereafter, on 31.1.2001 the electric wires were removed from the spot with the help of police obtained from P.S. Walterganj. Intimation about this incident was given to the higher authorities in advance on 17.1.2001. The matter relates to theft and assessment. The Department assessed the matter and issued a demand notice of Rs.43,110.00. The respondent/complainant failed to deposit the amount in time, and consequently, the arrears increased to Rs.66,425.00 by April, 2001. The appellants filed photocopies of notices, inspection report and assessment order the Forum below, after hearing the parties, partly allowed the complaint and set aside the assessment order. It also directed the appellants to reduce the load to 3 HP only and restore the connection within a week. It also directed to pay a sum of Rs.300.00 to the respondent/complainant as cost of litigation.

Aggrieved by this judgment and order, the instant appeal was filed. It was argued that the judgment is totally

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against the settled principles of law and, therefore, is liable to be dismissed.

We have given due consideration on all facts, circumstances and evidence on record. From perusal of the records, it transpires that the matter relates to theft and assessment of electricity. The documentary evidence indicates that the premises was inspected by a Raiding Party on 15.1.2001 and it was found that the respondent/ complainant Sri Mathura Prasad was using his Atta Chakki and Paddy Machine unauthorizedly from the connection which he had obtained for running his Tube-well. He had obtained a 3 HP connection for running his Tube-well but was using the same for running his Atta Chakki and Paddy Machine and was consuming a load of 10 HP. The Checking Report was prepared on the spot and the matter was reported to the higher authorities and the connection was disconnected from the Jumper Junction. Intimation about the disconnection was given to the respondent/complainant and subsequently, an amount of Rs.43,110.00 was assessed towards consumption of electricity. A demand notice was accordingly sent to the respondent/complainant. The disconnection notice dated 5/29.1.2001 indicates that the arrear was Rs.23,691.08 till December, 2000. The respondent/complainant obtained illegal connection from the pole and did not pay the arrears even after service of the demand notice. Consequently, it became 46,425.30 by April, 2001. Thus, it is clear that the matter relates to theft and assessment the respondent/ complainant deliberately twisted the

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matter in order to avoid the payment. The matter relates to use of Atta Chakki and Paddy Machine. In Ishwar Singh Vs. Dakshin Haryana Vidyut Prasaran Nigam Ltd., II(2011) CPJ 18 (NC), it has been held that running Atta Chakki is commercial in nature and, therefore, is out side the purview of consumer disputes.

Furthermore, in Walmik vs. Maharastra State Electricity Distribution Co. Ltd., II(2015) CPJ 88 (NC), that:-

"once the opposite party takes a plea that the case in question was a case of theft of electricity, the Consumer Forum would not have jurisdiction to entertain the complaint and go into the question as to whether there was actually theft of electricity or not. The competence to enquire into the allegations made in the complaint would arise only if the complaint is otherwise within the jurisdiction of the Consumer Forum; if, on account of allegation of theft of electricity, the Consumer Forum lacks inherent jurisdiction to entertain the complaint, it cannot proceed to adjudicate upon the factual issue raised in the complaint and cannot adjudicate one way or the other way on merits. The Consumer Forum would in such circumstance have to keep its hand off the matter, leaving it to the aggrieved person to approach an appropriate Forum for redressal of his grievances."  

The Hon'ble Apex Court was pleased to hold in Civil Appeal No.5466 of 2012, U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad that:-

 "by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173, 174 and 175 of the Electricity Act, 2003, The Consumer Forum cannot derive power to adjudicate a

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dispute in relation to assessment made under Section 126 or offences under Section 135 to 140 or the Electricity Act, as the acts of indulging in "unauthorized use of electricity" as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of "complaint" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.

The act 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 to 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 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 Sections 2(1)(o) or "complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.

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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.

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".

In view of the facts, circumstances, evidence on record and the aforesaid rulings, we are of the considered opinion that the impugned judgment and order dated 6.3.2000 is erroneous in the eye of law and, therefore, cannot be allowed to sustain. As such, the appeal deserves to be dismissed. 

 ORDER

          The appeal is allowed the judgment and order dated 6.3.2002, passed by the Ld. DCDRF, Basti in complaint case No.86 of 2001. No order as to costs.  Certified copy of the judgment be provided to the parties in accordance with the rules.

         (A.K. Bose)                               (Jugul Kishor)

    Presiding Member                             Member

Jafri PA-II

Court No.4