Meghalaya

StateCommission

MA/4/2014

Shri. H.P. Oflyn Dohling - Complainant(s)

Versus

Meghalaya State Electricity Board. - Opp.Party(s)

Mr. S. Jindal

20 Jun 2014

ORDER

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION: SHILLONG.

 

 

 

Misc. Case No. 4 of 2014

in Consumer Complaint No: 3 / 2006

with

Misc Case No. 5 of 2014

In Consumer Complaint No. 4 / 2006

 

 

 

Shri H.P. Oflyn Dohling                              ……………    Applicant / Complainant

 

 

                        -VS-

 

 

The Meghalaya State Electricity

Board & Another.                                        …………….    Opposite Parties

 

 

BEFORE

 

Hon’ble Mr. Justice P.K. Musahary (Retd.), President

&

Shri Ramesh Bawri, Senior Member

        

 

         

         For the Applicant                                : Shri Sandeep Jindal, Advocate

 

         For the Opposite Parties                    : Shri L. Shongwan, Advocate

        

         Date of order                                        : 25.07.2014                                          

                                                    

ORDER

 

1.         Per Shri Ramesh Bawri, Senior Member: The Complainant had filed similar Consumer Complaint Nos. 3 of 2006 and 4 of 2006 before this Commission wherein the Meghalaya State Electricity Board (MeSEB) and the Secretary, Meghalaya State Electricity Board had been arrayed as the Opposite Parties. The said Complaint was heard on several occasions but final orders are yet to be passed by this Commission.

 

2.         The Complainant / Applicant has now filed the instant identical Applications stating that  it had recently come to his  knowledge  that, meanwhile, the Meghalaya State Electricity Board has been corporatized and a new entity under the name and Style of Meghalaya Power Distribution Corporation Limited (MePDCL) has been formed, Further, that the interest of MeSEB had been assigned / created and devolved upon  the said Meghalaya Power Distribution Corporation Limited during the pendency of the Complaint before any final order being passed in the said Complaint. It is further stated that the presence of Meghalaya Power Distribution Corporation Limited is necessary in order to enable this  Commission to effectually and completely adjudicate upon and settle all the questions involved in the Complaint and that, in this view of the matter and in the interests of justice, unless Meghalaya Power Distribution Corporation Limited and the Secretary, Meghalaya Power Distribution Corporation Limited are joined as Opposite Parties in the Complaint substituting and/or striking out the names of Meghalaya State Electricity Board and Secretary, Meghalaya State Electricity Board, any order rendered by this  Commission is likely to be rendered infructuous.

 

3.         It is also submitted that substitution of the names of the Opposite Parties will cause no prejudice to them nor change the character of the Complaint. On the other hand, non-substitution of the names of the Opposite Parties will cause immense loss and injury to the Complainant. Lastly, it is submitted that substitution of the names of parties is permissible in law at any stage and leave is therefore sought to continue the complaint against Meghalaya Power Distribution Corporation Limited and Secretary, Meghalaya Power Distribution Corporation Limited.

 

 

4.         The Opposite Parties have filed their show cause to the Complainant’s application and objected to the substitution of names on the following grounds:

 

a)      That the case has already been heard by this Commission and the final orders are yet to be passed. As such the question of substituting the names of the Opposite Parties does not arise.

 

b)      It cannot be said that the Corporatisation of the Meghalaya State Electricity Board (MeSEB or the Board) has recently come to the knowledge of the Complainant when the Corporatisation of the Board to Meghalaya Energy Corporation Ltd (MeECL) was done on 1^st April, 2010.

 

c)      That MePDCL is simply the distribution utility which falls under MeECL which is the holding company of all Utilities.

 

d)      That as per sections 131 and 133 of the Electricity Act, 2003, all property, interest, rights and liabilities of the Board were vested in the State Government and in return the State Government re-vested the said properties, interest, rights and liabilities, through the Transfer Scheme vide Notification dated 31^st March, 2010, in the Corporation.

 

e)      That this Commission can fully adjudicate and settle all questions involved in the instant complaint in the name of Meghalaya State Electricity Board and that Meghalaya Energy Corporation Ltd will be duty bound by the decision of this  Commission because of Rule 5 (13) of the said Notification dated 31.03.2010.

 

f)       That the substitution of Meghalaya Power Distribution Corporation Limited and the Secretary, Meghalaya Power Distribution Ltd is not compulsory as it is just a mere technicality which has no bearing at all and will not affect the pending proceedings.

 

g)      That any order passed by this Commission cannot be rendered infructuous in view of the Electricity Act 2003.

 

h)     That there is no Secretary in the present Meghalaya Power Distribution Ltd.

 

i)       That MePDCL and the Secretary of MePDCL are not appropriate parties to the Complaint and that the Complaint is also barred by the period of Limitation as per the Limitation Act 1963 for substituting the names of the Opposite Parties and the complainant is further hit by the Principle of Estoppel, Waiver and Acquiescence as this plea was raised beyond the period of limitation though the Applicant/ Complainant was fully aware of the fact that the MeSEB has been corporatized to MeECL.

 

j)       That non substitution of the names of the Opposite Parties will cause no prejudice to the complainant nor change the character of the Complaint.

 

k)      That  mere apprehension of loss and injury to the complainant does not constitute a prima facie case and for which this instant Mise Application is not tenable in the eye of law and is liable to be rejected outrightly by this  Commission.

 

5.         We have heard Shri Sandeep Jindal learned counsel for the Applicant and learned Counsel Shri L. Shongwan appearing for the Opposite Parties and, having perused the documents on record and having applied our minds to the facts and circumstances of the case we are of the clear view that the Application needs to be allowed for the reasons that follow. Since both Applications are identical and based on the same facts, we have heard them analogously and proceed to dispose them of by this common order.

 

6.         Through the Meghalaya Power Sector Reforms Transfer Scheme 2010, hereinafter referred to as the ‘Transfer Scheme’ which was published in the Gazette of Meghalaya on 31.03.2010 in the form of Notification No. POWER – 79/2009/290, the assets and liabilities of earlier MeSEB were transferred and vested in 4(four) distinct Corporate entities i.e, MeECL - the holding Company, MePDCL - the Distribution Utility, MePGCL - the Generation Utility and MePTCL - the Transmission Utility. The assets and liabilities first stood transferred to the Government of Meghalaya and thereafter, vide the same notification, to the 4 (four) aforementioned Corporate entities ‘without any further act or thing to be done’. Vide schedule ‘A’ to the notification  all contracts, agreements, rights, interests, arrangements, contingent liabilities, obligations and proceedings associated with or related to distribution activities stood transferred to MePDCL.

 

The Consumer complaint being related to the issue of billing is clearly related to distribution activities and, by the clear terms of the Transfer Scheme itself, in case substitution of name is allowed it can only be to the name of MePDCL and not the Holding Company MeECL or any other entity. It may be noted that, although the Transfer Scheme was published on 31.03.2010, it was not immediately given effect to and its operation was kept in abeyance vide Notn. No. PE. 79/09/372 dated 19.5.2011 and finally made operative only from 01.04.2012 and not from 1.4.2010, as claimed by the O.P’s.

 

7.         Next we find that the provisions concerning pending proceedings are clearly laid down in the Transfer Scheme itself in para 5(13) thereof. These provisions read thus:

 

5(13) Pending proceedings - All proceedings of whatever nature by or against the Board pending on the effective date of transfer shall not abate or discontinue or otherwise in anyway be affected prejudicially by reason of the transfer scheme mentioned in the Act and in provisions of this Scheme, and such proceedings may be continued and prosecuted by or against the Transferee (s) to whom the assets and liabilities including all rights, obligations and contingencies relating to such proceedings are assigned in accordance with this Scheme. Such proceedings may be continued in the same manner and to the same extent as it would or might have been continued and prosecuted by or against the Board if the transfers specified in this Scheme had not been made.

 

These provisions alone can leave no manner of doubt in any mind that while pending proceedings of any nature whatsoever against the erstwhile MeSEB, which obviously includes the related complaint filed before this Commission, would not abate or be prejudicially affected, such proceedings can only be continued and prosecuted against the Transferee i.e, MePDCL. The converse of this is that no pending proceedings can continue against MeSEB which, in fact, has ceased to exist in the eye of law and any order passed for or against MeSEB would be null and void, besides being nothing but an exercise in futility.

 

8.         This application has been filed to substitute the name of the O.P. in the consumer complaint for the reasons above under the provisions of Order 22 Rule 10, CPC read with Order 1 Rule 10(2), CPC which read as follows.

 

Order 22 Rule 10, CPC:

 

“Procedure in case of assignment before final order in suit. –

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved.

 

Order 1 Rule 10(2), CPC:

 

(2) Court may strike out or add parties—

The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

 

9.         A bare reading of the Consumer Protection Act, 1986 will show that it is a self- contained code and only some provisions of the CPC which are specifically enumerated in Section 13 of the Consumer Protection Act have been made applicable to proceedings before the Consumer Fora. Although Section 13 (7) of the Act does provide for the applicability of the provisions of Order 22 CPC in the event of the death of a Complainant or Opposite Party, there is no specific provision in the Act in respect of substitution of names in cases of assignment and devolution of interest with which are presently concerned, by applying the provisions of the CPC or otherwise. However, at the same time, in view of the specific provisions of the Transfer Scheme that we have already discussed above and in the interests of justice the names of the present Opposite Party are required to be substituted by the name of the Transferees as the Complainant’s vested rights cannot be allowed to be extinguished for which the Doctrine of Implied powers is required to be invoked. It is important to observe here that in Rikhu Dev vs Som Dass (AIR 1995 SC 2159) para 8, the Hon’ble Apex Court reiterated the principle that “ trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the leave of the Court.”

 

10.       On the doctrine of implied powers, it was held by the Apex Court in Grindlays Bank Ltd vs Central Government Industrial Tribunal (AIR 1981 SC 606) Para 6 thus -

 

“We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well-known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition.

     

Again in Bidi, Bidi Leaves & Tobacco Merchants Association vs The State of Bombay (AIR 1962 SC 486) a Constitution Bench observed in Para 20 -

 

"One of the first principles of law with regard to the effect of an enabling act", observes Craies, "is that a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view”. The principle on which the doctrine is based is contained in the legal maxim 'Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest'. This maxim has been thus translated by Broom thus: "whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect.”

 

 

11.       In view of these illuminating judgments of the Hon’ble Supreme Court, we therefore deem it fit and proper to dispose of this application in the spirit of Order 22 Rule 10 CPC  read with Order 1 Rule 10 (2) CPC which are the apt, appropriate and applicable Rules.

 

12.       We now need to examine whether the present application is barred by limitation vide Article 120 of the Limitation Act, 1963 as claimed by the learned counsel for the Opposite Party. Unfortunately, the very first flaw in the learned counsel’s argument is the position that the Limitation Act itself does not apply to the Consumer Fora.

 

13.       In France B. Martins and Anr. v. Mrs. Mafaida Maria Teresa Rodrigues (AIR 1999 SC 3243), para 3, the Hon'ble Supreme Court has held that - "It is conceded before us that the provisions of the Limitation Act, 1963 have not been specifically made applicable to the proceedings under the Act. .... When the Legislature, in its wisdom, thought it appropriate not to prescribe the period of limitation for proceedings under the Act, the courts cannot apply the provisions by implication. It has to be kept in mind that the Act was made for better protection of interests of consumers and to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith."

 

Earlier, the Hon'ble Supreme Court held in Sakuru v. Tanaji, (AIR 1985 SC 1279), para 3, that - "It is well settled by the decisions of this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli [1970] 1 S.C.R. 51, Nityananda M. Joshi v. Life Insurance Corpn. of India [1970] 1. S.C.R. 396 and Sushila Devi v. Ramanandan Prasad [1976] 2. S.C.R. 845 that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure."

 

In view of the above, we are of the clear view that the provisions of the Limitation Act, 1963 do not apply to the Consumer Fora.

 

14.       Article 120 of the Limitation Act, 1963, in any case, has no application to the present proceedings inasmuch as the said Article applies only to applications made under the CPC to have the legal representative of a deceased Plaintiff/ Appellant/ Defendant/ Respondent made a party. We are not dealing with such a situation but a situation of devolution of interest.

 

15.       The Limitation Act, 1963 apart, the Applicant consumer has stated that he acquired knowledge about the fact of devolution of interest by MePDCL only recently whereupon he filed the Application for substitution. Though the O.P.'s have denied this fact, there is nothing to substantiate their denial and there is no reason for us to disbelieve the Applicant who stands to gain nothing by filing the application belatedly.

 

16.       As regards Order 1 Rule 10(2) CPC, a bare reading shows that parties may be struck out or added ‘at any stage’ of the proceedings. Similarly Order 22 Rule 10 CPC shows that the said Rule is applicable any time before a final order has been passed. It is to be noted that, in the instant complaint, no final order has yet been passed by us. We may also refer here to three judgments some of which are relied on by the Applicant’s counsel on the question of limitation in proceedings under Order 22 Rule 10 CPC and Order 1 Rule 10(2) CPC which are akin to such proceedings and can be equally well applied by us to ‘join’ MePDCL as an Opposite Party in the complaint before us.

 

In Rikhu Dev, Chela Bawa Harjug Dass vs Som Dass (Deceased) (AIR 1975 SC 2159) para 10 it was reaffirmed by the Hon'ble Supreme Court that, in a case of devolution of interest during the pendency of a suit, the elected persons can be added as parties under Order 22 Rule 10, notwithstanding that the period of limitation for impleading them had expired.

 

The Hon'ble Delhi High Court has unequivocally stated in Pushpa Kumari vs Dewan Chand Trust (AIR 1983 Delhi 91) that "As there is no limitation prescribed for filing such an application (under Rule 10 of Order 22 of the Code), it is the discretion of the newly appointed trustees to approach the Court as and when they desire. It is not a case of delay."

 

In B.N. Das vs Bijaya Ketan Mohanty (AIR 1982 Ori 145) the Hon'ble Orissa High Court has held that "On consideration of the provisions of Order 6, Rule 17 and Order 1, Rule 10 of the Code I am of the view that the expressions 'at any stage of the proceedings' and 'at any stage of the suit' should cover the period between conclusion of hearing and pronouncement of judgment. This view finds support in a recent decision of Madhya Pradesh High Court in AIR 1981 Madh Pra 228 (Badri Prasad Soni v. S. Kripal Singh)".

 

17.       These provisions of law, along with case law show that an application such as this can be filed at any stage. It does not matter WHEN the Complainant became aware of the devolution of interest as there is no time bar to file the application, and it can be filed at any time until the case is disposed. Further, while we are of the opinion that presence of MePDCL is essential for a just decision in the complaint, it is also worthwhile observing here that the Opposite Parties have fairly and unequivocally accepted that MeECL “will be duty bound by the decision of this Commission.” When that is the case, we fail to see what objection they can really have to the substitution of name. In any event, this will cause them no prejudice whatsoever nor will it change the character of the Complaint in any manner. In any event, Consumer Fora are not supposed to be burdened with technicalities.

 

18.       In view of the discussion above, we allow the Complainant’s application and grant leave to the Applicant/ Complainant to continue Complaint No. 3 of 2006 and Complaint No. 4 of 2006 against MePDCL (Meghalaya Power Distribution Corporation Limited) upon whom the interests of MeSEB (Meghalaya State Electricity Board) have come and devolved. We further, direct that the name of MeSEB (Meghalaya State Electricity Board) be struck out from both the Complaint petitions as Opposite Party No. 1 and the name of MePDCL (Meghalaya Power Distribution Corporation Limited) be added and substituted in place of MeSEB. As regards, Opposite Party No. 2 i.e the Secretary, MeSEB, in view of the submission of the learned counsel for the Opposite party that there is no such post of Secretary in MePDCL but it is headed by a Managing Director, we direct that the existing name of the Opposite Party No. 2 be struck out from the Complaint petitions and the name of the Managing Director, MePDCL (Meghalaya Power Distribution Corporation Limited) be added and substituted.

 

19.       Lastly, it needs to be stated here that although the Complaint petition was heard earlier and judgment was reserved, in view of this fresh development in terms of substitution of names and also as the earlier vakalatnama filed by learned counsel for the Opposite Parties was one representing MeSEB and not MePDCL, we have deemed it fit and proper to hear the complaint afresh, for the sake of good order.

 

Both the Misc cases are disposed of with the directions made above.

 

 

 

 

 

SENIOR MEMBER                                                  PRESIDENT