DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
NORTH 24 PARGANAS, BARASAT
C.C. NO. 281/2021
Date of Filing of this case: Date of Admission: Date of Disposal of this case:
14.12.2021 31.01.2022 22.01.2024
Complainant/s:- | Pabitra Das =Vs.= |
Opposite Party/s:- | Avijit Mandal and Others |
Present:- Shri Daman Prosad Biswas…………..President.
Shri. Abhijit Basu…………………Member.
FINAL ORDER
Order No.14
Today is fixed for order. Ld. Advocate for the Complainant and Ld. Advocate for the O.Ps are present. Petition dated 25/04/2023 filed by the O.P which registered as M.A. case no. 12/2024 is put up for order. Perused the petition. O.Ps by filing the said petition prayed for analogous hearing with another case vide no. 316/2022. During hearing Ld. Advocate for the O.Ps admitted that he could not mentioned any section of any law under which he filed the said petition. He also submitted that he filed the said petition U/s 151 C.P.C. He also argued that O.Ps have the right to file the said petition U/s 151 of C.P.C. We have carefully gone through Section 38(9) of C.P. Act, 2019 wherein it has been specifically mentioned that what provision of C.P.C can be invoked by the Consumer Fora. We also find that in the said provision it has not mentioned that Consumer Fora can invoke the provision of 151 of C.P.C.
Accordingly we find that this Commission has no jurisdiction to entertain any petition from any party under the provision of Section 151 of C.P.C.
Accordingly we find that aforesaid petition is devoid of merits and same is thus rejected.
M.A. case no. 12/2024 is thus disposed of.
Today is also fixed for order in respect of the petition filed by the O.Ps which registered as M.A. case no. 113/23. Record is put up for order. Perused the petition which registered as M.A. case no. 113/23. O.Ps by filing the said petition stated that instant case is not maintainable. They stated that premises at Girish Sarani Uttarayan Palta was provided with electricity through domestic electric meters in the name of Complainant having Consumer No. 54065051006 and in the name of Sathi Das, W/o Pabitra Das having Consumer No. 54065052003. On 02/03/2021 an inspection was carried out at the aforesaid premises by assessing officer U/s 126 of Electricity Act, 2003 along with authorized officer U/s 135 of the said Act upon serving notice under clause 8.3.3 of W. B. Electricity Regulatory Commission (The Electricity Supply Code) Regulations 2013. It was found that the meter in the name of Complainant was discontinuous and was using an external earth. During such inspection load was estimated as 2.5 KW whereas the contractual load of consumer was 2.3 KW.
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C.C. NO. 281/2021
Upon detection of such unauthorized use of electricity supply to the consumer, Pabitra Das through the said meter, was disconnected by the authorized officer of loss of control cell and kept them sealed under LCC seal. A complaint was lodged at Noapara P.S. on 02/03/2021, photographs were taken during aforesaid inspection. On the basis of the above mentioned inspection assessing officer passed order of provisional assessment wherein a sum of Rs. 2,00,753/- was assessed towards claim of unauthorises use of electricity including electric duty payable to the State Government. He further stated that being aggrieved by the said assessment Complainant filed this case before this Commission which is not maintainable before this Commission.
Against the said petition Complainant filed a written objection, he denied the entire allegations made in the aforesaid petition. They further contended that O.Ps have referred a case law reported in 2013 (8) S.C.C 491 under Consumer Protection Act, 1986 which has already repealed.
During hearing, Ld. Advocate for the Complainant produced the decision reported in 2013 (4) S.C.C (CRI) 321 (UP Power Corporation Ltd. and Ors. Vs. Anish Ahmed). We find that Hon’ble Apex Court held that in case of inconsistency between the Electricity Act 2003 and Consumer Protection Act, 1986, the provision of Consumer Protection Act will prevail but if so 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 U/s 2 (1) (O) or “Complaint” as defined U/s 2 (1) (C) of the Consumer Protection Act, 1986.
Hon’ble Apex Court further held that a “complaint” against the assessment made by Assessing Officer U/s 126 or against the offences committed U/s 135 to 140 of the Eletricity Act, 2003 is not maintainable before a Consumer Forum.
On perusal of another decision of Hon’ble Calcutta High Court reported in 2023 (1) ICC 590 filed by the O.Ps we find Hon’ble Calcutta High Court held:-
“There cannot be any conceivable reason to compel the CESC Ltd. to continue litigation against the private respondents in a frivolous litigation, where the Consumer Forum does not have jurisdiction to entertain the matter at all.”
Hon’ble Calcutta High Court in another case (WPA No. 12388) (Sathi Das Vs. CESC) held that the CESC Ltd., subsequently in compliance with the said order demanded the due amount of the husband from the petitioner wife, since there was patent nexus between the two orders, being the petitioners
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C.C. NO. 281/2021
meter and the defaulting meter of her husband, which are situated in the same premises, with the petitioners and her husband sharing the electricity usage from the same meter hence no cause of action has been made out by the petitioner for the premature challenge to the demand notice.
In reply Ld. Advocate for the Complainant submitted that he is also relying upon the decision of Hon’ble Apex Court filed by the O.Ps.
We have carefully gone through the papers submitted by both the parties before this Commission and we find that Assessing Officer and authorized officer jointly made the inspection on 02/03/2021 and they assessed Rs. 200753/- U/s 126 of Electricity Act and demanded the same from the Complainant. Hon’ble Apex Court clearly stated in the aforesaid decision that a complaint against the assessment U/s 126 of Electricity Act before the Consumer Fora now Commission is not maintainable.
Having regard to the aforesaid discussion it is clear before us that the present case is not maintainable before this Consumer Commission.
Hence,
It is
Ordered,
That the present case be and the same vide no. C.C./281/2021 is dismissed on contest being not maintainable.
M.A. case no. 113/2023 is thus disposed of.
Dictated and Corrected by me
President
Member President
