Date of Filing – 10.03.2016

Date of Hearing – 08.11.2016

PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant Revisional Application u/s 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Parties to impeach the Order no.2 dated 30.12.2012 made by the Ld. District Consumer Disputes Redressal Forum, Cooch Behar (for short, Ld. District Forum) in Consumer Complaint no. 116/2015 whereby an interim order  was passed in accordance with Section 13(3B) of the Act with a direction upon the Appellant no.1 i.e. the Station Manager, Dinhata-1 Customer Care Centre, WBSEDCL to restore the electric connection of the Opposite Parties forthwith.

          We have perused the materials on record and considered the submission advanced by the Ld. Advocates for the parties.

          Having heard the Ld. Advocate for the parties and on going through the materials on record, it would reveal that the OPs herein being Complainants have initiated the instant Consumer Complaint under Section 12 of the Act on the allegation of deficiency of services on the part of the OPs i.e. the Revisionists herein with prayer for certain reliefs, viz – (a) for waiving of provisional assessment bills of Rs.1,11,164/- and alleged theft of electricity; (b) a sum of Rs.25,000/- as compensation for mental agony and harassment and (c) a sum of Rs.10,000/- as litigation cost etc.  Immediately, after filing of the petition of complaint, an application for restoration of electric connection was made by the Complainants, who are ‘consumer’ being Consumer Id nos.424093366, 400334139 and 401334043.  By the impugned order, the Ld. District Forum allowed the prayer of interim relief of the Complainants in accordance with Section 13(3B) of the Act, as indicated above, which prompted the OPs to approach this Commission with the present revision petition.  

          Mr. Alok Mukhopadhyay, Ld. Advocate appearing for the Revisionists has submitted that on the allegation of theft of electricity the electric connection of the OPs/Complainants has been disconnected and a specific criminal case under Section 135(1) of Electricity Act, 2003 has been registered and also a provisional assessment under Section 126 of the said Act has been made and in that perspective, in accordance with the decision of the Hon’ble Supreme Court reported in 2013 (3) CPR 670 (U.P. Power Corporation Ltd. & Ors. – vs. – Anis Ahmed) the complaint is not maintainable and as such the Ld. District Forum has committed a grave error by passing the interim order which is liable to be set aside.

          Admittedly, on the allegation of theft of electricity on 10.12.2005, the officers of WBSEDCL disconnected the electric connections and a specific case under Section 135(1) of Electricity Act, 2003, has been registered against the Complainants i.e. the OPs herein.  It also remains undisputed that in accordance with Section 126 of the said Act, a provisional assessment order amounting to Rs.1,11,164/- has been passed.

          Now, on a bare perusal of Section 126 and Sections 135 to 140 of the Electricity Act, 2003 it is quite apparent that while acts of ‘unauthorised use of electricity’ attracts civil consequence of penal charge of electricity twice the rate of electricity for which assessment is made by assessing officer under Section 126 of the Act, the very same Acts of ‘unauthorised use of electricity’ constitute ‘offences’ under Sections 135 to 140 of the Act for which sentence and fine has been prescribed.  Therefore, the liability of the Complainants are two fold – Civil as well as Criminal.  In other words, the Complainants have the liability of making payment of Rs.1,11,164/- as per assessment done by the Assessment Officer under Section 126 of the Act and also a criminal liability by discharging/acquitting themselves from the charge levelled against them under Section 135 (1) of the Electricity Act, 2003 for commission of theft of electricity.

          We are astonished on perusal of the impugned order that the Ld. Advocate for the Complainants submitted that even if there was any allegation of theft of electric energy, the licensee is under obligation to restore the electric line immediately.  The Ld. District Forum has relied much on a judgement passed in SC Case no.RC/31/2010.  Since the said order is not available before us, we are restrain ourselves from making any comment. 

       Be that as it may, the decision in the case of U.P. Power Corporation Ltd. & Ors. (Supra), the Hon’ble Apex Court has made it clear that 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’ as embodied in Section 2(1)(d) of the Act 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 the or under any law’.  According to the observation of the Highest Court of the Land, 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.

          Needless to say, in view of the provisions as noted above and the principle of law laid down by the Hon’ble Supreme Court , the complaint itself is not maintainable far less to speak of about the impugned order.

          In view of our forgoing discussions, we are of the view that the instant revision petition being meritorious one should be allowed and we do so.

          Accordingly, the instant revision petition is allowed on contest.  Considering the facts and circumstances, however, we do not make any order as to costs.

          The Order no.2 dated 30.12.2015 passed by the Ld. District Forum in CC/116/2015 is hereby set aside.

          Consequently, the CC/116/2015 pending before the Ld. District Forum stands dismissed being not maintainable.

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Cooch Behar for information.