RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No.989 of 2004
U.P. Power Corporation Ltd. through its
Executive Engineer, Electricity Urban
Distribution Div.-I, Ghanta Ghar, Meerut. ..Appellant.
Versus
Ram Nivas s/o Sri Bhagwat Dayal,
R/o Burhana Gate, Meerut City. …Respondent.
Present:-
1- Hon’ble Sri A.K. Bose, Presiding Member.
2- Hon'ble Sri Gobardhan Yadav, Member.
For the appellant: Sri Isar Husain.
For the respondent: Sri Vikas Agarwal.
Date 30.9.2015
JUDGMENT
Sri A.K. Bose, Member- Aggrieved by the judgment and order dated 12.4.2004, passed by the Ld. DCDRF, Meerut in complaint case No.876 of 1999, the appellant U.P. Power Corporation Ltd. has 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 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.
The matter relates to Assessment of Electricity on the basis of Checking Report. From perusal of the complaint, it transpires that the respondent/complainant
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had a 5 HP electricity connection bearing no.102751 Book no.103/660 for running his Cotton Beating/Carding and Dry Cleaning Machines. The tariff was under LMV 6.
The premises was inspected by a Raiding Party upon which it was found that the respondent/complainant was using a load of 22.25 HP in place of sanctioned load of 5 HP. It was also found that he had given an illegal and unauthorized connection to adjacent shops. The connection was also used for running a Hotel. He was utilizing the connection for domestic purposes as well. The Checking Report also indicates that a connection bearing no.0345/019271 was previously obtained for the premises. The said connection was de-energized for non-payment of dues. The respondent/complainant obtained the instant Connection no.102751 without disclosing the factum relating to the old Connection no.0345/019271. Had he disclosed the above facts, a new connection would not have been given to him. Thus, the connection was obtained by way of concealment. Accordingly, an assessment order was passed in accordance with the rules.
Aggrieved by this order, complaint case no.876 of 1999 was filed for redressal of his grievances. It was contended that the factum of checking was false and fabricated. No checking was conducted on 21.1.1999 and therefore, the assessment order was nullity in the eye of law.
The appellant UPPCL on the other hand, admitted that the respondent/ complainant had a 5 HP connection bearing no.103/ 102751/660. It was contended that the
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premises was inspected on 21.1.1999 upon which it was found that the respondent/complainant was using a load of 22.25 HP against the sanctioned load of 5 HP. The Inspection Report was prepared on the spot but the respondent/complainant refused to put his signature on the same. An endorsement to this effect was made by the members of the Raiding Party in the Checking Report. It was also contended that the Assessment Order was prepared on the basis of Checking Report and a sum of Rs.33,075.00 was assessed. The respondent was intimated about the same and a copy of Assessment Calculation Memo was given to him. He was asked to file his objection/appeal, if any, but he did not prefer any appeal against the same. It was contended that since the matter relates to assessment therefore, the Forum had no jurisdiction to deal with the same.
The Forum below, after hearing the parties, cancelled the Checking Report as well as the Assessment Order. It also directed the appellant UPPCL to furnish a fresh Amended Bill to the respondent/complainant within a period of 30 days. It further directed the appellant to energize the electricity connection of the respondent. Apart from this, a sum of Rs.2,000.00 was awarded as cost of litigation. Aggrieved by this judgment and order, the instant appeal was preferred within the period of limitation.
Heard the parties and perused the evidence on record. The documents show that the premises of the respondent/complainant was inspected on 21.1.1999 and it
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was found that the respondent/complainant was using 22.25 HP electricity against the sanctioned load of 5 HP. Besides this, it was a commercial connection for funning his Cotton Beating/Carding and Dry Cleaning Machines and the tariff was under LMV 6. The Checking Report also shows that he had given unauthorized connection to the adjacent shops and was also using the same for domestic purposes. The connection was also being used for running a Hotel. It was also mentioned in the report that the connection was obtained by way of concealment of fact. The said premises was earlier having a connection no.0345/019271 which was permanently disconnected for non-payment of dues. The respondent/complainant obtained the instant connection no.102751 without disclosing the factum relating to the old connection. On the basis of this Checking Report, Assessment Order was prepared. The Assessment Calculation Memo is also on record. Thus, it is clears that the matter related to assessment of electricity. It has been held 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 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.
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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.
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
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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."
It has also been held 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."
There is no dispute that the matter relates to assessment. In view of the facts, circumstances, evidence on record and the rulings laid down by the Hon'ble
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Appellate Courts, we are of the considered view that the matter relates to assessment of electricity and, therefore, the Forum below had no jurisdiction to deal with the same. Consequently, the impugned judgment and order, being erroneous in the eye of law, can not be allowed to sustain. As such, the appeal deserves to be allowed.
ORDER
The appeal is allowed and the judgment and order dated 12.4.2004, passed by the Ld. DCDRF, Meerut in complaint case No.876 of 1999 is set aside. No order as to costs. Certified copy of the judgment be provided to the parties in accordance with the rules.
(A.K. Bose) (Gobardhan Yadav)
Presiding Member Member
Jafri PA-II
Court No.3
