The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of opposite party to impeach the judgment/final order dated 22nd November, 2016 passed by the District Consumer Disputes Redressal Forum, Bankura (in short ‘Ld. District Forum’) in Consumer Complaint No. 76 of 2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent Shri Rabi Lochan Mondal under Section 12 of the Act with a direction upon the opposite party/appellant i.e. the Station Manager, Bisnupur Customer Care Centre, West Bengal State Electricity Distribution Company Limited (W.B.S.E.D.C.L) to restore electric supply to the respondent within 15 days from the date of receipt of judgment.
The respondent herein being complainant lodged the complaint before the Ld. District Forum asserting that he is a consumer under the W.B.S.E.D.C.L vide Service Connection No. 4523-BKD/I-2, Service Connection No. I-481106 being an Industrial (Rural) consumer of W.B.S.E.D.C.L. Unfortunately on 04.07.2006 the S & LP Unit, Bisnupur raided the premises of Wheat and Oil Extraction Mill of the complainant and lodged a complaint with Bisnupur P.S. for which one case under Bisnupur P.S. Case No. 41 of 2006 under Section 135 of Electricity Act, 2003 was started and the electric connection line of the complainant was disconnected. After investigation into the matter police submitted Charge-sheet against the complainant under Section 135 (1)(a) of the Electricity Act, 2003. However, by a judgment/final order dated 31.08.2013, the Ld. Judge, Special Court of Bankura under the Electricity Act, 2003 acquitted the complainant from the charge levelled against him under Section 135 (1)(a) of the Electricity Act, 2003 and acquitted under Section 235 (1) of the Criminal Procedure Code in connection with Special (EL) Case No. 140/2016. After obtaining the order of acquittal in the said case, the complainant submitted application to the opposite party requesting him to reconnect the electric connection but opposite party did not take any steps and in this regard, all the requests and persuasions went in vain. Hence, the respondent approached the Ld. District Forum with the following prayers, viz.- (a) an order directing the opposite party to restore the electric connection into the Wheat and Oil Extraction Mill premises of the complainant; (b) an order of costs etc.
The appellant/opposite party did not contest.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with the direction as indicated above. Being aggrieved and dissatisfied with the said order, the opposite party has come up in this Commission with the present appeal.
Mr. Srijan Nayak, Ld. Advocate for the appellant has submitted that the respondent/complainant has been acquitted from the charge levelled against him under Section 135 (1) (a) of the Electricity Act, 2003 by a competent Criminal Court but another proceeding under Section 126 of Electricity Act, 2003 is there and as such liability being both criminal and civil in nature, the mere acquittal in a criminal case does not mean that the respondent is entitled to reconnection of electricity. He has further submitted that the respondent/complainant has committed theft of electrical energy amounting to Rs. 1,89,000/- and unless the same is paid, question of reconnection does not arise. Referring a decision of Hon’ble Supreme Court reported in (2013) 8 SCC 491 [U.P. Power Corporation Ltd. & Ors. – vs. – Anis Ahmad] the Ld. Advocate for the appellant has contended that an allegation of theft itself debar the respondent/complainant to lodge a complaint before the Ld. District Forum and question of obtaining an order from a Forum constituted under the Act does not arise at all. He has further submitted that previously the respondent lodged a complaint before the Ld. District Forum being CC/14/2006 and the same was dismissed by the Ld. District Forum on contest by a judgment/final order dated 29.01.2013. An appeal against the said judgment was preferred by the respondent and the same was dismissed for default by order dated 12.08.2013 in FA/245/2013. However, suppressing all those facts when the complainant has lodged the complaint before the Ld. District Forum, the impugned order should be set aside and consequently, CC/76/2015 should be dismissed.
Per contra, Mr. Debesh Halder, Ld. Advocate for the respondent has contended that when the complainant was exonerated by Ld. Special Judge, Electricity Act, 2003 there cannot be any hurdle on the part of respondent/complainant to get reconnection of electricity. Mr. Halder has also referred the decision of U.P. Power Corporation Ltd. & Ors. (supra) and contended that when the respondent/complainant was acquitted from the charges of theft of electrical energy, certainly he is entitled to reconnection of electrical energy in question.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the respective parties and seen the materials on record.
Undisputedly, respondent is a resident of Vill.- Basudevpur, P.O.- Morar, P.S.- Bisnupur Dist.- Bankura, West Bengal and he is a consumer under W.B.S.E.D.C.L. in respect of electrical energy being Industrial (Rural) having Service Connection No. 4523-BKD/I-2, Service Connection No. I-481106 and the respondent had been consuming electricity for operating his Wheat and Oil Extraction Mill. On the allegation of theft of electricity, a raid was conducted on 04.07.2006 by S & LP Unit, Bankura and one Case being Bisnupur P.S. Case No. 41 of 2006 under Section 135(1)(a) of the Electricity Act, 2003 was registered against the respondent and after investigation a Charge-sheet under Section 135 (1)(a) of Electricity Act, 2003 was submitted. Ultimately, a trial was held by the Ld. Special Judge, Electricity Act, Bankura being Special (El) Case No. 140 of 2006 and by judgment/final order dated 31.08.2013 the respondent was acquitted from the charge levelled against him under Section 135 (1)(a) of the Electricity Act, 2003. Being emboldened with that order of acquittal, the respondent lodged the complaint before the Ld. District Forum with prayer for restoration of the said electric connection which was disconnected on the allegation of theft.
Now, it has been articulated on behalf of appellant that in accordance with provisions of Section 126 (1) of the Electricity Act, 2003 a final Assessment Bill of Rs. 1,89,000/- has been passed by the Assessing Officer. The respondent did not disclose the said fact before the Ld. District Forum.
In a case, reported in (2013) 8 SCC 491 [U.P. Power Corporation Ltd. & Ors. – vs. – Anis Ahmad], the Hon’ble Supreme Court while discussing over the matter in Paragraph-47 has held:
“(i) 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 Section 2(1)(o) or ‘complaint’ as defined under Section 2(1)(o) of the Consumer Protection Act, 1986.
(ii) 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.
(iii) 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’”.
Now, Section 127 of the Electricity Act provides for an appeal by any person aggrieved by an order of Assessing Officer to the Appellate Authority within thirty days from the date of order. It indicates that the respondent had an opportunity to prefer an appeal against the assessment made by the Assessing Officer. However, the respondent/complainant did not avail that opportunity and remained silent as to payment of outstanding of bills.
The fact remains that the respondent being complainant earlier lodged a complaint against the appellant before the Ld. District Forum being CC/14/2006 and the said complaint was dismissed on contest by a judgment/final order dated 29.01.2013. Challenging the said order, an appeal was preferred being FA/245/2013 and the said appeal was dismissed for default on 12.08.2013. The respondent/complainant suppressed the said fact. In AIR 1994 SC 853 [S.P. Chengalvaraya Naidu (dead) by L.Rs. – vs. – Jagannath (dead) by L. Rs.] where the Hon’ble Supreme Court has observed that the litigant, who approaches the Court, is bound to produce all the documents which are relevant to the litigation and if he withholds a vital document in order to gain at the other side then he would be guilty of playing fraud on the Court as well as on the opposite party. In the instant case, the respondent did not file the complaint with clean hand and withheld the vital document like the order passed in CC/14/2006 by Ld. District Forum or the order passed in appeal before this Commission in FA/245/2013 and also the final assessment order under Section 126 (1) of the Electricity Act, 2003.
In the case before hand, it is quite apparent that the distribution licensee has disconnected the electric line of respondent on the allegation of theft of electrical energy and lodged a complaint for which one specific case under Section 135 (1)(a) of Electricity Act, 2003 was registered against the respondent. Whether the respondent has been convicted or acquitted is not material but when an offence under Section 135 (1)(a) of Electricity Act, 2003 has been committed by the respondent, he would be excluded from the purview of ‘consumer’ as defined in Section 2(1)(d) of the Act. Moreover, when the respondent has suppressed the factum of liability in payment of Rs. 1,89,000/- has outstanding bills, he also cannot claim himself as ‘consumer’ as defined in Section 2(1)(d) of the Act.
The Ld. District Forum has passed the impugned order erroneously without considering the facts and circumstances from the real perspective. In order words, the impugned order suffers from illegality and as such it should be interfered with.
In view of the above, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned judgment/final order is hereby set aside.
Consequently, the CC/76/2015 stands dismissed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Bankura in connection with CC/76/2015 for information.
