PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer case is as under –
2) Thereafter Complainant received electric bill for the month of Feb., 2008 amounting to Rs.72,580/ including consumption charges total 1153 units amounting to Rs.9,910.07 paise. The Complainant paid Rs.11,000/- on 27/03/2008 itself living balance of Rs.61,580/-.
3) According to the Complainant on 28/03/2008 Opposite Party No.4 alongwith his 2 Assistants visited his business premises and served Vigilance Claim alleging theft of electricity referring to vigilance raid carried out by Vigilance (E.S.) Division of Opposite Parties on 28/03/08. The Opposite Party alleged offence of theft of electricity under Section 135 of Part XIV of Electricity Act, 2003 against the Complainant and calculated estimated loss of Rs.15,77,033/- for 85245 kwh units. The Compounding charges were worked at Rs.1,61,900/- and the Complainant was directed to pay total sum of Rs.17,38,933/- . Vigilance claim was signed by Opposite Party No.4 who is not competent to sign the said Vigilance Claim on behalf of Opposite Party No.3 and the said is without any authority of law.
4) The Complainant was arrested by Nagpada Police Station on 28/03/2008 under Sec.135(a) of Indian Electricity Act, 2003 and was produced before Special Court, Mumbai on 29/03/08 and was remanded to police custody upto 31/03/08. Subsequently on 31/03/08 the Complainant was ordered to be released on bail. The Complainant filed an application dtd.28/04/2008 in which recorded his objection under Sec.126(3) of Electricity Act, 2003 challenging the Vigilance Claim.
5) The Complainant filed Writ Petition No.2136 of 2008 on 16/07/2008 before the Hon’ble High Court, Bombay for quashing & setting aside provisional order dtd.28/03/2008 and for restoration of the electric supply to his aforesaid Industrial Shop. Initially the said Writ Petition was on board for admission on 02/02/08 and it was adjourned for two weeks for further arguments. The Writ Petition again appeared before Their Lordship on 16/02/08 for admission were Their Lordship were pleased to allow the Complainant to withdraw the said Writ Petition with liberty to take appropriate remedies as permissible in accordance with law and the said Writ Petition was allowed to be withdrawn with said liberty.
6) Therefore, the Complainant has filled this complaint. He has requested to quash and set aside Vigilance order on 28/03/08 passed by Opposite Party No.4 in the name of Opposite Party No.3 in respect of his meter. The Complainant has requested to direct Opposite Party to restore electric supply of meter. He has prayed to direct Opposite Party to pay Rs.1,20,000/- as compensation i.e. Rs.10,000/- p.m. from 28/03/08 during which electric supply was disconnected. Further he has requested to this Forum, to allow him to deposit the arrears of bill amounting to Rs.61,500/- in two equated monthly installments. He has prayed Rs.15,000/- as cost of this complaint from the Opposite Party.
7) The Complainant has filed documents as per list of documents at Sr.No.1- 11.
8) Opposite Party have filed their written statement and thereby resisted claim of the Complainant contending interalia that the Complainant is not a ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 and therefore, complaint deserves to be dismissed with cost. It is contended that in the complaint itself the Complainant has admitted that he is engaged in commercial activities and for that purpose he had obtained electric connection from the Opposite Party. It is submitted that theft of electricity has been registered against Complainant and he was arrested by the police in connection with the said case. The cases of theft of electricity are being dealt with Special Courts in accordance with provisions of Electricity Act, 2003. Therefore, this Forum has no jurisdiction to entertain and try this complaint.
9) It is the case of the Opposite Party that Shri.Abdulla Ibrahim Shaikh is a registered consumer of Opposite Party having Meter No.L901368. The complaint is filed by Adil Abdulla Shaikh,who is son of deceased Abdulla Ibrahim Shaikh. The Complainant has been carrying on business of buffing & polishing stainless utensils at the premises mentioned in the cause title of the complaint.
10) The Vigilance Department of the Opposite Party has conducted raid in the aforesaid premises of the Complainant on 28/03/2008, when terminal block seal of Complainant’s Meter No.L901368 was found missing. Both the lead seals were found tampered and the said meter found slow in dial test. Therefore, said meter was opened and it was found that counter gear wheels were replaced by higher ratio size as a result meter was not recording accurate consumption. It is contended that the Complainant has committed theft of electricity and therefore, their Vigilance Department has filed compliant with Nagpada Police Station. On the basis of said compliant, Complainant was arrested. After following due process provisional claim of Rs.15,77,033/- was issued to the Complainant for period of 2 years and compound charges were worked out at Rs.1,61,900/- and the same were informed to the Complainant. Theft case will be decided by the Police Station. It is submitted that in case of theft of electricity Chapter XIV of Indian Electricity Act, 2003 defines about the offence and penalties and chapter XV defines about Special Court.
11) Opposite Party has denied each and every allegation made in the compliant and submitted that as the Complainant has committed theft of electricity, this Consumer Forum has no jurisdiction to entertain, try and decide the complaint and therefore, compliant be dismiss with cost.
12) The Complainant has filed affidavit of evidence and documents alongwith the list of documents dtd.23/03/2009. The Complainant in his rejoinder has denied allegations made by the Opposite Parties. The Complainant has filed written argument as well as Opposite Parties have filed their common written argument. Heard oral submissions of Ld.Advocate Mr.G.R.Khan for the Complainant and the Law Officer, Mr.K.R. Shetty for the Opposite Party.
13) Following points arises of our consideration and our findings thereon are as under -
Point No.1 : Whether this Forum has jurisdiction to entertain, try and decide this complaint ?
Findings : No
Point No.2 : What order ?
Findings : As per final order.
Reasons :-
Point No.1 :- It is admitted fact that the Complainant has obtained electric connection at his business premises at Room No.21, Mohd. Boro Chawl 55, Foras Road, Mumbai – 08 for business purpose. The Complainant is doing business of buffing & polishing stainless utensils and for this business he had taken aforesaid electric connection from the Opposite Party. In the prayer clause, the Complainant prayed for compensation of Rs.1,20,000/- on the basis of loss sustained by him in his business due to the disconnection of electric supply. It is submitted on behalf of Opposite Parties that the Complainant has obtained electric supply from Opposite Party for business i.e. for commercial activities. After amendment of Sec.2(1)(d)(ii) w.e.f.15/03/2003 “Person who avails services for commercial purpose is excluded from the defination of consumer.” In the instance case, admittedly the Complainant has obtained electric supply for commercial purposes therefore, the Complainant is not a ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the C.P.A.,1986.
In this complaint the Complainant has prayed to quash and set aside Vigilance order dtd.28/03/08. It is admitted by the Complainant that on 28/03/08 Opposite Party No.4 alongwith 2 Assistants had come to his business premises and inspected the meter of the Complainant and then issued notice. In the complaint para no.6, the Complainant has given particulars of notice in which Opposite Party has alleged that after inspection of meter it was notice that -
i) Meter Terminal Block Seal found missing,
ii) Meter body both lead seals found tampered,
iii) Meter found slow in dial test,
iv) After opening the meter, counter gear wheals found replaced by higher ratio size inside the Meter.
It is admitted fact that on 28/03/08 on the basis complaint lodged by Vigilance Department of Opposite Party to the Nagpada Police Station, Nagpada Police Station had arrested to the Complainant and subsequently he was released on bail. Ld.Advocate for the Opposite Parties has submitted Chapter XIV of Indian Electricity Act, 2003 defines offence of theft and penalties. In Chapter XV provision is made about Special Court to be established under Indian Electricity Act, 2003. In this case, complaint of theft of electricity has been filed against the Complainant therefore this Consumer Forum is no jurisdiction to set aside Vigilance order dtd.28/03/2008 as prayed by the Complainant. Further as per the provision of the Indian Electricity Act, 2003 only Special Courts are competent to deal with such cases. Therefore, this Forum has no jurisdiction to entertain and try this complaint.
As discussed above, in this case the Complainant has obtained electricity connection from the Opposite Party for his business purpose. As such, the Complainant is not a consumer as defined under Consumer Protection Act, 1986. Further it is clear from the evidence on record that vigilance squad had conducted raid at the above said business premises of the Complainant and that time electricity meter was found tampered. Thereafter police complaint was filed. Vigilance claim submitted to the Complainant. Prima-facie it is case of theft of electricity as such, this Consumer Forum has no jurisdiction to entertain, try and decide this complaint. Therefore, we answer point no.1 in the negative.
Point No.2 :- This Forum has no jurisdiction to entertain and decide this complaint, therefore, no relief can be granted for the Complainant as prayed for. Hence, the complaint deserves to be dismissed therefore, we pass following order -
O R D E R
i.Complaint No. 94/2009 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
