Sri Kamal De, President
This is a case for restoration of electric service connection to the factory premises of the Complainant.
Briefly, case of the Complainant is that he took an electric connection from the OP at his factory under the name and style, :Maa Mangal Chandi Ice Factory”. His consumer ID is I-58024. He has been paying electric bills regularly as per the bills raised by the OP from time to time. Unfortunately, the OP lodged a complaint against him before the Mahisadal P.S. alleging theft of electricity and to that effect, said police station started Case No. 28/2015 dated 14-03-2015 u/s 135 of the Electricity Act. The I.O. submitted charge sheet against the Complainant before the Ld. Special Court, Tamluk. However, the said Ld. Court vide its order dated 29-07-2014 acquitted him of the charges u/s 135(1) of the Electricity Act. After pronouncement of said order, the Complainant on several occasions requested the OP to restore the electric connection to his factory, but the latter did not pay any heed to such requests. Hence, the case.
Case of the OP, on the other hand, is that an amount of Rs. 1,18,352/- is due from the Complainant. Besides, another sum of Rs. 3,448/- is receivable from the Complainant towards the energy bill for the month of March, 2005. It is the further case of the OP that proceedings u/s 126 and 135 of the Electricity Act stand on a separate and independent footing and they do not depend upon each other. So, mere acquittal of the Complainant u/s 135 of the Electricity Act is no bar for the OP to make due assessment of consumption charges u/s 126 of the Act. Moreover, it being a commercial venture, the Complainant is debarred from agitating his grievance through this Forum. Consequently, the OP prayed for dismissal of the instant case.
Points for consideration
- Whether the instant case is maintainable in its present form and prayer?
- Whether there is any deficiency in service on the part of the OP?
- Whether the Complainant is entitled to the relief as sought for by him, or not?
Decision with reasons
Point No. 1:
It appears, the electric connection to the factory of the Complainant was disconnected by the OP over alleged theft of electricity by him. It goes to show that the instant dispute is having its root over alleged theft of electricity by the Complainant.
There is no dispute as to the fact that the Complainant has been absolved of the charges framed u/s 135 of the Electricity Act by the Ld. Special Court, Tamluk. However, fact remains that proceedings u/s 135 of the Act is a penal proceeding to punish a person/accused found guilty of theft of energy. In case of theft of energy, notwithstanding element of unauthorized use of electricity is involved, it is noteworthy that each and every unauthorized use of electricity or energy not necessarily result in prosecution u/s 135 of the Act. There may be different provision as well. One is a civil action for recovery of amount towards consumption of electricity and the other penal action towards the act of theft of energy.
The Hon’ble Supreme Court in Civil Appeal No.5416 of 2012, Uttar Pradesh Power Corporation Ltd. Vs. Anis Ahmed, inter alia held as under:
“45. The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the Consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice 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 Sections 135 to 140 of 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)(c) of the Consumer Protection Act, 1986.
46. The acts 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.
47. In view of the observation made above, we hold that:
(i) ***
(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”.
On closer reflexion, it appears that the highest Court of the land has made it explicit that Consumer Fora should keep its hands off disputes arising over the assessments made by a distribution licensee u/s 126 of the Electricity Act. There cannot be any disagreement over the fact that nature and character of proceedings drawn u/s 126 and 135 of the Electricity Act stand on completely different pedestal and the outcome of such proceedings are independent of each other. Therefore, merely because the Complainant has been cleared of the charges u/s 135 of the Electricity Act by the Ld. Special Court, Tamluk, it is futile to expect that the same would result in automatic cessation of proceedings drawn u/s 126 of the Act. In such circumstances, we feel, till the proceedings drawn u/s 126 of the Act reach its logical end, even if the fate of present case is decided one way or the other and/or the Complainant is accorded any of the relief(s) as sought for by him before us, e.g., restoration of disconnected electric line to his factory, eventually the same would be bad in law and therefore, we are not inclined to do so. We also find from the averment of the OP in the W.V. that the Complainant owes a huge sum of money to it towards alleged usage of electricity.
Further, undisputedly, the Complainant is running his ice factory for commercial purpose. There is no such averment anywhere in the petition of complaint that he embarked on such venture for the purpose of maintenance of livelihood by means of self-employment. Also, it is most unlikely that he is running it all by himself without hiring any hands to run the factory. As we know, although “commercial purpose” has been brought under the ambit of 1986 Act, there is a rider – it has to be exclusively for the purpose of earning livelihood by means of self-employment. Thus, we find that the very element of self-employment is missing in the present case. That being so, we afraid, the present case is not maintainable before this Forum.
The answer to this question, thus, goes against the Complainant.
Point Nos. 2&3:
Insofar as the present case is not maintainable in its present form and prayer before this Forum, we are not inclined to delve on these issues.
In the result, the instant case is dismissed on contest.
Hence, it is
ORDERED
that C. C. No. 75/2015 be and the same is dismissed on contest against the OP being not maintainable. Considering the facts and circumstances of this case, we, however, make no order as to costs.
