RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.929 of 2002

M/s Aman Woollen Mills,

Village and Post, Phaphunda, Hapur Road,

Meerut through Partner Abdul Azeem.            ..Appellant.

Versus

Executive Engineer, Electricity Distribution

Division-I, Victoria Park, Meerut.            ..…Respondent.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Jugul Kishor, Member.

For Appellants    : Sri S.K. Sharma.

For Respondent   : Sri Isar Husain.

Date  30.11.2015

JUDGMENT

Sri A.K. Bose,  Member- Heard the Ld. Counsel for the parties on the point of admission and have gone through the evidence on record.

From perusal of the records, it transpires that the appellant/complainant M/s Aman Woollen Mills, Meerut was having a 100 HP Industrial Electric Connection in its name for running the Mill. It has been alleged that the premises of the Mill was inspected by a Raiding Party of the respondent on 6.11.1996 upon which no discrepancy was found. The Mill was utilizing only 87 HP of energy which was much less than the sanctioned/obtained load of 100 HP. It has been alleged that the respondent was in the habit of giving threats for frequent raids for no apparent rhyme or reasons.  It has further been alleged in the complaint that the respondent charged Rs.3,750.00 excess

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from the appellant/complaint for electricity consumed by the Mill during the period 20.12.1997 to 27.1.1998. It also charged excess amount of Rs.5,125.00 for the period for the period 27.1.1998 to 24.2.1998. It charged Rs.4,875.00 in excess for the period 24.2.1998 to 21.3.1998 and subsequently, the respondent arbitrarily raised the sanctioned load from 100 HP to 130 HP and thereby, charged a further sum of Rs.8,172.00 in excess. Its objections were not disposed of as per rules. The Mill was again inspected on 9.9.1997 and a penalty of Rs.73,080.00 was imposed for using the excess load. The appellant, however, deposited part payment on 1.10.1997 and the balance on 5.3.1998. It has further been alleged that on request of the respondent, the mill-owner agreed to increase the load but the respondent did so on paper only and asked it to deposit a sum of Rs.44,500.00 on 18.10.1997. The respondent did not dispose of its objections raised by the mill-owner in this regard. Feeling aggrieved by this colorful misuse of power, the appellant/complainant filed complaint case no.617 of 1998 for refund of the entire money deposited under duress by it in excess with interest. A number of other consequential reliefs were also sought.

The Forum below, after hearing the parties, came to the conclusion that the connection was obtained by the appellant/complainant after execution of an agreement. The subsequent increase in load was done on request on the basis of energy consumed by the appellant/ complainant. The bills were submitted on the basis of

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assessment and payments were also made without objections.  The Forum had no jurisdiction to deal with the matter as the same related to assessment of electricity consumed for commercial purposes. There was no irregularity or illegality in the assessment order. No specific deficiency in service could be pointed out. The complaint was dismissed on 5.3.2002 on merit.

Aggrieved by this order, the instant appeal was filed on 18.4.2002. From perusal of the records, it transpires that the matter relates to payment of bills on the basis of assessment. 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 and the appellant/complainant had deposited various amount on the basis of demand notice from time to

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time. The Hon'ble Apex Court was pleased to hold 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.

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,

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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 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".

In view of the facts, circumstances, evidence on record and rulings laid down by the Hon'ble Apex Court in-re Anis Ahmad (Supra) and by the Hon'ble National Commission in-re Walmik (Supra), we are of the considered opinion that the matter relates to assessment on the basis of report of raiding party. The connection in question is commercial in nature. The Forum below on the basis of evidence on record rightly dismissed the complaint.  There is no irregularity or illegality in the

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judgment and, therefore, we are no inclined to interfere in it.  Consequently, the appeal deserves to be dismissed with costs.

 ORDER

          The appeal is dismissed with costs. Certified copy of the judgment be provided to the parties in accordance with the rules.

         (A.K. Bose)                               (Jugul Kishor)

    Presiding Member                             Member

Jafri PA-II

Court No.4