RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.1792 of 2003

1- U.P. Power Corporation Ltd. through its

    Chairman, Shakti Bhawan, Lucknow.

2- Executive Engineer, E.D.D.-I,

    U.P. Power Corporation Ltd.,

    Kala Aam, Bulandshahr.

3- Dy. General Manager, U.P. Power Corporation Ltd.,

    Bulandshahr.                                               ..Appellants.

Versus

Vijay Pal Singh s/o Sri Risal Singh,

R/o Vill: Kondu, P.O. Banchawali,

Tehsil: Simandarabad, Distt: Bulandshahr. …Respondent.

Present:-

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

For the appellant:    Sri Isar Husain.

For the respondent: None.

Date  10.11.2015

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 19.5.2003, passed by the Ld. DCDRF, Bulandshahr in complaint case No.333 of 2001, the appellants U.P. Power Corporation Ltd. through its     Chairman and 2 others have 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

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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.

It may be observed here that in view of ruling laid down by the Hon'ble NCDRC in R. 4434 of 2014, Court No.4 was allowed to preside over by a Single Member on 22.9.2015. Hence, this judgment.

The matter relates to theft and assessment of electricity. From perusal of the records, it transpires that the father of the respondent/complainant Sri Risal Singh was having a 5 HP electricity connection bearing no.1225/ 029109 at his premises situated at Village Kondu District Bulandshahr. The respondent/complainant admitted in para 2 of his complaint that the premises was raided on 30.3.2001 by a raiding party of the Electricity Department. They prepared a checking report on the spot and furnished an assessment order of Rs.54,943.00. From perusal of the complaint, it further transpires that the electricity connection was obtained for running an Atta Chakki. It has been alleged that the electrical installation were seized by the officials and a fabricated assessment order was given to the respondent. Aggrieved by this action on the part of the Electricity Department, complaint case no.333 of 2001 was filed before the Ld. DCDRF, Bulandshahr.

 The Forum below, by a majority judgment of 2: 1 allowed the complaint and directed the appellant to refund a sum of Rs.30,478.00, deposited by the complainant. It also awarded various other consequential reliefs. However, the Lady member of the Forum observed that

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the matter related to theft of electricity and assessment which was admitted by the complainant and, therefore, in view of rulings laid down in III(1996)CPJ 81 and II(1997) CPJ 62 (NC), the Forum had no jurisdiction to deal with the matter. Since the majority judgment was against the UPPCL, therefore, the Corporation preferred an appeal against the same.

The respondent/complainant did not appear in spite of service of notice.

Admittedly, the matter relates to theft of electricity, as is clear from the checking report which is on record.  An Assessment order was made on the basis of the aforesaid checking report and the complainant deposited part payment. The respondent also admitted in his complaint that connection was in his father's name. He also admitted that there was a checking at his premises on 30.3.2001 and Raiding Party found illegal use of electricity for running an Atta Chakki. In the backdrop of the above, it is clear that the matter relates to Tariff and assessment of electricity and use of Atta Chakki. In M/s Anand Cane Crusher Vs. U.P. State Electricity Board and Ors., III(1993) CPJ 365 (NC), it was held that by the Hon'ble National Commission that:

 the Foum below had no inherent jurisdiction to deal with the matter relating to tariff which falls in the realm of pricing and as such was beyond the jurisdiction of the Consumer Forum to adjudicate upon.

In Walmik vs. Maharastra State Electricity Distribution Co. Ltd., II(2015) CPJ 88 (NC), that:-

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"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 apart from Tariff, the matter also relates to assessment. 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

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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 meaning of "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government

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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 Anand Cane Crusher and Walmik vs. Maharastra State Electricity Distribution Co. Ltd. (Supra), we are of the considered view that the matter relates to Tariff and assessment of electricity used for Atta Chakki and, therefore, the Forum below had no jurisdiction to deal with the same. Consequently, the impugned judgment and order dated 19.5.2003, 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 19.5.2003, passed by the Ld. DCDRF, Bulandshahr in complaint case No.333 of 2001 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)                               

                                                     Presiding Member                       

Jafri PA-II

Court No.4