Civil Appeal No. 5466 of 2012 (Arising out of SLP (C) No. 35906 of 2011), C.A. No. 5467-5468 of 2012 (Arising out of SLP(C) No. 18284-18285 of 2008), C.A. No. 5469 of 2012 (Arising out of SLP (C) No. 14306 of 2009), C.A. No. 5470 of 2012 (Arising out of SLP (C) No. 33557 of 2011), C.A. No. 5471 of 2012 (Arising out of SLP (C) No. 33558 of 2011).... Case: U.P. Power Corporation Ltd. and Ors. Vs Anis Ahmad. Supreme Court (India)
| Case Number | Civil Appeal No. 5466 of 2012 (Arising out of SLP (C) No. 35906 of 2011), C.A. No. 5467-5468 of 2012 (Arising out of SLP(C) No. 18284-18285 of 2008), C.A. No. 5469 of 2012 (Arising out of SLP (C) No. 14306 of 2009), C.A. No. 5470 of 2012 (Arising out of SLP (C) No. 33557 of 2011), C.A. No. 5471 of 2012 (Arising out of SLP (C) No. 33558 of 2011)... |
| Counsel | For Appearing Parties: K.V. Viswanathan, L.N. Rao and Altaf Ahmad, Sr. Advs., Pradeep Mishra, Suraj Singh, Jyoti Sharma, Dipak Bhattacharyya, Rajat Jariwal, Anupinder Jassal, Abhishek Kaushik, Manish Kumar Saran, Vijay Kumar, B.V. Desai, Avijit Bhushan, Shreyas Mehrotra and Pooja, Advs. |
| Judges | G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ. |
| Issue | Consumer Protection Act, 1986 - Sections 2, 2(1), 3; Electricity Act, 2003 - Sections 2(15), 14, 15, 42, 42(5), 42(6), 42(7), 42(8), 50, 126, 126(1), 126(2), 126(3), 126(5), 127, 127(2), 135, 136, 137, 138, 139, 140, 145, 150, 153, 153(1), 154, 173, 174, 175; Atomic Energy Act, 1962; Railways Act, 1989; Companies Act, 1956; Code of Criminal ... |
| Citation | 2013 (5) ABR 494, AIR 2013 SC 2766, 2013 (4) AJR 519, 2013 (5) ALD 130, 2013 (5) AWC 5238 SC, 2013 (5) BomCR 76, 2013 (4) CDR 1118 (SC), 2013 (3) CompLJ 366 (SC), JT 2013 (10) SC 610, 2013 (4) LW 813, 2013 (6) MLJ 80, 2014 (I) OLR 68, 2013 (3) RCR 946 (Civil), 2013 (9) SCALE 334, 2013 (8) SCC 491, 2014 (1) WBLR (SC) 632 |
| Judgement Date | July 01, 2013 |
| Court | Supreme Court (India) |
Judgment:
Sudhansu Jyoti Mukhopadhaya, J.
1. The questions involved in these appeals are; a) whether complaints filed by the Respondents before the Consumer Forum constituted under the Consumer Protection Act, 1986 were maintainable and; b) whether the Consumer Forum has jurisdiction to entertain a complaint filed by a consumer or any person against the Assessment made Under Section 126 of the Electricity Act, 2003 or action taken Under Sections 135 to 140 of the Electricity Act, 2003.
2. The National Consumers Disputes Redressal Commission, New Delhi (hereinafter referred to as the 'National Commission') by impugned majority judgment (of President and one Member) dated 10th April, 2008 observed and held as follows:
x x x x x x x x
For the reasons stated below, in our view, the aforesaid questions can be answered as under:
(i) In case of final Assessment order passed Under Section 126 of the Electricity Act, if a consumer is aggrieved, he can file complaint under the Consumer Protection Act. However, it is his option to file complaint under the Consumer Protection Act or to file Appeal Under Section 127 of the Electricity Act.
(ii) Further, against the final order passed by the Appellant Authority Under Section 127 of the Electricity Act, no complaint can be entertained by the Consumer Fora.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
In view of the aforesaid settled law, the Consumer fora would have jurisdiction to entertain complaint against the final order passed by the Assessing officer Under Section 126 of the Electricity Act. Further, the jurisdiction of the consumer fora is not barred by any provisions of the Electricity Act but the same is expressly saved Under Section 173 read with Sections 174 and 175 of the Electricity Act.
V. In the result, we hold as under:
(i) Section 3 of the Consumer Protection Act and Section 175 of the Electricity Act, provide that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore, the rights of the consumers under the Consumer Protection Act are not affected by the Electricity Act.
(ii) A bare reading of Sections 173, 174 and 175, makes it clear that the intent of the Legislature is not to bar the jurisdiction of the Consumer Fora constituted under the Consumer Protection Act. The provisions of the Electricity Act have overriding effect qua provisions of any other law except that of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railways Act, 1989.
(iii) Section 42(8) of the Electricity Act specifically provides that the remedies conferred on consumer under Sub-sections (5), (6) and (7) of Section 42 are without prejudice to the right which the consumer may have apart from the rights conferred upon him by those Sub-sections.
(iv) Section 145 of the Electricity Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceedings in respect of any matter which an Assessing officer referred to in Section 126 or an Appellate Authority referred to in Section 127 of the Electricity Act or the Adjudicating Officer appointed under the Electricity Act, is empowered to determine.
Second part of Section 145 provides that no jurisdiction shall be granted by any Court or Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. For this purpose, if we refer to Sections 173 and 174 and apply the principle laid down there-under, it would mean that qua the consumer fora there is inconsistency and, therefore, 'other authority' would not include consumer fora.
(v) Consumer of electrical energy provided by the Electricity Board or other Private Company, is a consumer as defined Under Section 2(1)(o) of the Consumer Protection Act and a complaint alleging any deficiency on the part of the Board or other private company including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in relation to service, is maintainable under the Consumer Protection Act.
Against the Assessment Order passed Under Section 126 of the Electricity Act, a consumer has option either to file Appeal Under Section 127 of the Electricity Act or to approach the Consumer Fora by filing complaint. He has to select either of the remedy. However, before entertaining the complaint, the Consumer Fora would direct the Consumer to deposit an amount equal to one-third of the Assessed amount with the licensee [similar to Section 127(2) of the Electricity Act].
(vi) Consumer Fora have no jurisdiction to interfere with the initiation of criminal proceedings or the final order passed by any Special Court constituted Under Section 153 or the civil liability determined Under Section 154 of the Electricity Act.
3. The judicial Member having not agreed with the majority finding, by his minority judgment dated 16th April, 2008 held as follows:
14. In the result I hold as under:
(i) The provisions contained in Section 126 and 127 of Part XII of the Electricity Act, 2003 are not inconsistent with the provisions of Consumer Protection Act, 1986 and consequently there is no need to have resort to the provisions of Section 173 and 174 of the Electricity Act. The provisions of the Consumer Protection Act and Electricity Act can be given their full meaning and effect on the ground (ii) Consumer fora constituted under the Consumer Protection Act would have jurisdiction to entertain only the complaints filed by a consumer of electricity alleging any defect or deficiency in the supply of electricity or alleging adoption of any unfair trade practice by the supplier of electricity. (iii) The consumer fora established under the Consumer Protection Act have no jurisdiction over the matter relating to the Assessment of charges for unauthorized use of electricity, tampering of meters etc. As also over the matters which fall under the domain of special Courts constituted under the Electricity Act, 2003.
Following the aforesaid majority decision dated 10th April, 2008, other cases were disposed of by the National Commission in similar terms by impugned orders dated 13th March, 2009, 29th March, 2011 and 7th July, 2011. By impugned order dated 13th March, 2009, giving reference to the aforesaid judgment dated 10th April, 2008, the matter was remitted to the State Consumers Disputes Redressal Commission (hereinafter referred to as the "State Commission') for fresh decision.
4. For determination of the issue involved in these appeals, it is necessary to discuss the relevant facts as were pleaded by the parties before the Consumer Fora. The same is mentioned hereunder:
5. Case of Anis Ahmad,
Anis Ahmed filed a complaint before the District Consumer Protection Forum, Moradabad and claimed that he is a consumer of electricity having connection No. 104427 with sanctioned load of 6.5 horse power. He alleged that the authorities of the U.P. Power Corporation Ltd. Prepared a fictitious checking report dated 17th July, 2003 and falsely implicated the complainant that he had used more than sanctioned load of 10 H.P. In his factory and on the basis of fictitious report a proceeding was initiated on 15th April, 2004 followed by a bill No. 5004369 dated 15th June, 2004 demanding a sum of Rs. 2,11,451/-. He prayed to direct the Appellant to correct the bill, withdraw the demand notice and to pay the costs.
The Appellant, U.P. State Corporation Ltd. Filed the objections regarding maintainability of the above said petition. It was alleged that the complainant had industrial connection which was disconnected earlier due to the arrears of electricity dues. On a checking held on 17th March, 2004 by Sub-Divisional Officer-II and Junior Engineer, it was found that the L.T. Line of three phases passing from the other side of the premises of the complainant was tapped with the cables attached with the meter though they were disconnected earlier and the complainant was using full 10 horse power load by committing theft of electricity by bye-passing the meter.
6. Case of Rakhi Ghosh
Rakhi Ghosh claimed before the District Consumer Disputes Redressal Forum, at Suri, Birbhum, West Bengal, that he is a consumer of electricity having Connection No. 1/7884 with connected load of 20 H.P. He is running his husking mill through connected load. He challenged the bill for Rs. 3,73,935/- raised by the West Bengal State Electricity Board which was raised on the ground of unauthorized extension of load of 8 H.P.
The Appellant, West Bengal Electricity Board filed the objections and raised the question of maintainability of the application. It was stated that consumer was enjoying Industrial connection and, therefore, does not fall within the definition of "consumer" under the Consumer Protection Act, 1986. It was further alleged that a police case being No. 19/2005 dated 26th February, 2005 has already been lodged against Rakhi Ghosh for theft of electricity, therefore, the consumer forum has no jurisdiction to entertain the application.
7. Case of Prithvi Pal Singh
Prithvi Pal Singh filed a complaint before the District Consumer Protection Forum-II, Moradabad that he is a consumer having connection No. 0102/102474 with a sanctioned load of 6 KW. It was alleged that the U.P. Power Corporation Ltd. Got his premises inspected by its team and subsequently sent a notice to him on 1st December, 2005. In the said notice it was alleged that the Enforcement team on inspection made on 25th November, 2004 found that the complainant was committing theft of electricity by making a cut at the cable prior to meter and was using excess load. He challenged the bill raised by the Corporation for Rs. 1,45,546/- and prayed for compensation of 10,000/- for harassment.
The Appellant, U.P. Power Corporation Ltd. Filed objections and raised the question of maintainability...
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