NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION
NO. 355 OF 2004
(From the order dated 24.11.03 in Appeal No.452/03 of the
State Commission, Jharkhand)
1. Accounts Officer,
Jharkhand State Electricity Board,
Ranchi.
2. Assistant
Electricity Engineer,
Jharkhand State Electricity Board,
Kokar Division,
Ranchi. … Petitioners
Versus
Anwar Ali, Proprietor,
M/s.Pinki Plastic Industrial Area,
Kokar Ranchi,
P.S. Sadar,
Distt. Ranchi. (Jharkhand) … Respondent
REVISION PETITION
NO. 371 OF 2006
(From the order dated 1.9.05 in Appeals No.793/03 of the
State Commission, Gujarat)
1. Executive
Engineer,
Gujarat
Electricity Board,
Division Office,
Lilesara,
Tal. Godhara,
District Panchmahal,
Gujarat.
2. Deputy
Engineer,
Gujarat Electricity Board,
Modasa Road,
Saifee Hospital,
Lunawada,
District Panchmahal,
Gujarat. … Petitioners
Versus
Madresa
Abriyah Talimul Muslin Min,
Lunawada,
District Panchmahal,
Gujarat. … Respondent
REVISION PETITION
NO. 372 OF 2006
(From the order dated 1.9.05 in Appeals No.792/03 of the
State Commission, Gujarat)
1. Executive
Engineer,
Gujarat
Electricity Board,
Division Office,
Lilesara,
Tal. Godhara,
District Panchmahal,
Gujarat.
2. Deputy
Engineer,
Gujarat Electricity Board,
Modasa Road,
Saifee Hospital,
Lunawada,
District Panchmahal,
Gujarat. … Petitioners
Versus
Madresa
Abriyah Talimul Muslin Min,
Lunawada,
District Panchmahal,
Gujarat. … Respondent
REVISION PETITION
NO. 373 OF 2006
(From the order dated 1.9.05 in Appeals No.794/03 of the
State Commission, Gujarat)
1. Executive
Engineer,
Gujarat
Electricity Board,
Division Office,
Lilesara,
Tal. Godhara,
District Panchmahal,
Gujarat.
2. Deputy
Engineer,
Gujarat Electricity Board,
Modasa Road,
Saifee Hospital,
Lunawada,
District Panchmahal,
Gujarat. … Petitioners
Versus
Madresa
Abriyah Talimul Muslin Min,
Lunawada,
District Panchmahal,
Gujarat. … Respondent
BEFORE :
HON’BLE MR. JUSTICE
M.B. SHAH, PRESIDENT
HON’BLE MRS. RAJYALAKSHMI RAO,
MEMBER
HON’BLE MR. JUSTICE
R.C. JAIN, MEMBER
In R.P. No.355/2004 :
For the Petitioners : Mr.Gopal Prasad, Advocate
For the Respondent : NEMO
In R.Ps No.371-373/2006 :
For the Petitioners : Mr.M.G. Ramachandran, Ms.Pinky
and
Ms.Hemantika Wahi, Advocates
For the Respondent : Mr.A. Rasheed Qureshi, Advocate
For the Intervenors (in both the cases)
i) Mr.M.G.
Ramachandran and
Mr.Avinash Menon, Advocates
For CESC
ii) Mr.Neeraj
Kr. Jain and Mr.Bharat Singh, Advocates
Dated the 10th April 2008
O R D E R
M.B.
SHAH, J., PRESIDENT
A. The question which requires
consideration is: whether Consumer Fora have jurisdiction to deal with the
grievances of the consumer of electricity, in case of deficiency in service by
the electricity supplier, after enactment of
the Electricity Act 2003?
This question is required to be
decided pursuant to the directions
dated 9.10.2007 issued by the Apex Court in Civil Appeal No.4734/2007
wherein, the Court observed as under :
“However, the question which arises
for determination and which has not been decided is: whether the beneficial
consumer jurisdiction extends to determination of tortuous acts and liability
arising therefrom by the Consumer Forum.
In this connection, it is urged on behalf of the Nigam that assessment
of the duty for unauthorized use of electricity, tampering of meters,
distribution of meters and calibration of electric current are matters of
technical nature which cannot be decided by the Consumer Forum. It is urged that under the Electricity Act,
2003 the jurisdiction of the Civil Court is excluded. In this connection reliance was placed on
Section 145 of the said 2003 Act under which the jurisdiction of the Civil
Court to entertain suits in respect of matters falling under Section 126 is
expressly barred. These are matters of
assessment. It is stated that the 2003
Act is a complete Code by itself and, therefore, in matters of assessment of
electricity bills the Consumer Forum should have directed the respondent to
move before the competent authority under the Electricity Act, 2003 read with
rules framed thereunder either expressly or by incorporation.
The above position was noted in Haryana
State Electricity Board Vs. Mam Chand (2006) 6 SCC 649.
In view of the fact that the
National Commission has not addressed the question as to whether consumer of
electricity is covered by the definition of ‘consumer’ as defined in Section
2(o) of the Act, we set aside the impugned order and remit the matter to the
National Commission to record a positive finding on the aspect. It shall also take into consideration the
dispute raised regarding the alleged service of notice dated 20.12.1999.”
SUBMISSIONS :
At
this stage, we would refer to the submissions made by the intervenor, Calcutta
Electricity Supply Corporation (CESC for short), which are as under :
.(i).
The provisions of Consumer
Protection Act, 1986 have been given
supremacy in so far there is inconsistency between the provisions of the
Consumer Protection Act and the Electricity Act, 2003 or Rules or Regulations made
thereunder, as provided under Section 173 of the Electricity Act.
.(ii).
Section 3 of the Consumer Protection
Act recognizes that the provisions of the Consumer Protection Act are in
addition to and not in derogation of the provisions of any other law for the
time being in force. Therefore, the
provisions of the Electricity Act will also continue to apply and the remedies
available under the other law can be availed notwithstanding the remedies
available under the Consumer Protection Act.
.(iii). The
well-settled rule of interpretation is that every effort should be made to
harmonize the provisions of two Acts and, if the colliding effect cannot be
harmonized, then only the provisions of one Act are to be read down in
preference to the provisions of the other Act.
It
is his contention that the provisions of one Act can be said to be inconsistent
with the provisions of the other only if they are colliding with each other and
cannot be harmonized at all. For such
interpretation, he relied upon various judgements and submitted that the test
of inconsistency is not that two Acts say different things but the effect
cannot be given to the provisions in one Act without committing violation or
breach of the other.
Both
the counsel referred to amendment of Section 50 of the electricity Act. We would refer to Section 50 as a whole for
the purpose of understanding:
“50. The
Electricity Supply Code – The State Commission shall specify an Electricity
Supply Code to provide for recovery of electricity charges, intervals for
billing of electricity charges, disconnection of supply of electricity for
non-payment thereof, restoration of supply of electricity, tampering, distress
or damage to electrical plant, electric lines or meter, entry of distribution
licensee or any person acting on his behalf for disconnecting supply and
removing the meter, entry for replacing, altering or maintaining electric lines
or electrical plant or meter.”
Scope
of Section 50 of the Electricity Act 2003.
“2. Inclusion of measures to control theft
in Electricity Supply Code :
1) The
Electricity Supply Code as specified by the State Commission under Section 50
of the Act shall also include the following namely :
i)
method of assessment of the electricity
charges payable in case of theft of electricity pending adjudication by the
appropriate court;
ii)
disconnection of supply of
electricity and removing the meter, electric line, electric plant and other
apparatus in case of theft or unauthorized use of electricity ; and
iii)
measures to prevent diversion of
electricity, theft or unauthorized use of electricity or tampering, distress or
damage to electrical plant, electric lines or meter.
The
above provisions in the Electricity Supply Code be without prejudice to other
rights of the licensee under the Act or any other applicable laws to recover
the sum due and to protect the assets and interests of the licensee.”
Learned counsel for the
Madhya Gujarat Vij Company Ltd. (MGVCL for short) has also filed written
submissions, wherein it has been, inter alia, contended as under:
.(a). There is no want of jurisdiction of the forum constituted under
the Consumer Protection Act in matters of consumer grievances of deficiency of
service in the supply of electricity by the licensees and service providers
under the Electricity Act, 2003 ;
.(b). The proceedings under Sections 126, 127, 135, 56, etc. of the
Electricity Act initiated by the Service Providers are not for redressal of grievances of the consumers
but are for redressal of the grievances of the service providers. These matters are outside the purview of the
Consumer Protection Act ;
.(c). The Consumer Forum cannot entertain petitions after the decision
by given the Appellate Authority ;
.(d). In matters of consumer grievances relating to supply of energy
the Electricity Act has provided an exclusive forum under the Electricity Act
for speedier remedy and therefore the Forum constituted under the Consumer
Protection Act can exercise the discretion to relegate the complainant to such
remedies.
I. FINDINGS :
a) Relevant
Provisions Of The Electricity Act
For deciding this question, we would
first refer to Sections 173, 174 and 175 of the Electricity Act, 2003
(hereinafter referred to as the Act for brief), which are as under :
Section
173 :
Inconsistency in laws – Nothing contained in this Act
or any rule or regulation made thereunder or any instrument having effect by
virtue of this Act, rule or regulation shall have effect in so far as it is
inconsistent with any other provisions of the Consumer Protection Act, 1986 (68
of 1986) or the Atomic Energy Act, 1962 (33 of 1962) or the Railways Act, 1989
(24 of 1989).
Section 174
:
Act to have overriding effect – Save as otherwise provided in
section 173, the provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any other law for the time being
in force or in any instrument having effect by virtue of any law other than
this Act.
Section 175
:
Provisons of this Act to be in addition to and not in
derogation of other laws – The provisions of this Act are in addition to and not
in derogation of any other law for the time being in force.
A
bare reading of the aforesaid Sections makes it abundantly clear that –
.(i). The
intention of the Parliament is not to bar the jurisdiction of the consumer fora
under the CP Act. The Electricity Act
also impliedly does not bar the jurisdiction of the consumer fora ;
.(ii). On the
contrary, it saves the provisions of Consumer Protection Act, 1986, Atomic
Energy Act, 1962 and the Railways Act, 1989 ;
.(iii). By
non-obstante clause, it has been provided that if anything in the Electricity
Act, Rules or Regulations is inconsistent with any provisions of the Consumer
Protection Act, it shall have no effect ; and
.(iv). Provisions
of the Electricity Act are in addition to and not in derogation of any other
law for the time being in force. The act supplements the existing redressal
forum, namely, the Consumer Fora.
Further,
Section 174 provides that in case of inconsistency, the provisions of
Electricity Act would have overriding effect over the provisions contained in
any other law, except the three laws as mentioned in Section 173 of the
Electricity Act.
(b) Other relevant provision which
would throw some light is Section 42 of the Electricity Act which provides the duties
of distribution licensees and open access.
Sub-sections (5) to (8) thereof provide alternative remedies for
redressal of the grievances of consumers in case the service is not provided in
accordance with the guidelines as specified by the State Commission (State
Commission as defined under Section 264 of the Electricity Act means State
Electricity Regulatory Commission). The
relevant Sub-sections (5) to (8) are as under:
“(5). Every distribution licensee shall, within
six months from the appointed date or date of grant of licence, whichever is
earlier, establish a forum for redressal of grievances of the consumers in
accordance with the guidelines as may be specified by the State Commission.
(6).
Any consumer, who is aggrieved by
non-redressal of his grievances under Sub-section (5), may make a
representation for the redressal of his grievance to an authority to be known
as Ombudsman to be appointed or designated by the State Commission.
(7).
The Ombudsman shall settle the
grievance of the consumer within such time and in such manner as may be
specified by the State Commission.
(8). The
provisions of Sub-sections (5), (6) and (7) shall be without prejudice to
right which the consumer may have apart from the rights conferred upon him by
those Sub-sections.
The aforesaid
Sub-sections (5) and (6) would indicate that a consumer can approach a forum
established by the licensee under the Electricity Act for redressal of his
grievances. If his grievances are not
redressed, he can approach the Ombudsman appointed or designated by the State
Commission. Despite this, Sub-section
(8) specifically makes it clear that the remedy provided in sub-sections (5),
(6) and (7) is an additional remedy and is without prejudice to the right,
which the consumer may be having under any other law.
This
would also establish that the jurisdiction of the consumer fora is not
curtailed or barred in any manner.
(c) The next Section of the Electricity Act, which would throw
some light on the issue is Section 145, which reads as under :
Section
145 :
Civil Court not to have jurisdiction – No Civil Court shall
have jurisdiction to entertain any suit or proceeding in respect of any
matter which an assessing officer referred to in Section 126 or an appellate
authority referred to in Section 127 or the adjudicating officer appointed
under this Act is empowered by or under this Act to determine and no
injunction shall be granted by any court or other authority in respect of any
action taken or to be taken in pursuance of any power conferred by or under
this Act.
It
specifically bars the jurisdiction of Civil Court in entertaining any suit or
proceeding in respect of any matter which an assessing officer referred to
under Section 126 or an appellate authority referred to under Section 127 is
empowered to determine.
Thereafter,
the aforesaid Section makes a distinction between the ‘Civil Court’ and ‘other
authority’ by providing that the court or other authority shall not grant any
injunction in respect of any action taken or to be taken in pursuance of any
power conferred by or under the Electricity Act.
Therefore, Civil Court jurisdiction
is expressly barred. Secondly,
jurisdiction of granting injunction by Civil Court or any other Authority is
also barred. Legislature has, therefore,
made a specific distinction qua the ‘Civil Court’ and ‘other Authority’.
The phrase
‘other Authority’ may include consumer fora.
However, if we read it along with Section 173, it would mean that if
there is inconsistency between the provisions of the Electricity Act and the
Consumer Protection Act, to that extent, provisions of the Electricity Act
would not be applicable. This is the
interpretation on the basis of bare reading of the aforesaid provisions of the
Electricity Act.
(d) The decision of
the Apex Court with regard to jurisdiction under the Consumer Protection Act
In addition to the aforesaid
provisions of the Electricity Act, the Apex Court has made it clear in various
judgements that the provisions of the Consumer Protection Act are required to
be interpreted as broadly as possible and the fora under the Act would also
have jurisdiction to entertain a complaint despite the fact that other fora /
court would have jurisdiction to adjudicate upon the said case. The trend of
the decisions is that the jurisdiction of the Consumer Forum should not
and would not be curtailed unless there is an express provision prohibiting the
Consumer Forum to take up the matter which falls within the jurisdiction of
civil court or any other forum as established under some enactment. The
Court had gone to the extent of saying that if two different fora have
jurisdiction to entertain the dispute in regard to the same subject, the
jurisdiction of the Consumer Forum would not be barred and the power of the
Consumer Forum to adjudicate upon the dispute could not be negated. [Re:Kishore
Lal vs. Chairman, ESI Corporation (2007)
4 SCC 579]
Not only this, Section 3 of the
Consumer Protection Act specifically provides that the provisions of the
Consumer Protection Act are in addition to and not in derogation of the
provisions of any other law for the time being in force. The result is that there is no bar to the
entertainment of the complaint by consumer fora, even if the provisions of the
other statute provide an alternate remedy to the consumer.
(e) Whether
consumer of electricity is a consumer as defined under Section 2(i)(o) of the Consumer
Protection Act, 1986?
Section
2(i)(o) of the Consumer Protection Act, (which is reproduced hereunder),
specifically includes supply of electrical or other energy in the definition of
the word ‘service’.
“Service” means service of any description
which is made available to potential [users and includes, but not limited to,
the provision of] facilities in connection with banking, financing, insurance,
transport, processing, supply of electrical or other energy, board or
lodging or both, [housing construction,] entertainment, amusement or the
purveying of news or other information, but does not include the rendering of
any service free of charge or under a contract of personal service.”
Under
Section 2(1)(d)(ii), a person who avails any service including the supply of
electrical or other energy, would be a ‘consumer’ and is entitled to file
complaint for any deficiency in service as provided under Section 2(1)(g). Under Section 2(1)(g), the word ‘deficiency’,
inter alia, means any fault, imperfection, shortcoming or inadequacy in
quality, nature and manner of performance, which is required to be maintained
by or under any law for the time being in force by a person in pursuance of
a contract or otherwise in relation to
any service.
Further,
the expression ‘service of any description’, was considered by the Apex Court
in Lucknow Development Authority vs. M.K.Gupta
1994(1) SC 243 and it was held
that the expression ‘service of any
description’ is very wide; it applies to
any service made available to potential users;
the words ‘any’ and ‘potential’ are significant. Both are of wide
amplitude, and, that the inclusive clause succeeded in widening its scope, but
not exhausting the services which could be covered in earlier part. So any
service except when it is free of charge or under a constraint of personal
service is included.
In
view of the aforesaid provisions of the Electricity Act as well as Consumer
Protection Act, it cannot be said that for the deficiency in service by the Electricity
Board or its officers, complaint is not maintainable under the Consumer
Protection Act.
II.
Criminal
Prosecution :
Consumer Fora have no jurisdiction
to interfere with initiation of criminal proceedings under Chapter XIV or
decision of the Special Court fixing the civil or criminal liability of any
person or consumer.
Chapter XIV deals with the offences and
penalties committed by any person, whether
he may or may not be a consumer of electricity. Chapter XIV of the Electricity Act provides
for offences and penalties for theft of electricity, theft of electric lines
and materials, interference with meters or works of licensee, negligently
breaking or damaging works, intentionally injuring works, extinguishing public
lamps and non-compliance of directions issued by Appropriate Commission as
provided under Sections 142, etc.
Further,
for trying the aforesaid offences Chapter XV provides for the constitution of
Special Courts, its procedure and power.
Section 153 provides for constitution of Special Courts to be headed by
an Additional District and Sessions
Judge.
Under
Section 154 the Special Court has to follow the summary procedure as stated
therein. As provided in Section 155
the Special Court shall have the power of Sessions Court. In addition to
summary procedure which is required to be followed by the Special Court under
Section 154(5), the Special Court may determine the civil liability against a
consumer or a person in terms of money for theft of energy. Such civil liability shall not be less than
an amount equal to two times of the tariff rate applicable for a period of 12
months preceding the date of detection of theft of energy or the exact period
of theft if determined whichever is less and the amount of civil liability so
determined shall be recovered as if it were a decree of civil court.
Sub-section
(6) of Section 154 provides that in case the civil liability so determined
finally by the Special Court is less than the amount deposited by the consumer
or the person, the excess amount so deposited by the consumer or the person,
with the Board or licensee or the concerned person, as the case may be, shall
be refunded to the consumer/person by the Board or licensee or the concerned
person, as the case may be within a fortnight from the date of communication of
the order of the Special Court together with interest at the prevailing Reserve
Bank of India prime lending rate for the period from the date of such deposit
till the date of payment.
Hence, in view of the aforesaid discussion it is to be held that Consumer
Fora would have no jurisdiction to interfere with the initiation of criminal
prosecution under Chapter XIV of the Electricity Act for various offences,
mainly because adjudication of criminal liability is altogether different from
that of civil liability and that Consumer Fora have no jurisdiction to deal
with the criminal cases.
Further
the determination of civil liability, as
discussed above, which is in the nature of imposing fine (or imprisonment or with both) arising
out of a dishonest intention, is
altogether different from passing
an assessment order under Section
126 of the Act. A plain reading of
Section 126 shows that the provisions of
Section 126 are different from the provisions of Section 154, because Section
154 deals with adjudication of disputes
of criminal nature, whereas under Section 126 orders of assessment are passed
against the offences of tortuous nature,
which can be adjudicated by the Consumer Fora. The procedure under Section 154(5) would be
applicable to the criminal acts such as,
theft of electricity for which prosecution is initiated by the Electricity
Board.
Appeal
or revision is provided under Section 156 before the High Court. Further Section 157 provides the power of
review by the Special Courts. The establishment of Special Court and its
procedure for trying the offences prescribed in Chapter XV are exhaustive and
completely judicial. Such establishment
of Special Court is meant for deciding the offences mentioned in Chapter XIV. It being a criminal prosecution, Consumer
Fora dealing with civil/tortuous liability would have no jurisdiction to deal
with it.
III. In support of their contentions,
reliance is placed upon the following judgements:
.(a). With regard to the non-obstante clause, the law is well
settled. In Union of India & Anr.
Vs. G.M. Kokil & Others (1984) Suppl. SCC 196, the court held that “It is well-known that a non
obstante clause is a legislative device which is usually employed to give
overriding effect to certain provisions over some contrary provisions that may
be found either in the same enactment or some other enactment, that is say, to
avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70,
namely, “notwithstanding anything contained in that Act” must mean notwithstanding
anything to the contrary contained in that Act and as such it must refer to the
exempting provisions which would be contrary to the general applicability of
the Act. In other words, as all the
relevant provisions of the Act are made applicable to a factory notwithstanding
anything to the contrary contained in it, it must have the effect of excluding
the operation of the exemption provisions.
Just as because of the non obstante clause the Act is applicable even to
employees in the factory who might not be ‘workers’ under Section 2(1), the
same non obstante clause will keep away the applicability of exemption
provisions qua all those working in the factory.
.(b). Municipal Corporation of Delhi Vs. Shiv Shanker (1971) 1
SCC 442 (at Pg.446) – In that case, the
court was considering whether there was any inconsistency between the
provisions of Prevention of Food Adulteration Act, 1954 and Food Products
Order, 1955. The court has observed
therein that unless there is fatal inconsistency between the two laws, there is
no question of implied repeal. The court
further observed that the meaning, scope and effect of the two Statutes, as
discovered on scrutiny, determines the legislative intent as to whether the
earlier law shall cease or shall only be supplemented. If the objects of the two statutory
provisions are different and the language of each statute is limited to its own
subject or object, then they are generally intended to run in parallel lines
without meeting and there would be no real conflict though apparently it may
appear to be so on the surface. Statutes
in pari materia although in conflict, should also, so far as reasonably
possible, be construed to be in harmony with each other and it is only when there
is an irreconcilable conflict between the new provision and the prior statute
relating to the same subject-matter, that the former, being the later
expression of the legislature, may be held to prevail the prior law yielding to
the extent of the conflict.
.(c). Raghbir Vs. State of Haryana (1981) 4 SCC 210 (at
Pg.215) wherein the court considered the question whether a person below 16
years of age and accused of an offence under Section 302 of the Penal Code can
get the benefit of the Haryana Children Act, 1974 and it was held that
“Applying the tests indicated by the settled principles, I have no hesitation
in holding that there is no real conflict between the provisions of the new
Code, particularly Section 27 thereof, and the provisions of the ‘Bal
Adhiniyam’. In short, the provisions of
the new Code clearly save any special or local law like the Bal Adhiniyam and
Section 27 of the new Code is merely an enabling provision which does not
express any contrary intention to undo the saving provided in Section 5 of the
new Code. There being thus no conflict
or repugnancy, the question of Article 254 of the Constitution being attracted
does not arise”.
.(d). Ajit Singh Singhvi Vs. State of Rajasthan (1991) Suppl. 1
SCC 343 (Pgs.351-352) wherein the court has referred to the judgment in J.K.
Cotton Spinning & Weaving Mills Co. Ltd. Vs. State of U.P. (1961) 3 SCR
185 wherein the court has observed that to what extent rule of harmonious
construction can be applied and held that “in applying the rule however we
have to remember that to harmonize is not to destroy. In the interpretation of statutes the courts
always presume that the legislature inserted every part thereof for a purpose
and the legislative intention is that every part of the statute should have
effect. These presumptions will have to
be made in the case of rule making authority also”.
In
the said case, the court also referred to Lt.Col. Prithi Pal Singh Bedi Vs.
Union of India (1982) 3 SCC 140 wherein it is observed that “the dominant
purpose in construing a statute is to ascertain the function of
Parliament. One of the well recognized
canons of construction is that the legislature speaks its mind by use of
correct expression and unless there is any ambiguity of the language of the
provision, the Court should adopt literal construction if it does not lead to
an absurdity”.
.(e). R.S. Raghunath Vs. State of Karnataka
(1992) 1 SCC 335 (at Pg.349) :
In that case, the court considered the effect of General
Rules and Special Rules framed under the Karnataka Civil Services (General
Recruitment) Rules, 1977 and Karnataka General Services (Motor Vehicles
Branch)(Recruitment) rules, 1976 (Special Rules for short). After elaborate discussion, the court held that
“if earlier and later statutes can reasonably be construed in such a way that
both can be given effect to, the same must be done”.
.(f). Similarly, in the case of State of Rajasthan Vs. Gopi Kishan
Sen (1993) Supp 1 SCC 522 (at Pgs.524, 525), the court has held that “the
rule of harmonious construction of apparently conflicting statutory provisions
is well-established for upholding and giving effect to all the provisions as
far as it may be possible, and for avoiding the interpretation which may render
any of them ineffective or otiose”.
.(g). Municipal Council, Palai Vs. T.J. Joseph (1964) 2 SCR 87
(at Pgs.96, 97) wherein the court observed “It is undoubtedly true that the
legislature can exercise the power of repeal by implication. But it is an equally well-settled principle
of law that there is a presumption against an implied repeal. Upon the assumption that the legislature
enacts laws with a complete knowledge of all existing laws pertaining to the
same subject and the failure to add a repealing clause indicates that the
intent was not to repeal existing legislation”.
From
the aforesaid judgments it cannot be said that provisions of the Consumer
protection Act would not be applicable in case
when aggrieved consumer
approaches the Consumer Fora for the
deficiency in service. The
provisions of the Consumer Protection Act are specifically saved under Section
173 read with Section 174 of the Electricity Act. Therefore, the provisions are
required to be reasonably construed to make them in harmony with each other as
far as possible, and, as stated in the aforesaid decisions, we have to
keep in mind that to ‘harmonize’ means ‘not to destroy’ and/or to hold
that the provisions of the Consumer Protection Act are not applicable for
redressal in case of grievances of a consumer against the Electricity Board or
such authority.
Further,
in the present case, there is no question of implied repeal. On the contrary, there is express saving and that
is the legislative intent. The main
object or purpose of construction or interpretation of statute is to ascertain
the intention of the lawmakers and the intent of the legislation is of supreme
importance and, legislative intent would be a pre-condition for determining the
scope of the legislation. One of the
well recognized canons of construction is that legislation speaks its mind by
use of correct expression. In the present
case, there is no ambiguity and, as such, the language used under Sections 173,
174 and 175 of the Electricity Act is absolutely clear. Therefore, there is no alternative but to
accept literal construction as it does not lead to any absurdity.
IV. Sections
126 and 127:
Keeping
the aforesaid principles in mind, the
only provisions which require consideration are Sections 126 and 127, which are
as under :
(a)
Section 126 –
Assessment – (1) If on an
inspection of any place or premises or after inspection of the equipments,
gadgets, machines, devices found connected or used, or after inspection of
records maintained by any person, the assessing officer comes to the conclusion
that such person in indulging in unauthorized use of electricity, he
shall provisionally assess to the best of his judgement the electricity charges
payable by such person or by any other person benefited by such use.
(2)
The order of provisional assessment shall be served upon the person in
occupation or possession or in charge of the place or premises in such manner
as may be prescribed.
(3) The
person, on whom a notice has been served under sub-section (2), shall be
entitled to file objections, if any, against the provisional
assessment before the assessing officer, who may, after affording a reasonable
opportunity of hearing to such person, pass a final order of assessment of
the electricity charges payable by such person.
(4) Any person
served with the order of provisional assessment may, accept such assessment and
deposit the assessed amount with the license within seven days of service of
such provisional assessment order upon him :
Provided that
in case the person deposits the assessed amount, he shall not be subjected to
any further liability or any action by any authority whatsoever.
(5) If the
assessing officer reaches to the conclusion that unauthorized use of
electricity has taken place, it shall be presumed that such unauthorized use
of electricity was continuing for a period of three months immediately
preceding the date of inspection in case of domestic and agricultural
services and for a period of six months immediately preceding the date
of inspection for all other categories of services, unless the onus is rebutted
by the person, occupier or possessor of such premises or place.
(6) The
assessment under this section shall be made at a rate equal to one-and-half
times the tariff applicable for the relevant category of services specified
in sub-section (5).
Explanation – For the
purposes of this section, -
(a) “assessing
officer” means an officer of a State Government or Board or licensee, as the
case may be, designated as such by the State Government ;
(b) “unauthorized
use of electricity” means the usage of electricity –
(i)
by
any artificial means ; or
(ii)
by
a means not authorized by the concerned person or authority or licensee ; or
(iii)
through
a tampered meter ; or
(iv)
for
the purpose other than for which the usage of electricity was authorized.
(b) Section
127 –
Appeal to appellate authority - (1) Any person aggrieved by the
final order made under Section 126 may, within thirty days of the said order,
prefer an appeal in such form, verified in such manner and be accompanied by
such fee as may be specified by the State Commission, to an appellate authority
as may be prescribed.
(2)
No appeal against an order of assessment under sub-section (1) shall be
entertained unless an amount equal to one-third of the assessed amount is
deposited in cash or by way of bank draft with the licensee and documentary
evidence of such deposit has been enclosed along with the appeal.
(3)
The appellate authority referred to in sub-section (1) shall dispose of the
appeal after hearing the parties and pass appropriate order and send copy of
the order to the assessing officer and the appellant.
(4)
The order of the appellate authority referred to in sub-section(1) passed under
sub-section (3) shall be final.
(5)
No appeal shall lie to the appellate authority referred to in sub-section (1)
against the final order made with the consent of the parties.
(6) When a person defaults in making payment of assessed
amount, he, in addition to the assessed amount, shall be liable to pay, on the
expiry of thirty days from the date of order of assessment, an amount of interest
at the rate of sixteen per cent per annum compounded every six months.
Analysis of Section 126 reveals that
–
(i)
If on inspection of any premises,
the Assessment Officer of the Electricity Board comes to the conclusion that
the consumer is indulging in unauthorized use of electricity, he has to
provisionally assess the electricity charges payable by such person.
(ii)
Maximum period provided for such
charge shall be 3 months immediately preceding the date of inspection in case
of domestic and agricultural services.
In case of other categories of service, the period is 6 months.
(iii) The assessment of charges is
required to be made at the rate equal to 1½ times the tariff applicable for the
relevant category.
For
this purpose, first provisional assessment is to be made, which is to be
communicated to the person and after giving reasonable opportunity of hearing,
final order of assessment of electricity charges is required to be passed.
However, before issuing such
assessment charges and bills, the concerned officer has to arrive at a
jurisdictional finding that the consumer was using the electricity
unauthorisedly
(i)
By any artificial means ; or
(ii)
By any means not authorized by the
concerned person or authority or licensee ; or
(iii) Through a tampered meter ; or
(iv) For the purpose other than for which
the usage of electricity was authorized.
Mainly,
the disputed question would be on the aforesaid jurisdictional facts. If that decision is arbitrary, unjustified or
erroneous on the basis of the facts, a consumer can raise dispute and approach
the appropriate forum.
In that case, the question is
whether he can:
(i)
file complaint under the Consumer
Protection Act; or
(ii)
file an appeal under Section 127 of
the Electricity Act before the Appellate Authority; or,
(iii) file complaint under the Consumer Protection
Act, 1986 challenging the order passed in appeal under Section 127 of the
Electricity Act.
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.
In
this connection, the learned counsel for the intervener (CESC) as well as for
MGVCL submitted that the provisions of the Electricity Act and the Consumer
Protection Act are required to be harmonized.
He further submitted that considering the fact that the Electricity Act
is a Special Code with specific purposes including the purpose of controlling
theft of electricity, the provisions of Electricity Act would prevail. It is, therefore, their contention that
consumer fora should not intervene when –
proceedings are initiated under
Section 126 or final order of assessment is passed by the concerned assessing
officer and also when the order is passed under section 127 by the appellate
authority;
For
deciding this contention, we would refer to the
statement of objects and reasons of the Electricity Act. The Electricity Act is mainly to have growth
of electricity industry through private licensees ; to take appropriate
decision of tariffs and to provide for distancing the government from
determination of tariffs; constitution of State Electricity Regulatory
Commissions and decentralization of management of distribution through
Panchayats, Users’ Association, Cooperatives or franchisees, etc. and also
constitution of Appellate Tribunal for disposal of Appeals against the Central
Electricity Regulatory Commission and State Electricity Regulatory Commissions
as well as provisions relating to theft of electricity so as to have a revenue
focus. The Preamble, which reads as
under, also speaks for these purposes:
“An Act to consolidate the laws relating to generation,
transmission, distribution, trading and use of electricity and generally for
taking measures conducive to development of electricity industry, promoting
competition therein, protecting interest of consumers and supply of electricity
to all areas, rationalization of electricity tariff, ensuring transparent
policies regarding subsidies, promotion of efficient and environmentally benign
policies, constitution of Central Electricity Authority, Regulatory Commissions
and establishment of Appellate Tribunal and for matters connected therewith or
incidental thereto.”
At
the same time, in the Preamble itself, one of the purposes mentioned is to
protect the interest of consumers and to supply electricity to all areas.
Further,
Chapter-X of the Act contemplates Constitution of Regulatory Commissions. As per Section 76, there would be a Central
Electricity Regulatory Commission. Their
functions are specified in Section 79.
Similarly, Section 82 contemplates Constitution of State Electricity
Regulatory Commissions. Their functions
are provided in Section 86. As such,
functions specified in the aforesaid two Sections are general in nature dealing
with tariff for generation, supply, transmission, etc. It has nothing to do with the individual
grievances of consumers. Further,
Chapter-XI provides for Establishment of Appellate Tribunals for hearing
Appeals against the orders of Adjudicating Officer or the appropriate
Commission under the Act. Under Section
111, there is specific exclusion of the order which is passed under Section 127
of the Act.
In this view of the matter, it cannot
be said that Electricity Act and the Consumer Protection Act are intended to
run parallel. It runs parallel only with regard to limited purpose of giving
redressal to the consumer in case of any arbitrary, illegal, unjustified or
action which is against the rules and regulations of electricity code.
In
that light we have to consider whether the remedy of approaching the Consumer
Fora in case where the proceedings under section 126 are initiated and the
final order under the said section is passed by the concerned officer.
In our view, at the stage of initiation
of the proceeding, apparently, the Consumer Fora would have no jurisdiction.
The
next question would be when final order is passed under section 126 whether
consumer can file complaint under Consumer Protection Act, 1986 or whether he
should avail of only appellate remedy as provided under section 127 of the
Electricity Act?
In
our view, for this purpose, we have to refer to Section 3 of the Consumer
Protection Act, 1986, and, also Section 175 of the Electricity Act, 2003. Both
the aforesaid provisions specifically provide that the provisions of the
Consumer Protection Act, 1986 as well as the Electricity Act are in addition to
and not in derogation of any of the provisions of any other law for the time
being in force. This would mean that the consumer has option either to file a
complaint under the Consumer Protection Act, 1986 or to file appeal under
section 127 of the Electricity Act against the order which is passed under
section 126 of the Electricity Act.
This
would be also in conformity with the various judgments rendered by the Apex
Court wherein it is held that the CP Act being beneficial legislation, should
receive a liberal construction and that provisions of the Act are required to
be interpreted as broadly as possible and the Fora under the CP Act have
jurisdiction to entertain a complaint despite the fact that other Fora or
Courts would have also jurisdiction to adjudicate upon the lis. The Court has
gone to the extent that jurisdiction of the Consumer Protection Act, 1986
should not and would not be curtailed unless there is an express provision
prohibiting the Consumer Fora to take up the matter which falls within the
jurisdiction of civil courts or in other forum as established in some
enactment.
In
the case of State of Karnataka Vs. Vishwabharathi House Building Coop. Society,
(2003) 2 SCC 412, the Court dealt with the contention that Parliament was not
empowered to establish hierarchy of Consumer Fora which is parallel to the
hierarchy of courts established under the Constitution, namely, the District
Courts, High Courts and the Supreme Court. Negativing the said contention the
Apex Court referred to various decisions and observed that by reason of the
provisions of Section 3 of the Act it was evident that remedies provided
thereunder are not in derogation of those provided under any other laws. The
Consumer Protection Act supplements and not supplants the jurisdiction of the
civil courts or other statutory authorities. The Court further held that : “It
is now well settled principle of interpretation of statute that plain language
employed in a section must be given its ordinary meaning”.
In
the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs.
M.Lalitha (Dead) through LRs & Ors. (2004) 1 SCC 305, the contention which
was raised was that in view of Section 90 of the TN Cooperative Societies Act,
1983 the Consumer Fora had no jurisdiction to decide the disputes between the
members of the cooperative society. That contention was negatived, after
considering the various provisions of the Cooperative Societies Act by holding
that merely because the rights and liabilities are created between the members
and the management of the society under the Cooperative Societies Act and
Forums are provided, it cannot take away or exclude the jurisdiction conferred
on the forums under the Consumer Protection Act as the additional remedies
provided under the CP Act is not excluded. Hence, Consumer Fora would have
jurisdiction. The Court referred to Fair Air Engineers (P) Ltd. Vs. N.K. Modi,
(1996) 3 SCC 385, and held that the question of conflict of decisions may not
arise and if the parties approach both the forums created under the Act and the
CP Act, it is for the Forum under the CP Act to leave the parties to proceed or
avail the remedies before the other forums, depending upon the facts and
circumstances of the case.
Similarly,
a three Judge Bench in the case of Kishore Lal vs. Chairman, ESI
Corporation (2007) 4 SCC 579 considered
the question whether Section 74 read with Section 75 of the Employees’ State
Insurance Act, 1948 ousted the jurisdiction of the Consumer Fora. It was held:
“17. It has been
held in numerous cases of this Court that the jurisdiction of a Consumer Forum
has to be construed liberally so as to bring many cases under it for their
speedy disposal. In Spring Meadows Hospital v. Harjol Ahluwalia‑
[(1998) 4 SCC 39] it was held that the CP Act creates a
framework for speedy disposal of consumer disputes and an attempt has been made
to remove the existing evils of the ordinary court system. The Act being a
beneficial legislation should receive a liberal construction. In State of
Karnataka v. Vishwabharathi House Building Coop. Society [(2003)
2 SCC 412] the Court speaking on the jurisdiction of the Consumer Fora held
that the provisions of the said Act are required to be interpreted as broadly
as possible and the fora under the CP Act have jurisdiction to entertain a
complaint despite the fact that other fora/courts would also have jurisdiction
to adjudicate upon the lis. These judgments have been cited with approval in
paras 16 and 17 of the judgment in Secy., Thirumurugan Coop. Agricultural
Credit Society v. M. Lalitha [(2004) 1 SCC 305]. The trend of the
decisions of this Court is that the jurisdiction of the Consumer Forum
should not and would not be curtailed unless there is an express provision
prohibiting the Consumer Forum to take up the matter which falls within the
jurisdiction of civil court or any other forum as established under some
enactment. The Court had gone to the extent of saying that if two
different fora have jurisdiction to entertain the dispute in regard to the same
subject, the jurisdiction of the Consumer Forum would not be barred and the
power of the Consumer Forum to adjudicate upon the dispute could not be
negated.”
Thereafter,
the Court dealing with Kishore Lal vs. Chairman, ESI Corporation (2007) 4 SCC 579 held as under:
”Further, it can be seen that any claim arising out of and
within the purview of the Employees’ Insurance Court is expressly barred by
virtue of sub-section (3) to be adjudicated upon by a civil court, but there is
no such express bar for the Consumer Forum to exercise the jurisdiction even if
the subject-matter of the claim or dispute falls within clauses (a)
to (g) of sub-section (1) of Section 75 or where the jurisdiction to
adjudicate upon the claim is vested with the Employees’ Insurance Court under
clauses ( a ) to ( f ) of sub-section (2) of Section 75 if it is
a consumer’s dispute falling under the CP Act.”
Further,
in the case of Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3
SCC 583, the Court has observed that Consumer Fora are quasi judicial tribunals
brought into existence to render inexpensive and speedy remedies to consumers.
It is equally clear that these Forums/Commissions were not supposed to supplant
but supplement the existing judicial system.
In the case of Charan Singh Vs. Healing Touch Hospital (2000) 7 SCC 668,
the Court observed that the Act provides for an alternative system of consumer
justice by summary trial.
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 Sec.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 injunction 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
Sec.153 or the civil liability determined under Section 154 of the Electricity
Act.
Hence,
the issue of law which was required to be determined is decided as stated
above.
The
revision petitions are to be heard on merits.
Sd/-
……………………………..J.
(
M.B.SHAH )
PRESIDENT
Sd/-
……………………………….
(
RAJYALAKSHMI RAO )
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
NEW DELHI
REVISION PETITION NO.
355 OF 2004
(From
the order dated 24.11.03 in Appeal No.452/03 of the State Commission,
Jharkhand)
1.
Accounts Officer,
Jharkhand State Electricity Board,
Ranchi.
2.
Assistant Electricity Engineer,
Jharkhand State Electricity Board,
Kokar Division,
Ranchi.
… Petitioners
Versus
Anwar
Ali, Proprietor,
M/s.Pinki
Plastic Industrial Area,
Kokar
Ranchi,
P.S.
Sadar,
Distt.
Ranchi. (Jharkhand)
… Respondent
REVISION PETITION NO.
371 OF 2006
(From
the order dated 1.9.05 in Appeals No.793/03 of the State Commission, Gujarat)
1.
Executive Engineer,
Gujarat Electricity Board,
Division Office,
Lilesara,
Tal. Godhara,
District Panchmahal,
Gujarat.
2.
Deputy Engineer,
Gujarat Electricity Board,
Modasa Road,
Saifee Hospital,
Lunawada,
District Panchmahal,
Gujarat.
… Petitioners
Versus
Madresa
Abriyah Talimul Muslin Min,
Lunawada,
District
Panchmahal,
Gujarat.
… Respondent
REVISION PETITION NO.
372 OF 2006
(From
the order dated 1.9.05 in Appeals No.792/03 of the State Commission, Gujarat)
1.
Executive Engineer,
Gujarat Electricity Board,
Division Office,
Lilesara,
Tal. Godhara,
District Panchmahal,
Gujarat.
2.
Deputy Engineer,
Gujarat Electricity Board,
Modasa Road,
Saifee Hospital,
Lunawada,
District Panchmahal,
Gujarat.
… Petitioners
Versus
Madresa
Abriyah Talimul Muslin Min,
Lunawada,
District
Panchmahal,
Gujarat.
… Respondent
REVISION PETITION NO.
373 OF 2006
(From
the order dated 1.9.05 in Appeals No.794/03 of the State Commission, Gujarat)
1.
Executive Engineer,
Gujarat Electricity Board,
Division Office,
Lilesara,
Tal. Godhara,
District Panchmahal,
Gujarat.
2.
Deputy Engineer,
Gujarat Electricity Board,
Modasa Road,
Saifee Hospital,
Lunawada,
District Panchmahal,
Gujarat.
… Petitioners
Versus
Madresa
Abriyah Talimul Muslin Min,
Lunawada,
District
Panchmahal,
Gujarat.
… Respondent
BEFORE :
HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT
HON’BLE MRS. RAJYALAKSHMI RAO, MEMBER
HON’BLE MR. JUSTICE R.C. JAIN, MEMBER
In
R.P. No.355/2004 :
For
the Petitioners
: Mr.Gopal Prasad, Advocate
For
the Respondent
: NEMO
In
R.Ps No.371-373/2006 :
For
the Petitioners
: Mr.M.G. Ramachandran,
Ms.Pinky
and Ms.Hemantika Wahi, Advocates
For
the Respondent
: Mr.A. Rasheed Qureshi,
Advocate
For
the Intervenors (in both the
cases)
i)
Mr.M.G. Ramachandran and
Mr.Avinash Menon, Advocates
For CESC
ii)
Mr.Neeraj Kr. Jain and Mr.Bharat Singh, Advocates
Dated
the 16th April, 2008
O
R D E R
PER
JUSTICE R.C.JAIN, MEMBER:
I have carefully perused the opinion
rendered by the Hon’ble President and learned Member Mrs. Rajyalakshmi
Rao. While I am in general agreement with most of the observations made
and conclusion reached therein but I am not persuaded to agree to the view that
there exists any conflict/inconsistency between the provisions of Consumer
Protection Act, 1986 and the Electricity Act, 2003 and, therefore, by
application of the provisions of section 173, 174 and 175 of the Electricity
Act read with section 3 of the Consumer Protection Act, the consumer fora
constituted under the Consumer Protection Act would have jurisdiction over the
matters relating to assessment of charges/duty for unauthorized use of
electricity etc provided under section 126 and 127 of Part XII of the
Electricity Act, 2003. Therefore, the need to give a separate opinion.
2. The
important question posed by the Hon’ble Supreme Court for consideration of the
Commission has two limbs: (i) “whether a person who is aggrieved in regard to
the assessment of charges for unauthorized use of electricity as provided under
section 126 of the Electricity Act can be said to be ‘consumer’ within the
meaning of section 2(O) of the Consumer Protection Act, 1986” and (ii) “whether
having regard to the scheme and provisions of the Electricity Act, 2003,
matters relating to the assessment of duty for unauthorized usage of
electricity, tampering of meters, calibration of electric current falling under
section 126 of the Electricity Act, are the matters over which the consumer
fora can have jurisdiction”.
3.
Answer to the above question would require in-depth consideration of not only
the relevant provisions of two Acts but the scheme and legislative intent
behind enacting those enactments. There cannot be denial of the position
that the Consumer Protection Act is one of the benevolent pieces of legislation
intended to protect a large number of consumers from exploitation at the hands
of manufacturers and sellers of goods and service providers. It is
equally true that the provisions of Consumer Protection Act are in addition to
and not in derogation of the provisions of any other law for the time being in
force. Therefore, its provisions are entitled to liberal construction. On
the other hand, the Electricity Act is also a comprehensive piece of
legislation and a complete code in regard to the matters concerning the supply
of electricity and various allied matters. The said Act was brought on
the statute book much after the enactment of the Consumer Protection Act which
was in existence ever since 1986.
4
Coming to the first limb of the question as to “whether a person who is
aggrieved in regard to the assessment of charges for unauthorized use of
electricity as provided under section 126 of the Electricity Act can be termed
as ‘consumer’ within the meaning of section 2(1) (O) of the Consumer Protection
Act. To clarify any doubt, we may at once notice that the term ‘consumer’
is to be considered keeping in view the provisions of the above referred two
Acts and not as it is understood in common parlance. Had it been so, then
perhaps there was no need for the Apex Court to remit the matter for our
consideration because it cannot be disputed that a user or consumer of
electricity is indeed a consumer as is understood in common parlance. The
term ‘consumer’ is defined in section 2(1) (d) of the Consumer Protection Act,
1986 and also in section 2(15) of the Electricity Act.
Section 2(1) (d) of the Consumer Protection Act, 1986
reads as under:
“Consumer
means a person who-
1) buys any goods for a
consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such
goods other than the person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system of deferred
payment when such use is made with the approval of such person, but does not
include a person who obtains such goods for resale or for any commercial
purpose; or
(ii) hires or avails of any services
for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any beneficiary
of such services other than the person who hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or under
any system of deferred payment, when such services are availed of with the
approval of the first mentioned person but does not include a person who avails
of such services for any commercial purpose.
Explanation-
For the purpose of this clause, “commercial purpose” does not include use by a
person of goods brought and used by him and services availed by him exclusively
for the purpose of earning his livelihood by means of self-employment”.
Section 2 (15) of Electricity Act, 2003 reads as under:
“Consumer
means any person who is supplied with electricity for his own use by a licensee
or the Government or by any other person engaged in the business of supplying
electricity to the public under this Act or any other law for the time being in
force and includes any person whose premises are for the time being connected
for the purpose of receiving electricity with the works of a licensee, the
Government of such other person, as the case may be.
5.
A comparison of the two definitions would apparently show that these are
differently worded and have to be so because each of the definition is meant to
cater the enactment for the purpose of which it has been enacted. However
important question is: whether there exists any conflict/inconsistency between
the two definitions. In my opinion answer is in negative because the
definition of ‘consumer’ appearing in the Consumer Protection Act is of much wider
application in as much as it takes into its fold not only the consumers of
electricity alone but so many other categories of consumers of goods and
services while the definition appearing under the Electricity Act would be
restricted to its application for the purpose of Electricity Act only.
‘Consumer’ as defined under the Electricity Act will certainly be a consumer
within the meaning of section 2(1) (d) of the Consumer Protection Act because
he avails the services from the electricity supplier/licensee for
consideration.
6.
Section 2(O) of the Consumer Protection Act defines ‘service’ and specifically
speaks about supply of electric energy as one of the services covered under the
clause and section 2(g) defines ‘deficiency’ as any fault, imperfection,
shortcoming or inadequacy in quality, nature and manner of performance which is
required to be maintained by or under any law for the time being in force by a
person in pursuance of any relation to any service. Therefore, it is
logical to conclude that there is no ouster of jurisdiction of the fora
constituted under the Consumer Protection Act in matters concerning the supply
of electricity. However, we have to see when a complainant can invoke the
jurisdiction of such fora by filing a complaint. A complaint under the
Consumer Protection Act can only be filed in regard to supply of electric
energy either on the allegation that there is any deficiency or defect in the
supply of electric energy and/ or any unfair trade practice has been adopted by
the supplier of electricity in supplying the electric energy. Section 2(
C) of Consumer Protection Act deals with definition of complaint which
pre-supposes some kind of deficiency or defect or such similar wrong or blame
worthy act on the part of the service provider giving rise to a cause of action
to such a complainant. This would clearly mean that the provisions of Consumer
Protection Act can be utilized by a complainant to enforce his rights in regard
to a claim for deficiency in service on the part of the service provider.
7.
To take the above proposition to its logical conclusion, we must further
examine if a consumer of electricity who has infact no grievance either in
regard to any defect or deficiency in supply of electricity but is otherwise
aggrieved by the action of the electricity supplier in resorting to the
proceedings under section 126 of the Electricity Act for assessment of charges
for unauthorized user of electricity can be allowed to file a complaint in
respect of his aggrievement. Answer is a plain ‘No’ because such a
complainant does not fulfill the essential requirements of either being a
consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act
in as much as he is not complaining about any defect or deficiency in service
on the part of the service supplier of electricity.
8.
Whether the provisions contained in section 126 of the Electricity Act are in
any way inconsistent with the provisions of the Consumer Protection Act and for
that reason by application of section 173 and 174 of the Electricity Act and
Section 3 of the Consumer Protection Act, consumer fora constituted under the
Consumer Protection Act would have jurisdiction over the matters of assessment
of charges/duty for unauthorized user, is the next question, we must
address. Over-riding provisions contained in section 173 and 174 of the
Electricity Act undoubtedly recognizes the supremacy of the Consumer Protection
Act, 1986, Atomic Energy Act, 1962 and the Railways Act 1989 only and so far as
the provisions of Electricity Act or any rule or regulation made thereunder or
any instrument having effect by virtue of Electricity Act are inconsistent with
the provisions of above named three Acts. Section 175 of the Electricity
Act states that provisions of the said Acts are in addition to and not in
derogation of any other law for the time being in force. It may be
observed at the outset that incorporation of these provisions in the
Electricity Act does not necessarily pre-supposes the existence any conflict/inconsistency
amongst the provisions of Electricity Act and the Consumer Protection Act
etc.
9. To
find out whether there is any real conflict or inconsistency between the
provisions of Consumer Protection Act and the Electricity Act, effort in the
first instance should be made to harmonize the provisions of two Acts and to
see if by doing so the provisions of the two Acts can be given their full
effect. The provisions of one Act can be said to be inconsistent with the
provisions of another Act only if they are in conflict with each other and
cannot be harmonized at all. The test of inconsistency is not that the
two Acts say different things but that that the effect cannot be given to the
provisions of one Act without committing a violation or breach of other
Act. The legislative intent and purpose behind the enacting the
provisions of the respective Acts must also to be borne in mind whenever we are
called upon to examine the provisions of the two Acts in order to find out
whether there exists any conflict or inconsistency between the provisions of
the two Acts.
10.
In this case we are concerned with the provisions contained in Section 126 and
127 appearing in Part XII of the Electricity Act and to find out if these are
indeed inconsistent with any provision(s) of the Consumer Protection Act.
For this we must make a somewhat detailed examination of these provisions of
the Electricity Act. Part XII of the Electricity Act pertains to
“Investigation and Enforcement”. Section 126 lays down procedure for
assessment of the charges/penalty for unauthorized use of electricity after an
inspection of any place or premises having the equipments, gadgets, machines,
devices found connected or used by any person. The assessment is to be made by
an Assessing Officer to be appointed by the State Government in terms of
explanation appearing in the section. The Assessing Officer so appointed
is required to follow the procedure laid down in the said Section first by
making the provisional assessment to the best of his judgment and to serve the
order of the provisional assessment on the concerned person who is
suspected/accused of having made unauthorized use of electricity. After
service of the order of provisional assessment, it is for the user of electricity
to accept such assessment and deposit the assessed amount with the licencee
within seven days of service of such provisional assessment or to file his
objections against the provisional assessment before the Assessing
Officer. In case any such objections are filed against provisional
assessment, the Assessing Officer is obliged to afford reasonable opportunity
of hearing to such person/objector before passing a final order of assessment.
Sub-section (5) of section 126 lays down the period for which such assessment
for unauthorized use of electricity can be made. Sub-section (6) provides that
assessment under this section shall be made at a rate equal to twice the tarrif
applicable for the relevant category of services specified in sub-section
(5). Explanation appearing below this section gives the definition of
‘Assessing Officer’ and what is meant by ‘unauthorized use of electricity’.
(a)
‘Assessing Officer’ means an officer of a State Government or Board or
licensee, as the case may be, designated as such by the State Government.
(b) “Unauthorized use of electricity
means the usage of electricity-
“(i)
by any artificial means; or
(ii) by a
means not authorized by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for
which the usage of electricity was authorized;
(v) for the premises or areas other
than those for which the supply of electricity was authorized”.
It may be noticed that clauses (iii) through a tampered meter and (iv) for the
purpose other than for which the usage of electricity was authorized, appearing
in the explanation are paramateria to clauses (d) and (e) of sub-section (1) of
section 135 of the Electricity Act relating to Theft of Electricity.
However, legislature in its wisdom has kept these provisions under two
categories for obvious reasons. Not only that section 126 of the
Electricity Act embodies principle of natural justice but by virtue of section
127 an appellate forum has been provided in the form of Appellate Authority to
challenge the orders passed by the Assessing Officer. This is subject to
the condition that appeal so preferred by an aggrieved person shall only be
entertained when an amount equal to half the assessed amount has been
deposited by the aggrieved person. Sub-section (3) of section 127 again
provides that the Appellate Authority shall dispose of the appeal after hearing
the parties. Sub-section (4) makes the order of the Appellate Authority
final in the matter. It is pertinent to note that not only that order passed by
the Appellate Authority has been made final but by virtue of section 145, the
jurisdiction of the civil court has been excluded 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 has
passed. It clearly brings out the intention of the legislature that the
orders passed under section 126 and 127 are not to be interfered even by a Civil
Court. That being so, can it be said that the jurisdiction of
consumer fora is not barred to entertain a complaint in respect of these
matters. The answer is again in the negative.
11.
It may also be noticed that the provisions contained in section 126 are fiscal
in nature and a fiscal provision is required to be construed strictly.
What must have been the legislative intent to enact the provision like section
126 is not far to seek. It is a matter of common knowledge that various
Electricity Boards and electricity supply undertakings were incurring heavy
losses over the years. One major cause which could account for such huge losses
was theft and unauthorized use of electricity by certain unscrupulous
persons. It appears that to curb the said vices of theft and unauthorized
use of electricity, the provisions like 126, 135 etc. have been enacted and
special Courts and special authorities like the Assessing Officer under section
126 and special Courts under section 153 have been set up to deal with such matters.
It must be with the pious hope that suppliers of electricity are not deprived
of to recoup the losses they suffer on account of theft and unauthorized user
of electricity and that it should prove as deterrent to the prospective thieves
and unauthorized user of electricity.
12.
A careful study of the above provision of the Electricity Act and that of the
Consumer Protection Act would not show any conflict or inconsistency in the
provisions of the two Acts. The provisions of section 126 or 127 do not
in any way offend the scheme and provisions of the Consumer Protection
Act. In our view provisions of both the Acts can be given their full
meaning and effect without committing any breach of the other Act. Once
it is found that provisions of Electricity Act are not inconsistent with the
provisions of Consumer Protection Act, there appears to be no reason why the
provisions of former Act should not be allowed to operate in full.
13.
Yet another reason why consumer fora constituted under the Consumer Protection
Act cannot entertain any complaint in regard to the matters of assessment is
that such foras can neither replace the validly constituted statutory Assessing
Officer or the Appellate Authority nor can it sit over in appeal against such
duly constituted authorities. It would not be out of place to mention that
assumption of jurisdiction by the consumer fora in matters relating to
assessment would be meaningless because consumer fora would not be able to
provide the requisite relief in regard to these matters, strictly going by the
reliefs which a consumer fora can grant within the parameters of section 14 of
the Consumer Protection Act. Section 14 of the Consumer Protection Act does not
envisage granting any such relief to a consumer like quashing the order passed
by the Assessing Officer or by the Appellate Authority in appeal. Vesting
jurisdiction in consumer fora in regard to matters of assessment of
charges/duty for unauthorized use of electricity would amount to scuttling the
valid procedure for assessment of charge/duty by a duly constituted
authority. Consumer fora must not usurp the jurisdiction which is not
legally vested in them.
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.
……………………J
(R.C. JAIN)
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