Allowed

U.P. Power Corporation Limited v. the District Consumer Protection Forum-Ii and Another

Allahabad HC12 Dec 2018WRIC/41570/2008

Case brief

AI extract

What is this about?

This judgment quashes an order of the District Consumer Protection Forum which set aside an assessment for theft of electricity. The Bench held that unauthorized use of electricity falls under the Electricity Act, 2003, not consumer disputes, rendering the Forum lacking jurisdiction.

What did the court decide?

Quashing of the order dated 29.12.2007 passed by the District Consumer Protection Forum-II, Agra in Complaint Case no. 172 of 2006.

U.P. Power Corporation Limited Vs the District Consumer… — Cheque Dishonour | Allahabad HC (2018)

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Court No. - 39

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Case :- WRIT - C No. - 41570 of 2008

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Petitioner :- U.P. Power Corporation Limited Respondent :- The District Consumer Protection Forum-Ii And Another Counsel for Petitioner :- H.P. Dube Counsel for Respondent :- Anurag Gupta,Raghuveer Singh,S.C.,S.R.Singh

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Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.

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Heard Sri Baleshwar Chaturvedi, learned counsel for the petitioner.

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No one appears for the respondents even in the revised call. We, therefore, proceed to hear and decide the matter.

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The petitioner in the writ petition is seeking quashing of the order dated 29.12.2007 passed by the District Consumer Protection Forum-II, Agra in Complaint Case no. 172 of 2006 (Anil Kumar Jain Vs U.P. Power Corporation Limited).

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Briefly stated the facts of the case are that a surprise check of the premises of respondent no.2 was done on 2.7.2006 during which it was found that the respondent no.2 was running Air Conditioner by using electricity through katiya. A demand notice for Rs. 83,881/- for 82 months was issued to the respondent no.2. Aggrieved the respondent no.2 filed a complaint before the Consumer Protection Forum-II, Agra which by the impugned order dated 29.12.2007 has set aside the checking report dated 2.7.2006 as well as the assessment made therein of Rs. 83,881/- with a further direction that a sum of Rs. 32,724/- be reimbursed to the respondent no.2.

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The preliminary submission of the learned counsel for the petitioner is that the Consumer Protection Forum had no jurisdiction to try the dispute as the dispute related to theft of electricity for which provisional assessment was required to be made under Section 126 of the Electricity Act, 2003 and such matters are outside the purview of the Consumer Protection Forum and therefore, the impugned order dated 27.10.2008 passed by the District Consumer Protection Forum-II, Agra was wholly without jurisdiction. Reliance has been placed upon the judgement of the Supreme Court reported in (2013) 8 SCC 491 in the case of U.P. Power Corporation Limited & others vs. Anis Ahmad . Para 46 & 47 of the judgement are extracted below :

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"46. The acts of indulgence in "unauthorized use of

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electricity" by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 neither has any relationship with "unfair trade practice" or "restrictive trade practice" or "deficiency in service" nor does it amounts to hazardous services by the licensee. Such acts of "unauthorized use of electricity" has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in "unauthorized use of electricity", do not fall within the meaning of "complaint", as we have noticed above and, therefore, the "complaint" against assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.

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47. In view of the observation made above, we hold that :

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(i) 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 Section 2(1)(o) or "complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.

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(ii) A "complaint" against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.

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(iii) The Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to "unfair trade practice" or "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".

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The Supreme Court has held that acts of indulgence in "unauthorized use of electricity" by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 neither has any relationship with "unfair trade practice" or "restrictive trade practice" or "deficiency in service" nor does it amounts to hazardous services by the licensee and therefore, a complaint against assessment under Section 126 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.

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We have seen the checking report dated 2.7.2006 which has been filed as Annexure-1 to the writ petition which clearly mentions that on the date of surprise inspection, the respondent no.2 was found using electricity through katiya for running an

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Air Conditioner. Thus, this was a case of theft of electricity and a case under Section 126, 127 and 135 of the Electricity Act, 2003.

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We, therefore, find that the judgment of the Supreme Court in the case of Anis Ahmad (supra) applies squarely to the present case and therefore, the proceedings before the Consumer Protection Forum were wholly without jurisdiction and complaint of the respondent no. 2 was not maintainable. We, therefore, quash the impugned order dated 29.12.2007 passed in Complaint Case no. 172 of 2006 (Anil Kumar Jain Vs U.P. Power Corporation Limited).

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The writ petition is allowed.

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There will be no order as to costs.

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Order Date :- 12.12.2018 Kirti

U.P. Power Corporation Limited v. the District Consumer Protection Forum-Ii and Another

Case brief

What is this about?

What did the court decide?

U.P. Power Corporation Limited v. the District Consumer Protection Forum-Ii and Another

Case brief

What is this about?

What did the court decide?

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