Cesc Limited And Another vs State Of West Bengal And Others
2022 Latest Caselaw 5301 Cal

                             In the High Court at Calcutta
                            Constitutional Writ Jurisdiction
                                     Appellate Side

     The Hon'ble Justice Sabyasachi Bhattacharyya

                               W.P.A. No. 14266 of 2022

                              CESC Limited and another
                                          Vs.
                            State of West Bengal and others



         For the CESC Limited            :     Mr. Om Narayan Rai,
                                               Mr. Debanjan Mukherji

         For the State                   :     Mr. Mukti Chandra Ghosh,
                                               Ms. Adreeka Pandey

         For the respondent nos.3 & 4    :     Mr. Soumyajit Bhatta,

Mr. Jayanta Dey

Hearing concluded on : 05.08.2022

Judgment on : 11.08.2022

Sabyasachi Bhattacharyya, J:-

1. The CESC Limited has preferred the instant writ petition challenging an ex

parte Order No.2 dated June 22, 2022 whereby the District Consumer

Disputes Redressal Commission, North 24 Parganas, entertained a petition

under Section 38(8) of the Consumer Protection Act and, inter alia, directed the

CESC Limited to restore at least one electricity connection of the two in the

name of the complainants (present respondent nos.3 and 4) immediately after

receiving the order till further order and fixed the date of hearing in the matter

on August 30, 2022.

2. Learned counsel for the CESC Limited contends that in the said complaint

before the District Forum, the private respondents admitted that the CESC

personnel had disconnected the two electricity connection, respectively in the

name of the two private respondents, who are spouses of each other.

3. It is submitted that a First Information Report was registered on the complaint

of the CESC Limited with the Inspector-in-Charge, Khardah Police Station, in

respect of theft of electricity committed by the private respondents. Steps were

taken by the CESC Limited under Sections 135 and 138 of the Electricity Act,

2003 (for short, "the 2003 Act") against the private respondents.

4. A provisional assessment was also made under Section 126 of the 2003 Act. It

is submitted that the provisional order of assessment has to be disputed by the

consumer by appearing before the authorities prior to final assessment being

made.

5. Against a final order of assessment, it is pointed out, an appeal is provided in

Section 127 of the 2003 Act.

6. Learned counsel for the CESC Limited places reliance on the order of

provisional assessment (Annexure P-2 at page 34 of the writ petition), where a

specific allegation was made in respect of meter no.2559423, standing in the

name of respondent no.4 Putul Giri, on the allegation of tampering of meter.

7. In the complaint on the basis of which the FIR was registered, it has

specifically been alleged that both Sujit Kumer Giri and Putul Giri, the

respondent nos.3 and 4, were guilty of such act of theft.

8. It is submitted that since specific provision has been provided in Sections 126

and 135 to challenge the provisional order of assessment and dispute the

allegation of theft in the criminal court, no application lay before the consumer

forum.

9. Hence, the impugned order was passed patently without jurisdiction.

10. It is further submitted that the present dispute does not relate to any service

provided by the CESC Limited. The electricity service was disconnected

specifically under the provisions of sections 135 and 138 of the 2003 Act and

provisional assessment was raised under Section 126 of the same. As such,

there did not arise any occasion of deficiency of service, in the present case,

which would have attracted the jurisdiction of the consumer forum.

11. Learned counsel places reliance on Uttar Pradesh Power Corporation Limited

and others Vs. Anis Ahmed, reported at (2013) 8 SCC 491, for the proposition

that a "complaint" against the assessment made by the 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.

12. Next citing T. Arivandandam Vs. T.V. Satyapal and another, reported at (1977)

4 SCC 467, it is argued that a vexatious and meritless claim ought to be

nipped in the bud.

13. Learned counsel for the CESC Limited also places reliance on an unreported

judgment of this Court dated June 29, 2022 passed in WPA 10474 of 2022,

relying, inter alia, upon Uttar Pradesh Power Corporation (supra) wherein it

was held that such exercise by the consumer forum is patently de hors the

jurisdiction of the forum.

14. Lastly, learned counsel for the petitioner places reliance on Universal

Consortium of Engineers (P) Ltd. and another Vs. State of West Bengal and

others, reported at (2019) 2 CHN 143, wherein a Division Bench of this Court

held, inter alia, that a challenge against an order of the National Commission

under Article 226 of the Constitution of India need not necessarily be

dismissed, notwithstanding the availability of an appellate remedy before the

Supreme Court. Such remedy would be illusory for many and if such a reason

were assigned to dismiss a writ petition, it was held, it is justice that could be

the casualty.

15. While controverting such submissions, learned counsel appearing for the

respondent nos.3 and 4 argues that an application under Article 226 of the

Constitution is not maintainable in view of the Consumer Protection Act

providing specifically for an appeal against an order of the District Forum.

16. By placing reliance on a co-ordinate bench judgment of this Court reported at

CALLJ 1998 (1) 500 [Sri Gouri Sankar Chatterjee and another Vs. Howrah

Municipal Corporation and another],learned counsel submits that, against an

order passed under the Consumer Protection Act, an application under Article

227 of the Constitution was held to be maintainable in the said case. However,

no such application has been preferred but the CESC Limited has chosen to

take out the present application under Article 226 of the Constitution of India,

which ought not to be entertained.

17. Learned counsel further submits that it was held by a Division Bench of this

court in FMAT No.52 of 1994 (Saswati Meherotra Vs. State of West Bengal) that

the High Court should not interfere with the proceedings of the Tribunal except

for compelling reasons. It was further held that the writ court may have giant's

power but should not use it as a giant.

18. It was further held by the Division Bench in the said judgment that the burden

of deciding the question of jurisdiction of the Commission should not be taken

upon itself by the High Court unless there was a compelling necessity. As the

remedy on the question of jurisdiction is readily, adequately and also effectively

available before the State Commission, it was held, this Court should

ordinarily refuse to entertain such a question bypassing the Commission.

19. In fact, learned counsel for the respondent nos.3 and 4 places reliance on

annotations from text books and does not cite any copy of the said judgment at

the time of hearing.

20. It is contended by learned counsel appearing for the State that the jurisdiction

of the Consumer Forum, vis-à-vis specific remedies under other Acts, is in

addition to and not in derogation of the provisions of other statutes.

21. Learned counsel places reliance on Secretary, Thirumurugan Cooperative

Agricultural Credit Society Vs. M. Lalitha (dead) through LRS. and others,

reported at (2004) 1 SCC 305, for the above proposition. Section 3 of the

Consumer Protection Act, it is submitted, provides the same.

22. Learned counsel further contends that the Consumer Protection Act is a

special Act inasmuch as the consumer disputes are concerned, and not the

Electricity Act, 2003.

23. By relying on Bar Council of India Vs. Union of India, reported at

AIR 2012 SC 3246, learned counsel contends that the Supreme Court held

therein that the Parliament can definitely set up effective alternative

institutional mechanisms or make arrangements which may be more

efficacious than the ordinary mechanisms of adjudication of disputes through

the judicial courts. Such institutional mechanisms or arrangements, by no

stretch of imagination, can be said to be contrary to the Constitutional scheme

or against the rule of law, it was observed.

24. Learned counsel for the State further submits that electricity is a 'service' as

contemplated in Section 2(42) of the Consumer Protection Act and, as such,

the complaint before the Consumer Forum is maintainable.

25. It is further submitted, by referring to Section 37 of the Consumer Protection

Act, that mediation ought to have been explored as an alternative remedy prior

to preferring the instant writ petition.

26. Upon considering the submissions of parties and going through the materials-

on-record, it transpires that the CESC disconnected the electricity meters of

both the respondent no.3 (Sujit Kumar Giri) and respondent no.4 (Smt. Putul

Giri), bearing meter nos. 4785905 and 2559423 respectively, on the allegation

of theft of electricity.

27. In the complaint giving rise to the FIR under Section 135 of the 2003 Act, it

was specifically alleged by the CESC Limited that meter no. 2559423 was

found tampered so as to gain unauthorized access into the internal

mechanisms of the meter to manipulate meter registration and derive unlawful

financial gain. During the course of inspection, the CESC further found that

Sujit Kumer Giri and Putul Giri are the main culprits and beneficiaries of the

said theft of electricity to run electrical appliances at their residence through

the tampered meter.

28. A basis of assessment was also disclosed in the said complaint. Again, the

order of provisional assessment dated June 10, 2022, also annexed to the writ

petition, reiterates that meter no. 2559423, particularly the seal on the meter-

body, was found tampered with.

29. A provisional assessment was made to the tune of Rs.1,97,955/- inclusive of

electricity duty, as applicable, payable to the State Government as indicated in

the calculation sheet annexed thereto. Both the calculation sheet and the

provisional assessment order have been annexed to the present writ petition.

30. It is submitted that due proceedings were initiated under Sections 126 and

135 as well as 138 of the 2003 Act by the CESC Limited.

31. Section 135(1), Clause (e) provides that whoever dishonestly uses electricity for

purpose other than the usage of electricity which was authorised is guilty of

theft. Clause (d) of the same sub-section implicates persons who similarly use

electricity through a tampered meter. Clause (c) covers damages and

destruction of an electric meter, apparatus, equipment, etc., or causing or

allowing such damage or destruction as to interfere with the proper or accurate

metering of electricity. Section 135(1), in all its Clauses, specifically defines

'theft of electricity'. The allegations made against both the respondents are

within the periphery of the said sub-section.

32. Sub-section (1-A) of Section 135 stipulates that, upon detection of theft of

electricity, the licensee may immediately disconnect the supply of electricity. A

complaint is also required to be lodged with the concerned Police Station

having jurisdiction within 24 hours from such disconnection. Such formalities

have been complied with by the CESC Limited in the present case.

33. The third proviso to sub-section (1-A) further provides that the licensee, on

deposit or payment of the assessed amount or electricity charges in accordance

with the provisions of the 2003 Act, shall, without prejudice to the obligation

to lodge the complaint, restore the supply line of electricity within 48 hours of

such deposit or payment.

34. On the other hand, Section 126 provides for assessment if on an inspection of

a place or premises, it is found that a person is indulging in unauthorised use

of electricity (which also includes theft).

35. Sub-section (4) of Section 126 stipulates that a person served with the order of

provisional assessment may accept such assessment and deposit the assessed

amount with the licensee within seven days of the service of the provisional

assessment order upon him.

36. It is nobody's case that the deposit, as contemplated in Section 126(4) or

Section 135(1-A) of the 2003 Act, has been has been made or admitted to be

made by the private respondents in the present case.

37. Thus, the right of the respondent nos. 3 and 4, upon their electricity supplies

having been disconnected, to get restoration of electricity connection is not

unfettered but circumscribed by Sections 126(4) and 135(1-A) of the 2003 Act.

38. Section 127 of the 2003 Act provides an appeal, upon deposit of 50 per cent of

the assessed amount, against a final order of assessment, if made under

Section 126 of the said Act.

39. In the present case, the disconnection was effected by the CESC Limited on the

specific allegation of theft, which is a species of unauthorised use of electricity,

by the private respondents. Unless the private respondents accept such

assessment and deposit the amount or challenge the same before any

appropriate forum, the private respondents do not have an automatic right to

get reconnection of electricity, since such right is subject to the above

discussed provisions.

40. The right to get electricity, conferred under Section 43 of the 2003 Act, is not

unbridled but circumscribed by Sections 126 and 135 of the Act.

41. Hence, it cannot be said that the disconnection was a deficiency in service of

the CESC Limited in supply of electricity to the private respondents.

42. Hence, the District Consumer Forum patently lacks jurisdiction to entertain

such a dispute.

43. Inasmuch as the Consumer Protection Act being applicable parallel with other

statues, Section 174 of the 2003 Act specifically stipulates that the 2003 Act

shall have overriding 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 the said Act. Section 175 of the

2003 Act provides that provisions of the Act are in addition to and not in

derogation of any other law for the time being in force. A similar parallel

provision is also found in the Consumer Protection Act. Read together,

Sections 174 and 175 of the 2003 Act clearly indicate that if a specific

procedure or mechanism is provided in the 2003 Act, the same overrides the

provisions of any other Act, including the Consumer Protection Act, despite the

functioning and operation of the two statutes being parallel.

44. The respondent nos. 3 and 4, in the present case, have resorted to gross

suppression of the allegation of theft and provisional assessment against them

by the CESC Limited, both of which are essentially germane for the Consumer

Forum to decide whether it would entertain the dispute at all or not.

45. Disconnection for theft under Section 135 is visited with penal consequences

under the 2003 Act and reconnection thereafter is not a deficiency of service as

envisaged in the Consumer Protection Act.

46. Specific forums have been provided under Sections 126 and 135 of the 2003

Act, which ought not to be permitted to be usurped by the Consumer Forums,

although the two Acts may act in conjunction with each other.

47. Both the respondent nos. 3 and 4 have been charged with theft of electricity.

Unless both their meters, which were involved in the act of theft, were

disconnected, the act of theft would have continued. The CESC Limited has

provided sufficient prima facie material including the complaint, inspection

report, provisional order of assessment and photographs to establish beyond

doubt that proceedings under the Electricity Act, 2003 have been taken out

against the private respondents. Thus, the Consumer Forum could not usurp

the jurisdiction of the competent forums under the 2003 Act by entertaining

the dispute under the Consumer Protection Act, thereby nullifying the

provisions of the 2003 Act.

48. In any event, the unconditional direction by the Consumer Forum in the

impugned order to reconnect at least one of the electricity meters of the

respondent nos. 3 and 4 was patently de hors the provisions of the 2003 Act

and passed without jurisdiction.

49. Inasmuch as the Co-ordinate Bench judgment cited by the respondent nos. 3

and 4 is concerned, Shri Gouri Sankar Chatterjee (supra) is an authority on the

proposition that Article 227 of the Constitution can be resorted to for

interference in spite of an alternative remedy being available in the statute

book. The said proposition does not, ipso facto, curtail the jurisdiction of the

High Court under Article 226 of the Constitution of India in any manner.

50. The Division Bench judgment in Saswati Meherotra (supra), sought to be relied

on by the private respondents, is not a precedent for the proposition that the

High Court cannot, in any circumstances, interfere with an order passed by a

Consumer Forum under Article 226 of the Constitution of India. In the present

case, a patent jurisdictional error was committed by the Consumer Forum in

entertaining the 'dispute' by assuming jurisdiction which it did not have.

Hence, there is no reason why a judicial review under Article 226 of the

Constitution ought not to be allowed.

51. Inasmuch as the judgments cited by the State is concerned, although the

mechanism of the Legal Services Authorities Act was held not to be contrary to

the Constitutional scheme and certain observations were arrived at by the

Supreme Court, the same are in the context of establishment of Lok Adalat and

do not anywhere support the proposition that the Consumer Forum can usurp

the jurisdiction conferred on specific forums by the 2003 Act. The proposition

laid down in Uttar Pradesh Power Corporation Limited (supra), in particular

paragraph no.60.2 thereof, that a complaint against the assessment made by

the Assessing Officer under Section 126 or against offences committed under

Sections 135 to 140 of the 2003 Act, is not maintainable before a Consumer

Forum, has not been upset by the Supreme Court in any subsequent judgment

and, as such, such proposition still holds the field.

52. Insofar as T. Arivandandam (supra) is concerned, the petitioner is justified in

arguing that vexatious claims ought to be nipped in the bud. There cannot be

any conceivable reason to compel the CESC Limited to continue litigating

against the private respondents in a frivolous litigation, where the Consumer

Forum does not have jurisdiction to entertain the matter at all.

53. The direction for reconnection in respect of one meter, issued by the forum,

was also palpably de hors the Electricity Act, 2003.

54. The proposition laid down by the Division Bench of this Court in Universal

Consortium of Engineers (supra) also applies to the present case inasmuch as

there is no complete bar to a petition under Article 226 of the Constitution of

India even if an appeal is maintainable against an order of the Consumer

Forum.

55. For the reasons discussed above, the impugned order of the District Consumer

Forum was palpably without jurisdiction and ex facie de hors the law. Hence,

the same deserves to be set aside under Article 226 of the Constitution of

India.

56. Accordingly, WPA No.14266 of 2022 is allowed on contest, thereby setting

aside Order No.2 dated June 22, 2022 passed by the District Consumer

Disputes Redressal Commission, N-24 Parganas at Barasat in CC No.205 of

2022.

57. However, nothing in this order shall preclude the respondents 3 and 4 from

resorting to the mechanism available in the Electricity Act, 2003 in order to

redress their grievance against the distribution licensee, if any. If such an

approach is made by the private respondents, the appropriate authority shall

not be swayed in any manner by the present order while deciding such

challenge on merits.

58. There will be no order as to costs.

59. Urgent certified copies, if applied for, be issued by the department on

compliance of all requisite formalities.

( Sabyasachi Bhattacharyya, J. )