Company Limited vs Union Of India And Others
2023 Latest Caselaw 3234 Cal

AD-32
Ct No.09
08.05.2023
TN
                            WPA No. 7165 of 2008

                   West Bengal State Electricity Distribution
                             Company Limited
                                    Vs.
                          Union of India and others


             Mr. Srijan Nayak,
             Mr. Sujit Sankar Koley
                                   .... for the petitioner/WBSEDCL




                  When the matter is called on for hearing, none

             appears for the respondents.

Learned counsel for the petitioner places

reliance on two judgments to submit that the

revisional forum below acted without jurisdiction in

affirming the order of the first consumer forum to

relegate the issue of maintainability of the complaint

against the petitioner/licensee to the hearing of the

dispute raised by the private respondent before the

consumer forum.

The first judgment relied on is that of U.P. Power

Corporation Ltd. & Ors. vs. Anis Ahmad (Civil Appeal

No. 5466 of 2012) and the second is a judgment of the

Maharashtra State Consumer Disputes Redressal

Commission, Mumbai reported at II (2022) CPJ 120

(Maha.) in the case of Farm Machinery and Equipment

vs. Maharashtra State Electricity Distribution Company

Ltd. for the proposition that cases of theft under the

Electricity Act, 2003 cannot be decided by the

consumer forum but has to be decided by the

appropriate forum provided under the 2003 Act.

A perusal of the orders of both the fora below

shows clearly that the said fora shirked their

responsibility of deciding the question of

maintainability, which is a preliminary issue palpable

from the face of the complaint itself.

Hence, the petitioner's counsel is justified in

arguing that instead of relegating the matter again to

the forum, the issue of maintainability may be decided

by this court.

The judgment of the Supreme Court in U.P.

Power Corporation Ltd. (supra) clearly distinguishes

between the Electricity Act, 2003 and the Consumer

Protection Act, 1986 and it has been held that in the

case of inconsistency between the two, the provisions

of the 1986 Act would 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 1986 Act. The Supreme Court further

held 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.

The Maharashtra Forum also held in the cited

judgment that though the complainant was

contending that it was not a theft case and he was

unnecessarily dragged into the case of theft, in view of

prima facie case of theft of electricity or tampering

with the meter being evident, the Commission held

that it was not empowered to decide the cases where

there are charges of theft under Section 135 of the

2003 Act.

In the present case, a mere perusal of the

complaint indicates that the petitioner raised several

issues but ultimately prayed for restoration of his

electricity supply to the premises with regard to a

particular consumer number.

It has been admitted in the said complaint itself

that a quantum of sum was demanded by the

WBSEDCL upon disconnection of the electricity

supply on the allegation of theft.

Lodging of an FIR in that regard has also been

admitted in the complaint itself.

In relief (b) of the complaint, a direction was

sought upon the opposite parties therein (the present

petitioner) to rectify the amount of Rs.14,70,375/-

demanded in the bill dated September 09, 2006.

As ancillary relief, the complainant/private

respondent had also asked for compensation for

alleged mental pain, sufferings and harassment

caused to the complainant by the WBSEDCL.

By looking into the tenor of the allegations made

in the complaint itself, it is ex facie clear that the

nature of the dispute, although couched in the garb of

restoration of electricity, pertained to the allegation of

theft and consequential disconnection by the

WBSEDCL, which was sought to be set at naught by

the petitioner by way of lodging of the complaint. As

per Section 135 of the Electricity Act, 2003, it is the

exclusive domain of the Special Court formed under

the 2003 Act to decide the question of theft and

ascertain civil liability as well as criminal liability in

that regard.

Insofar as the provision of Section 126 of the

2003 Act is concerned, it is the sole prerogative of the

Assessing Officer of the licensee to assess the

amounts due for alleged unauthorized use of

electricity. Section 127 provides for an appeal against

such an order passed by the Assessing Officer at its

final stage.

As regards defective meters, the said dispute is

also to be decided by the appropriate authority as

designated under the 2003 Act and the Regulations

framed thereunder. Thus, there is no scope for the

consumer forum to either entertain or decide the issue

raised by way of a complaint.

Hence, the fora below palpably refused to

exercise jurisdiction vested in them by law in not

dismissing the complaint lodged by the private

respondent at the outset on the ground of the same

being not maintainable before the consumer forum.

Hence, WPA No. 7165 of 2008 is allowed,

thereby setting aside the impugned order dated

January 03, 2008 passed by the State Commission,

whereby the State Commission had affirmed the order

passed by the District Commission. It is hereby held

that the Consumer Forum does not have the

jurisdiction to redress grievances coming within the

purview of Sections 126, 127 and 135 of the

Electricity Act, 2003.

In the event the private respondent is entitled to

any other relief under the Electricity Act, 2003,

however, subject to the question of limitation, the

private respondent shall be at liberty to approach the

appropriate forum in that regard. If such dispute is

otherwise maintainable on facts, such forum shall

take a lenient view in the line of Section 14 of the

Limitation Act due to the pendency of the present writ

petition.

However, the above rider shall not entitle the

petitioner to claim a relief which is palpably time-

barred even after deduction of the period of pendency

of the present writ petition.

There will be no order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)