1. Heard Sri Zafar Naiyer, learned Senior Advocate assisted by Sri Tariq Naiyer, learned counsel for the petitioners and perused the record.
2. This writ petition is directed against the order dated 30.01.2012 passed by Permanent Lok Adalat, Ramabai Nagar (Kanpur Dehat) awarding compensation of Rs. 50,000/- to respondent on account of illegal disconnection of electricity supply of respondent's premises.
3. The facts, as emerge from the averments contained in writ petition, show that an electricity bill for Rs. 3,20,760/- was issued to respondent on 28.03.2011 mentioning therein the date of payment as 31.03.2011 and date of disconnection as 07.04.2011. It is claimed that respondent did not make any payment upto 31.03.2011 and as a matter of fact the payment was made in April, 2011. Since cashbook of respondent of dated 31.03.2011 remain opened upto 07.04.2011, hence payment made by respondent after 31.03.2011 was also acknowledged by issuing receipt dated 31.03.2011. The petitioner instead of making full payment, paid Rs. 3,04,284/- through an account payee cheque. Since payment was deficient to actual amount mentioned in the bill, his electricity supply was disconnected on 08.04.2011 at 3.25 pm but the same was restored at 8.30 pm.
4. The respondent filed Case No. 1 of 2011 before Permanent Lok Adalat, Ramabai Nagar (Kanpur Dehat) alleging mental torture, harassment etc. on account of illegal disconnection and claimed damages to the tune of Rs. 5 lacs. The same has been decided by impugned order dated 30.01.2012 awarding compensation of Rs. 50,000/- to respondent.
5. Sri Zafar Naiyer, learned Senior counsel for the petitioners submitted that remedy to respondent lies under Para 7.10 of Electricity Supply Code, 2005 (hereinafter referred to as the "Supply Code, 2005") by raising a dispute before Consumer Grievance Redressal Forum & Ombudsman and in view of Section 174 of the Electricity Act, 2003 (hereinafter referred to as the "Act, 2003") since it has overriding effect to any other Statute. The Permanent Lok Adalat had no jurisdiction to entertain such claim and, therefore, the impugned order is wholly without jurisdiction. He further submitted that there is no evidence whatsoever for ascertaining damages awarded to respondent and hence the award of damages to the tune of Rs. 50,000/- is fanciful, without any evidence and based on conjectures and surmises and, therefore, is liable to be aset aside. He contended that question is not that of error in bill and legality of disconnection but, whether the claimant-respondent suffered any loss at all and, whether he could have been awarded damages or not. In the present case without looking into this aspect of the matter, the court below has passed the impugned order and, therefore, the same is liable to be quashed.
6. I have heard learned counsel for the petitioners and perused the record.
7. Section 174 of Act, 2003, reads as under:
"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."
8. Section 174 gives overriding effect to Act, 2003 subject to Section 173 and also only in respect to matters for which the provisions have been made under Act, 2003. The Supply Code, 2005 has been framed by U.P. Electricity Regulatory Commission (hereinafter referred to as the "UPERC") in exercise of power conferred under Section 50 of Act, 2003, which reads as under:
"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, measures for preventing tampering, distress or damage to electrical plant or electrical line 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 plants or meter and such other matters."
9. A bare reading of Section 50 does not show that any power has been conferred upon UPERC to make any provision to ascertain damages suffered by a consumer against a Distribution Licensee on account of any act or omission on the part of Distribution Licensee like wrong billing, illegal disconnection etc.
10. Be that as it may, even if what learned counsel for the petitioners contended is accepted, the Court finds that Consumer Grievance Redressal Forum (hereinafter referred to as the "Forum") can entertain the disputes relating to matters mentioned in Clauses 7.7.1 to 7.7.5 or those covered under the Regulations. Therefore, the power of Consumer Grievance Redressal Forum is restricted and limited and does not cover all matters enumerated in Section 50 of the Act, 2003.
11. Clauses 7.7.1 to 7.7.5 of Supply Code 2005 deals with supply related matters like, general supply to be maintained by Licensee, new connection, metering, billing, transfer of ownership and conversion of services etc. There is nothing which shows that if a consumer is aggrieved by an illegal act of Licensee like illegal or wrongful disconnection and intend to claim damage in the nature of tortuous liability, he can raise his dispute before the Forum under Para 7.10.
12. Moreover the claim of damages on account of deficiency of service provided under the Consumer Protection Act, 1986 has already been protected and excluded by operation of Section 174 read with Section 173 and this Act, 2003 has no effect on the provisions of Consumer Protection Act. The Permanent Lok Adalat has been constituted as an alternative redressal forum for settlement of dispute speedily either by a settlement and in case of failure to settlement, by adjudication. It is well settled that special provision shall override a general provision.
13. The provisions of Legal Services Authorities Act, 1987 (hereinafter referred to as the "Act, 1987") are meant for different objective, i.e., for adjudication of dispute by settlement. While the Act, 2003 is for the purpose of basically considering the subject relating to generation, transmission, distribution of electricity and use of electricity and the all incidental matters but so far as Dispute Redressal Forum with respect to damages against an act or omission on the part of Licensee is concerned, in my view, for that purpose Act, 1987 would construe a special Act and, therefore, shall have precedence for Act, 2003.
14. Moreover, the provisions of Act, 1987 are not exclusive but supplementary in nature. A reading of Section 19 and 20 of Act, 1987 would show that a matter shall be referred to Lok Adalat on an application filed by one of the parties under Section 19(5)(ii) with the request that such matter needs be determined by Lok Adalat but only when an opportunity is granted to other side of being heard.
15. In the present case, it is not the case of learned counsel for the petitioners that no such opportunity was granted or that when the opportunity under Section 20(1)(ii) was granted they raised an objection about lack of jurisdiction of Lok Adalat or for not referring the matter for determination by Lok Adalat. Once an opportunity of hearing was granted before referring the matter to Lok Adalat and thereafter the matter has been decided, the petitioners cannot be allowed to retract and contend that Lok Adalat has no jurisdiction.
16. Now coming to the merits of the matter the Court finds that Supply Code, 2005 contemplates 15 days time for payment of bill to a consumer. Clause 6.1(g) of Supply Code, 2005 reads as under:
"6.1 General Provisions:
(g) The Licensee shall dispatch the bills at least 15 days prior to the Due date of payment. The Bill shall contain details of the energy consumption, various charges, due date of payment, disconnection date, arrears, Security deposit details, rebates, extracts pertaining to consumer rights, Mode of payment and collection facilities, Telephone Nos. and address of Customer service, and call canters, where consumers can make bill related complaints, Telephone Nos. and address of Consumer Grievance redressal forums etc. In case of cheques and bank drafts, the receiving authority in whose favour the amount should be drawn should be clearly mentioned."
(emphasis added)
17. In the present case bill was admittedly issued on 28.03.2011 and date of payment mentioned therein was 31.03.2011. It is not shown as to when the aforesaid bill was actually served upon respondent. Assuming that it was served on the same date when it was issued, i.e., 28.03.2011 still according to Clause 6.1(g) of Supply Code, 2005, the consumer was entitled for 15 days time for payment, i.e., upto 12.04.2011. Thereafter the Staute further contemplates seven days time after expiry of date of payment as a notice time for disconnection. Meaning thereby, the electricity connection of consumer in the present case could not have been disconnected before 19.04.2011. Why and in what circumstances the petitioners issued bill to respondent in the teeth of statutory provisions, namely, Para 6.1(g) of Supply Code, 2005 has not been explained at all. It is also not explained why and in what circumstances only three days' time was given in the bill though statute contemplates 15 days time and, whether such a treatment was extended to all other consumers or was confined to present consumer only and if that is so why this discrimination.
18. Moreover, it is also not understandable that payment which was made by respondent, as claimed by petitioner no. 3, after 31.03.2011, how the receipt could be issued by dating it 31.03.2011 since this ante dating by petitioners is ex facie illegal and amounts to manipulation in the official record. There is no provision which contemplates and provides such kind of ante dating in the matter of billing.
19. In the above facts and circumstances, it is evident that not only the electricity bill was illegally issued to respondent but disconnection was also made illegally. The judicial notice can be taken of the fact that an illegal act is bound to cause mental and otherwise harassment to a person. Once illegality on the part of petitioners stands proved, the assessment of damages against guilty person to some extent, though on objective consideration cannot be ascertained in a mathematical manner. Here the consumer claimed damages to the tune of Rs. 5 lacs but the court below has ascertained it only to Rs. 50,000/-. Considering the fact that consumer was an industrial unit it must have sufficient reputation in the area concerned, which has not been disputed in the writ petition, I do not find any error apparent on the face of record in the impugned order awarding Rs. 50,000/- damages against petitioners.
20. However, the question as to how and in what circumstances the bill provided, lesser time for payment and receipt was also issued with ante dating, all require proper investigation. If this kind of anti dating has been permitted in the accounts of petitioners, it would result in serious and drastic consequences and needs be dealt with at appropriate level accordingly. In the circumstances, this Court direct an appropriate inquiry in the matter.
21. The Registrar General is directed to send a copy of this judgement to Principal Secretary (Energy), Government of U.P., Lucknow for directing appropriate inquiry in the matter, as already said, and take appropriate action against the erring official(s) and submit report to this Court within three months.
22. With the aforesaid directions/observations, this writ petition is dismissed.
23. No costs.
Order Date :- 21.05.2012 AK