(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard learned counsel Ms.Lilu Bhaya for the appellant and learned counsel Mr.B.Y.Mankad for the respondent.
2. The respondent has filed a claim petition before the Consumer Disputes Redressal Forum, Bhuj-Kachchh challenging the electricity bill issued by the appellant - Electricity Company for a sum of Rs.1,11,234.11ps and compounding charges Rs.5,000/- which was issued under Section 135 of the Electricity Act, 2003, for committing theft of electricity. The District Consumer Forum by order dated 27.4.2010 has set aside the electricity bill and directed the Electricity Company to issue revised bill under Section 126 of the Electricity Act, 2003, after following due procedure of law.
3. The order of District Consumer Forum was challenged by the appellant before the learned Single Judge on the ground that the District Consumer Forum had no jurisdiction in the matter and the order of the District Consumer Forum is without jurisdiction. The learned Single Judge by his judgment dated 14.09.2010 dismissed the Special Civil Application No.10642 of 2010 on the ground that the appellant has an alternative remedy under Section 15 of the Consumer Protection Act, 1986. The appellant has challenged the orders of the learned Single Judge and the District Consumer Forum in this appeal.
4. Learned counsel Ms.Lilu Bhaya for the appellant has urged that the District Consumer Forum has no jurisdiction in the matter, and she has placed reliance on the decisions of the Division Bench of this Court in the case of Manoramaben Kansara wd/o Balkrishna Kansara Vs. Madhya Gujarat Vij Company Limited and others reported in 2011(2) GLH 563 and Paschim Gujarat Vij Co. Ltd Vs. District Consumer Redressal Forum, Bhuj and another reported in 2011(3) GLR 2286.
5. On the other hand, learned counsel Mr.B.Y.Mankad appearing on behalf of the respondent has placed reliance on a decision of National Consumer Disputes Redressal Commission in the case of Dakshin Haryana Bijli Vitran Nigam Limited and others reported in (2008) 4 Consumer Protection Judgment 11.
6. We have examined the aforesaid decisions cited by learned counsel for the parties. The Division Bench in Paschim Gujarat Vij Co. Ltd. (supra) has held that the Consumer Dispute Redressal Forum under the Consumer Protection Act, 1986 has no jurisdiction in a case where bill is raised under Section 126 of the Act on ground of unauthorised use of electricity or measures or penal action for offence under Section 135 of the Electricity Act, 2003. The relevant para 6 of the decision in Paschim Gujarat Vij Co. Ltd. (supra) is extracted below.
“Having given our anxious thoughts and considerations to the contentions of the respective parties, we are of the view that learned Single Judge ought not to have refused to look into the matter on merits on the ground of statutory remedy of appeal being available to the appellant. However, the entire issue, as regards the jurisdiction of Consumers Forum to entertain complaint involving theft of electricity, now stands concluded with the recent pronouncement of judgment of Division Bench of this Court rendered in Letters Patent Appeal No. 1759 of 2010 and other analogous appeals decided on 21.06.2011. This Court has taken the following view:
“36. The term “deficiency” is defined under Section 2(1)(g) of the Consumer Protection Act, 1986, which reads as follows :-
“2(1)(g) “deficiency” 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 or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”
37. In the present case, we find that there is no allegation relating to any deficiency on the part of the Electricity Companies alleged by one or other complainants. There is nothing on record to suggest that any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which was required to be maintained by or under any law or has been undertaken to be performed by the Electricity Company to allege deficiency.
38. The complainants moved against the bill raised under Section 126 of the Electricity Act, 2003, which relates to indulging in unauthorized use of electricity or against the measures under Section 135, which constituted an offence for which penalties are prescribed. Thus, there was no deficiency in service on the part of the Electricity Companies.
Therefore, even if it is accepted that in the case of deficiency in service by the Electricity Companies in supply of electricity, the person can file a complaint before the Consumer Dispute Redressal Forum under the Consumer Protection Act, 1986, but in absence of any such allegation, no such petition is maintainable before the Consumer Disputes Redressal Forum constituted under the Consumer Protection Act, 1986. In a case where the bill is raised alleging indulgence in unauthorizes use of electricity by a person under Section 126 of the Electricity Act, 2003 or the measures or the penal action taken for the offence under Section 135 of the Electricity Act, 2003, in absence of any provision made under the Consumer Protection Act, 1986 to entertain any complaint or any such action, we hold that the petitions preferred by the consumer – appellants were not maintainable before the Consumer Disputes Redressal Forum.
41. In view of the aforesaid discussion, we summarize our findings as follows :-
(a) The finding of the learned Single Judge that there is a third forum of appeal under Section 42 of the Electricity Act, 2003 in this type of cases under Section 126 or Section 135, is incorrect and does not lay down a correct law.
(b) The jurisdiction of the Consumer Court in the matter of deficiency in service on the part of the Electricity Company is not ousted in view of the provisions of the Electricity Act, 2003. The finding of the learned Single Judge to that extent in general that the consumer forum has no jurisdiction to entertain complaints in respect of the matter pertaining to supply of electricity against the Electricity Company is incorrect and does not lay down a correct law.
(c) In a case where the bill is raised alleging indulgence in unauthorizes use of electricity by a person under Section 126 of the Electricity Act, 2003 or the measures or the penal action taken for the offence under Section 135 of the Electricity Act, 2003, in absence of any provision made under the Consumer Protection Act, 1986 to entertain any complaint or any such action, the petitions preferred by the consumer are not maintainable before the Consumer Disputes Redressal Forum.
42. For the reasons aforesaid, we hold that the Consumer Dispute Redressal Commission have erred in coming to the conclusion that the Consumer Disputes Redressal Commission has jurisdiction to try cases against assessment made under Section 126 or theft of energy under Section 135 and the learned Single Judge rightly interfered with those orders and set aside the orders.“
7. Learned counsel for the appellant has urged that this is not a case of theft but it is a case of deficiency in service and therefore the claim before the District Consumer Forum was maintainable. We are not in agreement with the learned counsel for the respondent. Since the bill was raised for the theft of electricity under Section 135 of the Electricity Act, 2003, the claim petition filed by the respondent before the District Consumer Redressal Forum was not maintainable.
8. For the aforesaid reasons, this appeal succeeds and is allowed. The order dated 14.09.2010 passed by the learned Single Judge in Special Civil Application No.10642 of 2010 as well as the order dated 27.4.2010 passed by the District Consumer Forum are hereby set aside. However, it shall be open for the respondent to raise their grievance in appropriate legal forum.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/