DELHI VIDYUT BOARD vs D.N.SHUKLA

IN all the above noted 151 matters common legal proposition involved is the same and as such with the consent of all the parties, the above noted matters have been heard together and the law point raised is being decided by this common order.

THE facts of almost all the cases are similar inasmuch as on the basis of joint inspection carried out by the team of officials of the appellant, a case of Fraudulent Abstruction of Energy (in short ''FAE'') was made out against the respondent and bills had been raised on the said basis which were being disputed by the respondents and the respondents had filed separate complaints under Section 12 of the Consumer Protection Act,1986 (hereinafter referred to as "THE Act") before the District Forum praying for the redressal of their respective grievances. THE learned District Forum vide separate orders had allowed the complaints of the respondents and granted reliefs as detailed in the respective impugned orders. Aggrieved by the impugned orders in all the above matters, the appellants (D.V.B.; S.W.D.C.L.; N.N.W.D. Ltd.; C.E.D.C. Ltd.) had filed the present appeals challenging the impugned orders passed by the respective District Forums.

We have carefully perused the documents/material placed on record, as well as, have scrutinized the written submissions filed on behalf of the parties and have also heard the parties at length. The sole controversy raised before us at this stage is as to whether ''Fraudulent Abstraction of Energy'' (FAE) and any action taken in pursuance thereto is a ''consumer dispute'' within the meaning of Section 2(1)(e) of the Act and whether the respondents are consumers within the meaning of Section 2(1)(d)(ii) of the Act so as to invoke the jurisdiction of the Redressal Agencies established under the Act.

IN order to decide the above said controversy, it would be pertinent to refer to the provisions of Sections 39 and 44 of the INdian Electricity Act, 1910 : "39. Theft of energy-Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial mean or means not authorized by the licensee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer. 44. Penalty for interference with metres or licensee''s works and for improper use of energy.-Whoever,- (a) connects any meter referred to in Section 26 Sub-section (1), or any meter, indicator or apparatus referred to in Section 26, Sub-section (7), with any electric supply-line through which energy is supplied by a licensee, or disconnects the same from any such electric supply line; or (aa) unauthorisedly re-connect any meter referred to in Sub-section (1) of Section 26, or any meter, indicator or apparatus referred to in Sub-section (7) of Section 26, with any electric supply-line or other works, being the property of the licensee, through which energy may be supplied, when the said electric supply line or other works has or have been cut or disconnected under Sub-section (1) of Section 24; or (b) lays, or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or (c) maliciously injures any meter referred to in Section 26, Sub-section (1) or any meter, indicator or apparatus referred to in Section 26, Sub-section (7), or wilfully or fraudulently alters the index of any such meter, indicator or apparatus, or prevents any such meter, indicator or apparatus from duly registering; or (d) improperly uses the energy of a licensee; [shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both], and, in the case of a continuing offence, with a daily fine which may extend to [fifty] rupees; and [if it is proved that any artificial means exist] for making such connection as is referred to in Clause (a) [or such re-connection as is referred to in Clause (aa),] or such communication as is referred to in Clause (b), or for causing such alteration or prevention as is referred to in Clause (c), or for facilitating such improper use as is referred to in Clause (d) [and that] the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, [it shall be presumed, until the contrary is proved] [that such connection, reconnection, communication], alteration, prevention or improper use, as the case may be, has been knowingly and wilfully caused by such consumer."

A bare perusal of the above said provision makes it apparent that dishonest abstraction of electricity by any artificial means or means not authorized by the licensee is an offence punishable with imprisonment and fine or both. The word ''dishonestly'' occurring in Section 39 of the Electricity Act is a legal expression conveying the same sense as that in which it is used in the Indian Penal Code. The term ''abstraction'' has neither been defined in the Electricity Act nor in the Indian Penal Code nor in the General Clauses Act, 1897 and, therefore, we have to go by the dictionary meaning of the word ''abstraction''.

IN Black''s Law Dictionary (Sixth Edition), the word ''abstraction'' has been defined as under : "Taking from with intent to injure or defraud. "Wrongful abstraction" is unauthorized and illegal taking or withdrawing of funds, etc., and appropriation thereof to taker''s benefit. Pacific Coast Adjustment Bureau v. INdemnity INs. Co. of North America, 115, Cal. App. 583, 2 P. 2d 218, 219."

IN view of the provisions of Section 39 of the Electricity Act, there can be no two opinions that whosoever abstracts electrical energy dishonestly commits a statutory offence under Section 39 of the Electricity Act. The word ''abstraction'', keeping in view the legislative intent, has to be construed liberally and in the context of Section 39 it means and includes taking or appropriating energy dishonestly by artificial means or by unauthorized devices. As already stated, the question for consideration before us is as to whether the alleged act of Fraudulent Abstraction of Energy (FAE) and the action taken pursuant thereto would be a ''consumer dispute'' within the meaning of Section 2(1)(e) of the Act In the above context, the decision of the Hon''ble Supreme Court in case M.P. Electricity Board, Jabalpur & Ors. v. Harsh Wood Products & Anr., AIR 1996 SC 2258, is of utmost significance. In the above said case it has been held by their Lordships of the Hon''ble Supreme Court that the Board (M.P. Electricity Board), when it detected that the consumer had committed any malpractice with reference to use of his electric energy, including unauthorized alterations, installation, unauthorized extension and use of devices to commit theft of electric energy, may, without prejudice to other rights, disconnect the supply of electricity forthwith and may call upon the consumer to make payment for compensation for the unauthorized use of electricity. It has been further held in the above decision that Section 24 of the Electricity Act does not apply to demand raised on detection of pilferage and no notice is required in such cases. The Hon''ble National Commission in case M.P. Electricity Board v. Baboo Lal, reported as II (1995) CPJ 132 (NC), has held that where there was tampering with the metering connection by a consumer, it cannot be said that there was any deficiency in service on the part of Electricity Board so as to warrant the grant of any relief to the consumer in a proceeding under the Act. In the above context equally important is the decision of the Hon''ble National Commission in case C.E.S.C. Limited v. Smt. Sumita Pal, reported as III (1997) CPJ 116 (NC). In the above said case upon a surprise visit to the premises of the consumer it was found that the consumer was drawing electricity directly from the service cut-outs, thereby bypassing the meter which was installed for registering consumption of electricity. The Calcutta Electric Supply Co. Ltd. (for short ''the C.E.S.C. Ltd.''), on detecting the above irregularity on the part of the consumer, disconnected the electric supply and lodged a complaint with the authorities of the police against the consumer for tampering with the meter, and thereby committing an offence under Section 39 of the Electricity Act. Feeling aggrieved, the consumer filed a complaint under Section 12 of the Act before the District Forum and the District Forum, vide order dated 29.8.1995 though held that it was well settled that a Consumer Fora cannot entertain any matter for theft or investigation and adjudication, which can be decided in a separate proceeding, and the disconnection of electricity on the ground of theft was not ''deficiency in service'', yet ordered the C.E.S.C. Ltd. to restore the supply of electricity to the consumer within three days on consumer''s making payment on adhoc basis of 30% of unmetered consumption with reconnection fees.

THEREAFTER the consumer filed an appeal under Section 15 of the Act in the West Bengal State Commission and the West Bengal State Commission allowed the appeal filed by the consumer, set aside the order passed by the District Forum and directed the C.E.S.C. Ltd. to restore electricity within 7 days. The C.E.S.C. Ltd. filed a revision petition before the Hon''ble National Commission and the Hon''ble National Commission, placing reliance on the decision of Hon''ble Supreme Court in case M.P. Electricity Board (supra), and on its earlier decision in the case of M.P. Electricity Board v. Baboo Lal (supra), allowed the revision petition filed by the C.E.S.C. Ltd., holding in clear-cut terms that the exercise of power of disconnection in accordance with the statutory provisions cannot be construed as any ''deficiency in service''.

THE next moot question that falls for determination in the present context is as to whether in cases of allegation of Fraudulent Abstraction of Energy (FAE) based on the prima facie evidence of the inspection report prepared by the team of officials of the appellant, the respondents can be termed as ''consumers'' within the meaning of Section 2(1)(d)(ii) of the Act and can invoke the jurisdiction of the redressal agencies established under the Act. THE Act defines ''consumer'' in Section 2(1)(d)(i) and 2(1)(d)(ii) as reproduced below : "2(1)(d) ''Consumer'' means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment when such services are availed of with the approval of the first mentioned person;"

In the instant appeals the Section 2(1)(d)(ii) would be attracted as the grievance of the respondents is regarding ''deficiency in service''. The said clause on a bare reading makes it apparent that a consumer is a person who avails of service for consideration paid or deferred. In the instant cases, the very allegation of FAE stipulates that the amenity of electricity has been alleged to have been availed of without any payment and in an unauthorized illegal manner. As such the appellant in such cases is neither the provider of services nor are the respondents ''consumers'' so far as the Fraudulent Abstraction of Energy is concerned. It is only in case where the respondents/consumer avails of the amenity of electricity through lawful means and after due payment for the services availed of in respect of regular supply of electricity, that the respondents would be considered to be consumers within the meaning of Section 2(1)(d)(ii) of the Act and it is only with reference to the bills raised for the legal and authorized supply of energy that the respondents can be considered to be consumers so as to enable them to invoke the jurisdiction of Foras established under the Act and not in cases where the dispute is with regard to pilferage of electricity.

In view of the above discussion, we have no hesitation in holding that in the present context the respondents are not consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and, therefore, the disputes raised by them in their respective complaints filed by them before the learned District Forums could not have been entertained by a redressal agency established under the Act.

HOWEVER, assuming for the sake of arguments that the dispute raised by respondents in their respective complaints filed before the District Forums were consumer disputes within the meaning of Section 2(1)(e) of the Act even then the pertinent question that falls for determination is as to whether such a dispute can be decided by an agency established under the Act. It is significant to state that proceedings before the redressal agencies established under the Act are summary in nature and disputes are to be redressed within the stipulated period of 90 days and proper procedure to dispose of such a complaint is laid down in Section 13 of the Act. In almost all the instant cases, the inspecting team of the appellant has given a detailed report on the basis of which a case of Fraudulent Abstraction of Energy had been made out against the respondent either on the ground of tampering or breaking of seals or other illegal means used for abstraction of electricity as detailed in each case. In the presence of the prima facie case made out by the functionaries of the appellant against the respondents and in the presence of the fact that the allegations are totally denied by the respondents and even the factual observations made by the team are disputed by the respondents, a detailed expert evidence would be required in each case as to whether or not the devices used for the Fraudulent Abstraction of Energy were used by the respondents, in the circumstances; whether the findings arrived at by the team were correct or incorrect; whether the observations were made in the presence of the respondents or not; whether even on the basis of the facts recorded in the inspection report a case of FAE is actually made out or not. A number of witnesses would be required to be examined and cross-examined in detail including expert evidence before coming to the conclusion as to whether the action taken by the department/appellant was justified or not on the basis of the peculiar facts of each case. In case such elaborate evidence is required to be recorded in each case of FAE by the Redressal Agencies under the Act, it would clog the wheels of justice in respect of the claims of the other consumers. In other words the Redressal Agencies would be relegated to the position of a Civil Court, which was not the intention of the framers of this piece of social legislation. Therefore, in view of the aforesaid discussion, the present appeals, filed by the appellant deserve to be allowed and the impugned orders are liable to be set aside with the direction that the respondents may, if so advised, seek the redressal of their grievances before any other Forum/Civil Court, as they may be advised. In consequence all the present appeals are allowed and the impugned orders of the learned District Forum are hereby set aside.

HOWEVER before concluding we would like to mention that insofar as we are concerned, in view of the legal position explained above, we feel ourselves helpless. But we would like to express that the provisions of FAE and theft of electricity, as contained in the Indian Electricity Act and other allied enactments, are infact extraordinary weapons given in the armory of the Executive not to be used in routine but only in exceptional cases. Our feeling on going through the records and after hearing the contention advanced before us is that in the above mentioned matters the above extraordinary provisions appear to have been invoked in routine by the lower rung functionaries of the appellant. Before privatization the appellant-DVB was a ''State'' within the meaning of Article 12 of the Constitution, and the concept of a ''State'' as per the spirit of our Constitution, is that of a ''welfare State'', the primary concern of which is the well being of the ''society'' as a whole. The appellants, after privatization, have stepped in the shoes of DVB. In the above background, we expect that in all the above mentioned matters, with a view to ascertain the genuine FAE matters, the appellant may consider the desirability of appointing a High-Powered Committee, consisting of experts also which may examine each individual case and may take appropriate action under the ordinary law or may like to invoke the extraordinary provisions of FAE and theft of electricity. This is being suggested because firstly, we have to go by the averments made by the appellant and secondly neither we have the resources nor we have the expertise to scrutinize individual matters on above lines. Before concluding we would like to make it clear that irrespective of the fact whether the appellant takes up any follow-up action on our above suggestion, the above order passed by this Commission will not operate to the prejudice of the respondents in pursuing any other remedy that may be available to them under any other law for the time being in force. In the peculiar facts and circumstances of these cases, the parties are left to bear their own costs. Appeals allowed.