Executive Engineer & Ors. vs J & K State Consumer Protection Commission & Ors.

Petitioners have challenged the order dated 21 September, 2004 passed by the Jammu and Kashmir State Consumer Protection Commission,

Jammu, respondent No.1 herein, read with order dated 22nd August 2003 passed by Court of Divisional Consumer Forum, Jammu, respondent

no.3 herein, whereby and whereunder the compliant filed by complainantrespondent No.2 came to be allowed by respondents 1 and 3, on the

grounds taken in the writ petition.

It is contended that respondent no.2 has filed a complaint under Section 10 of the Jammu and Kashmir Consumer Protection Act (for short Act)

for grant of compensation on the plea that the writ petitioners had disconnected the electric connection illegally which was granted to him to run the

Atta Chakki Unit registered under the name and style of M/s Laxmi Composite Mills at Kainthgali. The complaint came to be diarised by

respondent no.3, writ petitioners chose to remain absent and the complaint came to be allowed at their back vide order dated 22nd August 2003

while allowing compensation to the tune of Rs.3000/ and Rs.1000/ for ""mental anguish"" and ""costs of litigation"" respectively, with further direction

to the writ petitioners to restore the electric supply to the complainantrespondent No.2.

Feeling aggrieved, respondent no.2 preferred an appeal before respondent No.1Consumer Commission. The learned Commission while

upholding the judgment of Divisional Forum also allowed an amount of Rs.30,000/ as compensation in favour of complainantrespondent No.2 on

account of ""deficiency in service"" at the back of the petitioners. Thus in all Rs.34.000/ came to be allowed as compensation in his favour.

Feeling aggrieved, the writ petitioners have questioned both the orders by the medium of writ petition on various grounds taken in it. Respondent

no.2 has filed reply thereto, while respondents 1 & 3 have not filed the same.

Mrs. Hakim, learned counsel for writ petitioners has argued that the complaint was not maintainable as respondents 1 and 3 were lacking

jurisdiction to entertain the complaint. Further argued that respondent no.2 was/is running the Atta Chakki Unit for commercial purposes, thus, it

does not fall within the definition of Section 2(d) of the Act.

Mr. Thakur, learned counsel for respondent no.2 argued that the writ petitioners chose to remain absent before the courts below and have failed

to contest the complaint and now they cannot question the competence, power and jurisdiction of respondents 1 and 3. Further he argued that the

complainantrespondent no.2 was earning his livelihood by running the said Atta Chakki after obtaining loan under the Selfemployment Scheme,

thereby explanation to Section 2(d) of the Act is attracted.

It is apt to reproduce the same herein:

2.(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 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

Explanation: For the purposes of Subclause (i),

commercial purpose"" does not include use by a consumer of goods bought and used by him exclusively for the purposes of earning his livelihood,

by means of selfemployment.

While going through Section 2(d) of the Act, ""consumer"" means a person who buys goods for a consideration which has been paid or promised

or partly paid or partly promised. The definition of ""consumer"" (supra) defines who is a consumer. It also provides that it does not include a person

who obtains such goods for resale or for any commercial purposes.

The explanation to Section 2(d) (supra) provides that ""commercial purpose"" does not include use by a consumer of goods purchased and used

by him exclusively for purposes of earning his livelihood by means of selfemployment.

The core question involved in the writ petition is whether the complainantrespondent no.2 has raised the plea that he was and is purchasing the

goods for purposes of earning livelihood by means of selfemployment.

To determine this issue, a perusal of the complaint is required. The records of respondents 3 & 4 have been received. The complaint contains

nine paras and relief clause. It is nowhere mentioned or averred by the complainantrespondent No.2 that he is running the Atta Chakki Unit for

commercial purposes for earning his livelihood after obtaining loan under the Selfemployment Scheme. It is also not mentioned in the complaint that

he is earning the livelihood by running the said unit for purposes of selfemployment. Respondents 1 & 3 have lost sight of the said legal aspect and

have not discussed the said issue nor they returned any finding in respect thereto.

During the pendency of writ petition, the complainantrespondent no.2 has tried to built up his case by filing a supplementary affidavit in order to

allege or establish that he has set up the said unit though for commercial purposes, but to earn his livelihood under the Selfemployment Scheme, but

the fact of the matter is that it was neither pleaded nor argued before respondents 1 and 3 or determined by them.

It is also not discussed by respondents 1 and 3 that whether the consumer of electricity is covered by the definition of ""consumer"".

Respondents 1 & 3 were under a legal obligation to return a finding whether the complainantrespondent No.2 was falling within the definition of

consumer"".

My view is fortified by the judgment of Supreme Court in case titled Accounts Officer, Jharkhand State Electricity Board v. Anwar Ali,

reported in 2007 AIR SCW 6366.

It is apt to reproduce para 10 of the said judgment here under:

In view of the fact that the National Commission has not addressed the question as to whether consumer of electricity is covered by the definition

of consumer as defined in Section 2(0) of the Act, we set aside the impugned order and remit the matter to the National Commission to record a

positive finding on the aspect. It shall also take into consideration the dispute raised regarding the alleged service of notice dated 20121999.

Now the question is whether the impugned orders are required to be quashed and the matter needs to be remitted back or not.

Keeping in view the long pendency of the complaint and the fact that the parties are litigating for the last so many years, I deem it proper to

quash both the orders and remit the matter back to the Court of instance/respondent no.3 for fresh disposal of the complaint as per the law

governing the field.

Accordingly the writ petition is allowed and the impugned orders order dated 21 September, 2004 passed by the Jammu and Kashmir State

Consumer Protection Commission, Jammurespondent No.1 read with order dated 22nd August 2003 passed by the Divisional Consumer Forum

(constituted under the Jammu and Kashmir State Consumer Protection Act), Jammurespondent no.3 are quashed. Matter is remitted back to the

Court of Divisional Consumer Forum Jammu.

The complaint shall come up before the said Court on October 7,2009. The parties through their counsel are directed to cause their

appearance before the said Court on the date fixed.

Registry to send down the records to respondent no. 1 and 3 along with the copies of the judgment.