HARYANA STATE ELECTRICITY BOARD vs DINESH KUMAR

WHETHER the supply of electrical energy is a hiring of services, or a purchase of goods, by a consumer under the Consumer Protection Act, 1986? WHETHER a contesting respondent in an appeal under Section 15 of the aforesaid Act can prefer and maintain cross-objections against the same? These are the two somewhat ticklish questions arising for adjudication in this set of two connected appeals (First Appeal Nos. 16 and 18 of 1990) preferred by the Haryana State Electricity Board.

LEARNED Counsel for the parties are agreed that the issues of fact and of law in both these appeals are similar, if not identical, and as such these are being disposed of by this common order. The facts that now deserve notice in the context of the two questions aforesaid lie in a narrow compass. Bishan Sarup and Dinesh Kumar, respondents in the two appeals, are father and son, respectively, and apparently are running industrial units in the same or adjoining premises at Hisar. Whilst Bishan Sarup respondent has restarted his dal mill recently and is being supplied electrical energy vide meter No. SP-3-479, his son Dinesh Kumar respondent is running another industrial unit fed by electrical energy through meter No. SP-3-601, On the 22nd February, 1990, Assistant Director (Vigilance) (H.S.E.B) had raided the premises of the two respondents and found the glass of meter No. 479 in a broken condition from top corner and another glass affixed from outside, which could be easily removed. At the same time a load of 12.578 K.W. was found against the sanctioned load of 5.955 K.W. In the same manner he found a load of 13.578 K.W. against the sanctioned load of 11.578 K.W. in the electric meter No. 601. He submitted separate reports in both the cases, on the basis of which demands for electricity charges were raised against the two respondents, seeking a pre-emptory payment thereof.

Two separate complaints were filed by Sh. Bishan Sarup and Dinesh Kumar, respondents, before the District Forum, Hisar, against the demands aforesaid. The former was primarily aggrieved by the bill to the tune of Rs. 5,416.95, payable by 16th April, 1990. His primal grievance was against the demand of Rs. 2,700/- towards the excess load, and he further challenged the demand of Rs. 1,977.97 (on the basis of the last six months'' average) as being arbitrary and unjustified.

DINESH Kumar respondent was aggrieved by the demand of Rs. 1,238.16, but the main thrust was his denial of liability to pay sundry charges to the tune of Rs. 900/-, as he claimed that there was no excessive load and sought the correction of his bill. On notices being issued to the opposite party, the stand taken on their behalf in the counter-version was with regard to the locus standi of the complainants and the very jurisdiction of the Forum to entertain the complaints. The allegations made in both the complaints were controverted and the demand of electrical charges was sought to be firmly sustained. Since the two cases had arisen out of the two checking reports of the same date, i.e., 22nd February, 1990, the District Forum thought it expedient to dispose of both the complaints by a common order, which is now under appeal. Thereby the District Forum rejected the objections with regard to its jurisdiction and proceeded to grant relief to Bishan Sarup respondent by cancelling the demand of Rs. 1,676.35 as not justified, and further directing that the demand of Rs. 2,700/- be reviewed after thoroughly verifying the record, the sanctioned load, and the excess load if any. The remaining electrical charges levied by the Electricity Board were held to be justified. As regards Dinesh Kumar respondent, it was directed that the charges with regard to fans be excluded and the bill be reduced accordingly.

ON notice of these appeals being served on the respondents, they have filed detailed cross-objections to the appeals, inter alia, raising the bar of limitation, and not only supporting the order, but seeking further reliefs, which were denied by the District Forum by allowing the cross-objections. The somewhat ticklish questions of limitation, which arose, were decided by a separate exhaustive order dated the 4th February, 1991, whereby the delay in preferring the appeal was condoned. The primal issues on merits, which have been noticed at the very outset, have now been raised by the learned Counsel for the parties. The core of the argument on behalf of the appellant-Board, projected by Mr. Bansal, their learned Counsel, was directed to the very locus standi of the respondent as complain- ants, and, consequently, the lack of jurisdiction of the District Forum to take cognizance of the dispute. It was submitted that the undisputed factual position is that both the respondents were getting electric energy for a commercial purpose, pertaining to their industrial units. Relying on sub-clause (i) of clause (d) of sub-section (1) of Section 2 of the Consumer Protection Act, 1986 (hereinafter called "the Act''), it was contended by Mr. Bansal that any person who buys goods for re-sale or for any commercial purpose has been expressly excluded from the ambit of being a "consumer" under the Act. Consequently, it was the forceful case of the appellant-Board that both the respondents were not consumers for the purpose of the Act, and, thus, barred from raising a consumer dispute. In sum, the very locus standi of the complainant-respondent was pointedly assailed, and, as a necessary conse- quence, the jurisdiction of the District Forum as well to adjudicate in a matter, which was alleged as beyond the four-corners of the statute. It is somewhat manifest that the submission aforesaid rests on the assumption that the sale or supply of electrical energy is a sale or purchase of goods within the meaning of the Act. For sustaining this stand, Mr. Bansal''s sheet-anchor was the judgment of their Lordships of the Supreme Court in The Commissioner of Sales Tax Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur, AIR 1970 Supreme Court 732. Wholly relying on the observations therein, it was submitted that the Final Court has held that the supply of electrical energy is a sale of goods within the meaning of the C.P. and Berar Sales Tax Act, 1947, and, the Madhya Pradesh General Sales Tax Act, 1959. By way of analogy Mr. Bansal contended that by virtue of Section 2(1)(i) of the Act "goods" mean "goods" as defined in the Sale of Goods Act, 1930 and the definition in Section 2(7) of the said Act is in any case closely similar, if not in pari materia with the definition of "goods" in Section 2(d) of the CP. and Berar Sales Tax Act, which their Lordships of the Supreme Court were construing in the aforesaid case. Consequently, the ratio of the Madhya Pradesh Electricity Board, Jabalpur'' s case was projected to be totally applicable on all fours under the present Act as well. In sum, the contention was that since the Final Court has held the supply of electric energy as a sale of goods, the complainant-respondents were buying it for a commercial purpose, and, were therefore, ousted from the definition of a "consumer" under the Act, and, thus, not entitled to relief under its beneficent provisions.

IN order to appraise and adjudicate on the aforesaid contention, it is inevitably necessary to advert it, .extenso to the definition of "goods" and "services" as spelt out under the Act, which may be quoted for facility of reference at the very outset : "2(1)(i). "goods" means goods as defined in Sale of Goods Act, 1930 (3 of 1930)". -Section 2(7) of the Sale of Goods Act, 1930 is as under :- "2(7). ''goods'' means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale". "2(1)(o). "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

It is in the context of the aforesaid statutory provisions that the ratio of Madhya Pradesh Electricity Board, Jabalpur''s case has to be examined, which is the sole sheet-anchor of the appellant''s stand. Undoubtedly, some passing observations therein would lend a handle to the submission of Mr. Bansal, but a close perusal and deeper analysis of the said judgment would clearly lead to the conclusion that the same is plainly distinguishable in the context of the Consumer Protection Act. IN the said case their Lordships were construing the definition of "goods" as laid down in Section 2(d) of the C.P. & Berar Sales Tax Act, which though somewhat similar, cannot yet be said to be identical with the definition given in the Sale of Goods Act, 1930. The language of the two defining provisions cannot be said to be wholly in pari materia. Their Lordships further noticed in that case that the sale and supply of electric energy had been expressly exempted from the Sales Tax by the relevant statutes, which by necessary implication meant that the same would come within the ambit of the ''sale of goods'' under those Acts. None of these considerations are attracted herein. A broad reading of the judgment on larger perspective would indicate that it was in the peculiar circumstances and in the special context of the Berar Sales Tax Act and the Madhya Pradesh Sales Tax, 1958, that their Lordships took a view that for the purposes of being a dealer there under in the sale of goods by such dealer, electric energy also fell within the ambit thereof. No general proposition of law in absolute terms was laid down, and, in fact, it was noticed that the authoritative commentary of Pollock & Mulla on the Sale of Goods Act had expressed doubts whether the definition of goods was applicable to gas, water, and electricity. For all these reasons it has to be held that the Madhya Pradesh Electricity Board, Jabalpur'' s case does not cover the issue on all fours, and, indeed is patently distinguishable.

NOW apart from the above, larger considerations in the context of the definition of ''goods'' and ''service'' in clauses (i) and (o) of sub-sec. (i) of Section 2 of the Act totally militate against the stand taken on behalf of the appellant. The significant thing, which deserves to be highlighted, is the fact that the supply of electrical energy has in express terms been included in the definition of "service" in Clause (o) quoted above. When the statute expressly labels the same as a "service", then it is obviously difficult and indeed impossible to label it as a sale of goods instead by an interpretative exercise, it is a well- Known principle of construction that the special overrides the general. Even if generally under other statutes, the supply of electric energy may tantamount to sale of goods, still when the Act specially places the same within the definition of ''service'' the same would have an overriding effect. General considerations under other provisions would, thus, be of little relevance. Therefore, on the larger principle, it has to be held that even though ordinarily or under other statutes the supply of electrical energy may come within the ambit of the'' sale of goods'', yet for the special purposes of the Act it would be excluded there from. If the Act has classified the same as a ''service'', then the mandate of the Legislature must be given its full effect. Again on the larger scheme of the Act it deserves notice that the same draws a clear distinction between a consumer who purchases goods for consideration and the one who hires any services for the same. Whilst a person purchasing the goods for a commercial purpose is ousted from the definition of a ''consumer'', a person who hires services for consideration even for commercial purposes, remains squarely within its ambit. The definition of a ''defect'' pertaining to goods in clause (f) of sub-section (1) of Section 2 of the Act is distinct and different from a ''deficiency'' in service, which is defined in clause (g) thereof. Both a defect in goods or a deficiency in service will give a cause of action to a consumer, but different considerations would necessarily apply because of the aforesaid definitions. Barring exceptional cases of composite nature, where to a sale of goods a further after-sales service may be annexed, the defect in goods and deficiency in services are things apart. Supply of electric energy, therefore, cannot possibly be both ''sale of goods'' or ''hiring of services''. It has to be either. When the Parliament in its wisdom has expressly placed the supply of electrical energy squarely within the definition, in Clause (o) then by no interpretative casuistry can this subject be taken out of the definition in Clause (o) and thrust or inserted in Clause (i). In essence when the Act labels the supply of electrical energy as a ''service'', one cannot possibly read it as a ''sale of goods'' by a strained process of interpretation. Holding so would not only be doing violence to the language of the statute, but would be contrary to all sound canons of construction.

In the light of the above, the answer to the first question posed at the outset is rendered in the terms that the supply of electrical energy under the Act is a hiring of services and not a purchase of goods.

ONCE it is held as above, it would be plain that the very bottom is knocked out of the basic contention raised on behalf of the appellant. The challenge to the locus standi of the complainants-respondents, and, consequently, to the jurisdiction of the District Forum, must, therefore, be repelled. Though the primal contention on behalf of the appellant, thus, fails, yet in all fairness to their learned Counsel one must notice two of his ancillary submissions which were projected somewhat half-heartedly. Firstly on merits it was sought to be contended that on the 22nd February, 1990, when the premises were inspected by the Assistant Director (Vigilance) and the checking report was prepared, the glass of meter No. 479 of Sh. Bishan Sarup respondent was, admittedly, found broken. Somewhat ingenuously it was submitted that from the mere factum of the broken glass of the said meter, a conclusive inference of theft of electricity must be legitimately raised. The stand taken was that the District Forum in not doing so and cancelling the demand of Rs. 1,676.35 P. was in patent error.

WE are unable to accede to the aforesaid submission. It might well be that a consumer of electricity is bound to maintain the electric meter in his premises in good condition. Yet from that it does not follow that a merely broken or damaged glass of the said meter would necessarily raise a conclusive presumption of theft of electricity. At the very highest it can be one of the many factors which may lead to the conclusion of the abstraction of electric energy. The District Forum in paragraph 10 of the order under appeal adverted to this aspect in some detail. WE find no vitiating error in their line of reasoning and are inclined to confirm the same. It was next contended by Mr. Bansal that the finding of the District Forum in paragraph 12 of the order in favour of Dinesh Kumar respondent was so vague and ambiguous as not to amount to adjudication at all. We have somewhat closely perused the observations in the aforesaid paragraph. It might well be that the reasoning of the District Forum could have been a little more elaborate and the conclusion might well have been more precisely expressed. However, this infirmity by itself does not vitiate the basic finding in the said paragraph. Some ambivalence in the recording of this part of the order does not, in our view, deserve the setting aside of the same altogether. All that may be said is that the same might well have been more happily worded. The second submission of Mr. Bansal on merits must also fail. Mr. O.P. Sharma, learned Counsel for both the respondents in these two appeals, apart from supporting the order, had strongly pressed his cross-objections filed therein. It was submitted that a number of reliefs had been claimed in both the complaints, which were wholly well-merited and the District Forum had erred in not allowing them in toto. The Counsel pressed not only for the rejection of the appeals, but for allowing the detailed cross- objections and granting all the reliefs which had been sought by the respondents.

THE aforesaid stand of Mr. Sharma was checkmated by Mr. Bansal, appearing on behalf of the appellant, by forcefully and frontally contending that as a matter of law the cross-objections filed were not maintainable at all. To sustain this stand it was argued that Section 15 of the Act, and for that matter any other provision thereof did not visualise the filing of cross-objections against an appeal under this statute. THE firm stand was that a partly successful party before the District Forum could only seek a remedy by preferring an appeal of its own within limitation, but was debarred from filing cross-objections in the appeal by the other party. THE core of the submission was that the right to prefer cross- objections was analoguous to the right of appeal and this was a mere ceature of the statute. Since no such right was given by the Act or the Rules, the provisions of the Civil Procedure Code could not be invoked for filing cross-objections in appeals under Section 15 of the Act.

WE are inclined to uphold the strenuous legal objection to the very maintainability of the cross-objections herein. What first meets the eye is the fact that the brief provisions of Section 15 of the Act, which confer the right of appeal to the State Commission, do not even remotely hint at any cross-objections thereto. Not only that, in the whole gamut of the provisions of the Act, the very word "cross-objections" is conspicuous by its absence. It may also be noticed by way of analogy that even in appeals from the orders of the State Commission to the National Commission under Section 19, there is not the least reference to any cross-objections to the same as well. In sum, the Act whilst conferring the right of appeal, is totally silent with regard to any cross-objections thereto. Apart from the above, sub-section (2) of Section 30 of the Act conferred the power on the State Government to make rules, inter alia, under Section 15 of Act. In compliance therewith, the Haryana Consumer Protection Rules, 1988, have been duly promulgated. Therein Rule 8 specifically provides the procedure for hearing appeals under Section 15. This rule is somewhat exhaustive having as many as 9 sub-rules. It is significant that nowhere therein also any provision, whatsoever, has been made for preferring any cross- objections in such an appeal. Without elaborating further, it seems somewhat manifest that neither the Act nor the Rules framed there under remotely envisage the preferring or maintaining of cross-objections in appeal.

Once it is so, we must hearken back to the well settled rule that the right of appeal is a mere creature of the statute alone. It is necessary and indeed would be wasteful to burden this order with authorities because it is well settled, beyond cavil, that the right of appeal is not a natural or guaranteed right. There is nothing, whatsoever, in our Constitution which may even remotely vest any such inalienable right in the unsuccessful litigant. Learned Counsel for the parties were fair enough to concede that the right of appeal was not a Fundamental Right or a Constitutional one. It is, therefore, that it has been repeatedly asserted that the right of appeal is a mere creature of the statute. Now, if this be the legal position with regard to the basic right of appeal, it appears to us, it would be doubly so with regard to the filing or maintaining cross-objections thereto. It was the admitted position before us that the concept and contents of the cross-objections flow from nowhere else but from the specific language of Rule 22 of Order 41 of the Civil Procedure Code, which in terms confer this right on the respondent in an appeal within the four-corners of the five sub- rules thereof. De hors these provisions, there is no inherent right to file cross-objections. Consequently, the cross-objections, as commonly understood, are only a creature of Order 41 Rule 22 of the C.P.C., and can be preferred only in areas where the said provision is applicable stricto sensu.

HEREIN there can be little doubt that Order 41 Rule 22 of the C.P.C. is in no way attracted to the field of consumer legislation under the Act. It deserves notice that the Parliament was not wholly unaware, and in terms provided in sub-section (4) of Section 13 of the Act, for certain provisions of the Civil Procedure Code, which were expressly made applicable to the Redressal Agencies under the Act. It is unnecessary to advert in detail to Clauses (i) to (vi) of sub-section (4) of Section 13 aforesaid, because it is manifest that Order 41, Rule 22, does not figure therein even remotely. Once it is held that this provision of the Civil Procedure Code is not applicable to the Redressal Agencies under the Act, it is obvious that there is no other legal foundation for sustaining the concept of cross- objections. As has been said earlier, it bears repetition that if the Act and the Rules do not provide for cross-objections and further Order 41, Rule 22, of the Civil Procedure Code, is not applicable, then such a right to prefer cross-objections cannot be created by any interpretative exercise alone. Though the legal position is, thus, clear on principle, and the provisions of the statute, it still becomes necessary to clear some cobwebs created by precedent under the provisions of other Acts. It goes to the credit of Mr. Bansal that he brought to our notice some authorities which could possibly lend a handle to the submission that cross-objections can be maintained even under a statute, which does not expressly provide for the same. By way of analogy, reference was first made to Collector, Varanasi v. Gauri Shanker Misra and others, AIR 1968 Supreme Court 384, which lays down the basic rule that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. However, the cases pointedly attracted are the Full Bench judgment of the Karnataka High Court in K. Chandrashekar Naik and another v. Narayana and another, AIR 1975 Karnataka 18, and the Division Bench judgment of the Punjab & Haryana High Court in Triloki Nath Bhargava and another v. Smt. Jaswant Kaur and others, AIR 1975 Punjab & Haryana 303. Therein the pointed question arose whether the cross-objections could be maintained by a respondent in an appeal filed under Section 110-D of the Motor Vehicles Act in the High Court. The Full Bench in K. Chandrashekar Naik''s case (supra) overruled the view taken in the earlier two Division Bench judgments of the Karnataka High Court, and held that cross-objections could be maintained in such appeals. Reliance was basically placed on Collector, Varanasi''s case (supra). This view of the Karnataka High Court has been followed by the Division Bench of the Punjab & Haryana High Court in Triloki Nath Bhargava''s case (supra).

NOW an incisive perusal of the aforesaid two judgments would indicate that the ratio-decidendi of the said cases cannot possibly be attracted to appeals under Section 15 of the Act. The basic premise on which those cases proceed is the fact that Section 110-D of the Motor Vehicles Act, conferring a right of appeal to the High Court, is totally silent on the procedure for adjudicating the same, and further, no relevant rules under the aforesaid Act have been framed either. In such a context when a statute provides for an appeal to a Court already established, and in particular to the High Court, it was held that the practice or procedure of the said Court for hearing of appeals would necessarily attach to the appeals filed before it under Section 110-D of the Motor Vehicles Act also. Equally, it was held that the general appellate jurisdiction, which vests in the High Court, and its procedure for hearing said appeals, would be automatically attracted in such cases. Consequently, Order 41, Rule 22, of the Civil Procedure Code, would forth with come into play and cross-objections to the appeal would become maintainable there under. In sharp contrast, the legal position with regard to appeals under Section 15 of the Act would be radically different. The State Commission, to which the appeal lies, has no practice or procedure or its own other than what is provided by the Act and the rules framed there under. Unlike the High Courts, the State Commission is not a Court of record and it does not have any general appellate jurisdiction. So, what is said in the context of the High Court or the Supreme Court as a Court of Record, cannot possibly be attracted to the Redressal Agencies like the State Commission created by the Act. The authorities noticed above, therefore, cannot possibly be a warrant for the proposition that the Order 41, Rule 22 of the C.P.C. can be indirectly brought into play in the appellate proceedings before the State Commission under Section 15 of the Act. To finally conclude, the answer to the second question posed at the outset is rendered in the negative, and it is held that a contesting respondent in an appeal under Section 15 of the Act cannot prefer and maintain cross-objections thereto.

IN view of the aforesaid conclusion, the cross-objections filed by the respondents in both the appeals have necessarily to be rejected as a matter of law, and it is, thus, unnecessary to advert to the contents and merits thereof.

IN the end result, both the appeals fail and are hereby dismissed. The cross- objections filed by the respondents are rejected as not being maintainable. There will, however, be no order as to costs. Appeal dismissed.