K.P.SUBHASH vs Asst. Executive Engineer

THIS petition is by the appellant for the issue of direction to the first respondent, Asst. Executive Engineer, K.S.E.B. to restore forthwith the electric supply to the petitioners unit, Rubicon pending disposal of the appeal. To this petition first respondent has filed objection.

THE appeal is directed against the order of the Consumer Disputes Redressal Forum, Ernakulam. When the appeal came up for admission on 22.4.1999 appellant wanted time and the same was adjourned to 13.5.1999 on which date on hearing the appellant notice was ordered to the respondent returnable by 13.7.1999. THEn the learned Counsel for the appellant moved this petition for interim direction. No interim direction was ordered as the commission felt that the respondent has to be heard. On account of the same notice was ordered on that petition also returnable by 13.7.1999. In the meanwhile the appellant''s learned Counsel produced before the Commission an order by the High Court of Kerala in O.P. 13241/99 with a letter of the Counsel on 3.7.1999. THE order of the High Court states : "THE grievance of the petitioner is that Ext. P15 is not yet taken up for appropriate orders". THE direction in the judgment is to dispose of Ext. P15 within six weeks from the date of presentation of the copy of the judgment. As already noticed, the petition for interim direction in fact was moved on 13.5.1999 and this Commission had ordered notice returnable by 13.7.1999. The appeal is directed against the order of Consumer Disputes Redressal Forum, Ernakulam in O.P. 1067/98 by which the District Forum disposed of the complaint by the appellant directing the complainant to file an application before the opposite party/respondent for exempting him from payment of fixed charge and surcharge due from him after 11 /93 and for instalment benefit for payment of the amount. Appellant alleged, that the disconnection of the supply as well as dismantling of the meter and direction to pay surcharge, etc. is illegal. In this petition, as already noticed, the appellant seeks to issue a direction to restore the electric supply. In the objection by the opposite parties they sought to maintain, that the disconnection as well as dismantling of the meter was valid and it is also maintained by them, the interim relief sought for cannot be entertained by the Commission as the Commission has no jurisdiction to issue such a direction.

The first question that would fall for consideration in the circumstances is, whether this Commission has got jurisdiction to entertain such a prayer for interim direction. The opposite party made reliance on the decision of the National Commission reported in I (1998) CPJ 81 (NC) D.E. (C.F.), Calcutta Telephones v. Bharat Biscuit Company (Private) Limited, in support of their contention that such a prayer for interim direction is not maintainable. This aspect is considered by the National Commission in para 5 of the decision. In the said para the National Commission relying on the decision of the Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das, II (1994) CPJ 7 (SC), states : "The order directing the opposite party to reconnect the telephone was an interim order. It is the consistent view of this Commission that an interim order cannot be passed by a Forum constituted under the Act. This view is further supported by the judgment of the Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das (supra), wherein it was held : A careful reading of the above discloses that there is no power under the Act to grant any interim relief or even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience."

To meet this, the learned Counsel for the appellant relied on the decision of the National Commission in III (1993) CPJ 270 (NC), Haryana State Electricity Board v. Pirthi Singh, there the direction issued by the District Forum to release connection was challenged. The National Commission found that such a direction is valid. But it has to be noted that the said direction was not an interim direction but was the final direction on disposal of the complaint. The learned Counsel also relied on the decision of the West Bengal State Consumer Disputes Redressal Commission in III (1993) CPJ 1361, C.E.S.E. Limited v. Angurbala Sathu Khan. That was also a case where mandatory direction was issued. The challenge was against the same on the ground that such a relief is not taken in by Section 14(1)(d) of the Consumer Protection Act. The State Commission held that Section 14 empowers the Consumer Disputes Redressal Forum to award appropriate reliefs in the nature of direction by way of final relief. The said decision also shows the relief granted was the final relief. The learned Counsel referred us to the decision of the National Commission in State Bank of India v. Dr. Kalika Charan Dube, III (1994) CPJ 121 (NC), there the National Commission granted an interim stay subject to payment of half the decretal amount. On the basis of the said decision it was argued by the learned Counsel, since interim stay was granted against the operation of the order, the principle can be extended to cover directions of the nature sought in this petition.

THE learned Counsel also sought to maintain that this Commission has got jurisdiction to entertain such a prayer by relying on Section 18 of the Consumer Protection Act, 1986. THE said section deals with the procedure applicable to the State Commission which reads : "THE provisions of Sections 12,13 and 14 (and the rules made thereunder) for the disposal of the complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission". THE argument is, since the State Commission can dispose of matters before it as per the provisions in Sections 12,13 and 14 with modification, the jurisdiction of the Commission is not confined to Section 13 as to procedure to be adopted. Section 13, Sub-section (4), Clauses (i) to (v) states that provisions of C.P.C. applicable for adjudicating complaints. Clause (vi) proceeds to state : "any other matter which may be prescribed". What is sought to be maintained by the learned Counsel is, whereas Section 14(vi) includes matters which may be prescribed, Section 18 which concerns the procedure before the Commission states that provisions in Sections 12, 13 and 14 and the rules with such modification as may be necessary be applicable for disposal of disputes by the State Commission. THErefore according to the learned Counsel, since the "modification" is not insisted to be as "prescribed", but modification as may be necessary, the Commission has got wide jurisdiction to apply to said provisions with modification. THErefore, according to the learned Counsel, the commission has got jurisdiction to entertain such a prayer when such relief is found to be necessary. Once the National Commission has held in Calcutta Telephones v. Bharat Biscuit Company (Private) Limited (supra), referred to early, that an interim relief cannot be granted by a Forum constituted under the Act, the State Commission cannot find that it has got jurisdiction to pass such orders. Alternatively, the interpretation placed by the learned Counsel for the appellant on Section 18 cannot be accepted. When Section 13(4)(vi) states that "any other matters which may be prescribed" that certainly would mean as prescribed by rules. The distinction that is sought to be made by the learned Counsel on the basis of the difference in the wording in Section 18; whereas in Section 13(4)(vi) the words used are "as may be prescribed", in Section 18 what is stated is "with such modification as may be necessary". The effect of the same has to be understood with due regard to the meaning that can be attributed to the words employed in the provision. It need not always be the literal meaning that should govern because the words used in a provision of law would capture meaning and colour from the context in which the same are used. Interpretation essentially is to discover the intention of the Legislature. A statute cannot be interpreted to confer power on Courts to modify law; for the Courts do not have power to legislate and the Courts even cannot make direction to make a particular law for the same involves policy. Therefore, when a statute says of "modification" of a provision such modification can only be by legislative process as the Courts do not possess legislative power, its power is only to interpret the law made by the Legislature; modification of law is not within the sphere of judicial power. Therefore the said argument of the learned Counsel for the petitioner too cannot be accepted.

EVEN assuming that Section 18 confers jurisdiction on the commission to apply provision in Section 13 with modification, that cannot enable to read into the said section a provision to issue mandatory direction of the nature prayed for. The decision of the National Commission reported in III (1994) CPJ 121 (NC), referred to early was for stay of operation of the order appealed against, whereas the prayer in this petition in effect and content is to issue an interim mandatory direction. When the direction sought is such that the same if granted would in effect be granting the main relief itself, even Courts will be slow in making such mandatory direction by way of interim relief, much less Forums created under the Consumer Protection Act whose jurisdiction is limited by the provisions in the Act. With due regard to the aforesaid facts and circumstances we are of the view that the petitioner is not entitled to the relief prayed for. The petition is liable to be dismissed which accordingly is hereby dismissed. Petition dismissed. _______________