MALHAN GARMENTS vs S.D.O., P.S.E.B.

THE complainant-M/s. Malhan Garments, Jalandhar in complaint No. 213/1991 on the file of the District Forum, Jalandhar is in appeal before us.

THE complainant is admittedly running business of garments in the name and style of M/s. Malhan Garments, Adda Basti Sheikh, Jalandhar and this concern has electric connection bearing Na PF/18/1028 installed by the respondent. In the complaint, the claimant claims certain reliefs under the Consumer Protection Act, 1986 (for short ''the Act'') against the action taken by the respondent Punjab State Electricity Board in serving it with a bill dated 22-9-1991 for Rs. 755/- with a threat of disconnection of electric supply in the event of the non-payment of the amount. THE respondent-Electricity Board in its version contended that the complaint was not maintainable since the electric energy was goods and it was purchased for commercial purpose. In other words, it was contended that the Forum had no jurisdiction to entertain the complaint since the complainant was not a consumer as defined in the Act. THE District Forum upheld the preliminary objection raised by the Electricity Board and dismissed the complaint as not maintainable. Aggrieved by the aforesaid order passed by the District Forum on 26-9-1992, the complainant preferred this appeal before this Commission.

It is vehemently contended by the Complainant-appellant that the provision of facility of electric energy is service and not a sale of goods as held by the District Forum and that the view taken by the District Forum that the complainant is not a ''consumer'' is incorrect and unsustainable in law. On the other hand, the basic stand of the Electricity Board was that the complainant had no locus standi as such to prefer and maintain the complaint before the District Forum, because it was not a ''consumer'' within the meaning of the Act. The core of the submission was rested on the ground that the complainant being a commercial concern was using electric energy obviously for its commercial purpose. Shri Ram Lal Gupta, Advocate for the respondent contended that the supply of electric-energy was goods in the eye of law. Relying on Sub-clause (i) of Clause (d) of Sub-section (1) of Section 2 of the Act, it was contended that a person who buys goods for commercial purpose has been expressly excluded from the ambit of being a ''consumer'' under the statute. That being so, the complainant was barred from raising the ''consumer dispute''.

BEFORE we proceed to discuss the submissions made by the parties, it would be advantageous to first notice the relevant clauses contained in the definition section of the Act : "2(1)(i). "goods" means goods as defined in the 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 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 and other energy, board or lodging or both, entertainment, amusement or the conveying 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 manifest that the submission aforesaid of the learned Counsel for the Electricity Board 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, but we find that the definitions of ''goods'' and ''service'' in Clauses (i) and (o) of Sub-section (1) of Section 2 of the Act totally militate against his stand. The significant thing which deserves to be noticed is the fact that the definition of the term ''service'' under Section 2(1)(o) of the Act is very comprehensive, it means service of any description including banking, financing, transport, supply of electrical or other energy and entertainment etc. When the statute expressly labels electrical energy as a ''service'', then it is obviously difficult and indeed impossible to label it as a sale of goods by an interpretative exercise. It is well-known principle of construction that the special overrides the general. As already noticed, electrical energy generically has been squarely placed within the definition of ''service''. Apart from the language of the statute, in the identical circumstances, the matter is put beyond the pale of doubt by the recent decision of the Haryana State Commission in Haryana State Electricity Board v. Dinesh Kumar, II (1991) CPJ 38. Therein it has been categorically concluded as under : "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 composit nature, where to a sale of goods a further after sales service may be annexed, the defect in goods and deficiency in service 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."

Similar view was taken by the Delhi State Commission in Amar Dass Thareja v. D.E.S.U., I (1993) CPJ 137. We respectfully concur with the views of the Haryana State Commission and the Delhi State Commission in the aforesaid decisions. Applying the aforesaid rule, it necessarily follows that the ratio of the aforesaid decision is binding to the present case and consequently, the primal argument of the Electricity Board must fail on this ground.

IN the light of the aforesaid detailed discussion, we hold that the supply of electric energy under the Act is a ''hiring of services'' and not a ''purchase of goods'' and that the complainant is a ''consumer'' and has a locus standi to invoke the jurisdiction of the Redressal Forum under the Act. Once it is held so, the conclusion arrived at by the District Forum in the order under appeal has to be reversed. The appeal is, therefore, to be allowed. As already noticed, the learned District Forum have dismissed the complaint on the preliminary ground that the complaint is not maintainable and therefore, it had not adjudicated the case at all. Consequently, the matter is now remanded to the District Forum, Jalandhar for trial of the complaint on merits in accordance with law. In the circumstances of the case, we make no order as to costs. Appeal allowed.