PRATAP vs MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO LTD

-PETITIONER was the complainant before the District Forum, where he had filed a complaint alleging deficiency in service on the part of the respondent, Maharashtra State Electricity Distribution Co. Ltd. (hereinafter referred to as MSEDC ).

BRIEFLY stated the facts leading to filing the complaint were that the petitioner who is the owner of a restaurant by name, "fun-n-Food", for which he had obtained an electricity connection from the respondents. It was the case of the complainant that a regular meter was installed in the said premises, which was replaced by the officials of the respondent some time on 24. 12. 2002 with a CT meter. The complainant was not happy with this and this was brought to the notice of the respondent. Complaints were made by him relating to faulty meter but no action was taken. The first bill for the new meter for the period from 24. 12. 2002 to 31. 3. 2003 was shown at Zero. Second bill for the period from 31. 3. 2003 to 30. 4. 2003 showing consumption of 6545 units for Rs. 37,592 was issued, which was on the high side. The matter was taken up with the concerned Assistant Engineer. After some discussion, the petitioner paid Rs. 25,000 against the said bill of Rs. 37,592 on 3. 6. 2003 and complaint was lodged with the respondent. It was the case of the complainant that the meter was faulty and they had taken no care to rectify the defects which he has been bringing to the notice of the respondent from time and again. It is also apparent, that after an inspection of the premises of the petitioner was carried out, and meter was taken for testing, the test-report indicated tampering with the meter and its slow running by 93. 75% along with other observations that wires SI and Yandb Phase CT meter was found broken, and allegedly there is no current in Wire Y and B Phase. Based on these inspection reports a revised bill of Rs. 8,06,152 was raised but no detail of any kind whatsoever was forthcoming as to on what ground this bill is raised. When the matter was not getting settled between the parties, petitioner filed a complaint before the District Forum, who dismissed the complaint on the point of jurisdiction. Aggrieved by this order, the petitioner filed an appeal before the State Commission. The order of the State Commission dated 13. 12. 2005 reads as follows: "heard Adv. S. Divedi for the appellant. Adv. Y. R. Dandige for the respondent. The learned Counsel for the appellant making statement that he wants to withdraw the appeal with permission to approach the Consumer Disputes Redressal Forum constituted under Electricity Act, 2003. Allowed to with-draw with liberty to approach the new Forum constituted under Electricity Act, 2003. " (Emphasis supplied) After the withdrawal of the appeal from the State Commission, a complaint was filed before the Consumer Grievances Redressal Forum, Maharashtra State Electricity Distribution Co. Ltd. , Nagpur Urban Zone, Nagpur, who by its order dated 20. 2. 2006 disposed of the complaint, operative part of a detailed and lengthy order reads as follows: "since offences and penalties as provided under Sections 135 to 139 of the Electricity Act, 2003 as also the subject-matter of unauthorised use of electricity as provided in Section 126 and actions consequent upon detection of theft/unauthorised use of electricity are specifically excluded from the purview of jurisdiction of this Forum, this Forum cannot entertain the present grievance application. "

It is in these circumstances, that the petitioner, once again approached the State Commission for reviving the original appeal filed by him, which was dismissed in following terms: "heard Mr. P. V. Nelson Rajan, Advocate for the applicant. He seeks restoration of appeal No. 599/2005 withdrawn by him on 13. 12. 2005 to approach the Consumer Grievances Redressal Forum constituted under Electricity Act, 2003. In fact, when the Forum under Consumer Protection Act, 1986 had not granted relief by its impugned order to the applicant herein, he should not have agreed on 13. 12. 2005 to get the appeal withdrawn and to approach the Consumer Grievances Redressal Forum constituted under Electricity Act, 2003. Now the said learned Consumer Forum has disposed of the complaint as not tenable. Prima facie he is again seeking indulgence of this Commission with a prayer to re-admit the appeal No. 599/2005 which was withdrawn by the applicant himself. This is not permissible in law. Now only remedy available to the applicant herein is to approach the appellate or revisional authority constituted under Electricity Act, dealing with appeals or revisions against the orders passed by the Forums constituted under Electricity Act, 2003. "

IT is in these circumstances, this revision petition has been filed before us. We heard the learned Counsel for the parties at considerable length and perused the material on record. The basic facts are not in dispute that the originally petitioner had filed a complaint before the District Forum, which was dismissed on ground of jurisdiction. An appeal was filed before the Maharashtra State Consumer Disputes Redressal Commission, which was voluntarily withdrawn to enable the petitioner to file a complaint before the Consumer Grievances Redressal Forum, Maharashtra State Electricity Distribution Co. Ltd. , Nagpur Urban Zone, Nagpur, which was done. This complaint was also dismissed by the Forum on the grounds reproduced earlier. Subsequently, an appeal was filed before the Maharashtra State Consumer Disputes Redressal Commission for revival of the earlier appeal which had earlier been dismissed as withdrawn voluntarily by the petitioner. Having heard the learned Counsel for the petitioner, we are satisfied that we cannot find any fault with the order passed by the State Commission on 28. 2. 2006.

PLEA before us taken by the learned Counsel for the petitioner is that he cannot be left remediless. We do appreciate this point. Having heard both the parties at considerable length, there is no dispute that the present case shall be governed by the provisions of Electricity Act, 2003. There is also no dispute that the petitioner tried his luck keeping in view the provisions of Sections 42 (6) and 42 (7), which read as follows: " (6) Any consumer, who is aggrieved by non-redressal of his grievances under Sub-section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission. (7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission. " Both the parties are unable to satisfy us as to what is the remedy available against the order passed by the Ombudsman/consumer Grievance Redressal Forum, Maharashtra State Electricity Distribution Co. Ltd. , Nagpur Urban Zone, Nagpur. We are inclined to agree with the parties that this order is final.

BUT when we see the provisions of Electricity Act, 2003, we find that the case unquestionably shall be governed by provisions of Section 126 and 127. Section 126 of the Electricity Act, 2003 deals with the question of ''assessment''. In the case before us there is no dispute that the issue relates to the ''assessment'' of the Electricity Bill, based on the inspection as also based on the report of testing division of Maharashtra State Electricity Distribution Co. Ltd. , Nagpur Urban Zone, Nagpur. Remedy in such a situation would be under Section 127 of the Electricity Act, 2003, which reads as under: "127. Appeal to appellate authority-Any person aggrieved by the final order made under Section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an Appellate Authority as may be prescribed. "

SINCE the remedy lies within the provisions of the Electricity Act, 2003 and especially in view of the fact that the petitioner had voluntarily withdrawn the appeal to file a complaint before Ombudsman/consumer Grievances Redressal Forum, Maharashtra State Electricity Distribution Co. Ltd. , he cannot be permitted to do forum-hopping, especially when he had voluntarily withdrawn from the remedies available under the Consumer Protection Act, 1986, to seek relief else where, on his own volition. We have carefully gone through the provisions of Sections 173, 174 and 175. After going through these provisions, we are in no doubt that the petitioner originally could have filed the complaint before the Consumer Forum which it did but having withdrawn this mid-course voluntarily will estop him from coming back to the Consumer Fora. The learned Counsel for the petitioner has also drawn our attention to the judgment of this Commission in the case of Jharkhand State Electricity Board and Anr. v. Anwar Ali, II (2008) CPJ 284 (NC)=2008 CTJ 837 (CP) NCDRC, on the point of jurisdiction. We have carefully gone through that and are quite clear that the facts are quite different in the cited judgment. In the cited case, it was a question of jurisdiction only, whereas in the case in hand, the petitioner voluntarily, and on his own volition withdrew the appeal without letting the Appellate Authority to go into the question of jurisdiction. Not only this, they filed a complaint before the Ombudsman in such a situation, the petitioner cannot be allowed to forum-hopping and the judgment relied upon by the petitioner does not apply in the facts and circumstances of the case. In the cited judgment, question posed and reply to this question reads as follows: "in that case, the question is whether he can- (i) file complaint under the Consumer Protection Act; or (ii) file an appeal under Section 127 of the Electricity Act before the Appellate Authority; or (iii) file complaint under the Consumer Protection Act, 1986 challenging the order passed in appeal under Section 127 of the Electricity Act. For the reasons stated below, in our view, the aforesaid questions can be answered as under: (i) In case of final assessment order passed under Section 126 of the Electricity Act, if a consumer is aggrieved, he can file complaint under the Consumer Protection Act. However, it is his option to file complaint under the Consumer Protection Act or to file appeal under Section 127 of the Electricity Act, 2003. (ii) Further, against the final order passed by the Appellate Authority under Section 127 of the Electricity Act, no complaint can be entertained by the Consumer Fora. "

While in the cited judgment majority view has been reproduced above, however, distinction needs to be made here, i. e. that in the case in hand, the petitioner decided to revert to the Consumer Fora, after he voluntarily decided to withdraw the appeal before a Forum of competent jurisdiction. The error, on the part of petitioner, is that against the order of assessment under Section 126 of the Electricity Act, 2003, he chose to go before Ombudsman and decided to come back to Consumer Fora, whereas he should have filed an appeal under Section 127 of the Electricity Act, 2003. Having abandoned the route for seeking relief under Consumer Fora voluntarily, he cannot come back to it for seeking relief, as it would appear to be an appeal against the order of Ombudsman. Consumer Fora are neither the Appellate Authority against the order of Ombudsman nor exercise power under Section 127 of the Electricity Act, 2003.

SINCE petitioner is looking for a remedy, he can seek relief under Section 127 of the Electricity Act, 2003 or go before a Civil Court. Thus, this revision petition is disposed of leaving the petitioner to approach the Appellate Authority under Section 127 of the Electricity Act, 2003 or approach the Civil Court for any relief/remedial action, for which the time spent before the Consumer Fora can be sought to be exempted under Section 14 of the Limitation Act in the light of the judgment of the Hon''ble Supreme Court in the case of Laxmi Engineering Works v. P. S. G. Industrial Institute, II (1995) CPJ 1 (SC)= (1995) 3 SCC 583. Admittedly, upon deposit of certain amount, the electricity connection already stands restored in favour of the complainant and he is paying the current bills raised against him. The petitioner shall continue to pay the current bills and his electricity connection shall not be disconnected for another three months, unless the petitioner is able to get the Stay Order from the Appellate Authority under Section 127 of the Electricity Act, 2003, or from a competent Civil Court.

THE revision petition stands disposed of in above terms. Revision Petition dismissed.