PROF.INDERJIT KUMAR And OTHERS vs HARYANA STATE ELECTRICITY BOARD

THE threshold question which falls for determination in this maiden case before the State Commission is - whether the complainants herein are "consumers" within the meaning of the definition thereof in Clause (d) of Sub-section (1) of Section 2 of the Consumer Protection Act, 1986.

NECESSARILY it has to be noticed at the very outset that the respondent Haryana State Electrical Board (hereinafter called ''the Board'') has vigorously challenged the very locus standi of the complainants and the maintainability of the complaint. This is, therefore, the primal issue. Since we are inclined to the view that this complaint must founded on the bed- rock of the twin preliminary objection, the facts relevant thereto only call for notice with relative brevity. The 14 complainants in this joint petition are all residents of Rani Bagh, Rajindra Park, Durga Nagar and Ram Nagar Colonies, which have recently mushroomed on the outskirts of the growing urban complex of the Ambala City and its Cantonment. The petitioners are primarily aggrieved by the existing alignment of the 11 K.V. high tension electric line feeding the Kalpi Sub-Division, which passes over the aforesaid densely populated localities. It is alleged picturesquely that in certain cases the high tension wires are at a hand-shaking distance from the roof tops, and being not properly maintained, can lead to accidents of major magnitude. Already there has been a loss of couple of lives in the earlier years and recently on 22nd June, 1989 an 11 year old boy Munish son of Shri Avinash Kumar Bansal was near-fatally injured, while trying to remove a kite caught in the high tension wires passing over the roof-top of his house. This resulted in the amputation of his arm, right from the shoulder itself. It is the case of the complainants that the inhabitants of the houses in all the afore mentioned localities, thus, live under a constant fear of death and injury from the high tension wires and it is their stand that the houses therein have been constructed with the approval of the Municipal Committee of Ambala Sadar.

It is then the case that the Kalpi Sub-Division is at present being fed from Dhulkot Sub-Station, at a distance of 30 Kilometres, with the result that the high-tension wires pass over a thickly populated area of about 3 kilometres. With the recent commissioning of the 66 Kilo Watt Sub-Station at Sana, just two Kilometres from Kalpi, the latter Sub-Division can be supplied power from the said Sub-Station and the existing line should be dismantled. It is suggested that by incurring a modest expenditure and some minor inconvenience the respondent-Board can accord full relief not only to the complainants but also all other inhabitants of the said residential colonies, over which the hazard of high tension wires stretches.

IN the reply filed on behalf of the Board it is highlighted that it was way back in the year 1966 that the Board had erected the 11 K.V. Kalpi Feeder for the supply of high power to the Air Force Missile Station situated thereat. This feeder was erected and commissioned at the express request of the Air Force Authorities at a huge cost, which was then borne by them and in the present day terms the cost thereof has gone up by more than five times. At that time there was no residential colony, whatsoever, and the land was lying vacant all around and it was the only possible route for the supply of high power to the Missile Station. and it is still the stand that even now there is no other possible route to shift the line for the supply of essential electric power to the defence establishment aforesaid. IN particular, it is pointed out that the feeder and the lines had been constructed and commissioned in accordance with Rule 80 of the INdian Electricity Rules, 1956 (hereinafter referred to as ''the Rules''), which prescribes the minimum clearance for the electric wires of the high voltage or extra high voltage lines from the buildings or structures below or adjacent thereto. It is the respondent''s firm stand that nearly 14 years after the erection of the power lines, the complainants and others purchased the agricultural land from its original owners and thereafter unauthorisedly raised the buildings and constructions thereon. This was done in blatant contravention of Rule 82 of the Rules aforesaid, which prohibits the construction of a building or a structure etc. at any time subsequent to the erection of an overhead line, except in compliance with the stringent conditions provided in the said rule. It has also been expressly pleaded that the complainants and other residents of the Colonies, to which they belong, had made a joint representation requesting for the dismantling of the said K.V. lines, which was forwarded to the Air Force Authorities for seeking their opinion, and the latter have categorically opposed the proposal of shifting the supply point for Kalpi from Dhulkot Sub-Station because the defence establishments located at Kalpi are ''operation oriented'' and cannot brook any erratic interruption in the electric supply thereto. A copy of the letter of the Air Force Authorities is Annexure R1 to the reply.

ON the aforesaid facts it is highlighted that the Air Force Authorities are the sole consumers from the 11 K.V. lines and the complainants not being served therefrom are, consequently, not consumers under the Act, who can maintain a consumer dispute against the Board regarding this line. Secondly, it is objected to that the residential colonies have been constructed in contravention of Rule 82 of the Rules, nearly after two decades of the original erection of the High Tension Electric Line. The complainants cannot make any grievance thereof or claim dismantling of the same because this would in essence be allowing them to take advantage of their own wrong. Consequently, it is alleged that the complainants have no locus standi and the State Commission has no jurisdiction to go into the alleged dispute sought to be raised. In the somewhat brief replication filed on behalf of the complainants it has been virtually admitted that the Air Force Authorities at Ambala are the sole consumers of the electricity supplied by the 11 K.V. High Tension Electric Line feeding the Kalpi Sub- Division, but it is suggested that since the complainants are involved and victimised in this deal the present complaint would be sustainable. It is further conceded that the Kalpi Feeder Line were erected 20 years ago, when no alternative source of electric supply was available, but now the Saha Sub-Station can and should be utilised to serve the purposes of the Air Force Missile Station. According to the complainants, this would, in fact, result in some economy to the National Exchequer. Lastly, grievance is made that the attitude and approach of the Board is unsympathetic and inhuman in so far as the danger and hazard to the complainants and other citizens is not sought to be remedied. From the pleadings aforesaid and the admitted stand of the parties during the course of hearing it stands established that it was nearly 24 years ago that the 11 K.V. High Tension Feeder was laid at the request of and solely for the purpose of the Air Force Missile Station at Kalpi and, admittedly, the same continues to be the sole consumer of electric energy therefrom. It is the admitted position that none of the complainants draws his supply or energy from the said line. Further the houses and constructions of the complainants have come up long after the original erection of the feeder line without complying with the requirements of Rule 82. Lastly, the sole consumer of electric supply from the feeder line, namely, the defence authorities, are not allowing any shifting of their source of electric supply from the existing source to another.

AGAINST the background of the aforesaid factual situation, Mr. Bansal, learned counsel for the respondent-Board, has forcefully pressed his first preliminary objection. It was contended that under the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') a complaint of the present kind can be preferred by a consumer only. Relying on the definition of the ''complainant'' and the ''consumer'' in Section 2, it was submitted that to come within the ambit of a consumer, such a person must have either purchased the goods for a consideration or should have hired any services for consideration. Counsel argued that the virtually admitted position here is that none of the complainants satisfies either of the aforesaid two pre-conditions. Consequently, it was urged with vehemence that the purported complaint lacked the basic statutory requirements, which were mandatory, and was, therefore, not maintainable.

INEVITABLY, the aforesaid submission of the learned counsel has to be tested on the anvil of the relevant statutory provisions of Sections 2, 12 and 18 of the Act. These may, therefore, be noticed at the very outset and the relevant parts thereof deserve recapitulation in extenso : 2. Definitions(1) In this Act, unless the context otherwise requires. - (a) xx xx xx xx (b) "complainant" means (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or (iii) the Central Government or any State Government, who or which makes a complaint; (c) "complaint" means any allegation in writing made by a complainant that (i) xx xx xx xx (ii) xx xx xx xx (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) xx xx xx xx with a view to obtaining any relief provided by or under this Act; (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 or 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 (ii) hires any services 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 beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;"

"12. Manner in which complaint shall be made A complaint, in relation to any goods sold or delivered or any service provided, may be filed with a District Forum by - (a) the consumer to whom such goods are sold or delivered or such service provided; (b) any recognised consumer association, whether the consumer to whom the goods sold or delivered or service provided is a member of such association or not; or (c) the Central or the State Government "18. Procedure applicable to State Commissions The procedure specified in Sections 12, 13 and 14 and under the rules made thereunder for the disposal of 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 larger scheme of the Act and its preamble would clearly indicate that it has been enacted primarily to provide for the better protection of the consumers. A bare look at Chapter-III thereof would make it manifest that its primal concern is the redressal of consumers'' grievance for which it envisages a three tier quasi-judicial machinery at the National, State and District levels. However, for the purposes of the Act, the word ''consumer'' has not been left to be understood as in common parlance, but has been defined with precision in Clause (d) of Sub-section (1) of Section 2. A bare reading of the said definition makes it clear that to come within its ambit a person must either have bought any goods for consideration or should have hired any services for consideration. That is the sine qua non for being a consumer under the statute. By virtue of Clause (i) of Sub-section (1) of Section 2 the word ''goods'' has been given the same meaning as defined in the Sale of Goods Act, 1930, while ''service'' has again been expressly defined in Clause (o) thereof.

Turning now to the definition of the complainant it envisages within its scope threecategories, namely, that of a ''consumer'' as defined, or in the alternative any voluntary consumer association registered under the Companies Act, 1956 or under any other law, and thirdly, either the Central or the State Governments. It is, therefore, plain that barring the exception of voluntary consumer associations and the Governments, whether the State or Central, a complainant must be a consumer of either goods or services, as defined under the Act. This is further made explicit by the definition of ''complaint'' in Clause (c) of Sub-section (1) of Section 2, which means an allegation by a complainant pertaining to either the goods or the services, which he has bought or hired.

APART from the substantive definition clauses, the procedural provisions of Section 12 would equally buttress the position that a complaint under the Act can only be made by a consumer himself or by a recognised consumer association or the Central or the State Governments. This provision pertains to the manner in which complaints are to be made to the District Forums, but by virtue of Section 18 of the Act, would equally be applicable to the procedure before the State Commission. In applying the aforesaid legal provisions to the present case, it has to be noticed at the very outset that plainly enough, the complaint herein has not been made by any voluntary consumer association or by any Central or State Governments. Consequently, it can only be presented by a "consumer" and by no stretch of imagination can any one of the purported complainants come within the ambit of the said word as defined in the Act Manifestly, the complainants do not even allege the buying of any goods for consideration and obviously they have not hired any services for consideration either. Though the supply of electric or other energy comes within the ambit of ''service'', but it is not even the case of the complainants that they had hired any such service from the said 11 K.V. feeder line. It was fairly conceded at the Bar that no one of the complainants is drawing electric energy from the said line nor is it in doubt that the sole consumer from this feeder line is the Air Force Missile Station at Ambala. Yet again, the complainants in no way made a grievance of any deficiency in respect of any services hired, which allegation is a prerequisite in the definition of a complaint in this context. There is thus, no other option but to hold that the complainants herein are not consumers within the meaning of the definition thereof under the Act and, consequently, cannot be complainants, who can prefer a complaint before this Commission. Holding that the Complainants have no locus standi to maintain this complaint before this Commission, we are constrained to dismiss the same on this preliminary ground alone.

THOUGH the respondent-Board succeeds on its basic preliminary objection, it must be noticed in fairness to Mr. Bansal that he was equally on a strong footing on his alternative plea of this nature. It was forcefully pointed out that it stands established that nearly 24 years ago the 11 K.V. Feeder Line was erected, when the complainants and their constructions were not anywhere in sight. Nearly 14 years thereafter if the complainants choose to unauthorisedly raise constructions below or adjacent to the Feeder Line, they cannot, possibly, be allowed to take advantage of their own wrong. The aforesaid submission has to be viewed in the light of Rule 82 of the Rules. It is unnecessary to advert to the detailed provisions of its six clauses, which make it manifest that if at any time subsequent to the erection of an overhead line any person proposes to erect a new building or structure below or adjacent thereto, he must conform to the stringent conditions laid in the said rule. Now it is common ground that in 1966 there were no buildings or structures, when the feeder line was erected wholly in compliance with Rule 80. Nearly 14 years thereafter the complainants have chosen to first erect the buildings and constructions below or adjacent to the line and then make a grievance of any hazard therefrom. In the replication it has not been controverted that these constructions were in violation of Rule 82 of the aforesaid Rules. The respondent-Board has alleged that some of the constructions built were unauthorised in the sense that there was not even valid sanction therefore. Be that as it may mere authorization of a construction by a Municipal Committee cannot override or abrogate the statutory provisions of Rule 82. Admittedly, the provisions thereof have not been complied with. Consequently, it has to be held that the complainants on their own volition came close to the Feeder Line long after its erection and in contravention of the relevant statutory provision. On the larger jurisprudential ground that no man can be allowed to take advantage of his own wrong, the present complaint, therefore, must fail as well. The second preliminary objection of the respondent-Board has also to be upheld. In the result, this complaint is dismissed as not maintainable without any order as to costs. Complaint dismissed.