Torrent Power Ltd. vs Subhash N. Shah And Ors.

THE complainant was being supplied electricity by the petitioner company vide connection No. 164139 and a meter bearing No. 678849 had been installed at his premises for recording the consumption of the electricity consumed by him. On 15.10.1999, the officers of the petitioner company inspected the premises of the complainant/respondent and found inter -alia that both the seals of the lighting meter cover were missing. Based upon the apparatus installed in the premises of the complainant, an assessment was made and the bill was raised accordingly. The complainant made payment of Rs. 50,000/ - to the petitioner company, towards payment of the bill raised by it. Claiming that the aforesaid payment was made under protest, the complainant approached the concerned District Forum, seeking refund of the aforesaid amount of Rs. 50,000/ -, along with compensation and cost of litigation.

THE complaint was resisted by the petitioner company, primarily on the ground that the seals of the lighting meter were found missing at the time of inspection carried out in the presence of the complainant and the bill was raised accordingly, based upon an assessment made by them. The District Forum, vide its order dated 07.10.2014, directed the petitioner company to pay a sum of Rs. 50,000/ - to the complainant along with interest, compensation and the cost of litigation quantified at Rs. 1,000/ - each.

BEING aggrieved from the order passed by the District Forum, the petitioner company approached the concerned State Commission by way of an appeal. The appeal, having been dismissed by the State Commission vide order dated 26.02.2010, the petitioner company is before us by way of this revision petition.

THE case of the petitioner company is that since this was a case of unauthorized use of electricity, the Consumer Forum did not have jurisdiction to entertain the complaint. Reliance is placed upon the decision of the Hon''ble Supreme Court in Civil Appeal No. 5416 of 2012, Uttar Pradesh Power Corporation Ltd. v. Anis Ahmed, where the Apex Court inter -alia, held as under: "45. The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the Consumer Protection Act, 1986 and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, or Sections 173, 174 and 175 of the Electricity Act, 2003, the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offices under Sections 135 to 140 of the Electricity Act, as the acts of indulging in ''unauthorized use of electricity'' as defined under Section 126 or committing offence under Sections 135 to 145 do not fall within the meaning of ''complaint'' as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.

The acts of indulgence in ''unauthorized use of electricity'' by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 neither has any relationship with ''unfair trade practice'' or ''restrictive trade practice'' or ''deficiency in service'' nor does it amounts to hazardous services by the licensee. Such acts of ''unauthorized use of electricity'' has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in ''unauthorized use of electricity'', do not fall within the meaning of ''complaint'', as we have noticed above and, therefore, the ''complaint'' against assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Section 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003, is not maintainable before the Consumer Forum.

In view of the observation made above, we hold that:

(i) ******

(ii) A ''complaint'' against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.

(iii) The Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of ''consumer'' under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to ''unfair trade practice'' or a ''restrictive trade practice adopted by the service provider'', or ''if the consumer suffers from deficiency in service'', or ''hazardous service'', or ''the service provider has charged a price in excess of the price fixed by or under any law."

Section 126 of the Electricity Act, 2003, to the extent it is relevant, reads as under:

"Assessment - (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub -section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment, of the electricity charges payable by such person".

Explanation - for the purposes of this section -

(a).....

(b) ''unauthorised use of electricity'' means the usage of electricity -

(i) by any artificial means; or

(ii) by a means not authorized by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorized'' or

(v) for the premises or areas other than those for which the supply of electricity was authorized."

DURING the course of inspection by the officials of the petitioner company, the seals of the lighting meter were found missing, meaning thereby, that electricity was being used through tampered meter. Such a use of electricity constitutes unauthorized use of electricity, within the meaning of Section 126 of the Electricity Act. Consequently, in terms of the decision of the Hon''ble Apex Court in Anis Ahmed (supra), the District Forum did not have jurisdiction to entertain the complaint.

SECTION 135 of the Electricity Act, to the extent it is relevant, reads as under: "(a) ...

(b)

(c)

(d) uses electricity through a tampered meter; or"

Removal of the meter seals without any explanation for such removal leads to an inference that the meter had been tampered with. Such tampering also constitutes theft as defined in Section 135 of the Electricity Act. Considering the law declared by the Hon''ble Supreme Court in Anis Ahmed (supra), the Consumer Forum did not have any jurisdiction in a case of theft of electricity. It is not open to the Consumer Forum to go into the question as to whether there was actually a theft or not and whether the electricity was being unauthorizedly used or not. Once such allegations are made by the service provider, the Consumer Forum must necessarily keep its hands off the complaint and should not enter into the arena of making enquiry into the alleged theft and unauthorized use of electricity. It would be open only to the concerned Court to inquire into such allegations and take an appropriate view on them.

For the reasons stated hereinabove, we hold that the District Forum did not have jurisdiction to entertain the complaint. The revision petition is therefore, allowed, impugned orders are set aside and the complaint is consequently dismissed with no order as to costs.