VEENA DEVI KATARUKA vs National Insurance Company Ltd

I have carefully perused the opinion rendered by the Hon''ble President and learned Member Mrs. Rajyalakshmi Rao. While I am in general agreement with most of the observations made and conclusion reached therein but I am not persuaded to agree to the view that there exists any conflict/inconsistency between the provisions of Consumer Protection Act, 1986 and the Electricity Act, 2003 and, therefore, by application of the provisions of Sec. 173, 174 and 175 of the Electricity Act read with Section 3 of the Consumer Protection Act, the Consumer Fora constituted under the Consumer Protection Act would have jurisdiction over the matters relating to assessment of charges/duty for unauthorized use of electricity, etc. provided under Sec. 126 and 127 of Part XII of the Electricity Act, 2003. Therefore, the need to give a separate opinion.

THE important question posed by the Hon''ble Supreme Court for consideration of the Commission has two limbs: (i) "whether a person who is aggrieved in regard to the assessment of charges for unauthorized use of electricity as provided under Section 126 of the Electricity Act can be said to be ''consumer'' within the meaning of Sec. 2 (o) of the Consumer Protection Act, 1986" and (ii) "whether having regard to the scheme and provisions of the Electricity Act, 2003, matters relating to the assessment of duty for unauthorized usage of electricity, tampering of meters, calibration of electric current falling under Sec. 126 of the Electricity Act, are the matters over which the Consumer Fora can have jurisdiction". Answer to the above question would require in-depth consideration of not only the relevant provisions of two Acts but the scheme and legislative intent behind enacting those enactments. There cannot be denial of the position that the Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large number of consumers from exploitation at the hands of manufacturers and sellers of goods and service providers. It is equally true that the provisions of Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, its provisions are entitled to liberal construction. On the other hand, the Electricity Act is also a comprehensive piece of legislation and a complete code in regard to the matters concerning the supply of electricity and various allied matters. The said Act was brought on the statute book much after the enactment of the Consumer Protection Act which was in existence ever since 1986.

Coming to the first limb of the question as to "whether a person who is aggrieved in regard to the assessment of charges for unauthorized use of electricity as provided under Section 126 of the Electricity Act can be termed as ''consumer'' within the meaning of Sec. 2 (1) (o) of the Consumer Protection Act. To clarify any doubt, we may at once notice that the term ''consumer'' is to be considered keeping in view the provisions of the above referred two Acts and not as it is understood in common parlance. Had it been so, then perhaps there was no need for the Apex Court to remit the matter for our consideration because it cannot be disputed that a user or consumer of electricity is indeed a consumer as is understood in common parlance. The term ''consumer'' is defined in Sec. 2 (1) (d) of the Consumer Protection Act, 1986 and also in Sec. 2 (15) of the Electricity Act. Sec. 2 (1) (d) of the Consumer Protection Act, 1986 reads as under: "consumer means a 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 or avails of 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 or avails of 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 but does not include a person who avails of such services for any commercial purpose. Explanation-For the purpose of this clause, ''commercial purpose'' does not include use by a person of goods brought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. "

Section 2 (15) of Electricity Act, 2003 reads as under: "consumer means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government of such other person, as the case may be. "

A comparison of the two definitions would apparently show that these are differently worded and have to be so because each of the definition is meant to cater the enactment for the purpose of which it has been enacted. However important question is: whether there exists any conflict/inconsistency between the two definitions. In my opinion answer is in negative because the definition of ''consumer'' appearing in the Consumer Protection Act is of much wider application inasmuch as it takes into its fold not only the consumers of electricity alone but so many other categories of consumers of goods and services while the definition appearing under the Electricity Act would be restricted to its application for the purpose of Electricity Act only. ''consumer'' as defined under the Electricity Act will certainly be a consumer within the meaning of Sec. 2 (1) (d) of the Consumer Protection Act because he avails the services from the electricity supplier/licensee for consideration. Section 2 (o) of the Consumer Protection Act defines ''service'' and specifically speaks about supply of electric energy as one of the services covered under the clause and Section 2 (g) defines ''deficiency'' as any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force by a person in pursuance of any relation to any service. Therefore, it is logical to conclude that there is no ouster of jurisdiction of the Fora constituted under the Consumer Protection Act in matters concerning the supply of electricity. However, we have to see when a complainant can invoke the jurisdiction of such Fora by filing a complaint. A complaint under the Consumer Protection Act can only be filed in regard to supply of electric energy either on the allegation that there is any deficiency or defect in the supply of electric energy and/or any unfair trade practice has been adopted by the supplier of electricity in supplying the electric energy. Sec. 2 (C) of Consumer Protection Act deals with definition of complaint which pre-supposes some kind of deficiency or defect or such similar wrong or blameworthy act on the part of the service provider giving rise to a cause of action to such a complainant. This would clearly mean that the provisions of Consumer Protection Act can be utilized by a complainant to enforce his rights in regard to a claim for deficiency in service on the part of the service provider.

TO take the above proposition to its logical conclusion, we must further examine if a consumer of electricity who has in fact no grievance either in regard to any defect or deficiency in supply of electricity but is otherwise aggrieved by the action of the electricity supplier in resorting to the proceedings under Section 126 of the Electricity Act for assessment of charges for unauthorized user of electricity can be allowed to file a complaint in respect of his aggrievement. Answer is a plain ''no'' because such a complainant does not fulfil the essential requirements of either being a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act inasmuch as he is not complaining about any defect or deficiency in service on the part of the service supplier of electricity. Whether the provisions contained in Section 126 of the Electricity Act are in anyway inconsistent with the provisions of the Consumer Protection Act and for that reason by application of Sec. 173 and 174 of the Electricity Act and Sec. 3 of the Consumer Protection Act, Consumer Fora constituted under the Consumer Protection Act would have jurisdiction over the matters of assessment of charges/duty for unauthorized user, is the next question, we must address. Overriding provisions contained in Sec. 173 and 174 of the Electricity Act undoubtedly recognizes the supremacy of the Consumer Protection Act, 1986, Atomic Energy Act, 1962 and the Railways Act, 1989 only and so far as the provisions of Electricity Act or any rule or regulation made thereunder or any instrument having effect by virtue of Electricity Act are inconsistent with the provisions of above named three Acts. Section 175 of the Electricity Act states that provisions of the said Acts are in addition to and not in derogation of any other law for the time being in force. It may be observed at the outset that incorporation of these provisions in the Electricity Act does not necessarily pre-supposes the existence any conflict/inconsistency amongst the provisions of Electricity Act and the Consumer Protection Act, etc. To find out whether there is any real conflict or inconsistency between the provisions of Consumer Protection Act and the Electricity Act, effort in the first instance should be made to harmonize the provisions of two Acts and to see if by doing so the provisions of the two Acts can be given their full effect. The provisions of one Act can be said to be inconsistent with the provisions of another Act only if they are in conflict with each other and cannot be harmonized at all. The test of inconsistency is not that the two Acts say different things but that that the effect cannot be given to the provisions of one Act without committing a violation or breach of other Act. The legislative intent and purpose behind the enacting the provisions of the respective Acts must also to be borne in mind whenever we are called upon to examine the provisions of the two Acts in order to find out whether there exists any conflict or inconsistency between the provisions of the two Acts.

IN this case we are concerned with the provisions contained in Sec. 126 and 127 appearing in Part XII of the Electricity Act and to find out if these are indeed inconsistent with any provision (s) of the Consumer Protection Act. For this we must make a somewhat detailed examination of these provisions of the Electricity Act. Part XII of the Electricity Act pertains to "investigation and Enforcement". Section 126 lays down procedure for assessment of the charges/penalty for unauthorized use of electricity after an inspection of any place or premises having the equipments, gadgets, machines, devices found connected or used by any person. The assessment is to be made by an Assessing Officer to be appointed by the State Government in terms of explanation appearing in the section. The Assessing Officer so appointed is required to follow the procedure laid down in the said Section first by making the provisional assessment to the best of his judgment and to serve the order of the provisional assessment on the concerned person who is suspected/accused of having made unauthorized use of electricity. After service of the order of provisional assessment, it is for the user of electricity to accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment or to file his objections against the provisional assessment before the Assessing Officer. In case any such objections are filed against provisional assessment, the Assessing Officer is obliged to afford reasonable opportunity of hearing to such person/objector before passing a final order of assessment. Sub-section (5) of Sec. 126 lays down the period for which such assessment for unauthorized use of electricity can be made. Sub-section (6) provides that assessment under this section shall be made at a rate equal to twice the tarrif applicable for the relevant category of services specified in Sub-section (5 ). Explanation appearing below this section gives the definition of ''assessing Officer'' and what is meant by ''unauthorized use of electricity'': (a) ''assessing Officer'' means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government.

(b) Unauthorized 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; (v) for the premises or areas other than those for which the supply of electricity was authorized. " it may be noticed that Clauses (iii) through a tampered meter and (iv) for the purpose other than for which the usage of electricity was authorized, appearing in the explanation are para materia to Clauses (d) and (e) of Sub-section (1) of Section 135 of the Electricity Act relating to theft of electricity. However, legislature in its wisdom has kept these provisions under two categories for obvious reasons. Not only that Section 126 of the Electricity Act embodies principles of natural justice but by virtue of Sec. 127 an Appellate Forum has been provided in the form of Appellate Authority to challenge the orders passed by the Assessing Officer. This is subject to the condition that appeal so preferred by an aggrieved person shall only be entertained when an amount equal to half the assessed amount has been deposited by the aggrieved person. Sub-section (3) of Section 127 again provides that the Appellate Authority shall dispose of the appeal after hearing the parties. Sub-section (4) makes the order of the Appellate Authority final in the matter. It is pertinent to note that not only that order passed by the Appellate Authority has been made final but by virtue of Section 145, the jurisdiction of the Civil Court has been excluded to entertain any suit or proceedings in respect of any matter which an Assessing Officer referred to in Section 126 or an Appellate Authority referred to in Section 127 has passed. It clearly brings out the intention of the Legislature that the orders passed under Sections 126 and 127 are not to be interfered even by a Civil Court. That being so, can it be said that the jurisdiction of Consumer Fora is not barred to entertain a complaint in respect of these matters. The answer is again in the negative.

IT may also be noticed that the provisions contained in Section 126 are fiscal in nature and a fiscal provision is required to be construed strictly. What must have been the legislative intent to enact the provision like Sec. 126 is not far to seek. It is a matter of common knowledge that various Electricity Boards and electricity supply undertakings were incurring heavy losses over the years. One major cause which could account for such huge losses was theft and unauthorized use of electricity by certain unscrupulous persons. It appears that to curb the said vices of theft and unauthorized use of electricity, the provisions like 126, 135, etc. have been enacted and special Courts and special authorities like the Assessing Officer under Sec. 126 and special Courts under Sec. 153 have been set up to deal with such matters. It must be with the pious hope that suppliers of electricity are not deprived of to recoup the losses they suffer on account of theft and unauthorized user of electricity and that it should prove as deterrent to the prospective thieves and unauthorized user of electricity. A careful study of the above provision of the Electricity Act and that of the Consumer Protection Act would not show any conflict or inconsistency in the provisions of the two Acts. The provisions of Sec. 126 or 127 do not in any way offend the scheme and provisions of the Consumer Protection Act. In our view provisions of both the Acts can be given their full meaning and effect without committing any breach of the other Act. Once it is found that provisions of Electricity Act are not inconsistent with the provisions of Consumer Protection Act, there appears to be no reason why the provisions of former Act should not be allowed to operate in full.

Yet another reason why Consumer Fora constituted under the Consumer Protection Act cannot entertain any complaint in regard to the matters of assessment is that such Fora can neither replace the validly constituted statutory Assessing Officer or the Appellate Authority nor can it sit over in appeal against such duly constituted authorities. It would not be out of place to mention that assumption of jurisdiction by the Consumer Fora in matters relating to assessment would be meaningless because Consumer Fora would not be able to provide the requisite relief in regard to these matters, strictly going by the reliefs which a Consumer Fora can grant within the parameters of Sec. 14 of the Consumer Protection Act. Sec. 14 of the Consumer Protection Act does not envisage granting any such relief to a consumer like quashing the order passed by the Assessing Officer or by the Appellate Authority in appeal. Vesting jurisdiction in Consumer Fora in regard to matters of assessment of charges/duty for unauthorized use of electricity would amount to scuttling the valid procedure for assessment of charge/duty by a duly constituted authority. Consumer Fora must not usurp the jurisdiction which is not legally vested in them.

IN the result I hold as under: (i) The provisions contained in Sections 126 and 127 of Part XII of the Electricity Act, 2003 are not inconsistent with the provisions of Consumer Protection Act, 1986 and consequently there is no need to have resort to the provisions of Sections 173 and 174 of the Electricity Act. The provisions of the Consumer Protection Act and Electricity Act can be given their full meaning and effect on the ground. (ii) Consumer Fora constituted under the Consumer Protection Act would have jurisdiction to entertain only the complaints filed by a consumer of electricity alleging any defect or deficiency in the supply of electricity or alleging adoption of any unfair trade practice by the supplier of electricity. (iii) The Consumer Fora established under the Consumer Protection Act have no jurisdiction over the matter relating to the assessment of charges for unauthorized use of electricity, tampering of meters, etc. as also over the matters which fall under the domain of special Courts constituted under the Electricity Act, 2003. Ordered accordingly.