ELECTRICITY MATTERS-BACKGROUND &
LAW
BACKGROUND
Two cases were remanded back to
National commission by the SC holding that theft cases cannot be heard by
consumer courts but whether electricity other billing matters can be heard by
the consumer court or not ,it was left to the National commission decide
.
In
The matter of Accounts Officer, Jharkhand ... vs Anwar Ali on 9 October,
2007 allegation in writing were made by a complainant
that the service provider has charged for the services, a price in excess of
the price fixed under the law for the time being in force
It
was urged by the electricity board that under the Electricity Act, 2003
the jurisdiction of the civil court is excluded. In this connection reliance
was placed on Section 145 of the said 2003 Act under which the jurisdiction of
the civil court to entertain suits in respect of matters falling under Section
126 is expressly barred. These are matters of assessment for unauthorized use
of electricity. It is stated that the 2003 Act is a complete Code by itself
and, therefore, in matters of assessment of electricity bills the Consumer
Forum should have directed the respondent to move before the competent
authority under the Electricity Act, 2003 read with rules framed thereunder
either expressly or by incorporation.
The
above position was further noted in Haryana State Electricity
Board vs Mam Chand on 28 April, 2006 case also [ Author: Kapadia Bench:
A Pasayat, S Kapadia CASE NO.: Appeal (civil) 2325 of
2006]
Incidendly
those referred cases were found theft cases or misuse of electricity
cases by the National Commission and hence were found not maintainable as
per the Supreme court decision in these matters .
The question remained unattended and
unaddressed as to whether billing matters can be maintained before these
forums constituted under consumer protection act.
This judgement is now final in
all the respects and it is expected from consumer forums to exercise
their jurisdiction the manner stipulated in the present order.
U.P. POWER CORPORATION LTD.& OTHERS
V/S ANIS AHMAD & OTHERS
A long pending issue before the Hon’ble
Supreme court is finally settled now with a landmark judgement in the
matter of U.P. Power Corporation Ltd.& others V/s Anis Ahmad & others
along with eight more cases of similar nature.
The issues before the court were as to-
·
Whether complaints filed by the
consumers against Electricity Boards are maintainable before the
consumer courts constituted under Consumer Protection Act
·
Whether the consumer forums have
the jurisdiction to entertain a complaint filed by a consumer or a person
against assessment made for unauthorized use of electricity under section
126 of the Electricity act 2003 or action taken by billing with penal rates
under sec. 135 to 140 of the Electricity act 2003.
National Commission Held -
On the above two issues ,National
Commission in majority judgement dt 10th April
2008 had held
!) that
consumer forums have the jurisdiction to deal with the cases of deficiency in
services against the electricity board it being an additional remedy provided
to the consumers under Consumer Protection Act.
!!) that
assessment for unauthorized use of electricity under section 126 of
electricity act or action taken by billing with penal rates under sec.
135 to 140 can be challenged before both the courts,appallant court established
by electricicity board under sec. 127 of electricity act as well as consumer protection
act for deficiency in services
However
one member in minority decision did not agree to the jurisdiction of consumer
courts against action taken under sec 126,135 to 140 of electricity act.
Supreme Court Held -
The appeal filed by the U.P.Power
Corporation Ltd &Others had been heard in detail along with eight more
cases of the similar nature by the Supreme court .Supreme court in its final
verdict held as hereunder;
1. In case of any inconsistency between the
electricity act 2003 and the consumer protection act 1986,the provisions of
consumer protection act will prevail with regard to the matters of services
defined under sec. 2(1)(o) or complaint under sec. 2(1)(c) of the consumer
protection act 1986.
2. A complaint against the assessment made for
unauthorized use of electricity under section 126 of electricity act or
action taken by billing with penal rates under sec. 135 to 140 cannot be
challenged before the consumer courts established under consumer protection act
3. The electricity act 2003 and consumer protection
act runs parallel for giving redressal to consumers who fall within the
definition of consumer and complainant under the consumer protection act under
sections 2(1 )(c)&(d) of the act .It has been further explained here itself
that consumer’s dispute under this clause shall
be limited to the “disputes related to unfair trade practices”,or “restricted
trade practices” or “if consumer suffers from deficiency in services” or
“hazardous services” or ‘service provider has charged a
price in excess of the price fixed by or under any law’
WHEN CP ACT CANNOT PREVAIL OVER
ELECTRICITY ACT /DIFFERENCE BETWEEN THE TWO ACTS
!) Commercial
purpose barred
In view of the above order,we need to
see under what circumstances consumer protection act prevails over the
electricity act as said above at para –
Consumer as defined under section 2(15)
of the electricity act includes a person who is supplied electricity for
his own use or for a licencee’ work for the time being connected to his
premises –meaning thereby licencee is also a consumer under the circumstances
when supply is made for the time being for licencee’s work In contrary to
the definition under electricity act , consumer protection act clearly bars
activity for commercial purpose .Till now some cases had come up before
various courts with the argument that industry gets electricity for their own
use and does not further sell off electricity for profit and loss ,hence should
be considered a consumer under CP Act .But now by this order SC has made
ample clear that industries cannot be considered working for self livelihood
.In view of this, complaints filed in the present case by ANIS Ahmad,Rakhi
Ghosh,Prithvi Pal Singh,Zulfikar Shahzadey alam.Atul Kumar Gupta –all those who
had connections for industrial/commercial purpose do not fall under the
definition of consumer as defined under consumer protection act.
!!)Theft cases barred
Complaints against the
assessment made under section 126 of electricity act or action taken under sec
135 to 140 are clearly barred under all circumstances but if service provider
has charged a price in excess of the price fixed by any law is opened to
challenge before the consumer court meaning thereby consumer can file a
complaint before the forum for excess billing if he has not been booked for
unauthorized use of electricity or theft of electricity.
This is a very important judgement ,very
clear with all the minute details of the complications setting all the
controversies at rest in regard to the jurisdiction of consumer courts about
electricity matters.It has also been made clear that none of the provisons of
the elcticity act bar the jurisdiction of consumer forums,instead they confirm
that additional remedy under CP Act can be exercised .Lets read a few sections
of electricity act dealing with the subject-
FAVOURABLE PROVISIONS
ü Sec 175 of Electricity Act
and section 3 of CP Act - both these acts are additional
remedy and not in derogation to other laws.
ü Sec-173,174 &175 of the act have
overriding effect qua provisions of any other law except that of the provisions
of CP Act 1986,The Automic Energy Act1962 And Railways Act 1989
ü Sec 42(8) this provision of the
the Electricity Act provides that the remedies provided under these
provisions are without prejudice to the rights of consumers which they may have
apart from these provisions
ü Sec 145 bars the jurisdiction of civil
courts and other authority but not the Consumer forums constituted under
quasi judicial system
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