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.

On the above two issues ,National Commission in majority judgement dt 10^th 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.Further, on the second issue, it was held 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.

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’

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 -1.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.

  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-

Sec 175 of Electricity Act    and section 3 of CP Act -  both these acts  are additional remedy and not in derogation to other laws.

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

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

Sec 45 bars the jurisdiction of civil courts and other authority but  not the Consumer forums constituted under quasi judicial system

It is pertinent to mention here that before this order pronounced by two judges bench comprising justice G.S. Singhavi And Justice Sudhanshu Jyoti Mukhopadhyaya,number of times matters related to electricity cases had gone to the hon’ble supreme court on both the issues-whether electicity billing matters can be maintained before the consumer courts and whether theft matters can be maintained before the consumer courts.

Two such 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 assessmentfor 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 wasfurther 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.

 

Dr Prem lata

Member CDRF-Delhi

www.consumerawakening.com

 

 

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