REVISION PETITION NOS. 51 & 52 OF 2009 Dt. of filing : 13/04/2009

@ MISC. APPL. NOS. 669 & 670 OF 2009 Dt. of order : 18/11/2009

IN CONSUMER COMPLAINT NOS. 238 & 272 OF 2008

DISTRICT CONSUMER FORUM : MUMBAI SUBURBAN

Reliance Energy Ltd.

O/at Reliance Energy Centre

Electricity House, Santacruz (E),

Mumbai. … Petitioner/org. O.P.

V/s.

Mr.Abdul Munaf Shaikh

At shop No.14, Roopwali Chawl,

Gulmohar Cross Road, Opp. Wajeda

House, Andheri (W), Mumbai – 400 058. … Respondent/org. complainant



Quorum : Shri S.R. Khanzode, Hon’ble Presiding Judicial Member

Mrs.S.P. Lale, Hon’ble Member

Present : Mr.P.R. Hegde, Advocate for the petitioner.

Mr.U.B. Wavikar, Advocate for the respondent.

-: ORDER :-

Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member

Both Revision Petitions are disposed of by this common order since they involved identical question of law. Parties in both the Revision Petitions are one and same though facts are little in variance.

Original complainant-opponent in both the Revision Petitions Mr.Abdul Munaf Shaikh has taken energy connection from Revisionist/original O.P. to his shop No.14 for commercial purpose bearing electric meter No.7740789. He also resides on the first floor of the said premises. He has taken two other meters bearing Nos.6625332 and 5660544 respectively bearing consumer account Nos.102250358 and 150363073. Consumer account number for the meter taken for commercial purpose bearing No.7740789, supra has consumer account No.150140152. Besides that opponent has one more meter standing in the name of his wife Sofiya Praveen A.M. Shaikh bearing consumer account No.102250358 and for the arrears of energy charges amounting to Rs.1,21,474.85, the energy supply to the said meter was discontinued on 27/09/2006 and the dues over the same were transferred to opponent’s account No.150140152.

In consumer complaint No.238/2008 (relating to Revision Petition No.51/2009), it is alleged by the opponent/org. complainant that at his shop No.14, there is an energy connection referring to consumer account No.150140152 which he had taken in the month of November 2005. He further alleged that he had paid all the energy consumption bills in respect of said connection. In spite of this on 24/04/2008, in his absence, officials of the Revisionist visited his shop and issued a notice for electric supply disconnection after one week if the dues of Rs.1,21,474.85 were not cleared. He further alleged that those dues pertained to consumer account No.102250358 of meter No.6625332. Therefore, branding this action as illegal, he filed above referred consumer complaint inter alia praying relief to declare the notice for disconnection of supply dated 24/04/2008, supra, is void and illegal and also claimed compensation of Rs.50,000/- for mental torture and agony. He further claimed interim relief not to disconnect electric supply in his shop premises in respect of consumer account No.150140152 and meter No.6625332.

In consumer complaint No.272/2008 (pertains to Revision Petition No.52/2009), opponent/org. complainant has challenged the assessment order dated 07/05/2008 covering period 11/10/2006 to 07/05/2008 in respect of residential electric meter No.5660544 relating to consumer account No.1530363073 and whereby a demand for Rs.3,44,523.78 towards energy consumption charges and or its arrears was made and claimed relief of declaration that assessment order dated 07/05/2008 was void and illegal and seeking further directions against Revisionist to withdraw allegations mentioned in the notice intimation card dated 07/05/2008 (it may mentioned as revealed from the record that this assessment order pertains to civil liability fixed for composition of offence for theft of electricity).

During pendency of both above referred complaints, on 07/05/2008 premises of the opponent/org. complainant were raided and it was found that theft of electricity by directly taking energy supply from the line of the revisionist supplying energy to consumer account No.150140152 meter No.7740789 and consumer account No.1530363073 pertaining to meter No.5660544. Consequent to it, civil liability was worked out to compound the offence of theft under section 135 of Indian Electricity Act, 2003. Revisionist also raised a demand of Rs.9,08,918.96 as per its letter to the opponent dated 08/05/2008 pertaining to account No.150140152 and meter No.7740789. It also fixed civil liability for composition of the offence of theft in respect of account No.150363073 and meter No.5660544 as per letter even dated addressed to the opponent and claimed Rs.3,44,523.78 in case he wanted to compound the offence per criminal liability (Exhibit-E1 & E2 from the record of Revision Petition No.51/2009). The energy supply thereafter was discontinued. Consequent to it, in both these consumer complaints, opponent made application for restoration of electric supply by way of ad-interim relief.

In consumer complaint No.238/2008 upholding the contention of the opponent, impugned order dated 06/03/2009 was passed directing the revisionist to restore the energy connection on receipt of payment of Rs.56,627/-. In consumer complaint No.272/2008 holding that out of total demand of Rs.3,44,523/- as composition charges of civil liability fixed which was referred in the application for restoration of electric supply, it is alleged by the opponent that the parties agreed to settle the claim on payment of Rs.1,70,000/-. Referring to this amount in the impugned order, Forum below observed that total outstanding bill of Rs.1,95,981/- complainant has paid Rs.1,70,000/- and thus, has paid more than 1/3 amount of the outstanding bill amount and hence, disconnection was not justified and directed to restore the energy supply. Feeling aggrieved by both these orders, org. O.P. preferred these Revision Petitions.

We heard Mr.P.R. Hegde, Advocate for the petitioner/org. O.P. and Mr.U.B. Wavikar, Advocate for the respondent/org. complainant.

As earlier pointed out and which emerged as undisputed facts, the energy supply was discontinued consequent to the raid conducted on the premises of the opponent/org. complainant on 07/05/2008 and whereby opponent was found to have committed the theft of electricity. Consequent to it, to compound offence of theft, civil liability was fixed as per the Statutory provisions and the opponent was intimated accordingly as per letter dated 08/05/2008, in respect of both the accounts, supra (Exhibit-E1&E2). Thus, it could be seen that disconnection of the electric supply thereof was a result of this subsequent event which has nothing to do with the factual arena of both the consumer complaints. Consequently, when the interim applications were filed in both the consumer complaints to get the energy supply restored to respective energy meters, Forum below committed serious error in not taking into consideration the objections raised by the revisionist to these applications, which particularly referred to the subsequent event of theft and discontinuance of electric supply accordingly. Thus, the Forum below committed error of law and on this ground alone both the impugned orders will not sustain in the eyes of law. Further more, as far as relief of declarations claimed in the original consumer complaints, even if for the sake of argument it is assumed that they fall within the ambit of consumer complaints, still the reliefs claimed by way of interim applications on which the impugned orders are passed are certainly not in conformity with the original consumer complaints and as such they cannot be granted.

It may be pointed out that jurisdiction of the Consumer Fora relates to a dispute of consumer within the meaning of the Consumer Protection Act, 1986 (in short ‘the Act’) with the service provider relating to either deficiency in service or unfair trade practice within the meaning of the Act. Reliefs which could be granted by the Consumer Fora is further controlled and governed by Section 14 of the Act. [Useful reference can be made to decision of National Commission in the matter of Kongara Ananth Ram V/s. Telecom District Engineer, 1986-94 consumer 274 (NCSC)]. In such background, whether relief of declaration claimed in the above referred complaints could be granted or not needs to be considered. However, we do not make any further comments, since that is not direct issue in these Revision Petitions since the factual matrix on the basis of which the interim reliefs are claimed for restoration of energy supply, differs from the facts of both the consumer complaints, supra.

It may be further pointed out that decision of the Delhi State Consumer Disputes Redressal Commission, New Delhi in the matter of BSES (Y) Power Ltd. V/s. Neeraj Kumar (I) 2007 CPJ 1, is no more good law in view of judgement of the National Commission in the matter of Accounts Officer, Jharkhand State Electricity Board and Asstt. Electricity Engineer, Jharkhand State Electricity Board V/s. Anwar Ali, Proprietor, M/s.Pinki Plastic Industrial Area AND Executive Engineer, Gujarat Electericity Board andDeputy Engineer, Gujarat Electricity Board V/s. Madresa Abriyah Talimul Muslin Min, Gujarat, MANU/CF/0044/2008; II (2008) CPJ 284 (NC). The decision of the National Commission in the above referred matter came as result of referring back the issue to the National Commission by the Apex Court as per directions issued in Civil Appeal No.4734/2007 dated 09/10/2007. The National Commission has opined in the said decision that Consumer Fora have no jurisdiction to interfere with initiation of criminal proceedings or the final order passed by any Special Court constituted under Section 153 or civil liability under Section 154 of the Electricity Act. It may be made clear at this stage itself that the consumer complaints seeking particular relief which fall within the ambit of the Act, will not encroach upon the trial to be held for the theft as per the provisions of the Electricity Act, 2003 i.e. relating to cognizance and trial of the offence of theft for illegal abstraction of electrical energy. If any civil liability and composition charges as per the notice dated 08/05/2008 were intimated to the opponent/org. complainant and if he made certain payments towards it, then it relates to payment made towards composition charges for the offence of theft. Therefore, this issue and any payment made under such circumstances, since, relates with the initiation of criminal proceeding and in respect of civil liability determined under Section 154 of the Electricity Act, further action consequent to such events of theft of electricity including discontinuance of energy supply will not be a consumer dispute.

It is also argued that in view of provision relating to Special Court and of arbitration under the Electricity Act, 2003, and in view of Apex Court’s decision in the matter of General Manager, Telecom V/s. M. Krishanan & Anr. [III (2009) CPJ 71 (SC)] jurisdiction of Consumer Fora is taken away. This decision is per-incurium since it ignored earlier larger bench decision of the Apex Court in the matter of Kishore Lal V/s. Chairman, Employees State Insurance Corporation [2007 CTJ 557 (Supreme Court) (CP)] and Dhulabai etc. V/s. State of Madhya Pradesh and another (AIR 1969 SC 78). Thus, both on differing facts and law, we find this submission devoid of any substance.

Forum below did not consider all the relevant aspects nay the impugned orders shows that these aspects were not at all considered and the impugned orders are passed on extraneous circumstances. Both these orders, therefore, are arbitrary and per se illegal. We therefore cannot stand with them. We hold accordingly and pass the following order :-

-: ORDER :-

1. Revision Petition Nos.51/2009 and 52/2009 are allowed and impugned orders dated 06/03/2009 passed which are the subject matter of these Revision Petitions, are set aside. In the result, interim relief applications for restoration made in both the consumer complaints relating to these Revision Petitions stand dismissed.

2. Opponent/original complainant in both these Revision Petitions to bear his own cost and pay Rs.5,000/- as cost in each one of the Revision Petition to the revisionist.

3. Misc. Appl. Nos.669 & 670/2009 stand disposed of as infructuous.

4. Copies of the order be furnished to the parties free of costs.