The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.348 of 2024 The Executive Engineer, Electrical Division (TPNODL), Bhadrak & Ors. …. Petitioner Mr. Lalit Kumar Maharana, Adv. -versus-
Legal Reasoning
Sudam Charan Khanda & Anr. …. Opposite Parties Mr. Bibhu Prasad Mohanty, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI
Decision
Order No. ORDER 05.03.2024 03. 1. This matter is taken up through hybrid arrangement. 2. In filing this Writ Petition, the Petitioner has challenged the order dated 31.10.2023 passed by the learned District Consumer Disputes Redressal Commission, Bhadrak in C.C. Case No.140 of 2023. Apart from this challenge the Petitioner has also sought for a direction from this Court for quashing the entire proceeding pertaining to C.C. Case No.140 of 2023. 3. The factual scenario of the case in brevity remains:- (i) Despite being a consumer of electricity the Opposite Party No.1 was unauthorizedly using electricity by tampering the meter. He was provisionally assessed under the Electricity Act, 2003 read with OERC (Condition of Supply) Code, 2019. Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 07-Mar-2024 18:25:23 (ii) Instead of availing remedies under the Act and Code, the Consumer approached the Consumer Forum. There is a settled principle of law relating to entertainability of the Page 1 of 4 // 2 // consumer complaint involving unauthorized use of electricity. The Consumer Forum is precluded from considering such kind of complaint. 4. Learned counsel for the Petitioner challenges the impugned order on the ground of lack of jurisdiction and maintainability of the consumer complaint arising out of the proceeding involving unauthorized use of electricity under the Electricity Act, 2003. He further submits that the learned Consumer Forum and the learned Permanent Lok Adalat are precluded from entertaining such type of disputes. 5. Learned counsel for the Petitioner further brings to the notice of this Court the judgment of the Supreme Court passed in U.P. Power Corporation Ltd. & Ors vs Anis Ahmad 1, wherein the apex Court has pushed two questions involving similar issue, which are: (a) whether complaints filed by the respondents before the Consumer Forum constituted under the Consumer Protection Act, 1986 were maintainable or not? (b) whether the Consumer Forum has jurisdiction to entertain a complaint filed by a consumer or any person against the assessment made under Section 126 of the Electricity Act, 2003 or action taken under Sections 135 to 140 of the Electricity Act, 2003. Answering the said questions, the apex Court has summarized as follows: Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 07-Mar-2024 18:25:23 (i) In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will 1 AIR 2013 SCC 2766 Page 2 of 4 // 3 // not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of “service” as defined under Section 2(1)(o) or “complaint”as defined under Section 2(1)(c) of the Consumer Protection Act, 1986. (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”. 6. The direction in paragraph no.60 of the above noted judgment is extracted herein below:- “60. In view of the observation made above, we hold that 60.1. In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of the Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute will regard to the matters which do not come within the meaning of “service” as defined under Section 2(1)(o) or “complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986. 60.2. A “complaint” against the assessment made by the 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. 60.3 The Electricity Act, 2003 and the Consumer Protection Act, 1986 run parallel for giving redressal to any person, who Page 3 of 4 Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 07-Mar-2024 18:25:23 // 4 // 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." 7. In such view of the matter, this Court is of the view that the Consumer Forum has no jurisdiction to decide such type of petitions. Accordingly, this Court sets aside the order dated 31.10.2023 passed by the learned District Consumer disputes Redressal Commission, Bhadrak in C.C. Case no.140 of 2023/Annexure-5. It is further clarified that if the Opposite Party No.1 so advised, he may approach the appropriate forum for redressal of his grievance. 8. This Writ Petition is, accordingly, disposed of. Ayaskanta Judge (Dr. S.K. Panigrahi) Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 07-Mar-2024 18:25:23 Page 4 of 4