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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5466  OF 2012 (arising out of SLP(C)No.35906  of 2011)

U.P. POWER CORPORATION LTD. & ORS.          … APPELLANTS

Versus

ANIS AHMAD       … RESPONDENT

With

C.A.No. 5467­5468 of 2012 (@ SLP(C) No. 18284­18285 of  2008)

C.A.No. 5469  of 2012 (@ SLP(C) No.14306 of 2009)

C.A.No.  5470 of 2012 (@ SLP(C) No.33557 of 2011)

C.A.No. 5471 of 2012 ( @ SLP(C) No.33558 of 2011)

C.A.No. 5472 of 2012 ( @ SLP(C) No.33559 of 2011)

C.A.No. 5473 of 2012 ( @ SLP(C) No.33560 of 2011)

C.A.No.  5474 of 2012( @ SLP(C) No.33561 of 2011)

C.A.No. 5475  of 2012 ( @ SLP(C) No.33562 of 2011)

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The questions involved in these appeals are; a) whether  

complaints filed by the respondents before the Consumer  

Forum constituted under the Consumer Protection Act, 1986  

were maintainable and; b) whether the Consumer Forum has

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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.

2. The National Consumers Disputes Redressal Commission,  

New Delhi (hereinafter referred to as the 'National  

Commission') by impugned majority judgment (of President  

and one Member) dated 10th April, 2008 observed and held as  

follows:

“x x x x x x x x  For the reasons stated below, in our  view, the aforesaid questions can be  answered as under:

(i)In case of final assessment order  passed under Section 126 of the  Electricity Act, if a consumer is  aggrieved, he can file complaint  under the Consumer Protection Act.  However, it is his option to file  complaint under the Consumer  Protection Act or to file Appeal  under Section 127 of the Electricity  Act.

(ii)Further, against the final order  passed by the Appellant Authority  under Section 127 of the Electricity  Act, no complaint can be entertained  by the Consumer Fora.

x x x x x x x x x x x x x x x x x x  x x x x x x x x x x x

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In view of the aforesaid settled  law, the Consumer fora would have  jurisdiction to entertain complaint  against the final order passed by the  assessing officer under Section 126 of  the Electricity Act.   Further, the  jurisdiction of the consumer fora is not  barred by any provisions of the  Electricity Act but the same is expressly  saved under Section 173 read with  Sections 174 and 175 of the Electricity  Act.  

V. In the result, we hold as under:

(i)Section 3 of the Consumer Protection Act  and Section 175 of the Electricity Act,  provide that they are in addition and not in  derogation of rights under any other law for  the time being in force.   Therefore, the  rights of the consumers under the Consumer  Protection Act are not affected by the  Electricity Act.

(ii)A bare reading of Sections 173, 174 and  175, makes it clear that the intent of the  Legislature is not to bar the jurisdiction of  the Consumer Fora constituted under the  Consumer Protection Act.   The provisions of  the Electricity Act have overriding effect  qua provisions of any other law except that  of the Consumer Protection Act, 1986, the  Atomic Energy Act, 1962 and the Railways Act,  1989.

(iii)Section 42(8)of the Electricity Act  specifically provides that the remedies  conferred on consumer under sub­sections (5),  (6) and (7) of Section 42 are without  prejudice to the right which the consumer may  have apart from the rights conferred upon him  by those sub­sections.

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(iv)Section 145 of the Electricity Act  specifically bars the jurisdiction of the  Civil Court 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 of the Electricity Act or the  Adjudicating Officer appointed under the  Electricity Act, is empowered to determine.

Second part of Section 145  provides that no jurisdiction  shall be granted by any Court or  Authority in respect of any action  taken or to be taken in pursuance  of any power conferred by or under  the Act. For this purpose, if we  refer to Sections 173 and 174 and  apply the principle laid down  there­under, it would mean that  qua the consumer fora there is  inconsistency and, therefore,  'other authority' would not  include consumer fora.

(v)Consumer of electrical energy provided by  the Electricity Board or other Private  Company, is a consumer as defined under  Section 2(1)(o)of the Consumer Protection Act  and a complaint alleging any deficiency on  the part of the Board or other private  company including any fault, imperfection,  shortcoming or inadequacy in quality, nature  and manner of performance which is required  to be maintained by or under any law or in  pursuance of any contract in relation to  service, is maintainable under the Consumer  Protection Act.

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Against the Assessment Order  passed under Section 126 of the  Electricity Act, a consumer has  option either to file Appeal under  Section 127 of the Electricity Act  or to approach the Consumer Fora  by filing complaint. He has to  select either of the remedy.  However, before entertaining the  complaint, the Consumer Fora would  direct the Consumer to deposit an  amount equal to one­third of the  assessed amount with the licensee  [similar to Section 127(2) of the  Electricity Act].

(vi)Consumer Fora have no jurisdiction to  interfere with the initiation of criminal  proceedings or the final order passed by any  Special Court constituted under Section 153  or the civil liability determined under  Section 154 of the Electricity Act.”

3. The judicial Member having not agreed with the majority  

finding, by his minority  judgment dated 16th  April, 2008  

held as follows:

“14. In the result I hold as under: (i)The provisions contained in Section 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 Section 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

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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.” Following the aforesaid majority decision dated 10th  

April, 2008,  other cases were disposed of by the National  

Commission in similar terms by impugned orders dated 13th  

March, 2009, 29th  March, 2011 and 7th  July, 2011.   By  

impugned order dated 13th  March, 2009, giving reference to  

the aforesaid judgment dated 10th April, 2008,  the matter  

was remitted to the State Consumers Disputes Redressal  

Commission (hereinafter referred to as the “State  

Commission')  for fresh decision.  

4. For determination of the issue involved in these  

appeals,  it is necessary to discuss the relevant facts as  

were pleaded by the parties before the Consumer Fora. The  

same is mentioned hereunder:

5. C  ase of Anis Ahmad   ,  

Anis Ahmed filed a complaint before the District  

Consumer Protection Forum, Moradabad and claimed that he is  

a consumer of electricity having connection No.104427 with  

sanctioned load of 6.5 horse power. He alleged that the

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authorities of the U.P. Power Corporation Ltd. prepared a  

fictitious checking report dated 17th July, 2003 and falsely  

implicated the complainant that he had used more than  

sanctioned load of 10 H.P. in his factory and on the basis  

of fictitious report a proceeding was initiated on 15th  

April, 2004 followed by a bill No.5004369 dated 15th June,  

2004 demanding a sum of Rs.2,11,451/­. He prayed to direct  

the appellant to correct the bill, withdraw the demand  

notice and to pay the costs.

The appellant, U.P. State Corporation Ltd. filed the  

objections regarding maintainability of the above said  

petition. It was alleged that the complainant had  

industrial connection which was disconnected earlier due to  

the arrears of electricity dues. On a checking held on 17th  

March, 2004 by Sub­Divisional Officer­II and Junior  

Engineer, it was found that the L.T. line of three phases  

passing from the other side of the premises of the  

complainant was tapped with the cables attached with the  

meter though they were disconnected earlier and the  

complainant was using full 10 horse power load by  

committing theft of electricity by bye­passing the meter.  

6. C  ase of Rakhi Ghosh    

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Rakhi Ghosh claimed before the District Consumer  

Disputes Redressal Forum, at Suri, Birbhum, West Bengal,  

that he is a consumer of electricity   having Connection  

No.1/7884 with connected load of 20 H.P. He is running his  

husking  mill through connected load.   He challenged  the  

bill for Rs.3,73,935/­ raised by the West Bengal State  

Electricity Board which was raised on the ground of  

unauthorized extension of load of 8 H.P.

The appellant, West Bengal Electricity Board filed the  

objections and raised the question of maintainability of  

the application.  It was stated that consumer was enjoying  

Industrial connection and, therefore, does not fall within  

the definition of "consumer" under the Consumer Protection  

Act, 1986. It was further alleged that a police case being  

No.19/2005 dated 26th February, 2005 has already been lodged  

against Rakhi Ghosh for theft of electricity, therefore,  

the  consumer forum has no jurisdiction to entertain  the  

application.  

7. Case of Prithvi Pal Singh  

Prithvi Pal Singh filed a complaint before the District  

Consumer Protection Forum­II, Moradabad   that he is a  

consumer having connection No.0102/102474 with a sanctioned

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load of 6 KW. It was alleged that the U.P. Power  

Corporation Ltd. got his premises inspected by its team and  

subsequently sent a notice to him on 1st   December, 2005.  

In the said notice it was alleged that the Enforcement team  

on inspection made on 25th  November, 2004 found that the  

complainant was committing theft of electricity by making a  

cut at the cable prior to meter and was using excess load.  

He challenged the bill raised by the Corporation for  

Rs.1,45,546/­ and prayed for compensation of 10,000/­ for  

harassment.  

The appellant, U.P. Power Corporation Ltd. filed  

objections and raised the question of maintainability of  

the petition. It was alleged that on checking, a cut mark  

on three phase cable before the meter was detected by which  

the complainant was committing theft of electricity of 13  

KW by bye­passing the meter. A bill for Rs. 1,99,805/­ was  

raised  for theft of the electricity.  

8. Case of Zulfikar

Zulfikar filed a complaint before the District Consumer  

Protect Forum­II, Moradabad, challenging a notice of  

assessment. He stated that he is a consumer of commercial

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electricity connection bearing No.3293/115275, the  

sanctioned load of which is 3 KW. According to him on  

receipt of notice he enquired about the same to the  

appellant and came to know that on the basis of checking  

report they have issued the bill. It was alleged that the  

said checking report dated 22nd  July, 2004 is false and  

fabricated and no checking was done on the premises of the  

complainant.  

The appellant, U.P. Power Corporation Ltd. filed  

objections raising the question of maintainability of the  

complaint on the ground that the complainant Zulfikar had  

commercial connection and hence does not fall within the  

definition of ‘Consumer'. It was alleged that Enforcement  

Squad and Assistant Engineer (Raids) on 22nd  July, 2004  

raided the premises of the complainant and during the  

inspection found that 4 leads of the PVC cable of  

electricity line leading to the meter had been cut and bye­

passing the same, 5.76 KW load was being used by the  

complainant illegally.   They alleged theft of electricity  

against the complainant for which an assessment notice was  

issued. It was contended that theft of electricity does not  

amount to deficiency in service, therefore, the Consumer

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Forum does not have the jurisdiction to entertain the  

petition regarding the theft of the electricity under the  

Consumer Protection Act.  

9. Case of Shahzadey  Alam  

Shahzadey Alam filed a complaint case before the  

District Consumer Protection Forum­II, Moradabad  

challenging the revenue assessment notice dated 9th  

February, 2005 and requested to pay the compensation for  

mental and physical agony. In his petition Shahzadey Alam  

stated that he was consumer of electricity connection  

No.0832782700, having a sanctioned load of 2 KW. On 20th  

October, 1986, the officials of the U.P. Power Corporation  

Ltd. disconnected the aforesaid electricity connection for  

non­payment of Suvidh Shulka.   As the said electricity  

connection was not required for the complainant, he did not  

get the same restored. It is alleged that in spite of the  

same, the complainant received a notice of assessment on  

16th February, 2005.  

The appellant, U.P. Power Corporation Ltd. on  

appearance challenged the maintainability of the petition

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before the Consumer Forum.   It was stated that the  

complainant had himself admitted that his electricity  

connection was disconnected on 20th  October, 1986,  

therefore, the petition was not maintainable.   It was  

further alleged that the complainant has a factory which  

was raided and checked by the enforcement squad on 24th  

January, 2005 at 4.10 hours and that it was found that the  

complainant was committing theft of electricity by cutting  

three phase cable going near his premises to the connection  

No.2783/116398 of L.M.V.­II category of Shri Javed and by  

connecting it with 15 meters cable and using 4.70 K.W. load  

and that no valid connection was found in the premises of  

the complainant. Therefore, the complainant was asked to  

deposit compounding fee of Rs.1,02,400/­, but he has not  

deposited it. On the basis of the report a notice was  

issued to the complainant.  

10. Case of Atul Kumar Gupta

Atul Kumar Gupta filed a complaint before the District  

Consumer Protection Forum­II, Moradabad, stating that he is  

a consumer of electricity connection No.1034/117269, having  

sanctioned load of 7.5 KW. It is alleged that the  

electricity connection of the complainant has been

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disconnected on 29th  February, 2003 on the ground of  

outstanding electricity charges. Later on, the appellant  

informed that a case in connection with checking is under  

consideration and, therefore, the connection of the  

complainant cannot be restored.   The complainant alleged  

that on 13th  March, 2004 he received Revenue assessment  

notice alongwith a checking report No.164 dated 1st March,  

2004, though no checking was conducted at the premises of  

the complainant on 1st March, 2004. He prayed for  

cancellation of the assessment notice dated 10th March, 2004  

and claimed compensation of Rs.5,000/­ towards mental agony  

and financial loss.

The appellant, U.P. Power Corporation Ltd., in their  

reply raised the question of maintainability of the  

petition in view of the fact that the complainant's  

connection was disconnected on 28th February, 2003 and that  

on inspection it was found that he was committing theft of  

electricity by pilferage of electricity.

11. Case of Tauseef Ahmed  

Tauseef Ahmed moved before the District Consumer  

Protection Forum­II, Moradabad and stated that he is a  

consumer of electricity having connection No.115694 with

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sanctioned load of 2 KW.  He alleged that three employees  

of the U.P. Power Corporation Ltd. visited his premises.  

Out of them one represented himself to be the Junior  

Engineer and demanded bribe of Rs.6,000/­ illegally.   As  

he refused to pay the amount, a notice was served on him on  

8th  September, 2004 along with a report dated 11th  August,  

2004   and   a bill for Rs.1,94,382/­ was raised.   He  

challenged the bill before the District Forum.

The U.P. Power Corporation Ltd. on appearance raised  

the question of maintainability of the petition, one of the  

grounds taken was that the complainant has already filed an  

Original Suit No.391 of 2004 (Tauseef Ahmed vs. Uttar  

Pradesh Power Corporation) for the same relief before the  

Court of Civil Judge (Junior Division), Moradabad in which  

summons has already been issued and the matter is pending.  

It was alleged that the premises of the claimant was  

checked on 11th  August, 2004 in the presence of the  

complainant and on checking it was found that 6.945 KW of  

electricity had been illegally used instead of sanctioned  

load of 2 KW. It was brought to the notice of the Forum  

that use of excess load than the sanctioned electric load  

for any other purpose for which connection has been

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granted, comes within the meaning of   "pilferage of  

electricity” as defined under U.P. Electricity (Consumers)  

Regulation, 1984 for which notice of assessment was sent to  

the complainant for recovery of sum of Rs.1,94,382/­ which  

on hearing the parties was finalized to be Rs.1,07,985/­  

vide order dated 1st October, 2004.  

12. Case of Mohd. Yunus  

Mohd. Yunus filed a complaint before the District  

Consumer Protection Forum­II, Moradabad claiming to be   a  

consumer of commercial electricity having connection  

No.2701/0­98494, with sanctioned load of 5 KW. It was  

alleged that on the basis of a checking report dated 17th  

November, 2004 revenue assessment notice dated 1st February,  

2005 was served on him.  He sought for a copy of the report  

and came to know that Junior Engineer had sent   a false  

checking report   to the Divisional Office because of non­

payment of monthly "Suvidha Sulk" by the complainant. He  

challenged the revenue assessment notice dated 1st February,  

2005 and claimed compensation of Rs.10,000/­ for mental  

suffering and financial loss.   

The U.P. Power Corporation Ltd. on appearance raised  

the  question of  maintainability  of the petition. It  was

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stated that the complainant is a consumer of L.M.V.­II  

category   using electricity for   commercial purposes,  

therefore, he does not fall under the definition of  

“consumer", as defined under Section 2(1)(d) of the  

Consumer Protection Act. It was further alleged that on 17th  

November, 2004 on checking of the premises of the  

complainant by Sub­Divisional Officer­II, Moradabad and  

Junior Engineer it was found that the complainant was using  

the connection for industrial purposes under L.M.V.­6  

category without any prior consent of the U.P. Power  

Corporation  Ltd. He  was  using electrical energy  for  the  

purposes other than the purpose for which it was  

sanctioned.   Therefore, the complainant was found to be  

guilty of pilferage of electricity.

13. All the cases against the U.P. Power Corporation Ltd.  

were filed before the District Consumer Protection Forum­

II, Moradabad. The decision having given in  favour of the  

complainants, U.P. Power Corporation Ltd moved before the  

State Consumer Disputes Redressal Commission, Uttar  

Pradesh, Lucknow  which  by its common  judgment dated 31st  

January, 2007/Ist February, 2007 dismissed all the revision  

petitions filed by the U.P. Power Corporation Ltd.

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14. For the said reason all the cases in which the question  

of jurisdiction  of the Consumer  Forum were raised, they  

were heard and decided by the National Commission initially  

by the impugned judgment dated 10th  April, 2008/16th  April,  

2008, followed by other orders.   

Submissions:

15.  Learned counsel for the appellants contended as under:

(a) The proceedings under Sections126,  127, 135 etc.  

of the Electricity Act, 2003 initiated by the service  

providers are not related to deficiency of service in the  

supply of electricity by the service providers under the  

Electricity Act, 2003.   Therefore, the complaints against  

the proceedings under Section 126, 127, 135 etc.   of the  

Electricity Act, 2003 are not maintainable before the Forum  

constituted under the Consumer Protection Act, 1986.

(b) In absence of any inconsistency between Sections  

126, 127, 135 etc. of the Electricity Act, 2003 and the  

provisions of Consumer Protection Act, 1986, Sections 173  

and 174 of the Electricity Act, 2003 are not attracted.  

16. Per contra, according to the respondents, a complaint  

under the Consumer Protection Act, 1986 against the final  

assessment order passed under Section 126 of the

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Electricity Act, 2003 is maintainable before the Consumer  

Forum.  

17. To determine the question, it would be appropriate to  

refer to the Statement of Objects and Reasons and relevant  

provisions of the Consumer Protection Act, 1986, as quoted  

below:

“STATEMENT OF OBJECTS AND REASONS

The Consumer Protection Bill, 1986  seeks to provide for better protection of  the interests of consumers and for the  purpose, to make provision for the  establishment of Consumer councils and other  authorities for the settlement of consumer  disputes and for matter connected therewith.

2.  It seeks, inter alia, to promote and  protect the rights of consumers such as­

(a)the right to be protected against marketing of  goods which are hazardous to life and property;

(b)the right to be informed about the quality,  quantity, potency, purity, standard and price of  goods to protect the consumer against unfair  trade practices;

(c)the right to be assured, wherever possible,  access to an authority of goods at competitive  prices;

(d)the right to be heard and to be assured that  consumers interests will receive due  consideration at appropriate forums;

(e)the right to seek redressal against unfair  trade practices or unscrupulous exploitation of  consumers; and

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(f)right to consumer education.

3.  These objects are sought to be promoted  and protected by the Consumer Protection  Council to be established at the Central and  State level.

4.  To provide speedy and simple redressal  to consumer disputes, a quasi­judicial  machinery is sought to be setup at the  district, State and Central levels. These  quasi­judicial bodies will observe the  principles of natural justice and have been  empowered to give relief of a specific  nature and to award, wherever appropriate,  compensation to consumers. Penalties for  noncompliance of the orders given by the  quasi­judicial bodies have also been  provided.”

    Scope of consumer complaint

18. “Consumer dispute" is defined under Section 2(e) of the  

Consumer Protection Act,1986  in the following manner:

"2(e)  “consumer dispute” means a dispute  where the person against whom a complaint  has been made, denies or disputes the  allegations contained in the complaint.”

Therefore, for a valid consumer dispute an assertion  

and denial of a valid complaint is must.  

19. “Complaint" is defined under Section 2(1) (c) of the  

Consumer Protection Act,1986  in the following manner:

"2(1)(c) "complaint" means any allegation in  writing made by a complainant that­

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(i)an unfair trade practice or a restrictive  trade practice has been adopted by (any trader or  service provider ;

(ii)the goods bought by him or agreed to be  bought by him suffer from one or more defects;

(iii)the services hired or availed of or agreed  to be hired or availed of by him suffer from  deficiency in any respect;

(iv)a trader or the service provider, as the case  may be, has charged for the goods or for the  services mentioned in the complaint, a price in  excess of the price­

(a)fixed by or under any law for the time being  in force;

(b)displayed on the goods or any package  containing such goods;

(c)displayed on the price list exhibited by him  by or under any law for the time being inforce;

(d)agreed between the parties;

(v) goods which will be hazardous to life  and safety when used, are being­offered for  sale to the public­

(a)in contravention of any standard relating to  safety of such goods as required to be complied  with, by or under any law for the time being in  force;

(b)if the trader could have known with due  diligence that the goods so offered are unsafe to  the public;  

(vi) services which are hazardous or likely  to be hazardous to life and safety of the  public when used, are being offered by the  service provider which such person could

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have known with due diligence to be  injurious to life and safety;

with a view to obtaining any relief provided  by or under this Act;"

Therefore, it is only in respect to aforementioned  

aspects that a consumer complaint can be filed viz.

*  Unfair trade practice or restrictive trade  

practice.

* When there is a defective goods.

* Deficiency in services

* Hazardous goods

* Hazardous services  

* a price in excess of the price fixed under any  

law etc.  

20. Deficiency of service is defined under Section 2(g) of  

the Consumer Protection Act, 1986 in the following manner:

"2(g)  “deficiency”means any fault,  imperfection, shortcoming or inadequacy in  the quality, nature and manner of  performance which is required to be  maintained by or under any law for the time  being in force or has been undertaken to be  performed by a person in pursuance of a  contract or otherwise in relation to any  service."

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Therefore, it is clear that nature of transaction under  

Section 126 does not come within the ambit of “complaint".

21. Section 2(1)(b) of the Consumer Protection Act, 1986  

defines "complainant" as follows:

“2(1)(b) "complainant" means­

(i)a consumer; or

(ii)any voluntary consumer association registered  under the Companies Act,1956 (1of 1956) or under  any other law for the time being in force; or

(iii)the Central Government or any State  Government; or

(iv)one or more consumers, where there are  numerous consumers having the same interest;

(v)in case of death of a consumer, his legal heir  or representative;   who or which makes a  complaint;”

22. Whereas "consumer" is defined under Section 2(1)(d) of  

the Consumer Protection Act, 1986 in the following manner:

"2(1)(d) "consumer" means any 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

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(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 purposes of this  clause, "commercial purpose" does not  include use by a person of goods bought and  used by him and services availed by him  exclusively for the purposes of earning his  livelihood by means of self­employment;"

From a bare reading of the section aforesaid it is  

clear that person(s) availing services for 'commercial  

purpose' do not fall within the meaning of “consumer" and  

cannot be a "complainant” for the purpose of filing a  

"complaint" before the Consumer Forum.  

23. “Service” as defined under Section 2(1)(o) of the  

Consumer Protection Act, 1986 includes supply of electrical  

or other energy and reads as follows:

“2(1)(o)"service" means service of any  description which is made     available to  potential (users and includes, but not  limited to, the provision of) facilities in  connection with banking, financing  insurance, transport, processing, supply of  electrical or other energy, board or

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lodging or both, (housing construction,)  entertainment, amusement or the purveying  of news or other information, but does not  include the rendering of any  service  free  of  charge  or   under   a   contract of  personal  service.”

Therefore, a consumer within the meaning under Section  

2(1) (d) may file a valid complaint in respect of supply  

of electrical or other energy, if the complaint contains  

allegation of unfair trade practice or restrictive trade  

practice; or there is a defective goods; deficiency in  

services; hazardous services or a price in excess of the  

price fixed by or under any law etc.  

Maintainability of complaint filed by the respondents. 24. From the facts narrated in the preceding paragraph it  

is clear that Anis Ahmed, Rakhi Ghosh, Prithvi Pal Singh,  

Zulfikar, Shahzadey Alam, Atul Kumar Gupta, Tauseef Ahmed  

and Mohd. Yunus had electrical connections for  

industrial/commercial purpose and, therefore, they do not  

come within the meaning of "consumer" as defined under  

Section 2(1)(d) of the Consumer Protection Act, 1986; they  

cannot be treated as “complainant” nor they are entitled to  

file any "complaint" before the Consumer Forum.   

25. Admittedly, the complainants made their grievance  

against final order of assessment passed under Section 126

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of the Electricity Act, 2003. None of the respondents  

alleged that the appellant(s) used unfair trade practice or  

a restrictive trade practice or there is deficiency in  

service(s) or hazardous service(s) or price fixed by the  

appellant(s) is excess to the price fixed under any law  

etc.   In absence of any allegation as stipulated under  

Section 2(1)(c) of the Consumer Protection Act,1986, their  

complaints were not maintainable.  

26. Therefore, we hold that the complaint filed by the  

respondents were not maintainable before the Consumer  

Forum.  

Maintainability of a complaint before the Consumer Forum  against final order of assessment made under Section 126 of  the Electricity Act, 2003 or action taken under Sections  135 to 140 of the Electricity Act, 2003 27. Section 2(15) of the Electricity Act, 2003 defines  

‘consumer’ in the following manner:

"2(15).  "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 or such other  person, as the case may be;”

28. From a bare reading of section aforesaid we find that  

the "consumer" as defined under Section 2(15) includes any

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person who is supplied with electricity for his own use by  

a licensee and also includes any person whose premises are  

for the time being connected for the purpose of receiving  

electricity with the works of a licensee, irrespective of  

the fact whether such person is supplied with electricity  

for his own use or not.  Per contra under Section 2(1)(d)  

of the Consumer Protection Act, 1986 those who were  

supplied with electricity for commercial purpose and those  

who do not avail services for consideration, irrespective  

of electricity connection in their premises  do not come  

within the meaning of  "consumer".

29. Section 126 of the Electricity Act, 2003 empowers the  

assessing officer to make assessment in case of  

“unauthorized use of electricity".  It provides that if on  

an inspection of any place or premises or after inspection  

of the equipments, gadgets, machines, devices found  

connected or used, or after inspection of records  

maintained by any person, the assessing officer comes to  

the conclusion that such person is indulging in  

"unauthorized use of electricity", he shall assess the  

electricity charges payable by such person or by any other  

person benefitted by such use, the Section reads as under:

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"126.Assessment.­ (1) If on an inspection of  any place or premises or after inspection of  the equipments, gadgets, machines, devices  found connected or used, or after inspection  of records maintained by any person, the  assessing officer comes to the conclusion  that such person is indulging in  unauthorized use of electricity, he shall  provisionally assess to the best of his  judgement the electricity charges payable by  such person or by any other person benefited  by such use.

(2) The order of provisional assessment  shall be served upon the person in  occupation or possession or in charge of the  place or premises in such manner as may be  prescribed.

(3) The person, on whom an order has been  served under subsection (2) shall be  entitled to file objections, if any, against  the provisional assessment before the  assessing officer, who shall, after  affording a reasonable opportunity of  hearing to such person, pass a final order  of  assessment  within  thirty days  from  the  date of service of such order of provisional  assessment, of the electricity charges  payable by such person.

(4) Any person served with the order of  provisional assessment, may, accept such  assessment and deposit the assessed amount  with the licensee within seven days of  service of such provisional assessment order  upon him.

(5) If the assessing officer reaches to the  conclusion that unauthorized use of  electricity has taken place, the assessment  shall be made for the entire period during  which such unauthorized use of electricity  has taken place and if, however, the period  during which such unauthorized use of  electricity has taken place cannot be  ascertained, such period shall be limited to

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a period of twelve months immediately  preceding the date of inspection.  

(6) The assessment under this section shall  be made at a  rate equal to (twice)   the  tariff applicable for the relevant category  of services specified in sub­section (5).

Explanation.­ For the purposes of this  section,­

(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) “ unauthorised use of electricity”  means the usage of electricity –

(i)by any artificial means; or

(ii)by a means not authorised 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; or

(v)for the premises or areas other than those for  which the supply of electricity was authorized.”

30. Section 145 of the Electricity Act, 2003 bars the  

jurisdiction of Civil Court to entertain any suit or  

proceeding in respect of any matter which an assessing  

officer referred to in Section 126.   A separate provision  

of appeal to the appellate authority has been prescribed  

under Section 127 so that any person aggrieved by the final  

order made under Section 126, may within thirty days of the  

said order, prefer an appeal, which reads as under:

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127.Appeal to appellate authority.­  (1) Any  person aggrieved by the final order made  under section 126 may, within thirty days of  the said order, prefer an appeal in such  form, verified in such manner and be  accompanied by such fee as may be specified  by the State Commission, to an appellate  authority as may be prescribed.

(2) No appeal against an order of assessment  under sub­section (1) shall be entertained unless an amount equal  to half of the assessed amount is deposited  in cash or by way of bank draft with the  licensee and documentary evidence of such  deposit has been enclosed along with the  appeal.

(3) The appellate authority referred to in  sub­section (1) shall dispose of the appeal  after hearing the parties and pass  appropriate order and send copy of the order  to the assessing officer and the appellant.

(4) The order of the appellate authority  referred to in sub­section (1) passed under  sub­section (3) shall be final.

(5) No appeal shall lie to the appellate  authority  referred  to  in  sub  –section  (1)  against the final order made with the  consent of the parties.

(6) When a person defaults in making payment  of assessed amount, he, in addition to the  assessed amount, shall be liable to pay, on  the expiry of thirty days from the date of  order of assessment, an amount of interest  at the rate of sixteen per cent per annum  compounded every six months.”

Therefore, it is clear that after notice of provisional  

assessment to the   person indulged in unauthorized use of  

electricity, the final decision by an assessing officer,

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who is a public servant, on the assessment of "unauthorized  

use of electricity”is a “Quasi Judicial” decision and does  

not  fall within  the  meaning  of “consumer dispute” under  

Section 2(1) (e) of the Consumer Protection Act, 1986.  

31. Part XIV of the Electricity Act, 2003 relates to  

“offences and penalties".   If Section 126 is read with  

Section 135 to 140 it will be clear that various acts of  

"unauthorized use of electricity” constitute “offences”  

mentioned under Sections 135 to 140 and attracts sentence  

and fine as prescribed therein.  

32. For proper appreciation, we refer to Section 135 which  

relates to “theft of electricity".   Interference with  

meters or work of licensee, taping  of electricity, making  

or causing to be made any connection with overhead,  

underground or under water lines or cables, or service  

wires, or service facilities of a licensee; tampering of  

meter, installation or use of tampered meter, loop  

connection or any other device or method which interferes  

with accurate or proper registration, calibration or  

metering of electric current or otherwise results in a  

manner whereby electricity is stolen or wasted; damaging or  

destroys of an electrical meter, apparatus, equipment, use

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of electricity through a tampered meter; use of electricity  

for the purpose other than for which the usage of  

electricity was authorized constitute "theft of  

electricity" and constitute “offence" under Section 135 of  

the Electricity Act, 2003, which reads as follows:

“135. Theft of electricity.­  (1) Whoever,  dishonestly,­­

(a)taps, makes or causes to be made any  connection with overhead, underground or under  water lines or cables, or service wires, or  service facilities of a licensee or supplier, as  the case may be; or

(b)tampers a meter, installs or uses a  tampered meter, current reversing  transformer, loop connection or any  other device or method which interferes  with accurate or proper registration,  calibration or metering of electric  current or otherwise results in a  manner whereby electricity is stolen or  wasted; or

(c) damages or destroys an electric  meter, apparatus, equipment, or wire or  causes or allows any of them to be so  damaged or destroyed as to interfere  with the proper or accurate metering of  electricity; or

(d) uses electricity through a tampered  meter; or

(e) uses electricity for the purpose  other than for which the usage of  electricity was authorised,

so as to abstract or consume or use  electricity shall be punishable with

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imprisonment for a term which may extend to  three years or with fine or with both:

Provided that in a case where the load  abstracted, consumed, or used or attempted  abstraction or attempted consumption or  attempted use­­

(i)  does not  exceed  10 kilowatt, the  fine imposed on first conviction shall  not be less than three times the  financial gain on account of such theft  of electricity and in the event of  second or subsequent conviction the  fine imposed shall not be less than six  times the financial gain on account of  such theft of electricity;

(ii) exceeds 10 Kilowatt, the fine  imposed on first conviction shall not  be less than three times the financial  gain on account of such theft of  electricity and in the event of second  or subsequent conviction, the sentence  shall  be imprisonment  for  a  term not  less than six months, but which may  extend to five years and with fine not  less than six times the financial gain  on account of such theft of  electricity:

Provided further that in the event of  second and subsequent conviction of a person  where the load abstracted, consumed, or used  or attempted abstraction or attempted  consumption or attempted use exceeds 10  kilowatt, such person shall also be debarred  from getting any supply of electricity for a  period which shall not be less than three  months but may extend to two years and shall  also be debarred from getting supply of  electricity for that period from any other  source or generating station:

Provided  also  that if  it  is  provided  that any artificial means or means not  authorised by the Board or licensee or  supplier, as the case may be, exist for the

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abstraction, consumption or use of  electricity by the consumer, it shall be  presumed, until the contrary is proved, that  any abstraction, consumption or use of  electricity has been dishonestly caused by  such consumer.

1A) Without prejudice to the provisions  of this Act, the licensee or supplier, as  the case may be, may, upon detection of such  theft of electricity, immediately disconnect  the supply of electricity:

Provided that only such officer of the  licensee or supplier, as authorised for the  purpose by the Appropriate Commission or any  other officer of the licensee or supplier,  as the case may be, of the rank higher than  the rank so authorised shall disconnect the  supply line of electricity:

Provided further that such officer of  the licensee or supplier, as the case may  be, shall lodge a complaint in writing  relating to the commission of such offence  in police station having jurisdiction within  twenty four hour from the time of such  disconnect:

Provided also that the licensee or  supplier, as the case may be, on deposit or  payment of the assessed amount or  electricity charges in accordance with the  provisions of this Act, shall, without  prejudice to the obligation to lodge the  complaint as referred to in the second  proviso to this clause., restore the supply  line of electricity within forty­eight hours  of such deposit or payment;]

(2) Any officer of the licensee or supplier  as the case may be, authorised in this  behalf by the State Government may­­

(a) enter, inspect, break open and  search any place or premises in which  he has reason to believe that  electricity [has been or is being],  used unauthorisedly;

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(b) search, seize and remove all such  devices, instruments, wires and any  other facilitator or article which [has  been or is being], used for  unauthorised use of electricity;

(c) examine or seize any books of  account or documents which in his  opinion shall be useful for or relevant  to, any proceedings in respect of the  offence under sub­section (1) and allow  the person from whose custody such  books of account or documents are  seized to make copies thereof or take  extracts therefrom in his presence.

(3)  The occupant of the place of search or  any person on his behalf shall remain  present during the search and a list of all  things seized in the course of such search  shall be prepared and delivered to such  occupant or person who shall sign the list:

Provided that no inspection, search and  seizure of any domestic places or domestic  premises shall be carried out between sunset  and sunrise except in the presence of an  adult male member occupying such premises.

(4)  The provisions of the Code of Criminal  Procedure, 1973 (2 of 1974), relating to  search and seizure shall apply, as far as  may be, to searches and seizure under this  Act.”

33. "Theft of electric lines and materials” constitute  

offence under Section 136; whereas "receiving stolen  

property" constitute offence under Section 137.  

Interference with meters or works of licensee  

unauthorisedly connecting any meter, indicator or apparatus  

with any electric line; unauthorise reconnection of any

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meter, indicator or apparatus with electric line or other  

works; laying or causing to be laid, or connecting any  

works for the purpose of communicating with any other works  

belonging to a licensee; or injuring any meter, indicator,  

or apparatus belonging to a licensee maliciously etc.  

constitute “offences”  which attracts punishment under  

Section 138 of the Electricity Act, 2003.  Section 138 of  

the Electricity Act reads as follows:

 “138.Interference with meters or works of  licensee.­(1) Whoever,­

(a) unauthorisedly connects any meter,  indicator or apparatus with any  electric line through which electricity  is supplied by a licensee or  disconnects the same from any such  electric line; or

(b) unauthorisedly reconnects any  meter, indicator or apparatus with any  electric line or other works being the  property  of  a  licensee  when  the  said  electric line or other works has or  have been cut or disconnected; or

(c) lays or causes to be laid, or  connects up any works for the purpose  of communicating with any other works  belonging to a licensee; or

(d) maliciously injures any meter,  indicator, or apparatus belonging to a  licensee or willfully or fraudulently  alters the index of any such meter,  indicator or apparatus or prevents any  such meter, indicator or apparatus from  duly registering;

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shall be punishable with imprisonment for a  term which may extend to three years, or  with fine which may extend to ten thousand  rupees, or with both, and, in the case of a  continuing offence, with a daily fine which  may extend to five hundred rupees; and if it  is proved that any means exist for making  such connection as is referred to in clause  (a) or such reconnection as is referred to  in clause (b), or such communication as is  referred to in clause (c), for causing such  alteration or prevention as is referred to  in clause (d), and that the meter, indicator  or apparatus is under the custody or control  of the consumer, whether it is his property  or not, it shall be presumed, until the  contrary is proved, that such connection,  reconnection, communication, alteration,  prevention or improper use, as the case may  be, has been knowingly and wilfully caused  by such consumer.”

34. Clause (b) of the Explanation below Section 126,  

defines "unauthorized use of electricity"  as the usage of  

electricity by any artificial means; or by a means not  

authorized by the concerned person or authority or  

licensee; or through a tampered meter; or for the purpose  

other than for which the usage of electricity was  

authorized; or for the premises or areas other than those  

for which the supply of electricity was authorized.  

All the aforesaid acts constitute “offences” under  

Section 135 to 140 of the Electricity Act, 2003, as noticed  

above.

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35. From a bare reading of Section 126 and Sections 135 to  

140, it is clear that while acts of "unauthorized use of  

electricity" attracts civil consequence of penal charge of  

electricity, twice the rate of electricity, for which  

assessment is made by assessing officer under Section 126;  

the very same acts of "unauthorized use of electricity",  

constitute "offences" under Section 135 to 140 for which  

sentence and fine has been prescribed.   

36. As per Section 153 of the Electricity Act, 2003,  

Special Courts are to be constituted for speedy trial for  

the offences referred to in Sections 135 to 140.  The said  

Section reads as follows:

“153. Constitution of Special Courts.­  (1)  The State Government may, for the purposes  of providing speedy trial of offences  referred to in [sections 135 to 140 and  section 150], by notification in the  Official Gazette, constitute as many Special  Courts as may be necessary for such area or  areas, as may be specified in the  notification.

(2) A Special Court shall consist of a  single Judge who shall be appointed by the  State Government with the concurrence of the  High Court.

(3) A person shall not be qualified for  appointment as a judge of a Special Court  unless he was, immediately before such  appointment, an Additional District and  Sessions Judge.

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(4) Where the office of the Judge of a  Special Court is vacant, or such Judge is  absent from the ordinary place of sitting of  such Special Court, or he is incapacitated  by illness or otherwise for the performance  of his duties, any urgent business in the  Special Court shall be disposed of­­

(a) by a Judge, if any, exercising  jurisdiction in the Special Court;

(b) where there is no such other Judge  available, in accordance with the  direction of District and Sessions  Judge having jurisdiction over the  oridinary place of sitting of Special  Court, as notified under sub­section  (1).”

37. The Civil Court's jurisdiction to consider a suit with  

respect to the  decision of assessing officer under Section  

126, or decision of appellate authority under Section 127  

is barred under Section 145 of the Electricity Act,2003 ,  

which reads as under:

“145. Civil Court not to have jurisdiction.­  No  civil  court  shall  have  jurisdiction  to  entertain any suit or proceeding in respect  of any matter which an assessing officer  referred to in Section 126 or an Appellate  Authority referred to in Section 127 or the  adjudicating officer appointed under this  Act is empowered by or under this Act to  determine and no injunction shall be granted  by any court or other authority in respect  of any action taken or to be taken in  pursuance of any power conferred by or under  this Act.”

38. The  National Commission  placed much  reliance on  sub  

sections (5) and (6) of Section 42 of the Electricity Act,

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2003 to derive power to adjudicate dispute arising out of  

Section 126, but it failed to notice that Section 42 of the  

Electricity Act, 2003 is not applicable in the case of  

licensee who is a trader or supplier of electricity but it  

relates to "distribution licensees".   

39. Section 14 of the Electricity Act, 2003 empowers the  

Appropriate Commission to grant a licence to any person to  

"transmit electricity" or "to distribute electricity" or  

"to undertake trading in electricity",   the relevant  

portion of Section 14  reads as follows:

“14. Grant of licence.­    The Appropriate  Commission may, on an application made to it  under Section 15,   grant a licence to any  person –

(a)to transmit electricity as a transmission  licensee; or (b)to distribute electricity as a distribution  licensee; or (c)to undertake trading in electricity as an  electricity trader,  

                   in any area as may be specified in  the licence.” 40. Amongst the three categories of licensee(s)  

viz.“transmission licensee"; "distribution licensee" and  

the "licensee to undertake trading in electricity", the  

provisions with respect to "distribution licensees" have  

been provided under Part VI of the Electricity Act, 2003  

but not the two other licensees.  Bare perusal of Part VI

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and Section 42 of the Electricity Act, 2003 makes it  

further clear.  The same is quoted hereunder:

“Part VI

DISTRIBUTION OF ELECTRICITY

Provisions with respect to distribution licensees 42.  Duties of distribution licensees and open access.  ­(1) It shall be the duty of a distribution licensee  to develop and maintain an efficient, co­ordinated and  economical distribution system in his area of supply  and to supply electricity in accordance with the  provisions contained in this Act. (2)  The State Commission shall introduce open access  in such phases and subject to such conditions,  (including the cross subsidies, and other operational  constraints) as may be specified within one year of  the appointed date by it and in specifying the extent  of open access in successive phases and in determining  the charges for wheeling, it shall have due regard to  all relevant factors including such cross subsidies,  and other operational constraints: Provided that   [such open access shall be allowed on  payment of a surcharge] in addition to the charges for  wheeling as may be determined by the State Commission: Provided further that such surcharge shall be utilised  to meet the requirements of current level of cross  subsidy within the area of supply of the distribution  licensee: Provided also that such surcharge and cross subsidies  shall be progressively reduced  [***] in the manner as  may be specified by the State Commission: Provided also that such surcharge shall not be  leviable in case open access is provided to a person  who has established a captive generating plant for  carrying the electricity to the destination of his own  use:  [Provided also that the State Commission shall, not  later than five years from the date of commencement of  the Electricity (Amendment) Act, 2003 (57 of 2003) by  regulations, provide such open access to all consumers  who require a supply of electricity where the maximum  power to be made available at any time exceeds one  megawatt.]

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(3)  Where any person, whose premises are situated  within the area of supply of a distribution licensee,  (not being a local authority engaged in the business  of  distribution of  electricity  before  the  appointed  date) requires a supply of electricity from a  generating company or any licensee other than such  distribution licensee, such person may, by notice,  require the distribution  licensee  for  wheeling  such  electricity in accordance with regulations made by the  State Commission and the duties of the distribution  licensee with respect to such supply shall be of a  common carrier providing non­discriminatory open  access. (4)  Where the State Commission permits a consumer or  class of consumers to receive supply of electricity  from a person other than the distribution licensee of  his area of supply, such consumer shall be liable to  pay an additional surcharge on the charges of  wheeling, as may be specified by the State Commission,  to meet the fixed cost of such distribution licensee  arising out of his obligation to supply.  (5)  Every distribution licensee shall, within six  months from the appointed date or date of grant of  licence, whichever is earlier, establish a forum for  redressal of grievances of the consumers in accordance  with the guidelines as may be specified by the State  Commission. (6) Any consumer, who is aggrieved by non­redressal of  his grievances under sub­section (5), may make a  representation for the redressal of his grievance to  an authority to be known as Ombudsman to be appointed  or disignated by the State Commission. (7)  The Ombudsman shall settle the grievance of the  consumer within such time and in such manner as may be  specified by the State Commission. (8)  The provisions of sub­sections (5), (6) and (7)  shall be without prejudice to right which the consumer  may have apart from the rights conferred upon him by  those sub­sections.”

41. Section 50 of the Electricity Act, 2003 empowers the  

State Commission to specify an Electricity Supply Code to  

provide for recovery of electricity charges, intervals for  

billing of electricity charges, measures for preventing

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damage to electrical plant or electrical line or meter,  

entry of distribution licensee etc., and it reads as  

follows:

“50. The Electricity Supply Code.­  The State  Commission shall specify an Electricity Supply Code to  provide for recovery of electricity charges, intervals  for billing of electricity charges, disconnection of  supply of electricity for non­payment thereof,  restoration of supply of electricity, measures for  preventing tampering, distress or damage to electrical  plant or electrical line or meter, entry of  distribution licensee   or any person acting on his  behalf for disconnecting supply and removing the  meter,  entry  for  replacing, altering  or maintaining  electric lines or electrical plants or meter and such  other matters.” From reading Section 50, it is clear that under the  

Electricity Supply Code provisions are to be made for  

recovery of electricity charges, billing of electricity  

charges, disconnection etc. and measures for preventing  

tampering, distress or damage to the electrical plant or  

line or meter etc.   But the said code need not provide  

provisions relating to it do not relate to assessment of  

charges for “unauthorized use of electricity” under Section  

126 or action to be taken against those committing  

'offences' under Sections 135 to 140 of  the  Electricity  

Act, 2003.

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42. Limitation under Section 173,174 and 175 of the  

Electricity Act, 2003 is only qua the scope of Consumer  

Protection Act, which read as under:

“  173. Inconsistency in laws.­  Nothing  contained in this Act or any rule or  regulation made thereunder or any instrument  having effect by virtue of this Act, rule or  regulation shall have effect insofar as it is  inconsistent with any other provisions of the  Consumer Protection Act, 1986 (68 of 1986) or  the Atomic Energy Act, 1962 (33 of 1962) or  the Railways Act, 1989 (24 of 1989).”

174. Act to have overriding effect. ­ Save  as otherwise provided in section 173, the  provisions of this Act shall have effect  notwithstanding anything inconsistent  therewith contained in any other law for the  time being in force or in any instrument  having effect by virtue of any law other than  this Act.

175. Provisions of this Act to be in addition  to and not in derogation of other laws. ­  The provisions of this Act are in addition to  and not in derogation of any other law for  the time being in force.”

43. The inconsistency would arise only if the provisions of  

the Electricity Act, 2003  run counter to the provisions of  

the  Consumer Protection  Act, 1986 or if  while enforcing  

provision on one statute, provisions of other statute is  

violated.   We find that the entire object and reasons of

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Consumer Protection Act is not crossed over by the  

Electricity Act, 2003 and whenever such situation arise the  

Electricity Act, 2003 has left the option open for the  

consumer to take recourse under other Laws.  

44. The National Commission by its majority decision dated  

10th  April, 2008 referring to Section 3 of the Consumer  

Protection Act, 1986 and Sections 173, 174 and 175 of the  

Electricity Act, 2003 held as follows:

“A bare reading of the aforesaid Sections  makes it abundantly clear that –  

(i)The intention of the Parliament is not to bar  the jurisdiction of the consumer fora under the CP  Act. The Electricity Act also impliedly does not  bar the jurisdiction of the consumer fora;

(ii)On the contrary, it saves the provisions of  Consumer Protection Act, 1986, Atomic Energy Act,  1962 and the Railways Act, 1989;

(iii)By non­obstante clause, it has been provided  that if anything in the Electricity Act, Rules or  Regulations is inconsistent with any provisions of  the Consumer Protection Act, it shall have no  effect; and

(iv)Provisions of the Electricity Act are in  addition to and not in derogation of any other law  for the time being in force.  The act supplements  the existing redressal forum, namely, the Consumer  Fora.”

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45. The National Commission though held that the intention  

of the Parliament is not to bar the jurisdiction of the  

Consumer Forum under the Consumer Protection Act and have  

saved the provisions of the Consumer Protection Act,  

failed to notice that by virtue of Section 3 of the  

Consumer Protection Act, 1986 or Sections 173,174 and 175  

of the Electricity Act,  2003, the Consumer Forum cannot  

derive power to adjudicate a dispute in relation to  

assessment made under Section 126 or offences under  

Sections 135 to 140 of the Electricity Act, as the acts of  

indulging in "unauthorized use of electricity" as defined  

under Section 126 or committing offence under Sections 135  

to 140 do not fall within the meaning of “complaint" as  

defined under Section 2(1)(c) of the Consumer Protection  

Act, 1986.  

46. The acts of indulgence in "unauthorized use of  

electricity" by a person, as defined in clause (b) of the  

Explanation below Section 126 of the Electricity Act,2003  

neither has any relationship with "unfair trade practice"  

or "restrictive trade practice" or "deficiency in service"  

nor does it amounts to hazardous services by the licensee.  

Such acts of "unauthorized use of electricity" has nothing

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to do with charging price in excess of the price.  

Therefore, acts of person in indulging in 'unauthorized use  

of electricity', do not fall within the meaning of  

"complaint", as we have noticed above and, therefore, the  

"complaint" against   assessment under Section 126 is not  

maintainable before the Consumer Forum. The Commission has  

already noticed that the offences referred to in Sections  

135 to 140 can be tried only by a Special Court constituted  

under Section 153 of the Electricity Act, 2003.   In that  

view of the matter also the complaint against any action  

taken under Sections 135 to 140 of the Electricity Act,  

2003 is not maintainable before the Consumer Forum.   

47.  In view of the observation made above, we hold that:

(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 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.  

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(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”.   

48. For the reasons as mentioned above, we have no  

hesitation in setting aside the orders passed by the  

National Commission.  They are accordingly set aside.  All

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the appeals filed by the service provider­licensee are  

allowed, however, no order as to costs.  

………..……………………………………………..J.    (G.S. SINGHVI)

……………………………………………………….J.               (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI,  JULY 1, 2013.