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2008 DIGILAW 692 (DEL)

BSES Rajdhani Power Ltd. v. Ashok Kumar

2008-07-21

SHIV NARAYAN DHINGRA

body2008
1. This petition gives rise to the question whether Section 42 sub-Section (5) and (6) of Electricity Act, 2003 exclude the jurisdiction of Civil Court and a consumer has necessarily to resort to the machinery as provided under this provision of the Act and cannot file a civil suit. 2. The petitioners contention is that Section 42 (5) & (6) of Electricity Act, 2003 read with Section 145 Electricity Act, 2003 take away the jurisdiction of Civil Court. 3. Section 42 (5) & (6) of Electricity Act, 2003 read as under : “(5) Every distribution licensee shall, within six months from the appointed date or date of grant of license, 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 non-redressal of his grievances under sub-section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission.” 4. Section 145 of Electricity Act, 2003 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.” 5. A perusal of Section 145 would show that this Section operates only in respect of Section 126 and 127 of the Electricity Act. Section 126 is contained in Part XII of the Electricity Act and deals with investigation and enforcement. Section 126 provides that if on an inspection of the premises and after inspection of equipments, gadgets, etc. found connected or used in the premises, the Assessing Officer comes to conclusion that the person was indulging in unauthorized use of electricity, the Assessing Officer shall provisionally assess, to his judgment, the electricity charges payable by such person or by any other person benefited by such use. found connected or used in the premises, the Assessing Officer comes to conclusion that the person was indulging in unauthorized use of electricity, the Assessing Officer shall provisionally assess, to his judgment, the electricity charges payable by such person or by any other person benefited by such use. It is also provided that if Assessing Officer reaches to conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use was continuing for a period of 3 months. Section 127 provides that a person aggrieved by the final order made by Assessing Officer under Section 126 may prefer an appeal within 30 days of the order to the Appellate Authority as may be prescribed. 6. It is apparent that Section 145 of Electricity Act is not an omnibus Section which restricts the jurisdiction of Civil Court in respect of all and every matter that may arise concerning use of electricity by a consumer. Section 145 bars the jurisdiction of Civil Court only in respect of those matters which fall under Section 126 and 127. No other interpretation can be given to Section 145. Adverting to Section 42(5) & (6) of the Electricity Act, it is clear that these two provisions put an obligation on the distribution licensee to create a forum for grievance redressal of the consumer in accordance with guidelines laid down by the State Commission and an option is given to the consumer to make a representation for redressal of his grievance to the forum and if he is not satisfied with the action taken by the forum then to approach ombudsman to be appointed by the State Commission. 7. Section 42 does not provide that the jurisdiction of Civil Court shall be barred once the forum is created and comes into action. Rather Section 42 (8) specifically states that provisions of sub-Section (5), (6) and (7) shall be without prejudice to the right of consumer which he may have apart from the right conferred upon him by these sub-Sections. If these sub-Sections had not been there, the consumers only remedy for redressal would have been to approach the Civil Court. No other mechanism is provided in the Electricity Act where a consumer could go against the faulty bills. If these sub-Sections had not been there, the consumers only remedy for redressal would have been to approach the Civil Court. No other mechanism is provided in the Electricity Act where a consumer could go against the faulty bills. Thus where a bill is faulty, the consumer has an option that before approaching the Civil Court he may take resort to Grievance Redressal system created under Section 42 (5). However, even after approaching to the Grievance Redressal system, if he is not satisfied, he still has the remedy to approach the Civil Court for adjudication of his dispute. 8. The petitioner has placed reliance on Dheeraj Singh vs. BSES Yamuna Power Ltd. 127 (2006) DLT 525 and Ram Kishan vs. NDPL 130 (2006) DLT 549. A perusal of these judgments would show that in these judgments consumer had filed Writ Petitions before the High Court in respect of alleged faulty bills. The High court while dismissing the Writ Petition observed that the petitioner had alternate remedy available to him under Section 42 (5) & (6) and the petitioner should go to the Grievance Cell as created in terms of this provision and should not rush to High Court. In case the Writ Petitions, on the basis of alleged faulty bills, are entertained, the Court would be flooded with these kind of Writ petitions. When the attention of the Court was drawn to Section 42 (8), the Court observed that if petitioner has rights before any other forum, he can avail those rights and that would not mean that principle of alternate remedy available to him under law has to be ignored in view of Section 42 (8). This only means that Section 42(8) could also be resorted by the consumer as it provided for alternate remedy. The High Court was only concerned with the flood of Writ Petitions that may come to High Court despite the fact that the Grievance Redressal system was provided in the Act itself. 9. This Court had not observed that the jurisdiction of Civil Court was barred. Even otherwise it is settled law that exclusion of jurisdiction of a Civil Court must be construed very strictly. Ordinarily, a Civil Court has jurisdiction to entertain all civil disputes and unless and until the jurisdiction of Civil Court is barred specifically, the Court cannot infer the barring of jurisdiction of Civil Court. Even otherwise it is settled law that exclusion of jurisdiction of a Civil Court must be construed very strictly. Ordinarily, a Civil Court has jurisdiction to entertain all civil disputes and unless and until the jurisdiction of Civil Court is barred specifically, the Court cannot infer the barring of jurisdiction of Civil Court. I find no merits in the Petition. The same is hereby dismissed.