GUJARAT ELECTRICITY BOARD VS SULEMAN MITHABHAI KHODU

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

GUJARAT STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, AHMEDABAD
Hon‘ble Mr. Justice S.A. Shah, President;
Ms. Leelaben Trivedi, Member; Dr. R.K. Shah, Member
GUJARAT ELECTRICITY BOARD—Appellant/Opposite Party
versus
SULEMAN MITHABHAI KHODU—Respondent/Complainant
F.A. No. 76 of 1991—Decided on 16.6.1992

Advocates:
Counsel for the Parties :
For the Appellant :Mr. C.C. Patel, Advocate.
For the Respondent:Mr. P.S. Champaneri, Advocate.

Headnote:Consumer Protection Act, 1986 - Sections 2(1)(c), 2(1)(g) and 14 - Deficiency-in-service Complainant applied for electrical energy and paid the estimated cost - Connection not given - Complaint against - Whether a consumer dispute within the meaning of section 2(1)(c) and (d) of the Act? - (No) - Complainant is merely a potential consumer - Non extending the service cannot by itself be a deficiency-in-service - Order of granting connection cannot be passed u/s.14 of the Act. (Paras 8 to 10)
       Held, that while the service undertaken or performed by a person the deficiency like any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained under any law or which have been undertaken to be performed must be shown and proved. When the potential consumer performs his part of the contract but the other party did not accept the offer or may refuse to grant the services the question of deficiency in service might not arise unless we come to the conclusion that non-extending the service itself is a deficiency. (para 8)
       In the instant case the Board had reasons not to extend the services because according to the Board the complainant was found to be extracting energy by his unilateral action. No doubt, the theft has not been proved in the Criminal Court. But that does not mean that the Board is bound to accept that he had not unilaterally taken the energy by unlawful means. In any view of the matter the Board has some reasons not to accept the offer of the complainant to give the power supply. It is possible that the action of the Board may not be quite legal but we are not here to decide whether the Board is right or wrong. The only question that arises for our consideration is whether the complainant who has paid the deposit to whom the energy is not granted for some apparent reason can be said that he is a consumer? To our opinion he is not a consumer. And if the energy is not granted, can it be said to be deficiency in service?
       To our opinion the relationship of a consumer and provider of service has not come into existence and, therefore, the question of deficiency in service does not arise in this case. Therefore the District Forum had no jurisdiction to pass any order. (Para 9)
       The order for granting connection cannot be passed under the provisions of Section 14 of the Act compelling the Board to give electricity. It has been now finally decided by the Honble National Commission that the Consumer Forums are entitled to pass orders which provided under section 14 of the Act only and no other orders.
       Result: Appeal Allowed.
       IMPORTANT POINTS
       1. Complainant who has paid the deposit to whom the electrical energy is not granted for some apparent reason cannot be said that he is a consumers and non-extending the service by itself cannot be held deficiency-in-service.
       2. The order for granting electricity connection cannot be passed under the provisions of section 14 of the Consumer Protection Act, compelling the Electricity Board to give electricity.

ORDER

Mr. Justice S.A. Shah, President — The original opponent being aggrieved by the order of the District Forum, Surendranagar has filed this appeal. The respondent complainant had agricultural land in the sum of village Khodu. For the purpose of fetching water from his well to irrigate the field he decided to install an engine and, therefore, applied for electrical energy to the appellant. His application was registered vide entry No. 4370 for 15 H.P. It appears that after the receipt of the application a ‘yadi’ was sent to the complainant on 2.6.88 directing him to pay the estimated cost of Rs. 2,460/which was immediately paid by him. He was given a consumer No. 2221 but the connection was not given and, therefore, he filed the complaint before the District Forum.

2. In reply to the complaint the Board has stated that before the connection charges were paid by the complainant it was found by the Jr. Engineer of the Opponent on 10.4.88 that the complainant had taken illegal power supply without the consent and knowledge of the Opponent and complainant was found stealing electrical power illegally and hence the Dy. Engineer (O&M) was directed to file a complaint of theft against the complainant. The complainant was sent ABCD bill of Rs. 37,976/- but he did not pay the same. Thereafter the bill was revised to Rs. 22,500/- but the same was not accepted by the complainant. A panchnama regarding the theft of power was made.

3. The opponent has further stated that the opponent was ready and willing to give the complainant connection if he pays up the bill in ABCD formula. In para 10 the opponent has raised the contention that the District Forum had no jurisdiction to hear and decide such a complaint and this issue should be treated as a preliminary issue.

4. A criminal complaint was filed for theft of power but the learned Chief Judicial Magistrate, Surendranagar acquitted the complainant holding that the charge about pilferage of electricity energy was not proved.

5. The District Forum has raised a question that at the last moment the Board changed the decision as it was found that the complainant had committed theft of electrical energy to the tune of Rs. 37,976/- and, therefore, the Board was constrained to withhold the grant of connection. Can the Board be stamped right, just and proper for with-holding the connection is the point which is posed before us for consideration.

6. In this appeal the same question has been posed before us by the learned Advocate of the appellant contending that the Board has not given any electrical energy to the complainant who according to him has not paid the ABCD bills. He has therefore not become the consumer of the Board and, therefore, no question of any deficiency in service arises, the District Forum has not given any clear finding as to whether the complaint is a consumer dispute within the meaning of Sections 2(1)(c) and (d) of the Consumer Protection Act. The District Forum has accepted the case of the complainant and directed Electricity Board to give connection to the applicant within a period of 15 days and further directed that the opponent shall pay Rs. 7,585.73 to the applicant the amount of water charges which the applicant was required to pay for the prolonged inaction of the Board in giving the connection.

7. There is no dispute in this case that on the date when the complaint was filed the complainant was not granted any electrical energy. He had not become a consumer as a matter of fact though he has paid certain amount by way of charges for the installation of electrical connection. He is merely a potential consumer but still the service was not given to him.

8. Now if we consider the definition of complaint, so far the service is concerned, it reads as under:

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

(i) xxx

(ii) xxx

(iii) the service mentioned in the complaint suffer from deficiency in any respect.

‘Deficiency’ has been defined in clause (g)

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