H. Wadhwa vs BSES Rajdhani Power Limited

This Revision Petition has been filed under Section 58(1)(b) of the Consumer Protection Act, 2019) (the “Act”) against impugned order dated 22.03.2023 of the State Consumer Disputes Redressal Commission, Delhi (‘the State Commission) in FA No. 74/2022. In this, the Appeal filed by the Petitioner/ Complainant was dismissed, thereby affirming the District Consumer Disputes Redressal Forum, Distt. Janakpuri, New Delhi (District Forum) order dated 09.03.2022 in CC No. 75 of 2022 wherein the complaint was dismissed.

For ease of reference, the parties mentioned in the original Complaint filed before the District Forum. Ms. H. Wadhwa is referred to as the Complainant. BSES Rajdhani Power Limited shall is referred as the Opposite Parties (OP).

Brief facts of the case, as per the Complainant, are that she is residing alone at 58/20 Ashok Nagar, New Delhi-110018 after the demise of her parents. She intermittently resided in Nainital between 2010 and 2015, visiting Delhi only for brief periods. On 19.01.2015, when the Complainant was away from Delhi, OP disconnected the electricity supply to her residence, breaking the locks and reading the meter without informing her. Subsequently, she received two electricity bills dated 10.09.2014 of Rs 2,94,808/- and 16.09.2014 Rs.1,58.587/-, respectively, showing discrepancies in the amounts charged. Despite her efforts to get the issue rectified, OP failed to address the matter. More than seven years have elapsed since the electricity connection to her premises was disconnected on 19.01.2015. Despite numerous interactions with officials, the OP did not resolve the issue, and 13 electricity bills issued from September 2014 to January 2015 were exaggerated, as she was often out of town and did not consume electricity during that period. Additionally, the OP failed to provide month-wise electricity consumption and bills despite repeated requests. She requested OP verbally and by letters dated 13.12.2020, 23.12.2020, 02.01.2021, 12.01.2021, 22.01.2021, to test the electricity meter on-site. But her requests were ignored for over six years. Instead of addressing the issue, the OP demanded to review the full chain of property papers and claimed non-cooperation. The Complainant averred that in 2010, a collaboration agreement was executed between the Complainant and builders regarding the property in question. However, subsequent to the agreement, the builders requested the Complainant to provide the full chain of property papers for sanctioning plans from the Municipal Corporation of Delhi (MCD). Despite initially agreeing to the terms, the builders later sought to acquire the property unlawfully, prompting legal action from both parties. She alleged harassment by the builders, leading to litigation and requests to return the property papers. She highlighted discrepancies in notices received from the OP, including variations in outstanding dues and sanctioned load amounts, casting doubt on the accuracy of the bills and records maintained by the OP. She contested claim of non-payment of bills since 2010 and asserted that she paid bills regularly until August 2014. However, the OP issued false and inflated bills, despite her absence from Delhi during that period. While the electricity was disconnected on 19.01.2015 yet the OP sent notices for disconnection and outstanding dues, displaying inconsistency and causing further harassment to her. She further alleged forgery and perjury by the OP, citing discrepancies in notices and meter readings. Despite regular bill payments until August 2014, the OP issued false and inflated bills, leading to harassment and anguish to her. Being aggrieved, she filed a complaint u/s 35 of the Act before District Forum, however, the same was withdrawn on 07.12.2021 with liberty to file a fresh complaint. Consequently, she filed a fresh Consumer Complaint No. 75 of 2022 before the District Forum Seeking compensation of Rs.21,00,000/-, restoration of the electricity connection and withdrawal of false bills.

The learned District Forum vide Order dated 09.03.2022, dismissed the complaint and imposed a cost of Rs.5,000/- on the Complainant, providing the following reasons and finding: -

“50. In the light of the judgment discussed above & legal preposition, we hold that With regard to the question of limitation neither the facts mentioned in the complaint nor any argument made by the complainant justify the inordinate delay in filing the complaint on 17.02.2021. We, therefore, dismiss the present complaint.

A perusal of the record shows that the complainant also filed a complaint previously and the same was withdrawn vide order dated 07/12/2021. She has a habit of filing frivolous complaints as afterthoughts. We, therefore, dismiss the complaint with cost of Rs.5,000/- (Rupees five thousand only). The Complainant is directed to deposit the costs of Rs.5,000/- by way of demand draft in the name of CCPA, within four weeks from today. In case of the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @9% per annum till realisation.”

Being aggrieved by the learned District Forum order, the Complainant filed Appeal No. 74/2022 and the State Commission vide Order dated 22.03.2023 dismissed the Appeal and affirmed the Order passed by the District Forum, with the following findings –

“5. To answer the question that whether the Petitioner falls under the definition of consumer provided in the Consumer Protection Act, 1986, we deem it appropriate to refer to Section 2(1)(d) of the said Act, which provides as under: -

"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 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]"

Perusal of the above section reflects that a person who avails services or buys goods for any commercial purpose does not fall under the category of Consumer provided by the Consumer Protection Act, 1986. Although the Respondent contended that the Petitioner indulged in commercial activities, however, the said contention is not supported by any documentary evidence. Mere bald statement is not sufficient to raise an adverse inference against the Petitioner. Therefore, the said contention of the Respondent holds no merit.

The next question of consideration before us is whether the consumer courts can entertain complaints against the power bills assessed under the Electricity Act.

We deem it appropriate to refer to U.P. Power Corporation Ltd. and Ors. VS. Anis Ahmad reported in (2013) 8 SCC 491 wherein Hon'ble National Commission has held as under:

"From a bare reading of section aforesaid we find that the "consumer" as defined under Section 2(15) includes any 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".

On this issue, the law is well settled by the Apex court, which has held that consumer courts cannot entertain complaints against power bills assessed under the Electricity Act or take action against power corporations and a complaint against the assessment made by the corporation is not maintainable before a consumer Commission.

In view of the forgoing, we are in agreement with the reasons given by the District Commission and fail to find any cause or reason to reverse the findings of the District Commission. Consequently, we uphold the Judgment dated 09.03.2022 passed by the District Consumer Disputes Redressal Commission, (Distt. West), Janakpuri, New Delhi.

Being dissatisfied by the Impugned Order dated 22.03.2023 passed by the State Commission, the Petitioner / Complainant has filed the instant Revision Petition bearing No. 809 of 2023.

Upon notice of the present petition, the Respondent/OP filed its reply, raising preliminary objections regarding the maintainability of the dispute. The Respondent argued that the petition should be dismissed on these grounds alone. Additionally, on the merits, the Respondent contended that the petition is liable to be dismissed due to its lack of maintainability. The Respondent pointed out that the Learned State Commission did not provide separate findings on the merits of the case, apart from those contained in the order of the District Commission dated 09.03.2022. In its preliminary submissions, the Respondent contended that the electricity connection with a Domestic tariff category was sanctioned to the Petitioner’s premises before the year 1990, initially with a mechanical meter bearing No. 004271, which was later replaced by electronic meter No. 21243975 on 30.06.2010. However, since the installation of the electronic meter, the meter reading could not be downloaded or recorded until 03.09.2014 due to the premises consistently being found locked. The Respondent issued notices on 15.04.2013 and 14.06.2013 to the Petitioner, requesting access to record/download the meter reading, but she did not facilitate this process. Copies of these notices were filed. Further, vide letter dated 15.04.2013 she was informed that meter reading at her premises would be taken during 17.04.2013 to 22.04.2013, advising her to contact the Data Centre Executive for downloading the reading. Another letter dated 14.06.2013 warned her that failure to arrange for meter reading within specified time would result in electricity disconnection without further notice. In response, she cited personal reasons and requested three to four months' time, as evidenced by a letter dated 14.06.2013 submitted by her. Later, on 03.09.2014, the meter reading was recorded/ downloaded, showing a total consumption of 30,033 units, for which a bill of Rs. 1,58,580/- was raised, after allowing slab benefits. Despite several notices for disconnection issued on 02.10.2014, 11.11.2014, and 20.11.2014, electricity supply was not disconnected initially due to assurances of payment from the Petitioner. However, when it became apparent that the Petitioner was deliberately avoiding payment, a final disconnection notice was served on 24.12.2014, and the electricity supply was ultimately disconnected on 19.01.2015. As the premises remained locked, the meter could not be recovered. The Respondent clarified that a bill of Rs. 2,94,808/- was issued on 10.09.2014, later revised to Rs. 1,58,587/- on 16.09.2014. Pursuant to the Petitioner's grievance, the meter was tested on 16.04.2021 and reading of 33,657 units was recorded at the time of disconnection, confirming the accuracy of the bill. It is noted that under DERC guidelines, electricity supply can only be restored upon payment of dues within 180 days. Thereafter, a new connection application is required.

The Respondent argued that the Petitioner failed to pay legitimate dues for over four years, thus not entitled to damages. Moreover, the Petitioner's claims lack supporting evidence of damages. The present petition is viewed as an attempt to prolong a frivolous litigation against the Respondent, based on false grounds and without merit. The Respondent contends that there is no material irregularity committed by the State Commission, and the Petitioner is misusing statutory rights to unjustly prolong litigation.

In her arguments, the Petitioner reiterated the facts of the case and highlighted that the meter disconnected on 19.01.2015, was subsequently restored by the department on 16.04.2021 for testing purposes. But it remained in her possession as no request has been made by the department for its return. Additionally, the meter security amount is still held by the department. The Petitioner emphasized that correspondence between her and the OP continued until June 2021. She pointed that after 16.04.2021, the Respondent created another bill for Rs.2,03,500/-, labelled as the "Actual Amount" till 19.01.2015. However, the consumption history in the bill indicates that the billing period is from 21.08.2014 to 03.09.2014, spanning 14 days, with a bill amount of Rs.2,94,800/-. The Petitioner asserted that the process is ongoing and has not yet been completed. She further argued that when her electricity supply was disconnected, she made efforts to resolve the issue by contacting the concerned branch of BSES through personal meetings and letters/reminders. The OP assured her not to contact their Head Office and promised to restore the supply. However, despite assurances, when she was unable to get the supply restored, she reached out to the concerned branch Head Office but received no relief. Additionally, she filed a case in the Permanent Lok Adalat as suggested by one of the officials of BSES. After pursuing the matter in the PLA, she proceeded to file the case in the District Commission. Contrary to what was mentioned in the order dated 07.12.2021 (Case No. 372/2021), she clarified that she was compelled by the District Commission to withdraw the case, which was indicated by her to this Commission on 07.10.2022. Therefore, she prayed for the restoration of electricity supply and requested the Commission to pass an order for compensation in her favour, amounting to Rs.21,00,000/-, for the undue harassment, cruelty, depression, unnecessary torture, and mental trauma.

The Learned Counsel for the Respondent/ OP reiterated the objections raised in the reply to the Petition and asserted that the Complaint was dismissed due to jurisdictional error and limitation, as it was prima facie barred by limitation, being filed over 7 years after the accrual of the cause of action. Additionally, he contended that the present petition before this Commission is not maintainable under due process of law. The cause of action arose on 19.01.2015, when the Complainant alleged that her electricity was disconnected by the Respondent. However, the Petitioner filed the Complaint before the Hon’ble District Forum only on 17.02.2022. Consequently, in accordance with Section 69 of the Consumer Protection Act, 2019, the complaint is barred by limitation. Therefore, as the Petitioner failed to pay her legal and valid dues for a period of over four years, and there is no supporting proof that she suffered any damages or loss due to the acts of the Respondent, the present Petition needs to be dismissed with costs.

It is a well settled position in law that revision under section 58(1)(b) of the Consumer Protection Act, 2019, (which is pari materia to Section 21(b) the Consumer Protection Act, 1986) confers very limited jurisdiction on this Commission. In the present case there are concurrent findings of the facts and the revisional jurisdiction of this Commission is limited. From the facts emerged and the arguments made, I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the learned District Forum and the State Commission warranting our interference in revisional jurisdiction under Section 21(b) of the Act. In this regard, I rely upon the decision of Hon'ble Supreme Court in 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269.

The Hon'ble Supreme Court in 'Sunil Kumar Maity Vs. State Bank of India & Anr. Civil Appeal No. 432 OF 2022 Order dated 21.01.2022, it was held that the revisional Jurisdiction of this Commission is extremely limited by observing as under: -

"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the OP-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

Similarly, the Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held that:-

As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally  or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

Based on the discussion above, I do not find any illegality or material irregularity with the reasoned orders passed by the learned District Forum and the learned State Commission. Therefore, the present Revision Petition is dismissed.

Notwithstanding the above, with due regard to the absence of the Petitioner/ Complainant from her home for long durations and the circumstances advanced by her, the OP is called upon to consider possible waiver of additional charges from the total Bill payable within four weeks from the date of this order and, if the Complainant pays the final dues to the OP, the OP is directed to restore the electricity connection within a period of further two weeks.

There shall be no order as to costs. All other pending Applications, if any, also stand disposed of.