RELIANCE ENERGY CENTRE vs MUKARAM SHAIKH

-BEING aggrieved by the order dated 13. 4. 2007 passed by Mumbai Suburban District Consumer Forum in Consumer Complaint No. 75/2006, org. O. P. /reliance Energy has filed this appeal challenging the order passed by the Forum below.

BRIEFLY the case of the respondent in the Forum below was that the respondent resided at Shivaji Nagar, Kapaswadi, M. C. G. M. Compound, Versova Link Road, Near Saibaba Temple, Andheri (W), Mumbai. He had taken electric connection from Reliance Energy. It was the case of the complainant that O. P. changed address of the complainant and on 29. 5. 2006 without his permission they had removed the meter from his premises alleging that his house and other adjoining structures had been demolished by the Municipal Corporation. The complainant however asserted that he is still having possession of the house on the same site. When he applied for fresh electric connection, the official of Reliance Energy gave estimate of Rs. 37,732 and asked him to pay the said amount. Since it was not possible for him to bear this expenses, he was not given electric energy by the Reliance Energy and, therefore, he approached the District Consumer Forum by filing complaint with a prayer that his electric supply should be restored back and he also claimed Rs. 1 lakh towards compensation and Rs. 1,000 towards cost. The appellants who were org. O. Ps. filed written statement and claimed that on 24. 4. 2006 and on 25. 5. 2006, Municipal Corporation had demolished some illegal structures from Kapaswadi locality. Amongst those illegal structures, there was structure of complainant also. Shri Indulkar, official of Reliance Energy with Shri P. J. Musale went to the site of the structure and found that the complainant''s house was demolished and electric wires attached to the meter were cut off and it is for this reason, the official removed the meter from the demolished structure. The complainant asked for restoration of electric energy. He was told all these facts and was told that for getting fresh electric energy at the new place where he had constructed the house, he had to make fresh application. Estimate of Rs. 37,732 was given and he was asked to bring No Objection Certificate and Certificate of Pakka structure from the Municipal Corporation. But, he did not produce those two vital documents and, therefore, O. Ps. pleaded that there was no deficiency in service on their part and complaint should be dismissed. It was also pleaded that filing of complaint by the complainant was itself untenable in law. Inasmuch as he had taken this matter before the Electricity Ombudsman of Maharashtra State and his representation is pending before the said Authority. The said Authority refused to give interim relief to the complainant and, therefore, it pleaded that complaint should be dismissed.

On the basis of affidavits and documents placed on record, the learned District Consumer Forum found that on 29. 5. 2006 the power connection was discontinued by the Reliance Energy and there was deficiency in service on the part of Reliance Energy and therefore it was pleased to allow the complaint and directed by an award to restore the electricity connection to the complainant within one month and on their failure to do so, the Forum below was pleased to direct O. Ps. payment of Rs. 1,000 per month till the order was complied with. Aggrieved by this award, Reliance Energy has filed this appeal.

WE heard Mr. D. S. Sakhalkar, Advocate for the appellants/org. O. Ps. and respondent Mr. Mukaram Shaikh in person. We perused the impugned order and the documents placed on record.

AT the outset, we may mention that simultaneously the complainant/respondent herein was prosecuting two proceedings, one before Electricity Ombudsman and other before the Mumbai Suburban District Consumer Forum at Bandra. The respondent had filed consumer complaint on 16. 11. 2006 whereas he had already moved the Electricity Ombudsman of the State of Maharashtra by filing Representation No. 75/2006 and the very fact that the Electricity Ombudsman of the State of Maharashtra has passed the order on 12. 1. 2007 would go to show that filing of complaint before the District Consumer Forum was during the period when he was already prosecuting his own representation filed before the Electricity Ombudsman of State of Maharashtra. Before going to the merits of the case, let us advert to Section 42 of Electricity Act. Section 42 of Electricity Act, 2003, casts the duty on the Distribution Company (Distribution Licensee) to establish a Forum for redressal of the grievances of the consumers in accordance with the guidelines as may be specified by the Electricity Act. This is laid down in Section 42 (5) of Electricity Act, 2003. Any consumer who is aggrieved by the non-redressal of his grievances by the Forum established under Section 42 (5) of Electricity Act, 2003 is permitted to make representation for redressal of his grievance to an Authority known as ''ombudsman'' to be appointed or designated by the Electricity Company under Sub-section (6) of Section 42. Then under Sub-section (7) of Section 42, Ombudsman is required to settle the grievance of consumer within such time and in such manner as may be specified by the Company. So there is inbuilt mechanism or machinery sought to be established under the Electricity Act, 2003 and accordingly the Maharashtra Electricity Regulatory Commission has established Consumer Forum as well as Ombudsman under this Sub-section (7) of Section 42 of the Electricity Act, 2003. We have seen the Regulations styled as ''maharashtra Regulatory Commission, 2006''. We have gone through all the provisions of these Regulations and we are fully satisfied that to give effective relief to the consumers, regarding their grievances against Electricity Distribution Company, the Forums have been established as per directions of Maharashtra Regulatory Authority and there is also establishment of Ombudsman under Sub-section (6) of Section 42 of Electricity Act, 2003. It is pertinent to note that the complainant had approached the Forum constituted by the Reliance Energy Ltd. long before he filed consumer complaint in the Forum below. The said Forum established by the Reliance Energy was having retired High Court Judge as Chairman (Justice A. B. Palkar) and two members. The said Forum on 30. 9. 2006 heard the complainant as well as officials of Reliance Energy and passed the order dated 30. 9. 2006 and dismissed the application of the grievance filed by the complainant herein. In its reasoned order, the Forum of Reliance Energy Ltd. made following observations: "it also leads to the inference that the structure demolished by MCGB has been erected again after the demolition by MCGB and that also at a different site for which a cable of 90 to 100 mtrs. is required. Under the circumstances it is not possible to direct REL to provide supply to the existing structure in the absence of Way Leave from the Corporation and both the questions which are quoted earlier are required to be determined against the appellant. "

AGGRIEVED by this order of the Forum established by the Reliance Energy Ltd. , the complainant filed Representation No. 75/2006 before the Electricity Ombudsman of State of Maharashtra duly appointed under Section 42 (6) of Electricity Act, 2003. The Electricity Ombudsman also held that the appellant having not obtained consent or permission from the Municipal Corporation of Greater Mumbai and having not brought Way Leave Certificate from the Local Authority was not entitled to get restoration of connection discontinued by the Reliance Energy officials consequent upon the fact that previously his structure was demolished by the official of Municipal Corporation and he had constructed fresh house at the different place and he was not having any documents that he had constructed that structure with the permission of Municipal Corporation of Greater Mumbai. This order came to be passed on 12. 1. 2007 by then he had already filed present complaint in the Forum below.

THE Counsel for the appellant rightly placed reliance on the judgment of the National Commission in the case of A. E. E. K. P. T. C. L. v. T. Shiva Kumar, reported in (1986-2006) Consumer 11361 (NS ). The Hon''ble National Commission while deciding revision preferred by the Electricity Distribution Company clearly held that since the complainant had approached the Redressal Authority created under Indian Electricity Act, 2003 and his application was dismissed, the complainant then filed complaint in the Consumer Forum it was not tenable in law as he had exhausted remedy available under the Electricity Act, 2003. The National Commission made following observations while allowing the Revision and dismissing the complaint: "as per law settled by this Commission, it is for the consumer to opt for a given route for seeking Redressal of his grievances. In this case, the complainant opted the route of approaching a particular authority for Redressal of his grievance of excess billing. In our view, both the lower Forums exceed their jurisdiction in entertaining the complaint and then acting as if an Appellate Authority of the State Electricity Board hierarchy and thus, further directing refund of the amount deposited by the complainant before the other Appellate Authority. This Commission has held in catena of judgments that Section 3 of the Consumer Protection Act, 1986 does not envisage multiplicity of litigation and does not permit Consumer Forums to encourage form hopping just because of existence of Section 3 of the Consumer Protection Act, 1986. It is for the consumer to opt for a certain route of his volition and from there onwards, he is not expected to jump from one Forum to another Forum, which has been done in this case by the respondent/complainant which as per settled law by this Commission is not permitted. In view of this, we are unable to sustain the orders passed by the District Forum and State Commission which are set aside and complaint is dismissed. However respondent/complainant shall be free to approach the next Appellate Authority against the order passed by the Competent Authority of the Karnataka State Electricity Board, against dismissal of the appeal filed by the complainant before them. The complainant shall be free to approach for extension of limitation under Limitation Act as envisaged if so permissible under law, for the time spent before the Consumer Forums as per law laid down by the Hon''ble Supreme Court in the case of Laxmi Engineering Works v. P. S. G. Industrial Institute, 1986-1995 Consumer 1553 (NS) : 1995 (1) CCC 369 (NS) : (1995) 3 SCC 583. "

In the light of this judgment of the National Commission, we are of the considered view that once complainant approached inbuilt Consumer Fora established under Section 42 of Electricity Act, 2003, he speculated from knocking the doors of Consumer Fora established under Consumer Protection Act, 1986. The consumers have to choose whether they should file consumer complaint in the Forum established under Consumer Protection Act, 1986 or whether they should file representation before the Forum established under the Electricity Act, 2003. But once consumer decides to approach Consumer Fora established under the Electricity Act, 2003 then their right to file consumer dispute in Consumer Forum established under Consumer Protection Act, 1986 stands forfeited. They cannot by way of second inning be permitted to file fresh complaint after exhausting remedy available under Section 42 of Electricity Act, 2003. So, in the instant case, once the complainant approached the Forum established by Reliance Energy Ltd. and further approached the Electricity Ombudsman of State of Maharashtra and failed to get relief, he cannot be permitted to knock the doors of Consumer Fora established under Consumer Protection Act, 1986 and keep the dispute pending in perpetuity in this fashion.

THE Reliance Energy Company also relied upon the judgment of Delhi High Court in the case of North Delhi Power Ltd. v. Ravinder Sethi in Writ Petition (C) 13890/2006, the Hon''ble Delhi High Court took the similar view and held that once the petitioner elected to approach the Forum established under the Electricity Act, 2003 and secured order, it was not open to the same person to approach the Consumer Fora established under Consumer Protection Act, 1986. Thus, relying on these two rulings, we are of the view that the complainant should not have approached the Mumbai Suburban District Consumer Forum after he had exhausted remedy under Section 42 of Electricity Act, 2003 though unsuccessfully. He should have carried the matter further by filing writ petition in the Hon''ble High Court.

THERE is provision contained in Section 145 of Electricity Act, which clearly lays down provision in unambiguous that no suit or proceeding shall be instituted in any Civil Court in respect of any matter, which can be decided by the Adjudicating Officer appointed under this Act. It would necessarily mean that when the provisions have been made to safeguard the interest of the consumer by establishing their own Forum under Section 42 of Electricity Act, 2003 and further appeal has been provided under Section 42 (6) before the Electricity Ombudsman. Necessarily in terms of Section 145 any civil suit or proceeding is statutorily barred and such person cannot be permitted to file a proceeding of civil nature even before the Consumer Forum established under Consumer Protection Act, 1986. Section 174 of Electricity Act, 2003 further lays down the provisions as under: "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. "

This provision is also directly affect the rights of respondent herein to knock the doors of Consumer Forum established under Consumer Protection Act, 1986 since he had already approached the Authority established under Section 42 of Electricity Act, 2003. This technical objection raised by learned Advocate Mr. Sakhalkar for Reliance Energy is itself sufficient to allow this appeal and to quash the order passed by the Forum below. However, our observation does not mean to say that nobody can approach us by filing consumer dispute. If in a given case the complainant establishes deficiency in service on the part of the service provider like Reliance Energy or the State Electricity Board, which are not falling under any section of new Electricity Act, 2003 then relying on Section 173 of Electricity Act, 2003, such person can approach the Consumer Forum to redress his grievance. But, in this particular case, in view of facts and circumstances discussed above, it is required to be held that the consumer complaint as filed by the respondent was not tenable in law.

HOWEVER, on merits also the respondent has no case. There is ample evidence on record to suggest that the complainant''s hut was demolished by the Corporation since it was constructed by the side of Shivaji Nagar Housing Society, Andheri (W), Mumbai. The Society has issued letter to the Reliance Energy dated 20. 8. 2006 informing the Reliance Energy that by the side of Society all premises in the adjacent "nala" had been demolished by the Mumbai Municipal Corporation. More than 100 illegal huts or structures had been demolished since they were obstructing the flow of water from the Nala and at that time the official of Reliance Energy had taken away the electric meters from the demolished huts. The Society clearly stated further in its letter that Shaikh Mukram was not the member of the Society and he had no concern with them. The proprietor of Lucky Electric and Electronic Consultancy Company of Andheri (W) has also given letter to Reliance Energy dated 24. 8. 2006 informing them that he had done wiring at the house of Shaikh, respondent herein. The hut of Shaikh Mukram was demolished by the Municipal Corporation while clearing water flow of the stream/nala since that was causing obstruction to the flow of water. After demolition, electric meter was taken away by the Reliance Energy official. So, the respondent had constructed hut. He had taken electric energy from the Reliance Energy, but it was demolished by official of the Municipal Corporation since it was illegal structure. From January 2006 to 29th May, 2006 appellant was giving electric energy to the respondent. But the said structure was demolished somewhere in May 2006 and when he applied for fresh connection, the appellant-Company directed him to bring two Certificates from Municipal Corporation of Greater Mumbai about Pakka construction and about No Objection for giving electric supply to the complainant. The letter is called Way Leave. So, two certificates were required to be given by the complainant for re-supply of electric energy to the complainant. He had not produced the same and therefore he was not entitled to get re-connection of electric energy to his newly constructed hut at a slightly different place than the place, where his earlier illegal structure stood. These facts are borne out from the record and also from the order passed by the Consumer Grievance Forum of appellant Company and also in the order passed by the Electricity Ombudsman for the State of Maharashtra. So, unless the complainant/respondent herein produces two certificates from the Municipal Corporation of Greater Mumbai, he cannot get valid electric supply from the appellant-Company and, therefore, in the absence of Way Leave Certificate and Certificate of Pakka construction of the Municipal Corporation, he could not get electric energy from the appellant-Company. These facts were overlooked by the Forum below while deciding complaint in question. We are finding that the learned District Consumer Forum clearly erred in law in ignoring these vital aspects involved in the matter and they returned a wrong finding in favour of the complainant. Thus, the impugned order passed by the Forum below is wholly unsustainable in law. As such by allowing this appeal impugned award will have to be set aside. Hence, the following order: ORDER 1. Appeal is allowed. The impugned order is quashed and set aside. Complaint stands disposed of. 2. Parties are left to bear their own costs. 3. Misc. Appeal No. 838/2007, which is for stay stands disposed of. 4. Copies of the order be furnished to the parties.

Appeal allowed.