The Assistant Executive Engineer, Kerala State Electricity Board Limited v. Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938** **WP(C).No. 20041 of 2014 (E) ----------------------------** **PETITIONER(S):** **-------------** **THE ASSISTANT EXECUTIVE ENGINEER THE KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL SUB DIVISION, NILAMBUR.** **BY ADVS.SRI.T.R.RAJAN,SC,K.S.E.B. SRI.SUDHEER GANESH KUMAR, SC, KSEB** **RESPONDENT(S):** **--------------** **1. THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN-695 033.** **2. THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MALAPPURAM, REPRESENTED BY ITS PRESIDENT, PIN-676 505.** **3. P.PARUKUTTY AMMA** **PARKAR, SANTHIGRAMAM, MANJERI, MALAPPURAM DISTRICT-676 121.** **R3 BY ADV. SRI.C.S.DIAS R3 BY ADV. SMT.B.BINDU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON 11-01-2017 DELIVERED THE FOLLOWING:** **WP(C).No. 20041 of 2014 (E) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1.TRUE COPY OF THE COMPLAINT IN ORIGINAL PETITON NO.139/1999 ON THE FILES OF THE 2ND RESPONDENT** **EXT.P2.TRUE COPY OF THE COMPLAINT IN ORIGINAL PETITON NO.139/1999 ON THE FILES OF THE 2ND RESPONDENT** **EXT.3.TRUE COPY OF THE ORDER DATED 10/4/2001 OF THE 2ND RESPONDENT IN OP NO.139/1999.** **EXT.P4.TRUE COPY OF THE ORDER DATED 23/1/2013 OF THE 1ST RESPONDENT IN APPEAL NO.400/2001.** **EXT.P5.TRUE COPY OF THE NOTICE DATED 17/1/2014 IN EXECUTION APPLICATION NO.54/2013 IN OP NO.139/1999 ON THE FILES OF THE 2ND RESPONDENT** **EXT.P6.TRUE COPY OF THE EXECUTION APPLICATION NO.54/2013 IN OP NO.139/1999 ON THE FILES SOF THE 2ND RESPONDENT** ## **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** ## **Rp** ## **//TRUE COPY//** ## **P.S. TO JUDGE** ## **A.M. SHAFFIQUE, J.** ## =============== W.P. (C) No. 20041 of 2014 ================== Dated this, the 11[th] day of January, 2017 ## **J U D G M E N T** This writ petition is filed challenging Exts.P3, P4, P5 and P6 by which the Consumer Disputes Redressal Forum (CDRF) and the appellate authority has passed orders against the petitioner. The short facts involved in the writ petition would disclose that the Assistant Executive Engineer of the KSEB is a respondent in OP No.139/1999 on the files of the Consumer Disputes Redressal Forum Malappuram. In the complaint, the allegation is that the 3[rd] respondent herein is a consumer having domestic connection with consumer No.267. The building is a two storeyed building and was being used as a lodging house. On taking note of the aforesaid fact, the tariff has been changed by the Board authorities as commercial. This was challenged by the petitioner before the Consumer Forum. The complaint was allowed by Ext.P3 order and the petitioner was directed to resume connection and to pay a sum of `31,500/- and cost of `4000/- to the complainant. Petitioner preferred an appeal as 400/2001 before the State Commission which came to be dismissed. W.P(C) No.20041/14 ## -:2:- Petitioner submits that they were not aware of the dismissal and they had come to know about the same only when notice of execution was received. Ext.P5 is the notice of execution and Ext.P6 is the execution application. The contention is that the entire procedure relating to the complaint is without jurisdiction. According to the petitioner, the connection was given to the residence of the 3[rd] respondent for domestic purpose in the year 1959 and the tariff was changed to commercial w.e.f. October 1998 and electricity charges were also paid under the said tariff since October 1998. The building was used for lodging purposes. It is submitted that the compensation was fixed by calculating the rent at `1500/- for 21 months for the reason that the house remained vacant w.e.f. July, 1999. Contention urged is that the claim of the 3[rd] respondent was that the tariff has to be changed and the stay wire to the post which is in a dangerous condition has to be replaced whereas the forum has gone beyond the averments in the complaint. 2. Counter affidavit has been filed by the respondent wherein it is contended that this Court shall not interfere with the orders passed by the Consumer Forum. As against the order W.P(C) No.20041/14 ## -:3:- passed by the State Commission, the petitioner has a remedy to file a revision before the National Commission and without exhausting such remedies, it was not open for the petitioner to approach this Court by filing a writ petition. Reference is also made by the learned counsel for respondent to the judgment in _**Nivedita Sharma v. Cellular Operators Assn. of India and**_ _**others**_ [(2011) 14 SCC 337] wherein it was held by the Apex Court that when statutory forums had been provided under the Consumer Protection Act, the High Court was not justified in interfering with the orders passed by the State Commission and that too overlooking the availability of alternate remedy. Reference is also made to another judgment in _**Cicily Kallarackal v. Vehicle Factory**_ [(2012) 8 SCC 524] wherein the Apex Court held that the order passed by the Commission are incapable of being questioned under writ jurisdiction as a statutory appeal in terms of Section 27A (1)(c)) lies to the Apex Court. That was a case in which a writ petition was filed against an order passed by the National Consumer Disputes Redressal Commission. The said judgment apparently will not apply to the facts of the present case. W.P(C) No.20041/14 -:4:- 3. There is no dispute about the legal position regarding the alternate remedy available under the Statute. But nevertheless, writ jurisdiction can be exercised even if there is an alternate remedy and the position is well settled by a long line of judgments. Even in _**Nivedita Sharma**_ (supra), the Apex Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In other words, while exercising power under Art.226, the Court should take note of the availability of statutory remedy and should exercise the writ jurisdiction consistent with the provisions of the Act. 4. In the case on hand, the main contention urged by the petitioner is that the very exercise of jurisdiction was bad in law. A perusal of the complaint would show that the 3[rd] respondent had given a complaint claiming that the tariff should be changed to domestic purpose and the excess amount paid at a higher rate should be refunded. 5. The Consumer Forum gets jurisdiction to entertain a complaint in regard to certain specified matters including an allegation of deficiency in service. ## W.P(C) No.20041/14 -:5:- ## 6. Complainant is defined under Section 2(b) of the Consumer Protection Act, 1986 as under:- _“(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,_ _(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.”_ 7. Complaint is defined under Section 2(c) as under:- _“(c) "complaint" means any allegation in writing made by a complainant that—_ _(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 service provider, as the case may be, has charged for the goods or for the_ -:6:- ## W.P(C) No.20041/14 _service 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 in force;_ _(d) agreed between the parties;_ _(v) goods which will be hazardous to life and safety when used or being offered for sale to the public,--_ _(a) in contravention of any standards 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 have known with due diligence to be injurious to life and safety.”_ ## 8. Consumer is defined under Section 2(d) as under:- _“(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_ ## W.P(C) No.20041/14 ## -:7:- _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;_ _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.”_ 9. The complainant's case is that the service provider had suddenly changed the tariff from domestic to commercial on the ground that the 3[rd] respondent had been utilizing the residential ## W.P(C) No.20041/14 -:8:- building for commercial purpose that is for running a lodge. It cannot be stated that the complaint was not maintainable especially the petitioner being a service provider. The statute also provides for an appellate remedy which had been availed of by the petitioner. 10. One contention urged by the 3[rd] respondent is that when the orders passed by the State Commission can be entertained by the National Commission, why should this Court interfere in the matter. The first question is whether the petitioner should be relegated to approach the National Commission under Section 21 of the Act. Section 21 reads as under:- ## _**“21. Jurisdiction of the National Commission.**_ _— Subject to the other provisions of this Act, the National Commission shall have jurisdiction— (a) to entertain—_ _(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and_ _(ii) appeals against the orders of any State Commission; and_ _(b) 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_ ## W.P(C) No.20041/14 ## -:9:- _Commission that such State Commission has exercised a 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.”_ ## 11. Section 19 relates to appeals, which reads as under: _“l9. Appeals.—Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:_ _Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less.”_ 12. The appeal lies against an order passed by the State Commission in exercise of its powers under Section 17(1)(a)(i). Section 17(1)(a)(i) relates to complaints where the value of goods W.P(C) No.20041/14 ## -:10:- or services and compensation, if any, claimed exceeds rupees 20 lakhs but does not exceed rupees 1 crore. In other words, there is no appeal against an order passed in an appeal entertained by the State Commission under Section 17 (1)(a)(ii). Of course under Section 21, the National Commission has the jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by the State Commission or where it appears to the National Commission that such State Commission has exercised the jurisdiction not vested in it by law and has failed to exercise the jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. It is apparently a _suo motu_ power to be exercised. However, the said power can as well be exercised on an application filed before the National Commission as well. 13. But, the question to be considered is, whether there is any patent illegality in the case warranting interference by this Court at this stage of the proceedings. Perusal of Ext.P3 would show that the Consumer Forum had gone beyond the claim made in the complaint. As already stated, the 3[rd] respondent's claim was for refixing the tariff at a particular rate and for changing a W.P(C) No.20041/14 ## -:11:- post. The reliefs granted in the complaint are as under:- _“(a) Opposite party will resume connection (consumer No.267) within 24 hours from the date of receipt of copy of this order._ _(b) Opposite party will pay a sum of Rs.31,500/together with a cost of Rs.4000/- to the complainant within 3 weeks from the date of receipt of copy of this order.”_ 14. Appeal has been dismissed on 23/1/2013 since there was no representation. Thereafter the petitioner is served with notice dated 17/1/2014 to appear on 21/2/2014. Ext.P6 is the execution petition. This writ petition is filed on 25/7/2014. Since the appellate authority had not considered the matter on merits, I do not think that this Court will be justified in considering the matter afresh. 15. Taking into account the fact that the petitioner can as well seek for restoration of the appeal and for a rehearing of the matter on merits, I am of the view that an opportunity can be granted for that purpose since the appeal was not decided on merits. Accordingly, this writ petition is disposed of as under:- (i) The petitioner is permitted to file necessary application W.P(C) No.20041/14 -:12:- for restoration and rehearing of the appeal on merits. (ii) The application shall be filed within a period of one month from today. (iii) On filing of the said application, the appellate authority shall consider the same and pass appropriate orders. (iv) Until final orders are passed in the application, further proceedings in the Execution Petition shall remain stayed. **==> picture [26 x 13] intentionally omitted <==** ## **A.M. SHAFFIQUE, JUDGE** Rp //True copy// PS to Judge