2016 PLP 1104 (CLC)

ABDUS SATTAR ASGHAR, J.

This first appeal under section 33 of the Punjab Consumers Protection Act, 2005 (to be called hereinafter as the Act of 2005) is directed against the order dated 19.8.2013 passed by learned Presiding Officer District Consumer Court Sargodha.

2. Succinctly facts leading to this appeal are that respondent lodged an application before the learned Presiding Officer District Consumer Court Sargodha alleging that he is owner of residential house No.2/B, Street No.2 Civil Lines Sargodha purchased by him vide registered sale deed from Sh. Muhammad Tariq who had obtained electricity connection bearing Reference No.09134211194802; that on 28.6.2013 appellant No.2 got registered a case FIR No.257 under section 39-A of the Electricity Act, 1910 against one Sh.Abu Bakar with the allegation that neutral wire of meter reference No.09342111946000 was found broken; that Sh. Abu Bakar obtained pre-arrest bail from the Court of learned Additional Sessions Judge Sargodha; that the said Sh.Abu Bakar has no concern with petitioner's house rather he resides in house No.75 block No.32; that thereafter respondent received a notice issued by SDO (Operation) Islampura Sub-Division FESCO Sargodha/appellant No.2 in the name of Sh.Abu Bakar raising a demand of Rs.62694/- with a warning that in default of payment of impugned bill electricity meter reference No. 134211194802 shall be disconnected. Being aggrieved of the said notice petitioner lodged the application under sections 3/4 of the Act of 2005 challenging the vires of the electricity charges and seeking an injunction from the District Consumer Court to restrain the appellants from disconnecting the electricity meter reference No.09134211194802 and also to restore the previous connection. Learned Presiding Officer District Consumer Court Sargodha disposed of the application vide impugned order dated 19.8.2013 in the following manner:- "

Irrespective of the controversy between the parties regarding theft of energy, if for the sake of arguments it is admitted to, even then the consumer could not have been charged double penalty for 6 months. According to respondent's policy circular the detection bill for energy can be charged limited to the period of 3 billing months or 6 months. In this case, no plausible explanation is available with the respondent for charging the consumer for 6 billing months. Therefore, the bill charged for 5256 units is set aside and respondents are directed to issue fresh bill according to the following formula:- 146x6KW = 876x3 Months = 2628 units Upon deposit of which the electricity connection of consumer shall be restored immediately. Complaint is disposed off."

3. It is argued by learned counsel for the appellants that the impugned order is against law and without jurisdiction; that the jurisdiction of the Consumer Court is restricted to the claim of damages with regard to defective product or service; that learned Consumer Court has no jurisdiction to determine other civil rights and liabilities of the parties; that the controversy falls within the general jurisdiction of the Civil Court under section 9 of Code of Civil Procedure 1908; that the impugned order being illegal, without jurisdiction is untenable and liable to set aside.

4. Learned counsel for the respondent resisted this appeal with the contentions that respondent being consumer of electricity and aggrieved of the impugned demand of exorbitant electricity bill is competent to invoke the jurisdiction of the Consumer Court under section 3 of the Act of 2005. He has taken reliance upon Chief Executive FESCO, Faisalabad and 2 others v. Nayab Hussain (PLD 2010 Lah. 95) and Messrs Neelab CNG Filling Station through Managing Director v. Managing Director, Sui Northern Gas Pipeline Ltd. and 4 others (PLD 2013 Peshawar 9); that the Consumer Court after making the inquiry has rightly passed the impugned order in accordance with law.

5. Arguments heard. Record perused.

6. At the outset it may be expedient to reproduce hereunder sections 3, 23, 25 and 31 of the Punjab Consumer Protection Act, 2005 and Rule 11 of the Punjab Consumer Protection Rules, 2009 which read below:- "Section

3. Act not in derivation of any other law.

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Section 23:- Powers of Authority.- (1) Any person may file a complaint for violation of the provisions of sections 11, 16, 18 and 19 before the Authority who, on being satisfied that such is the case, fine the violator that may extend to fifty thousand rupees and which may be recovered as arrears of land revenue. (2) The Authority may file a claim for declaring a product defective under sections 4, 5, 6, 7 or 8 or a service as faulty or defective under section 13 without proof of any damage actually suffered by a consumer but likely to be suffered keeping in view the general standard of that service. (3) The Authority may file a claim before the Consumer Court for declaring any act on the part of any person as being in contravention to Part IV of this Act without proof of any damage actually suffered but likely to be suffered due to the said contravention. (4) The Authority on receipt of a complaint or a reference from the Consumer Protection Council or on his own motion, may hold an inquiry as to defects in products or services or practices which contravene any of the provisions of this Act. No prior notice shall be required to be given to a manufacturer or provider of services for the purposes of holding an inquiry. (5) The Authority, while holding an inquiry, may direct the police or any other officer or authority of the Government to gather such evidence as it deems necessary or to perform function in accordance with law which have an impact on the inquiry. (6) The Authority may delegate his powers under this Act through a notification to any officer of the Government with its prior approval. (7) Any person aggrieved by the order passed under subsection (1) may file an appeal before the Government within thirty days of such Order. Section 25:- Filing of claims.- A claim for damages arising out of contravention of any provisions of this Act shall be filed before a Consumer Court set up under this Act. Section 31:- Order of Consumer Court:- If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:- (a) to remove defect from the products in question; (b) to replace the products with new products of similar description which shall be free from any defect; (c) to return to the claimant the price or, as the case may be, the charges paid by the claimant; (d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act; (e) to pay reasonable compensation to the consumer for any loss suffered by him dues to the negligence of the defendant; (f) to award damages where appropriate; (g) to award actual costs including lawyers' fees incurred on the legal proceedings; (h) to recall the product from trade or commerce; (i) to confiscate or destroy the defective product; (j) to remedy the defect in such period as may be deemed fit; or (k) to cease to provide the defective or faulty service until it achieves the required standard." Rule 11:-Claims on behalf of the public.- (1) If as a result of the inquiry, the Authority is satisfied that a contravention of the Act has taken place and public interest is affected or likely to be affected, the Authority shall give notice to the manufacturer or provider of service as required under section 28(1) of the Act to remedy the defects and to pay damages where loss has already been caused to any consumer. (2) If the manufacturer or provider of service is unwilling to remedy the defects or pay damages to an aggrieved person, the Authority may file a claim in the Court on behalf of the public."

7. Bare reading of provisions of section 3 of the Act of 2005 clearly manifests that it does not determine the jurisdiction of the Consumer Court rather aims to protect rights and interests of the consumer created by the Act of 2005 as well as the rights created in any other law for the time being in force. Preamble of the Act of 2005 contemplates the object of its legislation i.e. to provide for protection and promotion of the rights and interests of the consumer speedy redress of consumer complaints and for matters, connected therewith. Purpose of the enactment of the Act of 2005 is to furnish speedy remedy to the consumer for the claim of damages on account of defective product or service. The scheme of legislation in the Act of 2005 reveals that a consumer who suffers damage has two options (i) under section 23 to file complaint before the Authority that will conduct an inquiry and if satisfies may file claims under rule 11 of the Punjab Consumer Protection Rules, 2009 read with section 28 of the Act; and (ii) to file claim for damages under section 25 of the Act. The expression 'damage' is defined in section 2(d) of the Act 2005 as under:- "Section 2(d):- Damage means all damage caused by a product or service including damage to the product itself and economic loss arising from a deficiency in or loss of use of the product or service."

8. Perusal of the contents of the respondent's application before the Consumer Court reveals that it does not contain any claim of damages against the appellants. As per respondent's version impugned notice was issued in the name of Sh.Abu Bakar and not against him. Respondent also alleged that he is not consumer of meter reference No.09342111946000. Needless to say that Consumer Court was under obligation to examine the allegations raised in the application in order to determine its jurisdiction regarding respondent's grievance against exorbitant charges of electricity and restoration of the connection etc. Above quoted provisions of the Act of 2005 clearly manifest that jurisdiction of the consumer Court is restricted to the extent of defective products or services for which a consumer can file a claim to recover damages etc. against the manufacturer or service provider as the case may be. Determination of civil rights and liabilities of the parties falls within general jurisdiction of civil court in terms of section 9 of the Code of Civil Procedure 1908 which reads below:- "Section 9:- Courts to try all Civil Suits unless barred.-- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."

9. The respondent in his application questioning the impugned demand of electricity charges as exorbitant has sought for perpetual injunction restraining the appellants from disconnecting his electricity connection and mandatory injunction for restoration of the previous connection. The Consumer Court is not vested with the jurisdiction to take the cognizance of the respondent's grievance. The relief prayed for by the respondent could not be granted by the Consumer Court under the Act of 2005. In view of the above the learned Consumer Court had no jurisdiction to issue any permanent or mandatory injunction against the appellants therefore the impugned order dated 19.8.2013 being without jurisdiction is untenable and liable to set aside.

10. I have gone through the facts of cases cited by learned counsel for the respondent which are altogether distinct and distinguishable from the facts of this case, therefore, the dictums laid down in the cited cases are not helpful to the respondent.

11. For the above reasons, this appeal is allowed. Impugned order dated 19.8.2013 is set aside and respondent's application under sections 3/4 of the Act of 2005 is dismissed.

12. Before parting with this order, it is clarified that the respondent will be at liberty to avail efficacious remedy before the civil court of competent jurisdiction if solicited. ZC/F-11/L Appeal allowed.