Through this appeal the appellant Company has challenged the order dated 19.6.2012 passed by the learned District Consumer Court, Multan.
2. Notice was issued to the respondent but despite service no one appeared on his behalf and, therefore, the respondent was already proceeded against ex-parte on 12.2.2014.
3. Precisely, the facts of the case are that respondent filed a complaint under Section 25 of Punjab Consumer Protection Act, 2005 for revising the bill for the month of October, 2011, sent by the appellant Company, on the ground that the same was against the reading shown on the meter.
4. The learned District Consumer Court, Multan, through the impugned order dated 19.6.2012, disposed of the complaint filed by the respondent directing the appellant Company that no amount will be charged on the basis of wrong bill with a further direction to pay the lawyer's fee to the respondent incurred by him on the proceedings.
5. Learned counsel for the appellant Company argued that the order passed by the learned District Consumer Court, Multan, was without jurisdiction as the dispute raised in the complaint does not fall within the jurisdiction of the learned District Consumer Court established under Punjab Consumer Protection Act, 2005.
6. I have heard the arguments advanced by learned counsel for the appellant and have also given my anxious consideration.
7. The matter involved in the present appeal is twofold; firstly, as to whether the District Consumer Court established under Punjab Consumer Protection Act, 2005 can adjudicate upon the disputes involving excessive billing being a Court of limited jurisdiction, and secondly, as to whether when a mechanism/remedy has been provided under Oil & Gas Regulatory Authority Ordinance, 2002, which is on one hand a federal legislation promulgated under Item No. 2 Part II of the Fourth Schedule of the Constitution of Islamic Republic of Pakistan, 1973 i.e. Federal Legislative List and on the other hand is a special law and special law would prevail over general law. For answering first question, I would examine different provisions of the Punjab Consumer Protection Act, 2005. Section 2(c) of the Act defines the word "consumer" as under:-- "consumer" means a person or entity who-- (i). Buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or
(ii) hires any services for a consideration and includes any beneficiary of such services."
In continuation to Section 2(c) of the Act Section 2(d) defines the word "damage" as under:- "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;"
The term "manufacturer" has been defined in Section 2(h) of the Act which reads as under:-- "manufacturer" includes a person or entity who--
(i) is in the business of manufacturing a product for purposes of trade or commerce;
(ii) labels a product as his own or himself as the manufacturer of the product;
(iii) as a seller exercises control over the design, construction or quality of the product that causes damage;
(iv) assembles a product by incorporating into his product a component or part manufactured by= another manufacturer; and
(v) is a seller of a product of a foreign manufacturer and assumes or administers warranty obligations of the product, or is affiliated with the foreign manufacturer by way of partial or complete ownership or control; or modifies or prepares the product for sale or distribution;"
Section 4 of the Act is reproduced below:-- "4. Liability for defective products.--(1) The manufacturer of a product shall be liable to a consumer for damages proximately caused by, a characteristic of the product that renders the product defective when such damage arose from a reasonably anticipated use of the product by a consumer.
(2) A product shall be defective only if--
(a) it is defective in construction or composition as provided in Section 5;
(b) it is defective in design as provided in Section 6;
(c) it is defective because an adequate warning has given as provided in Section 7; and
(d) it is defective because it does not conform to an express warranty of the manufacturer as provided in Section 8."
Section 25 of the Punjab Consumer Protection Act, 2005 provides that for damages arising out of contravention of any provision of this Act shall be filed before a Consumer Court set up under this Act This section has to be read in conjunction with Section 28 of the Act which provides a mechanism for settlement of claims. Section 31 of the Punjab Consumer Protection Act, 2005 deals with the nature of reliefs which can be ordered by the Consumer Court and the same is reproduced as under:-- "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 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 due to the negligence of the defendant;
(f) to award damages where appropriate;
(g) to award actual costs including lawyer's 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 stranded."
8. The bare reading of these Sections reveals that the Consumer Court established under Punjab Consumer Protection Act, 2005 is not a Court of general jurisdiction. It is its duty to examine the allegations raised in the complaint in order to determine its jurisdiction. Prayer for cancellation of gas bill or revising of gas bill by' a gas company could not have conferred jurisdiction upon the Consumer Court and the same falls outside the purview of this special Tribunal. The Consumer Court being a Court of limited jurisdiction, even if the question of jurisdiction has been raised or not, was under an obligation to decide as to whether the jurisdictional facts are existing to confer jurisdiction upon the Consumer Court. As and when the Consumer Court steps out of four corners of Punjab Consumer Protection Act, 2005, order passed by it would be a result of defective exercise of jurisdiction.
9. The question as to whether the Consumer Court can adjudicate upon the disputes for which a complete mechanism is provided is discussed hereinafter. Oil & Gas Regulatory Authority Ordinance, 2002 is promulgated under Item No. 2 Part II of Federal Legislative List. Section 42 of the Oil & Gas Regulatory Authority Ordinance, 2002 reads as under:- "42. Power to make regulations.--(1) The Authority may, by notification in the official Gazette, make regulations, not inconsistent with the provisions of this Ordinance or the rules, for the carrying out of its functions under this Ordinance.
(2) .........................
(a) .......................
(b) ........................
(c) ...................
(d) ...................
(e) Procedure for resolving disputes amongst the licensees, consumers and licensees, and users of open access facilities;
(f) .......................
(g) .....................
(h) ....................
(i) ...................
In exercise of the powers conferred under Section 42 of the Ordinance, 2002 complaint resolution procedure has been provided through Complaint Resolution Procedure for Natural Gas, Liquefied Petroleum Gas (LPG) and Compress Natural Gas CNG)] Regulations, 2003 which reads as under:-- "3. Nature of Complaints.--Any person may submit an application with the Registrar for--
(a) any act or thing done or omitted to be done by a licensee or dealer in violation or alleged violation f the Ordinance, rules, regulations, order of the Authority or terms and condition of the license;
(b) non-compliance by the licensee or dealer with the service standards in the areas including but not limited to;
(i) billing;
(ii) connection and disconnection or service;
(iii) metering;
(iv) undue delay in providing service;
(v) safety practices; or
(vi) quantity and quality of natural gas, LPG or CNG being supplied; or
(vii) discriminatory practices of the licensee or dealer."
Section 11 of the Oil & Gas Regulatory Authority Ordinance, 2002 reads as under:- "Complaints.--(1) Any interested person may file written complaint with the Authority against a licensee for contravention of any provision of this Ordinance or of any rule or regulation."
Any person aggrieved by any order or decision of the delegatees of a power delegated by the Authority has the right to prefer an appeal to the Authority and Authority shall hear and decide the appeal within ninety days from its presentation.
10. On the other hand, there is no dispute that subject of gas is dealt with by Item No. 2 Part II of Federal Legislative List and Oil & Gas Regulatory Authority Ordinance, 2002 is promulgated in exercise of the authority conferred by said Item No.
2. Section 6(2)(i) of the Ordinance provides that the Authority shall resolve the complaints and other claims against licensees for contravention of the provisions of these Ordinance, rules or regulations.
11. To my mind, the claim of the respondent falls within the ambit of Oil & Gas Regulatory Authority Ordinance, 2002 which provides an exclusive remedy in respect of the disputes between the consumer and the licensees. Even otherwise under the settled principles of law the provisions of a special law on the subject excludes the application of general law. The Honourable Supreme Court of Pakistan, in a judgment reported as Inspector General of Police, Punjab, Lahore and others vs. Musthaq Ahmad Warriach and others (PLD 1985 SC 159), has held that it is a settled principle of interpretation of statutes that the provisions of a special law on a subject excludes the application of general law. It would not be out of place to mention here that law framed in exercise of authority conferred by Item No. 2 Part II of the Federal Legislative List in the Fourth Schedule of the Constitution would prevail over conflicting provincial legislation under Article 143 of the Constitution.
12. For what has been discussed above, this appeal is allowed and the complaint filed by the respondent before the learned District Consumer Court is declared to be not maintainable.