Gujarat High Court
Executive Engineer ( O And M) vs Shantikrupa Estate Pvt Ltd & on 5 February, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/7850/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7850 of 2014
With
SPECIAL CIVIL APPLICATION NO. 7853 of 2014
With
SPECIAL CIVIL APPLICATION NO. 7854 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ EXECUTIVE ENGINEER ( O AND M)....Petitioner(s) Versus SHANTIKRUPA ESTATE PVT LTD & 1....Respondent(s) ================================================================ Appearance:
MS LILU K BHAYA, ADVOCATE for the Petitioner(s) No. 1 MR SHALIN N MEHTA, SENIOR ADVOCATE WITH MR ABHISHEK MEHTA FOR M/S TRIVEDI & GUPTA, ADVOCATE for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Page 1 of 104 C/SCA/7850/2014 CAV JUDGMENT Date : 05/02/2015 COMMON CAV JUDGMENT
1. Rule. Mr.Abhishek Mehta,learned advocate for M/S.Trivedi and Gupta waives service of notice of Rule for respondent No.1 in Special Civil Application Nos.7850 of 2014,7853 of 2014 and 7854 of 2014, respectively. Respondent No.2 in the said petitions is the Consumer Grievances Redressal Forum, the orders of which are under challenge. Hence notice of Rule is not required to be issued to the said respondent. As the parties to the petitions are the same and common arguments have been addressed in the petitions, this Court proposes to decide the petitions by a common judgment, with the consent of learned counsel for the respective parties.
2. The factual background in which the petitions have been filed, as culled out from the petitions and the documents on record, is as under:
Special Civil Application No.7850 of 2014:
2.1 The petitioner, Uttar Gujarat Vij Company Ltd.
('"UGVCL " for short), is a Distribution Licencee, as Page 2 of 104 C/SCA/7850/2014 CAV JUDGMENT contemplated under the provisions of the Electricity Act, 2003 ("The Act" for short). Respondent No.1 ("the respondent Company" for short) is a Company registered under the provisions of the Companies Act, 1956 and is, inter alia, engaged in the business of Real Estate Development/Management. The respondent Company has initiated the work of a project in the name and style of "Shantikrupa", on land comprising village Vansjada and Chekhla of Taluka Sanand, District Ahmedabad, which is spread over an area of approximately 160 Acres. The respondent Company is undertaking activities of construction and development in the said area. According to the respondent Company, the work of development/ construction has already taken four years and is likely to be continued for another few years and, therefore, can be considered to be perennial in nature. The respondent Company applied for a permanent connection of electricity of 300 KVA for the purpose of construction of building, vide an application dated 27-8-2010. By a letter dated 30-8-2010, the petitioner informed the respondent Company to contact the Executive Engineer at the Divisional Office, Bavla, in order to examine the technical feasibility and show the points of supply. Thereafter, by a communication Page 3 of 104 C/SCA/7850/2014 CAV JUDGMENT dated 9-9-2010, the petitioner sought a clarification from the respondent Company regarding the Survey Numbers/ boundary. The petitioner informed the respondent Company that looking to the purpose,only a temporary connection can be granted to the respondent Company and that it should submit documents and details as mentioned in the letter.
2.2 On 15.10.2010, the petitioner sanctioned a 300 KVA temporary HT connection to the respondent Company. The respondent Company requested for the reduction of load from 300 KVA to 150 KVA and, therefore, the petitioner issued an estimate for Rs.4,93,367/- on 13.11.2010, which was paid by the respondent Company on 25.11.2010.
2.3 On 26.11.2010, the respondent Company addressed a letter to the petitioner seeking a permanent connection. This letter was replied to by the petitioner vide letter dated 11.01.2011, refusing the request of the respondent Company, inter alia, on the ground that Non Agricultural Use permission (NA permission) has not been taken in respect of some survey numbers and authentic ownership documents have Page 4 of 104 C/SCA/7850/2014 CAV JUDGMENT not been submitted. It is stated in the said letter that until these discrepancies are not removed, the application for permanent connection cannot be processed. The respondent Company addressed a letter dated 01.12.2010 to the petitioner, objecting to its action of releasing a temporary connection, despite the fact that the respondent Company had made a request for a permanent connection. As the respondent Company was not agreeable to the action of the petitioner in releasing a temporary connection, it approached respondent No.2-Consumer Grievances Redressal Forum ("the CGRF" for short), vide Case No.UG-03-020-2011-12. The application of the respondent Company was disposed of by the CGRF vide order dated 08.08.2011, observing that it does not have the jurisdiction to entertain a petition for the change of category for the purpose of tariff determination to another category.
2.4 The respondent Company, thereafter, approached the Electricity Ombudsman, State of Gujarat, under the provisions of the Act, vide Case No.54 of 2011. By order 08.09.2011, the Electricity Ombudsman disposed of the application by holding that the temporary HT power supply granted to respondent Company is in Page 5 of 104 C/SCA/7850/2014 CAV JUDGMENT order and a consumer not taking supply on a regular basis under a proper agreement shall be deemed to be taking supply for a temporary period. It was further held that a permanent HT power supply can be granted only after the submission of all necessary documents. 2.5 The petitioner, vide letter dated 13.12.2011, again informed the respondent Company that it would release a temporary connection and not a permanent one. In view of the stand of the petitioner, the respondent Company approached the Gujarat Electricity Regulatory Commission ("the GERC" for short), with a representation. By a communication dated 07.03.2012, the respondent Company was informed by the GERC that for non-implementation of the order of the Ombudsman, it could file a fresh grievance with the CGRF. 2.6 Thereafter, the respondent Company filed a review application before the Electricity Ombudsman in Case No.54 of 2011. By a communication dated 10.04.2012, the Ombudsman clarified that the order dated 08.09.2011, passed by it is in favour of respondent Company and for the implementation of the said order, the respondent Company should approach the GERC. Page 6 of 104 C/SCA/7850/2014 CAV JUDGMENT 2.7 The respondent Company, therefore, approached the GERC by way of petition No. 1228 of 2012. By an order dated 04.09.2012, the GERC directed the Ombudsman to pass a reasoned order when the matter is referred to him. The respondent Company approached the CGRF by filing a complaint, registered as UG-02-060-2012-13. On 18.01.2013, the CGRF passed an order in favour of the respondent Company, directing the petitioner to enter into an agreement with respondent Company and consider the connection of 150 KVA as permanent from 08.12.2011 and calculate the bill accordingly. This is one of the orders impugned by the petitioner in the present petition. Being aggrieved by the aforesaid order, the petitioner preferred a Review Application before the CGRF. By an order dated 16.04.2013, the Review Application of the petitioner was rejected by the CGRF by directing that the petitioner should execute an agreement with the respondent Company within thirty days. The petitioner was further directed to consider the period of two years from the date of the agreement and to calculate the bill as per HTP-1 Tariff and refund and give credit of the differential amount in the electricity bills. The aforesaid orders dated 18.01.2013 and 16.04.2013, Page 7 of 104 C/SCA/7850/2014 CAV JUDGMENT passed by the CGRF, are the subject matter of challenge in this petition.
Special Civil Application No.7853 of 2014 2.8 The parties in the petition are the same as in the earlier petition. The factual background is that the respondent Company initiated a project by the name of "Shantigram Township" on land spread over an area of approximately 625 acres of villages Khoraj, Khodiyar, Dantali and Jaspur, District Gandhinagar upon which it was doing development activities and construction work for the past four years. According to the respondent Company, the work is likely to continue for another few years and, therefore, the activity of development can be considered to be perennial in nature. The respondent-Company was desirous of procuring a permanent electricity connection of 200 KVA for the aforesaid site. On 02.07.2010, the petitioner wrote to the respondent Company, providing an estimate for the purpose of release of the electricity connection, and intimating it to enter into an agreement for this purpose. On 19.07.2010, the petitioner entered into an agreement with the respondent Company. Although the respondent Page 8 of 104 C/SCA/7850/2014 CAV JUDGMENT Company had requested for the grant of a permanent connection, the petitioner inserted the words "HTP-III Tariff" in the agreement, which is the tariff for a temporary connection. According to the respondent Company, this fact came to light only when it received a copy of the agreement. The respondent Company, therefore, objected to this action of the petitioner in seeking to grant a temporary connection to the petitioner in spite of its entering into an agreement, vide letters dated 08.12.2010, 23.03.2011 and 13.07.2011. On the request of the respondent Company for a permanent connection instead of a temporary one, the petitioner vide letter dated 28.07.2011 (addressed through its Executive Engineer to its Additional Chief Engineer), recommended the change in the tariff of the respondent Company from HTP-III to HTP-I (which is the tariff applied to a regular connection after entering into an agreement), considering the aspect that in the case of another consumer, namely, M/s. Lafarge Aggregates and Concrete India Pvt. Ltd., such type of usage of power supply is billed according to HTP-I Tariff.
2.9 On 30.01.2012, the GERC, in its meeting of Page 9 of 104 C/SCA/7850/2014 CAV JUDGMENT the CGRFs, discussing a suggestion regarding granting permanent connections for construction work clarified, that if the applicant/consumer was agreeable to entering into a two-year agreement, a permanent connection was to be provided.
2.10 On 30.07.2013, the Chief Engineer (Operations) of the petitioner issued a Circular, laying down guidelines regarding the applicability of temporary/permanent connections, by stating that 'temporary is the period and not the purpose'. It is further stated that any consumer, LT or HT, who agrees to execute a two-year agreement is to be provided with a permanent connection irrespective of usage, including construction, after observing all formalities.
2.11 As no further action was taken by the petitioner regarding the release of a permanent connection at the appropriate tariff the respondent Company approached the CGRF, on 19.02.2014. The CGRF passed an order dated 27.03.2014, in favour of the respondent Company, directing the petitioner to issue bills as per Tariff HTP-I and to adjust the Page 10 of 104 C/SCA/7850/2014 CAV JUDGMENT differential amount between Tariff HTP-I and HTP-III, in favour of the respondent Company in the bills for consumption of electricity, within a period of thirty days. It is this order that is under challenge in this petition.
2.12 It is the case of the respondent-Company that the petitioner accepted and implemented the impugned order dated 27.03.2014 of the CGRF which, according to it, is evident from the bill issued by the petitioner for the month of March (issued in April 2014) wherein the petitioner has given an adjustment of Rs.62,49,205.05 paisa and has also changed the Tariff from HTP-III to HTP-I. It is further the case of the respondent Company that the petitioner has, thereafter, unilaterally reversed the said transaction and recovered the said amount in the bill in the month of April, 2014 and reverted the respondent-Company back to HTP-III Tariff from HTP-I Tariff. While making submissions, learned advocate for the petitioner has denied that any credit was ever given to the respondent-Company.
Special Civil Application No.7854 of 2014 Page 11 of 104 C/SCA/7850/2014 CAV JUDGMENT 2.13 The respondent Company initiated the work of a project by the name of "Shantigram Township" over an area of approximately 625 acres of land in villages Khoraj, Khodiyar, Dantali and Jaspur of District Gandhinagar. According to the respondent Company, the work of development and construction is likely to take a long period of time and as four years have already passed, such work can be considered to be of a perennial nature, likely to be spread out over several years. The respondent Company was desirous of procuring a permanent electricity connection of 275 KVA for the aforesaid site, for the purpose of 'construction activity'. On 24.07.2009, the petitioner addressed a letter to the respondent Company, providing the estimate for the purpose of release of the electricity connection and intimating the respondent-Company to enter into an agreement for the said purpose.
2.14 On 11.08.2009, the petitioner entered into an agreement with the respondent Company which had requested for a permanent connection. According to the respondent Company, the petitioner was required to apply HTP-II (A) Tariff on the bills. Page 12 of 104 C/SCA/7850/2014 CAV JUDGMENT 2.15 On 29.09.2009, the petitioner wrote a letter to the respondent Company, informing it about the release of a connection under HTP-II (A) Tariff, as per 275 KVA contract demand.
2.16 After a span of nearly nine to ten months, on 31.07.2010, the petitioner informed the respondent Company that 'now as per present policy applicable, the tariff will be HTP-III and not HTP-II(A).' By letter dated 22.11.2010, the petitioner informed the respondent Company that it had decided to change the Tariff from HTP-II(A) (which had merged with Tariff HTP-I) to HTP-III with retrospective effect from 01.08.2010 and, thereafter, the billing would be under HTP-III Tariff. The petitioner further informed the respondent-Company that in view of the retrospective effect given to the HTP-III Tariff, the differential amount of Rs.33,86,639.90 Paisa was to be paid by the respondent Company which was debited to its account in the month of November, 2010 and may be paid within ten days.
2.17 By a letter dated 30.11.2010, the Page 13 of 104 C/SCA/7850/2014 CAV JUDGMENT respondent-Company objected to the act of the petitioner in seeking to apply a temporary connection to the respondent Company with retrospective effect, in spite of the fact that the respondent Company had entered into an agreement.
2.18 On 28.07.2011, the petitioner (Executive Engineer) addressed a letter to the Additional Chief Engineer, recommending the change in tariff of the respondent Company from HTP-III to HTP-I, considering that another company, namely, M/s. Lafarge Aggregates and Concrete India Pvt. Ltd. has been billed as per HTP-I Tariff for the same usage of power as the respondent Company. Thereafter, on 30.01.2012, the GERC, in its meeting of the CGRFs, upon a suggestion regarding grant of permanent connections for construction work, clarified that if the applicant/ consumer was agreeable to entering into a two-year agreement, a permanent connection was to be provided. 2.19 By a Circular dated 30.07.2013, the Chief Engineer (Operations) of the petitioner, laid down guidelines regarding the applicability of temporary/ permanent connections holding that 'temporary is the Page 14 of 104 C/SCA/7850/2014 CAV JUDGMENT period and not the purpose'. It was further stated that any consumer under LT or HT, who agrees to execute a two-year agreement, is to be provided with a permanent connection, irrespective of the usage, including construction, after discharging all formalities.
2.20 As the petitioner did not accede to the request of the respondent-Company in applying HTP-I Tariff for a permanent connection in spite of the fact that the respondent-Company had entered into a two- year agreement, the respondent-Company approached the CGRF on 03.02.2014. The CGRF, vide order dated 21.02.2014, relying upon the guidelines dated 30.07.2013, directed the petitioner to bill the respondent-Company according to HTP-I Tariff and henceforth to issue bills as per HTP-I Tariff. It further directed the petitioner to give an adjustment of the differential amount between tariff rate HTP-I and HTP-III in the bills for consumption of electricity by the respondent Company. It is this order of the CGRF that is challenged in the petition. 2.21 According to the respondent-Company, the petitioner has accepted and implemented the impugned Page 15 of 104 C/SCA/7850/2014 CAV JUDGMENT order dated 21.02.2014, as is evident from the bill issued by the petitioner for the month of March (issued in April 2014). However, the petitioner has thereafter unilaterally and illegally reverted the respondent-Company back to HTP-III Tariff from HTP-I Tariff, after implementing the order. This fact is not denied by the learned advocate for the petitioner. 2.22 In light of the factual backgrounds of the petitions, as noted hereinabove, common legal submissions have been addressed by the learned counsel for the respective parties, as the pivotal issues in dispute are the same.
3. Lengthy and elaborate submissions have been advanced by learned counsel for the respective parties which are briefly summarised hereinbelow. 3.1 Ms.Lilu K. Bhaya,learned advocate for the petitioner, has submitted that the respondent Company is carrying on construction activities since the year 2009, with the purpose of creating a residential township. Construction of different buildings is going on and the respondent Company is an Organizer, Page 16 of 104 C/SCA/7850/2014 CAV JUDGMENT Developer and Builder of the Scheme undertaken by it. Construction activity is,therefore, the purpose for which permanent electricity connections are demanded by the respondent Company.
3.2 Under the Act, electricity is to be released considering the purpose, demand and lawful occupation. A temporary or permanent connection can be given as per the provisions of Clause-4.1.3 of the Gujarat Electricity Regulatory Commission (Electricity Supply Code and Related Matters) Regulations,2005 ("the Supply Code for short), whereunder the purpose for which electricity supply is required, is to be mentioned. By no stretch of imagination can it be said that construction activity is permanent in nature, therefore, such activity will not entitle the respondent Company for a permanent connection on a regular basis. The word used in Tariff HTP-III is "regular basis" which is required to be interpreted. The consumer may apply for electricity for a particular purpose. The tariff is to be determined according to the purpose applied for. It can never be the choice of a consumer to have a particular tariff. A permanent supply would depend upon the nature of Page 17 of 104 C/SCA/7850/2014 CAV JUDGMENT activity. If the activity is on a regular basis, a permanent connection can be released. However, if the activity is temporary in nature, it cannot be considered to be on a "regular basis" and a temporary connection would be in order.
3.3 The Electricity Act is a complete Code and the GERC, under Section 62(3) of the Act, decides the tariff, depending upon the purpose for which electricity is to be utilised. The power to decide the tariff has been given to the GERC and not to the petitioner, who is a Distribution Licencee under the Act. The consumer is required to fill up a form known as A-I Form and give an estimate regarding the purpose for which the electricity is required, the duration and the contract demand, along with the relevant documents. Thereafter, the Distribution Licencee, looking to the purpose, decides what tariff would be applicable in the case of the consumer. Though the construction activity undertaken by the respondent Company may be on a large scale, however, such activity is temporary in nature and would fall under the HTP-III Tariff only.
Page 18 of 104 C/SCA/7850/2014 CAV JUDGMENT 3.4 Once a connection is released after giving an estimate after the payment of the estimate, execution of an agreement and release of power, it is not open to the respondent Company to create any dispute in respect of which tariff is applicable. The respondent Company is, therefore, estopped from raising any objection regarding the applicability of the tariff after the release of power and execution of the agreement. It cannot say that a particular tariff should not be made applicable.
3.5 The purpose for which electricity is demanded is required to be gone into. The Tariff Orders passed by the GERC are binding upon the petitioner as well as the respondent Company. The case of the petitioner is that the purpose for which electricity is granted is to be seen and taken into consideration. 3.6 The CGRF has no jurisdiction to decide the dispute in respect of the tariff applicable to a consumer or class of consumers who have to approach the GERC. The impugned orders of the CGRF have been passed without jurisdiction. As per the provisions of Section 42(5) and 42(6) of the Act, it is clear that the CGRF has no power to decide a dispute regarding Page 19 of 104 C/SCA/7850/2014 CAV JUDGMENT change of category. In another case, the CGRF has concluded that the Forum has no jurisdiction. This decision has not been challenged by the respondent Company.
3.7 In another case, being Appeal No.181 of 2010, (between two different parties) the GERC has held that the CGRF or the Ombudsman has no jurisdiction to entertain a petition for change of category, for the purpose of tariff determination to another category. 3.8 In Special Civil Application No.1038 of 2004 and allied matters, the learned Single Judge allowed the petitions and held that only the GERC can classify the consumers. The DISCOMs filed Letters Patent Appeals. The Division Bench granted interim relief in the said Letters Patent Appeals. This order of interim relief was challenged by the consumers before the Apex Court. While disposing of the Special Leave Petition, the Apex Court directed the consumer to pay the current bills as per HTP-II(A) and restrained the DISCOM only from recovering arrears.
3.9 The contention of the respondent Company that the dispute with respect to change of category from HTP- Page 20 of 104 C/SCA/7850/2014 CAV JUDGMENT III to HPT-I is a billing dispute, is not correct. It is a dispute regarding change of category from HTP-III to HTP-I. Once the connection is released in a particular category and an agreement is executed, if the consumer wants to change the agreement from a particular category to a different category, it amounts to change of category for tariff determination to another category, which is not within the domain of the CGRF or the Ombudsman. The CGRF, therefore, has no power to direct the petitioner to apply a particular tariff. Despite this, the CGRF has directed the petitioner to apply a particular tariff to the consumer with retrospective effect from 2010 and to refund the amount of difference from HTP-I to HTP-III. No such retrospective order of refund can be passed by the CGRF. As the orders of the CGRF are without jurisdiction, they deserve to be quashed and set aside.
3.10 The letter dated 30.07.2013 of the Chief Engineer of UGVCL is an internal communication. No officer has the power to vary the tariff decided by the GERC, therefore, the reliance placed by the respondent-Company on the aforesaid letter is Page 21 of 104 C/SCA/7850/2014 CAV JUDGMENT misplaced.
3.11 Even if the said letter is taken at its face value, it is clearly evident therefrom that no old cases are to be reopened.
3.12 Regarding the review application filed by the petitioner, the order of which is impugned in Special Civil Application No.7850 of 2014, the submission is that the CGRF has travelled beyond the power of review and granted relief to the respondent Company that was not a part of the review application filed by the petitioner, which cannot be done. The CGRF has no power to review the earlier order passed by it.
3.13 The respondent Company is bound to provide necessary documents with the application for release of a connection. Insofar as the respondent-Company is concerned, NA permission for some of the survey numbers was not produced. For some survey numbers, there was no NA permission. This contention has not been appreciated by the CGRF in the impugned orders. Further, when NA permission is obtained for a Page 22 of 104 C/SCA/7850/2014 CAV JUDGMENT residential purpose, the connection cannot be contrary to the NA permission. The petitioner has continuously informed the respondent-Company to produce the necessary NA permissions, but till 13.12.2011, the necessary documents were not produced. For this reason, in the orders passed by the CGRF and Ombudsman, it is mentioned that in the absence of proper documents, the application for grant of permanent connection is not maintainable. Subsequently, the CGRF, while passing the impugned order, disregarded the submission of the petitioner that NA permission is for a residential purpose,and the connection demanded by the respondent-Company for industrial purpose is contrary to the NA permission. 3.14 On the basis of the above submissions, learned advocate for the petitioner has prayed that the impugned orders of the CGRF be quashed and set aside and the petitions allowed.
3.15 In support of the above submissions, learned advocate for the petitioner has placed reliance upon a judgment of the Supreme Court in the case of New Delhi Municipal Council V. Sohan Lal Sachdev Page 23 of 104 C/SCA/7850/2014 CAV JUDGMENT (deceased by L.R.) reported in AIR 2000 SC 1859.
4. Mr.Shalin N. Mehta, learned Senior Advocate with Mr.Abhishek Mehta, learned advocate for the respondent Company has advanced detailed submissions, the gist of which is recorded hereinbelow:
4.1 The petition (Special Civil Application No.7850 of 2014) is not maintainable at the behest of the Divisional Office, Bavla, of the petitioner UGVCL, because the registered and corporate office of UGVCL, at Mehsana, has accepted the impugned order dated 16.04.2013 passed by CGRF and has directed all concerned to implement the same. In the hierarchy of office administration, the Divisional Office ranks below the registered and corporate office. In the present case, the Divisional Office, Bopal, of the petitioner has shown no authorisation to file the petitions challenging the orders of the CGRF.
4.2 The petition is not maintainable at the instance of the Divisional Office, Bopal, of the petitioner because the same is sworn by the Executive Engineer, Bopal, of the petitioner, who is the very same Officer Page 24 of 104 C/SCA/7850/2014 CAV JUDGMENT who has addressed a communication to the Convener of CGRF on 05.09.2013, apprising it that its order dated 16.04.2013 is 'acquiesced' with by the registered and corporate office of the petitioner. If the Executive Engineer, Bopal, of the petitioner is allowed to challenge the order of the CGRF dated 16.04.2013, after apprising the CGRF that the said order has been accepted by the registered and corporate office of the petitioner, it would amount to allowing the petitioner to blow hot and cold at the same time.
4.3 This Court, vide order dated 28.11.2014, passed in Special Civil Application No.7850 of 2014, has recorded the submission of the respondent Company that the registered and corporate office of the petitioner has not only accepted the impugned orders but has also implemented them. In spite of this, the present petitions have been filed challenging the very same orders that have already been implemented and accepted. The submission of the respondent Company that the petitioner has suppressed material facts that the impugned orders have been implemented and this has not been disclosed in the memorandum of the petition, has also been recorded. Time was granted by Page 25 of 104 C/SCA/7850/2014 CAV JUDGMENT the Court upto 09.12.2014, to enable the petitioner to file an affidavit-in-rejoinder to put its complete stand on record. If the joinder is perused, no explanation is forthcoming from the petitioner on this vital aspect, as recorded in the order dated 28.11.2014.
4.4 The petitioner is guilty of suppression of material facts and making false suggestions in the memorandum of Special Civil Application No.7850 of 2014. The fact that the impugned orders of the CGRF dated 18.01.2013 and 16.04.2013, have been fully accepted and acquiesced with by the petitioner, is not even mentioned in the memorandum of the petition.
The veracity of this fact is clearly discernible from two documents, namely, the communication dated 29.06.2013, addressed by the Additional Chief Engineer, Sabarmati, to the respondent Company and the communication dated 05.09.2013, addressed by the Executive Engineer, Bopal, (through whom the petition is filed) to the Convener of the CGRF. These two documents clearly go to show that the petitioner has taken a conscious decision to accept the order of the CGRF dated 16.04.2013, directing it to execute an Page 26 of 104 C/SCA/7850/2014 CAV JUDGMENT agreement with the respondent Company with effect from 08.12.2011, and to bill them according to HTP-I Tariff from that date, by granting a permanent connection. Though the petition is filed more than nine months after the issuance of the communication dated 05.09.2013, these two vital documents have neither been referred to, nor disclosed, in the petition. It is trite law that a litigant invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is required to approach with clean hands. He can neither suppress material facts nor make false suggestions. In this case, the petitions suffer from both these defects as material facts have been suppressed. Both the communications dated 29.06.2013 and 05.09.2013 clearly go to show that the petitioner had no intention of challenging the orders of the Forum dated 18.01.2013 and 16.04.2013. By not disclosing this fact in the petitions, the petitioner has misled the Court by making false suggestions that the challenge to the abovesaid order is ripe when that is not so. As there is a gross suppression of material facts, the petitions require to be dismissed on this ground alone, with exemplary costs.
Page 27 of 104 C/SCA/7850/2014 CAV JUDGMENT 4.5 The challenge to the impugned orders of the CGRF dated 18.01.2013 and 16.04.2013, in Special Civil Application No.7850 of 2014, is barred by the doctrine of acquiescence and estoppel. The facts on record clearly disclose that the registered and corporate office of the petitioner has taken a decision on 03.08.2013, to accept the said orders. The decision has already been implemented in toto. The refund granted by the petitioner pursuant to the said order has been accepted by the respondent Company which has arranged its affairs accordingly. In view of the above also, the petitioner cannot be permitted to challenge the above-mentioned orders on account of acquiescence and its own conduct in implementing them. 4.6 The statutory regime of Section 42 of the Act does not permit the Distribution Licencee (the petitioner) to challenge the orders passed by the CGRF or the Ombudsman when either redresses or settles the grievance of the consumer (the respondent Company in this case). If Section 42 of the Act is read in contrast with Section 111, it is crystal clear that sub-sections (5), (6), (7) and (8) of Section 42 of Page 28 of 104 C/SCA/7850/2014 CAV JUDGMENT the Act do not speak of "appeal" and "review". In the case of either "appeal" or "review", there is a lis to be adjudicated between the parties. Where there is a lis, there would be a winning or losing party. However, the context of sub-sections (5), (6), (7) and (8) of Section 42 of the Act is wholly distinct from the regime of "appeal" and "review", found in Sections 111, 156 and 157 of the Act. Section 42 of the Act has only one purpose, namely, to redress and settle the grievance of the consumer through the Forum constituted by the Distribution Licencee (the petitioner). If the consumer's grievance is not redressed, he has a layer of redressal by approaching the Ombudsman, but if the consumer's grievance is redressed or settled by either the Forum or the Ombudsman, the Distribution Licencee cannot be aggrieved. The Forum has been set up by the Distribution Licencee under Section 42 for easy redressal of the grievances of the consumer so that they are not stuck up in Courts. When the grievance of the consumer is redressed, the matter ends and no occasion arises for the Distribution Licencee to challenge its own action of settling the grievance of the consumer. Therefore, no petition under Article 226 Page 29 of 104 C/SCA/7850/2014 CAV JUDGMENT of the Constitution of India would lie to challenge either the order of the CGRF or the Ombudsman by the Distribution Licencee wherein the Forum or the Ombudsman has redressed and settled the grievance of the consumer, as in the present case.
4.7 On merits, the only point to be answered is whether a permanent connection can be granted to a consumer engaged in construction activity, or not? And if a permanent connection can be granted to such consumer, which tariff would apply? The answer to these questions would lie in the Tariff Order of the GERC and the Circular of UGVCL dated 30.07.2013. It is clearly stated in the Circular dated 30.07.2013, which lays down guidelines for the grant of temporary and permanent connection, that "temporary is the period and not the purpose". It is further stated that any consumer, LT (Low Tension) or HT (High Tension), who agrees to execute a two-year agreement, is to be provided with a permanent connection, irrespective of usage, including construction, after following all the formalities of a permanent connection. 4.8 The Tariff Order by the GERC states that 'the Page 30 of 104 C/SCA/7850/2014 CAV JUDGMENT consumer not taking supply on regular basis under proper agreement shall be deemed to be taking supply for a temporary period'. The Tariff Order further states that to such a consumer which has not executed any agreement, HTP-III Tariff applies. HTP-I applies to that consumer who does not fall in any other tariff category. In the present case, an option is given by the petitioner to the consumer when the consumer makes an application for power supply, whether he wants to avail of temporary power supply or permanent power supply. This has been done in the case of the respondent Company by letter dated 13.11.2010 of the petitioner.
4.9 Since the inception, the respondent Company has opted for a permanent connection. At no point of time has the respondent Company ever asked for a temporary connection. The respondent Company was willing to enter into a two-year agreement with the petitioner, as required for a permanent power connection. When the respondent Company has opted for a permanent power connection for construction activity and was willing to enter into a two-year agreement with the petitioner, as per the GERC Tariff Order and UGVCL's Page 31 of 104 C/SCA/7850/2014 CAV JUDGMENT circular dated 30.07.2013, it is entitled to a permanent power supply and billing under HTP-I Tariff. The petitioner cannot deviate either from the Tariff Order issued by the GERC or its own Circular dated 30.07.2013. Moreover, nothing is placed on record to show that the Circular dated 30.07.2013 is not applicable or that it has been amended or modified. If the said Circular still stands and the Tariff Order issued by the GERC applies, the respondent Company is entitled to be granted a permanent connection for construction purposes, by executing a two-year agreement and to be billed in the Tariff HTP-I. 4.10 The stand of the respondent Company, from the very inception, has never been to change its tariff category from HTP-III to HTP-I. The request has always been for the grant of a permanent connection for construction activity and for the applicability of the appropriate tariff for such permanent connection. The petitioner has misunderstood the case of the respondent Company by submitting that the case of the respondent Company is to change the billing category from Tariff HTP-III to HTP-I. It is, in fact, a case of applicability of the correct tariff as applied to Page 32 of 104 C/SCA/7850/2014 CAV JUDGMENT permanent connections.
4.11 Before the GERC, in petition No.1228 of 2012, it was the case of the petitioner that the grievance of the respondent company cannot lie before the Commission, but before the CGRF. The GERC,in that petition, vide order dated 4-9-2012, directed the respondent Company to approach the CGRF, instead of the Commission, as it falls under "consumer dispute". The said order has not been challenged by the petitioner, therefore, it cannot be permitted to argue that the CGRF has no jurisdiction to entertain the grievance of the respondent Company, when the GERC has directed just that, vide its order dated 4-9-2012. 4.12 The stand of the petitioner that power supply is always given depending on the purpose only and that the period is immaterial, flies in the face of the Tariff Order passed by the GERC and the circular dated 30-7-2013 issued by the petitioner, itself. This circular sates, in no uncertain terms, that "temporary is the period and not the purpose" and any consumer, LT or HT, who agrees to execute a two- year agreement is to be provided with a permanent Page 33 of 104 C/SCA/7850/2014 CAV JUDGMENT connection, irrespective of usage, including construction, after observing all the formalities of a permanent connection.
4.13 The petitioner herein is an Executive Engineer of the petitioner, and cannot question the Circular dated 30-7-2013 issued by the Chief Engineer of the petitioner, who is higher in rank than the petitioner. Even otherwise, a perusal of the body of the Circular clearly reveals that a thought process was involved before its issuance. The said Circular is the result of clarifications in the Tariff Order dated 16-4-2013, discussion of the electricity Supply Code review panel meeting held on 31-5-2013, the order of the CGRF dated 10-6-2013 and the legal opinion dated 24-7-2013. The Circular further mentions that it is to be strictly implemented, with immediate effect.The contention of the petitioner that the Circular is an internal communication and is not binding, is, therefore, incorrect.
4.14 Regarding the contention of the petitioner that no directions could have been issued by the CGRF in its order dated 18-1-2013 to execute an agreement Page 34 of 104 C/SCA/7850/2014 CAV JUDGMENT with the respondent company with effect from 8-12- 2011, it is relevant to state that the date 8-12-2011 has relevance because the Ombudsman, vide his order dated 8-9-2011, directed the respondent Company to apply afresh for a permanent connection with proper documentation. It was further directed that if the fresh application with proper documentation was found to be in order, the respondent Company was entitled to a permanent connection. Accordingly, a fresh application was made by the respondent Company on 8- 12-2011 with proper documentation. This application was found to be in order by the Circle Office, Sabarmati of the UGVCL, which is recorded by the CGRF in paragraph 5.8 of its order dated 18-1-2013. As the said application was found to be in order, the respondent Company was entitled to a permanent connection in HTP-I category. Therefore, the CGRF has rightly directed the petitioner to execute a two-year agreement with the respondent Company. Obviously, the agreement date would be the date on which the respondent Company has applied afresh for a permanent connection after the Ombudsman's order dated 8-9-2011 in Case No.54 of 2011. That date, therefore, is 8-12- 2011.
Page 35 of 104 C/SCA/7850/2014 CAV JUDGMENT 4.15 The petitioner approached the CGRF against its order dated 18-1-2013, by a petition with the nomenclature of review, which itself was a blunder. The Act does not contemplate any review. However, the petitioner challenged the Forum's order dated 18-1- 2013 by this petition. The challenge was negatived by the CGRF by stating that no grounds for review were made out by the petitioner. The CGRF further gave a direction to settle and redress the grievance of the respondent Company. The petitioner has complied with the directions contained in the order of the CGRF, as well as the order in the review application. After having settled the grievance of the respondent Company by accepting the said order, it cannot be said that the petitioner is aggrieved, in any manner, by them.
4.16 The CGRF has gone into the aspect of NA permission and found that the allegation of the petitioner is baseless. Even otherwise, it is common sense that the activity of mixing cement and bricks is obviously for the purpose of construction of buildings and, therefore, there is no breach or misuse of the NA Page 36 of 104 C/SCA/7850/2014 CAV JUDGMENT permission for residential use.
4.17 The Appellate Tribunal's order dated 22-3- 2011 passed in Appeal No.181 of 2010, between different parties, is being relied upon by the petitioner. In the said order the Appellate Tribunal held that the Consumer Grievance Redressal Forum or the Ombudsman has no jurisdiction to entertain a petition from an HT consumer for change of category for the purpose of tariff determination. It is further held that the function of change of such category by interpretation of Tariff Order rests with the GERC and that the CGRF has no jurisdiction to adjudicate upon a petition of an individual consumer and give relief only to such individual consumer by deviating from the Tariff Order. This order is not at all relevant for the adjudication of the controversy involved in the present case as it has been passed by the Tribunal in exercise of its appellate jurisdiction under the Act and is not binding upon a constitutional court such as this Court.
4.18 The present is not a case where the respondent Company has approached the CGRF or the Ombudsman Page 37 of 104 C/SCA/7850/2014 CAV JUDGMENT seeking application of HTP-I Tariff, either by interpretation of the Tariff Order or by an amendatory process. All along, the demand of the respondent Company was to get a permanent connection for construction activity. Once that is granted, it goes without saying that the appropriate or correct tariff has to be applied to such permanent power connection. Under the Tariff Order of the GERC, Tariff HTP-1 applies to a consumer who seeks regular power supply by entering into an agreement with the Distribution Licencee. Because the respondent company was granted a permanent connection and regular power supply for construction activity upon entering into a two-year agreement as per the Tariff Order of the GERC, the appropriate tariff applicable would be HTP-I. The mere fact that it was wrongly billed earlier under HTP-III Tariff does not mean that the respondent Company is seeking change of tariff from one category to another. The fact is that the respondent Company is not seeking any change of category either by interpretation of the Tariff Order or amendatory process. It is only seeking the application of the correct tariff to the permanent connection as per the Tariff Order. The present is, therefore, a billing dispute and not a dispute Page 38 of 104 C/SCA/7850/2014 CAV JUDGMENT regarding change of category for the purpose of determination of the tariff. In paragraph 10 of the above-mentioned order of the Appellate Tribunal it is recorded that the billing dispute would lie before the CGRF or the Ombudsman. In the present case, after granting a permanent connection for construction activity to the respondent Company, the petitioner is wrongly billing it under HTP-III Tariff, instead of HTP-I Tariff, which is applicable. As this is nothing but a billing dispute, the action of the respondent Company in approaching the CGRF and the Ombudsman is appropriate and proper.
4.19 In its order dated 4-9-2012 passed in petition No.1228 of 2010 filed by respondent Company, the GERC has directed the respondent Company to approach the CGRF as the dispute fell under the category of a consumer dispute. The respondent Company has, therefore, taken appropriate action under the law and orders have been passed thereupon, which are very much within the jurisdiction of the CGRF. 4.20 On the above grounds, it is prayed on behalf of the respondent Company that the petitions be rejected with exemplary costs.
Page 39 of 104 C/SCA/7850/2014 CAV JUDGMENT
5. In support of his submission, Mr.Shalin N. Mehta, learned Senior Advocate for the respondent Company has placed reliance upon the following judgments:
(1) Srinivasa Bhat (Dead) by LRS. and others V. A. Sarvothama Kini (Dead) By LRS. and others, reported in (2010) 12 SCC 523.
(2) Mahindra and Mahindra Ltd. Vs. Union of India and another, reported in (1979) (2) SCC 529.
(3) R.S. Maddanappa (deceased) after him by his legal representatives V. Chandramma and another, reported in AIR 1965 SC 1812.
(4) Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others Vs. Director General of Civil Aviation and others, reported in (2011) 5 SCC 435.
(5) Indira Bai Vs. Nand Kishore, reported in (1990) 4 SCC 668.
(6) Manish Kumar Shahi Vs. State of Bihar and others, reported in (2010) 12 SCC 576.
(7) Suneeta Aggarwal Vs. State of Haryana and others, reported in (2000) 2 SCC 615.
Page 40 of 104 C/SCA/7850/2014 CAV JUDGMENT (8) Mulchand and Company Vs. Jawahar Mills Limited, Salem, reported in AIR 1953 SC 98
6. Advancing submissions in rejoinder to the submissions advanced on behalf of the respondent Company, Ms. Lilu K. Bhaya, learned advocate for the petitioner has reiterated her earlier submissions and has further contended that the Distribution Licencee has no alternative remedy except to file a petition under Articles 226 and 227 of the Constitution of India against orders passed by the CGRF under Section 42(5) of the Act. The constitution of the CGRF itself shows that the statute mandates that it be established within six months. The appointment is by the Commission and an independent Member and Chairperson are contemplated. Only the Technical Member is an employee of the Distribution Licencee, therefore, it cannot be said that the CGRF is the forum of the petitioner.
7. The petitions have been filed by the Executive Engineer of the petitioner, as it is this officer who was joined in the proceedings before the CGRF by the respondent Company. The petitioner has made it clear in the rejoinder that the petitioner has taken a Page 41 of 104 C/SCA/7850/2014 CAV JUDGMENT policy decision to challenge the orders impugned in the petitions and approval has been given by the Competent Authority to file the petitions.
8. Insofar as the allegation of suppression is concerned, it is submitted that the petitioner is a Public Sector undertaking and public money is involved. Looking to the policy of the petitioner, what tariff is required to be applied is the decision of the petitioner. The petitioner cannot execute the order of the CGRF in the case of respondent Company by applying HTP-I Tariff, when other similarly situated consumers were charged under HTP-III Tariff. These consumers have been granted connection for construction purposes.
9. That as per the impugned orders of the CGRF, refund of Rs.62,49,205/- is to be given (Special Civil Application No.7853 of 2014). However, no such refund was given and there is no suppression of facts by the petitioner. Due to a bonafide mistake in the rejoinder, it has been mentioned that refund was given but this has been clarified at the time of making arguments. Having paid the differential amount, the Page 42 of 104 C/SCA/7850/2014 CAV JUDGMENT respondent Company is precluded from raising such a dispute.
10. With regard to suppression of facts in Special Civil Application No.7850 of 2014, it is submitted that it has come to the knowledge of the petitioner that the impugned orders of the Forum in that petition cannot be executed and HTP-I Tariff cannot be charged in the case of the respondent Company by giving to it preferential treatment when other consumers are being charged HTP-III Tariff for construction purposes. The petitioner would not gain anything by suppressing facts.
11. That in the case of M/s. Lafarge Aggregates and Concrete India Pvt. Ltd., being relied upon by the respondent-Company, the connection is granted under the HTP-I category since M/s. Lafarge Aggregates and Concrete India Pvt. Ltd. are not engaged in construction activity. Therefore, there is no question of comparing the said consumer with the respondent- Company.
12. In light of the above submissions of the Page 43 of 104 C/SCA/7850/2014 CAV JUDGMENT respective parties, the judgments relied on by them may be referred to.
13. On behalf of the petitioner, reliance has been placed upon a judgment of the Supreme Court in the case of New Delhi Municipal Council V. Sohan Lal Sachdev (deceased by L.R.) (supra).
13.1 The question involved in that case was whether the use of premises for the purpose of a guest house can be termed as "domestic use" for the purpose of electricity charges by the New Delhi Municipal Corporation? The facts of the case were to the effect that Sohan Lal Sachdev, deceased, represented by his legal representatives, was the landlord of the premises in question. He occupied the ground floor. In September, 1981, he let out the first floor and the Barsati floor for running a guest house. When this fact was intimated to the Corporation authorities by the landlord, demands of electricity and water charges were made according to 'non-domestic rates'. The landlord protested against the demand stating that the user of the premises for running a guest house cannot be said to be a 'commercial use' of the premises. A Page 44 of 104 C/SCA/7850/2014 CAV JUDGMENT suit was filed by the landlord seeking a decree of injunction against the New Delhi Municipal Corporation, restraining it from raising a demand on the basis of commercial user of the premises. The Trial Judge held that the running of a guest house in the suit premises cannot be termed as 'commercial use', but it also cannot be termed as 'domestic use'; therefore, the New Delhi Municipal Corporation has a right to charge 'non-domestic rate' for supply of electricity and water. The suit was dismissed on those findings. On appeal by the landlord the First Appellate Court agreed with the findings of the Trial Court and dismissed the appeal. The landlord filed a Second Appeal in the High Court of Delhi, challenging the judgment and decree of the First Appellate Court confirming the judgment of the Trial Court. The High Court reversed the concurrent findings of the lower Courts and decreed the suit, taking the view that user of the suit premises for running a 'guest house' without any kitchen facility is user for residential purpose and New Delhi Municipal Corporation is not entitled to charge electricity and water charges on the basis of commercial use. Aggrieved by the judgment of the High Court the New Delhi Municipal Page 45 of 104 C/SCA/7850/2014 CAV JUDGMENT Corporation approached the Apex Court. While setting aside the judgment of the High Court, the Supreme Court, vide the judgment relied upon by the petitioner in the present case, held that it is the user of the premises by the owner and not the purpose for which the guest or occupant of the guest house uses electric energy. It is held that in the broad classification as is made in the rules, different types of user which can reasonably be grouped together for the purpose of understanding the two phrases 'domestic' and 'commercial' is to be made. To a certain degree, there may be overlapping but that has to be accepted in the context of things. It is held that the High Court was not right in setting aside the order of the lower Courts merely on the ground that the use of electricity for running a guest house does not come under the category of commercial use.
14. On the other hand, the respondent Company has relied upon several judgments which are referred to hereinbelow:
14.1 The judgment in the case of Srinivasa Bhat (Dead) by LRS. and others V. A. Sarvothama Kini (Dead) By Page 46 of 104 C/SCA/7850/2014 CAV JUDGMENT LRS. and others (supra) has been cited by the respondent Company on the issue of suppression of material facts. In this case the Supreme Court held as below:
"10. The remedy under Article 226 of the Constitution is discretionary and relief may be refused if it is found that the party invoking such jurisdiction has not disclosed true, correct and complete facts. Relief may also be refused in extraordinary jurisdiction where writ petition suffers from laches and unexplained delay. Insofar as instant case is concerned, the order of the Land Tribunal dated March 29, 1994 was challenged in the writ petition almost after five years. The explanation of writ petitioner nos. 1 to 4 that they came to know of that order in 1998 hardly merits acceptance as it transpires that in 1994 itself they made an application before the Tahsildar for effecting changes in the mutation and other revenue record contending that they have interest in 7 cents of land in Survey No. 108/17C and after an inquiry, the Tahsildar rejected their application. The writ petitioners are guilty of suppression of material facts as well. In the circumstances, there was hardly any justification for the Division Bench to interfere with the discretion exercised by the Single Judge."Page 47 of 104 C/SCA/7850/2014 CAV JUDGMENT
14.2 Learned Senior Advocate for the respondent- Company has further relied upon the judgment in the case of Mahindra and Mahindra Ltd. Vs. Union of India and another (supra) on the point of acquiescence and estoppel. In the said judgment, the Supreme Court has held that estoppel can arise only to a party to a proceeding who has altered his position on the faith of a representation or promise made by another. However, on the facts of that case, it was found that acquiescence or estoppel was not made out. 14.3 Another judgment relied upon on behalf of the respondent-Company is R.S. Maddanappa (deceased) after him by his legal representatives V. Chandramma and another (supra) wherein, discussing the law on estoppel, the Supreme Court has held as under:
"9. Mr. Venkatarangaiengar however, wanted us to hold that the law of estopped by representation is not confined to the provisions of S. 115 of the Evidence Act, that apart from the provisions of this section there is what is called "equitable estoppel" evolved by the English Judges and that the present case would come within such "equitable estoppel".In some decisions of the High Courts reference has been made to "equitable estoppel" but we doubt whether Page 48 of 104 C/SCA/7850/2014 CAV JUDGMENT the court while determining whether the conduct of a particular party amounts to an estoppel, could travel beyond the provisions of S. 115 of the Evidence Act. As was pointed out by Garth C. J. in Ganges Manufacturing Co. v. Sourujmull, ILR 5 Cal 669 the provisions of S. 115 of the Evidence Act are in one sense a rule of evidence and are founded upon the well known doctrine laid down in Pickard v. Sears, (1837) Ad and El 469 in which the rule was stated thus:
"Where one by his word or conduct wilfully causes another to believe for the existence of a certain state of thing and induced him to act on that belief so as to alter his own previous position the former is concluded from averring against the latter a different state of things as existing at the first time."
The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Therefore, where one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel, if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation.
10. The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross v. Lorirner (1860) 3 HLC 829.
Page 49 of 104 C/SCA/7850/2014 CAV JUDGMENT
"The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct...........I am of opinion that, generally speaking, if a party having an interest to prevent an act being done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license."
11. It may further be mentioned that in Carr v. London and North Western Rly, Co., (1875) 10 CP 307 four propositions concerning an estoppel by conduct were laid down by Brett, J. (afterwards Lord Esher) the third of which runs thus:
"If a man either in express terms or by conduct Page 50 of 104 C/SCA/7850/2014 CAV JUDGMENT makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it be acted upon in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts."
This also shows that the person claiming benefit of the doctrine must show that he has acted to his detriment on the faith of the representation made to him."
14.4 In the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others Vs. Director General of Civil Aviation and others (supra) the Supreme Court discussed the rule of estoppel and the principle that one cannot approbate and reprobate, in the following terms:
"12. The doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent Page 51 of 104 C/SCA/7850/2014 CAV JUDGMENT pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. (Vide: Babu Ram @ Durga Prasad v. Indra Pal Singh, P.R. Deshpandey v. Maruti Balaram Haibatti, and Mumbai International Airport Private Limited v. Golden Chariot Airport & Anr."
14.5 In the case of Indira Bai Vs. Nand Kishore (supra), the Supreme Court has held as below:
"3. Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated. Present case is a glaring example of it. True no notice was given by the seller-but the trial court and appellate court concurred that the pre-emptor not only came to know of the sale immediately but he assisted the purchaser-appellant in raising construction which went on for five months. Having thus persuaded, rather misled, the purchaser by his own conduct that he acquiesced in his ownership he somersaulted to grab the property with constructions by staking his own claim and Page 52 of 104 C/SCA/7850/2014 CAV JUDGMENT attempting to unsettle the legal effect of his own conduct by taking recourse to law. To curb and control such unwarranted conduct the courts have extended the broad and paramount considerations of equity, to transactions and assurances, express or implied to avoid injustice.
4. Legal approach of the High Court, thus, that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre-emption Act (In brevity 'the Act') was given by the seller and pre-emptor should have had occasion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a weapon of defence. In the Privy Council decision, referred earlier, the court was concerned with Oudh Laws Act (18 of 1876) which too had an identical provision for giving notice by seller. No notice was given but since pre-emptor knew that the property was for sale and he had even obtained details of lots he was precluded from basing his claim on pre-emption."
14.6 The next judgment relied upon by the respondent- Company is Manish Kumar Shahi Vs. State of Bihar and others, (supra) wherein the Supreme Court has held as under:
"16. We also agree with the High Court that after having taken part in the process of selection Page 53 of 104 C/SCA/7850/2014 CAV JUDGMENT knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, Marripati Nagaraja v. Govt. of A.P., Dhananjay Malik v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines."
14.7 In the case of Suneeta Aggarwal Vs. State of Haryana and others (supra), also on the point of acquiesence, the Apex Court has held that:
"4. We have heard learned counsel for the parties. Narration of aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice Chancellor Page 54 of 104 C/SCA/7850/2014 CAV JUDGMENT declining to accord approval to her selection and, on the contrary, she applied afresh for the said post in response to re-advertisement of the post without any kind of protest. Not only did she apply for the post, but she also appeared before the Selection Committee constituted consequent upon re- advertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the Vice- Chancellor declining to accord his approval and obtained an ad-interim order. In the writ petition she also did not disclose that she had applied for the post consequent upon the second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice- Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed."
14.8 In the case of Mulchand and Company Vs. Jawahar Mills Limited, Salem (supra) this is what the Supreme Court has held:
"18. In the first place, waiver and abandonment are in their primary context unilateral acts.Page 55 of 104 C/SCA/7850/2014 CAV JUDGMENT
Waiver is the intentional relinquishment, of a right of privilege. Abandonment is the voluntary giving up of one's rights and privileges or interest in property with the intention of never claiming them again. But except where statutory or other limitations intervene, unilateral acts never in themselves effect a change in legal status because it is fundamental that a man cannot by his unilateral action affect the rights and interests of another except on the basis of statutory or other authority, Rights and obligations are normally intertwined and a man cannot by abandonment 'per se' of his rights and interests thereby rid himself of his own obligations or impose them on another. Thus, there can be no abandonment of a tenancy except on statutory grounds (as, for example, in the Central Provinces Tenancy Act, 1920), unless there is acceptance, express or implied, by the other side. It may for example in a case of tenancy, be to the landlord's interest to keep the tenancy alive; and, so also in the case of shares of a company. It may be to the interests of the company and the general body of shareholders to refrain from forefeiture if, for example, the value of unpaid calls exceeds the market value of the shares. Such a position was envisaged in - 'Garden Gully United Quartz Mining Co. v. McLister So also with waiver. A long catena of illustrative cases will be found collected in B. B. Mitra's Indian Limitation Act.Page 56 of 104 C/SCA/7850/2014 CAV JUDGMENT
Thirteenth Edition."
15. In the above factual and legal background,the core submissions advanced by learned counsel for the respective parties may now be dealt with.
16. The first question that is required to be determined is whether the petition suffers from suppression of material facts, or not? It has been submitted on behalf of the respondent Company, that the impugned orders dated 18.01.2013 and 16.04.2013, passed by the CGRF in Special Civil Application No.7850 of 2014, stood fully complied with and accepted by the petitioner much before the filing of the petition. To buttress this submission, two documents have been pressed into service. The first is a communication dated 29.06.2013, addressed by the Additional Chief Engineer, Sabarmati, of the petitioner, to the respondent Company. The second document is a communication dated 05.09.2013, addressed by the Executive Engineer, Bopal, of the petitioner (the same officer through whom the petition is filed), to the Convener, CGRF, UGVCL. A perusal of the said documents clearly reveals that the petitioner has fully implemented the impugned orders. In fact, Page 57 of 104 C/SCA/7850/2014 CAV JUDGMENT from the communication dated 05.09.2013, it is amply clear that the petitioner has acquiesced with the impugned orders of the CGRF. The specific word "acquiesced", is clearly written in the said communication by the petitioner itself; therefore, it is clear that the orders impugned in this petition have been fully accepted and implemented by the petitioner after taking a conscious decision. This petition has been filed after about five months from the date on which the communication dated 05.09.2013 was issued. This Court has carefully perused the entire memorandum of the petition. It is evident from the petition that the petitioner has not mentioned the vital fact that the impugned orders have been fully implemented by it. This clearly amounts to a serious suppression of material facts by the petitioner. Not only have material facts been suppressed, but false suggestions have been made, so as to mislead the Court, to the effect that the challenge to the said orders is still ripe. The petition, therefore, suffers from suppressio veri and suggestio falsi.
17. In the order dated 28.11.2014, passed by this Court, the contention raised by the respondent Company Page 58 of 104 C/SCA/7850/2014 CAV JUDGMENT regarding the implementation of the impugned orders and suppression of material facts, has been recorded. The learned advocate for the petitioner had denied the said contentions, as recorded in the said order, and prayed for further time for filing an affidavit-in- rejoinder. In the affidavit-in-rejoinder, it is baldly stated, in paragraph-6, that there is no suppression of material facts, as the petitioner has produced a copy of the review application filed by it before the CGRF. This can hardly be considered to be an adequate explanation, leave alone a reasonable one, for suppression of material facts that go to the root of the matter. There is no plausible explanation for the suppression of material facts before this Court, especially in circumstances where the orders impugned have already been fully implemented by the petitioner. By failing to disclose this fact in the petition,the petitioner has tried to give a false impression to the Court. The petitioner has,instead, tried to justify its stand by stating, in paragraph-5 of the rejoinder, that it has come to its notice that in such cases, the issue involved is not being correctly appreciated by the CGRF, and as it is against the policy of the petitioner and the Tariff Orders of the GERC, it was Page 59 of 104 C/SCA/7850/2014 CAV JUDGMENT decided to challenge the order. It is further stated that merely by complying with the order, the challenge to it is not barred. Such a stand is akin to adding insult to injury, to say the least. Having withheld material facts from this Court regarding the implementation of the very orders impugned by it, the petitioner is further aggravating its lapse by trying to justify its action. It was incumbent upon the petitioner to disclose the correct facts before this Court, in the memorandum of the petition. Having failed to do so, this Court is compelled to arrive at a conclusion that the petitioner has deliberately suppressed material facts and has not come to the Court with clean hands. This court is of the considered view that by suppressing material facts the petitioner has abused the process of the Court.
18. It is a settled position of law that a litigant who suppresses material facts does not deserve any equitable relief from the Court. This position of law has been enunciated by the Supreme Court in Srinivasa Bhat (Dead) by LRS. and others V. A. Sarvothama Kini (Dead) By LRS. and others (supra), the extract of which has already been quoted earlier. Page 60 of 104 C/SCA/7850/2014 CAV JUDGMENT
19. Further, the Supreme Court, in S.J. S. Business Enterprises (P) Ltd. Vs. State of Bihar and others. reported in (2004) 7 SCC 166, has held as below:
"13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken...." (emphasis supplied)
20. In the present case, the fact that the impugned orders have been accepted and fully implemented by the petitioner, is a material fact affecting the outcome of the petition. The principles of law enunciated by the Supreme Court in the above-quoted judgment,therefore, apply squarely to the case in hand.
21. In Prestige Lights Ltd. Vs. State Bank of India Page 61 of 104 C/SCA/7850/2014 CAV JUDGMENT reported in (2007) 8 SCC 449, the Supreme Court has further elaborated upon similar principles of law, that the High Court, while exercising its discretionary jurisdiction under Article 226 of the Constitution of India, is not obliged to entertain a petition at the behest of a person who has suppressed material facts. The dicta of the Supreme Court in this regard is as follows:
"33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.
34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Page 62 of 104 C/SCA/7850/2014 CAV JUDGMENT Commissioners, [(1917) 1 KB 486:86 LJ KB 257 :
116 LT 136], in the following words:
"(I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts-facts, not law. He must not misstate the law if he can help it#the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement".
35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants Page 63 of 104 C/SCA/7850/2014 CAV JUDGMENT from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.
36. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent-Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third party's interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third party's right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our judgment, the submission of the respondent- Bank is well-founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Page 64 of 104 C/SCA/7850/2014 CAV JUDGMENT Court was not in error in refusing relief to the appellant-Company."
(emphasis supplied)
22. The principles of law expounded in the above judgment are fully applicable to the present case. This Court has no hesitation in holding that the petition deserves to be rejected on the ground of suppression of material facts, alone.
23. Insofar as Special Civil Application No.7853 of 2014 is concerned, the respondent Company has submitted that the petitioner has accepted and implemented the impugned order dated 27.03.2014 of the CGRF, as is evident from the Bill issued by the petitioner for the month of March (issued in April 2014), wherein the petitioner gave an adjustment of Rs.62,49,205.05 Paisa and also changed the tariff from HTP-III to HTP-I. Having accepted and implemented the impugned order, the petitioner unilaterally reversed the transaction and recovered the amount in the bill for the month of April, 2014, reverting the respondent Company back to HTP-III Tariff from HTP-I Tariff. According to the respondent Compnay, the fact of the implementation of the order is suppressed in the Page 65 of 104 C/SCA/7850/2014 CAV JUDGMENT memorandum of the said petition.
24. After the objection was taken by the respondent Company, the petitioner filed an affidavit-in- rejoinder, in which it is stated in paragraph-5, that pursuant to the impugned order the amount was credited "inadvertently" and realising the mistake, it was reversed in the next bill. Before this Court, it was stated by the learned advocate for the petitioner that this statement on affidavit, made in the rejoinder, is incorrect as per the oral instructions received by her, and credit was not given to the respondent Company at all. However, no written instructions in this regard have been placed on record by the petitioner, nor any affidavit filed to disown the statement made on oath in the rejoinder.
25. In Special Civil Application No.7854 of 2014 as well, the conduct of the petitioner is the same. It is not mentioned in the petition that the credit of the amount pursuant to the order impugned therein was already given to the respondent Company. It is stated in the rejoinder that this has been done "inadvertently" and the mistake was rectified in the next bill. Even if it is termed as an "inadvertent Page 66 of 104 C/SCA/7850/2014 CAV JUDGMENT mistake" by the petitioner, there is no reason for suppressing true and correct facts before this Court. In the view of this Court, the conduct of the petitioner disentitles it to equitable relief.
26. The next question that arises for determination is, whether the petitioner is estopped from challenging the impugned orders on the ground of acquiescence?. It is an admitted fact, not denied by the petitioner, that the impugned orders in Special Civil Application No.7850 of 2014 have been accepted and fully implemented by it. Apart from the communication dated 29.06.2013 addressed by the Additional Chief Engineer, Sabarmati, of the petitioner to the respondent Company, wherein the manner in which the orders are to be implemented is described, the letter dated 05.09.2013 addressed by the Executive Engineer, Bopal, assumes importance in this regard. This petition has been filed through the very same officer. The said communication is addressed by him to the Convener of the CGRF. The text of this communication is reproduced hereinbelow: Page 67 of 104 C/SCA/7850/2014 CAV JUDGMENT
"Date:05.09.2013 To, The Conviner CGRF, UGVCL, Circle Office, Sabarmati Sub.: CGRF order dtd.16.04.13 in the case of M/s. Shantikrupa Estate Pvt. Ltd. Village Chekla, H.T. Con. No.18380 and Implimation of CGRF order.
Ref.: UGVCL/COM/Legal/LALO/188 dtd.03.08.13.
With reference to the above CGRF had order vide UGVCL/CGRF/3958 dtd.16.04.13 in the case M/s. Shantikrupa Estate Pvt.ltd. H.T. Consumer No.18380 to consider HTP-I tariff after 08-12-11 and CGRF order is acquiesced by R&C office vide L.No.188 dtd.03.08.13.
As per CGRF order refund is calculated Rs.5002881.04 and credit is given in consumer account in the month of Aug. billed in Sept.13.
This is for your kind information please., sd/-
Executive Engineer Bopal Copy f.w.cs. To:
1. Electricity Ombudsman Gujarat State, Poly Technical Compound Building No.3, Ambawadi, Ahmedabad-15.
....this is in reference to case No.54/2011.
2. M/s. Shantikrupa Estate Pvt. Ltd.
904, Mile Stone Building, Opp. T.V. Tower., Drive In Road, Ahmedabad-380 054."
(emphasis supplied) Page 68 of 104 C/SCA/7850/2014 CAV JUDGMENT
27. From the language of this letter, it is crystal clear that the petitioner has no grievance against the order of the CGRF and has consciously accepted and implemented it in toto. In legal terms, the petitioner has conveyed its acquiescence of the said order, by word and conduct, and offered no opposition to it.
28. The position of law in this regard has been elaborated by the Supreme Court in the judgments in the cases of (1) R.S.Maddanappa (deceased) after him by his legal representatives V. Chandramma and another(supra), (2) Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others Vs. Director General of Civil Aviation and others, (supra), (3) Indira Bai Vs. Nand Kishore, (supra), (4) Manish Kumar Shahi Vs. State of Bihar and others, (supra), (5) Suneeta Aggarwal Vs. State of Haryana and others, (supra) and, (6)Mulchand and Company Vs. Jawahar Mills Limited, Salem, (supra), relied upon by the respondent Company, the relevant extracts of which have been reproduced earlier. As held in Mulchand and Company Vs. Jawahar Mills Limited, Salem, (supra), by accepting the orders of the CGRF, the petitioner has voluntarily waived and abandoned its right to Page 69 of 104 C/SCA/7850/2014 CAV JUDGMENT challenge the said order.
29. Apart from the judgments cited on behalf of the respondent Company on this issue, the legal position elaborated by the Supreme Court on the aspect of acquiescence, is further clarified in the case of M/s. Power Control Appliances and others Vs. Sumeet Machines Pvt. Ltd. reported in (1994) 2 SCC 448, as follows:
"26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts;
not merely silence or inaction such as is
involved in laches. In Harcourt v. White Sr.
John Romilly said: "It is important to
distinguish mere negligence and acquiescence."
Therefore, acquiescence is one facet of
delay. If the plaintiff stood by knowingly and let the defendants build up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J. G.) & Co. v. Boehm". The acquiescence must be such as to lead to the Page 70 of 104 C/SCA/7850/2014 CAV JUDGMENT inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers v. Nowill."
(emphasis supplied)
30. Further, in the case of Jai Narain Parasrampuria (Dead) Vs. Pushpa Devi Saraf and others, reported in (2006) 7 SCC 756, the Supreme Court has succinctly expounded the legal position regarding the principle of approbation and reprobation, and the resulting species of estoppel, in the following terms:
"37. In Bank of India & Ors. etc. vs. O.P. Swarnakar & Ors. etc. [(2003) 2 SCC 721], this Court took notice of the following passage from Halsbury's Law of England, 4th Edn., Vol.16 (Reissue), para 957 at p.844:
"On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. The principle that a person may not approbate and reprobate expresses two propositions:
(1) That the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile.
(2) That he will be regarded, in general at Page 71 of 104 C/SCA/7850/2014 CAV JUDGMENT any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent."
38. In Gillett v Holt and another [2000 (2) All. E.R.-289], the Court of Appeal, upon referring to a large number of decisions, developed the doctrine of proprietary estoppel opining:
"The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances."
39. In Indu Shekhar Singh & Ors. vs. State of U.P. & Ors. [2006 (5) SCALE 107], this Court stated :
"They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal."Page 72 of 104 C/SCA/7850/2014 CAV JUDGMENT
40. In Pawan Alloys and Casting Pvt. Ltd. , Meerut vs. U.P. State Electricity Board & Ors. [(1997) 7 SCC 251], this Court applied the principle of promissory estoppel.
41. The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged. [See also Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. (1981) 1 All ER 897.]
42. Similarly, in Amalgamated Investment & Property Co. Ltd. vs. Texas Commerce International Bank Ltd. [(1981) 1 All ER 923], it was held :
"(3) Where the estoppel alleged was founded on active encouragement or representations made by the representor, it was only unconscionable for the representor to enforce his strict legal rights if the representee's conduct was influenced by the encouragement or the Page 73 of 104 C/SCA/7850/2014 CAV JUDGMENT representation. However, it was not necessary for the encouragement or representation to have been the initial cause of the representee's conduct in order to be unconscionable but merely that his conduct was so influenced by the encouragement or representation that it would be unconscionable for the representor to enforce his legal rights."
(emphasis supplied)
31. As held by the Supreme Court, a person cannot be permitted to approbate and reprobate at the same time. When a litigant, in this case the petitioner, has a choice between two courses of conduct and has consciously chosen one course of action by implementing the impugned orders, it cannot be permitted to resile thereafter, as the respondent Company has arranged its affairs in accordance with the conscious decision of the petitioner to accept the impugned orders.
32. As per the dicta of the Supreme Court, the petitioner is estopped, by its acquiescence, from challenging the orders that have already been implemented by it.
Page 74 of 104 C/SCA/7850/2014 CAV JUDGMENT
33. By letter dated 05.09.2013, the petitioner has conveyed to the respondent Company the fact that it has acquiesced with the order of the CGRF and has implemented them fully. It is,therefore, unconscionable on the part of the petitioner to turn around and challenge the very same orders it has accepted and implemented without protest, and that too without disclosing these facts in the petitions. Such conduct on the part of the petitioner cannot be viewed lightly or even countenanced, especially as the petitioner falls under the category of 'State' within the meaning of Article 12 of the Constitution of India, and has a duty to act fairly not only towards its consumers, but also to the Court. The conduct of the petitioner in challenging the very same orders that it has accepted, implemented, and acquiesced with and then suppressing these facts, is unjustified and unconscionable. The petitions, therefore, deserve to fail on this ground, as well.
34. Another objection that has been advanced on behalf of the respondent Company is to the effect that the statutory regime of Section 42 of the Act does not permit the Distribution Licencee (the petitioner) to challenge the orders of the CGRF or the Ombudsman. It Page 75 of 104 C/SCA/7850/2014 CAV JUDGMENT has been submitted that the language of Section 42 does not speak of 'appeal' and 'review', therefore, there is no lis to be adjudicated between the parties. It has further been submitted that Section 42 of the Act has only one purpose, and that is to settle and redress the grievances of the consumer, through the Forum constituted by the Distribution Licencee. It is contended that if the grievance of the consumer is not redressed, he can approach the Ombudsman for redressal. However, after it is redressed or settled by the CGRF or the Ombudsman,the Distribution Licencee cannot be said to be aggrieved. For this reason, it is submitted on behalf of the respondent Company, that no petition under Article 226 of the Constitution of India would lie against the order of the CGRF on behalf of the Distribution Licencee.
35. On the other hand,it has been submitted on behalf of the petitioner that it has no other remedy against the orders of the CGRF, except to prefer a petition under Article 226 of the Constitution of India. It is submitted that only one member of the CGRF is an employee of the Distribution Licencee. The Chairman and other persons are independent persons,therefore, Page 76 of 104 C/SCA/7850/2014 CAV JUDGMENT it cannot be said that the Forum is of, and by, the petitioner, itself. That the Forum is a statutory Forum, therefore, a decision by it can be challenged by the Distribution Licencee, if it is aggrieved by such decision.
36. Considering the rival submissions in this regard, it appears that the contention raised on behalf of the respondent Company, though attractive at first blush, cannot be accepted as a ground for ousting the petitioner. The CGRF is a statutory forum and though the purpose for which it is functioning is the redressal of the grievance of the consumer, it cannot be said that if the Distribution Licencee is aggrieved by its decision, it has no remedy against it. When legal and financial implications are involved, no litigant can be debarred from availing of an appropriate remedy. It may transpire from a reading of Section 42 of the Act that there is no regime of 'appeal' or 'review' in the said Section. However, only on this ground it cannot be said that the petitions are not maintainable at the behest of the Distribution Licencee. The petitioner cannot be rendered remediless if it is aggrieved by any Page 77 of 104 C/SCA/7850/2014 CAV JUDGMENT adjudication under the Act. This Court, therefore, is unable to accept the submission in this regard on behalf of respondent Company.
37. On the other hand, the learned advocate for the petitioner has contended that the CGRF has no jurisdiction to pass the impugned orders as, according to the petitioner, the dispute is in respect of the tariff applicable to a consumer or class of consumers, which can only be decided by the GERC. In support of this contention, reliance has been placed upon the order of the GERC in Appeal No.181 of 2010, (between two different parties). As per the learned advocate for the petitioner, the CGRF or the Ombudsman has no jurisdiction to entertain a petition for the change of category, for the purpose of tariff determination, to another category. Per contra, the respondent Company has submitted that in petition No.1228 of 2012 preferred by it before the GERC, the GERC directed the respondent Company, by an order dated 04.09.2012 to approach the CGRF, as the dispute is a consumer dispute. It is submitted that this order has not been challenged by the petitioner, therefore, it cannot be said that the CGRF has no jurisdiction to entertain Page 78 of 104 C/SCA/7850/2014 CAV JUDGMENT the grievance of the respondent-Company.
38. In order to examine the rival contentions, it would be necessary to determine the nature of the dispute between the parties; whether the dispute is regarding change of tariff from one category to another as submitted by the petitioner, or whether it is a billing dispute regarding the application of the appropriate tariff, as per the Tariff Orders of the GERC, to a permanent connection as sought by the respondent Company.
39. The determination of tariff is within the domain of the GERC, as per Section 62 of the Act. The Tariff Order of the GERC has been placed on record, at pages 222 to 226 of SCA No.7850 of 2014. As per the said Tariff Order, HTP-III Tariff is as follows:
"12.0 RATE HTP-III This rate shall be applicable to a consumer taking supply of electricity at high voltage, contracting for not less than 100 KVA for temporary period. A consumer not taking supply on regular basis under a proper agreement shall be deemed to be taking supply for temporary period."Page 79 of 104 C/SCA/7850/2014 CAV JUDGMENT
HTP-I Tariff has been described as follows:
"10.0 RATE HTP-I This tariff will be applicable for supply of electricity to HT consumers contracted for 100 KVA and above for regular power supply and requiring the power supply for the purposes not specified any other HT categories."
(emphasis supplied)
40. From the above, it is clear that HTP-III is applied in cases where the connection is for a temporary period. A consumer not taking supply on a regular or permanent basis, under a contract agreement, shall be deemed to be taking supply for a temporary period. HTP-I Tariff is applicable to a consumer taking a regular power supply after executing a proper agreement.
41. According to the respondent Company, from the very inception, it has requested the petitioner to grant a permanent connection for construction activity and to apply the appropriate tariff on such permanent connection. It has been submitted on behalf of the respondent Company that it has never prayed before any Forum, to change the tariff from HTP-III to HTP-I. The Page 80 of 104 C/SCA/7850/2014 CAV JUDGMENT prayer has always been to apply the correct tariff applicable to a permanent connection, which is HTP-I, as per the Tariff Order of the GERC.
42. It has further been submitted by the respondent Company that the petitioner had given an option to it, to indicate whether it wants to avail of temporary power supply or permanent power supply. A scrutiny of the record reveals that the respondent Company had applied, by way of the prescribed form, for the grant of a permanent connection of 300 KVA for construction activity. A copy of this application is annexed as Annexure-R-I to the affidavit-in-reply filed on behalf of the respondent Company, and is dated 27.08.2010. The petitioner issued a letter dated 15.10.2010 to the respondent Company providing the estimate for catering 300 KVA temporary HT power at 11 KVA to the site in question. Further, the respondent Company requested for reduction in load demand and the same was considered by the petitioner and a revised estimate was given to the respondent Company by letter dated 13.11.2010. A perusal of the letter dated 13.11.2010 reveals that in Clause 14, the petitioner has stated as under:
Page 81 of 104 C/SCA/7850/2014 CAV JUDGMENT
"If you want to avail HT power supply for a temporary period only then a tariff applicable will be HTP-3. The consumer taking temporary HT supply need not to enter in to 2 years (minimum period) agreement. You may therefore inform us accordingly."
(emphasis supplied)
43. The same condition is mentioned in letter dated 15.10.2010. From the above, it is apparent that it was left to the consumer, (in this case the respondent Company), to indicate whether it wanted to avail of a temporary connection or a permanent connection. The petitioner has itself given an option to the consumer in this regard. The estimate provided by the petitioner, vide letter dated 13.11.2010, was for a temporary connection, despite the fact that the respondent Company had categorically requested it for a permanent connection. Further, it is clear that from the letter dated 01.12.2010, addressed by the respondent Company, that the estimate given by the petitioner is for a temporary connection whereas the demand of the respondent Company is for a permanent connection for a period over two years, and not for a temporary period of three months or six months. Page 82 of 104 C/SCA/7850/2014 CAV JUDGMENT
44. As the petitioner did not release a permanent connection to the respondent Company but released a temporary connection with HTP-III Tariff applicable to a temporary connection despite the fact that the respondent Company has requested for a permanent connection, the respondent Company approached the CGRF, which disposed of the application preferred by it by holding that it has no jurisdiction to entertain a petition for change of one category for the purpose of tariff determination to another category. By the said order, the respondent Company was informed that it could prefer an appeal to the Ombudsman. The Ombudsman held that the respondent Company has not submitted the required documents as required by the petitioner and an agreement has not been executed. In the absence of an agreement, the temporary HT power supply which was granted to the respondent Company was found to be in order. The Ombudsman further held that a person not taking supply on a regular basis under a proper agreement shall be deemed to be taking supply for a temporary period and a permanent HT power supply can be granted only after the submission of all the necessary documents. The respondent Company, Page 83 of 104 C/SCA/7850/2014 CAV JUDGMENT therefore, approached the petitioner with the necessary documents and made an application which was not accepted by the petitioner. Therefore, the respondent Company again approached the Ombudsman by filing Case No.54 of 2011. Pursuant to the filing of this case, the petitioner accepted the application of the respondent Company for a permanent connection on 08.09.2011. However, by its letter dated 13.12.2011, the petitioner again informed the respondent Company that its application dated 08.12.2011 would be processed only for the release of a temporary connection and not a permanent one. The respondent Company addressed a letter dated 26.12.2011, lodging its objections to the action of the petitioner in treating the connection as a temporary one, despite the fact that it has requested for a permanent connection. More communications followed, but the petitioner persisted in its stand of granting a temporary connection. Under the circumstances, the respondent Company approached the GERC with a representation. The GERC, vide its letter dated 07.03.2012, directed the respondent-Company either to approach the CGRF with a fresh application or to file a petition in accordance with the regulations. The Page 84 of 104 C/SCA/7850/2014 CAV JUDGMENT respondent Company thereafter, approached the Ombudsman by filing a Review Application. The Ombudsman, vide order dated 10.04.2012, directed the respondent Company to approach the GERC for the implementation of its earlier order. The respondent Company again approached the GERC, by way of Petition No.1228 of 2012 on 09.05.2012. The GERC by its order dated 04.09.2012, directed the Electricity Ombudsman to pass a reasoned order as and when the matter is referred to him. The respondent Company again approached the CGRF which, after hearing the parties, passed the impugned order dated 18.01.2013. The Review Application preferred by the petitioner also came to be rejected by the second impugned order dated 16.04.2013.
45. From the above sequence of events, it is clear that the demand of the respondent Company, from the very initial stage, was for the grant of a permanent connection. This demand was disregarded by the petitioner, which insisted on granting only a temporary connection, in spite of the fact that in its letters dated 15.10.2010 and 13.11.2010 the clause reproduced hereinabove, has been inserted asking the consumer to indicate its option for a temporary Page 85 of 104 C/SCA/7850/2014 CAV JUDGMENT connection, or a permanent connection after entering into a two-year agreement. As is clear from the Tariff Order of the GERC extracted hereinabove, HTP-III Tariff is applicable to a temporary connection and HTP-I Tariff is applicable to a permanent connection, wherein a consumer takes power supply on a regular basis, after executing an agreement. The option had already been made by the respondent Company, indicating that it wants a permanent connection. From the communications on record it is evident that from the very beginning the respondent Company had requested for a permanent connection after executing an agreement which the respondent Company has always been willing to do. There appears to be no justification for the action of the petitioner, in forcibly releasing a temporary connection in favour of the respondent Company at HTP-III Tariff, when it has itself asked the respondent Company to indicate its option and the respondent Company has opted for a permanent connection.
46. The CGRF, by the impugned order, has directed the petitioner Company to execute an agreement with the respondent Company and apply the appropriate tariff, Page 86 of 104 C/SCA/7850/2014 CAV JUDGMENT that is, HTP-I Tariff. This is directed to be done with effect from 08.09.2011, on which date, the Ombudsman passed the order directing the respondent Company to apply afresh for a permanent connection, with proper documentation. Pursuant thereto,the respondent Company did make a fresh application with proper documentation that was found to be in order by the Circle Office, Sabarmati, of the petitioner. This is recorded by the CGRF in paragraph-5.8 of the order dated 18.01.2013. As the application of the respondent Company dated 08.12.2011, for a permanent connection, was found to be in order, in the view of this court, the CGRF has committed no legal error in directing the petitioner to enter into a two-year agreement for a permanent power supply with the applicable tariff of HTP-I, from the date of the application, as there remained no reason to deny a permanent connection to the respondent Company.
47. After careful examination of the documents on record and the entire sequence of events, in the view of this Court, the dispute is not regarding the change of tariff from one category to another, but is essentially about applying the correct tariff, as Page 87 of 104 C/SCA/7850/2014 CAV JUDGMENT determined by the CERC in its Tariff Order, to the permanent connection demanded by the respondent Company. The tariff has already been decided by the GERC. It is only a question of the applicability of the correct tariff in the case of the respondent Company, that is in issue. The tariff applicable to a permanent connection is to be applied by the petitioner. It cannot disregard the Tariff Order and apply the tariff applicable to a temporary connection to the respondent Company, when the application for a permanent connection is found to be in order. The CGRF has stated, in paragraph-6.2 of its order dated 04.09.2012, that whether the documents submitted by the petitioner are relevant/ adequate, or not, is to be decided by the petitioner (respondent therein) in accordance with law and relevant provision of regulations notified by the Commission. It is further held that if the respondent Company (petitioner therein) has any grievance on this account, it has to approach the CGRF instead of the Commission, as it falls under a consumer dispute. In this view of the matter, the GERC, the very body that determines the tariff, has itself directed the petitioner to approach the CGRF. This order has not been challenged by the Page 88 of 104 C/SCA/7850/2014 CAV JUDGMENT petitioner. The objection of the petitioner that the CGRF has no jurisdiction to entertain the grievance of the respondent Company is, therefore, without any merit.
48. It has been vehemently submitted on behalf of the petitioner that construction activity, as undertaken by the respondent Company, cannot be considered to be permanent and is always temporary in nature, though it may last for several years. The learned advocate for the petitioner has not produced any material on record, in the shape of a policy decision of the petitioner, to indicate that a permanent connection cannot be granted to a consumer who undertakes construction activities. It may, no doubt, be true that as per the applicable regulations the activity to be undertaken by any consumer who applies for an electricity connection is to be indicated. However, the learned advocate for the petitioner has not brought to the notice of this Court any regulation which states that the activity of construction is to be considered as temporary in nature and a permanent connection cannot be granted to a consumer undertaking construction activities. On the contrary, Chief Page 89 of 104 C/SCA/7850/2014 CAV JUDGMENT Engineer (Operations) of the petitioner has, vide Circular dated 30.07.2013, laid down certain guidelines. This document is on record at Annexure-R- 20 to the petition. This document assumes some importance, and is extracted hereinbelow:
"In the above referred letter dated 07/07/2012 at point No. 8 it was instructed that "For Construction purpose only Temporary connection is to be given in existing tariff."
In view of clarifications in Tariff order dated 16th April, 2013, discussions in Electricity Supply Code Review Panel Meeting dated 31st May, 2013, CGRF order dated 10th June, 2013 & also as per legal opinion dated 24th July, 2013, it is decided to quash the above directive at No.8 with immediate effect. No old cases are to be reopened.
Accordingly for temporary connections following guidelines are to be followed.
Temporary Supply Temporary is the period & not the purpose. Any consumer LT or HT, who agrees to execute a two years agreement is to be provided with permanent connection irrespective of usage including constructions, after observing all the formalities of a permanent connection. In other Page 90 of 104 C/SCA/7850/2014 CAV JUDGMENT words, "A consumer not taking supply on regular basis under proper agreement shall be deemed to be taking supply for temporary period." Such Permanent Connections are to be billed in respective tariff as per actual usage at the time of demand.
This is for strict implementation with immediate effect."
(emphasis supplied)
49. A perusal of the above Circular goes to show that the directive in letter dated 07.07.2012 at point No.8, regarding temporary connection for construction purposes, has been quashed and a decision has been taken after considering the clarifications in the Tariff Order dated 16.04.2013, discussions that took place in Electricity Supply Code Review Panel Meeting dated 31.05.2013, the CGRF order dated 10.06.2013 and a legal opinion dated 24.07.2013. From the above Circular, it is clear that only the period can be considered to be temporary and not the purpose for which the power supply is given. Therefore, the submission on behalf of the learned advocate for the petitioner that the purpose of "construction activity" Page 91 of 104 C/SCA/7850/2014 CAV JUDGMENT
is a temporary one and the respondent Company cannot be granted a permanent connection for construction activity, is unsustainable, in view of its own Circular.
50. The petitioner has tried to raise a contention seeking to disown its own Circular. It is submitted that this Circular mentions that no old cases are to be reopened. In the present case, the CGRF has directed the petitioner to enter into a two-year agreement with the respondent Company vide the impugned orders and the Circular in consonance with the orders of the CGRF. It may be kept in mind that the petitioner has already implemented the impugned orders of the CGRF, as is clear from its letter dated 05.09.2013, which is after the issuance of the Circular dated 30.07.2013. After having accepted and implemented the orders of the CGRF, the petitioner is hardly in a position to raise any objections regarding the said orders, or the Circular dated 30-7-2013.
51. The learned advocate for the petitioner has tried to brush aside the Circular dated 30-7-2013, by submitting that it is only an internal communication. Page 92 of 104 C/SCA/7850/2014 CAV JUDGMENT The submissions of the learned advocate for the petitioner, in this regard, are not convincing as the Circular dated 30-7-2013, reflects that a conscious decision has been taken by the petitioner, after due deliberations,discussions and consultations, after considering various aspects. It has been decided, as a policy decision, that a temporary connection pertains to the period for which it is granted and not to the activity undertaken. Any consumer, LT or HT who agrees to execute a two-year agreement, is to be provided with a permanent connection, irrespective of usage, including construction, after discharging all the formalities of a permanent connection. Nothing has been produced on record by the learned advocate for the petitioner to indicate that this circular has been cancelled, modified or amended, and does not hold the field. The Circular dated 30-7-2013 reflects a conscious decision taken by the petitioner which cannot be repudiated by it. It may be an internal communication but for that reason alone its contents do not get diluted in any manner. The said Circular,therefore, is binding upon the petitioner.
52. It has been noticed by this court that the Page 93 of 104 C/SCA/7850/2014 CAV JUDGMENT petitioner has withheld even this Circular from the Court. It has not produced the circular on the record of the petition or mentioned it in the petition. The non-disclosure of this Circular further amounts to the suppression of a fact that is material for the adjudication of the petitions. This Court cannot appreciate, or condone, the conduct of the petitioner in this regard.
53. The learned advocate for the petitioner has laid great stress on the submission that in the impugned order dated 16-4-2013, passed in the Review Application filed by the petitioner,the CGRF has issued a further direction, over and above the directions contained in the order dated 18-1-2013. This submission pales into insignificance and irrelevance because the petitioner has consciously, by its letter dated 5-9-2013, addressed to the Convener of the CGRF, stated in black and white, that it has 'acquiesced' to the order dated 16-4-2013 passed by the CGRF. It is further stated that as per the said order, the refund has been calculated at Rs.5,00,281.04 Ps. and credit is given in the account of the respondent Company in the month of August, Page 94 of 104 C/SCA/7850/2014 CAV JUDGMENT billed in September,2013. The petitioner, after having taken a voluntary and conscious decision by fully complying and implementing the above-stated order of the CGRF, cannot now turn around and say that the directions contained in the said order are not in accordance with law. The petitioner has waived any objection it may have had, by its own conduct. The petitioner cannot be permitted to approbate and reprobate at the same time. The conduct of the petitioner in this regard disentitles it from challenging the order dated 16-4-2013, after having voluntarily implemented it in toto,without a murmur of protest.
54. The learned advocate for the petitioner has raised a contention that the activity of construction, being carried out by the respondent Company, is not in accordance with the NA permission granted to it. According to the petitioner, the NA permission is for residential purposes whereas the respondent Company is carrying on construction activity on the land in question. It is not in dispute that the respondent Company is constructing a Township for residential purposes and, ultimately, the houses so constructed Page 95 of 104 C/SCA/7850/2014 CAV JUDGMENT would be residential units. Obviously, residential units can only be occupied after they are constructed. Hence, the purpose for which the NA permission has been granted, which is for residential purposes,cannot be said to be in conflict with the construction activity to build houses for residential purposes. In any case, the NA permission is not under challenge before this Court,therefore, this court is not required to delve any deeper into this aspect of the matter. Suffice it to say, the petitioner is not the competent authority to decide whether the NA permission is being violated by the respondent Company,or not. That is a matter within the realm of the authority that has granted the NA permission, in the first place.
55. Another submission urged on behalf of the petitioner is to the effect that the activity of construction is temporary in nature, even though it may continue for several years. This court has already discussed the guidelines dated 30-7-2013, issued by the Chief Engineer (Operations), UGVCL,Mehsana of the petitioner, wherein it is clearly recorded that 'temporary is the period and not the purpose' and any Page 96 of 104 C/SCA/7850/2014 CAV JUDGMENT consumer, LT or HT, who agrees to execute a two-year agreement is to be provided with a permanent connection, irrespective of usage, including construction, after observing all the formalities of a permanent connection. When the very guidelines issued by the petitioner state that 'temporary is the period and not the activity', this court does not consider it necessary to decide the issue whether construction is a temporary activity or a permanent one as that is not the central issue in dispute. Insofar as this court is concerned, the guidelines dated 30-7-2013, issued by the petitioner, clinch the issue that it is the period of the electricity connection and not the purpose for which it is taken, that is to be considered.
56. It has further been submitted on behalf of the petitioner that the present dispute is regarding the change of tariff from one category to another, whereas on behalf of the respondent Company it is submitted that per se,it is a billing dispute where the wrong tariff of HTP-III, which is applicable to a temporary connection,is being applied to the permanent connection requested for by the respondent Company. As Page 97 of 104 C/SCA/7850/2014 CAV JUDGMENT already discussed hereinabove, as per the Tariff Order of the GERC, HTP-III tariff is applicable to a consumer taking supply of electricity at high voltage, contracting for not less than 100 KVA, for a temporary period. A consumer who is not taking supply on a regular basis under a proper agreement shall be deemed to be taking supply for a temporary period.
57. On the other hand, HTP-I tariff is applicable for supply of electricity to HT consumer contracted for 100 KVA and above for regular power supply and requiring the power supply for the purpose not specified in any other HT categories.
58. From the Tariff Order it can be deduced that a regular power supply can only be granted to a consumer who enters into a two-year agreement. It is the case of the respondent Company that it is desirous of obtaining a regular power supply after executing a two-year agreement, at the rate which is applicable for a regular power supply/permanent connection, which is HTP-I tariff. The respondent Company has entered into an agreement, hence it is entitled to regular power supply by way of a permanent connection, with Page 98 of 104 C/SCA/7850/2014 CAV JUDGMENT the tariff applicable for regular power supply. As the petitioner did not apply the appropriate tariff to the permanent power connection required by the respondent Company, it was constrained to approach various authorities, by raising disputes.
59. To clarify the situation, it would be illustrative to peruse the order dated 18-1-2013 passed by the CGRF, wherein it is clearly stated, in paragraph 1, that the dispute of the respondent company (the applicant therein) is regarding the fact that in spite of entering into a two-year agreement,the petitioner has released a temporary connection to it. Similarly, in the order dated 8-8- 2011 passed in Case No.UG-03-020-2011-12 between the same parties, the CGRF has clearly noted in the first paragraph that the application has been filed by the respondent Company (applicant therein) for not granting a permanent connection for construction purposes. As indicated by the documents on record, the respondent Company has,from the very beginning, requested the petitioner for a permanent connection at the tariff applicable to such permanent connection, after executing an agreement for two years. However, Page 99 of 104 C/SCA/7850/2014 CAV JUDGMENT the petitioner insisted upon granting a temporary connection, in spite of the fact that the respondent Company has executed a two- year agreement for a regular power supply.
60. Being a Distribution Licencee under the Act,the petitioner is bound to apply the correct tariff decided by the GERC. It is not the case of the petitioner that when a permanent connection is requested for it can apply the tariff applicable to a temporary connection, only because it is of the view, (unsupported by any material on record) that the activity of construction is a temporary one. The Tariff Order of the GERC does not make any distinction regarding the nature of the activity. The only distinction is regarding the nature of the connection, as specified hereinabove. If the connection is for a regular supply, after executing a two-year agreement, then HTP-I tariff would be applicable, but if the connection is for a temporary period, without entering into a proper agreement then it would be of a temporary connection with HTP-III tariff. The Tariff Order of the GERC also mentions "temporary period" and not "temporary activity", Page 100 of 104 C/SCA/7850/2014 CAV JUDGMENT therefore, the petitioner cannot,of its own, misread and misapply the tariff decided by the GERC, for reasons best known to it. After having scrutinized the entire record, this Court is of the considered view that the case of the respondent Company is not for the change of category for the purpose of tariff determination to another category, but is for the grant of a permanent connection with the correct tariff applicable to such a connection.
61. The attention of the court has been drawn to the two-year agreement executed by the respondent Company in Special Civil Application No.7853 of 2014, wherein, in column No.(8), the blank space has been filed in by the petitioner by writing 'HTP III' tariff. According to the petitioner, the authorized signatory of the petitioner has signed this document. In this regard, the learned advocate for the respondent Company has submitted that a wrong tariff has been deliberately inserted by the petitioner in the said agreement in spite of the fact that the respondent Company has agreed to enter into an agreement for a permanent connection with HTP-I Tariff. When it came to the notice of the respondent Company, the matter was taken up with the petitioner. The authorised signatory of Page 101 of 104 C/SCA/7850/2014 CAV JUDGMENT the respondent Company may have signed the agreement by mistake. When it came to light later on, a request was made to the petitioner to rectify the error.
62. Be that as it may, the fact remains that the petitioner, being a Distribution Licencee, is under an obligation to apply the correct tariff, as decided by the GERC by its Tariff Order, to the consumer. If the consumer takes a permanent connection after executing a proper agreement for two years, then the applicable tariff of HTP-I is to be applied. Merely by the insertion of the wrong tariff of HTP-III in the two- year agreement, the petitioner cannot vary the Tariff Order on its own whims and fancies, with a view to compelling a consumer to pay tariff at an exorbitant rate, which is not applicable.
63. The learned advocate for the petitioner has made submissions regarding the order of the Appellate Tribunal passed in another matter between different parties, in a totally different fact situation. Suffice it to say that the said order is neither applicable to the facts and circumstances of the case, nor is it binding on this Court. Hence, it requires no Page 102 of 104 C/SCA/7850/2014 CAV JUDGMENT further discussion.
64. The cumulative result of the above discussion is that in light of the reasons stated hereinabove, this Court is of the considered view that the petitioner does not deserve the relief sought for in the petitions on the ground of suppression of material facts, acquiescence in implementing the impugned orders and not stating these facts in the petitions, as also on the merits of the petitions. The impugned orders dated 18-1-2013 and 16-4-2013 in Special Civil Application No.7850 of 2014, dated 15-3-2014 in Special Civil Application No.7853 of 2014 and dated 13-2-2014 in Special Civil Application No.7854 of 2014 passed by the CGRF, do not suffer from any perversity or illegality, so as to warrant interference by this Court.
65. The petitions, therefore, deserve to be rejected. Accordingly,they stand rejected.
66. Rule is discharged, in each petition. There shall be no orders as to costs.
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(SMT. ABHILASHA KUMARI, J.) ARG Page 104 of 104