Bombay High Court
Maharashtra State Electricity ... vs M/S Ekta Polymer, Thr. Its Proprietor ... on 28 February, 2020
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No. 6828 of 2017
PETITIONER: Maharashtra State Electricity Distribution
Co. Ltd. Through its Executive Engineer
(O&M) Division, Bhandara.
Vs.
RESPONDENTS : 1. M/s Ekta Polymer
G-8, MIDC Godegao Zi-8, MIDC, Rajegaon,
Tahsil Bhandara, Through its Proprietor
2. Electricity Ombudsman under the Electricity
Act, Vijay Nagar, Chhaoni, Nagpur.
Mr. A.M. Quazi, Advocate for the petitioner.
Mr. K.B. Zinjarde, Advocate for the respondent No.1.
CORAM : MANISH PITALE, J.
DATE : FEBRUARY 28, 2020
ORAL JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for rival parties.
2. By this writ petition, the petitioner - Maharashtra State Electricity Distribution Co. Ltd. has challenged order dated 06/04/2017, passed by the respondent No.2 i.e. Electricity Ombudsman, Nagpur, whereby a representation filed by the respondent No.1 was allowed and order passed by the Forum below was quashed and set aside. The bill raised by the petitioner to the tune of Rs.2,71,820/-, was also quashed and set aside and additionally, the petitioner was directed to pay compensation to the respondent No.1 @1200/- per day for illegal disconnection ::: Uploaded on - 03/03/2020 ::: Downloaded on - 24/03/2020 05:52:26 ::: 2 wp6828.17.odt from 11/03/2015, till restoration of supply.
3. The brief facts leading up to filing of the present writ petition are that the petitioner had asked the respondent No.1 for inspection of the meter of its unit on 01/04/2014. According to the petitioner, the respondent No.1 obstructed such inspection and later, on 02/04/2014, the respondent No.1 intimated the petitioner that meter affixed on the unit of respondent No.1 was burnt. The flying squad of the petitioner inspected the meter on 05/04/2014, prepared spot panchanama before removing the burnt meter and installed a new meter in its place. During recording of panchanama, in the presence of proprietor of respondent No.1, reading of Distribution Transformer Center (DTC) meter was also recorded. It is an undisputed position on facts that the transformer through which the electricity was supplied to the unit of respondent No.1 was in fact supplying the electricity to only one unit and that was of respondent No.1 herein. The DTC meter was, therefore, recording electricity being supplied only to the unit of respondent No.1.
4. The petitioner raised a bill for the period pertaining to the consumption of electricity relevant for the period when the meter got burnt, on the basis of average consumption for past three months. This was in accordance with the relevant rules.
5. Thereafter, sometime in October, 2014, the petitioner raised an additional bill of Rs.5,56,493/- on the respondent No.1 and due to non-payment of such amount the supply of electricity was disconnected on 11/03/2015. Upon protest being raised by respondent No.1, the demand was revised and the petitioner reduced it to Rs.2,71,820/-.
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6. It is in this backdrop that respondent No.1 approached the Internal Grievance Redressal Cell (IGRC). On 03/06/2016, IGRC passed its order after hearing the representative of respondent No.1 and that of the petitioner. After assessing the material on record and rival submissions made by the parties, it was held that no interference was warranted in the action of the petitioner in raising the aforesaid bill against respondent No.1. Yet, surprisingly, in Clause 3 of the order passed by the IGRC, it was directed that the petitioner was liable to pay a sum of Rs.1,50,000/- to the respondent No.1 as compensation for having disconnected the electricity supply.
7. Thereafter, the respondent No.1 approached the Consumer Grievance Redressal Forum (CGRF) at Nagpur, reiterating its grievance. The CGRF also came to the conclusion that no error could be attributed to the petitioner for having raised such bill and accordingly, the grievance was dismissed.
8. Thereafter, respondent No.1 filed a representation before respondent No.2 - Electricity Ombudsman under the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum & Electricity Ombudsman) Regulations, 2006 (MERC & CGRA Regulations 2006), claiming that CGRF had committed an error in dismissing its application. By the impugned order, the respondent No.2 - Electric Ombudsman set aside the order of CGRF, quashed the bill of Rs.2,71,820/- raised by the petitioner and additionally directed the petitioner to pay compensation @1200/- per day from 11/03/2015, till restoration of electricity supply to the respondent No.1.
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9. The learned counsel appearing for the petitioner in support of the present writ petition submitted that the respondent No.2 - Electricity Ombudsman committed a grave error in interfering in the order of CGRF and holding against the petitioner. It was submitted that respondent No.2 - Electricity Ombudsman erroneously proceeded on the basis as if the petitioner had treated the present case as a case of theft of electricity. It was submitted that the said respondent further erred in holding against the petitioner on the ground that the bill raised initially against the respondent No.1 was later reduced and further that electricity disconnection notices were issued under the provisions of the Electricity Act, 1948, which had ceased to exist, instead of issuing the same under the Indian Electricity Act, 2003. It was emphasized that the reading in the DTC meter was ignored by respondent No.2 - Electricity Ombudsman while passing the impugned order. The said reading was taken in the presence of the proprietor of respondent No.1, which was reflected in panchanama executed when inspection was conducted on 05/04/2014, regarding burnt meter at the unit of respondent No.1. On this basis, it was submitted that the impugned order deserved to be set aside.
10. On the other hand, the learned counsel appearing for respondent No.1 submitted that no interference was warranted in the impugned order under writ jurisdiction because the impugned order was passed on proper appreciation of the material on record. It was submitted that the orders passed by IGRC & CGRF, were clearly influenced by the fact that other two units with which the respondent No.1 had nothing to do, had been alleged to have committed theft of electricity. It was further submitted that ::: Uploaded on - 03/03/2020 ::: Downloaded on - 24/03/2020 05:52:26 ::: 5 wp6828.17.odt in the present case no incident of theft of electricity arose and the IGRC and CGRF could not have proceeded on the basis that burning of meter on 02/04/2014, was a suspicious circumstance. According to learned counsel appearing for respondent No.1, the petitioner had correctly raised bill for the period pertaining to recording of data in the burnt meter by applying average consumption of past three months and issuance of subsequent bill for additional payment was wholly unsustainable, which the Electricity Ombudsman correctly appreciated while passing the impugned order. It was submitted that the writ petition deserved to be dismissed.
11. Heard learned counsel for the rival parties and perused the material on record. At the outset, the learned counsel appearing for the petitioner has made it clear to this Court that the demand raised against respondent No.1 had nothing to do with the allegation of theft of electricity. According to the petitioner, demand was raised on the basis of data available in the DTC meter pertaining to actual consumption of electricity during relevant period by the unit of respondent No.1. This was because the meter at the unit of respondent No.1 was burnt and, therefore, reliance was placed on reading in DTC meter.
12. This submission made on behalf of the petitioner needs to be appreciated in the backdrop of the facts of the present case. It is undisputed that DTC meter in the present case was regarding consumption of electricity only to the unit of respondent No.1 because admittedly the unit of respondent No.1 was the only unit, which was receiving electricity from the transformer in question. Therefore, there was no question of the DTC meter regarding consumption of electricity in unit other than the unit of ::: Uploaded on - 03/03/2020 ::: Downloaded on - 24/03/2020 05:52:26 ::: 6 wp6828.17.odt respondent No.1. It is also an admitted position that the burnt meter could not provide any data regarding actual consumption of electricity by the unit of respondent No.1. In this situation, reliance placed by the petitioner on the data available from DTC meter could not be found fault with. A perusal of panchanama dated 05/04/2014, executed by the flying squad of the petitioner in the presence of proprietor of respondent No.1, who also signed on said panchanama, shows that apart from recording the condition of the burnt meter and manner in which it was sent for further examination, it was also recorded that reading of the DTC meter was noted and that it was indeed in the presence of proprietor of respondent No.1.
13. There is no material on record to show that proprietor of respondent No.1 had at any point of time raised any objection to the reading in DTC meter. Thus, the petitioner could certainly make reading from DTC meter as a basis for raising bill towards actual consumption of electricity on the unit of respondent No.1. This is exactly what appears to have done in the present case by the petitioner.
14. Although, initially the petitioner raised a bill on the basis of average consumption of the past three months, but, later additional bill was raised on the basis of reading of DTC meter. The material on record also shows that when the respondent No.1 raised a protest against the quantum of consumption noted and the amount of additional bill raised, the Superintending Engineer revised the same and reduced the figure to Rs.2,71,820/-. The respondent No.1 also requested for four installments to make the said payment, but, it is an admitted position that respondent No.1 failed to make payment of the installments also. It is in this ::: Uploaded on - 03/03/2020 ::: Downloaded on - 24/03/2020 05:52:26 ::: 7 wp6828.17.odt backdrop that the petitioner disconnected the electricity supply on 11/03/2015.
15. The question is, whether the respondent No.2 - Electricity Ombudsman was justified in the backdrop of these facts to hold that additional bill raised by the petitioner was unsustainable and secondly, that the petitioner was liable to pay compensation as directed in the impugned order. The respondent No.2 - Electricity Ombudsman seems to have been influenced by the contentions raised by respondent No.1 that the petitioner had proceeded as if there was theft of electricity and also because the meter was found burnt in suspicious circumstances.
16. As noted above, the petitioner did not raise the additional bill either on the ground of theft of electricity or on the ground that the meter was burnt in suspicious circumstances. The additional bill was raised simply on the basis of data and reading gathered from the DTC meter. The said reading was noted in the presence of proprietor of the respondent No.1, who never raised any objection to such reading noted on behalf of the petitioner. The respondent No.2 - Electricity Ombudsman also seems to have erred in holding against the petitioner on the basis that the additional bill was revised by the petitioner. A perusal of the order of CGRF, particularly paragraph 12 thereof, shows the reason why the petitioner reduced the bill after protest was raised by the respondent No.1. Merely because the petitioner corrected the bill, cannot be a ground to hold that it had no right or authority to raise such an additional bill in the first place.
17. The respondent No.2 - Electricity Ombudsman obviously committed an error in holding that notices of electricity ::: Uploaded on - 03/03/2020 ::: Downloaded on - 24/03/2020 05:52:26 ::: 8 wp6828.17.odt disconnection were illegal because they were issued under the Electricity Act, 1948 and not later enactment of Electricity Act, 2003. It appears that the notices were issued in formats, which may have referred to earlier enactment and the same could not be held to be a basis for holding against the petitioner, because the question was whether a notice of disconnection of electricity could have been issued by the petitioner at all. Since this Court has found that the additional bill, which was later revised, was correctly raised by the petitioner against respondent No.1, it cannot be said that disconnection notice issued to respondent No.1 due to non-payment of said dues were illegal.
18. In view of above, this Court finds that the very basis of the impugned order was erroneous and the view taken by the CGRF could not have been upset by the Electricity Ombudsman. Accordingly, the impugned order is quashed and set aside and it is held that the respondent No.1 is indeed liable to pay amount of Rs.2,71,820/-, as demanded by the petitioner. Since it is found that the additional bill was correctly raised, the respondent No.1 is not entitled to any amount of compensation either under the impugned order of respondent No.1 - Electricity Ombudsman or the order of the IGRC.
19. Rule is made absolute in above terms.
JUDGE MP Deshpande ::: Uploaded on - 03/03/2020 ::: Downloaded on - 24/03/2020 05:52:26 :::