Gujarat High Court
Uttar Gujarat Vij Company Limited vs Chairman/Secretary, M/S Ashwamegh Co ... on 30 April, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/4668/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4668 of 2016
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 4668 of 2016
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 4668 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 3790 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 3792 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 3815 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 4311 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 4455 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 4887 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 5229 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7253 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7260 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 7853 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 11909 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 11972 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 11993 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12451 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 13956 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 17777 of 2016
FOR APPROVAL AND SIGNATURE:
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C/SCA/4668/2016 JUDGMENT
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
UTTAR GUJARAT VIJ COMPANY LIMITED
Versus
CHAIRMAN/SECRETARY, M/S ASHWAMEGH CO OP HOUSING SOC LTD
& 1 other(s)
================================================================
Appearance:
MR. MIHIR THAKORE, SENIOR ADVOCATE with MS LILU K BHAYA(1705)
for the Petitioner(s) No. 1
MR RAVINDRA SHAH(1299) for the Respondent(s) No. 1 in (SCA
No.4668/2016, 4311/2016 and 5229/2016
MR. ANVESH VYAS, for the Respondent(s) No.1 in SCA Nos.3790/2016,
3815/016, 4455/2016, 4887/2016, 7260/2016 and 13956/2016
MR. MANISH SHAH, for the Respondent (s) in SCA No.3792/2016
MR. V.K.JOSHI, for the Respondents(s) in SCA 7253/2016
MR. MANISH PATEL, for the Respondent (s) in SCA 11972/2016
MR B.M.VAISHNAV for the Respondent (s) in SCA 7853/2016, 11909/2016,
11993/2016, 12451/2016 and 17777/2016.
RULE SERVED(64) for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 30/04/2019
COMMON ORAL JUDGMENT
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C/SCA/4668/2016 JUDGMENT [1] This group of petitions are filed by the petitioner (hereinafter referred to as "electric company" for short) against order of the electricity ombudsman, Gujarat State by which the ombudsman has directed refund of amount to the respondents consumers which was charged from the respondents consumers under the head of infrastructure development charges.
[2] As this petitions are based on identical facts and are raising similar questions of law, with the consent of the parties are taken up for joint hearing and disposal. For the purpose of decision, the facts are extracted from the lead matter i.e. Special Civil Application No. 4668 of 2016.
[3] It is the case of the petitioner that the respondent- consumers being engaged in commercial activity of being an organizer, builder and developer of schemes had made an application for receiving electric connection. The purpose for electric connection was to develop infrastructure to enable supply of the electricity for the purpose of infrastructure development of the respective land and for which the connection was received upon payment of the cost incurred by the petitioner in developing such infrastructure. It is the case of the petitioner that as the respondents-consumers had requested for connection for a commercial purpose, the electric company was entitled to levy the infrastructure development charges. The ombudsman therefore has disregarded this by equating the commercial activity of the respondents-consumers with a domestic consumer and held that the responsibility of development of infrastructure is that of the electric company and such cost cannot be recovered Page 3 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT from the consumer.
[4] It is submitted that the respondent no.1 had floated a scheme of bungalows on particular survey nos. of village Sola and for that purpose an application for infrastructure development for network without meter was made on 25.02.2013 for which a bill was issued dated 21.05.2013 for an amount of Rs.16,55,665/-. The break up of the bill included tapping poll, 11 KV line 2 transformer charges upon such bill being raised payment by respondent no.1 was made on 13.06.2013. It is submitted that along with the applications the respondent had marked the category in which the connection was sought and the application was accompanied with proforma undertaking which included the payment of charges as per the rules and regulations of the electric company.
[5] Based on such application the electric company undertook the infrastructure development and erecting of new transformer and new HT line was laid.
[6] It appears that thereafter for the individual bungalows separate applications for separate connection as an individual consumers was made on 30.01.2014 and for such connections fixed charges and security deposits were received and the connections were released. It is submitted that after the entire development of infrastructure by the electric company for giving individual connection to the occupants of the respondent residential society, the respondent no.1 filed a complaint before the Consumer Grievance Redressal Forum of UGVCL. In the said complaint, the respondents had prayed for Page 4 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT refund of the infrastructure charges which the electric company had received at the time of giving the connection to the respondents as a society and not in individual capacity. By an order dated 09.06.2015, the complaint came to be rejected.
[7] The respondent No.1 therefore, filed an appeal being case No.93 of 2015 before the electricity ombudsman- respondent no.2. The said appeal was allowed vide impugned order dated 18.09.2015 by holding that the electric company had duplicated its charges and recovered the money as at the first stage when the society as a whole had applied for connection to develop infrastructure, the electric company had already received such charges and thereafter when the members of the respondent no.1-Society had made an application for individual connection at that time also for 20 connections the electric company has recovered money in the form of fixed charges and or deposits.
[8] Learned senior counsel Mr. Mihir Thakor with Lilu Bhaya, learned advocate appearing for the petitioner submitted that the first application dated 25.02.2013 was for the connection for developing the infrastructure in the land and such connection was without a meter. The electric company was therefore entitled to charge the expenditure incurred by the electric company towards development of the infrastructure at the request of the respondents-consumers for the purpose of the members of respondents-consumers. It is submitted that only at the request of the respondents, the expenditure was incurred for creating the network and placing the transformer and that too after the respondents had agreed to such charges. Now, the respondents cannot be permitted to take a Page 5 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT U-turn and claim that the payment made was in duplicate. It is further submitted that the infrastructure development work included erection of new transformer and feeder and laying down of the HT lines underground cables from transformer to society etc. [9] It is submitted that error is committed in relying upon the circulars of 01.04.2011 and 21.04.2011 of the Gujarat Electricity Regulatory Commission (for short "GERC") to conclude that there is no provision to recover the development charges. It is argued that the ombudsman erroneously has concluded that there is duplication of charges first from the society for the overall connection and thereafter recovery of charges while giving individual connection. The ombudsman ought to have appreciated that the initial amount recovered was for specific.
[10] Learned senior advocate submitted that it cannot be said that the petitioner-electric company was not entitled to recover the charges under the head of infrastructure development as the provisions under the Electricity Act, 2003 (for short "the Act") clearly provides for charging the amount under "infrastructure development charge.
[10.1] Reference was made to Section 42 of the Act, which provides for the duties of the distribution licensee. Emphasis was led on Sub-Section, 5, 6 and 7. Learned advocate then referred to Section 43 which provides for duties of supply of electricity on request. Section 45 provides that the power to recover charges and Section 46 provides for the power to recover the expenditure. Referring to Section 46, specific Page 6 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT attention is drawn to phrase contained in Section 46 "expenditure reasonably incurred in providing electric line or electric plant". It is submitted that the word electric line and electric plant are also defined in Section 2(20) and Section 2(22) respectively. It is submitted that Section 45(2) which provides for the recovery of charges specifies the manner in which the charges are to be recovered and such charges are from its type, required to be recovered from the individual who is supplied the electric connection, whereas Section 46 is meant for different charges and provides for recovery of the expenditure incurred by the electric company and therefore, reasonably expenditure incurred in developing infrastructure at the request of the infrastructure developer like the petitioner, such charges can be recovered by the electric company.
[10.2] Learned advocate thereafter, referred to Notification 9 of 2005 which are regulations framed by GERC under the powers conferred by Section 181 read with Sections 45 and 46 of the Act.
[10.3] It is submitted that the respondents-consumers have sought to make out their case contending that their case would fall under regulation 4.2(ii). It is submitted that the contention that the respondent-consumers falling within the definition of Domestic Consumers under 4.2(ii)(c), cannot be accepted as admittedly the respondents-consumers are not domestic consumers, but had sought for electricity connection and supply for developing infrastructure for the domestic consumers and therefore, their activity would fall in commercial activity, not falling under (d) of 4.2(ii) and Page 7 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT therefore, the respondents-consumers have rightly in their application form have marked their category as such.
[10.4] It is further submitted that by subsequent change in policy which came into effect from 01.07.2014, the electricity companies have indeed given up the charge towards the infrastructure development however, the same is adjusted in the tariff. Moreover, as the applications of the respondents- consumers were prior to 01.07.2014, the respondents- consumers cannot be given the benefit of the subsequent change in the policy.
[10.5] It is also submitted that the consumers like the respondents who are engaged in the activity of building, residential bungalows, flats and other residential accommodations are carrying out their commercial activities and would obviously pass on the expenditure incurred by such builders onto their consumers at the time of entering into the said transaction with such consumers. It is abundantly clear that the petitioner-electric company when has granted electric connection to the individual residential unit, the electric company has not charged anything towards the infrastructure charges and it is not the case of any of the respondents- consumers that the charges recovered from such individual residential unit includes the charge for the electric plaint or for any other charge.
[10.6] It is therefore, submitted that the Consumer Commission was justified in rejecting the refund application of the respondents-consumers whereas, the ombudsman has committed error in concluding that there is duplication in Page 8 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT recovery of charges from the respondents-consumers firstly and thereafter, from the individual residential unit of the same purpose.
[11] As against this, learned advocate for the respondents- consumers have strongly opposed the petitions by contending that there is no provision under the Act or the Regulation which would enable the petitioner-electric company to recover charges for the infrastructure development. It is submitted that neither in the regulation nor in any provision there is any word or phrase "infrastructure charge". It is submitted that this phrase is articulately coined by the petitioner electric company only for the purpose of justifying their overcharging or duplicate charging from the respondents-consumers and its individual members.
[11.1] It is submitted that the regulations framed by GERC are statutory in nature and the regulations framed by the GERC specifically prohibit charging of the infrastructure charge be it under any nomenclature. They refer to several directives by GERC in this regard and submitted that the petitioner- electric company ought to have formally brought on record such directives, but such directives are deliberately suppressed and only when the answering respondents brought such directives to the notice, the electric company quickly changed their stand.
[11.2] It is submitted that the nature electric supply gets classified under Clause 3.4-Consumers. 3.4.1 mentions that the distribution licensee may classify or re-classify consumers with the approval of GERC, but no additional category can be Page 9 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT created by the electric company other than those approved by GERC. It is submitted that in the application for electric company, all the categories as recognized by the GERC are mentioned and such categories in the application form do not contain specific category as "infrastructure development"
which the petitioner electric company now wants to create.
[11.3] It is submitted that Gujarat Urja Vikas Nigal Limited (for short "GUVNL") which is parent company of electric company like the petitioner was also not sure whether they are entitled to recover under the head of infrastructure charges and therefore, had entered into correspondence with the GERC seeking clarification in this regard. It is submitted that the correspondence between the two which are produced alongwith the affidavit-in-reply of the respondents-consumers go on to indicate that the charging of infrastructure charge was not approved by the GERC. The GUVNL in this regard had further communicated to the electric company i.e. to distribution licensee like the petitioner to act accordingly. By Drawing attention of this Court to the communication at Annexure-R3 dated 30.12.2010, it is submitted that the only charges which could be recovered were mentioned in the schedule of charges and depending upon the unit to be consumed the charges were thus fixed. The maximum being Rs.90,000/- for the connection exceeding 80 KW, but not exceeding 100 KW. It is submitted that beyond these charges, the petitioner company is not entitled to recovery even under the head of infrastructure charges. He thereafter, drawn attention of this Court to yet another communication by the GUVNL to the GERC dated 12.01.2011, where a modification was sought to enable the companies to recover charges like HT Page 10 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT line charges, proportionate cost of distribution transformers, LT line charges etc. In response to this communication, the GERC responded vide letter dated 23.03.2011 (Annexure-R5) stating that where the approval was sought earlier to bring recovery in conformity with the recovery made by Torrent Power Limited where such Torrent Power Limited was not recovering any separate charges related to HT line and distribution transformers and in case electric company desirous to revise in any of the categories, then justification and documents were invited by the GERC. Meaning thereby, GERC till such date has not approved recovery of the separate charges under the head of HT line and/or distribution transformers. Reliance is also placed on communication dated 21.04.2011 (Annexure-R6), addressed by the GERC to GUVNL where responding to the communication made by GUVNL dated 30.12.2010 and 23.02.2011, where it was emphasized that not to charge separate transformer charges, separate HT/LT line charges or other charges from the applicant and to follow the charging pattern as prescribed under the communication dated 30.12.2010. He thereafter, referred to communication dated 11.05.2011 by GUVNL to the distribution licensee companies like the petitioner clarifying the position and the manner in which the charges are to be recovered. It is submitted that this also does not refer to recovery of infrastructure charges which are recovered from the petitioner for the purpose of transformers installation and other infrastructure.
[11.4] Learned advocate thereafter, has relied upon the decisions of Apex Court in the case of Shalini Shyam Shetty and another v/s. Rajendra Shankar Patil, reported in (2010) 8 SCC 329, for supporting the contention of not to Page 11 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT exercise power under Article 227 of the Constitution of India against the Ombudsman decision.
In the case of Dr Kazimunnisa (dead) by Legal Representative v/s Zaka Sultana (dead) by Legal Representative and others, reported in (2018) 11 SCC 208, the relevant para-35 reads as under:-
"35. Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 lie a first appellate court by appreciating the entire evidence little realising that the jurisdiction of the High Court while deciding the writ petition under Article 227 is not akin to appeal and nor can it decide the writ petition like an appellate court."
In the case of Surya Dev Rai vs. Ram Chander and Another, reported in (2003) 6 SCC 675, relevant para-38 reads as under:
"39. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction
- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
Page 12 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019C/SCA/4668/2016 JUDGMENT (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of Page 13 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
In the case of Uttar Pradesh Power Corporation Limited v/s. National Thermal Power Corporation Limited and others, reported in (2011) 12 SCC 400, to emphasis that where technicalities are involved the subject be "best left to the Experts", here also, the GERC as an expert has decided the charges and tariffs which Court may not disturb, relevant para-10 to 13 read as under:-
"10.Upon hearing the learned counsel for the parties and upon perusal of the record, we find that several factual issues with regard to calculation of capital employed are involved in these appeals. The issues are not only based on the principles on which the amount of interest and the energy charges are to be determined but they also depend upon certain other technical and factual aspects.
11. Our attention was drawn to the judgment delivered by this Court in W.B. Electricity Commission v. CESC LTD. reported in (2002) 8 SCC 715 and more particularly to Para 102 of the same judgment, which reads as under:
"102. We notice that the Commission constituted under Section 17 of the 1998 Act is an expert body and the determination of tariff which has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. A perusal of the report of ASCI as well as that of the Commission abundantly proves this fact. Therefore, we think it would be more appropriate and effective if a statutory appeal is provided to a similar Page 14 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT expert body, so that the various questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first appellate stage also. From Section 4 of the 1998 Act, we notice that the Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications, is better equipped to appreciate the technical and factual questions involved in the appeals arising from the orders of the Commission. Without meaning any disrespect to the Judges of the High Court, we think neither the High Court nor the Supreme Court would in reality be appropriate appellate forums in dealing with this type of factual and technical matters. Therefore, we recommend that the appellate power against an order of the State Commission under the 1998 Act should be conferred either on the Central Electricity Regulatory Commission or on a similar body. We notice that under the Telecom Regulatory Authority of India Act, 1997 in Chapter IV, a similar provision is made for an appeal to a Special Appellate Tribunal and thereafter a further appeal to the Supreme Court on questions of law only. We think a similar appellate provision may be considered to make the relief of appeal more effective."
12. Looking to the observations made by this Court to the effect that the Central Commission constituted under Section 3 of the Act is an expert body which has been entrusted with the task of determination of tariff and as determination of tariff involves highly technical procedure requiring not only working knowledge of law but also of engineering, finance, commerce, economics and management, this Court was firmly of the view that the issues with regard to determination of tariff should be left to the said expert body and ordinarily High Court and even this Court should not interfere with the determination of tariff.
13. Looking to the aforestated legal position and in view of the technical aspect involved in the impugned order with regard to determination of tariff, which we prima facie find to have been determined in a just and proper manner, we are of the view that the conclusion arrived at by the Tribunal in the impugned orders do not appear to be unreasonable or unjustified and therefore, in our opinion the impugned orders requir no interference by this Court and, therefore, all these appeals are dismissed with no order as to costs."
Page 15 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019C/SCA/4668/2016 JUDGMENT [12] Learned advocate Mr. Anvesh Vyas and Mr. B.M.Vaishnav appearing for some of the respondents-consumers have adopted elaborate argument of Mr. Ravindra Shah. In addition, it is submitted that GERC is main regulatory authority for the purpose of tariff and charges and therefore, any internal communication, circular or notification of GUVNL will not overrule the regulations of GERC which has statutory powers. Over and above, Shri Vaishnav has pointed in Special Civil Application No.3792 of 2016 that on page-17 which the application for LT connection. The application is for residential unit and therefore, the recovery of charges was not justified.
[13] It is lastly submitted by the all the respondents that no error is committed by the ombudsman as the petitioner electric company has failed to prove entitlement to charge for the head of HT line and/or transformer charges.
[14] In rejoinder, learned senior advocate has submitted that there is no bar under the Electricity Act which would prevent the electricity company for charging for infrastructure development. Only such charge is being regulated by the GERC. He produced on record a communication addressed to the Managing Director of the petitioner company by the GERC dated 03.06.2014 and in this communication specific direction was issued by GERC to stop recovery of development charges with immediate effect. It is submitted that then onwards the petitioner company which has not recovered any charges towards the development charge, but such communication is to operate prospectively and cannot be given retrospective effect. It is submitted that in consonance with the aforementioned letter, by a circular dated 27.06.2014, the Page 16 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT charges for connection were revised with the approval of the GERC. This communication was also produced on record which would indicate that there is substantial upward revision of the charges to be recovered at the time of giving connection. This upward revision was for the purpose of adjusting the development charge which then on the distribution companies were not to recover. It is therefore, submitted that prior to such upward revision, the petitioner company was entitled to recover reasonable charges incurred by the petitioner in developing infrastructure for the benefit of the likes of respondents-consumers, who in turn had created residential units, who would be prospective domestic consumers of the petitioner company. He referred to decision rendered in the case of Uttar Pradesh Avas Evam Vikas Parishad v/s. Uttar Pradesh Power Corporation Limited, reported in 2011(10) SCC 223.
[15] Having considered the rival submissions of the parties and the documents placed on record. The information pertaining to the petitions and the nature of connection in all the petitions is given hereinbelow in tabular form:-
Sr. Petition Nos. and Name of Party Nature of No Connection 1 SCA 11909/2016 Commercial UGVCL v/s. Mustakbhai H. Vijapura complex 2 SCA 11972/2016 Residential cum UGVCL v/s. Amratbhai K. Patel commercial complex 3 SCA 11993/2016 Residential cum UGVCL v/s. Bharatbhai Dhulabhai Patel commercial complex Dwarkesh Complex 4 SCA 12451/2016 Commercial complex Sai Page 17 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT UGVCL v/s. Shashikant Govindbhai Complex Solanki 5 SCA 13956/2016 Residential Society UGVCL v/s. Ojas Developers 6 SCA 17777/2016 Commercial Shop, UGVCL v/s.Kehsav Builders Hall 7 SCA 3790/2016 Development of UGVCL v/s. Nilkanth Infrastructure Infrastructure 8 SCA 3792/2016 Developers of UGVCL v/s. Shankarbhai Devchandbhai Devraj Patel 9 SCA 3815/2016 Commercial cum UGVCL v/s. Sankalp Infrastructures Residential society 10 SCA 4311/2016 Avani Shay Schme UGVCL v/s. M/s. V-Square Projects, Naroda 11 SCA 4455/2016 Residential cum UGVCL v/s. Shaileshkumar Shankarlal commercial complex Patel 12 SCA 4887/2016 UGVCL v/s. Sureshbhai Manilal Patel 13 SCA 5229/2016 Residential Scheme UGVCL v/s. Vinodbhai Kantilal Patel 14 SCA 7260/2016 Residential Society UGVCL v/s. M/s./ Ashtha Corporation 15 SCA 7853/2016 Electrification of UGVCL v/s. Shah Ramgopal Infrastructure Ramchandra 16 SCA 7253/2016 Residential cum UGVCL v/s. Kaushikbhai S. Patel commercial complex [16] Section 2(20) defines electric line, which reads as under:-
"2(20) electric line" means any line which is used for carrying electricity for any purpose and includes"
any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and
(b) any apparatus connected to any such line for the Page 18 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT purpose of carrying electricity;"
[17] Section 2(22) defines electric plants, which reads as under and would include transformer as electric plant:-
"2(22) electrical plant" means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include-
(a) an electric line; or
(b) a meter used for ascertaining the quantity of electricity supplied to any premises; or
(c) an electrical equipment, apparatus or appliance under the control of a consumer;"
[18] The relevant provisions for the purpose of this case are as under:-
"43. Duty to supply on request:-(1) [Save as otherwise provided in this Act, every distribution] licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission:
Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
[Explanation.- For the purposes of this sub-section, "application" means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances. (2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):Page 19 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019
C/SCA/4668/2016 JUDGMENT Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission. (3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default."
"45. Power to recover charges: --- (1) Subject to the provisions of this section, the prices to be charged by a distribution licensee for the supply of electricity by him in pursuance of section 43 shall be in accordance with such tariffs fixed from time to time and conditions of his licence. (2) The charges for electricity supplied by a distribution licensee shall be - (a) fixed in accordance with the methods and the principles as may be specified by the concerned State Commission ; (b) published in such manner so as to give adequate publicity for such charges and prices.
(3) The charges for electricity supplied by a distribution licensee may include-
(a) a fixed charge in addition to the charge for the actual electricity supplied;
(b) a rent or other charges in respect of any electric meter or electrical plant provided by the distribution licensee. (4)Subject to the provisions of section 62, in fixing charges under this section a distribution licensee shall not show undue preference to any person or class of persons or discrimination against any person or class of persons. (5) The charges fixed by the distribution licensee shall be in accordance with the provisions of this Act and the regulations made in this behalf by the concerned State Commission."
"46. Power to recover expenditure- The State Commission may, by regulations, authorise a distribution licensee to charge from a person requiring a supply of electricity in pursuance of section 43 any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of giving that supply."Page 20 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019
C/SCA/4668/2016 JUDGMENT [19] The erstwhile Gujarat Electricity Board ("GEB") was regorganized by the State of Gujarat with effect from 01.04.2005 into seven different companies having functional responsibilities of generation, transmission, trading, distribution etc. namely, Gujarat Ujra Vikas Nigam Limited ("GUVNL") as the holding company, whereas the other six companies including the petitioner Uttar Gujarat Vij Company Limited ("UGVCL") being the subsidiary company of GUVNL as per the provisions of the Companies Act, 1956. It appears that under the provisions of the State Act, the Government of Gujarat framed the Gujarat Electricity Industry (Re- organization and Regulation) Act, 2003 by issuing a notification dated 24.10.2003 for transfer of assets/liabilities of erstwhile GEB to the successor entities being the aforesaid companies. It further appears that the GUVNL was incorporated as a Government of Gujarat company and it is holding 100% share in the aforesaid six companies including the petitioner company. It further appears that the petitioner company is engaged in the business of distribution of electricity in the northern parts of the Gujarat State.
[20] The respondents-consumers made application on 25.02.2013, wherein in total requirement of contracted load was specified at 517 KW. The purpose for electric connection was categorized as new connection and sub-categorized as "infrastructure development" under category "others".
Pursuant to such application, bill dated 21.05.2013 was issued, wherein the charges towards following categories were charged.
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Item Qty Total Value (In Rs.)
Description
01: TAPPING 1 6,236/-
POLE-11 KV LINE
06:11 KV LINE 55 15 36,503/-
MM2 AAAC
Miscellaneous 1 22,927/-
payment
Transformer 1 15,89,999/-
Charges
Grand Total 16,55,665/-
[21] The application was preferred before the Consumer Grievances Reddressal Forum contending that the amount recovered from respondents be refunded as it was the duty of the electric company to create the necessary infrastructure so as to reach electric connection of the consumer like respondents-consumers. The consumer forum has rejected the application by holding that:-
5.1) The applicant had filed an application on 26/02/2013 to the Sub-Zonal Office, Adalaj for New Infrastructure Development without meter in the name of Ashwamegh Co-operative Housing Society Limited.
5.1.1) The applicant decided to install underground cable network willingly and submitted notarized undertaking on stamp paper alongwith application.
5.1.2) Application on notarized stamp paper has been made for electrical infrastructure development (without meter).
5.2) Estimate of Rs.16,96,378/00 for 150 Meter HT Line and 500 KVA Transformer was served Page 22 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT to the applicant for the said work on the basis of the said application.
5.3) Cost of the said estimate was paid by Receipt No.401308 dated 13/06/2013 for
Rs.16,55,665/-, Receipt No.401309 dated 13/06/2013 for Rs.40,713/- and Supervision charge of Rs.1,92,958/- was paid on 03/01/2014.
5.4) The work of H.T. Line as per the estimate issued to the applicant has been undertaken by UGVCL.
5.5) Applicant has registered application for water works, common lighting, street light and 20 power connections of society.
5.6) On the basis of the said applications, estimate of fixed charge and security deposit was served and the same was paid by them. Power connection was activated for which test report fee had been paid.
5.7) In order to grant the said power connection, procedure was carried out as per the circulars of GUVNL as under:
(1) Letter no. GUVNL/Tec/D(T)/SC/180 dated 21/01/2011, "If a developer desires to electrify Housing Colony, open plot, private industrial estates, private street light network etc., the entire estimated cost of infrastructure for electrification towards HT line, LT line & transformer center etc. shall be born by the Developer & shall be treated as deposit work."
(2) Letter No.GUVNL/Tec/D(T)/SC/1067 dated 11/05/2011, Page 23 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT
"In case of Infrastructure development if developer has asked only for electrification & not for any new connection then full cost of electrification shall be recovered from the developer & charges mentioned above shall be recovered from the subsequent applicants from such developed network." (3) Letter No.GUVNL/Tec/D(T)/SC/1069 dated 27/06/2014, • "In case of infrastructure development for Housing Colony/ Industrial Estate/ Street Light Network etc the DISCOMs may create Distribution Network on its own, where if there is any potential development in that area & as such the DISCOMs need not create network where there is no consumer to be supplied power & recovery for individual application should be made according to the service line charges on "per KW basis" approved by the commission".
• The revised charges shall be effective for the applications received on or after 1st July, 2014 & will continue to remain in force till any further revision.
5.8) Thus, the amount of estimate paid by the applicant is as per the rules of GUVNL. Therefore, the application to refund the amount of estimate paid by applicant cannot be accepted.
[22] The regulations framed by the GERC under the Notification 9 of 2005 were framed under the powers conferred by Section 181 read with Sections 45 and 46 of the Electricity Act. Here also, electric plant and electric line are defined to read as under:-
"2.1 (vii) electrical plant" means any plant, equipment, apparatus or appliance or any part thereof used for, or connected with, the generation, transmission, distribution or supply of electricity but does not include:Page 24 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019
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i. an electrical line ; or
ii. ii. a meter used for ascertaining the quantity of electricity supplied to any premises; or iii. an electrical equipment, apparatus or appliance under the control of a consumer."
(viii) electric line" means any line which is used for carrying electricity for any purpose and includes:
i. any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried, or suspended; and ii. ii. any apparatus connected to any such line for the purpose of carrying electricity."
[23] The regulation-3 for duty of distribution licensee to supply electricity on request and 4recovery of expenditure particularly sub-clause (vi-sic) and (vii-sic) which reads as under:-
"(vi)-sic The Licensee shall lay free of charge a service line (overhead line or underground cable depending upon the type of distribution system existing) up to a length of 30 meters from its nearest distributing main on public roads, outside the limit of the property in respect of which the requisition for electricity supply is received.
(vii)-sic The entire service line, notwithstanding that a portion thereof has been paid for by the Consumer, shall be the property of the Distribution Licensee and by whom it shall be maintained and the Distribution have a right to use it for the supply of energy to any other person by taping the service or otherwise except if such supply is detrimental to the supply to the consumer already connected therewith."
[24] Chapter-4 Regulation-4 is approval for law tension supply.
4. PROVISION FOR LOW TENSION SUPPLY 4.1 In case of applications for Low Tension supply, where such supply requires only laying the service line from the existing distributing main to the consumer's premises, the Distribution licensee shall estimate the cost of service line and the cost of terminal and metering arrangements at the premises of the consumer, but not including the cost of meter. The estimate of the cost of electric line, electrical plants and metering Page 25 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT arrangements shall be based on the latest cost data as published by the Distribution Licensee.
In respect of above consumers the Distribution Licensee may dispense with the process of preparation of detailed individual estimate and instead charge on the basis of per KW of contracted load and per Meter rate. Although, it will not prepare individual estimate, the Distribution Licensee shall maintain the cost incurred in respect of such categories of the consumers who are provided with electricity only through extension of service line (with out undertaking any of the work like DTR or laying of HT line). The average cost incurred (according to the latest cost data as published by the Distribution Licensee) shall be used as the yard stick for determining the per kW cost of these categories of consumers.
4.2(i) In cases of applications where there is a need to erect new electrical plant such as distribution transformer (DTR) along with switchgear etc., for extending supply to the applicant for Low Tension connection, the licensee shall estimate the cost of electrical plant as follows:
Cost of the works of erection of DTR including switchgear(in Rupees) = P Rated capacity of DTR in KVA = Q Cost per KVA (in Rupees) = P/Q Contracted load in KVA of the applicant = K Amount payable by applicant towards electrical plant (in Rupees)=K*(P/Q) In cases of applications when the capacity of existing electrical plant (such as DTR and switchgear etc.) is require to be augmented, the differential cost of existing and new such electrical plant will form the basis of calculation of pro-rata charges.
In all cases the estimate of the cost of electrical plant shall be based on the latest cost data as published by the Distribution licensee.
4.2(ii) In cases of applications which besides erection of electrical plant (such as DTR and switchgear etc.), need laying or extension of the HT line for providing supply to the applicant, the estimate of the cost of such section of HT line shall be made on a per kilometer basis based on the latest cost data as published by the Distribution Licensee.
The Distribution Licensee shall recover the cost, as mentioned in the subclause 4.2(i) and 4.2(ii), from all the applicants excluding following categories:
a. Agricultural consumers with the exception of Agricultural connection to be given under special schemes like "Tatkal Scheme" which may be brought out in future. b. Water Works and Sewerage Pumps operated by/for any local authority other than Municipal Corporation.Page 26 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019
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c. Domestic consumers
d. Commercial consumers up to 100 KVA/125 HP of
contract demand."
[25] Chapter-7 which is meant for manner of accounting and adjustments makes approval for accounting for the charges recovered for electric line and erection electric plant and creating any other facility of extending supply to the applicant seeking new connection. Sub-clause 14 and 15 of Chapter-7 reads as under:-
"(xiv)The Distribution licensee shall account, under appropriate account heads, all charges recovered by him for laying of electric line and erection of electrical plant and creating any other facilities for extending supply to the applicant seeking new connection. The amount so recovered shall be deducted from the Gross Fixed Assets to arrive at the value of Net Fixed Assets of the Licensee's business.
(xv) The amount recovered from the applicant towards expenses incurred in providing electric line or electrical plant or other facilities for the purpose of giving the supply shall not constitute part of equity capital base of the Distribution Licensee for calculation of Returns from the business."
[26] The documents at Annexure-D are the bills issued towards the connection to the individual plot of the respondent-consumers. Under this bill, the charges provided for are as under:-
Item Qty Total Value (In Rs.)
Description
Fixed Charges 1 8,500/-
Security Deposit 1 7,096/-
for Residential/
domesetic
Connection
Grand Total 15,596/-
Page 27 of 36
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[27] The aforementioned charges are similar for the individual unit. The bills dated 17.01.2014, on page 26, which is for the purpose of water works and street lights and the charges are in following category:-
Item Qty Total Value (In Rs.)
Description
Agreement Fees 1 100/-
Fixed Charges 1 20,000/-
Security Deposit 1 490,56/-
for Water Works
Connection
Grand Total 69,156/-
Item Qty Total Value (In Rs.)
Description
Fixed Charges 1 14,500/-
Security Deposit 1 13,736/-
and Streetlight
Connection
Grand Total 28,236/-
[28] The respondents-consumers as mentioned hereinabove, had made application for the electric connection with the contracted load as mentioned in the application for the purpose of commercial activity to develop residential unit for its members and therefore, the respondents-consumers cannot be treated to be "Domestic Consumers" as contemplated under Clause 4.2(ii)(c). It being so, the only responsibility of the petitioner company would be to lay free of charge service line upto length of 30 meters from its nearest distributing main on public roads, outside the limit of the property, whereas, considering the nature of connection sought for by the Page 28 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT respondents-consumers, the petitioner company was entitled to recover an expenditure which the distribution licensee as reasonably incur to provide electric line or electric plant specifically for the purpose of giving supply to such applicant. In the facts of this case, considering the nature of application made and the purpose for which the electric supply was sought by the respondents-consumers, the electric company was justified in issuing the bill dated 21.05.2013 which covered item described as tapping pole, 11 KW line, transformer charges and miscellaneous payments. Such charges in the opinion of this Court would fall in the scope and ambit of Section 46 as the expenditure reasonably incurred in providing any electric line or electric plant used for the purpose of giving that supply.
[29] The submission of learned advocate for the respondents based on the internal communication between the electric company and the GERC. The Court is unable to conclusively hold that such communications could be relied upon to derive complete bar on the charges which are otherwise permissible under the provisions of Electricity Act.
[30] The foundation of the communication is letter dated 30.12.2010 by the GERC which reads as under:-
"This has reference to your letter No.GUVNL/Tech/2658 dated 4th December, 2010 requesting Hon'ble Commission for approval of charges in line with the charges being recovered by the Torrent Power.
In this regard, I am directed to convey approval of the Commission for the same."Page 29 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019
C/SCA/4668/2016 JUDGMENT [31] Therefore, to the Court it appears that the purport of the communication was to harmonize the charges that those being recovered by the Torrent Power. Nothing has come on record for this Court to conclude that such communication was specifically directed towards the charges for infrastructure development particularly for the transformers. In absence of anything on record about Torrent Power proposal, Court cannot come to final conclusion about the intention behind the exchange of communication. Nor can the Court conclude on basis of such communication that the electric company had no authority to change for the expenditure incurred towards Transformer charge and other infrastructure in face of existing provisions of law. From the record, it is abundantly clear that when the independent residential unit of the respondents- consumers was given the independent connection, no additional or other charges are recovered. The bills mentioned of which have made herein before the individual plot nominal amount is recovered towards the fixed charges and security deposit for domestic connection. This cannot be termed to be a duplication of charges as both the categories and purposes are different. The ombudsman has therefore, committed error to consider the infrastructure charge as part and parcel of schedule of charges to be recovered as per the categories of load. This cannot be inferred at least till the charge in policy took place after the communication dated 03.06.2014 and which came into w.e.f. 01.07.2014.
[32] The Court also observes that schedule charges specify (See Annexure-R3 dated 30.12.2010) and the revised schedule of charges under the communication dated 27.06.2014, it is found that for the load beyond 20KW, upward revision is Page 30 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT drastic. This would mean to say that with the change in policy, expenditure incurred by the distribution licensee was thereafter, adjusted in upward revision of schedule of charges per Kilo Watt and therefore, prior to change in policy, distribution company was justified in recovering the charges under the head of the reasonably expenditure incurred for developing infrastructure.
[33] With regards to the submissions of petitioner that the Ombudsman order cannot be challenged under a Writ Jurisdiction. It is necessary to observe the relevant provisions of Electricity Act, 2003 for Ombudsman, Section 42(6) (7) reads as under"-
"42(6) Any consumer, who is aggrieved by non-redressal of his grievances under sub-section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission.
42(7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission."
The aforementioned provision makes the scope and ambit of the function and Jurisdiction of ombudsman clear. Rule 7(2) and 7(3) of Electricity Rules, 2005 read as under:-
"7(2) The Ombudsman to be appointed or designated by the State Commission under sub-section (6) of section 42 of the Act shall be such person as the State Commission may decide from time to time.
7(3)The Ombudsman shall consider the representations of the consumers consistent with the provisions of the Act, the Rules and Regulations made hereunder or general orders or directions given by the Appropriate Government or the Appropriate Commission in this regard before settling their grievances.Page 31 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019
C/SCA/4668/2016 JUDGMENT The reading of Section 42(6)(7) with Rule 7(2) and 7(3) leave no doubt that the purpose, function and Jurisdiction of the Ombudsman well defined and therefore, is amenable to writ jurisdiction. The judgment in case of Shalini Shayam Shetty (Supra), the Apex Court held as under:-
"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227cannot be called a writ petition. The history of the conferment of writ 3 jjurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is Page 32 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in Page 33 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT the administration of justice in the larger public interest whereas article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will be divest this extraordinary power of its strength and vitality."
With the aforesaid, this Court is within its jurisdiction to examine the judgment of the Ombudsman under Article 226 as well as under Article 227 of the Constitution of India.
[34] The Court is of view that at the relevant time, when the application was made by the respondents-consumers, the nature of consumption was clear in their mind and about the nature of their connection and the purposes of such connection and with open eyes, the consumers have made the payment for receiving the connection under the bill dated 21.05.2013 and when all the individuals residential unit of respondent- societies received their individual connection in the year 2014, in the year 2015-16 an application for refund is made before the CGRF.
[35] With regards to the contention of no authority to charge for infrastructure raised by the consumers, this Court may draw support from the judgment of Apex Court in the case of Uttar Pradesh Avas Evam Vikas Parishad (Supra), wherein, in paras-29 and 30, the it is held as under:-
"29. In our considered view, the fact, that the public at large would have to bear the brunt of the hike in supervision charges, is totally unacceptable, especially in the background of the position noticed above. The instant contention is even otherwise irrelevant to the subject matter under consideration. Supervision charges have been levied, so that the agencies, such as the appellant herein, Page 34 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT who decide to carry out the activities of erection of transmission lines, associated distribution sub-stations and L.T. distribution mains, on their own, abide by the minimum prescribed norms. Higher public cost ensuring prescribed safety measures, would certainly override the cost consideration projected by the learned counsel for the appellant. We find no merit in the instant contention as well.
30. Even otherwise, the contention raised at the hands of the learned counsel for the appellant, that the appellant was not liable to reimburse supervision charges stipulated under the Electricity Supply Code, 2002, does not lie in the appellant's mouth. This is so, because the appellant has unilaterally accepted to pay supervision charges under the Electricity Supply Code, 2005. The aforesaid Electricity Supply Code, 2005 became enforceable w.e.f. 18-2-2005. All the pleas raised by the appellant, to avoid payment of supervision charges under the Electricity Supply Code, 2002, are also available to the appellant to avoid payment of such charges under the Electricity Supply Code, 2005. If the appellant has accepted the 20 enforceability of the Electricity Supply Code, 2005 over and above the office memorandum dated 17-1-1984, it is not possible for us to understand why the appellant has failed to accede to abide by supervision charges levied under the Electricity Supply Code, 2002. For exactly the same reasons, for which the appellant has accepted the Electricity Supply Code, 2005, it is liable to accept the levy of supervision charges under the 2002."
[36] The aforesaid facts disentitles the respondent consumer from claiming refund. The electric company in the facts of this case at the relevant time was entitled to recover the reasonably incurred expenditure in providing electric line and electric plant to the respondents-consumers. This Court is of the view that under the provision of the relevant clauses as discussed hereinabove, the petitioner company was justified in recovering the charge for development of infrastructure upon the application of the respondent societies so as to create and develop infrastructure and individual residential premises for its members who would thereafter, become an individual Page 35 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019 C/SCA/4668/2016 JUDGMENT consumer/connection of the petitioner company. The ombudsman has therefore, committed error in directing the refund of such charges. The petitions therefore, succeed. The impugned orders passed by Omdurman are ordered to be quashed and set aside. Hence, the petitions stand allowed.
[37] In view of the order passed in the main petition, No order is required to be passed in Civil Applications. Hence, Civil Applications stand disposed of.
(A.Y. KOGJE, J) Siddharth FURTHER ORDER After the pronouncement of judgment, learned advocate Mr. Himanshu Suthar for learned advocate Mr. Manish Shah and learned advocate Mr. Ravindra shah, requests the Court for staying of the impugned orders. Considering the issue being of refund, no useful purpose will be served to stay such order. Hence, the request is refused.
(A.Y. KOGJE, J) Siddharth Page 36 of 36 Downloaded on : Sun Jun 30 16:24:28 IST 2019