Punjab-Haryana High Court
Valley Residents Welfare Society And ... vs Uttar Haryana Bijli Vitran Nigam ... on 18 November, 2022
CWP-26330-2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
109 CWP-26330-2022
Date of Decision:18.11.2022
Valley Residents Welfare Society and another .....petitioners
Versus
Uttar Haryana Bijli Vitran
Nigam Limited and others .....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Amit Jhanji, Senior Advocate with
Mr. Tushar Sharma, Advocate,
for the petitioners.
****
VINOD S. BHARDWAJ , J.(Oral)
The present writ petition invokes writ jurisdiction of this Court for seeking setting aside of the action of respondent No.1-Uttar Haryana Bijli Vitran Nigam Limited (for short "the UHBVNL") of categorizing the 'Single Point Supply' of electricity connection of the residential colony "The Valley", where the petitioners reside, as 'Bulk Supply (Non-Domestic)' instead of 'Bulk Supply (Domestic)'; starting from 2015 onwards and all consequential letters being in violation of the Haryana Electricity Regulatory Commission (Single Point Supply to Residential Colonies or Office cum Residential Complexes of Employers, Group Housing Societies and Commercial cum Residential Complexes of Developers) Regulations, 2013 and the Haryana Electricity Regulatory Commission (Single Point Supply to Employers' Colonies, Group Housing Societies and Residential or 1 of 31 ::: Downloaded on - 26-12-2022 06:37:05 ::: CWP-26330-2022 -2- Residential cum Commercial/Commercial Complexes of Developers and Industrial Estates/IT Parks/SEZ) Regulations, 2020 as well as with the Tariff Orders issued by HERC and the Sales Circulars issued by respondent No.1-licensee.
2. Briefly summarized, the facts of the present case are that petitioners No.1 is a society duly registered under the provisions of the Haryana Registration and Regulation of Societies Act, 2012, comprising of residents of a colony namely "The Valley" that has been developed by respondent No.4-Developer. petitioners No.2 is a resident of the said Colony and is also the Secretary of petitioners No.1-Society. The Colony in question gets its electricity supply through a Bulk Supply (Domestic) connection bearing account No.827BS02009Y from respondent No.1- UHBVNL at 'Single Point Delivery System' from where electricity is further supplied to the residents of the colony. Since the date of sanction of the electricity connection, the same has been categorized as BLDS [Bulk Supply (Domestic)].
3. It is averred that it came to the notice of the petitioners in the year 2018 that even though the tariff being charged to the society was domestic, however, the same was not as per the tariff schedule issued by respondent No.1-UHBVNL vide Sales Circular No.27/2017 dated 20.07.2017 and the petitioners were being overcharged. Resultantly, an application dated 15.11.2018 was submitted by the petitioners with a request to rectify the billing system and to bring it in terms of the Sales Circular mentioned above. It is averred that the society/residents have been overcharged by the respondent-distribution licensee between the period from May, 2016 to January, 2019 to the tune of `38,25,264/- approximately.
2 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -3- Certain other representations were also stated to have been submitted and when the same did not yield any result, a legal notice was sent on 24.05.2020. Eventually, a writ petition bearing CWP-10101-2020 seeking refund/adjustment of the above amount was thereafter preferred by the petitioners No.1-society wherein this Court directed the petitioners-society to place on record the communication of the respondents admitting the claim of the petitioners. Reference in support of the above was made to the letter dated 15.05.2020 sent by the SDO, Sub-Urban, Sub-Division, UHBVNL, Panchkula to the Chief Auditor, UHBVNL, Panchkula and letter dated 28.05.2020 written by AEE, Sub-Urban, Sub-Division, Panchkula to respondent No.2 as Annexures P-7 and P-8 showing admission of the overcharge. The petitioners thus placed the relevant documents on record of the above writ petition in which notice has already been issued & the same is pending for reply by respondents.
4. It is averred that the petitioners however received a demand letter dated 30.05.2022 addressed to respondent No.4-Developer wherein it was stated that the layout plan of the colony was provisionally approved vide memo dated 29.01.2012 and that the connection under Bulk NDS Category shall be released. Further, an undertaking was also submitted by respondent No.4 that the tariff will be charged as per Bulk NDS connection. It was also stated in the above demand letter that initially load of 1500 KW was sanctioned which was further extended to 2900 KW under the Bulk Supply Category meant for NDS category. As per the Sales Circular No.U- 26/2011, Bulk Domestic Category will be charged only if the connected load of residential and domestic use should be at least 85% of the total connected load and the balance 15% should be for common facilities. Additionally, no 3 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -4- industrial activity be permitted. It was averred that the tariff was being charged inadvertently under the 'Bulk Supply Domestic' whereas it was to be charged in the NDS category in view of the approved layout plan and undertaking given by respondent No.4-Developer from the date of connection. Resultantly, a demand of Rs. 4.45 Crores towards the difference of tariff from the date of connection till March 2022 was raised vide a communication dated 30.05.2022 (Annexure P-10) and only after the petitioners filed Civil Writ Petition in the Court.
5. The abovesaid demand was responded to stating that the electricity is being consumed for domestic purpose and that the change of tariff from 'Bulk Supply Domestic' to 'Non-Domestic Bulk Supply' tariff is in violation of the Sales Circular No.U-30/2013 issued by the HERC Notification No.HERC/49/2020 dated 22.04.2020 circulated by respondent No.1. The respondents were requested to withdraw the letter dated 30.05.2022.
6. The respondents, however, rejected the request of the petitioners vide order dated 12.07.2022 (Annexure P-12) as per which it was pointed out that the plan for electrification was sanctioned by the competent authority under the BS/NDS category instead of BS/DS category. Even the application was submitted by the consumers under the 'Bulk Supply' (NDS) category and consequently, the tariff has to be charged as per the approval granted and the A&A Form submitted. The approval of the electrical layout plan dated 21.12.2011 of the colony in question has also been appended as Annexure P-13 wherein condition No.5 stipulates thus:-
"5. The proposed Tariff shown is Bulk DS, whereas, as the Commercial Load is there so the Tariff charged shall be Bulk 4 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -5- NDS."
7. By reference to sale circular U-26/2011 dated 25.08.2011, it is averred that the applicable Regulations and the Sales Circular necessitate that the colony where 85% of the load is used for residential or domestic consumption and balance 15% is utilized for common facilities, the said bulk supply is to be treated as domestic and not in the NDS category. It has been averred that the consumers had agreed to the 'Non-Domestic Bulk Supply at the stage of approval of the layout plan under pressure and an undertaking in this regard was submitted at the relevant point of time due to pressure and the same is not binding on the petitioners.
8. Learned senior counsel appearing on behalf of the petitioners has vehemently argued that the decision of the respondents to charge the 'Non-Domestic Bulk Supply' (NDS) category tariff from the petitioners,. is contrary to the Regulations framed by the Haryana Electricity Regulatory Commission as also the Sales Circulars issued by the authorities. Resultantly, the respondent-distribution licensee is exceeding its authority in raising such a demand. The demand being contrary to the statute and hence, needs to be examined in the writ jurisdiction.
9. He has submitted that approval of electrical layout plan (Annexure P-16) dated 29.02.2012 incorporating condition No.17 about the "Single Point Connection" under the NDS category as also the approval sent by the Chief General Manager/Commercial, UHBVNL, Panchkula to the Chief Engineer (Operations), UHBVNL, Panchkula on 21.12.2011 (Annexure P-13) was illegal to the said extent. He contends that the Haryana Electricity Regulatory Commission (HERC) had notified the Haryana Electricity Regulatory Commission (Single Point Supply to 5 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -6- Residential Colonies or Office cum Residential Complexes of Employers, Group Housing Societies and Commercial cum Residential Complexes of Developers) Regulations, 2013 (hereinafter referred to as "Regulations of 2013") with an object to provide for Single Point Supply to the residential colonies compounded by various complexes. The Group Housing Societies, under the said Regulations, were to avail supply of electricity under the Bulk Supply (Domestic) schedule tariff under option No.1 and under option No.2 individual electricity connection to the residents/members and for common services/NDS connection as per the relevant schedule of tariff. He contends that under Regulation 5.5 thereof, the Group Housing Societies/Employer/Developer/RWA could not charge the residents for electricity supplied by the Distribution Licensee at a tariff higher than the rates for Domestic Supply (DS) category approved by the Commission from time to time. He contends that Regulations of 2013 were superseded by the Regulations of 2020 and even as per the Regulation 6.4 of the Regulations 2020, the domestic tariff is to be charged on the consumption of domestic load and common services load including the loads of lifts, water and fire pumps subject to the proviso that the common services load is in the ratio of 15:85 with domestic load. In case the common services load is more than the ratio prescribed 17.64% of domestic load, the excess load shall be charged at the NDS tariff along with other NDS load, if any. Hence NDS tariff could not be demanded from the petitioners.
10. He has further argued that the schedule of tariff for the financial year 2013-14 for supply of electricity/distribution licensee provided for the applicable tariffs and that any such charge beyond the tariff approved by the appropriate Commission was clearly illegal. He has drawn 6 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -7- the attention to the Bulk Supply Domestic category of tariff approved during the said financial year which is extracted as under:-
"Bulk Supply (Domestic)"
(i) Applicability Applicable to all the Colonies/Group Housing Societies covered under Haryana Electricity Regulatory Commission (Single Point Supply to Employers' Colonies, Group Housing Societies and Residential or Commercial cum Residential Complexes of Developers) Regulations, 2013 who opt for Single Point Supply connection under the said Regulations and also for such other Group Housing Societies which do not fall under the purview of these Regulations but, on their own, opt for Single Point Supply under the ibid Regulations. The load of common facilities for the residents of the Group Housing Society admissible for building under Bulk Supply (Domestic) tariff shall not be more than 17.64% (15x100/85) of the total residential/domestic load of the Group Housing Society/Colony. In case of load of common facilities being more than 17.64% of the residential/domestic load, the excess load shall be treated as NDS load and the pro-rata consumption corresponding to this excess load along with other NDS load, if any, shall be billed at NDS tariff as provided in the said Regulations. A single point electricity connection shall be provided at the H.T. (11 KV) level (or higher) and further distribution within shall be owned and managed by the Colony/Group Housing Society."
11. It was further argued that the letter about the discrepant tariff was addressed to the respondents-authorities on 15.11.2018 and that the same has not been redressed. Besides, as per Section 56 (2) of the Electricity Act, 2003 the respondent distribution licensee cannot demand any recovery after a period of two years from the date it first became due unless 7 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -8- the same has been shown continuously as recoverable as arrears of charges of the electricity supplied. Consequently, the demand for the period beyond two years would be hit by the above provision, is illegal and the demand is thus unsustainable.
12. He has also drawn attention to the communication dated 15.05.2020 (Annexure P-7) whereby the Sub Divisional Officer, Sub-Urban, Sub-Division, UHBVNL, Panchkula has written to the Chief Auditor, UHBVNL, Panchkula that the consumers are entitled to refund. It is further argued that the recovery in question has been ordered without giving any show cause notice and/or affording any opportunity of hearing. Hence, the action of the respondents is illegal and can be impugned in the writ jurisdiction. He has further submitted that the respondents have placed reliance upon condition No.17 of the electrical layout plan, dated 29.02.2012. The said condition being in conflict with the Regulation cannot be given effect to and as such the demand being illegal has to be set aside.
13. Learned senior counsel has also placed reliance on the judgment of the Hon'ble Supreme Court in the matter of Magadh Sugar & Energy Limited Versus State of Bihar and Others, 2021 SCC Online SC 801 to contend that where the proceedings under challenge are without jurisdiction, the High Court would be justified in exercising its writ jurisdiction under Article 226 of the Constitution of India. The existence of an alternative remedy does not divest the High Court of its powers under Article 226 of the Constitution of India. He has also placed reliance on the judgment of Allahabad High Court in the matter of U.P. Power Corporation Limited, Unnao Vesus Electricity Ombudsman, Lucknow and others, 2010 SCC OnLine All 2686 to contend that a consumer or the distribution licensee 8 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -9- may approach any Court or Tribunal having the jurisdiction for redressal of their grievance as the Forum prescribed under Section 42 of the Electricity Act, 2003 is not a final Forum and the Regulations do not give finality to the decisions thereof.
14. I have heard learned senior counsel appearing for the petitioners and have gone through the documents and Regulations referred to by the petitioners.
15. Before preceding further in the matter, it would be appropriate to refer to the various challenges made by the petitioners in the present writ petition.
S.No. Annexures Remarks
1. Annexure P-10 Letter sent by the SDO, Operations, Sub-
dated 30.05.2022 Urban, Sub-Division Panchkula
communicating the demand of `4,43,57,426/-
on account of difference of tariff from the date of connection till March 2022.
2. Annexure P-12 Communication sent by the SDO, Operations, 12.07.2022 Sub-Urban, Sub-Division, Panchkula in response to the mail sent by the petitioners on 01.07.2022 stating that the A&A Form was also submitted under the BS NDS category instead of BS category.
3. Annexure P-25 Communication sent by SDO, Operations, dated 16.08.2022 UHBVNL, Sub-Urban Sub-Division, Panchkula for the differential tariff from April 2022 to August 2022
4. Annexure P-26 Letter from the SDO, Operations, UHBVNL dated 28.09.2022 Sub-Urban, Sub-Division Panchkula to respondent No.4 granting approval of the part payment
5. Annexure P-30 Letter from the SDO, Sub-Urban, Sub-
dated 04.11.2022 Division Panchkula intimating that the bill sent to the respondents is correct and claiming deposit thereof in five equal installments as per discussion
6. Annexure P-31 Conveying refusal to release any new dated 10.11.2022 connection at the site due to the pending default.
9 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -10-
16. The broad spectrum of the dispute thus is that respondent No.4- developer had applied for approval of the electrification plan in the year 2011 wherein an approval for release of Bulk Supply (NDS) category was sanctioned by the respondent No.1-distribution licensee. The said electrification plan and the conditions incorporated therein were accepted by respondent No.4 as is evident from the letters dated Nil (Annexure P-15). The Chief General Manager had sought clarification from CE (OP) about the proposal sent & pointing out that No.5 that load is commercial & hence load has to be released. Besides, the approval of the electrical layout plan dated 29.02.2012 (Annexure P-16) was granted subject to fulfill the condition of Sales Circular mentioned therein. The relevant condition No.5 & 17 respectively thereof are as under:-
"5. The proposed Tariff shown is Bulk DS, whereas, as the Commercial Load is there so the Tariff charged shall be Bulk NDS."
"17. Single point connection under bulk NDS category shall be released. The O&M shall be responsibility of the consumer.
17. The Sales Circulars then inforce were U-46/2004, U-17/2005, U-87/2007, U-20/2008 and U-40/2010. The electrical plan/layout plan as approved by the distribution licensee and for the conditions imposed therein were never challenged by the developer. As a matter of fact, the connection was also applied for in the A&A Form for the BS-NDS category which shows the acceptance thereof. The release of the electricity connection would thus be presumed to be lawful & in accordance with the conditions imposed therein. However, as it transpires that the energy bills were raised in the BS (Domestic) category and upon the aforesaid fact having been 10 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -11- noticed, the respondent-UHBVNL re-categorized the petitioners as Bulk Supply (NDS) and had revised the energy consumption bills and raised a demand. Objections in this regard were submitted by the petitioners- Association to the officials which were declined as the officials have adopted a stance that the demand has been recalculated in terms of the original sanctions granted and the approved electrical layout plan and inconsonance with the A&A Form. Apparently, from perusal of the letters impugned in the present writ petition, it transpires that the petitioners- society has also been in certain negotiations with the distribution licensee and has opted to pay the amount in question in certain installments.
18. The case of the petitioners-society hinges on the Regulations notified by the HERC to contend that in the residential complexes, the bulk supply ought to be charged at domestic tariff and not in the NDS category and that the said demand being contrary to the Regulations cannot be raised from the petitioners.
19. It is also not in dispute that the petitioners have already filed CWP No.10101-2020 for seeking refund/adjustment of the overcharged amount to the tune of `38,25,000/- along with interest.
20. Since reliance is placed on the Sales Circulars as well as Regulations, it is essential to refer to the same before examining the present case. Sales Circular No.U-26 of 2011 pertains to the Schedule of tariff for supply of energy for the financial year 2011-2012. As per the Sales Circular U-26 of 2011, bulk domestic supply was to be made available under Clause 8 to a Group Housing Society having minimum 70 KW load out of which the residential/domestic load should be at least 85% and the balance 15% load should be for the common facilities. No industrial activity was 11 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -12- permitted. The character of supply and the tariff was prescribed therein. The petitioners have not appended any document along with the present writ petition on the basis whereof it may be ascertained that as on the date when the application for release of bulk supply connection was submitted by the developer/consumer, the load distribution was within the parameters as prescribed in the said Sales Circular. Significantly, no such averment has also been made in the present writ petition to affirm that the load distribution of the colony was within the prescribed parameters of the Sales Circular and that despite the same, the electrical layout plan approval prescribed conditions that were not in consonance with the Sales Circular above. It is also noteworthy to mention here that the plea of coercion of the developer and pressure has been taken for the first time by the petitioners. It is not for the petitioners Association to even allege that such consent was under any pressure. The developer never chose to challenge or plead coercion. Besides, it cannot be perceived that respondent No.4 was coerced to agree to the conditions that were not in conformity with the governing statutory provisions considering that the respondent No. is a bid developer with full legal assistance at its disposal & having all resources at its command. It is worthwhile to submit here that the Electricity Reforms Act had been introduced in the year 1997 and the appropriate mechanism for redressal of the grievances of the consumers was provided for. Resultantly, it cannot be said at this stage on the basis of the documents brought on record that the load distribution of the consumer-respondent No.4 on the date of seeking approval/sanction of the electrical layout plan was in confines of Bulk Supply (Domestic) as per Sales Circular No.26 of 2011. No presumption of fact can be raised in the absence of necessary documents to support the 12 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -13- same. The Haryana Electricity Regulatory Commission thereafter notified the Regulations of 2013 (supra). The supply of electricity by the distribution licensee to the Group Housing Societies was stipulated in Regulation 4 thereof. The Existing Group Housing Societies were governed by Regulation 4.2. The said societies were required to submit their option to the distribution licensee through registered notice in form as at Annexure-II within a period of one month. The Option No.1 pertains to supply of electricity under the Bulk Supply Domestic Schedule of tariff while Option No.2 stipulated individual electricity connection to the residents and for common services under the NDS load as per relevant schedule of tariffs. The terms & conditions of the 'Single Point Supply' were prescribed under Regulation 5.2 of the said Regulations. Regulation 5.5 thereof as relied upon by the learned counsel appearing on behalf of the petitioners, is extracted as under:-
"5.5"-The GHS/Employer/Developer/RWA will not charge the residents for electricity supplied by the Distribution Licensee at a tariff higher than the rates for Domestic Supply (DS) category approved by the Commission from time to time.
In case any GHS/Employer/Developer/RWA charges the residents for electricity supplied by the Distribution Licensee at rates higher than the Domestic supply tariff, the aggrieved residents can jointly file a complaint against such GHS/Employer/Developer/RWA with the Commission through a petition for redressal of their grievance.
(Emphasis supplied)
21. It is evident from the perusal of the aforesaid emphasized extract of the said Regulations that where the electricity was being supplied by the distribution licensee at a rate higher than the domestic supply tariff, 13 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -14- the aggrieved residents could jointly file a complaint with the Haryana Electricity Regulatory Commission for redressal of their grievance.
Invariably, as the energy bills were being raised on a domestic supply tariff, no such petition was preferred. The significance of the aforesaid extract is that the Regulations prescribed for a statutory grievance redressal mechanism to raise a challenge to any tariff being demanded at a rate higher than the tariff approved by the appropriate Commission.
22. Learned senior counsel appearing on behalf of the petitioners has even though referred to the aforesaid statutory provisions, however, the present petition again does not make any claim or affirmation that the load distribution of the petitioners was strictly within the above parameters. The relevant documents in support of any such claim are also not available. The petitioners-Association thus intends to call upon the Court to presume existence of the fact that the load distribution and consumption was within the prescribed limits. The said aspect being a question of fact is required to be pleaded and prima facie established by the petitioners before any such presumption can be drawn or may be inferred. The Sales Circular No.U-30 of 2013 was thereafter issued by the respondent No.1-distribution licensee vide memo dated 05.07.2013.
23. The Regulations of 2013 were superseded by the Regulations of 2020. The supply of electricity to the Group Housing Societies was dealt with under Regulation 4 thereof and terms & conditions of the 'Single Point Supply' were governed under Regulation 6. Load distribution conditions similar to the conditions incorporated in the Regulations of 2013 remained in the Regulations of 2020 as well. It is prescribed in the Regulations of 2020 that the Commission shall have powers to issue such specific orders as 14 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -15- are required for removal of any difficulties in the implementation of the said Regulations. Looking at the nature of the dispute which is in relation to a billing dispute i.e. as regards the applicable tariff and the period for which such tariff may be demanded or recovered, the nature of the dispute and the statutory grievance redressal forums needs to be ascertained.
24. Section 42 of the Electricity Act, 2003 provides for establishment of a Forum for redressal of grievances of consumers and the authority to be known as Ombudsman. The relevant provisions of Section 42 of the Electricity Act are reproduced hereinafter below:-
"Section 42. (Duties of distribution licensee and open access):
--- (1) It shall be the duty of a distribution licensee to develop and maintain an efficient, co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.
xx xx xx xx (5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission.
(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.
(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."
25. The Haryana Electricity Regulatory Commission notified the 15 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -16- Electricity Supply Code in exercise of the powers conferred upon it by Section 50 and Section 181(2)(x) of the Electricity Act, 2003 notified the Haryana Electricity Regulatory Commission (Electricity Supply Code) Regulations 2014 repealing the Code of 2014. Clause 15 of the aforesaid Electricity Supply Code deals with the complaint's redressal system. The relevant provision reads thus:-
" 15. Complaints redressal system
1) Any aggrieved person, electricity consumer, consumer association or legal heirs or authorized representatives (in case of death of a consumer) may file a complaint in the respective Consumer Grievances Redressal Forums (CGRF) established by the licensee, for settlement of their grievances in case:-
(i) there exits defect of deficiency in electricity service provided by the distribution licensee;
(ii) an unfair or restrictive trade practice has been adopted by the distribution licensee in providing electricity services;
(iii) the distribution licensee has charged a rate in excess of that fixed by the Commission, for supply of electricity and related services;
(iv) the distribution licensee has recovered expenses, in excess of charges approved by the Commission, in providing any electric line or electric plant or electric meter;
(v) the electricity services provided by the distribution licensee is unsafe or hazardous to public life and is in contravention to the provisions of any law in force; except the complaint pertaining to-
(i) Unauthorized use of electricity as defined under explanation to Section 126 of the Electricity Act 2003;
(ii) Offences and penalties as specified under Sections 135 to 139 of the Electricity Act 2003;
(iii) Accidents and inquiries as specified under Section 16 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -17- 161 of the Electricity Act 2003 unless prescribed by the state govt. by general/special order.
The Forum shall pass order within a maximum period of 3 months from the date of receipt of complaint.
2) Any consumer aggrieved by the order of the Forum, non implementation of the order of the Forum by the distribution licensee and non-disposal of complaint by the Forum within the prescribed period may lodge his complaint with the Electricity Ombudsman within 30 days from the date of receipt of order of the Forum. The Electricity Ombudsman shall pass the award within 03 months from the date of receipt of the complaint."
26. Hence, the grievance pertaining to the unfair or restrictive trade practice or where the distribution licensee has charged a rate in excess of that fixed by the Commission for supply of electricity and related services has to be decided by a Consumer Grievances Redressal Forum which is under an obligation to pass an order on receipt of such a complaint within a maximum period of three months from the date of receipt of the complaint. If the grievance of the consumer still remains unsatisfied, the consumer may file his complaint to the electricity Ombudsman who is again duty bound to decide such complaint within a period of three months of its receipt.
27. Still further the Haryana Electricity Regulatory Commission had vide Notification dated 29.03.2019, in exercise of the powers conferred on it by Section 181 read with sub-sections 5 to 8 of Section 42 of the Electricity Act, 2003, notified with the HERC (Guidelines for establishment of Forum for Redressal of Grievances of the Consumers, Electricity Ombudsman and Consumer Advocacy) Regulations 2019. The relevant provisions of the said Regulations are reproduced as under:-
"i) "Complainant" means and includes the following who 17 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -18- have a grievance as defined in these Regulations:
(i) A consumer as defined under Clause (15) of Section 2 of the Act;
Provided that a member of the Group Housing Society having "Single Point Connection' from the licensee" is also a deemed consumer for the purpose of this Regulation.
j) Electricity Ombudsman" means an authority appointed or designated by the Commission, under sub-section (6) of Section 42 of the Act.
l) "Grievance" or complaint means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which has been undertaken to be performed by a distribution licensee in pursuance of a license, contract, agreement or under the Electricity Supply Code or in relation to standards of performance of distribution licensee as specified by the Commission and includes billing disputes of any nature and matters related to safety of the distribution system having potential of endangering of life or property by which the complainant is aggrieved.
m) "Forum" means the Forum for redressal of grievances of the consumers required to be established by distribution licensees, pursuant to sub-section (5) of Section 42 of the Act and these Regulations.
p) "Representation or complaint" shall mean the representation/complaint made to the Ombudsman by the complainant or on behalf of such a complainant who is aggrieved by the outcome of the Forum's proceedings in respect of his/her grievance (including not issuing the order within the specified time-limit, dissatisfaction with the order issued, partial or full dismissal of the grievance).
18 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -19- Classification of grievances "2.31 As far as is possible and practical, the grievance shall be prioritized for redressal based on the following priority order:-
a) Disconnection of supply/Re-connection of supply after Disconnection
b) Connection--Release of new Connection or modification in existing connection
c) Non-supply
d) Meter related issues
e) Billing and relates issues
f) Other issues Provided that it should be ensured that all grievances are disposed of within the time limit specified under these Regulations.
Process for submission of grievance 2.32 The Complainant can submit his/her grievance to the appropriate Forum under whose jurisdiction his/her connection exists or a connection has been applied for. The Complainant can also submit his/her grievance at the nearest complaint-receiving centre, already established by the licensee. The grievance may be submitted either in person or through post, or email or fax.
2.33 All complaint-receiving centers shall accept the grievances from Complainants falling within the jurisdiction of the Forum and forward the same, along with other supporting documents to the appropriate Forum within the next two working days.
2.34 The grievance shall be submitted as per the format specified in Annexure-1 and Annexure-2 respectively for Dakshin Haryana Bijli Vitran Nigam Ltd. and Uttar Haryana Bijli Vitran Nigam Ltd. The complainant can nominate any person (not necessarily to be an Advocate) to present his case on the prescribed format which is at Annexure-3. Nomination 19 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -20- can be filed at any time before or on the date of hearing."
28. Chapter 3 of the aforesaid Regulations deals with the office of the Ombudsman. It is significant to point out that both the aforesaid statutory Forums i.e. The Consumer Grievances Redressal Forum as well as the Electricity Ombudsman are duly constituted and are functional.
29. It is also relevant to point out that the Haryana Electricity Regulatory Commission notified the HERC (Forum and Ombudsman) Regulations, 2020 in supersession of the earlier Regulations on 24.01.2020. The relevant Clauses of the said Regulations read thus:-
"(d) "Complainant" means & includes any of the following who have a grievance as defined in these regulations and makes a complaint;
(i) a consumer as defined under sub-section 15 of section 2 of the Act;
(ii) any consumers association registered under any law for the time being in force;
(iii) any un-registered association or group of consumers where the consumers have common or similar interest;
(iv) in case of death of a consumer, his legal heirs or authorized representative;
(v) any other person claiming through or authorized by or acting as agent for the consumer and affected by the service or business carried out by the distribution licensee;
(vi) an applicant for a new electricity connection.
(e) "complaint' means any grievance in writing made by a complainant that :
(i) an unfair trade practice or a restrictive trade practice has been adopted by the licensee in providing electricity service;
20 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -21-
(ii) the electricity services hired or availed of or agreed to be hired or availed of by him suffer from defect or deficiency in any respect;
(iii) a licensee has charged for electricity services mentioned in the complaint, a price in excess of the price fixed by the Commission;
(iv) electricity services which are hazardous to life and safety when availed, are being offered for use to the public in contravention of the provisions of any law for the time being in force or of any licence;
(v) violation has occurred of any law or licence requiring the licensee to display the information in regard to the manner or effect of use of the electrical services; or
(vi) breach has occurred of any obligation by the licensee which adversely affects any consumer or which the Forum may consider appropriate to be treated as a complaint.
(g) "consumer grievance" means & includes any complaint relating to any fault, imperfection, short coming, defect or deficiency in the quality, nature and manner of service or performance in pursuance of a licence, contract, agreement or under Electricity Supply Code or in relation to Standards of Performance specified by the Commission including payment of compensation or billing disputes of any nature or recovery of charges by the licensee and matters relating to the safety of the distribution system having potential of endangering the life or property. However, the matter pertaining to Open Access granted under the Act and Section 126, 127, 135 to 140, 142, 143, 146, 152 and 161 of the Act shall not form grievance under these regulations."
30. The aforesaid Regulations specify the consumer complaint handling procedure as well as the jurisdiction of the Commission. The Forum has also been given powers to issue interim directions pending final 21 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -22- disposal of such grievance under Regulation 2.46 thereof. The same is extracted herein-after-below:-
"Special Provision : Interim Order:
2.46 Upon request of the Complainant, the Forum may issue such interim orders pending final disposal of the grievance as it may consider necessary including but not restricted to grant of temporary injunction to stay or prevent or restrain such act as the Forum thinks fit.
Provided that the Forum shall have the powers to pass such an interim order in any proceeding, hearing or matter before it, as it may consider appropriate if the Complainant satisfies the Forum that prima facie, the Distribution Licensee has threatened or is likely to remove or disconnect the electricity connection, and has or is likely to contravene any provisions of the Act or any rules and regulations made thereunder or any order of the Commission, provided that the Forum has jurisdiction on such matter. Provided further that, except where it appears that the object of passing such the interim order would be defeated by delay, no such interim order shall be passed unless the opposite party has been given an opportunity of being heard.
Provided also that where any injunction has been granted by the Forum without notice to the opposite party, the Forum shall make efforts to finally dispose of the application within 30 days from the date on which the injunction was granted.
Provided also that any interim order may be reviewed/set aside by the Forum on an application made by any party if it is found that the complainant has made a false or misleading statement."
31. A reasoned order is to be passed by the Forum. Similar provisions for Ombudsman have also been prescribed therein. The aforesaid 22 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -23- Regulations were amended vide Notification dated 06.04.2022, however, the same has in no way diluted the authority of the Consumer Grievances Redressal Forum and has merely prescribed that the Consumer Grievances Redressal Forum shall be established to cater to the needs of Circle(District/Zone and Company level) in accordance with the Regulations and would also establish one or more Corporate Consumer Grievances Redressal Forum. A special mechanism for resolution of Corporate Consumer Grievances has been provided for under Regulation 2.4. Similar provisions of interim orders and monitoring of consumer grievances have also been retained therein. The said Regulations provided for redressal of monetary complaints on the basis of pecuniary jurisdiction as well in Regulation 2.8 thereof. The same is extracted as under:-
"2.8 Monetary Complaints Complaints relating to the supply of electricity by distribution licensee involving monetary disputes including but not limited to wrong billing, application of wrong tariff or difference of service connection charges/general charges or security (consumption), overhauling of account due to defective/inaccurate metering, levy of voltage surcharge, billing of supplementary amount or any other charges except those arising on matters pertaining to Open Access granted under the Electricity Act, 2003 and Sections 126, 127, 135 to 140, 142, 143, 146, 152 and 161 of the Act shall be disposed of by the respective Forum in accordance with these Regulations as per the monetary limits specified in Regulations 2.8.1 and 2.8.2 hereunder;
2.8.1 Corporate Forum
(i) The Corporate Forum shall have the jurisdiction to dispose of all the monetary disputes of an amount exceeding Rs.
Three lakhs (Rs.3,00,000/-) in each case. Provided that the 23 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -24- complaint/representation is made within two years from the date of cause of action.
(ii) Any complainant aggrieved by non-redressal of his grievance within the time period specified by the Commission or is not satisfied with the redressal of the complaint by the Zonal or Circle Forum may himself or through his authorized representative, approach the Corporate Forum in writing for the redressal of his grievance.
Provided that the Corporate Forum shall entertain only those complaints against the orders of Zonal or Circle Forum, as the case may be, where the representation is made within 2 months from the date of receipt of the orders of respective Zonal/Circle Forum, as the case may be.
Provided further that the Corporate Forum may, for reasons to be recorded in writing, entertain a complaint which does not meet the aforesaid requirements.
2.8.2 Zonal/Circle/Divisional Forum:
(i) Zonal Forum:
The Zonal Forum shall have the jurisdiction to dispose of the complaints involving monetary disputes of an amount exceeding Rs.One lakh (Rs.1,00,000/-) and up to Rs. Three lakh (Rs.3,00,000/-) in each case.
(ii) Circle Forum:
The Circle Forum shall have the jurisdiction to dispose of the complaints involving monetary disputes of an amount up to Rs.One lakh (Rs.1,00,000/-) in each case."
32. The billing related issues are dealt with under Regulation 2.22 of the said Regulations as well and the special provision for interim order has been kept intact under Regulation 2.37.
"Special Provision: Interim Order:
2.37 Upon request of the Complainant, the Forum may issue such interim orders pending final disposal of the 24 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -25- grievance as it may consider necessary including but not restricted to grant of temporary injunction to stay or prevent or restrain such act as the Forum thinks fit.
Provided that the Forum shall have the powers to pass such an interim order in any proceeding, hearing or matter before it, as it may consider appropriate if the Complainant satisfies the Forum that prima facie, the Distribution Licensee has threatened or is likely to remove or disconnect the electricity connection, and has or is likely to contravene any provisions of the Act or any rules and regulations made thereunder or any order of the Commission, provided that the Forum has jurisdiction on such matter.
Provided further that, except where it appears that the object of passing such the interim order would be defeated by delay, no such interim order shall be passed unless the opposite party has been given an opportunity of being heard.
Provided also that where any injunction has been granted by the Forum without notice to the opposite party, the Forum shall make efforts to finally dispose of the application within 30 days from the date on which the injunction was granted.
Provided also that any interim order may be reviewed/set aside by the Forum on an application made by any party if it is found that the complainant has made a false or misleading statement."
33. A reference to the aforesaid Regulations shows that the statute has prescribed for Consumer Grievances Redressal mechanism where a tariff is being demanded over and above the tariff approved by the appropriate Commission. The above statutory authorities have been duly constituted and are required to decide the complaints in a time-bound manner. Even the powers of granting interim directions have been conferred upon the 25 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -26- authorities under the statutory framework.
34. Since the grievance of the petitioners is against being charged under the Bulk Supply (Non-Domestic) category whereas they are claiming to be covered under the Bulk Supply (Domestic) category (without commenting on the petitioners/Group Housing Societies fulfilling the load distribution requirements as available in the appropriate Regulations), such dispute falls within the domain of the Consumer Grievance Redressal Commission at the first instance and to the Electricity Ombudsman thereafter as per the statue and the regulations framed thereunder.
35. Further, learned senior counsel appearing on behalf of the petitioners has placed reliance on the judgment of the Hon'ble Supreme Court in the matter of Magadh Sugar & Energy Limited Versus State of Bihar and others, 2021 SCC Online SC 801. Where the Hon'ble Supreme Court had referred to the judgment in the matter of Whirl pool Corporation Versus Registrar of Trademarks (1998) 8 SCC 1, Mumbai and Harbanslal Sahni Versus Indian Oil Corporation Limited (2003) 2 SCC 107 as well as in the matter of Radha Krishan Industries Versus State of Himachal Pradesh, 2021 SCC OnLine SC 334 and summarized the principles governing exercise of writ petition in the presence of alternative remedy. The same are extracted as under:-
"25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirl pool Corporation Versus Registrar of Trademarks, Mumbai and Harbanslal Sahni Versus Indian Oil Corporation Limited.
26 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -27- Recently, in Radha Krishan Industries Versus State of Himachal Pradesh, a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by part III of the Constitution;
(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right of liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view 27 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -28- that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
36. It is thus evident from the perusal of the above judicial precedents that even though writ jurisdiction of High Court under Article 226 is not ousted on a mere existence of an alternative remedy and the High Court may exercise its discretion to entertain the writ petitions in appropriate cases which seek enforcement of the fundamental rights protected by the Constitution of India or the proceedings are wholly without jurisdiction and/or in circumstances where there is a blatant violation of principal of natural justice. However, at the same time the Hon'ble Supreme Court states that when a right is created by a statute which also prescribes the remedy or procedure for enforcing the right, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article
226.
37. The law as laid down by the Hon'ble Supreme Court does not prohibit the High Court(s) from exercise of its writ jurisdiction in an appropriate case, however, it emphasizes the need of exhortion of the statutory remedies in circumstances where the right claimed is itself founded in the statute. The very fact that a notice of demand had been raised clearly shows that the principal of natural justice have not been violated by the officials and further that there are efficacious remedies prescribed under the statue itself. The authority is duly vested with the powers to grant interim relief. The petitioners have failed to point out as to how the remedy prescribed under the statute is not efficacious or appropriate. Surprisingly, the averment contained in the present petition is that there is no remedy of 28 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -29- appeal of revision against the impugned actions and such averment itself is incorrect. The reasons cited by the petitioners for approaching this Court in a writ jurisdiction directly is that allegations of mala fide have been levelled whereas the memo of parties does not show any impleadment of any party in person against whom such mala fide is alleged. A process initiated by the respondents to claim their dues although consequent upon a demand notice raised by the petitioners, cannot be labelled as malicious solely on account of its alleged timing. A demand which otherwise is sought to be justified by reference to contractual arrangement between the parties cannot be straight away labelled as malicious. Solely because the same causes a prejudice to the petitioners. The other communication impugned by the petitioners is suggestive of the petitioners having accepted the demand but having sought time to pay the dues claimed by respondents in installments. It is seemingly an afterthought of the petitioners to approach this Court straight away by means of filing a writ petition without disclosing the existence of the two statutory forums available to them for rederessal of their grievance. There can be no presumption that the statutory forums shall not discharge their duties dispassionately, impartially and upon inter se merits of the claim lodged by the respective parties. Besides, the vires of any legislation presently are not subject matter of challenge. Thus, it cannot be said at this juncture that circumstances exists in which exercise of writ jurisdiction is the only efficacious remedy available to a person and that any recourse to the statutory remedies would be defeating the rights of a litigant.
38. Undisputedly, the power of the Court to entertain a writ despite availability of an alternative remedy is not a rule but an exception. Ordinarily, the litigant must exhaust are the statutory remedies available to 29 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -30- him and simply cannot knock the High Court at his discretion merely for the sake of his convenience. Conferment of jurisdiction and the object of providing statutory remedies would be defeated if convenience of the party is to be equated to a right and a writ Court takes upon itself the responsibility as a forum at the first instance only to obliviate the projected hardship by the petitioners or to give primacy to the convenience of a litigant. The Courts have always emphasized that the legislature should always provide for statutory remedies so that litigant is not forced to directly approach the High Court. The provision of the statutory remedies is thus in furtherance of the intent of the statute to provide efficacious and affordable remedy which is more convenient to a litigant and is within the object to ensure that the factual aspects of the dispute are looked into by those statutory authorities and the issues which require judicial pronouncement are then left for final adjudication of the High Court. By passing of the statutory remedy makes the High Court as the forum of first instance to adjudicate the factual aspect of a case which was neither desired nor required. This Court has no reasons to hold or to believe that the the grievances espoused by the petitioners in the present petition cannot be looked into or examined by the statutory forums and also fails to find any valid explanation for not approaching the said statutory forums.
39. No such compelling grounds arise as would necessitate the determination of the issues in exercise of the writ jurisdiction alone. The present petition is accordingly dismissed in limine. Liberty is, however, granted to the petitioners to approach to take recourse to the alternative remedies available to the petitioners as per the statue or before a Forum so advised, for seeking redressal of their grievances. Nothing stated herein 30 of 31 ::: Downloaded on - 26-12-2022 06:37:06 ::: CWP-26330-2022 -31- should be construed as an expression on the merits of the claim of the petitioners and the competent authority/forum shall take a decision after assessing the merits of the respective claim made by the competent parties.
November 18, 2022 (VINOD S. BHARDWAJ)
seema/vishal sharma JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
31 of 31
::: Downloaded on - 26-12-2022 06:37:06 :::