Bombay High Court
Mah. State Electricity Distribution ... vs Electricity Ombudsman, Nagpur And Anr on 22 February, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 wp1635.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1635 OF 2012
Maharashtra State Electricity
Distribution Company Limited,
through its Executive Engineer,
Rural Division, Nagpur. .... PETITIONER
VERSUS
1) Electricity Ombudsman, Nagpur,
Plot No.12, "Shrikrupa", Vijay Nagar,
Chhaoni, Nagpur.
2) M/s. Ram Hightech Private Ltd.,
14/3, IT Park, Parsodi, Nagpur. .... RESPONDENTS
______________________________________________________________
Shri S.V. Purohit, Counsel for the petitioner,
Shri S.S. Ghate, Counsel for respondent 2.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 22-02-2019.
ORAL JUDGMENT :
The petitioner-Maharashtra State Electricity Distribution Company (hereinafter referred to as the "MSEDCL") is assailing the order dated 07-2-2012 passed by respondent 1-Electricity Ombudsman, Nagpur (hereinafter referred to as the "Ombudsman") in ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 2 wp1635.12 Representation 23/11, by and under which the Ombudsman directed the MSEDCL to refund the difference amount between the tariff applicable to commercial category and industrial category from March 2008 along with interest thereon at the rate of 12% per annum.
2. Shri S.V. Purohit, learned Counsel for the MSEDCL would submit that the claim of respondent 2-M/s. Ram Hightech Private Limited (hereinafter referred to as the "consumer") was clearly barred by limitation. Reliance is placed inter alia on Regulation 6.6 of the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2006 (hereinafter referred to as the "Regulations"). In rebuttal, Shri Shantanu Ghate, learned Counsel for the consumer would submit that the claim was within limitation and that there is no infirmity in the order impugned much less an infirmity warranting interference in writ jurisdiction.
3. Factual Matrix :
(i) It is not in dispute that the consumer applied for electrical connection for load of 46 kw. The application reveals that the consumer applied for electricity connection for commercial purpose. ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 :::
3 wp1635.12 The application is signed by the consumer and the licensed electrical contractor engaged by the consumer. Pursuant to the said application, vide order dated 13-3-2007 electricity connection for commercial category was sanctioned and communication dated 15-3-2007 was accordingly issued by the Executive Engineer of MSEDCL to the Deputy Executive Engineer, copy of which was forwarded to the consumer. The consumer completed the installation, submitted the test report from the licensed electrical contractor and paid the prescribed charges and the connection under the commercial category was released to the consumer on 21-3-2007. It is further not in dispute that the consumer, on or about 11-7-2007, asked for increase of load from 47 kw to 77 kw vide application dated 06-7-2007 which again makes a reference to commercial category and upon completion of the necessary formalities including submission of the test report the additional load was sanctioned.
(ii) The consumer issued letter dated 31-7-2007 requesting the MSEDCL to waive the electricity duty in response to which the consumer was informed that MSEDCL was in no position to waive the electricity duty which is imposed by the State Government and that MSEDCL is only an agency to collect the duty and deposit the same with the State Government. Be it noted, that while the consumer ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 4 wp1635.12 claimed waive of electricity duty, no grievance was made that the tariff should be charged as applicable to industrial category and not commercial category.
(iii) Irrefutably, it was only by letter dated 29-3-2011 that the consumer requested the MSEDCL to revise the tariff from commercial category to industrial category. This request was examined and favourably considered and tariff applicable to industrial category was made effective from July 2011. On 20-9-2011 or thereabout the consumer submitted grievance/complaint to the Consumer Grievance Redressal Forum (Forum) seeking a direction that MSEDCL be directed to refund the difference of LT-II (commercial) and LT-V (industrial) tariff. The Forum rejected the claim of the consumer by order dated 29-10-2011 inter alia holding that the grievance/claim was time barred. The consumer submitted a representation before the Ombudsman, which is allowed by the order impugned.
4. Perusal of the reasons recorded by the Ombudsman would reveal that the issue of limitation is not considered on the touchstone of the statutory scheme, to which a reference shall be made in some detail at a later stage. The Ombudsman does observe that the Forum has erred in holding that the claim of the consumer is barred by ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 5 wp1635.12 limitation. The relevant observations in the order of the Ombudsman read thus :
"12. The bills were issued from April, 2007 till June, 2011 by charging the rates of commercial category. The appellant made grievance about wrong categorization for the first time by application dated 29-3-2011 and requested the respondent for changing the category from commercial to industrial. In response to the said application, the respondent corrected the category as industrial from July, 2011. In view of these circumstances, in my opinion, the respondent is liable to refund the difference of three years prior to March, 2011 i.e. from March, 2008 onwards.
13. By Govt. Resolution dated 30-3-2007 issued by the Industries, Energy and Labour Department of Govt. of Maharashtra "Package Scheme of Incentives" introduced in 1964 was amended. Clause 1.1 (iii) of the said Govt. Resolution shows that Information Technology (IT) Units registered with Directorate of Industries or MIDC or Development Commissioner (SEEPZ) or STPI in the or State are covered by Package Scheme of Incentive, 2007. Clause 5(3) shows that Information Technology (IT) Units will be exempted from payment of Electricity Duty for a period of ten years. Thus, the appellant is entitled to exemption from payment of Electricity Duty. Consequently the respondent has no right to charge and to recover Electricity Duty from the appellant.
14. The Forum has not property considered these aspects and came to a wrong conclusion that the claim of the appellant is barred by limitation and erroneously dismissed the Grievance. The order of the Forum cannot be sustained and needs to be quashed."
Consideration of paragraph 12 of the order impugned would reveal that the Ombudsman proceeded on the premise that the ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 6 wp1635.12 limitation to recover amount would be three years and accordingly held that the MSEDCL is liable to refund the difference of three years prior to March 2011. The Ombudsman considered the claim for the difference of tariff for the period March 2008 to March 2011 as within limitation on the assumption that since the consumer lodged the claim in March 2011, the claim for the period of three years preceding would be within limitation. The Ombudsman clearly erred in not appreciating that the Regulations prescribed limitation of two years from accrual of cause of action for approaching the forum and the grievance made before the Forum in the year 2011 was clearly barred by limitation.
5. The Regulations are framed in exercise of powers under sub-section (r) and (s) of Section 181 read with sub-sections (5) and (7) of Section 42 of the Electricity Act, 2003.
Regulation 2(2.1)(c) of the Regulations defines a "Grievance" as under :
"Grievance" 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 licence, contract, agreement or under the Electricity Supply Code or in relation to standards of ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 7 wp1635.12 performance of Distribution Licensees as specified by the Commission and includes inter alia (a) safety of distribution system having potential of endangering of life or property, and (b) grievances in respect of non-compliance of any order of the Commission or any action to be taken in pursuance thereof which are within the jurisdiction of the Forum or Ombudsman, as the case may be.
Regulation 2(2.1)(d) defines the "Cell" as under :
"Internal Grievance Redressal Cell" or "IGR Cell" means such first authority to be contacted by the consumer for redressal of his/her Grievance as notified by the Distribution Licensee. Regulation 2(2.1) (e) defines a "Forum" as under :
"Forum" means the forum for redressal of grievances of consumers required to be established by Distribution Licensees pursuant to sub-section (5) of Section 42 of the Act and these Regulations.
Regulation 6(6.1 till 6.10) read as under :
6. Procedural for Grievance Redressal :
6.1 The Distribution Licensee shall have an Internal Grievance Redressal Cell to record and redress Grievances in a timely manner. ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 :::
8 wp1635.12 The IGR Cell of the Distribution Licensee shall have office(s) in each revenue district in the area of supply.
Provided that where the area of supply is the city of Greater Mumbai and adjoining areas, the IGR Cell of the Distribution Licensee shall have at least one (1) office for the area of supply. The Distribution Licensee shall endeavour to redress Grievances through its IGR Cell.
6.2 A consumer with a Grievance may intimate the IGR Cell of such Grievance in the form and manner and within the time frame as stipulated by the Distribution Licensee in its rules and procedures for redressal of Grievances.
Provided that where such Grievance cannot be made in writing, the IGR Cell shall render all reasonable assistance to the person making the Grievance orally to reduce the same in writing :
Provided also that the intimation given to officials (who are not part of the IGR Cell) to whom consumers approach due to lack of general awareness of the IGR Cell established by the Distribution Licensee or the procedure for approaching it, shall be deemed to be the intimation for the purposes of these Regulations unless such officials forthwith direct the consumer to the IGR Cell.
6.3 (a) The office of the IGR Cell shall issue acknowledgment ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 9 wp1635.12 of the receipt of the Grievance to the consumer within five (5) working days from the date of receipt of a Grievance. Where the Grievance has been submitted in person, the acknowledgment shall be provided at the time of submission :
Provided that where the Grievance is submitted by email to the IFT Cell acknowledgment of the receipt of the Grievance to the consumer shall be provided by return email as promptly as possible :
Provided further that the IGR Cells shall keep such electronic records in hard form for ease of retrieval :
Provided further that where the Grievance is submitted by email hard copies of the same shall be submitted forthwith separately to the IGR Cell. (b) Notwithstanding sub-clause (a), the written acknowledgment of receipt of grievance provided by officials (who are not part of the IGR Cell) shall be deemed to be the acknowledgment for the purposes of these Regulations.
6.4 Unless a shorter period is provided in the Act, in the event that a consumer is not satisfied with the remedy provided by the IGR Cell to his Grievance within a period of two (2) months from the date of intimation or where no remedy has been provided within such period, the consumer may submit the Grievance to the Forum. The Distribution Licensee shall, within the said period of (2) months, send a ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 10 wp1635.12 written reply to the consumer stating the action it has taken or proposes to take for redressing the Grievance.
6.5 Notwithstanding Regulation 6.4, a Grievance may be entertained before the expiry of the period specified therein, if the consumer 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 of the provisions of the Act or any rules and regulations made thereunder or any order of the Commission, provided that, the Forum or Electricity Ombudsman, as the case may be, has jurisdiction on such matters.
Provided further that no such Grievance shall be entertained, before the expiry of the period specified in Regulation 6.4, unless the Forum records its reasons for the same.
6.6 The Forum shall not admit any Grievance unless it is filed within two (2) years from the date on which the cause of action has arisen.
6.7 The Forum shall not entertain a Grievance :
(a) unless the consumer has complied with the procedure under Regulation 6.2 and has submitted his Grievance in the specified form, to the Forum ;
(b) unless the consumer is aggrieved on account of his ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 11 wp1635.12 Grievance being not redressed by the IGR Cell within the period set out in these Regulations ;
(c) unless the Forum is satisfied that the Grievance is not in respect of the same subject matter that has been settled by the Forum in any previous proceedings; and
(d) where a representation by the consumer, in respect of the same Grievance, is pending in any proceedings before any court, tribunal or arbitrator or any other authority, or a decree or award or a final order has already been passed by any such court, tribunal, arbitrator or authority.
6.8 If the Forum is prima facie of the view that any Grievance referred to it falls within the preview of any of the following provisions of the Act the same shall be excluded from the jurisdiction of the Forum:
(a) unauthorized use of electricity as provided under section 126 of the Act;
(b) offences and penalties as provided under sections 135 to 139 of the Act;
(c) accident in the distribution, supply or use of electricity as provided under section 161 of the Act: and
(d) recovery of arrears where the bill amount is not disputed. ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 :::
12 wp1635.12 6.9 The Forum may reject the Grievance at any stage if it appears to it that the Grievance is :
(a) frivolous, vexatious, malafide;
(b) without any sufficient cause;
(c) there is no prima facie loss or damage or inconvenience caused to the consumer;
Provided that no Grievance shall be rejected in respect of sub- clauses (a),(b) and (c) unless the applicant has been given an opportunity of being heard.
6.10 Every Grievance must be submitted in writing to the Forum in the format set out in Schedule A to these Regulations :
Provided that where such grievance cannot be made in writing, the Forum shall render all reasonable assistance to the person making the Grievance orally to reduce the same in writing and in filling up the format set out in Schedule A to these Regulations. The Grievance may also be lodged by registered post acknowledgment due, by speed-post or by courier service or by any other means of transmission of documents (including FAX message):
Provided further that the Distribution Licensee shall, in its website, upload the format set out in Schedule A to these Regulations in word form so as to enable consumers, at their option, to submit their ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 13 wp1635.12 Grievance in electronic form.
Provided further that all enclosures to such Grievance submitted in electronic form shall be submitted in scanned form.
Provided also that submission of Grievance in electronic form shall be as per the rules and procedures of the Distribution Licensee as in force from time to time.
6. Shri S.V. Purohit, learned Counsel for the MSEDCL submits that the consumer approached the Forum directly without taking recourse to the remedy of approaching the Internal Grievance Redressal Cell and Forum would have been more than justified in rejecting the complaint on this short ground. Shri S.V. Purohit, however, fairly states that this objection was not raised by MSEDCL before the Forum. Since the objection was not raised before the Forum and therefore, not dealt with either by the Forum or the Ombudsman, the same cannot be considered in writ jurisdiction. However, it is clear from Regulation 6.6 that the Forum is precluded from entertaining any grievance unless it is filed within two years from the date on which the cause of action has arisen. The Forum proceeded on the premise that the cause of action arose on 31-7-2007 and dismissed the grievance as barred by limitation. The Forum has considered the issue of limitation ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 ::: 14 wp1635.12 thus :
"In this grievance application, applicant submitted that applicant wrote a letter dated 31-7-2007 and requested for application of industrial tariff. Therefore cause of action for filing this case arose on 31-7-2007 when applicant wrote a letter about change of tariff but since 2007 applicant did not file any grievance application till 2011. According to Regulation 6.6 of the said Regulation, the Forum shall not admit any grievance unless it is filed within two years from the date of which the cause of action has arisen. In this case cause of action has arisen in 2007. Therefore it was necessary to file grievance application before 2009 but present grievance application filed on 02-9-2011 and therefore it is hopelessly barred by limitation."
Perusal of the letter dated 31-7-2007 addressed by the consumer to the Executive Engineer, Congress Nagar Division MSEDCL, Nagpur shows that the request was to waive of energy duty and not for change of tariff from consumer to industrial category as is wrongly assumed by the Forum. However, notwithstanding that the said letter does not seek change of tariff from commercial to industrial, the cause of action has, as a fact, arisen in the year 2007 when the consumer was provided electricity connection under the commercial category and was charged accordingly. It appears from record that it was only on 29-3-2011 that the consumer requested that the tariff be changed from commercial to industrial.
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7. It is trite law that a statutory scheme which provides for a special remedy and fora can provide for limitation period to avail such remedy before the fora constituted, which period of limitation may be different or shorter than the period provided in the Indian Limitation Act. The statutory scheme is not considered much less appreciated by the Ombudsman and the order impugned is predicated on the premise that the consumer could have claimed the difference in the tariff for the preceding three years. The conclusion of the Ombudsman is clearly flawed. The consumer was obligated to approach the forum within the period of two years from the cause of action. The forum is precluded from entertaining the grievance made after the statutory period of limitation. Indubitably, the grievance is made more than two years after the approval of the cause of action and as a fact, is made after four years. The Forum was right in dismissing the complaint and the Ombudsman clearly erred in granting partial relief to the consumer.
8. The order of the Ombudsman dated 07-2-2012 which is impugned (Annexure-A) is unsustainable and is quashed and set aside.
9. Pursuant to the order dated 31-10-2014, sometime in November 2014, the petitioner-MSEDCL gave credit of Rs.13,67,450/- ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 :::
16 wp1635.12 to the consumer. MSEDCL has filed on record a statement along with praecipe. The consumer preferred Civil Application 3804/2014 seeking modification of the order dated 31-10-2014 and by order dated 23-12-2014 the consumer was permitted to deposit the amount of Rs.13,67,450/- in this Court. Since the petitioner-MSEDCL has succeeded and the order of the Ombudsman is set aside, the money deposited in this Court by the consumer shall be paid to the petitioner- MSEDCL along with the accrued interest.
JUDGE adgokar ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 03:29:12 :::