Gujarat High Court
Executive Engineer , (O And M), Pashchim ... vs Hirenbhai Jagdishbhai Adhaduk on 28 September, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/8567/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8567 of 2020
=======================================================================
EXECUTIVE ENGINEER , (O AND M), PASHCHIM GUJARAT VIJ COMPANY LIMITED
Versus
HIRENBHAI JAGDISHBHAI ADHADUK
=======================================================================
Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 1
=======================================================================
CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 28/09/2020
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India is filed challenging order dated 15.01.2020 by the Electricity Ombudsman, Gujarat State in Case No.120 of 2019. The petition filed by the Electricity Company is challenging the impugned order to the extent that such order is directing the Electricity Company to supply electric connection to respondent No.1 at fixed cost whereas case of the petitioner-Electricity Company is that considering the capacity of electric connection sought by the respondent, the cost of electric connection is to be recovered from the respondent on actual basis and not at fixed cost charges.
2. Learned Advocate for the petitioner submitted that respondent No.1 had applied for getting new three phased industrial connection of 100 KW on 11.03.2019. Page 1 of 7 Downloaded on : Mon Mar 01 01:16:47 IST 2021 C/SCA/8567/2020 ORDER Respondent No.1 was informed by the petitioner vide letter dated 05.07.2019 that the connection as required cannot be released as the place where connection is sought is more than 500 meters from the main road and therefore, respondent No.1 filed complaint with CGRF, PGVCL, which was registered as Complaint No.3/2019-20. The complaint of respondent No.1 came to be rejected. While rejecting the complaint, CGRF has taken into consideration all the necessary aspects, more particularly that the connection was sought for 100 KW industrial connection for 24 hours and therefore, the petitioner-Electricity Company was ordered to give connection by charging actual charges incurred by the petitioner-Electricity Company for providing electric connection to the respondent. Respondent No.1 therefore filed Case No.120 of 2019 before the Electricity Ombudsman, Gujarat State, wherein the Electricity Ombudsman directed grant of connection. However, direction issued was for providing electric connection by charging fixed charges.
2.1 Learned Advocate for the petitioner submitted that the order of the Electricity Ombudsman does not give any reasonings for providing electricity connection to the respondent by receiving fixed charges instead of actual charges as is provided. The Electricity Ombudsman Page 2 of 7 Downloaded on : Mon Mar 01 01:16:47 IST 2021 C/SCA/8567/2020 ORDER has failed to take into consideration Government resolution dated 24.01.2019, which CGRF has taken into consideration where it is provided to recover estimated charges of actual expenditure for providing electric connection as per the provisions of the Supply Code, 2015. Instead, the Electricity Ombudsman has referred to and relied upon old circulars of 2010 to 2014. 2.2 It is submitted that the Electricity Ombudsman has erroneously directed by misinterpreting Government resolution dated 24.01.2017 to refund cost of line charges, i.e. adjustment of fixed charges which are recovered from respondent No.1 as the said charges are not leviable as per GERC norms. This direction could not have been issued in view of the fact that respondent No.1 has not paid any estimated cost till date. Therefore, there is no question of refund. Reliance is placed on the decision of this Court in SCA No.4668 of 2016 and allied matters dated 30.04.2019, wherein it is held that distribution licensees are entitled to recover charges for infrastructure from the applicants of new connections.
3. As against this, learned Advocate Mr.Ashish Dagli appearing on caveat for respondent No.1 submitted that the only reason for refusing to give connection to respondent No.1 was its location being beyond 'gamtal' or Page 3 of 7 Downloaded on : Mon Mar 01 01:16:47 IST 2021 C/SCA/8567/2020 ORDER beyond 500 meters from the road. It is submitted that respondent No.1 has produced sufficient evidence in respect of distance including certificate issued by the Sarpanch of Moti Marad Gram Panchayat, where connection is sought, that survey No.384 paiki of the petitioner is 250 meters from the approach road. Moreover, he has relied upon the photographs produced along with affidavit-in-sur-rejoinder to submit that the road is in existence and the distance between the place of connection is not more than 500 meters. It is also submitted that similarly situated consumers have been provided with the connection by taking fixed charges. 3.1 It is submitted that insofar as reliance placed on the decision of this Court in SCA No.4668 of 2016 and allied matters dated 30.04.2019 is concerned, the same is subject matter of challenge in LPA No.1582 of 2019 and allied appeals and therefore, such judgment cannot be relied upon.
4. In rejoinder, learned Advocate for the petitioner submitted that the LPA No.1582 of 2019 referred to by learned Advocate for the respondent is merely admitted and there is no stay granted on the judgment in SCA No.4668 of 2016.
4.1 It is also submitted on the basis of affidavit Page 4 of 7 Downloaded on : Mon Mar 01 01:16:47 IST 2021 C/SCA/8567/2020 ORDER that while granting connection, actual site visit was carried out and the map of the same is also produced on record at Annexure-R9, which clearly indicates that the distance between the area of connection from the feeder is more than 2.2 kms.
5. Having considered the rival submissions of learned Advocates for the parties and having perused documents on record, it appears that the issue with regard to distance between KW feeder and the point on which connection is to be given is factual aspect. One one hand, is the site inspection report of by the petitioner-Electricity Company officers and on the other, is the certificate issued by the Sarpanch. In any case, the factual aspect as to the place at which the connection is to be received, is not gone into by the Ombudsman as the same requires leading of actual evidence after the same being led before the authority to ascertain the rival claims with regard to distance.
6. The issue before this Court is whether the Ombudsman was justified in ordering connection to respondent No.1 by recovering fixed charges as against the estimated cost incurred by the petitioner-Electricity Company. The application for new connection which is at Annexure-B indicates that the application for electricity connection is for the purpose of operating stone crusher, Page 5 of 7 Downloaded on : Mon Mar 01 01:16:47 IST 2021 C/SCA/8567/2020 ORDER which is a mining activity. The requirement of the supply was to the extent of 100 KW. In this connection, it is necessary to refer to circular issued by GUVNL dated 30.01.2017 based on the Government circular dated 24.01.2017, which frames policy for charging electric charges for various nature of connections for commercial activity. The same is placed on record at Annexure-E. Clause-4 covers case of respondent No.1, which pertains to connection for agriculture or any other industrial, commercial agro industrial connection for 24 hours. The case of respondent No.2 seeking connection for carrying out stone crushing operations would fall within Clause-4, which provides for charging another connection as per the capacity of electric connection, e.g. for electric connection up to 3 KW, actual expenditure incurred or KW based fixed charges whichever is higher, but up to Rs.1 lakh. Similarly, for connection between 3 KW to 6 KW, actual expenditure incurred or KW based fixed charges whichever is higher. If the electric connection up to 6 KW with 3 phased electric connection then actual cost incurred as per the tariff for giving connection or JGY /Urban feeder. In view of this clear cut policy, this Court is of the view that the same has escaped attention of the Ombudsman while issuing direction in para-4.11, which reads as under:-
Page 6 of 7 Downloaded on : Mon Mar 01 01:16:47 IST 2021 C/SCA/8567/2020 ORDER
"4.11 The view taken by CGRF for recovery of full cost of network expansion for providing industrial purpose electric connection to Appellant is not supported wit existing regulatory provisions and fixed cost approval issued for recovery on KW basis fixed cost charges by GERC.
In aforesaid observations, Respondent should have ti recover the estimated amount on KW basis fixed cost as approved by GERC. On fulfillment of submission of requisite documents as needed as per provisions if Clause 4.16 to 4.20 of Supply Code Notification No.4 of 2015, Respondent is directed to issue the estimate of Appellant as per KW basis fixed cost as approved by GERC."
7. In view of the aforesaid, the Court deems it fit to remand the case back to the Electricity Ombudsman. While remanding, it will be appropriate to set aside order dated 15.01.2020 by the Electricity Ombudsman, Gujarat State in Case No.120 of 2019. It is accordingly set aside. The Ombudsman shall reconsider case in entirety. It is open for both the parties to raise all or any contentions available under the law.
8. The petition stands disposed of accordingly.
(A.Y. KOGJE, J) *Shitole/CAROLINE Page 7 of 7 Downloaded on : Mon Mar 01 01:16:47 IST 2021