Rajasthan High Court - Jaipur
Jaipur Vidyut Vitran Nigam Limited vs Electricity Ombudsman on 7 September, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal (Writ) No. 800/2022
In
S.B. Civil Writ Petition No.14766/2019
Jaipur Vidyut Vitran Nigam Limited, Vidyut Bhawan, Janpath,
Jaipur-302005, through Executive Engineer (O and M), JPD,
Bhawani Mandi, Jhalwar, Rajasthan.
----Petitioner-Appellant
Versus
1. Electricity Ombudsman, Rajasthan, Jaipur.
2. Shri Rajasthan Textiles Mills, Pachpahar, Bhawani Mandi,
Jhalawar- 326502.
----Respondents
For Appellant(s) : Mr. Bipin Gupta Advocate.
For Respondent(s) : Mr. P.N. Bhandari Advocate. HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI Judgment / Order Reportable 07/09/2022 Though an application under Section 5 of Limitation Act has been filed, office report shows that the appeal is within limitation.
With the consent of the parties, the matter is heard finally. This appeal arises out of order dated 21.02.2022 passed by the learned Single Judge in S.B. Civil Writ Petition No.14766/2019 by which the petition filed by the appellant seeking to assail the correctness and validity of an award dated 16.05.2019 passed by the Electricity Ombudsman Rajasthan, Jaipur (hereinafter referred to as 'the Electricity Ombudsman') has been dismissed. (Downloaded on 25/12/2022 at 07:24:48 AM)
(2 of 10) [SAW-800/2022] For the purposes of adjudication of the controversy involved in the present appeal, we may usefully refer to brief factual matrix of the case giving rise to the present appeal.
Respondent No.2, who is a consumer of electricity, had a dispute with the appellant which is a government company duly registered under the Companies Act, 1956. The dispute mainly related with regard to the energy bills, which were generated in respect of the period from 29.06.2016 to 18.05.2018. The facts of the case as are floating on the surface show that during the period in question, the metering equipment is said to have remained inaccurate due to error in CVTs. The consumer raised a grievance that the energy bills, which have been generated through the defective meter are not proper, which was not acceptable to the appellant company. This gave rise to a dispute between the parties. The consumer approached the Corporate Level Grievance Redressal Settlement Forum (hereinafter referred to as 'the Settlement Forum) under the provisions of Section 42 of the Electricity Act, 2003 (hereinafter referred to as 'the Act of 2003') read with Rule 15 of the Electricity (Rights of Consumers) Rules, 2020 framed under the Act of 2003, which culminated in award of Rs.41,34,667/- required to be adjusted for the period from 07.10.2017 to 06.04.2018. However, dissatisfied with the decision of the Settlement Forum, the consumer filed the representation before the Electricity Ombudsman for redressal of his grievance and for refund of excess amount of entire period starting from 29.06.2016 to 18.05.2018 i.e. from the date of connection till the date of replacement of CVTs.
The dispute between the parties could not be settled amicably and, therefore, the Electricity Ombudsman proceeded to (Downloaded on 25/12/2022 at 07:24:48 AM) (3 of 10) [SAW-800/2022] adjudicate upon the dispute and passed an award on 16.05.2019 in favour of the respondent/consumer. It was held that the consumer will be entitled to adjustment on account of inaccuracy in the meter since the date of connection in terms of Para-2, Clause 33 (5) of Terms and Conditions of Supply of Electricity, 2004 and limit of six months restricted by the Settlement Forum was held to be erroneous and, therefore, the Electricity Ombudsman passed an order of revision of bills.
Being aggrieved by the aforesaid award, as there is no statutory remedy available, the appellant-supplier company filed writ petition before this Court.
The contentions of the parties were examined by the learned Single Judge on merits as well on the very maintainability of the writ petition in view of the objections taken by the consumer before the learned Single Judge that the remedy of filing writ petition could not be availed by the supplier company.
After examining the case on merits, while learned Single Judge held that the award granting relief to the consumer could not be interfered with in view of specific material on record that meter was inaccurate since the date of connection till the date of replacement, learned Single Judge also held that even the writ petition under Article 226 of the Constitution of India at the instance of the appellant was not maintainable in law.
The aforesaid order of the learned Single Judge is under challenge before us.
Two principal contentions raised by the learned counsel for the appellant are that, firstly the learned Single Judge has incorrectly held that the writ petition under Article 226 of the Constitution of India at the instance of the appellant is not (Downloaded on 25/12/2022 at 07:24:48 AM) (4 of 10) [SAW-800/2022] maintainable, which is against the authoritative pronouncement of the Supreme Court in the Case of L. Chandra Kumar Versus Union of India & Others, (1997) 3 Supreme Court Cases 261 wherein, it has been categorically held that the remedy under Articles 226 & 227 of the Constitution of India are part of the basic structure of the Constitution and such remedy cannot be taken away even by constitutional provisions, much less any statutory bar under any law of the land.
The second submission, primarily on merit, is that award proceeds on incorrect assumption of facts with regard to the status of the metering device. The Electricity Ombudsman as well as learned Single Judge have failed to consider in proper prospective and the factual background, that even in such cases, the award as has been passed by the Electricity Ombudsman could not be awarded in favour of the consumer granting him relief in respect of the entire period.
In Support of his submission, learned counsel for the appellant has placed reliance upon the decision of the Hon'ble Supreme Court in the case of L. Chandra Kumar Versus Union of India & Others (supra) and a recent decision of the Hon'ble Supreme Court in the case of Ibrat Faizan Versus Omaxe Buildhome Private Limited, AIR Online 2022 SC 716.
Per-contra, learned counsel for the respondent No.2 would argue that irrespective of the issue with regard to the maintainability of the writ petition, even assuming that the petition was maintainable, the Electricity Ombudsman passed the award based on undisputed facts, particularly that right from the date the connection was awarded, the metering device was defective. That is a finding of fact, which rightly has not been (Downloaded on 25/12/2022 at 07:24:48 AM) (5 of 10) [SAW-800/2022] interfered with by the learned Single Judge. Therefore, the award on that count, even on merit, is not assailable.
We have heard learned counsel for the parties and perused the order passed by the learned Single Judge.
We find that the objection with regard to maintainability of the writ petition was raised before the learned Single Judge at the instance of the consumer. The learned Single Judge examined the statutory scheme of Section 42 of the Act of 2003 with regard to redressal mechanism for a consumer. While learned Single Judge was of the opinion that the statutory mechanism was only to the aid of the consumer and there was no statutory remedy available for the supplier company, in Para 17 of its order, it has been held as below:-
"In the light of restriction being imposed by Section 42(8) on the distributor company, like the petitioner, as per the scheme of the Act and intention of the legislature by using the word 'settle', this court is of the view that the present writ petition is not maintainable qua electricity Company like petitioner."
For taking the aforesaid view, the learned Single Judge has relied upon the provisions contained in Section 42 (7) of the Act of 2003, particularly the legislative intention of bringing about the settlement between the parties in the matter of dispute between the supplier company and the consumer.
Section 42 of the Act of 2003 contains substantive provisions with regard to redressal mechanism in case of grievance of a consumer as against the supplier company. Sub-sections (5), (6), (7) and (8), being relevant, are reproduced hereinbelow:-
"42. Duties of distribution licenses and open access.-(Downloaded on 25/12/2022 at 07:24:48 AM)
(6 of 10) [SAW-800/2022]
(1) xxxxxxxxx.
(2) xxxxxxxxx.
(3) xxxxxxxxx.
(4) xxxxxxxxx.
(5) Every distribution licensee shall, within six months from the appointed date or date of grant of license, whichever is earlier, establish a forum for redressal of grievance of the consumers in accordance with the guidelines as may be specified by the State Commission.
(6) Any consumer, who is aggrieved by non-rederssal 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.
(8) The provisions of sub-sections (5), (6) and (7) shall be without prejudice to right which the consumer may have apart from the rights conferred upon him by those sub-sections."
On the face of the aforesaid provisions, a consumer, who is aggrieved by non-redressal of his grievance is entitled to 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. The Electricity Ombudsman is obliged under the law to settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission.
In exercise of power conferred under Section 42 (6) & (7) read with Section 181 of the Act of 2003, Rajasthan Electricity Regulatory Commission (Settlement of Disputes by Electricity Ombudsman) Regulations, 2010 (hereinafter referred to as 'the Regulations of 2010') have been framed.
Amongst various provisions, Regulation 5 of the Regulations of 2010 provides for representation to the Electricity Ombudsman. (Downloaded on 25/12/2022 at 07:24:48 AM)
(7 of 10) [SAW-800/2022] Regulation 7 of the Regulations of 2010 provides for consideration of representation through settlement. The scheme of this provision aims at first exploring the possibility of settlement between the parties. However, Regulation 8 of the Regulations of 2010 provides for award on representation where representation is not settled by conciliation. The Electricity Ombudsman has been conferred with power to pass an award giving reasons for its decision.
It is not in dispute, nor we could find from the provisions of the Act of 2003 or the Regulations of 2010 as above that against the award, the consumer or the supplier company has any appeal/revision or any other statutory remedy available.
In this background, the supplier company, which was obviously aggrieved by the award, preferred to file a writ petition under Article 226 of the Constitution of India before this Court.
The aspect with regard to maintainability of the writ petition under Article 226/227 of the Constitution of India was considered by the Constitutional Bench of the Hon'ble Supreme Court in the Case of L. Chandra Kumar Versus Union of India & Others (supra). It was authoritatively pronounced that powers of the High Court under Articles 226 and 227 of the Constitution of India are part of the basic structure of the Constitution, which cannot be taken away even by constitutional amendment. It was held thus:-
"73. We may now analyse certain other authorities for the proposition that the jurisdiction conferred upon the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution respectively, is part of the basic structure of the Constitution. While expressing his views on the significance of draft Article 25, which corresponds to the present Article 32 of the Constitution, Dr. B.R. Ambedkar, the (Downloaded on 25/12/2022 at 07:24:48 AM) (8 of 10) [SAW-800/2022] Chairman of the Drafting Committee of the Constituent Assembly stated as follows: (CAD, Vol. VII, p.953) "If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity- I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance."
(Emphasis added)
76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The Doctrine of basic structure was evolved in Kesvananda Bharati case. However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat and Grover, JJ., Hegde and Mukherjea, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi case, Chandrachud, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country, (supra at pp. 751-752). This approach was specifically adopted by Bhagwati, J. in Minerva Mills case (supra at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law.
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(9 of 10) [SAW-800/2022]
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.
81. If the power under Article 32 of the Constitution, which has been described as the "heart" and "soul" of the Constitution, can be additionally conferred upon "any other court", there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323-B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 323-A and 323-B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose." True it is that under the statutory mechanism of the Act of 2003, there is no remedy available to either of the parties. But that would not mean that the extraordinary and constitutional jurisdiction of the High Court under Article 226 and/or 227 is taken away and the awards passed by the Electricity Ombudsman are beyond challenge even in writ proceedings.
In view of the above settled legal position, insofar as the finding of the learned Single Judge that the writ petition at the (Downloaded on 25/12/2022 at 07:24:48 AM) (10 of 10) [SAW-800/2022] instance of the supplier company was not maintainable under Article 226 of the Constitution of India, is not tenable in law and to that extent, the order of the learned Single Judge is set aside.
However, as far as the merit aspect is concerned, we find that the learned Single Judge repelled the challenge to the award mainly taking into consideration that it has been an admitted position of facts that right from the date of installation, the metering device was defective, which has been the foundation for passing of the award as also the order by the learned Single Judge, therefore, on merits, there is no scope of interference.
In the result, the appeal is partly allowed.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ Sanjay Kumawat-3 (Downloaded on 25/12/2022 at 07:24:48 AM) Powered by TCPDF (www.tcpdf.org)