Madhya Pradesh High Court
M/S Prism Johnson Limited Having ... vs Madhya Pradesh Paschim Kshetra Vidyut ... on 20 September, 2019
Author: Prakash Shrivastava
Bench: Prakash Shrivastava
1
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
WP No. 3834/2019
M/s Prism Johnson Limited
Petitioner
Versus
M.P. Paschim Kshetra Vidyut Vitran Co.Ltd & others
Respondents
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Shri A.K. Sethi learned senior counsel with Shri Kartik
Mandloi learned counsel for the petitioner.
Shri V.K. Jain learned senior counsel with Shri P. Prasad
learned counsel for the respondents.
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Whether approved for reporting :
ORDER
(Passed on 20/9/2019 ) IA No. 1922/2019 has been filed by respondent no.1 for recall of order dated 20th March 2019 on the plea that petitioner has alternate remedy to approach the MP Electricity Regulatory Commission.
2/ This court vide order dated 20 th March 2019 had rejected the preliminary objection of respondent no.1 in the writ petition in respect of availability of alternate remedy before the Commission under Section 86(1)(f) of Electricity Act, 2003. 3/ The record reflects that petitioner has filed writ petition challenging the demand notice and supplementary bill dated 27/12/2018 as also the bill for the month of January 2019 dated 5/2/2019.
24/ The petitioner is purchasing solar power from respondents no.2 to 7 through open access. 5/ It has been pointed out by respondents that billing dispute of the nature which has been raised in the present petition can be decided by the MP Electricity Regulatory Commission only. 6/ Earlier before this court an issue was raised by respondent no.1 that under Section 86(1)(f) of Electricity Act, 2003, there is alternate remedy of approaching the MP Electricity Regulatory Commission and this Court on the basis of limited arguments advanced at that stage, had taken the view that the remedy before the Electricity Regulatory Commission is not available. The same issue relating to availability of alternate remedy before the MP Electricity Regulatory Commission came up in RP No. 259/2019 wherein after hearing the full fledged arguments on this issue, this court by a separate order passed today, has held as under:-
"By this petition, the petitioner is seeking review of order dated 5/2/2019 passed in WP No. 2301/2019 whereby the writ petition was disposed off by directing the parties to appear before the Grievance Redressal Forum for the purpose of resolving the dispute. 2/ Brief facts are that the respondent no.1 had filed writ petition No. 2301/2019 challenging the demand notice/supplementary bill dated 6/12/2018 and questioning the bill for the month of December 2018 dated 5/1/2019.
3/ The matter was listed on 5/2/2019 when the review petitioner had entered appearance through counsel and the issue was raised by counsel for respondent no.1 (writ petitioner) that respondent no.1 had already approached the Grievance Redressal Forum yet the review petitioner was raising the bill for disputed amount without waiting for adjudication by the forum. 4/ Counsel for review petitioner had agreed for issuance of direction to the forum to take an appropriate decision within a time bound period and in this back ground the writ petition was disposed off by 3 order dated 5/2/2019 without entering into merits of the matter but by directing the Grievance Redressal Forum to decide the issue within a time bound period. 5/ The present review petition has been filed on the ground that dispute is to be decided by MP Electricity Regulatory Commission Bhopal and that the Grievance Redressal Forum has no jurisdiction.
6/ It is not in dispute that respondent no.1 has obtained supply through open access.
7/ It has been pointed out that dispute has arisen because respondent no.1 is availing electricity from petitioner as also from private generator and the calculation of amount in terms of TOD block (Time of day) is to be done. The contention of review petitioner is that such a dispute can be decided only by MP Electricity Regulatory Commission whereas the stand of respondent no.1 is that the Grievance Redressal Forum is competent to decide the dispute.
8/ Having heard the learned counsel for parties and on perusal of the record it is noticed that Section 86 of Electricity Act 2003 provides for functions of State Commission and in terms of Section 86(1)(c) of the Act the State Commission is required to facilitate intra- State transmission and wheeling of electricity and Section 86(1)(e) deals with promotion of cogeneration and generation of electricity from renewable sources and sale of electricity to any person and clause (f) deals with adjudication of dispute between the licensees and generating companies and (k) provides for discharge of such other functions as may be assigned to it under the Act. Section 82 of Act provides of Constitution of State Commission.
9/ In exercise of powers conferred by Section 39(2) (d), 40(c), 42(2,3), 86(1)(c) read with Section 181 (1) of the Electricity Act, the MP Electricity Regulatory Commission has framed the regulations namely MPERC (Terms and Conditions for Intra-State Open Access In Madhya Pradesh) Regulations, 2005 and clauses 18.9 and 18.10 thereof provide for redressal mechanism as under:
"18.9 Any dispute or complaint relating to open access, such as unfair practice, delay, discrimination, lack of information or any other matter shall be reported to the committee, which will investigate and endeavour to resolve the grievance.4
18.10 The commission shall adjudicate upon unresolved dispute regarding the availability of transmission facility."
10/ In terms of the aforesaid clause any dispute or complaint relating to open access is to be first resolved by the committee and the unresolved disputes are to be adjudicated upon by the commission. The commission vide order dated 21st December 2012 has constituted "Open Access Monitoring Dispute Resolution and Decision Review Committee" for monitoring and resolution of disputes of open access consumers in terms of Regulations of 2005.
11/ In terms of clause 3.35 of MP Electricity Regulatory Commission (Establishment of Forum and Electricity Ombudsman for Redressal of Grievances of the Consumers)(Revision-I) Regulations, 2009, the jurisdiction of the Grievance Redressal Forum is barred in respect of matters which are subject matters of existing or proposed proceedings before the commission or before any other authority including those under Part X, XI, XII, XIV, XV and XVI of the Act.
12/ In terms of MP Electricity Balancing and Settlement Code, 2015 relating to mechanism for intra- day power transfers among intra-State entities, the Commission has been given powers to remove the difficulties under Clause 12.
13/ It has also been pointed out that Coordinate Bench in the matter of Ritspin Synthetics Ltd. Vs. State of MP and others reported in 2018(2) MPLJ 569 in a billing dispute regarding manner of calculation of consumption of units by HT consumer drawing electricity under open access system has held that MP Electricity Regulatory Commission is competent authority. 14/ Hence from the aforesaid legal position, it is clear that respondent no.1 is required to approach the MP Electricity Regulatory Commission or committee constituted by it for the purpose of resolving the dispute. Since while passing the order dated 5/2/2019 in WP No. 2301/2019 the aforesaid legal position was not pointed out, hence the apparent error has crept in therefore, the order dated 5/2/2019 is reviewed and recalled. 15/ The review petition is allowed and writ petition No. 2301/2019 is disposed off by holding that 5 respondent no.1 has alternate remedy of approaching the MP Electricity Regulatory Commission /committee constituted by it for this purpose."
7/ Having regard to the aforesaid order, I am of the opinion that an apparent error has crept in while passing the order dated 20/3/2019.
8/ Hence the said order is recalled. Since the petitioners have alternate remedy before the MP Electricity Regulatory Commission, therefore, the present writ petition is disposed off by permitting the petitioner to avail said alternate remedy.
C.C. as per rules.
(Prakash Shrivastava) Judge BDJ Digitally signed by Bhuneshwar Datt Date: 2019.10.02 11:51:11 -07'00'