Jharkhand High Court
M/S Santosh Ispat vs The State Of Jharkhand on 25 April, 2019
Equivalent citations: AIRONLINE 2019 JHA 865, (2019) 4 JCR 518 (JHA)
Author: Sfujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4885 of 2017
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M/s Santosh Ispat, a proprietorship firm, through its proprietor, S.K. Pandey, son of P.N. Pandey, having its factory and office at Merha, P.S.- Chirkunda, District-Dhanbad (Jharkhand).
...... Petitioner Versus
1. The State of Jharkhand.
2. The Electrical Executive Engineer, Jharkhand Bijli Vitran Nigam Ltd., Electric Supply Division, Nirsa-2 Dhanbad, P.O. +P.S. Dhanbad
3. The Electrical superintending Engineer Jharkhand Bijli Vitran Nigam Ltd., Electric supply, At P.O. +P.S. Dhanbad.
4. The General Manager cum Chief Engineer, Jharkhand Bijli Vitran Nigam Ltd., Area, Dhanbad, At P.O. +P.S. Dhanbad.
5. The Chief Engineer (C & R), Jharkhand Bijli Vitran Nigam Ltd., Ranchi At P.O. + P.S. Dhanbad.
6. Jharkhand Bijli Vitran Nigam Limited, through its Secretary at Jharkhand having it's offices at Engineering Bhawan H.E.C. P.O. & P.S. at Dhurwa, District- Ranchi.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Jai Shankar Tripathi, Advocate. For the Respondent (State) : Mr. Gautam Kumar S.C.- Mines-I : Mr. Suraj Prakash, A.C. to S.C.-Mines-I For the Respondent No.2 to 6 : Mr. Mukesh Kumar Singh, Sr. S.C. (JUVNL) : Mr. Dheeraj Kumar, S.C.
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th 11/Dated 25 April, 2019
1. This writ petition is filed under Article 226 of the Constitution of India whereby and whereunder the order dated 21.07.2017 passed in Case No.EOJ 04/2017 by the Electricity Ombudsman whereby and whereunder the appeal preferred by the petitioner against the order dated 25.01.2017 passed by the Vidyut Upbhokata Shikayat Niwaran Forum, Hazaribagh, hereinafter referred as the Forum, has been declined and to be entertained on the ground that the appeal has been filed after delay of the limitation period as prescribed under the provision of Clause 14 of the Consumer Electricity Amendment Act, 2011.
2. It is the case of the petitioner that the respondents have issued electricity bill on 05.03.2011 therefore the same has been sought to be quashed along with the prayer to compensate the petitioner adequately by directing the respondents to pay Rs.1 crore by invoking the jurisdiction conferred to the Forum, wherein the order 2 was finally passed on 25.01.2017 by which the forum has set aside the bill amounting to Rs.11,18,571.00/- with a direction upon the respondents to recast the final bill by considering the following anomalies:-
(a) Notice period will be framed as per Clause 7.5 of Electrical Supply Code Regulation 2005 as laid down at Sl. No.6 of observation of Forum
(b) Interest on Security deposit be recalculated as per observation of Forum at Sl. No.6 and should be adjusted in the final bill of the petitioner.
It has been observed therein that the petitioner does not come under the purview of Clause 13 of the agreement as the said clause will be applicable only when guaranteed energy charge settled.
3. The petitioner being dissatisfied with the aforesaid order, has invoked the jurisdiction of Electricity Ombudsman under the provision of Clause 30 of the supply code but the Ombudsman has rejected the appeal vide order dated 21.07.2017 on the ground of limitation since the appeal has been filed after 106 days from the communication dated 28.01.2017 against the order passed by the Forum, Hazaribagh, dated 25.01.2017.
4. Learned counsel for the petitioner has submitted that the Ombudsman has committed gross illegality in not entertaining the appeal by not adjudicating the dispute on its merit rather on technicality, the same has been dismissed and therefore the same needs interference by this Court.
5. While on the other hand Mr. Mukesh Kumar Sinha, learned counsel appearing for the respondents, has submitted that that there is no error in the order passed by the Ombudsman since he being the quasi-judicial authority is to follow the rules/regulations of the guidelines as stipulated under the Supply Code invoked wherein provision has been made to file an appeal within a period of thirty days which period can be extended for a further period of thirty days but it shall not exceed the maximum period of sixty days and hence being the quasi-judicial authority, has not entertained the appeal.
6. This Court in order to adjudicate the issue deem it fit and proper 3 to refer the provision of Clause 14 of the Supply Code which reads hereunder as:-
"The licensee or any consumer aggrieved by an order made by the Forum(s) may prefer an appeal against such order to the Electricity Ombudsman within a period of thirty days from the date of the receipt of the order, in such forum and manner as may be laid down in these Regulations.
Provided further that the Electricity Ombudsman may entertain an appeal after the expiry of the said period of thirty days if sufficient cause is shown for not filing the appeal within that period; but not exceeding a maximum period of 60 days from the date of receipt of the order. Provided further that the Electricity Ombudsman shall entertain no appeal by any consumer, who is required to pay any amount in terms of an order of the Forum, unless the consumer has deposited in the prescribed manner, at least fifty percent of that amount.
Provided further that the Electricity Ombudsman shall entertain no appeal by any Licensee, who is required to pay any amount in terms of an order of the Forum to the Consumer, unless the Licensee has refunded in the prescribed in the prescribed manner, at least fifty percent of the amount."
7. It is evident from the aforesaid provision that the Ombudsman has been conferred with the power to entertain an appeal if filed within a period of 30 days from the date of receipt of the order, the said period of 30 days can be stretchable for a further period of 30 days but that period shall not exceed the maximum period of 60 days from the date of receipt of order, meaning thereby, the Ombudsman can entertain the appeal maximum if filed within a maximum period of 60 days and as such if any appeal would be filed after the period of 60 days, the Ombudsman will seize with the power to condone the delay since not provided under the statute. It needs to refer here that if the Ombudsman would condone the delay it would be said to be exceeding the jurisdiction since not provided power to condone the delay even after expiry of the period of 60 days.
48. It is not in dispute that the provision of Clause 14 of the Supply Code has been given legal shape in pursuance to the provision as contained under Section 181 of the Electricity Act, 2003 and as such the provision as contained under Clause 14 of the Code is having statutory force.
9. The order passed by the Ombudsman by which he has declined to entertain the appeal since the same has been found to be barred by limitation and as such it is to be examined by this Court as to whether the Ombudsman while rejecting the appeal, has committed illegality.
It needs to refer herein that the Electricity Act enacted in the backdrop of dismal performance of various State Electricity Boards and alarming decline in the availability of power necessary for domestic, agricultural, and industrial sectors. Before the enactment of the Electricity Act, the electricity supply industry was governed by the Electricity Act, 1910; the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998. The Electricity (Supply) Act, 1948 mandated the creation of the Electricity Board for every State. The State Electricity Boards had the responsibility of arranging the supply of Electricity in the State.
Over a period of time, the performance of State Electricity Boards deteriorated on account of various factors including their inability to take decisions on tariffs in a professional and independent manner. The Electricity Act, contains the provision of Section 126 for making approval, professional and final assessment against which an appeal is to be filed under Section 127. The alternative mode by way of constituting a forum for adjudicating the dispute arising out of electricity bill has been made out by way of constituting the Consumer Grievance Redressal Forum. The Supply Code has been formulated in view of the power conferred under Section 181 of the Electricity Act, 2003 under which a provision has been made as Clause 14 containing therein the provision to file an appeal by the party who is aggrieved with the order passed by the Forum wherein the period of limitation has been provided which is to be filed within the maximum period of 60 days.
The brief analysis of the scheme of the Electricity Act 5 shows that it is a self-contained comprehensive legislation, which not only regulates generation, transmission and distribution of electricity by public bodies and encourages public sector participation in the process but also ensures creation of special adjudicatory mechanism to deal with the grievance of any person aggrieved by an order made by an adjudicating officer under the Act, except under Section 127 or an order made by appropriate commission.
It is thus evident that the Electricity Act, is a special legislation in the light of this the question of limitation as to whether it can be condoned for which this Court found while going across pertaining the same issue in Sales Tax Act, in the case of Commissioner, of Sales Tax, Uttar Pradesh, Lucknow, Vrs. M/s. Parson Tools and Plants, Kanpur, reported in AIR 1975 SC 1039, wherein at Paragraph-17 and 18 it has been laid down, keeping the nature of Sales Tax Act, which is a special statute has been please to laid down hereunder at Paragraph 79 and 80 the Hon'ble Apex Court, therefore, considering the object, the scheme and language of Section 10 of the Sales Tax Act which do not permit the invocation of Section 14(2) of the Limitation Act, either, in terms, or, in principle, for excluding the time spent in prosecuting proceedings for setting aside the dismissal of appeals in default, from non-computation of the period of limitation prescribed for filing a revision under the Sales-Tax Act.
Similarly in a case pertaining to Central Excise Act, 1944 while considering the case of Commissioner of Customs and Central Excise Vrs. Hongo India Private Limited & Anr. reported in (2009) 5 SCC 791, wherein the Hon'ble Apex Court after taking note of the period of limitation as provided under Section 35 thereof which provides 60 days' time and in addition to the same, the Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35-B provides 90 days' time for filing appeal to the Appellate Tribunal and sub section (5) therein enables the appellate Tribunal to condone the delay irrespective of the numbers of the days, if sufficient cause is shown. Likewise Section 36(EE) which provides 90 days' time for filing revision by Central Government and, proviso 6 to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35-G and reference to the High Court under Section 35-H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference.
In the aforesaid judgment at Paragraph-32 it has been laid down by considering the stipulation made under Sections 35, 35-B, 35-EE, 35-G and 35-H wherefrom it is evident that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order in that pretext it has been held which reads hereunder as:-
"32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days."
The question of provision of Section 29(2) of the Limitation Act, has also been answered in the said judgment wherein at Paragraph-35 it has been held that even stipulation made in the provision of Section 29(2) of the Limitation Act, which contains the word "expressly excluded" would also not be applicable in view of express provision of the Central Excise Act, for ready reference the Paragraph-35 is being referred hereunder as:-
"35. It was contended before us that the words "expressly excluded" would mean that there must be an express 7 reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act, in our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court."
The issue pertaining to the Electricity Act, 2003 wherein also judgment rendered by the Hon'ble Apex Court in the case of Chhattisgarh State Electricity Board Vrs. Central Electricity Regulatory Commission & Ors. reported in (2010) 5 SCC 23, the Hon'ble Apex Court after dealing with the intent, object and the purpose of the Electricity Act, has been pleased to laid down therein by considering the provision of Section 125 of the Electricity Act, that any person aggrieved by any decision or order of the Appellate Tribunal, may file an appeal to the Supreme Court within 30 days from the date of communication of the decision or order of the Appellate Tribunal. Proviso to Section 125 empowers to this Court entertaining an appeal filed within a further period of 60 days, if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days.
The aforesaid Section shows that the period of limitation 8 prescribed for filing an appeal under Section 111(2) and 125, it substantially is different from the period prescribed under the Limitation Act.
The use of expression "within a further period of not exceeding 60 days" in proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days.
It is further laid down therein regarding the applicability of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provision of Section 3 shall apply as if such period were the period prescribed by the schedule, and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law.
The Hon'ble Apex Court in the aforesaid judgment at Paragraph-32 has been pleased to lay down that Section 5 of the Limitation Act, cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory.
10. In the light of the above proposition of law that the provision of Clause 14 of the Supply Code has been appreciated by this Court wherein it has been provided that the licensee or any consumer aggrieved by an order made by the Forum he may prefer an appeal against such order to the Electricity Ombudsman within a period of 30 days from the date of receipt of copy of the order, in such forum and manner as may be laid down in these regulations.
9Provided further that the Electricity Ombudsman may entertain an appeal after the expiry of the said period of thirty days if sufficient cause is shown for not filing the appeal within that period; but not exceeding a maximum period of 60 days from the date of receipt of the order.
Provided further that the Electricity Ombudsman shall entertain no appeal by any consumer, who is required to pay any amount in terms of an order of the Forum, unless the consumer has deposited in the prescribed manner, at least fifty percent of that amount.
Provided further that the Electricity Ombudsman shall entertain no appeal by any Licensee, who is required to pay any amount in terms of an order of the Forum to the Consumer, unless the Licensee has refunded in the prescribed in the prescribed manner, at least fifty percent of the amount.
11. The Ombudsman can entertain the appeal but not exceeding the period of 60 days from the date of receipt of the order and therefore the proposition as laid down by the Hon'ble Apex Court while dealing with the matter pertaining to Sales Tax Act or the Central Excise Act, or the Electricity Act, as referred in the judgment aforesaid.
12. The ombudsman while passing an order impugned by rejecting the appeal cannot said to have committed any illegality and therefore, it is the considered view of this Court that the writ petition by which a writ of certiorari has been directed to be issued for passing the order in exercise of power conferred under Article 226 of the Constitution of India does not warrant any interference in the impugned order since there is no infirmity/perversity or any jurisdictional error.
13. In view thereof, the writ petition fails and is dismissed.
(Sfujit Narayan Prasad, J.) Madhav