Karnataka High Court
Dr. Mr. M.V. Kerudi vs Electricity Ombudsman For The on 7 June, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NOS.109357-109358/2017 (GM-KEB)
BETWEEN
1. DR. MR. V.M. KERUDI,
SON OF LATE MR. MALLESHAPPA,
AGED ABOUT 70 YEARS,
2. MR. S.V. KERUDI,
SON OF MR. V.M. KERUDI,
AGED ABOUT 35 YEARS,
BOTH RESIDING AT:
#922, KERUDI COMPLEX,
ASHOK CIRCLE, RANEBENNUR-581115
DIST. HAVERI, MOB: 9449121976. ...PETITIONERS
(SRI. V. M. KERUDI, PARTY-IN-PERSON)
AND
1. ELECTRICITY OMBUDSMAN FOR THE
STATE OF KARNATAKA
HAVING ITS OFFICE AT
KARNATAKA ELECTRICITY REGULATORY
COMMISSION, 6TH & 7TH FLOOR,
MAHALAXMI CHAMBERS,
NO.9/2, M.G. ROAD,
BENGALURU-560 001.
2. ASSISTANT EXECUTIVE
ENGINEER (ELECTRICIAL),
HUBLI ELECTRICITY SUPPLY COMPANY
2
LIMITED (HESCOM),
O & M SUB-DIVISION
RANEBENNUR-581 115
3. CONSUMER GRIEVANCE REDRESSAL
FORUM (CGRF) OF HESCOM LIMITED,
NEELAGOUDAR COMPLEX,
P.B. ROAD HAVERI. ...RESPONDENTS
(BY SRI. SHIVARAJ P MUDHOL, ADVOCATE FOR R1 & R3
SRI. B.S. KAMATE, ADVOCATE FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDERS DATED 21.10.2016 PASSED BY
THE RESPONDENT NO.1 IN OMB/H/G-115/2011 AND ORDER
BEARING NO.AEE/RNR1/16-17/4366-73 DATED 24.12.2016
PASSED BY RESPONDENT NO.2 THE COPIES OF THE SAID
ORDERS DATED 21.10.2016 AND 24.12.2016 ARE PRODUCED
HEREIN AS ANNEXURE-B AND ANNEXURE-D RESPECTIVELY;
DIRECT THE 2ND RESPONDENT TO REFUND THE EXCESS
AMOUNT OF RS.15,750/- (RUPEES FIFTEEN THOUSAND SEVEN
HUNDRED AND FIFTY ONLY) AT THE RATE OF 12% INTEREST
P.A FROM THE DATE OF REMITTANCE OF THE SAID AMOUNT TO
TILL REALIZATION WHICH IS PAID BY THE PETITIONER;
DIRECT THE 2ND RESPONDENT TO REFUND THE AMOUNT OF
RS.1,17,000/- (RUPEES ONE LAKH SEVENTEEN THOUSAND
ONLY) AT THE RATE OF 12% INTEREST FROM THE DATE OF
REMITTANCE OF THE SAID AMOUNT TO TILL REALIZATION
WHICH IS ILLEGALLY COLLECTED BY THE 2ND RESPONDENT
WHILE SANCTIONING 18 KW OF ADDITIONAL LOAD TO THE 2ND
FLOOR OF "D" BLOCK IN THE YEAR 2008 AGAINST THE
REGULATION 3.1.7(C) OF 2004 REGULATION; DIRECT THE 2ND
RESPONDENT TO REFUND THE AMOUNT OF RS.1,17,000/-
(RUPEES ONE LAKH SEVENTEEN THOUSAND ONLY) AT THE
RATE OF 12% INTEREST FROM THE DATE OF REMITTANCE OF
THE SAID AMOUNT TO TILL REALIZATION WHICH IS ILLEGALLY
COLLECTED BY THE 2ND RESPONDENT WHILE SANCTIONING 10
KW OF ADDITIONAL LOAD TO THE 3RD FLOOR OF "D" BLOCK IN
THE YEAR 2009 AGAINST THE REGULATION 3.1.7 (C) OF 2004
REGULATION; GRANT COST OF THIS PETITION AND ETC.
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THESE WRIT PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The first petitioner, who has appeared as a party-in- person, has filed I.A. No.1/2018 seeking early hearing of the writ petitions. In the circumstances, having regard to the fact that first petitioner is a senior citizen, aged about 70 years, I.A. No.1/2018 has been taken note of and with the consent of learned counsel for respective parties, the writ petitions are heard finally and are disposed of by this order. Second petitioner has not appeared either in person or through an advocate.
2. Petitioners have assailed order dated 21.10.2016 (Annexure-B) passed by first respondent- Electricity Ombudsman for the State of Karnataka as well as the consequential order dated 24.12.2016 (Annexure- D) passed by second respondent-Assistant Executive Engineer (Electrical). Petitioners have also sought refund of the excess amount of Rs.15,750/- which has been 4 collected by the respondent as well as a sum of Rs.1,17,000/- with interest.
3. Petitioners are stated to be the owners of the property which are constructed as Blocks 'A' to 'E'. The controversy in these writ petitions pertain to Block 'D' which is stated to be consisting of ground floor, first floor and second floor. It appears that petitioners have sought additional load of electricity supply to Block 'D' by paying the requisite amount towards augmentation charges. The contention of petitioners is that, collection of augmentation charges was not legal and it was unauthorized. Admittedly, petitioners sought additional load of 3+1 KW for first floor of Block 'D' in the year 2000. The second respondent sanctioned 28KW by bifurcating 14KW each to first and second petitioners, by collecting Rs.28,750/- towards augmentation charges. The contention of petitioners is that the said augmentation charges are not collected in accordance with Clauses 8 and 9 of the Circular dated 18.11.1998 issued by the Electricity Board. Petitioners hence approached the Consumer Grievance Redressal 5 Forum (for short, 'CGRF') with regard to refund of excess augmentation charges paid by petitioners. Said complaint was dismissed by order dated 04.05.2011. Thereafter, petitioners approached Ombudsman, the first respondent herein, who also dismissed the appeal by confirming the order of CGRF on 19.12.2011. The same were assailed in Writ Petition Nos.27065-66/2012. This Court, by order dated 21.04.2016, remanded the matter to first respondent-Ombudsman. Subsequently, Annexure-B, order dated 21.10.2016, has been passed by first respondent-Ombudsman remanding the matter to third respondent. The third respondent heard the petitioners and passed Annexure-D, order dated 24.12.2016. The same are assailed in these writ petitions.
4. I have heard first petitioner, who has appeared as a party-in-person and learned counsel for respondent Nos.1 and 3 and learned counsel for respondent No.2, and perused the material on record.
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5. The contention of first petitioner, who has appeared as a party-in-person, is two-fold: the first is that first respondent-Ombudsman could not have remanded the matter to second respondent-Assistant Executive Engineer with a direction to hear the petitioners and to pass suitable orders. He submitted that this Court had expressly directed the first respondent-Ombudsman to reconsider the matter and pass appropriate orders in accordance with law, and the same did not imply a remand of the matter to second respondent. Second submission is that the Court, in paragraph 9 of its order, has expressly referred to Clause 3.1.7(C) of KERC (Recovery of Expenditure for Power Supply) Regulations, 2004 (for short, 'the Regulations, 2004'), and to consider the same in the context of grievance made out by petitioners. The same has not been considered by first respondent, but the matter has been simply remanded to second respondent. First petitioner has submitted that the petitioners had appeared before the first respondent. The fact remains that the order of second respondent is pursuant to order of 7 remand made by the first respondent-Ombudsman which he had no authority to do so. Therefore, order at Annexure-D is illegal. In the circumstances, first petitioner, who has appeared as a party-in-person, submitted that the impugned orders at Annexures-'B' and 'D' be quashed and the matter be considered afresh.
6. Per contra, learned counsel for respondent No.1 submitted that pursuant to the order passed by first respondent, petitioners appeared before second respondent and order at Annexure-D has been passed by second respondent and, if the petitioners are aggrieved by that order, they have an alternative remedy of approaching third respondent and therefore, they cannot approach this Court directly against the order passed at Annexure-D. He submitted that the petitioners may be relegated to the third respondent for redressal of their grievances vis-à-vis the order passed at Annexure-D.
7. Learned counsel for second respondent submitted that the order at Annexure-D is just and proper; 8 it has been passed pursuant to the order of remand made by first respondent; and it is in compliance with the said order. He submitted that there is no merit in these writ petitions and therefore, the same may be dismissed.
8. Having heard first petitioner who has appeared as party-in-person, learned counsel for respondent Nos.1 and 3 and learned counsel for respondent No.2, I find that the controversy in these writ petitioners, at this stage, is in a very narrow compass.
9. In Writ Petition Nos.27065-27066/2012, this Court, at paragraph 8 of the order, has identified the issue raised by the Appellate Authority-Electricity Ombudsman for its consideration, which reads as under:
"whether the respondent - Assistant Executive Engineer, HESCOM, Ranebennur, had levied and collected excess amount from the appellant while sanctioning power at various points of time?"
At paragraphs 9 and 10, this Court disposed of the writ petitions with the following observations:9
" 9. The Appellate Authority has not applied its mind to the official memorandum dated 08.05.2002 vide Annexure-F, whereunder the specified load of one of the buildings had been enhanced from 14 KW to 21 KW. It has not applied its mind to the fact that as per Clause 3.1.7(c), as long as the requested additional load is within the specified load already sanctioned to the installation, then as per ES & D 2000-01, if the applicant had already remitted the cost of service line at the rates prevailing on the date, there would be no necessity of collecting service line cost for the additional load. Petitioner is fortified in this contention by the internal communication of the General Manager addressed to the Superintending Engineer on 25.08.2008 produced at Annexure-M, wherein reference has been made to the provisions contained in Clause 3.1.7(c). According to the petitioner, if his contentions are accepted, then there would be no necessity at all to collect augmentation and other charges of Rs.1,17,000/- towards supply of 18 KW of additional load during the year 2008 and another sum of Rs.1,17,000/- towards supply of additional load to the third floor during ht year 2009. This aspect of the matter has to be re-considered by the Appellate Authority.
10. Hence, Annexure-A is set aside. The matter is remitted to him to re-consider the same 10 afresh by providing opportunity to the petitioner. Petitioner is directed to appear before the Ombudsman on 12.05.2016 at 3.00 p.m. Writ petitions are accordingly disposed of." On a perusal of the same, what becomes clear is, this Court had expressly stated that first respondent- Ombudsman had not applied his mind to Clause 3.1.7(C) of the Regulations 2004, which reads as under:
"(C) In case of buildings serviced earlier to 25-8-
2005, if the additional load for existing installations or additional installations under common mains is sought and if the total load inclusive of such additional load sought is within the specified load already sanctioned as per ES&D, Code, 2000-01, for which the Applicant has already remitted the cost towards service line at the rates prevailing on that date, then in such cases (1) providing space, transformer, switchgear and associated equipment by the Consumer shall not be applicable (2) No service line cost shall be collected for the additional load."
10. First petitioner has submitted that, if the said regulation is applied to his case, then there was no need 11 for him to pay augmentation and other charges of Rs.1,17,000/- towards supply of 18 KW additional load during the year 2008 and further sum of Rs.1,17,000/- towards additional load sought for the third floor in the year 2009. Therefore, on this aspect, this Court had remanded the matter to first respondent-Ombudsman to give a finding as to whether second respondent was right in collecting the said amounts towards augmentation charges, or whether the petitioners were entitled to refund. Subsequent to remand of this matter by this Court, first respondent-Ombudsman considered the case of the petitioner. Though a detailed order has been passed and reference has also been made to Regulation 3.1.7(C) of the Regulations 2004, at paragraph 6 of his order, nevertheless refers to order dated 04.05.2011 passed by the third respondent and the earlier order of the first respondent dated 19.12.2011, which was, in fact, set aside by this Court, and first respondent-Ombudsman opines as under:
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"12. The order of the CGRF 04.05.2011 and Ombudsman dated 19.12.2011 are perused. The CGRF has passed the order after conducting a detailed spot inspection though one of the members had a dissent note.
13. The Ombudsman in his order dated 19.12.2011 has considered all the issues in detail vide para 35, 36 27 and 38 of his orders. He has considered and debated about the directions of the Superintending Engineer dated 21.01.2006 and the Managing Director and has recorded and observed that the advises given by them were contrary to the prevalent norms of KERC, causing loss to HESCOM.
14. However, on perusal of the records and submissions made by the appellant, there appears to be a slight deviation in the calculation of charges in the light of the norms prevalent then. More importantly the circumstances under which the Superintending Engineer and the Managing Director of HESCOM, gave direction to treat 'D' block as a separate unit is also not forthcoming. They must have had a reason to do so. This needs to be properly checked and ascertained.
15. Hence, all the submission made by the appellant and calculations placed before this Authority calls for a relook of the entire assessment in respect of the installation. More over, one of the 13 members of the CGRF has also recorded in his inspection note saying that D block should be treated as separate unit. In the light of the observation made by the Hon'ble High Court and the submissions made by the appellant before this Authority, it is felt that there is a necessity to consider the plea of the appellant and reassessment is done by the AEE as per the norms prevalent then.
16. Hence the appeal is allowed and the matter is remanded back to the AEE, Ranebennur, with a direction to hear the appellant afresh, by giving reasonable opportunity of time and pass suitable orders at the earliest as per the relevant rules prevalent then."
11. A reading of the order extracted above would make it clear that there is total lack of application of mind by the Ombudsman to the order passed by this Court directing the Ombudsman to decide the controversy and issue raised having regard to Clause 3.1.7(C). The Ombudsman could not have referred to the order of the 3rd respondent dated 04.05.2011 and the earlier order dated 19.12.2011, which are set aside by this Court, and after 14 referring to the said order dated 19.12.2011, in detail, as is evident from para 14 of the impugned order at Annexure-B, he states that " there appears to be a slight deviation in the calculation of charges in the light of the norms prevalent then." On that premise, the matter was remanded to the second respondent-Assistant Executive Engineer, Ranebennur to hear and dispose of the matter in accordance with the prevalent Rules. No doubt, subsequently, the second respondent has heard petitioners and passed the order at Annexure-D, which is also impugned in these writ petitions. But what is of significance is that the order passed by the first respondent at Annexure-B is not in consonance with the directions issued by this Court in Writ Petition Nos.27065- 66/2012 dated 21.04.2016 inasmuch as there is no application of mind by the first respondent-Ombudsman on the applicability of Clause 3.1.7(C) of the Regulations 2004 and as to whether the petitioners were liable to pay additional charges and, if not, whether the petitioners were entitled for refund. There being no decision on that aspect 15 of the matter, first respondent was not right in simply remanding the matter to second respondent to decide the deviation, in the manner as stated above. Therefore, the order of first respondent, being contrary to the directions issued by this Court and beyond the scope of his authority, is illegal and hence quashed. Consequently, the consequential order passed by second respondent as per Annexure-D also stands quashed. The matter is remanded to first respondent-Ombudsman to reconsider the issue raised by this Court in the order dated 21.04.2016 passed in Writ Petition Nos.27065-66/2012, in accordance with the directions given therein and to pass a speaking order.
12. Writ petitions are disposed of in the aforesaid terms.
13. Since first petitioner has appeared as party-in- person and he is the father of the second petitioner and since the respondents are represented by their respective counsel, they are directed to appear before first 16 respondent on 9th July 2018 at 10.30 a.m. without expecting any separate notices from the said authority.
It is needless to emphasize that first respondent shall dispose of the matter bearing in mind Clauses 21 and 22 of the Karnataka Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2004.
In view of the disposal of the writ petitions, I.A. No.1/2018 stands disposed off.
Sd/-
JUDGE Kms