Appellate Tribunal For Electricity
M/S Aditya Industries (Partnership ... vs Himachal Pradesh Electricity ... on 9 September, 2015
Before the Appellate Tribunal for Electricity, New Delhi
(Appellate Jurisdiction)
Appeal No. 73 of 2014 and IA Nos. 142 of 2014 and 197 of 2014
Dated: 09.09.2015
Present: HON'BLE MR. JUSTICE SURENDRA KUMAR, JUDICIAL MEMBER
HON'BLE MR. T MUNIKRISHNAIAH, TECHNICAL MEMBER
In the Matter of:
M/s Aditya Industries (Partnership firm)
Village Rampur Jattan, Kala Amb,
Distt. Sirmour (H.P.)
Through Shri Surinder Jain S/o Shri J.P.Jain,
Partner/Authorized Signatory ... Appellant(s) /Petitioner
Versus
1. Himachal Pradesh Electricity Regulatory Commission
Through its Secretary,
Khalini, Shimla - 171 002
2. Himachal Pradesh State Electricity Board Ltd.
Through its Executive Director (Personnel),
Kumar House,
Shimla - 171004 ... Respondent(s)
Counsel for the Appellant(s) : Mr. Raj Kumar Mehta,
Mr. Abhishek Upadhyay,
Mr. Antaryami Upadhyay
Mr. Ajay Vaidya,
Mr. Elangbam P.S. and Ms. Ishita
C.Dasgupta
Counsel for the Respondent(s) : Mr. Anand K. Ganesan
Ms Swapna Seshadri
Ms. Mandakini Ghosh
Ms. Rinku Gautam for
R.No.2
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A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014
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JUDGMENT
PER HON'BLE JUSTICE SURENDRA KUMAR, JUIDICIAL MEMBER This is an appeal under Section 111 of the Electricity Act, 2003 filed by the appellant/petitioner against the order dated 24.08.2013 (impugned order) passed by the Himachal Pradesh Electricity Regulatory Commission ('State Commission' for short) in Petition No. 181 of 2012 whereby the State Commission has dismissed the petition of the appellant. The appellant filed the aforesaid petition before the State Commission seeking directions to Himachal Pradesh State Electricity Board Ltd. (the R.No.2, herein) to re-do the calculations and overhaul the appellant's accounts by taking into consideration only consumption recorded by the energy meter installed at the appellant's premises and to issue the bills in future on the basis of meter reading recorded by meter installed at the appellant's premises and also to restrain the Electricity Board from raising the monthly bills on the basis of consumption recorded by meter installed at the grid sub-station and also direct the Board to re-fund excess amount so charged since the date of first bill with interest @ 7% per annum. The State Commission, by the impugned order dated 24.08.2013, after hearing the parties, has dismissed the said petition holding that since billing disputes have to be decided by 'the Consumer Forum', but the State Commission alone has got jurisdiction to deal with the stipulations, where non compliance of conditions, the Rules and Regulations by a licensee are reported. The Commission, in the impugned order has further observed that the appellant is unable to pin point or establish non compliance of the Rules and Regulations or any of the conditions by the licensee i.e. the Electricity Board and secondly, apart from this, the Commission does not have original jurisdiction to decide the questions under Section 86 of the Electricity Act 2003 which arise between the licensee and the consumers or the persons other than the generating companies and thirdly, in the absence of any default in complying with the provisions contained in Section 55 of the Electricity Act 2003 or the Regulations made by the Central Electricity Authority (CEA) under section 55(1) of the Act, the Commission cannot invoke the powers provided under Section 55 (3) of the Electricity Act, 2003. Page 2 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH
2. The relevant facts for deciding the instant appeal are as under:
a) that the appellant is a registered partnership firm.
b) that in September, 2005 the electricity connection to the appellant's unit was released with connected load of 3500 KW and contract demand of 3200 kVA sanctioned vide communication No.CEO/M&C-42(SL/2004- 2091-92 dated 24.05.2005 from CE (Commercial) HPSEB Shimla.
c) that the appellant's unit was connected to supply against electricity Account No. AIK-I (LSHT) and meter No. HPS - 34761 under large industrial power supply (LSHT) category of the schedule of tariff.
d) that in July 2006, the additional load was applied by the appellant, sanctioned by the respondent No.2 vide CE (OP) South HPSEB Shimla letter No. CEO/M&C-42(NHN)/2005-3242-43 dated 29.06.2006, and connected to the supply with total connected load of 5000 KW and contract demand of 3200 kVA.
e) that in the aforesaid sanction order dated 24.05.2005, a clause has been incorporated at Sr.No.29 in the load sanctioning memo by the authority sanctioning the load. It states as under:
"as per sales regulation / abridged conditions of supply the metering and billing of consumers provided connection on dedicated feeders shall be done at the grid sub-station from where the supply emanates and for the other consumers it will be in consumer premises."
f) that in accordance with the stipulation made in the load sanction memos dated 24.05.2005 and 29.06.2006 respectively the energy bills have been raised by the respondent Electricity Board and paid by the appellant on monthly basis since the release of connection in the year 2005.
g) that the energy bills are made up as under:
i) Consumption recorded by the energy meter existing at appellant's
premises, say 'X'.
ii) Consumption recorded by the energy meter existing at the grid sub-
station of HPSEBL, say 'Y'.
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iii) Difference of consumption recorded by the meter existing at the
grid sub-station of HPSEBL and the meter existing at appellant's premises Y-X
iv) Total energy billed = X + (Y-X) or Y
h) that in other words, the consumption recorded by the energy meter installed at the respondent No.2's grid sub-station is billed to the appellant. The energy meter installed at the consumer premises is for display purposes only and is not taken into consideration while raising the bills against the appellant's account even while the meter existing at the premises of the appellant is tested, calibrated and sealed by the respondent Board.
i) that the appellant had made repeated requests oral and written including last written request dated 18.10.2012 to the officers of respondent Board for issuance of the bill(s) on the basis of meter reading recorded by the meter existing at the premises of the appellant. But all requests were rejected by respondent Board. The last letter dated 06.11.2012 from the respondent Board depicts the following reasons for rejection:
a) On the declaration of new industrial policy by Government of India, the decision of the load commitment committee of the Electricity Board was conveyed vide letter of CE(Commercial) HPSEB, Shimla, in which the matter regarding the site of the meter installed and the billing was also decided as under:
"The metering and billing of consumers provided connection on dedicated feeders shall be done at the grid sub-station from where the supply emanates and for the other consumers it will be in consumer premises"
b) "Furthermore in the load sanction order No. 2091-92 dated 24.05.2005, clause 29, with regard to doubling of T&D losses, it is clarified that no T&D losses of your independent feeder are being counted for in the circle level T&D losses since the energy sold is being considered from the grid sub-station".
c) As for the decision of the Forum.... In complaint of Amba Metal, it is clarified that on this feeder there are two consumers. The feeder is not dedicated.
Page 4 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH
d) that the grounds for rejection mentioned in the preceding paragraph are illegal, arbitrary, bad in law and against the facts and circumstances of the present case. The methodology adopted by Electricity Board in issuance of the bills, besides being contrary to law, is absolutely capricious, unreasonable, discriminatory and violative of the Electricity Act 2003 and Regulations made there under. The action of the respondent Board is harsh, oppressive and monopolistic causing serious prejudice to the appellant, adversely affecting the financial viability of the appellant's business.
e) That the appellant filed the aforesaid petition being No. 181 of 2012 before the State Commission, as stated above, which has been rejected by the Commission, vide impugned order dated 24.08.2013, concluding that the Commission lacks the jurisdiction to adjudicate upon this dispute. Despite that the Commission was of the view that it has no jurisdiction to decide the matter, the Commission proceeded not only to frame the issues but proceeded to decide the issues without even granting opportunity to the appellant to make its submissions. It is well settled principle of law that prior to deciding the issue, question of jurisdiction has to be decided first.
3. We have heard at length Mr. Raj Kumar Mehta, Mr Ajay Vaidya, the learned counsel for the appellant and Mr. Anand K.Ganesan and Ms.Swapna Seshadri for respondent No.2 and have gone through the material on record.
4. The issues arising for our consideration are :
i) whether the State Commission lacks jurisdiction to adjudicate upon the dispute or make any directions to the Electricity Board?
ii) whether the order dated 29.12.2012 passed by the Consumer Forum for Redressal of Grievances of the Electricity Board consumers in case No. 1515/4/08/032 titled M/s Amba Metals, Kala Amb Vs. HPSEBL and Ors. is fully applicable to the case of the appellant/petitioner in and,
iii) whether the appellant/petitioner is entitled to the benefit of the said order dated 29.12.2012?
5. The following submissions have been made on behalf of the appellant on the issues:
a) That the Hon'ble Supreme Court in Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Ltd. (2007) 8 SCC 381 clearly ruled that Page 5 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH only billing disputes have to be decided by the Consumer's Forum set up under sub-section 5 of section 42 of the Electricity Act 2003 but the State Commission alone has jurisdiction to deal with the stipulations, where non-
compliances of the conditions, Rules and Regulations by the licensee are reported.
b) that once the Commission came to the conclusion that it lacks jurisdiction to adjudicate upon this dispute, the Commission should not have proceeded to decide dispute and that too ex-parte.
c) that if State Commission was of the view that it had no jurisdiction to adjudicate upon this dispute, it is well settled law that prior to deciding other issues, the jurisdictional question / issue has to be decided first. The State Commission cannot be said to be justified to frame the issues and decide them on merits prior to deciding the jurisdictional issue and that too without giving reasonable opportunity of hearing to the appellant.
d) that the respondent Board is not justified in not following the Regulation which provides that the consumer meter shall be installed by a licensee at the consumer premises or outside the consumer premises.
e) that the respondent Board is not justified in not recording the consumption of energy from the meter installed at the appellant's premises when the Regulation provides that the consumer meter shall be installed by the licensee either at consumer premises or outside the consumer premises.
f) that Section 55 of the Electricity Act 2003 dealing with use etc. of meters states as follows :
"(1) No licensee shall supply electricity, after the expiry of two years from the appointed date, except through installation of a correct meter in accordance with the regulations to be made in this behalf by the authority;
Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter;
Provided further that the State Commission may, by notification, extend the said period of two years for a class or classes of persons or for such area as may be specified in that notification.
(2) For proper accounting and audit in the generation, transmission and distribution or trading of electricity, the Authority may direct the installation of meters by a generating company or licensee at such stages of generation, transmission or distribution or trading of Page 6 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH electricity and at such locations of generation, transmission or distribution or trading, as it may deem necessary.
(3) If a person makes default in complying with the provisions contained in this section or the regulations made under sub-section (1), the Appropriate Commission may make such order as it thinks fit for requiring the default to be made good by the generating company or licensee or by any officers of a company or other association or any other person who is responsible for its default."
g) Section 73 of the Electricity Act 2003 deals with functions and duties of authority and provides as under:
"The Authority shall perform such functions and duties as the Central Government may prescribe or direct, and in particular to -
a) advise the Central Government on the matters relating to the national electricity policy, formulate short-term and perspective plans for development of the electricity system and co-ordinate the activities of the planning agencies for the optimal utilisation of resources to subserve the interests of the national economy and to provide reliable and affordable electricity for all consumers;
b) specify the technical standards for construction of electrical plants, electric lines and connectivity to the grid;
c) specify the safety requirements for construction, operation and maintenance of electrical plants and electric lines;
d) specify the Grid Standards for operation and maintenance of transmission lines;
e) specify the conditions for installation of meters for transmission and supply of electricity;
f) promote and assist in the timely completion of schemes and projects for improving and augmenting the electricity system;
g) promote measures for advancing the skill of persons engaged in the electricity industry;
h) advise the Central Government on any matter on which its advice is sought or make recommendation to that Government on any matter if, in the opinion of the Authority, the recommendation would help in improving the generation, transmission, trading, distribution and utilisation of electricity;Page 7 of 35
A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH
i) collect and record the data concerning the generation, transmission, trading, distribution and utilisation of electricity and carry out studies relating to cost, efficiency, competitiveness and such like matters;
j) make public from time to time the information secured under this Act, and provide for the publication of reports and investigations;
k) promote research in matters affecting the generation, transmission, distribution and trading of electricity;
l) carry out, or cause to be carried out, any investigation for the purposes of generating or transmitting or distributing electricity;
m) advise any State Government, licensees or the generating companies on such matters which shall enable them to operate and maintain the electricity system under their ownership or control in an improved manner and where necessary, in co-ordination with any other Government, licensee or the generating company owning or having the control of another electricity system;
n) advise the Appropriate Government and the Appropriate Commission on all technical matters relating to generation, transmission and distribution of electricity; and
o) discharge such other functions as may be provided under this Act."
h) that as per sub-section (e) of Section 73 of the Electricity Act 2003, the authority shall specify the conditions for installation of meters for transmission and supply of electricity. The Central Electricity Authority (CEA) vide its notification No. 502/70/CEA/DP&D made the Central Electricity Authority (Installation and Operation of Meters) Regulations 2006 as required under sub-section (1) of Section 55 and clause (e) of section 73 read with sub- section (2) of section 177 of Electricity Act 2003. These Regulations came into force on 17th March, 2006 when they were published in the gazette of India, Extraordinary, Part -III, Section-IV.
i) that Regulation 1(J) of CEA Regulation 2006 defines "consumer meter" as meaning a meter used for accounting and billing of electricity supplied to the consumer but excluding those consumers covered under Interface Meters. Page 8 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH
j) that Regulation 6(i) of CEA Regulations 2006 provides that the consumer meter shall be installed by the licensee either at consumer premises or outside the consumer premises.
Provided that where the licensee installs the meter outside the premises of the consumer, then the licensee shall provide real time display unit at the consumer premises for his information to indicate the electricity consumed by the consumer.
Provided further that for the billing purpose, reading of consumer meter and not the display unit shall be taken into account;
k) that Regulation 14(2)(a) of CEA Regulations 2006 further provides that the meter reading and recording consumer meters shall be the responsibility of the licensee to record the metered data, maintain database of all the information associated with consumer meters and verify the correctness of metered data.
l) that Clause 14 of the respondent Board's abridged conditions of supply provides that the meter is to be installed at each point of supply on the premises of the consumer. The clause 14 is reproduced as under:
"14. Meters A. Providing of Meter by the Board Correct meter shall be installed, sealed and maintained by the Board at each point of supply on the premises of the consumer and shall be and remain the property of the Board. The Board reserves the right to fix the position of the said meter at an appropriate place on the consumer's premises.
B. Providing of Meter by Consumer The consumer may, if he so elects, cause his own meter duly tested at the Board's laboratory (or tested by the Electrical Inspector), to be Page 9 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH installed, which will be sealed by the Board. In such a case meter rentals shall not be charged from the consumer.
C. Protection of the Meter by the Consumer The said meter, whether belonging to the Board or to the consumer, shall not be connected, disconnected or unsealed by any person other than Board's authorized employee. The consumer shall also use all reasonable means in his power to ensure that no such seal is broken otherwise than by a representative of the Board."
m) that the condition No. 29 of the sanctioned letter dated 24.05.2005 which stipulated that metering and billing of consumer provided connection on dedicated feeders shall be done at the grid sub-station has been added by the load sanctioning authority at his own whim and fad and without referring to the relevant provisions of the Electricity Act 2003, and the Regulations made there under. It has absolutely no legal sanctity being totally inconsistent with the CEA's Regulations and therefore is not sustainable in law.
n) that the State Commission has already discounted and factored all the transmission and distribution losses in the system right up to the consumer meters and allowed the same through tariffs in its various tariff orders right since 2005. Counting the loss for billing purposes from consumers getting supply on dedicated feeders is tantamount to double recovery of loss, once through tariffs and again through individual bills.
o) that the contention of the respondent Board that no T&D loss of appellant's independent feeder is being counted for in the circle level T&D losses since the energy sold is being considered from the grid sub-station, is outrageous and a blatant lie. The State Commission does not distinguish between circle level losses, it takes integrated view of the loss level. Page 10 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH
p) that assuming the meter installed at the appellant's premises is a display meter and the one installed at the grid sub-station is the one outside the premises of the appellant, the one at appellant's premises is not the real time display unit since the two meters would never indicate the same consumption, being installed at some distance and the one at the grid sub-station also recording the losses in that length of the feeder. Regulation 6(i) is unambiguous in that where the licensee installs the meter outside the premises of the consumer, then the licensee shall provide real time display unit at the consumer premises for his information to indicate the electricity consumed by the consumer. Hence, the meter installed at the grid sub-station cannot be termed as the consumer meter by any stretch of imagination. Following the notification of CEA's Regulations 2006, nevertheless, its instruction No.102 and clause 14 of the abridged conditions of supply also provide that the meter shall be installed at the consumer premises.
q) that CEA's Regulations 2006 came into force in 2006. However, sub-section 2(c) of section 185 of the Electricity Act 2003 saves the Indian Electricity Rules 1956 till the regulations under section 53 of the Electricity Act, 2003 are made. These Rules had similar provisions in relation to the metering. All enabling provisions of the repealed laws were similarly saved till new rules and regulations were made.
r) that the Forum for Redressal of Grievances of the electricity Board consumers in Case No.1515/4/08/032 titled M/s Amba Metals, Kala Amb Vs. HPSEBL and Ors. vide order dated 29.12.2012 had directed the Electricity Board that the metering be done at one point and adding all difference etc. be discontinued with immediate effect. The respondent Board's contention that this is not relevant to appellant's case as the Amba Metal feeder is not independent, there being two consumers, is untenable in law since this is tantamount to discrimination. Further the Page 11 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH import of the decision of consumer Forum is more important than the technicalities.
s) that the method adopted by the respondent Board in billing the appellant's account on the basis of reading recorded by the meter installed at the grid sub-station is bad in law and deserves to be quashed and set aside by this Appellate Tribunal.
t) that this Appellate Tribunal should direct the respondent Board to retrospectively re-do the calculations and overhaul the appellant's account by taking into consideration the consumption recorded by the meter installed at the appellant's premises and direct the Board to issue the bills in future on the basis of meter reading recorded by the meter installed at the appellant's premises and further restrain the Board from raising monthly bills on the basis of consumption recorded by the meter installed at grid sub-station and to realize the bill amount raised and further to direct the Board to refund the excess amount so charged from the date of first bill along with interest @ 18% per annum.
6. Per contra, the following submissions have been made on the aforesaid sole issue on behalf of respondent No.2, Electricity Board:
i) that the contention of the appellant that when the State Commission came to the conclusion that it had no jurisdiction to adjudicate upon the dispute or to give any direction under section 55(3) of the Electricity Act, 2003, the State Commission then should have decided the jurisdictional issue first and then only should have proceeded with the dispute on merits, is incorrect.
ii) that when the State Commission heard the matter on 18.02.2013 the Electricity Board had to object to the admissibility of the petition on the ground of law laid down by the Hon'ble Supreme Court in Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Ltd. (2007) 8 SCC 381 wherein the Hon'ble Supreme Court held that only billing disputes need to be decided by the Consumer Forum constituted under section 42 (5-7) of the Electricity Act, 2003. Since the issue raised was related to Sections 55, 86 & 94 of the Electricity Act, 2003 and further to see whether the Electricity Board had violated the provisions of any conditions / stipulations, Rules or Regulations notified by State Commission, the State Commission vide order dated Page 12 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH 11.03.2013 admitted the said petition giving direction to the Electricity Board to file its response within four weeks, listing the matter for further hearing.
iii) that the State Commission has rightly concluded in the impugned order that the appellant could not establish the non-compliance of any conditions, rules or regulations by Electricity Board and further had rightly passed the impugned order dismissing the said petition of the appellant.
iv) that the order XIV Rule 2 of Civil Procedure Code 1908 provides for the court to pronounce judgment on all issues and where the court is of the opinion that the case or part thereof may be disposed of on an issue of law only, it may try that issue first, if the issue relates to the jurisdiction of the court. Therefore, it is open to the court to frame issues and deal with them in accordance with law as held by Hon'ble Supreme Court in its order dated 18.10.2012 in Civil Appeal No.7524 of 2012, PTC India Ltd. Vs. Gujarat Electricity Regulatory Commission. The Hon'ble Supreme Court in this reported case has recently held that since one of the objectives of the new Electricity Act (New Enactment) 2003 is to ensure expeditious adjudication of disputes raised by the parties, there is no warrant for entertaining preliminary/interlocutory objections raised by either party and decide the same by long drawn hearing and by recording lengthy orders. The State Commission and the Tribunal should, while deciding the main matter consider all objections including the one relating to the jurisdiction to entertain the matter. Any attempt by the parties to delay adjudication of the dispute deserves to be deprecated and the State Commission and the Tribunal are not expected to waste their time in dealing with objections of different hues.
v) that the Hon'ble High Court of Andhra Pradesh in A.P. Gas Power Corporation Ltd. Vs. A.P. Electricity Regulatory Commission reported at AIR 2006 A.P. 12 also held that the power is conferred upon the State Commission to act as an effective grievance redressal forum in the matter of generation, distribution, transmission of electricity and tariff fixation and these are the matters which brook no delay. Further held that if at the stage of determination of preliminary objections, the cases are kept pending in the courts the very purpose for which the State Commission is constituted under the Electricity Act 2003 would be lost because under section 86(3) of the Electricity Act 2003, the State Commission shall have to ensure transparency while exercising its powers and discharging its functions when it shall be guided by the National Electricity Policy, National Electricity Plan and Tariff Policy Regulations made by it under section 181 of the Electricity Act, 2003. Page 13 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH In view of the above, Hon'ble Supreme Court and Hon'ble High Court of Andhra Pradesh, there is no infirmity and illegality in the impugned order passed by the State Commission deciding all the issues on merits.
vi) that It is wrong that the appellant was not given any opportunity of hearing or was not heard on merits of the matter. The State Commission heard the matter on different dates which facts are recorded in the order sheet of different dates of the State Commission.
vii) it is wrong that there is any violation of either the provisions of the Electricity Act 2003, the Rules and Regulations framed there under or any license condition of the Electricity Board.
viii) that National Electricity Policy (NEP) of the Government of India, notified on 12.02.2005 states as under:
"5.4.8 The Act mandates supply of electricity through a correct meter within a stipulated period. The Authority should develop regulations as required under Section 55 of the Act within three months.
5.4.9 Act required all consumers to be metered within two years. The SERCs may obtain from the Distribution Licensees their metering plans, approve them, and monitor the same. The SERCs should encourage use of pre-paid meters. In the first instance TOD meters for large consumers with a minimum load of one MVA are also to be encouraged. The SERCs should also put in place independent third-party meter testing arrangements".
ix) That the Central Electricity Authority (Installation and Operation of Meters) Regulations 2006, notified on 17.03.2006, contain various provisions regarding installation and operation of meters. The various definitions are being reproduced as under:
Clause(j) of sub-regulation (1) of regulation 2 defines consumer meter.
(j) 'Consumer Meter' means a meter used for accounting and billing of electricity supplied to the consumer but excluding those consumers covered under Interface Meters;
Regulation 7(2)(a) as amended on 4th June, 2010, providing for ownership and location of meters reads as under:
Page 14 of 35
A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH (2) Consumer meter: (a) The consumer meter shall be installed by the licensee either at the consumer premises or outside the consumer premises:
Provided that where the licensee installs the consumer meter outside the premises of the consumer then the licensee on a request from consumer shall provide real time display unit at the premises of the consumer for his information to indicate the electricity consumed by the consumer:
Provided further that for the purpose of billing, the reading of consumer meter shall be taken into account."
Regulation 14(2) under the heading Meter reading and recording reads as under:
"(2) Consumer meters
(a) It shall be the responsibility of the licensee to record the metered data, maintain database of all the information associated with the consumer meters and verify the correctness of metered data.
(b) The licensee shall maintain accounts for the electricity consumption and other electrical quantities of its consumers.
(c) Brief history, date of installation and details of testing, calibration and replacement of meters shall be maintained by the licensee."
x) That the Himachal Pradesh Electricity Supply Code 2009 contains several provisions regarding meters, which are as under:
Himachal Pradesh Electricity Supply Code, 2009 "Requirement of Meters:-
4.1.1 The licensee will not supply electricity to any person, except through installation of a correct meter in accordance with the Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006 made under Section 55 of the Act.Page 15 of 35
A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH 4.2.1 The licensee will supply the meter and/or metering equipment to the applicant at the time of release of a new connection or at any other time as required by the consumer who will pay the monthly rental for such equipment at rates approved by the Commission and specified in the Schedule of General Service Charges of the relevant Tariff Order. The consumer may, if he so elects, obtain his own meter and/or metering equipment of the make(s) and specifications, as per the Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006 and the same, after getting duly tested and sealed at the licensee's laboratory, be installed by the licensee. In such a case the licensee will not charge any monthly rental for the meter/metering equipment and it shall, after it is permanently removed from the licensee's system, be treated as the consumer's asset.
4.2.2 Meters will be installed at the consumer's premises according to mutual convenience of the licensee and the consumer. The consumer will be responsible for the protection of the meter from theft or damage and he shall promptly inform the licensee about any fault, accident or defect whatsoever, noticed by him.
Provided that if the supply to an HT/EHT Consumer is given from a dedicated feeder for his exclusive use, the meter and metering equipment may be installed at the licensee's sub-station."
The use of words "the meter" and "metering equipment" may be installed at licensee's sub-station given in the proviso 2 Regulation 4.2.2 of the Himachal Pradesh Electricity Supply Code 2009, has been made because sometimes there may be technical constraints to install the meter at the licensees sub-station. Further the use of the word "may" in this proviso gives the discretionary power to the distribution licensee to install meter at or outside premises of the consumer or at the licensees sub-station. Page 16 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH
xi) that the requirement of Para 4.1.1 of the Himachal Pradesh Electricity Supply Code 2009 is that the licensee will not supply electricity to any person except through installation of correct meter in accordance with CEA (Installation and Operation of Meters) Regulations 2006, made under section 55 of the Electricity Act 2003. Thus in this way, the distribution licensee, which is respondent No.2 herein, namely, Electricity Board is bound to supply electricity to any person only through installation of correct meter in accordance with CEA Regulation 2006 framed under section 55 of Electricity Act 2003. It means that the provisions of section 55 of Electricity Act 2003 should be fully complied with for supply of electricity by the distribution licensee to any consumer and the main requirement is to supply only through installation of a correct meter in accordance with CEA Meters Regulations 2006.
xii) that condition 29 of the load sanctioning order dated 24.05.2005 issued by the respondent Electricity Board clearly reads that the meter and billing of consumers providing connection on dedicated feeders shall be done at the grid sub-station from where power supply emanates and for the other consumers it will be in the consumers premises. Since the appellant took a contract demand of 3200 kVA for its manufacturing unit under large industrial power supply category in September 2005 and in July 2006 additional load of 1500 KW was sanctioned which brought the total connected load to 5000 KW, the appellant was provided supply through a dedicated feeder (independent feeder). Being the case of a dedicated feeder, the two meters were installed, one at premises of the appellant and another at the grid sub-station of the Electricity Board. The purpose of installing the meter at the sub-station/grid sub-station of the respondent Electricity Board in case of the dedicate feeder, is to prevent theft of electricity as well as to ensure that the transmission and distribution (T&D) loss should not be more than 2-3% of the energy supplied to the consumers. In the case of the appellant, it was observed that the Page 17 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH difference of recording of energy consumed as per the meter in the appellant's premises and the meter installed at the licensees sub-station was very high as compared to the permissible limit of loss. This indicated that the appellant was drawing load in an unauthorised manner.
xiii) that there is no inconsistency or contradiction between Condition 29 of the load sanction order dated 24.,05.2005 and the provisions of the CEA (Installation and Operation of Meters) Regulations 2006 which clearly provide that the consumer meter can be installed either at the consumer premises or outside the consumer premises. In the case of a large industrial consumer like the appellant, the supply is given from a dedicated feeder for exclusive use of the consumer and the meter can be installed at sub-station of the respondent Electricity Board so long as the real time display of the units consumed is taken into account for billing consumers. In the present case, the consumer meter has been installed at the grid sub-station which records the real time consumption and the billing has been done on the said basis. Therefore, there is no illegality or infirmity on the same.
xiv) that in the present case, the consumer meter has been installed at the grid sub-station and the meter installed at the consumer premises clearly displays the units consumed basis. However, the billing is done on the basis of the consumer meter which has been installed at the grid sub- station. There is no discrepancy in the billing. This practice of putting two meters, one at the grid sub-station and second at the consumer premises is in consonance with paras 4.1.1, 4.2.1 and 4.2.2 of the Himachal Pradesh Electricity Supply Code 2009 which states that if supply to any HT/EHT consumer is given from the dedicated feeders, the meter can be installed at the grid sub-station.
Page 18 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH
xv) Lastly that there is no merit in the submission of the appellant that billing cannot be done on the basis of meter installed at grid sub-station. In fact, the provision was specifically provided in Supply Code 2009 as well as the load sanctioning order to ensure that there is no theft of electricity or unauthorised use of electricity by a consumer.
7. Our discussion and conclusion:
7.1 In the upper part of this judgment we have given details of the facts and circumstances of the matter in hand, and also the relevant provisions of the Electricity Act 2003 and relevant Regulations on the issue before us.
7.2 The appellant/petitioner filed an impugned petition being Petition No. 181 of 2012 before the State Commission seeking direction to the Electricity Board to redo the calculations and overhaul the appellant's accounts by taking into consideration energy consumption recorded by energy meter installed at the appellant's premises and to issue the bills in future on the basis of meter reading recorded by meter installed at the appellant's premises and also to restrain Electricity Board, respondent herein, from raising the monthly bills on the basis of consumption recorded by the meter installed at the Grid sub-station and also direct the Electricity Board to refund excess amount so charged since the date of first bill with interest thereof.
7.3 The State Commission, by impugned order dated 24.08.2013, dismissed the said petition holding that since the billing disputes have to be decided by Consumer Forum and the State Commission alone has got the jurisdiction to deal with the stipulations where non-compliances of the conditions or Rules and Regulations by a licensee are reported. The State Commission, in the impugned order has Page 19 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH clearly observed that the appellant is unable to pin point or establish the non-
compliance of any of the conditions, Rules and Regulations by the licensee, namely the Electricity Board.
7.4 No doubt the appellant/petitioner is a partnership firm and connected to the supply with total connected load of 5000 KW and contract demand of 3200 kVA and thus were released connection under large Industrial Power Supply category (LSHT)of the Schedule of Tariff. Further, undoubtedly in the aforesaid sanction letter dated 24.05.2005 a clause/condition at Sl.No.29 was made stating that as per sales Regulations/abridged conditions of Supply, the metering and billing of consumers provided connection on dedicated feeders shall be done at grid sub- station from where the supply emanates and for other consumers it will be in consumer premises.
7.5 We have given our anxious thoughtful consideration to this condition No.29 of the sanction letter dated 24.05.2005 and found it was a general clause which was being added at the relevant time. It's language depicts that the metering and billing of consumers provided connection on dedicated feeders shall be done at the grid sub-station from where supply emanates and for other consumers it will be in the consumer premises. This condition No.29 appears to be general in nature dealing with all the consumers connected to dedicated feeders and cases of other consumers, hence it would not be reasonable and proper to infer that this condition, in particular, was added in the aforesaid sanction letter of the appellant/petitioner. Moreover, there are two sanctioned letters, one for original load and second for additional load, dated 25.04.2005 and 29.06.2006 respectively, where such condition No.29 was incorporated. When there were no Page 20 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH Rules framed by Central Electricity Authority, which was required to frame regulations in the light of the provisions of Section 55(1) of Electricity Act 2003. 7.6 The relevant provisions for our purpose are given in section 55 of Electricity Act 2003. As per the provisions provided in section 55(1) of the Electricity Act 2003 no licensee shall supply electricity except through installation of a correct meter in accordance with regulations to be made in this behalf by Central Electricity Authority (CEA) which has been mentioned as authority in the said section. Section 55 clearly mentions the word 'authority'. The definition of word 'authority' in definition clause of Electricity Act 2003 is as under:
"Section 2 (6) : "Authority" means the Central Electricity Authority referred to in sub-section (1) of section 70 of Electricity Act 2003. Thus the word 'authority' used in section 55 of the Act means the Central Electricity Act (CEA)."
7.7 The main requirement for application of section 55 of Electricity Act, 2003 is that no licensee shall supply electricity except through installation of a correct meter in accordance with Regulations to be made by Central Electricity Authority. There are no other provisions dealing with the use etc. of meters in the whole Electricity Act 2003. Hence, we are constrained to abide by the provision and terms given in section 55 of Electricity Act 2003.
7.8 We have in detail, above, given the relevant regulations and also regulations framed by Central Electricity Authority. So there is no need to repeat the same here again.
Page 21 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH Further, clause (e) to section 73 dealing with functions and duties of authority of Electricity Act 2003 empowers the Central Electricity Authority to specify conditions for installation of meters for transmission and supply of electricity. The Central Electricity Authority (Installation and operation of meters) framed Regulations 2006 under section 55(1) and section 73(e) read with section 77 (2) of Electricity Act 2003 and these Regulations came into force on 17.03.2006. Thus for our purpose the Regulations framed by Central Electricity Authority regarding installation and operation of meters are very relevant to decide the points in issue.
7.9 The Central Electricity Authority Regulations 2006 define 'consumer meter' as a meter used for accounting and billing of electricity supplied to the consumer but excluding those consumers covered under inter phase meters. Further, Regulation 6 of Central Electricity Authority Regulations 2006 provides that the 'consumer meter' shall be installed by a licensee either at consumer premises or outside the consumer premises, provided that where the licensee installs the meter outside premises of the consumer, then the licensee shall provide real time display unit at the consumer premises for his information to indicate the electricity consumed by the consumer. Further, proviso added is that for the billing purpose, the reading of consumer meter and not the display unit shall be taken into consideration.
7.10 There is no provision in the Electricity Act 2003 or in any Regulations giving the interpretation to the word 'outside the consumer premises'. The word 'at the consumer premises' can reasonably be inferred the place at or near the Page 22 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH consumer premises. The words 'outside the consumer premises' are not giving any certain meaning to these words, leaving it open for various interpretations or meanings. The Central Electricity Authority Regulations 2006 nowhere state that in case of HT or EHT consumers, the metering and billing of the consumers provided connection on dedicated feeders shall be done at sub-station from where the supply emanates. In other words, the Central Electricity Authority Regulations nowhere provide that the licensee is free or at liberty to install the 'consumer meter' in case of consumers provided connection on dedicated feeders, which is meant exclusively for use by the consumer like, the present appellant, at grid sub-station. It appears that just on the basis of some decision of the load committee of the Electricity Board this provision of installing meter at the grid sub-station has been added. The purpose for installing the so called consumer meter at the grid sub-station or licensee sub-station, as argued by the learned counsel appearing for the respondent Electricity Board, is to ensure that there is no theft of electricity or unauthorised use of electricity by a consumer.
7.11 The main contention of the Electricity Board supporting installation of appellant's 'consumer meter' connected to the dedicated feeder at the grid sub-station is to provide benefit of electricity as well as to ensure transmission and distribution loss should not be more than 2 to 3% of energy supplied to the consumers. Further contentions is that, in case of the appellant, it was observed that the difference of energy consumed as per the meter in the appellant's premises and as per the meter installed at the licensee or grid sub-station was very high as Page 23 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH compared to the permissible loss limit giving indication that the appellant was drawing load in an unauthorised manner.
7.12 The other contention of the Electricity Board's counsel for installing appellant's meter at the grid sub-station is that the same has been done as per paragraphs 4.2.1 and 4.2.2 of the Himachal Pradesh Electricity Supply Code 2009. We may clearly mention here that the appellant's connection was released in 2005 and added load in 2006 when there was no State Supply Code but even in the absence of Supply Code 2009 the appellant's meter was installed at grid sub- station and a display meter was installed at the appellant's premises. Thus the practice of installing meter at the grid sub-station in case of the appellant was continued even without there being any Electricity Supply Code which came into effect four or five years later and the appellant was charged as per the reading recorded by the meter installed at the grid sub-station. There is no material or documentary evidence on record to show that the appellant/petitioner was drawing load in an unauthorized manner. Further there is no documentary evidence to establish that in the case of the appellant, the Electricity Board observed that the difference of energy consumed as per meter installed in the appellant's premises and the meter installed at licensee sub-station or grid sub- station was very high as compared to the permissible limit of loss. If there was such vast difference in recording of the energy consumed in the two meters of appellant and further the appellant was drawing load or power in an unauthorized manner, the appellant should have, at least, been informed by the Electricity Board at that time along with documentary evidence or the readings of the two Page 24 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH meters. Further, if appellant was drawing load in unauthorised manner then there are no datas produced by the Electricity Board before the State Commission or before this Appellate Tribunal. To meet the eventuality of drawing load in an unauthorised manner by any consumer like the appellant there are many provisions in the Electricity Act 2003 and Regulations framed there under. The reticence of the Electricity Board on these relevant data and facts is very important to indicate that the discretionary powers given to the respondent licensee by virtue of the Himachal Pradesh Electricity Supply Code 2009 have been wrongly and illegally exercised just to harass the appellant/ petitioner who is a consumer, connected to the connected load of 5000 KW and contract demand of 3200 kVA.
7.13 The main emphasis of the learned counsel for the appellant is on the point that the Electricity Board is being doubly benefited by the said practice of installing appellant's meter or so called consumer meter at the grid sub-station because the State Commission has already discounted and factored all the terms and distribution loss in the system right up to the consumer meters and allowed the same through tariffs in its various tariff orders right since 2005 and counting the loss for billing purpose from the consumers getting supply on dedicated feeders is tantamount to double recovery of loss, one through tariffs and again through individual bills which cannot be legally allowed to be done by the respondent Electricity Board. This contention has been strenuously argued by the appellant, that the Electricity Board has not placed any material on record to rebut this contention. The Electricity Board could have produced the record or datas to Page 25 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH show that the appellant is not being doubly charged on this aspect but it has failed to do so.
7.14 The one more contention of the learned counsel for the appellant is that Regulation 6(i) is unambiguous in that where the licensee installs the meter outside the premises of the consumer, then the licensee shall provide real time display unit at the consumer premises for his information to indicate the electricity consumed by the consumer. Hence, the meter installed at the grid sub-station cannot be termed as the 'consumer meter' by any stretch of imagination. Following the notification of CEA's Regulations 2006, nevertheless, its instruction No.102 and clause 14 of the abridged conditions of supply also provide that the meter shall be installed at the 'consumer premises'. 7.15 The other contention of appellant is that the Forum for Redressal of Grievances of the electricity Board consumers in Case No.1515/4/08/032 titled M/s Amba Metals, Kala Amb Vs. HPSEBL and Ors. vide order dated 29.12.2012 had directed the Electricity Board that the metering be done at one point and adding all difference etc. be discontinued with immediate effect. The respondent Board's contention, that this is not relevant to appellant's case as the Amba Metal feeder is not independent, there being two consumers, is untenable in law since this is tantamount to discrimination. Further the import of the decision of consumer Forum is more important than the technicalities. 7.16 The main demand of the appellant/petitioner is that the respondent Electricity Board should be directed to bill the appellant as per the reading regarding Page 26 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH consumption of electricity recorded by the meter installed at the 'consumer premises' and not as per reading recorded at the so called consumer meter installed at the grid sub-station or licensee sub-station because the Forum for redressal of grievances of the consumers of electricity (CGRF) set up under section 42(5) of the Electricity Act 2003, had in a case of two consumers on a dedicated feeder namely in the case of 1515/4/08/032 titled M/s Amba Metals, Kala Amb Vs. HPSEBL and Ors. vide order dated 29.12.2012 had directed the Electricity Board, respondent herein, that the metering be done at one point and adding of differences etc. be discontinued with immediate effect and on the same analogy the Forum's order dated 29.12.2012 is fully applicable to the appellant as the appellant/petitioner is a large industrial power supply category consumer, who is connected to the supply with total connected load of 5000 KW and contract demand of 3200 KVA. The plea of the respondent, Electricity Board that the Forum's order dated 29.12.2012 is not relevant to the appellant's case as the Amba Metals feeder is not an independent feeder and there are two consumers on that Amba Metals feeder is not legally sound and is not acceptable to us. The State Commission has wrongly accepted the plea of the Electricity Board. Such an approach of the State Commission in the impugned order is tantamount to discrimination, which cannot be appreciated because the order of the Consumer Forum is more important than the technicalities extended by the respondent Electricity Board, in the case of the appellant.
7.17 The Consumer Forum of Electricity Board consumers had given order dated 29,12.2012 and in that case there were admittedly two consumers on that feeder Page 27 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH and just on the basis of there being two consumers on that feeder, the Electricity Board is calling it 'not an independent feeder'. Experience and common knowledge in such matters disclose that when on a particular feeder there are two consumers the line loss will be more because they may be drawing electricity at comparatively low voltage as compared to a single consumer on a dedicated feeder connected on such a high load of 5000 KW and contract demand of 3200 kVA. In case of single consumer on dedicated feeder who is connected to the supply with total connected load of 5000 KW and contract demand of 3200 kVA in case of large industrial power category like the appellant, since such a consumer like the appellant has been drawing electricity at very very high voltage then naturally the transmission and distribution losses on that individual feeder will be almost minimal. When the HT or EHT consumers drawing power at a very high voltage draw the power from a transmission line or from any electricity line, the line losses are less / minimal and this aspect of the matter has totally been ignored by the State Commission while passing the impugned order. This is a matter of common practice that when the HT/EHT category consumer draws power at high voltage, the line losses are very very low or minimal. If there are two consumers on the same feeder drawing power at the high voltage, transmission and distribution loss on that line will naturally be higher and more as compared to the case of the appellant.
7.18 The distribution companies / licensees are benefited with EHT consumers because they consume bulk power at less line losses and thereby the distribution companies are benefited with higher revenue / profit due to EHT consumers. Page 28 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH Because of this advantage even in the tariff order determined by State Commission the energy charges for EHT consumers are fixed at lesser rate compared to other HT consumers to 11 kV potential. Further, all the consumers of the distribution licensees share the total T&D losses of the company and hence, the distribution company charging the losses of dedicated feeder is not justifiable.
7.19 The approach of the State Commission in the impugned order appears to be illegal and beyond the canons of settled principles of law which is quite non- appreciable and such approach cannot be encouraged anymore in such sectors like the power sector. The appellant's case in our opinion is fully covered, rather stands on better footing than the case which had been dealt with in the Consumer Forum order dated 29.12.2012. Hence, the appellant is fully entitled to the benefit of the order dated 29.12.2012 passed by the Consumer Forum in the case of M/s Amba Metals, Kala Amb Vs. HPSEBL and Ors. because there is no reason to cause discrimination to the appellant and he should be treated equally particularly when facts and circumstances of the matter appear to be almost identical.
7.20 Admittedly, when the appellant was released connection in the year 2005 and for added load in the year 2006 and when he was connected to the supply to total connected load of 5000 kW and contract demand of 3200 kVA, there were no regulations framed by the Central Electricity Authority, which regulations came into force subsequently. Apart from that at the relevant time there was no Himachal Pradesh Electricity Supply Code 2009 and even in the absence of the Page 29 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH CEA Regulations regarding installation and operation of meters and the said Supply Code, the said condition No. 29 provides for installation of consumer meter of the appellant at the grid sub-station of the licensee in the load sanction letters issued by the Electricity Board to the appellant/petitioner was inserted and that condition was in reality and true sense a general condition that was being incorporated in the load sanction letters to be issued at that time by the Electricity Board. Since the appellant/petitioner at the relevant time needed electricity he was left with no option other than being constrained to agree to the said condition No.29 even though there were no CEA Regulations or State Supply Code Regulations at the relevant time in the year 2005 and 2006. In such a way the large industrial power supply category of HT/EHT consumer viz. the appellant being a big consumer or customer of the Electricity Board connected to such a high load of 5000 kW and contract demand of 3200 kVA should not have been allowed to be subdued by anyone including the Electricity Board and such important condition could not be legally and reasonably inserted just on the basis of some recommendation of the Electricity Board committee. 7.21 We have deeply considered the Regulation 6(1) of CEA Regulations 2006 dealing with Installation and Operation of Meters. There is a proviso attached thereto that if the licensee installs a meter outside the premises of the consumer, it shall provide real time display unit at the consumer premises for his information to indicate the electricity consumed by the consumer. There was a purpose in containing such words in the shape of proviso to a rule and that purpose and intention, as it precisely appears to be, was that the real time display meter Page 30 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH installed at consumer premises was to give information to the said consumer to indicate the electricity consumed by the consumer. Thus the purpose of installation of a display meter is to give information to the consumer about the electricity consumed by him. If there is some difference between the energy recorded at the display meter installed at the consumer premises and at the meter installed at the licensee grid sub-station then the same indicates the loss of T&D in that line, for which in our considered opinion the consumers like the appellant / petitioner cannot be made liable in a legal way to pay. There may be a number of reasons causing T&D losses in any line for which we cannot allow any consumer like the appellant/petitioner before us to be penalized to pay and that too doubly, first in the shape of tariff order and secondly in the shape of determination of T&D loss of the whole circle.
7.22 We may mention here that the time display meter is admittedly calibrated and the dictionary meaning of which is to mark units of measurement on an instrument such as a thermometer so that it can be used for measuring something accurately. If the real time display meter installed at the consumers premises is calibrated one then the energy recorded by that meter should be precisely and exactly the same as the real and actual consumed by the consumer appellant.
7.23 It is alright that the discretion has been given to the distribution licensee namely, Electricity Board to install consumer meter at the licensee sub-station or grid sub- station by the Electricity Supply Code Regulations 2009 but then the discretion should be exercised judicially and judiciously without there being any element of Page 31 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH discrimination to anyone dealing with the same category of consumers in the same way and then there should be no attempt to unreasonably distinguish between the appellant/petitioner and the other two consumers connected on a separate feeder, as we have referred above. We do not find ourselves in agreement with the findings recorded by the State Commission in the impugned order or the submissions raised on behalf of the Electricity Board, respondent No.2 herein, that the purpose of discriminating the appellant's case from other consumers was to ensure that there was no theft of electricity or unauthorised use of electricity by the appellant/petitioner. We do not find any force in the contentions in this regard made on behalf of the Electricity Board. If there was any difference between the readings recorded at the meter installed at consumer premises and the meter installed at the licensee sub-station or grid subub-station and the T&D loss was beyond the permissible limit of 2-3% of the energy supplied to the appellant or the appellant was drawing load in an un-authorised manner, the Electricity Board did not inform the appellant/petitioner about these lapses and no notice in that regard was given by the Electricity Board to the appellant/petitioner in the shape of some warning or caution etc. giving data or details of the difference of energy consumption recorded in the two meters or the facts. Thus these contentions of the Electricity Board are meritless and are hereby rejected.
7.24 The Hon'ble Supreme Court in Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Ltd. reported at (2007) 8 SCC 381 clearly observed that only billing disputes are to be decided by the Consumer Forum set up under the Page 32 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH Electricity Act 2003 but the State Commission alone has complete jurisdiction to deal with the stipulations where non-compliance of condition, Rules and Regulations by the licensee are reported. The case in hand, as we have observed above, the condition No.29 of the load sanction letter issued by the Electricity Board was illegally inserted and the appellant was coerced and constraint to agree to that condition in spite of the fact that there were no CEA metering and operations Regulations or State Supply Code and that too on the basis of recommendations of the Committee of Electricity Board. Thus in this case the State Commission was fully competent to decide the matter of the appellant/petitioner as the non-compliance of the provisions of Electricity Act, conditions, Rules and Regulations by the Electricity Board was reported in the petition with certain prayers.
7.25 Since the matter is an old one and the State Commission has decided the matter on merits including jurisdictional issue, we do not find it appropriate and logical to remand the matter to the State Commission for deciding the said controversy as the appellant/petitioner has been billed and charged since 2005 as per the meter reading recorded in the meter installed at the grid sub-station of the Electricity Board. Further, this is not a fit case of remand, in the light of the facts that the Consumer Forum set up under section 42(5) of the Electricity Act 2003, for redressal of grievances of the Electricity Board consumers in the case No.1515/4/08/032 titled M/s Amba Metals, Kala Amb Vs. HPSEBL and Ors. had directed the Electricity Board, the respondent herein, that metering be done at one point and adding of differences etc. be discontinued with immediate effect Page 33 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH and the said order dated 29.12.2012, in our considered opinion, fully covers the case of the appellant/petitioner. Hence, the order dated 29.12.2012 is applicable to the case of the appellant/petitioner and the appellant/petitioner is fully entitled to the benefit of the said order dated 29.12.2012 of the State Electricity Consumer Forum.
7.26 In view of the above discussions and analysis made by us, the contentions of the appellant/petitioner have force and the respondents contentions are meritless and consequently both the issues are hereby decided in favour of the appellant/petitioner and against the respondent No.2 herein. All the findings and observations made by the State Commission in the impugned order dated 24.08.2013 are hereby set aside and are substituted by the findings recorded by us in this judgment. The appeal is liable to be allowed.
ORDER The appeal is allowed and the impugned order dated 24.08.2013 passed in Petition no. 181 of 2012 by the State Commission is hereby set aside. The Petition No. 181 of 2012, filed by the appellant/petitioner, before the State Commission seeking directions to Himachal Pradesh State Electricity Board Ltd., the R.No.2, herein, to re-do the calculations and overhaul the appellant's accounts by taking into consideration only consumption recorded by the energy meter installed at the appellant's premises and to issue the bills in future on the basis of meter reading recorded by meter installed at the appellant's premises and also to restrain the Electricity Board from raising the monthly bills on the basis of consumption recorded by meter installed at the grid sub-station and also direct the Board to re-fund excess amount so charged since the date of 2005 is allowed with interest @ 5% p.a. The respondent No.2 HPSEBL is accordingly Page 34 of 35 A.No.73 of 2014 & IA Nos. 142 of 2014 and 197 of 2014 SH ordered. The State commission, Respondent No.1, is further directed to ensure compliance of this order.
Both the Interlocutory Applications, IA No. 142 of 2014 praying for interim directions, pending appeal as well as IA No. 197 of 2014 due to having been infructuous are hereby disposed of.
There is no order as to costs.
Pronounced in the open court on this 09th September, 2015.
(T. Munikrishnaiah ) ( Justice Surendra Kumar )
Technical Member Judicial Member
REPORTABLE / NON-REPORTABLE
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