Jharkhand High Court
Shivam Builders And Developers vs Jharkhand Urja Vikas Nigam Limited on 25 August, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.08 of 2022
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Shivam Builders and Developers, a Partnership firm having its office at-
Main Road, Chakradharpur, P.O.-Chakradharpur, P.S. Chakradharpur,
District-Singhbhum West, Pin-833 102, Jharkhand, through one of its
partners Mr. Nikesh Singhania, son of Mr. Sushil Singhania, aged about
28 years, resident of-Potka Ward No.19, P.O. and P.S.-Chakradharpur,
District-Singhbhum West, Jharkhand .... .... Appellant/Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited, through its Chairman
cum Managing Director, having its office at Engineers‟ Bhawan,
HEC, Dhurwa, P.O. and P.S.-Dhurwa, District-Ranchi.
2. Jharkhand Bijli Vitran Nigam Ltd, through its Managing
Director, having its office at Engineers‟ Bhawan, HEC, Dhurwa, P.O.
and P.S.-Dhurwa, District-Ranchi.
3. General Manager cum Chief Engineer, Jharkhand Bijli Vitran
Nigam Limited, Jamshepur Area, having its office at Bistupur, P.O. &
P.S.-Bistupur, Town-Jamshedpur, District-Singhbhum East.
4. Electrical Superintending Engineer, Jharkhand Bijli Vitran
Nigam Limited, Electric Supply Circle-Chaibasa, P.O.-Chaibasa,
P.S.-Chaibasa, District-Singhbhum West.
5. Electrical Executive Engineer, Jharkhand Bijli Vitran Nigam
Limited, Electric Supply Division-Chakradharpur, Electric Supply
Circle-Chaibasa, P.O.-Chakradharpur, P.S.-Chakradharpur, District-
Singhbhum West.
6. Assistant Electrical Engineer, Jharkhand Bijli Vitran Nigam
Limited, Electric Supply Division-Chakradharpur, Electric Supply
Circle-Chaibasa, P.O.-Chakradharpur, District-Singhbhum West.
.... ..... Respondents/ Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. M.S. Mittal, Senior Advocate
: Mr. Salona Mittal, Advocate
For the Resp.-JUVNL : Mr. Sachin Kumar, Sr. Standing Counsel
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ORAL JUDGMENT
10/Dated: 25.08.2022 The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 21.12.2021 passed by the learned Single Judge of this Court in W.P.(C) No.3650 of 2020, whereby and whereunder, the writ petition has been dismissed declining to pass positive direction to grant fresh electrical connection to the writ petitioner at the premises situated at Plot No.292, Toklo Road, 368, Near Sai Mandir, Chakradharpur on the ground of availability of efficacious remedy of filing a complaint before the Vidyut Upbhokta Shikayat Niwaran Forum (VUSNF).
2. The brief facts of the case, as per the pleading in the writ proceeding, required to be enumerated, are as hereunder:-
It is the case of the writ petitioner that he has purchased the premises in question on 03.02.2020 from one Pawan Kumar Agarwal. He had applied for fresh electrical connection on 02.06.2020 under commercial services (NDS-II) tariff for a contracted load of 10 KW to be supplied at 400V (three phase) by submitting all supporting documents as well as the requisite fee for the same. The aforesaid application, however, was rejected on 03.09.2020 on the ground that new electric service connection cannot be given for the said premises as there was dues of Rs.78,88,376/- against the erstwhile owner, namely, M/s Pawan Biscuit Company Private Limited as also for the said reason, electric connection of the said premises was disconnected. After the period of three months, the 3 writ petitioner was again applied for fresh electrical connection which was also rejected on the same ground. The writ petitioner has challenged the aforesaid order by filing a writ petition being W.P.(C) No.3650 of 2020 with a direction upon the respondents to grant fresh electrical connection to the writ petitioner‟s premises in question, but, the writ petition was dismissed on the ground of availability of efficacious remedy by way of forum, namely, Vidyut Upbhokta Shikayat Niwaran Forum (VUSNF), which is the subject matter of the instant intra-court appeal.
3. Mr. M.S. Mittal, learned Senior Counsel appearing for the appellant-writ petitioner has assailed the order passed by the learned Single Judge by referring to the definition of "Consumer", as has been defined under Section 2(15) of the Electricity Act, 2003, (hereinafter referred to as "the Act") which means a person who is supplied with electricity. Thus, for a person to be a consumer, he must have an electricity connection.
He has further argued by referring to the provision of Section 42(5) of the Act which provides for establishment of a Forum for redressal of grievances of the consumers. Therefore, a Forum can only be approached by a consumer, i.e., a person with an active electricity connection.
He has also referred to the provision of Section 181(1) of the Act, 2003 which empowers the State Commission to make regulations consistent with the Act, therefore, Section 181(2)(r) gives power to the Jharkhand State Electricity Regulatory Commission 4 (JSERC) to frame regulation under Section 42(5) of the Act, 2003.
4. Mr. Mittal, on the basis of the aforesaid statutory provision has contended that the appellant cannot be considered to be "consumer" within the meaning of the Act, 2003, since, as yet the electrical connection has not been provided, therefore, it is incorrect to take the ground that the Forum is available by way of Vidyut Upbhokta Shikayat Niwaran Forum (VUSNF) and hence, on this ground alone, the impugned order is not sustainable in the eye of law.
He, in order to buttress his argument, has placed reliance upon the judgment rendered by the Hon‟ble Apex Court in Brihanmumbai Electric Supply & Transport Undertaking Vs. Maharashtra Electricity Regulatory Commission (MERC) & Ors., (2015) 2 SCC 438, wherein, it has been held that a person not being a consumer, cannot approach the Consumer Forum.
It has further been contended that the learned Single Judge, has taken different view by placing reliance upon the definition of "complainant under Clause 2(d) of the Jharkhand State Electricity Regulatory Commission (Guidelines for Establishment of Forum for Redressal of Grievances of the Consumers, Electricity Ombudsman and Consumer Advocacy) Regulations, 2020, (hereinafter referred to as "2020 Regulations") which expressly defines "complainant" to include a fresh applicant of electricity, therefore, reference cannot be made to the judgment of the Hon‟ble Supreme Court rendered in Brihanmumbai Electric Supply & Transport Undertaking (surpa). However, the learned Single Judge has failed to appreciate that the 5 Hon‟ble Supreme Court, while interpreting the parent Act, i.e., the Electricity Act, 2003, has laid down the principle that only the consumer who is having the electricity connection can approach the Forum, i.e., Vidyut Upbhokta Shikayat Niwaran Forum, whereas, the learned Single Judge, according to Mr. Mittal, has interpreted a delegated legislation, which is not permissible. The regulations have been framed by the Commission under Section 181 of the Electricity Act by way of subordinate legislation, however, the „consumer‟ has been defined under Section 2(15). It is conjointly read with the provision of Section 42(5), wherein, it has been stipulated that the consumer can raise its grievance before the Forum created under the provision of Section 42(5) of the Act, 2003 therefore, once the parent Act has provided a thing to be done in a particular manner, the subordinate legislation cannot provide the same in a different manner. That having not been appreciated in the right perspective, the impugned order suffers from an error and hence, the same is not sustainable in the eye of law.
5. Per Contra, Mr. Sachin Kumar, learned Sr. Standing Counsel appearing for the respondents has defended the order passed by the learned Single Judge. He has submitted by emphasizing upon the definition of "complainant" as contained under Clause 2(d) of the 2020 Regulations and taking it into consideration, since, the learned Single Judge has passed an order by dismissing the writ petition on the ground of availability of efficacious remedy, which cannot be said to suffer from an error.
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6. We have heard the learned counsel for the parties, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order.
7. The sole dispute raised in the facts and circumstances of the case is to be considered by this Court, i.e., as to whether, the appellant-writ petitioner is having efficacious remedy by approaching to the Vidyut Upbhokta Shikayat Niwaran Forum being a consumer carved out under the provision of Section 42(5) of the Act, 2003 or, the writ petition is maintainable before this Court?
8. This Court, in order to answer the issue is required to refer the factual aspect which is not in dispute.
9. The writ petitioner has purchased the property in question from one Pawan Kumar Agarwal and made an application for new electricity connection on 02.06.2020. The aforesaid property, has been purchased by virtue of a registered deed of sale dated 03.02.2020. The writ petitioner applied for a fresh electrical connection under the commercial services (NDS-II) tariff for a contracted load of 10 KW to be supplied at 400V (three phase).
The application was made through online mode along with all supporting documents and the requisite fee but his application was rejected on 03.09.2020. The writ petitioner again applied for fresh electrical connection, but the same was rejected due to the alleged outstanding electricity charges in respect of the said premises, to be paid by the petitioner‟s predecessor-in-title, namely, M/s. Pawan Biscuits Company Private Limited.
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The writ petitioner, in the aforesaid background, filed writ petition before this Court questioning the decision of the authority concerned in rejecting the application but the same was dismissed by the learned Single Judge on coming to the finding that the writ petitioner is a complainant under the 2020 Regulations which includes in its ambit the consumer of electricity as well as the applicants for new connection.
10. This Court is to consider the issue as to whether the writ petitioner is a consumer within the meaning of Section 2(15) of the Act, 2003 or complainant within the meaning of Clause 2(d) of the Jharkhand State Electricity Regulatory Commission (Guidelines for Establishment of Forum for redressal of Grievances of the Consumers, Electricity Ombudsman and Consumer Advocacy) Regulations, 2020. If the writ petitioner is a complainant within the meaning of Regulations, 2020 then certainly it will have a Forum as carved out under Section 42(5) of the Act, 2003. Further, as to whether it could be treated to be a consumer within the meaning of Section 2(15) of the Act, 2003 even if electricity connection has not been provided? In that view of the matter, whether the writ petitioner can be relegated before the Forum for redressal of his grievance?
11. This Court, in order to answer the aforesaid issue is required to deal with the definition of "consumer" within the meaning of Section 2(15) of the Act, 2003, which reads as under:-
"(15) "Consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other 8 person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be."
It is, thus, evident from bare perusal of the definition of "consumer" as quoted and referred hereinabove which means a person who is supplied with electricity. Thus, being a consumer, there must be an electricity connection supplied in favour of the concerned party.
In this context, it also requires to refer herein the provision of Section 42(5) of the Act, 2003 which provides for establishment of a Forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission, which reads as under:-
"(5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission."
It is, thus, evident that the Forum, created under Section 42(5) of the Act, 2003 is provided to a consumer. Therefore, if the provision of Section 42(5) is required to be read together with the definition of "consumer" as stipulated under Section 2(15) of the Act, 2003, it 9 would be evident that only the consumers in whose favour the electricity connection has been provided is required to approach before the Forum carved out under Section 42(5) of the Act, 2003.
The aforesaid aspect of the matter has been dealt with by the Hon‟ble Apex Court in Brihanmumbai Electric Supply & Transport Undertaking (surpa), where the issue has been discussed taking into consideration the definition of "consumer" within the meaning of Section 2(15) of the Act, 2003 read with Section 42(5). Their Lordships of the Hon‟ble Apex Court have been pleased to hold, as would appear from paragraph-8 and 9 thereof that the Tata Power Company Limited (TPC) was asked to supply electricity to the consumer and as such, it approached to the Regulatory Commission to enforce a distribution licensee obligation under the Act, since, as on that date, the applicant was not the consumer of TPC but wanted to become its consumer and as such, as per the definition of "consumer" under Section 2(15) of the Act, 2003, the respondent no.3, not being a consumer of TPC could not have approached the CGRF i.e., Consumer Grievance Redressal Forum, carved out under the provision of Section 42(5) of the Act, 2003 and accordingly, the Hon‟ble Apex Court has opined that the Regulatory Commission had the requisite jurisdiction to entertain the petition filed by the consumer. For ready reference, paragraph-8 and 9 of the aforesaid judgment are quoted as under:-
"8. This contention was raised primarily on the ground that there was an alternative remedy provided to the consumer to raise his grievances 10 before the Consumer Grievances Redressal Forum (CGRF) established under Section 42(5) of the Act.
Therefore, the consumer should have approached the said Forum instead of filing petition before the Regulatory Commission. This contention is totally misconceived and rightly rejected by the authorities below. As noted above, the petition was filed by the consumer seeking direction against TPC to supply electricity to him. Thus, he approached the Regulatory Commission to enforce a distribution licensee obligation under the Act. As on that date, he was not the consumer of TPC but wanted to become its consumer. Insofar as CGRF is concerned, which each distribution licensee is required to set up under Section 42(5) of the Act, it deals with the grievances of the consumer.
"Consumer" is defined under Section 2(15) of the Act and reads as under:
"2.(15) ... any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be."
9. Thus, Respondent 3 not being a consumer could not have approached CGRF. Further, we find that in Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd. [(2007) 8 SCC 381], this 11 Court has held that the Regulatory Commission has the power to require a licensee to fulfil its obligations under the Act. Thus, we are of the opinion that the Regulatory Commission had the requisite jurisdiction to entertain the petition filed by the consumer. Presumably, for this reason, this contention was pressed half-heartedly before us and given up in the middle."
12. This Court, on the basis of the aforesaid proposition of law as had been laid down under paragraph-8 and 9 is of the considered view that the Consumer Grievance Redressal Forum, carved out under the provision of Section 42(5) of the Act, 2003 can only be approached by the consumer, if the electricity connection is supplied, but in case of an applicant, Forum carved out under Section 42(5) of the Act, 2003 is not available.
However, the learned Single Judge has distinguished the aforesaid judgment taking into consideration the definition of word "complainant" as provided under Regulations, 2020 framed by the Jharkhand Electricity Regulatory Commission in exercise of power conferred under Section 181 of the Act, 2003, which widens the ambit of consumer by including the applicants for new connection in the definition of "complainant". As such, learned Single Judge came to the finding that if a narrow interpretation is given to it, the same will defeat the objective sought to be achieved by the Jharkhand State Electricity Regulatory Commission. Therefore, the writ petitioner, since, is coming under the fold of complainant which also includes the consumer, the Forum created under Section 42(5) of the 12 Act, 2003 would be available to it.
However, this Court is of the view that the learned Single Judge has failed to consider the implication of parent act over the regulation.
13. The position of law is well settled that if there is any inconsistency in between the parent act and the subordinate legislation, the statutory provision as contained under the parent act will always prevail upon the subordinate legislation.
the Electricity Act is a central legislation having been passed by the Parliament, which contains a provision of Section 2(15) defining "consumer". As per the definition, any person who has been supplied electricity energy for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force would be treated to be a consumer and that includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be. Therefore, the definition of "consumer" under Section 2(15) of the Act, 2003 indicates that the aforesaid definition of "consumer" is an exclusive one.
It would be evident from the provision of Section 42(5) of the Act, 2003 by which a Forum has been mandated to be carved out for redressal of grievance of the consumer in accordance with the guidelines, as may be specified with the State Commission. Such 13 Forum is available to the consumer which has been defined under Section 2(15) of the Act, 2003. It is, thus, evident that the Forum within the meaning of Section 42(5) of the Act, 2003 has been carved out for the consumers who may agitate their grievance, i.e., the Forum is to adjudicate the grievance in whose favour the electricity energy has been supplied.
the Act, 2003 also contains a provision, as under Section 181(1) which confers power of State Commissions to make regulations, by notification, but consistent with this Act and the Rules generally to carry out the provisions of this Act. For ready reference, the aforesaid provision reads as under:-
"181. Powers of State Commissions to make regulations.-(1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act."
It is evident that the statutes provide the Commission to make regulation which must be consistent with the Act and the Rules, meaning thereby, the Commission is required to make out regulation strictly in consistent with the Act, but herein, the Commission has formulated the regulation in view of the provision of Section 181 of the Act, 2003. The "complaint" has been defined under Clause 2(e) which means any grievance, in writing made by a complainant, which reads as under:-
"(i) defect or deficiency in electricity supply or service provided by the licensee;14
(ii) Unfair or restrictive trade practices of licensee in providing electricity services;
(iii) Charging of a price in excess of the price fixed by the Commission for supply of electricity and allied services;
(iv) Any error in billing;
(v) Erroneous disconnection of supply;
(vi) Electricity services which are unsafe or hazardous to public life provided in contravention of the provisions of any law or rule in force; or
(vii) Any other grievances related to supply of electricity by the licensee to the consumers except grievances arising under Sections 126, 135 to 139, 143, 152 and 161 of the Act.
(viii) Non-performance in Standards of
Performance, as stipulated under Jharkhand
State Electricity Regulatory Commission
(Distribution Licensee's Standard
Performance) Regulation 2015."
14. This Court on perusal of the definition of "complaint" as under
Clause 2(e) of the Regulations, 2020 has found therefrom that the same refers to the complaint which means any grievance, in writing made by a complainant that:
(i) the defect or deficiency in electricity supply or service provided by the distribution licensee;
(ii) unfair or restrictive trade practice has been adopted by the distribution licensee in providing electricity services;
(iii) the distribution licensee has charged a rate in excess of 15 that fixed by the Commission for supply of electricity and related services.
15. The description which has been furnished as under Clause 2(e) of the Regulations, 2020 reflects that under which circumstances, a complaint is to be filed by the complainant and from the conditions stipulated therein, none of the conditions, according to our considered view reflects that the complainant, in case of not providing electricity connection, also can make a complaint before the Forum.
However, even the same is treated to be correct, then also, the question would be that whether the regulation made in exercise of power conferred under Section 181 of the Act, 2003, by way of subordinate legislation, can be allowed to be prevailed upon the statutory provision, as contained under the Act, 2003, i.e., the definition of "consumer" as given under the provision of Section 2(15) of the Act, 2003.
16. The answer of this Court will be that once the provision has been inserted in the statute, the same will always prevail upon the subordinate legislation, if it is inconsistent with the statutory provision, as would also appear from the provision of Section 181 of the Act, 2003, wherein, it has been stipulated that the Commission will have power to make out regulation but consistent with this Act and the Rules generally to carry out the provisions of this Act.
The Act provides to have a Forum under the provision of Section 42(5) of the Act, 2003 and there the consumer can raised its 16 grievance, meaning thereby, in order to carry out the provisions of this Act, the regulation is required to be formulated in exercising the power conferred under Section 181 of the Act, 2003 and as such, the same must be consistent with the statute, i.e., the parent act and the rules made thereunder. But, herein, the parent act provides the Forum available for consumer as per the definition of "consumer" under the provision of Section 2(15) of the Act, 2003, wherein, there is no reference of complainant in the inclusive definition of the "consumer" as provided under Section 2(15) of the Act, 2003, therefore, the interpretation of the learned Single Judge to the effect that the definition of "complainant" is to be exhaustive in nature and hence, the "consumer" will also be included in the definition of "complainant" and hence, the Forum is available, as has been carved out under Section 42(5) of the Act, 2003 is not a correct interpretation reason being that if the aforesaid contention of the learned Single Judge would be accepted, the implied meaning of the same will be that the subordinate legislation as has been formulated in exercise of power conferred under Section 181 of the Act, 2003 will be allowed to be prevailed upon the statutory provision and in that view of the matter, the definition of "complainant" as provided under Regulations, 2020 will be inconsistent with the definition of "consumer" as provided under Section 2(15) of the Act, 2003.
17. This Court after discussing the facts as also the legal position and taking into consideration the law laid down by the Hon‟ble Apex Court in Brihanmumbai Electric Supply & Transport Undertaking 17 (supra), is of the view that the order passed by the learned Single Judge requires interference.
18. Accordingly, the impugned order dated 21.12.2021 passed by the learned Single Judge in W.P.(C) No.3650 of 2020 is hereby quashed and set aside.
19. In the result, the instant appeal is allowed.
20. Since, the learned Single Judge has not entered into the merit of the issue and the writ petition has been dismissed on the ground of availability of efficacious remedy and since we have held that the writ petition is maintainable, therefore, the matter is required to be heard by the learned Single Judge, on merit.
21. Accordingly, let the matter be placed before the learned Single Judge for adjudication of the issue on merit.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Rohit/-
A.F.R.