HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 A.F.R. Case :- MISC. SINGLE No. - 6114 of 2012 Petitioner :- Pachimanchal Vidyut Vitran Nigam Ltd. Thru Exec. Engineer &A Respondent :- Electricity Ombudsman Iiird Floor Neda Bhawan & Others Counsel for Petitioner :- Amarjeet Singh Rakhra Counsel for Respondent :- Tanveer Ahmad Siddiqui Hon'ble Devendra Kumar Upadhyaya,J.
Heard Shri Amarjeet Singh Rakhra, learned counsel for the petitioners, Shri Bidhan Chandra Rai and Shri Tanveer Ahmad Siddiqui, learned counsel for appearing respondent no.3.
These proceedings instituted under Article 226 of the Constitution of India seek to impeach the order dated 18.05.2012, passed by the Electricity Ombudsman, whereby the representation preferred by the petitioner against the order dated 04.05.2011, passed by the Consumer Grievance Redressal Forum, Bareilly Region, Bareilly was rejected. The Ombudsman while rejecting the representation preferred by the petitioners has held that in view of law laid down by this Court in the case of Dakschinanchal Vidut Vitran Nigam Ltd. vs. Vidut Lokpal and others, [Writ Petition No.4237 (M/S) of 2008], the representation preferred by the petitioner, which is a Distribution Licensee, was not maintainable under Section 42 (6) of the Electricity Act, 2003 read with Regulation 8 of UPERC (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007.
The primary contention of the learned counsel appearing for the petitioners, while assailing the validity of the said order dated 18.05.2012, passed by the Electricity Ombudsman, is that the finding recorded by the Ombudsman to the effect that the representation against the order passed by the Forum was not maintainable, is based solely on the judgment passed by this Court dated 06.01.2012 in the case of Dakschinanchal Vidut Vitran Nigam Ltd.(supra), which is contrary to a Division Bench judgment of this Court dated 15.04.2011 in the case of M/s Jindal Poly Films Ltd. vs. U.P. Electricity Regulatory Commission, Lucknow and others, [Writ Petition No.3456 (M/B) of 2011].
The submission, thus, is that the Ombudsman while passing the impugned order has erred in law in not appreciating the fact that the judgment rendered by this Court by Hon'ble Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) was in ignorance of the Division Bench judgment of this Court dated 15.04.2011 in the case of M/s Jindal Poly Films Ltd. (supra) and hence, rejection of the representation made by the petitioner observing in the impugned order that the same is not maintainable, is not sustainable. It has, thus, been further contended by the learned counsel for the petitioners that since, admittedly, the order passed by the Forum was an ex-parte order and the petitioner-Distribution Licensee has all along been denied opportunity of being heard in the matter, it will be appropriate to set aside the order passed by the Electricity Ombudsman and remand the matter back to the Ombudsman for decision of the representation afresh. He has also stated that it will also be appropriate that the rest of the preliminary objections raised by the respondent no.3-Consumer may also be directed to be decided by the Ombudsman, however, he has raised serious objections about the findings recorded by the Ombudsman as regards the maintainability of the representation by and on behalf of the Distribution Licensee.
Strenuously opposing the pleas raised by the learned counsel for the petitioners, learned counsel appearing for the respondent no.3 has submitted that this petition itself is not maintainable on the ground that the Consumer-Cold Storage is situated in an area which falls within the territories of the Distribution Licensee, namely, Madhyanchal Vidut Vitran Nigam Ltd. and not Pachimanchal Vidut Vitran Nigam Ltd. He has, thus, submitted that Tehsil-Gunnaur, where the Cold-Storage in question is situated, was earlier part of district Budaun, however, on creation of a separate district known as district of Sambhal (Bheem Nagar) w.e.f. 23.07.2012, Gunnaur Tehsil became part of newly created district of Bheem Nagar, but there being no corresponding variation in the terms of licence issued to the Madhyanchal Vidut Vitran Nigam Ltd. and also to the Pachimanchal Vidut Vitran Nigam Ltd., the entire territory of Gunnaur Tehsil would remain part of the territory of the Madhyanchal Vidut Vitran Nigam Ltd. and not that of by Pachimanchal Vidut Vitran Nigam Ltd. In this view, it has been contended that this petition itself is not maintainable which has been filed by Pachimanchal Vidut Vitran Nigam Ltd. through its Executive Engineer. Even in respect of the second petitioner i.e. the Executive Engineer, Electricity Distribution, Chandausi, Sambhal, an objection has been raised by the learned counsel for the respondent no.3 that the Executive Engineer is not a juristic person, who can be said to be vested with an authority to take up any matter or cause on his own or on behalf of the Distribution Licensee to the Courts or Tribunals.
Learned counsel appearing for the respondent no.3 has also submitted that notwithstanding the judgment dated 15.04.2011 of the Division Bench of this Court in the case of M/s Jindal Poly Films Ltd., (supra), since by a latter judgment rendered by Hon'ble Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd., Regulation 8 of the Regulations 2007 has been declared ultra vires of Section 42 (5) and Section 42 (6) of the Electricity Act, 2003, hence, they would no more be read as being present on the statute book and as such there is no illegality in the order passed by the Electricity Ombudsman holding that after the provisions of Regulation 8 were declared ultra vires by the judgment of this Court in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) the representation (appeal) preferred by or on behalf of the Distribution Licensee was not maintainable.
Shri Rakhra, learned counsel appearing for the petitioners repelling the aforesaid objections raised by the learned counsel appearing for the respondents no.3, has submitted that as regards the other preliminary objections raised by the respondent no.3, it would be appropriate that the matter be remanded to the Ombudsman for consideration of the said preliminary objections. He, when refers the other preliminary objections, means the preliminary objections raised by the respondent no.3 other than the one relating to maintainability/non-maintainability of the representation under Section 42 (6) of the Act read with Regulation 8 of the Regulations, 2007 by the Distribution Licensee.
Considering the submissions made by the learned counsel for the respondent no.3 based on the judgment of Hon'ble Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra), Shri Rakhra has submitted that the judgment in the said case by Hon'ble the Single Judge, though was delivered at a later point in time, however, it appears that the judgment of the Division Bench of this Court in the case of M/s Jindal Poly Films Ltd.(supra) escaped the attention of Hon'ble the Single Judge. He has, thus, stated that the judgment in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) by Hon'ble Single Judge is per incuriam having been rendered in ignorance of the Division Bench judgment in the case of M/s Jindal Poly Films Ltd.(supra).
Having heard the learned counsel appearing for the petitioners as well as learned counsel for the respondent no.3, I now proceed to examine the rival submissions.
The respondent no.3 is a consumer of electricity having its Cold-Storage and Ice Factory situated in Gunnaur, which a Tehsil Headquarter. Gunnaur Tehsil was earlier part of district Budaun and subsequently on re-organization of the Districts, Gunnaur Tehsil became part of District-Sambhal (Bheem Nagar) with effect from 23.07.2012. Madhyanchal Vidut Vitran Nigam Ltd. was given a Distribution Licence on 21.01.2010, according to which, the area of supply of electricity would include the districts mentioned in Schedule-1 of the said licence which includes district-Budaun.
The Distribution Licence is issued by the appropriate Commission (in this case, Electricity Regulatory Commission, Uttar Pradesh) under Section 14 of the Electricity Act, 2003. Section 12 of the Electricity Act, 2003 prohibits any person to transmit or distribute or undertake trading in electricity except when he is authorized to do so by a licence to be issued under Section 14 or if there is an exemption under Section 13. It is in terms of the requirement of Section 12 that under Section 14 the Distribution Licences are granted. Section 17 of the Act provides that no licensee will be permitted to undertake any transaction to acquire the utility with any other licensee or to merge his utility of any other licensee except with the prior approval of the appropriate Commission. Section 18 of the Act permits the appropriate Commission, on an application of the licensee or even otherwise, to make alterations and amendments in the terms and conditions of the licence. The proviso appended to Section 18, however, states that no such alteration or amendment is permissible except with the consent of the licensee unless such a consent has been reasonably withheld in the opinion of the Commission. Section 19 of the Act empowers the Commission to revoke a licence under certain conditions.
The submission of learned counsel appearing for the respondent no.3 is that on inclusion of Tehsil-Gunnaur in the newly created district of Bheem Nagar there will not be any automatic change in the area of supply mentioned in Schedule-1 appended to the licence issued to Madhyanchal Vidut Vitran Nigam Ltd. on 21.01.2010. He has, thus, contended that similarly there will be no automatic change in the area of supply of Pachimanchal Vidut Vitran Nigam Ltd., the petitioner here in. His submission is that unless and until the terms of the licence are altered or varied to exclude certain part of the territories of the erstwhile district- Budaun including territories of Tehsil-Gunnaur, the area of supply of the entire territories of district- Budaun including Tehsil-Gunnaur (irrespective of its inclusion in the newly created district of Bheem Nagar) shall remain with the Madhyanchal Vidut Vitran Nigam Ltd. as prescribed in Schedule-1 appended to the licence dated 21.01.2010. In this view, submission is that the area of supply of Tehsil-Gunnaur being still intact with Madhyanchal Vidut Vitran Nigam Ltd. in terms of the licence dated 21.01.2010, the present petitioner, namely, Pachimanchal Vidut Vitran Nigam Ltd. does not have any locus either to file the representation before the Ombudsman or the instant writ petition before this Court.
The necessity of considering the aforesaid issue relating to the locus of Pachimanchal Vidut Vitran Nigam Ltd. to file the instant writ petition will be examined later in this judgment.
The plea of the learned counsel appearing for the respondents that in view of the judgment of this Court in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra), once the Regulation 8 has been held to be ultra vires, the same would no more be available on the Regulations as such irrespective of the judgment of the Division Bench in the case of M/s Jindal Poly Films Ltd. (supra) as on today the judgment in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) holds the field and the Ombudsman does not have any power or jurisdiction to hear any appeal or representation under Section 42 (6) of the Act filed or preferred by or on behalf of a Distribution Licensee is erroneous for the reason which follows.
The issue as to whether the appeal or representation before the Ombudsman against the order passed by the Forum by or on behalf of a Distribution Licensee is maintainable or not was a point which was directly in issue before the Division Bench in the case of M/s Jindal Poly Films Ltd.(supra). The Division Bench while discussing the matter has clearly stated that while assailing the provisions of clause 8.1 (1) of the Regulations, 2007, learned counsel for the petitioners therein had submitted that the said Regulations have travelled beyond the ambit and scope of sub section 5 and sub section 6 of Section 42 of the Act. The issue, thus, raised before the Division Bench was based on sub section 6 of section 42, where the word 'Distribution Licensee' does not occur. Sub Section 6 of Section 42 only states that any 'consumer' who is aggrieved by non-redressal of his grievances by the forum may make a representation for redressal of his grievances to the Ombudsman who is to be appointed or designated by the Electricity Regulatory Commission. The submission made before the Division Bench which can be inferred from the complete reading of the said judgment dated 15.04.2011 was that Regulation 8 of the Regulations, 2007 permits an appeal/representation to be made by the Distribution Licensee as well besides the consumer, though sub section 6 permits only a 'consumer' to make a representation or file appeal before the Ombudsman and hence, the Regulations, which are admittedly, a piece of subordinate legislation, are in conflict with sub Section 6 of Section 42 and hence, they are ultra vires of the said provision of the Act.
From a perusal of the judgment rendered by this court by Hon'ble the Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) also it can easily be inferred that the issue before Hon'ble the Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) was the same as the issue considered and decided by the Division Bench in the case of M/s Jindal Poly Films Ltd. (supra).
What is noticeable is that though the judgment rendered in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) is at a later point of time, however, the division Bench judgment of this Court in the case of M/s Jindal Poly Films Ltd. (supra) was neither cited nor referred to during the course of the arguments before Hon'ble the Single Judge and hence, the said judgment of the Division Bench in the case of M/s Jindal Poly Films Ltd. (supra) has escaped attention of Hon'ble Single Judge.
On the issue as to whether remedy of appeal/representation is available to a Distribution Licensee before the Ombudsman, the judgment of Hon'ble Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) thus, stands in conflict with the Division Bench judgment in the case of M/s Jindal Poly Films Ltd.(supra).
Detailed arguments have been advanced by the learned counsel appearing for the petitioners as well as learned counsel appearing for the respondent no.3 as to what would constitute a judgment to be per incuriam. It has been contended by the learned counsel for the respondent no.3 that any judgment rendered by a court of law can be said to be per incuriam if it has been rendered in ignorance of or without noticing any statutory provision of an enactment or rules and regulations , however, if the judgment is said to have been rendered in ignorance of an earlier judgment rendered by a larger Bench, the judgment rendered by the Bench comprising of less number of judges cannot be said to be per incuriam.
Shri Rai, learned counsel for the respondent no.3 has contended that the effect of striking down of any provision will be that it never came on the statute book and is of no consequence to any body. He has cited the case decided by this Court in support of his submission reported in [2003 (1) AWC 787, Paresh Kumar Yadav vs. State of U.P. and others.
There have been various occasions for this Court as well as for Hon'ble Supreme Court where the concepts of the binding precedents, a judgment being per incuriam and sub silentio etc. have been considered. In the case of Rattiram and others vs. State of Madhya Pradesh an others, reported in[(2012) 4 SCC 516], Hon'ble Supreme Court has summarized the law relating to binding nature of precedents of the pronouncements of law by a Court. Their Lordships in the said judgment have categorically held that pronouncement by a Bench is binding on a co-equal Bench and further that the judgment rendered in ignorance of judgment of earlier Bench of co-equal strength will attract the principle of per incuriam. The relevant discussions about the nature of the binding precedents and concept of per incuriam in the aforesaid case of Rattiram (supra) have been made by their Lordships of Hon'ble Supreme Court in paragraphs 26, 29, 32 and 33, which are quoted hereinunder:-
"26. In Union of India vs. Raghubir Singh the Constitution Bench, speaking through R.S. Pathak, C.J. Has held thus:-
"28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court".
29. Thus viewed, the decision in Bhooraji was a binding precedent, and when in ignorance of it subsequent decisions have been rendered, the concept of per incuriam would come into play.
32. In State of U. P. v. Synthetics and Chemicals Ltd. a two-Judge Bench adverted in detail to the aspect of per incuriam and proceeded to highlight as follows: (SCC pp.162-63, para 40)
40.`Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.
33. Recently, in Siddharam Stlingappa Mhetre v. State of Maharashtra, while addressing the issue of per incuriam, a two-Judge Bench, speaking through one of us (Dr. Bhandari, J.), after referring to the dictum in Bristol Aeroplane Co. Ltd. and certain passages from Halsbury's Laws of England and Raghubir Singh, has stated thus: (Siddharam case, SCC p. 743, paras 138-39)
138. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia's case which has comprehensively dealt with all the facets of anticipatory bail enumerated under under Section 438 of Code of Criminal Procedure. Consequently, judgments mentioned in paragraphs 124 and 125 of this judgment are per incuriam.
139. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength."
Hon'ble Supreme Court yet in a latest judgment in the case of Chauhrya Tripathi and others vs. Life Insurance Corporation of India and others, reported in [(2015) 7 SCC 263] has reiterated and followed the law laid down in the case of Siddharam (supra). Para 16 of the said case in the case of Chauhrya Tripathi is extracted hereinbelow:
"16. As we find, the said judgment R. Surresh has been rendered in ignorance of the ratio laid down by the Constitution Bench in H.R. Adyanthaya and also the principle stated by the three-Judges Bench in Mukesh K. Tripathi that the decision in S.K. Verma is not a precedent, and hence, we are compelled to hold that the pronouncement in R. Suresh is per incuriam. We say so on the basis of the decisions rendered in A.R. Antulay vs. R.S. Nayak, Punjab Land Development and Reclamation Corpn. Ltd. vs. Labour Court, State of U.P. vs. Synthetics and Chemicals Ltd. And Siddharam Satlingappa Mhetre vs. State of Maharashtra"
Reference in this regard may be had to yet another judgment of a Full Bench of this Court in the case of Smt. Maya Dixit and others vs. State of U.P. and others, [Civil Misc. Writ Petition No.34179 of 2010], wherein it has clearly been held that an issue of conflict between two judgments of coordinate Benches can only arise if there is conflict in the ratio decidendi of the judgments of the "coordinate Benches". The corollary which follows is that in case of conflict between a judgment rendered by a Bench of larger number of judges and the judgment rendered by a Bench of less strength, it is the judgment rendered by the larger Bench which is binding. Para 19 of the said judgment in the case of Smt.Maya Dixit (supra) runs as follows:-
"19. Insofar as the 3rd question is concerned, it is now settled law that an interim order does not decide the issue in the petition finally. Interim orders are normally based on a prima facie finding. No ratio decidendi can be culled out from an interim order. An issue of a conflict between two judgments of coordinate Benches can only arise if there is a conflict in the ratio decidendi of judgments of the coordinate Benches. If a learned Bench has passed an interim order which, according to the party, could not have been passed, the remedy for such a party would be to take recourse to the remedy of law which it may have. The issue whether the same has been settled by a Bench of the Court sitting at Lucknow or the principal seat at Allahabad is immaterial. A learned Bench can only refer a matter if it finds that there is a conflict between the ratio of judgments by two Benches of coordinate jurisdiction or if it finds that it cannot agree with the view taken by another Coordinate Bench. In our opinion, therefore, the third question as raised also could not have been referred. "
In the light of the aforesaid discussion and having regard to the judgments referred to herein above in the proceedings paragraphs, I have no doubt in my mind to hold that irrespective of the fact as to whether the judgment rendered by Hon'ble Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. [Writ Petition No.4237 (M/S) of 2008] is per incuriam or not, the judgment rendered by the Division Bench in the case of M/s Jindal Poly Films Ltd. is biding on this Court. From a perusal of the aforesaid two judgments, one rendered by Division Bench in the case of M/s Jindal Poly Films Ltd. and the other rendered by Hon'ble Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra), it can easily be inferred that the point in issue involved in both the cases was the same and the point was as to whether an appeal under Section 42 (6) read with Regulation 8 of the Regulation, 2007 would be maintainable by or on behalf of a Distribution Licensee or not. The issue, thus, was as to whether regulation 8 which permits the Distribution Licensee to prefer appeal or make representation before the Ombudsman against the order of the forum is ultra vires of Section 42(5) and 42(6). The Division Bench has clearly held that Regulation 8 is intra vires of the Electricity Act whereas Hon'ble Single Judge has held that the regulation 8 of the Regulations, 2007 is ultra vires of Section 42 (5)&(6) of the Electricity Act, 2003.
I have no room of doubt in my mind that even though the judgment rendered by Hon'ble Single Judge in the case of Dakschinanchal Vidut Vitran Nigam Ltd. was delivered at a later point of time, however, in view of the Division Bench Judgment in the case of M/s Jindal Poly Films Ltd. (supra), I have no option but to agree with the said judgment of the Divion Bench not only because the Division Bench judgment escaped the attention of Hon'ble Single Judge while delivering the judgment in the case of Dakschinanchal Vidut Vitran Nigam Ltd., but also because the judgment rendered in the case of M/s Jindal Poly Films Ltd. (supra) is by a larger Bench which is binding.
In view of above, I am unable to agree with the submissions made by the learned counsel appearing for the respondent no.3 as regards the binding nature of the judgment rendered by this Court in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) . The submission made by respondent no.3 that the Division Bench judgment is not binding on the ground that once the Regulation 8 was declared to be ultra vires, it would stand struck off from the statute and will be of no avail to any person, is thus, misconceived. The judgment in the case of Dakschinanchal Vidut Vitran Nigam Ltd. (supra) is not a binding precedent, though the same may be binding between the parties to the said case, unless it is varied by any higher Court or by a larger Bench.
Coming to the issue relating to the maintainability of the representation/appeal by and on behalf of the present petitioner i.e. Pachimanchal Vidut Vitran Nigam Ltd., in my considered opinion this issue need not be gone into at this juncture for the reason that the issue has yet not been taken up or considered or decided by the Ombudsman, though there was a direction issued by this Court on 29.09.2012 in Writ-C No.10771 of 2012, wherein it was observed that the electricity Ombudsman may proceed further in the matter only after deciding the preliminary objections raised by the respondent no.3.
In view of the discussions made and reasons given above, the impugned order dated 18.05.2012, passed by the Electricity Ombudsman in Representation No.181 of 2011 is hereby quashed and the writ petition is allowed.
The Ombudsman is directed to consider and decide the representation made by the petitioner in the light of the observations made herein above in the preceding paragraphs. The Ombudsman shall also decide all the preliminary objections raised by the respondent no.3 including the objections regarding the locus of Pachimanchal Vidut Vitran Nigam Ltd. or any Executive Engineer to file the appeal/representation against the order of the Forum. The representation/appeal preferred by the petitioners shall be decided expeditiously, say within a period of eight weeks from the date of production of certified copy of this order.
There will be no order as to costs.
Order Date :- 27.11.2015 akhilesh/-