Allahabad High Court

Executive Engineer, Electricity ... vs The Electricity Ombudsman ... on 11 September, 2014

Bench: Sudhir Agarwal




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
Court No. - 34
 

 
Case :- WRIT - C No. - 1361 of 2014
 

 
Petitioner :- Executive Engineer, Electricity Urban Distribution Division
 
Respondent :- The Electricity Ombudsman (Appellate Authority) And 2 Others
 
Counsel for Petitioner :- Mahboob Ahmad
 
Counsel for Respondent :- Bidhan Chandra Rai
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Mahboob Ahmad, Advocate, for petitioner and Sri B.C. Rai, Advocate, for respondents.

2. This writ petition under Article 226 of the Constitution of India has come up at the instance of Executive Engineer, Electricity Urban Distribution Division, Bamrauli, Allahabad (hereinafter referred to as the "petitioner"), aggrieved by order dated 8.10.2013 (Annexure 7 to the writ petition) passed by "Electricity Ombudsman" (hereinafter referred to as the "Ombudsman"), on a complaint made by Principal, Civil Aviation Training College, Bamrauli, Allahabad (hereinafter referred to as the "Aviation College") challenging demand/levy of charges under the head "Protective Load", since 1.12.2004 to 30.4.2012, and, for refund of the amount paid under the aforesaid head, for the month of May' 2012, and, onwards.

3. The Aviation College is a part of Civil Aviation Department of Government of India. A Communication Training Center was earlier established at Saharanpur wherefrom it was shifted to Allahabad on 16.08.1948. The aforesaid Center started to give Flying and Communication Training which was subsequently added with the training of Air Traffic Controllers and Technical Officers of Civil Aviation Department. Later on Civil Aviation Training Center became part and parcel of National Airports Authority of India which is now renamed as Airports Authority of India. The title of College was also changed to "Civil Aviation Training College" in the year 1990. Therefore, presently the "Aviation College" is part and parcel of Airports Authority of India and its main objective is to fulfill training needs of the Authority.

4. Besides the Training College, it has incidental infrastructures, like, domestic and residential colonies, situate in the College campus as well as in its vicinity. For domestic and residential colony, there is an electricity supply connection no. SC1021/BS. A bulk energy agreement was executed between Aviation College and Purvanchal Vidyut Vitran Nigam Limited (hereinafter referred to as the "PVVNL"), a Distribution Licensee of electricity in eastern U.P. which has its area of operation at Allahabad also, through its Executive Engineer, i.e. the petitioner. The aforesaid agreement was executed for supply of electricity to domestic/ residential colony of Aviation College. An 11 K.V. Sub-station was established by PVVNL, the Distribution Licensee, on the land given by Aviation Department, on lease. This Sub-station was established long before constitution of PVVNL, i.e., during the period of erstwhile body of electricity distribution and supply, i.e., U.P. State Electricity Board, a statutory body constituted under Section 5 of The Electricity (Supply) Act, 1948 (hereinafter referred to as "Act, 1948").

5. The PVVNL charged electricity dues as per the tariff approved by U.P. Electricity Regulatory Commission (hereinafter referred to as "UPERC") in accordance with the provisions of Electricity Act, 2003 (hereinafter referred to as "Act, 2003").

6. It is said that Distribution Licensee did not issue bill demanding "Protective Load" charges from Aviation College but when the audit team raised objection, such a bill was raised as per rates prescribed in Tariff Order. A letter dated 30.8.2012 was issued by Executive Engineer raising a demand of Rs. 9,47,340/- towards "Protective Load" charge from 1.12.2004 and onwards, whereagainst Aviation College filed an objection, vide letter dated 21.9.2012.

7. Accepting said objection, vide letter dated 8.10.2012 demand was modified partly and "Protective Load" charge from 1.12.2004 to 30.4.2012 was withdrawn. The Aviation College was required to pay only the balance amount. Another objection was filed by Aviation College on 18.10.2012 which remained un-replied and unattended. The balance along with surcharge was included in subsequent bills, issued to Aviation college whereagainst it made a complaint to Superintendent Engineer, PVVNL, Allahabad.

8. Thereafter it filed a complaint before Electricity Consumer Grievance Redressal Forum, Allahabad (hereinafter referred to as "ECGRF"). Petitioner filed an objection thereto and ECGRF, vide order dated 7.2.2013, directed parties to get the matter settled in arbitration as per Clause 16 of the agreement dated 27.11.2007 and till then recovery of disputed amount was deferred.

9. Aggrieved by the order dated 07.02.2013 passed by ECGRF, Aviation College preferred a statutory appeal before Ombudsman, which was registered as Appeal No. 26 of 2013. Following and relying on a Division Bench judgment in Writ Petition (Writ-C) No. 2788 of 2013 (Allahabad Inter Prises Vs. State of U.P. and others) decided on 28.2.2013, the Ombudsman decided the matter vide impugned order dated 8.10.2013.

10. The only ground raised before this Court is that under agreement, there was an arbitration clause and, therefore, ECGRF was justified in permitting petitioner to have the matter settled in arbitration, but, Ombudsman committed manifest error in setting aside said order, without finding any illegality in the view taken by ECGRF. It is also submitted that since respondent no. 3 the Aviation College was to be supplied electricity continuously, therefore, demand of "Protective Load" charges was justified.

11. On the contrary, learned counsel appearing for Aviation College, argued that ex facie writ petition itself is not maintainable since Executive Engineer alone himself is not competent to file this writ petition challenging order of Ombudsman when Distribution Licensee i.e. PVVNL itself has not come up to challenge the same. Executive Engineer is only an Officer of Distribution Licensee, a Company registered under Companies Act, owned by State Government. The Executive Engineer itself is not a juristic person, who can sue and be sued. Since order of Ombudsman has not been challenged by Distribution Licensee, the writ petition at the instance of an Officer of Licensee, is not maintainable. He further contended that agreement of supply of electricity containing arbitration clause was not referable in this case for the reason that demand of "Protective Load" was not raised under such agreement. In the Tariff Order for raising demand for "Protective Load", there has to be an option exercised by Consumer himself, but no such option has ever been exercised by Aviation College. There is no agreement between the parties whereby Consumer i.e. Aviation College requested or opted for "Protective Load" and it has been agreed and accepted by Distribution Licensee. No "Protective Load" has been sanctioned by Licensee to respondent no. 3. Therefore, arbitration clause is not attracted in the case in hand. He further contended that in any event, besides arbitration under clause 16 of the agreement; in respect to disputes raised by Consumer, the Distribution Licensee exercising powers under Section 42 (5) (6)(7) of Act, 2003 has created certain dispute redressal bodies where Consumer is entitled to raise his dispute and get the matter settled. When there are more than one Forum, option to avail any of two or more Forums is upon the person to whom such options are available. This is right of election. The mere fact that he, (Consumer), has opted one Forum, would not mean that instead of that Forum, he must have opted another Forum, as suggested by other party. There is no provision in the agreement which ousts jurisdiction of ECGRF, for settlement of dispute raised by Consumer. Therefore, availability of arbitration clause in the agreement, even otherwise, would not oust jurisdiction of ECGRF. It is urged that issue in question is already determined by this Court, finally, but ignoring the same, Distribution Licensee as also ECGRF chose not to settle the issue but continued to keep dispute alive just to harass Consumer. It is this attitude of petitioner, which has been curtailed by Ombudsman by deciding issue on merits, by means of impugned order. The Ombudsman has exercised his statutory power in view of Section 42 (7) of Act, 2003. Therefore, under Article 226, it is not a fit case where this Court must interfere. On the contrary, this writ petition is nothing but a way to harass respondent no. 3 and to encourage frivolous litigation, therefore, must be dismissed with exemplary cost.

12. Having heard learned counsel for parties and perusing the record including the relevant Tariff Orders, as also various authorities cited at the bar, i.e., on behalf of respondent no. 3, I am clearly of the view that this writ petition deserves to fail. My reasons are as under.

13. A copy of supply agreement dated 27.11.2007 has been placed on record as Annexure-1 to the writ petition. Clause-1 thereof clearly shows that Distribution Licensee took upon itself obligation to supply electricity to Consumer regularly, but absolve itself from any liability of damage in case of accidental interruption or stoppage or curtailment or diminution in supply of energy as a result of any order or direction issued by the Government of Uttar Pradesh or resulting from fire, flood, tempest or any accident or from any strike or lock-out of workmen or from any other cause beyond the control of Supplier. It, however, says that Supplier shall make every effort to restore supply as soon as possible.

14. Clause 16 of the agreement dated 27.11.2007, which is the sheet anchor of entire case, set up by petitioner, reads as under:

"(16) If any question or dispute or difference arises between the parties to this agreement as to the interpretation or effect of any provisions or clause herein contained or the construction thereof or as to any other matter in any way connected with or arising out of this agreement or the operation thereof or the rights, duties or liabilities of either party in connection therewith, such question, dispute or difference shall be referred to the Arbitration of the Chairman, U.P. Power Corporation Ltd. or the person nominated by him and the award/decision of the said Arbitrator shall be final and binding upon the parties. In case of any neglect or refusal by the nominee to proceed with the arbitration the Chairman UPPCL may nominate another person in his place to proceed with the dispute as Sole Arbitrator

Provided that if the question, dispute or difference relates to or concerns any dues chargeable to the Consumer in terms of this agreement, no reference to arbitration shall at the instance of such consumer be made till the consumer has either deposited with the Supplier the amount of dues in dispute in cash." (emphasis added)

15. The aforesaid clause in the agreement, from a bare perusal, evident, is very wide. It covers everything which has its origin or any connection with the agreement. It is not in dispute that electricity connection given to respondent no. 3 is pursuant to this agreement. The agreement, therefore, is the foundation of all relationship as supplier and Consumer between the parties. Clause 16 of the agreement covers following type of disputes or differences between the parties:

(a) interpretation of agreement;

(b) effect of any provision or clause in the agreement;

(d) any other matter which in any way is connected or arising out of the agreement;

(e) rights, duties or liabilities of either of parties in connection with the agreement or the operation thereof.

16. The liability to pay electricity charges as per the tariff applicable from time to time is one of the part of agreement as is evident from Clause-7 which reads as under:

"(7) (a) The Consumer shall pay for the supply of electric energy at the rates enforced by the Supplier from time to time as may be applicable to the Consumer.:

(b) The Rate Schedule applicable to the consumer at the time of execution of this agreement is annexed hereto, as Annexure-2 (LMV-1, KVAH Based Tariff).

(c) The Rate schedule above mentioned may, at the discretion of the Supplier, be revised by the Supplier from time to time and in the case of revision, the Rate Schedule so revised shall be applicable to the consumer.

(d) Any levy as Sales Tax, Excise Duty, Electricity Duty or any other charge by whatsoever name called by Central/State Government or other competent authority, on the electricity supplied to the consumer shall also be paid by the consumer."

17. Thus a dispute relating to certain charges raised by supplier, allegedly in accordance with tariff, can be a matter which if raised may be referred to arbitration under Clause 16 of the agreement, in the manner stated therein. This agreement however, nowhere says that it is the only remedy available to Consumer in respect to any dispute or difference raised by him. If such dispute or differences can be raised by him before any other Forum, Clause 16 does not oust such remedy. If there are more than one remedy, the same can be availed by Consumer at his discretion, by his right of election, in accordance with the procedure prescribed pertaining to such remedies.

18. Let this Court may examine whether there is any other Forum available to Consumer to raise a dispute relating to electricity bills/ electricity charges, etc. raised by Licensee.

19. Provisions of electricity namely, laws relating to generation, transmission, distribution, trading, use of electricity etc. are now governed by Act, 2003, enacted to consolidate the laws relating to above subject, i.e. Electricity. It repeals earlier two enactments, namely, Electricity Act 1910 and Electricity Supply Act 1948 and has overriding effect over several other statutes, detailed therein, which is not necessary for the present purpose.

20. The Act, 2003 contemplates constitution and establishment of Regulatory Commissions which is defined as "Appropriate Commission" under Section 2(4) of Act 2003 and reads as under:

"(4) "Appropriate Commission" means the Central Regulatory Commission referred to in sub-section (1) of section 76 or the State Regulatory Commission referred to in section 82 or the Joint Commission referred to in section 83, as the case may be ;"

21. In exercise of power under Section 82 of Act 2003, the State of U.P. had constituted UPERC which exercises all powers which are enumerated in Act 2003. Functions of UPERC, in general, are provided in Section 86. A reading of Section 86 would show that primary purpose of Commission is to determine tariff, generation, supply, transmission of electricity etc.; to regulate electricity purchase and procurement process of Distribution Licensee; to facilitate intra-State transmission and wheeling of electricity; to promote co-generation and generation of electricity from renewable sources of energy; to adjudicate upon disputes between the Licensees and generating companies and to refer any dispute for arbitration; to levy fee for the purpose of the Act; to specify State Grid Code consistent with the Grid Code specified under clause (h) of sub-section (1) of section 79. Section 86(2) empowers the UPERC to advise the State Government on any of the matters including promotion of competition, efficiency and economy in activities, matters concerning generation, transmission, distribution and trading of electricity etc.

22. Section 42 of Act 2003 lays down duty of Distribution Licensee and open access. Sub-sections (5),(6) and (7) of Section 42 impose an obligation upon Distribution Licensee to establish a Forum for redressal of grievances of Consumers in accordance with the guidelines, as may be specified by the State Commission i.e. UPERC in the case and also appointment of an authority known as Ombudsman by UPERC who will have power to hear the matter raised by the Consumer, who is aggrieved by his non-redressal of grievance under sub-section (5). The Ombudsman is also under a statutory obligation under sub-section (7) of Section 42 to settle grievances of Consumer, within such time, and, in such manner, as may be specified by the State Commission, i.e. UPERC.

23. Rights of Consumer for settlement of his dispute in the manner, as contemplated under Sub-sections (5), (6) and (7) of Section 42, are in addition to other modes available to him and not in derogation thereof. Sub-Section (8) of Section 42 reads as under:

"8. The provisions of sub-sections (5),(6) and (7) shall be without prejudice to right which the consumer may have apart from the rights conferred upon him by those sub-sections.

24. Section 181 empowers the State Commission i.e. UPERC to make Regulations. In exercise of power conferred by Section 181 read with Section 42 (5) and (6) of Act, 2003, UPERC has framed U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007 (hereinafter referred to as "Regulations, 2007"). Clause 1.2 of Regulations, 2007 lays down the area of operation and the parties governed by the said Regulations. It reads as under:

"1.2 These regulations shall extend to the whole of the State of Uttar Pradesh and shall apply on the Distribution Licensee engaged in the business of distribution and supply of electricity in the State."

25. Under Clause 3, a Distribution Licensee is under statutory obligation to constitute a Forum (ECGRF) at different locations mentioned in para 3.1 (i) which are as under:

"3.1 (i) Every Distribution Licensee shall, within three months from the appointed date, establish and make operational a Forum in accordance with these regulations at following locations:

(1) Agra Discom; Kanpur, Agra, Jhansi and Chitrakoot;

(2) Meerut Discom; Meerut, Moradabad and Saharanpur;

(3) Lucknow Discom; Lucknow, Bareilly, Faizabad and Devipatan (Gonda);

(4) Varanasi Discom; Varanasi, Allahabad, Gorakhpur, Azamgarh, Mirzapur and Basti;

(5) KESCO; Kanpur;

(6) NPCL; Greater Noida

Provided that in case of more than one Distribution Licensee in an area, the location of the Forum for each subsequent Distribution Licensee shall be the area of supply. (emphasis added)

26. The composition of Forum (ECGRF) is provided in para 3.2 (ii) which consists of three persons as under:

(a) Judicial Member Chairperson

(b) Technical Member Member

27. The jurisdiction of Forum (ECGRF), i.e., matters it shall entertain through a complaint is provided in Clause 5.1, 5.2 and 5.3, which read as under:

"5.0 Jurisdiction of the Forum:

5.1 The Forum shall not entertain a complaint, if it pertains to matters mentioned in Sections 126, 127, 128, 135 to 139, 143, 152 and 161 of the Electricity Act, 2003.

5.2 The Forum shall have the jurisdiction to take up complaints, except those under Regulation 5.1, on an application before it or suo moto if it considers appropriate in the interest of justice.

5.3 The Forum shall not entertain a complaint if it pertains to the same subject matter for which any proceedings before any court, authority or any other Forum is pending or a decree award or a final order has already been passed by any competent court, authority or Forum."

28. Learned counsel for petitioner did not dispute that subject matter of complaint in the case in hand is not covered by matters under Section 126, 127, 128, 135 to 139, 143, 152 and 162 of Act, 2003, therefore, the dispute was entertainable by Forum (ECGRF) under Clause 5.2 of the Regulations, 2007.

29. If during pendency of matter before Forum (ECGRF), there is a settlement between the parties, Clause 7.2 provides that the Forum may decide complaint in terms of settlement, reached between the parties, at any stage of proceedings, but there is no provision under Regulations, 2007 which excludes or enable Forum to decline to decide, a complaint, made before it, and is not excepted under Clause 5.1 or 5.3, on the ground of arbitration clause in the agreement. On the contrary, para 6.9 contemplates that Forum shall decide the matter expeditiously by a speaking order and preferably within three months from the date of receipt of complaint.

30. The Ombudsman is appointed by UPERC under Section 42 of Act, 2003. The order of Forum, subject to right of representation before Electricity Ombudsman, is final by virtue of Clause 7.6 of Regulations, 2007, which reads as under:

"7.6 Subject to the right of the representation before the Electricity Ombudsman appointed/designated by the Commission under Section 42 of the Act, 2003, the orders of the Forum shall be final and binding on the consumer and the Distribution Licensee."

31. A Consumer aggrieved by order passed by Forum (ECGRF) or where the Forum (ECGRF) has failed to redress grievance, within the specified period, or the Distribution Licensee is aggrieved by the order of Forum (ECGRF), have been given right of representation before Ombudsman, vide Clause 8.1 (i) of Regulations, 2007. Thus the order of Forum (ECGRF) as well as Ombudsman are statutory, since both are statutory bodies. If a statutory, remedy is provided, in absence of any provision, such statutory bodies cannot deny or refuse to decide a dispute raised before them, validly, by referring to arbitration clause under the agreement. The ECGRF, in my view, even otherwise committed manifest error in failing to entertain dispute on merits and abstaining itself from deciding dispute on merits, by taking recourse to Clause 16 of agreement and directing parties to go for arbitration, though it was not empowered to do so under Regulations, 2007.

32. In order to take the above view, I am fortified from other reasons, by considering the matter from another angle.

33. Establishment of Redressal Forum by Distribution Licensee and appointment of Ombudsman to settle grievances and dispute raised by Consumer against Licensee, is a statutory requirement as provided under Sub-Sections (5) to (8) of Section 42 of Act 2003. It is in addition to remedies, otherwise available, and not in derogation thereof. The provisions of Act 2003 in respect of supply of electricity and the dispute relating thereto, between Consumer and Licensee, is a special statute. The forum of adjudication agreed by the parties, i.e. Distribution Licensee and Consumer, under the agreement, may provide an additional mode but not to the exclusion of statutory Redressal Forum, available under Sub-Sections (5) to (7) of Section 42 of Act 2003. The Dispute Redressal Forum under sub section (5) and Ombudsman, appointed under sub section (6), are under statutory duty to settle dispute, raised by Consumer, within the guidelines laid down by Commission, on merits and not to shirk away from its responsibility of settlement of dispute by relegating parties to avail any other forum. If it declines to enter upon the disputes on merits, this amount to a material illegality on it part, by not exercising jurisdiction vested in it by the statute.

34. The aforesaid statutory provisions shall override contractual stipulation between the parties, i.e., Distribution Licensee and Consumer of referring dispute to arbitration. In taking the above view, I draw support from the decision in Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd. (2008) 4 SCC 755. Therein the dispute arose between Gujarat Urja Vikas Nigam Ltd and Essar Group of Companies with regard to allocation of power. The Essar Power Ltd. invoked arbitration clause in the agreement and requested Gujarat Urja Vikas Nigam Ltd to refer the matter to single Arbitrator i.e. Hon'ble Mr. Justice A.M. Ahmadi, Retired Chief Justice of India. On the contrary, Gujarat Urja Vikas Nigam Ltd raised dispute by approaching Gujarat Electricity Regulatory Commission by filing an application under Section 86(1)(F) of Act 2003 and did not approve appointment of single Arbitrator proposed by Essar Power Ltd. Aggrieved thereto, Essar Power Ltd. approached High Court who nominated single Arbitrator, as proposed by Essar Power Ltd. where against matter was taken to Apex Court by Gujarat Urja Vikas Nigam Ltd.

35. On behalf of Gujarat Urja Vikas Nigam Ltd., it was contended that provisions of Act 2003 shall prevail over general provisions of Arbitration and Conciliation Act, 1996 (hereinafter referred to as "Act 1996") while Essar Power Ltd. canvassed otherwise by referring to section 175 of Act 2003. The Court held that provisions of Act 2003 would constitute special provision and hence will override general provision of section 11 of Act 1996. In para 26 and 28 of the judgment, Court said:

"26. It may be noted that Section 86(1)(f) of the Act of 2003 is a special provision for adjudication of disputes between the licensee and the generating companies. Such disputes can be adjudicated upon either by the State Commission or the person or persons to whom it is referred for arbitration. In our opinion, the word "and" in Section 86(1)(f) between the words "generating companies" and "to refer any dispute for arbitration" means "or". It is well settled that sometimes "and" can mean "or" and sometimes "or" can mean "and" (vide (G.P. Singh's Principles of Statutory Interpretation, 9th Edn. 2004, p. 404."

"28. Section 86(1) (f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation."

36. In para 35, the Court said that Section 86(1)(f) provides special manner of making reference to Arbitration in a dispute between Licensee and generating company. Therefore, by implication all other methods are barred. Then proceeding further, the Court, in paragraphs no. 60 and 61, said as under:

"60. In the present case, it is true that there is a provision for arbitration in the agreement between the parties dated 30.5.1956. Had the Electricity Act, 2003 not been enacted, there could be no doubt that the arbitration would have to be done in accordance with the Arbitration and Conciliation Act, 1996. However, since the Electricity Act, 2003 has come into force w.e.f. 10-6-2003, after this date all adjudication of disputes between licensees and generating companies can only be done by the State Commission or the arbitrator (or arbitrators) appointed by it. After 10.-6-2003 there can be no adjudication of dispute between licensees and generating companies by anyone other than the State Commission or the arbitrator (or arbitrators) nominated by it. We further clarify that all disputes, and not merely those pertaining to matters referred to in Clauses (a) to (e) and (g) to (k) in Section 86(1), between the licensee and generating companies can only be resolved by the Commission or an arbitrator appointed by it. This is because there is no restriction in Section 86(1)(f) about the nature of the dispute.

"61. We make it clear that it is only with regard to the authority which can adjudicate or arbitrate disputes that the Electricity Act, 2003 will prevail over Section 11 of the Arbitration and Conciliation Act, 1996. However, as regards the procedure to be followed by the State Commission (or the arbitrator nominated by it) and other matters related to arbitration (other than appointment of the arbitrator) the Arbitration and Conciliation Act, 1996 will apply (except if there is a conflicting provision in the Act of 2003......."

37. In the present case, it cannot be doubted that for the purpose of settlement of disputes between Consumer and Distribution Licensee, a Forum has to be provided by Distribution Licensee who would settle matters in accordance with guidelines laid down by State Commission, i.e., UPERC in the present case. Then a kind of appellate forum has been provided under Section 42(6) of Act 2003, in the form of "Ombudsman" who would be appointed or nominated by State Commission i.e. UPERC. Sub-section (7) makes it obligatory upon the Ombudsman to settle grievances of Consumer within such time and manner as specified by the Commission.

38. The Commission has laid down guidelines and procedure by enacting Regulations 2007, validity whereof is not under challenge. It is binding on Distribution Licensee and Consumer. Considering the entire present case and also in the light of Section 42(8), if I may not go to the extent of saying that Redressal Forum under Section 42(5) and (6) may not override the remedy available by way of arbitration under the agreement, but I can safely go to hold that a special redressal forum being contemplated by statute itself, it (ECGRF and Ombudsman) is under statutory obligation to look into grievance of Consumer and decide on merits.

39. Hence arbitration clause in the agreement cannot be pressed into service by Distribution Licensee so as to wriggle out of jurisdiction of Grievance Redressal Forum or Ombudsman, as the case may be, whose statutory duty is to settle Consumer's dispute, if raised before it.

40. Further, Sub-section (8) clearly provides that remedy under sub-sections (5),(6) and (7) is without prejudice to right of the Consumer which he may have been conferred elsewhere, meaning thereby that other right (Forum) of Consumer is protected. The Licensee or the Forum (ECGRF) is not empowered or entitled to deprive Consumer from availing such right of settlement of dispute under sub-sections (5) and (6) of Section 42 by relying on arbitration clause in the agreement.

41. No other view can be taken since a bare simple harmonious reading of Section 42 and Regulations framed thereunder makes it clear what this Court has observed above. Even otherwise, a purposive construction of the Statute would also take this Court to the same conclusion. Any other view would defeat the very objective of statute and would amount to do violence with the clear statutory provision which cannot be permitted by this Court.

42. If a construction permits more than one redressal forums to a Consumer in respect to a dispute raised by him against the Licensee, in absence of any provision or reason express or by necessary implication, available, this Court would favour to take such a construction which helps the parties in availing more than one Forum, if available, for redressal of grievance as per the option of Consumer, if he has so under the statute, to avail and would not favour a construction which would defeat such remedy or Forums.

43. Learned counsel for respondent Consumer has placed several authorities to buttress his submission that special statute shall override a general provision but except the manner in which I have already discussed the matter above, I do not find that anything further need be added or repeated in this regard.

44. Now I come to the question of merits of the order of Ombudsman impugned in this writ petition.

45. Since the initial demand raised from 1.12.2004 to 30.4.2008 was given up by the petitioners by its order dated 8.10.2012 accepting the objection raised by respondent no. 3, real dispute now is confined for the period from 1.5.2008 and onwards. Four Tariff Orders are relevant. Four Tariff Orders are relevant in the present case i.e. dated 27.4.2008, 31.03.2010, 19.10.2012 and 31.05.2013, which cover the period of dispute in the case in hand.

46. Tariff Order dated 27.4.2008 insofar as it provides for "Protective Load" charge reads as under:

"Consumers getting supply on independent feeder at 11kv & above voltage, emanating from sub-station, may opt for facility of Protective Load to avail supply during the period of scheduled rostering imposed by the licensee, except under emergency rostering. An additional charge @ 100% of base demand charges fixed per month shall be levied on the contracted Protective Load each month."

(emphasis added)

47. Para 10 of Tariff Order dated 31.03.2010 deals with "Protective Load" and reads as under:

"10. Protective Load:

Consumers getting supply on independent feeder at 11kv & above voltage, emanating from sub-station, may opt for facility of Protective Load and avail supply during the period of scheduled rostering imposed by the licensee, except under emergency rostering. An additional charge @ 100% of base demand charges fixed per month shall be levied on the contracted Protective Load each month. During the period of scheduled rostering, the load shall not exceed the sanctioned Protective Load. In case the consumer exceeds the sanctioned Protective Load during scheduled rostering, he shall be liable to pay twice the prescribed charges for such excess load. The charges on account of Protective Load shall not be taken into account towards computation of minimum charge." (emphasis added)

48. There are some changes in the condition of the "Protective Load" in Tariff Order dated 19.10.2012. Para 10 thereof, which deals with "Protective Load", reads as under:

"10. Protective Load:

Consumers getting supply on independent feeder at 11kv & above voltage, emanating from sub-station, may opt for facility of Protective Load and avail supply during the period of scheduled rostering imposed by the licensee, except under emergency rostering. An additional charge @ 100% of base demand charges fixed per month shall be levied on the contracted protective (as per Electricity Supply Code) load each month. During the period of scheduled rostering, the load shall not exceed the sanctioned Protective Load. In case the consumer exceeds the sanctioned Protective Load during scheduled rostering, he shall be liable to pay twice the prescribed charges for such excess load. Consumers of LMV-4 (A)- Public Institutions will however pay the additional charge @ 25% only." (emphasis added)

49. In the last Tariff Order dated 31.5.2013, "Protective Load" continued to be governed in para 10 and it is pari materia to clause 10 of Tariff Order dated 19.10.2012 and therefore need not be quoted hereat.

50. The conditions precedent for attracting charge for "Protective Load", contained in respective Tariff Orders, have already been quoted. The aforesaid term, however, has also been defined under Clause 2.2 (tt) of Electricity Supply Code, 2005 (hereinafter referred to as "Code, 2005") which has been framed in exercise of statutory powers contained in Act, 2003 by UPERC and it reads as under:

"(tt) "Protective Load" means a load not subjected to normal rostering."

51. Similarly the term "Contracted Load" is also defined in Para 2.2 (s) which reads as under:

"(s) "Contracted Load" means maximum electrical load in KW, KVA or BHP agreed to be supplied by the Licensee which may be different than connected load and reflected in the agreement between the parties. It shall be rounded off to next higher number. Wherever the word ''sanctioned load' is used, it shall mean contracted load or vice versa."

52. The electrical load which is sanctioned in general and reflects in the agreement between the parties is "Contracted Load". Out of that, a particular load if specifically sanctioned as "Protective Load" that would be covered by the term "Protective Load". This would be further clear from the discussion made hereinabove.

53. In order to attract demand of "Protective Load" under Tariff Orders, as noticed above, pre-condition is that the Consumer must have opted for facilitating "Protective Load" and avail supply during the period of scheduled rostering imposed by Licensee, except under emergency rostering. Therefore, the condition precedent to attract demand of charge on "Protective Load" is that there must be an option given by Consumer for enjoying facility of "Protective Load" so as to avail supply of electricity during period of scheduled rostering imposed by Licensee. Despite repeated query, learned counsel for petitioner could not show from the aforesaid agreement dated 27.11.2007 or otherwise that the Consumer has even opted for such facility of "Protective Load".

54. There is also no stipulation in the entire agreement entitling respondent no. 3 for availing supply of electricity during the period of scheduled rostering imposed by Licensee. On the contrary, Clause-1 of the agreement, on the one hand, puts an obligation upon Distribution Licensee that the supply shall be made available regularly but there is a escape clause whereby for interruption of supply due to various reasons mentioned therein, Distribution Licensee shall not be liable for damages or otherwise.

55. In fact, it is not disputed by petitioner that there was no option exercised by respondent no. 3, the Consumer, for availing facility of "Protective Load" and entitlement of user of electricity during scheduled rostering imposed by Distribution Licensee. If there was no such option exercised by Consumer, the demand of charges under the head, "Protective Load" charge was not at all attracted. Petitioner, instead of applying its mind to the question whether demand of "Protective Load" could have been raised or not, acted wholly illegally, particularly when it admits that demand was raised collectively after eight years, for a long period, only on the basis of audit objection and not otherwise.

56. Further, the provision empowering Licensee to charge for "Protective Load" is admittedly governed by Para 10 of Tariff Order, which has already been noted above. Para 10, as stood from time to time, though have some minor differences regarding rates etc., but in respect of some other aspects, substantially same in nature.

57. In order to find out when "Protective Load" charges can be demanded, some necessary indices common in the Clauses dealing with the "Protective Load" under the Tariff Orders are as under:

(i) The Consumer must be getting supply on independent feeder at 11 KV or above emanating from Sub Station.

(ii) The Consumer, in his discretion must have opted for facility of "Protective Load".

(iii) The load so opted is sanctioned of certain load as "Protective Load" by the Licensee.

(iv) On such option exercised by him, he can avail supply during the period of scheduled rostering imposed by the LIcensee, except under emergency rostering.

(v) During the period of scheduled rostering, the load of supply, which may be availed by the Consumer shall not exceed the sanctioned "Protective Load".

58. In the present case, it is not the case of petitioner that the Consumer at any point of time opted for facility of "Protective Load". It is also not pleaded or stated or said to exist, as a matter of fact, that Licensee sanctioned certain quantum of electrical load as "Protective Load" which the respondent no. 3 (Consumer) may avail during the period of scheduled rostering imposed by the Licensee. The requirement of para 10 of Tariff Order with respect to option by Consumer and sanction of "Protective Load" by Licensee, clearly shows that there has to be an offer and acceptance in respect of certain electrical load as "Protective Load". Meaning thereby, there has to exist an agreement which must show the offer or option exercised by Consumer and accepting thereto, certain load is sanctioned by Licensee, which may be availed or used by Consumer during the period of Scheduled Rostering, imposed by the Licensee and to the extent, the load is sanctioned as "Protective Load", charges prescribed for such "Protective Load", could have attracted and not otherwise.

59. It is not disputed that exception clause with regard to liability toward damages etc. includes non supply of electricity to respondent no. 3 during scheduled period of rostering imposed by Licensee. Ex facie, therefore, demand of "Protective Load" charge was not saved or covered by the agreement dated 27.11.2007. No other agreement existed for "Protective Load". It was suo motu imposed by petitioner on the basis of only audit objection, and, that too, without applying mind to the provisions relating to "Protective Load". The demand relating to "Protective Load" in the present case cannot be said to be governed by agreement dated 27.11.2007. Therefore the order of ECGRF was apparently erroneous and faulty. In fact, it shows an escape route adopted by ECGRF in settling the dispute on its own level. It chose to divert dispute elsewhere like a traffic constable instead of deciding the matter and curtailing period of litigious agony between the parties.

60. Moreover, the question, when the demand of "Protective Load" can be raised has also been settled by this Court in Writ Petition (Writ-C) No. 2788 of 2013 Allahabad Inter Prises Vs. State of U.P. and others (supra) wherein it has been held that in absence of any option exercised by Consumer, demand of "Protective Load" charge cannot be raised, yet petitioner has chosen to insist upon realization of "Protective Load" charge from respondent no. 3, though in the present case also it is admitted that no such option has been exercised by respondent no. 3 in respect to "Protective Load" till date.

61. It is really surprising that instead of raising demand strictly in accordance with appropriate tariff, applicable to parties, in a most arbitrary and whimsical manner, the same has been raised against respondent no. 3 and the petitioner has continued to litigate, in one or the other Forum. The approach of petitioner is clearly irrational, illogical and nothing but a harassment of respondent no. 3.

62. Lastly coming to the preliminary objection regarding maintainability of writ petition instituted by Executive Engineer only and not the Licensee, here also I find substance in what has been urged on behalf of respondent no. 3. The petitioner, Executive Engineer, is an officer of the Licensee. The agreement to supply electricity though has been executed by respondent no. 3, the Principal, and Executive Engineer, but he (Executive Engineer) has signed the agreement on behalf of U.P. Power Corporation Limited, as is evident from the agreement. After transfer scheme enacted under Section 23 of U.P. Electricity Reforms Act, 1999 (hereinafter referred to as "Act, 1999"), the work of distribution of electricity is to be done by PVVNL. Therefore, the agreement has to be construed between the Consumer-respondent no. 3 and PVVNL who has been represented by Executive Engineer in signing the agreement. That being so, the contracting parties are, Consumer, and, the Distribution Licensee. Admittedly, the Distribution Licensee has not chosen to challenge order of Ombudsman before this Court. It is the Distribution Licensee which is a juristic personality and can sue and be sued. No such status has been conferred upon the Executive Engineer, who is only an Officer of PVVNL and represents PVVNL in different proceedings. Without impleading PVVNL, writ petition at the instance of Executive Engineer, in my view, is not maintainable.

63. Be that as it may, since I have chosen to decide the matter on merits after hearing long drawn argument of learned counsels for parties, the preliminary objection, though, is being upheld, but would make no difference otherwise.

64. In the light of discussion made above, the impugned order cannot be said to be faulty in any manner, hence warrants no interference. The writ petition miserably fails and is dismissed accordingly with cost of Rs. 25,000/- which shall be paid by petitioner to respondent no. 3.

Dt. 11.09.2014

PS/Akn