M.D. Pakshimanchal Vidut Vitran ... vs Ombudsman 3 Floor Neda Building ...
2019 Latest Caselaw 5460 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 25
 

 
Case :- MISC. SINGLE No. - 6088 of 2009
 

 
Petitioner :- M.D. Pakshimanchal Vidut Vitran Nigam Ltd. Through Executive
 
Respondent :- Ombudsman 3 Floor Neda Building Vibhuti Khand Gomti Nagar
 
Counsel for Petitioner :- Manoj Kumar Dwivedi
 
Counsel for Respondent :- I.B.Singh,A.Z.Siddiqui,Ishita Yadu,Niraj Gupta,Sanjai Singh,Vishal Dixit
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

(1) Heard Sri Manoj Kumar Dwivedi appearing for the petitioner Sri Sanjai Singh who appears for the opposite party no.1 and Sri Niraj Gupta, who appears for the opposite party no.3.

(2) This petition has been filed by the petitioner challenging the order dated 30.09.2009 passed by the Electricity Ombudsman in Representation No.18 of 2009 and Application No.28-C of 2009, wherein while dealing with the representation of the petitioner against the order passed by the Consumers Grievance Redressal Forum (C.G.R.F.) dated 16.12.2008, the opposite party no.1 has also considered the complaint filed under Section 142 of the Electricity Act, 2003 by the opposite party no.3.

(3) The brief facts relevant for the decision of the controversy that have come from the arguments of the learned counsel for the petitioner and the opposite parties are that the opposite party no.3 had established a Company in Meerut by the name of Shaw Wallace Industries which ran a Brewery and a Distillery with an electricity connection of 1000 KVA. The establishment applied for reduction of load to 400 KVA and also applied for a new connection of 1000 KVA for new unit in SKOAL Limited. The said Brewery was established adjacent to the existing unit. The formalities with regard to the reduction of load on the original electricity connection and for grant of new connection were completed by the opposite party no.3 and more than 18 lacs of rupees was deposited for energizing of the new connection. A spot inspection of the unit was conducted by the petitioners on 26.04.2005 which revealed supply of electricity from the premises of opposite party no.3 to SKOAL Brewery. The opposite party no.3 was served with the provisional assessment order dated 09.05.2005 with proposed assessment of Rs.14.44 lacs calling upon the opposite party no.3 either to pay or to show cause. The opposite party no.3 had accepted the provisional assessment and paid the amount of Rs.14.44 lacs without objection, therefore, the proceedings under Section 126 of the Electricity Act stood closed on 19.04.2006.

(4) The Comptroller and Auditor General, Union of India forwarded an audit objection to the Poorvanchal Vidut Vitran Nigam Ltd. seeking its response to the alleged short assessment done by the petitioner of the electricity consumed by the opposite party no.3.

(5) A show cause notice was issued by the Competent Authority thereafter to the opposite party no.3 which included in it a supplementary Bill of Rs.51,54,749/- lacs. The opposite party no.3 approached the U.P. Electricity Regulatory Commission hereinafter referred to as U.P.E.R.C. and while its appeal was pending, since no interim order was passed thereon, it has also filed a writ petition before this Court i.e. Writ Petition No.5216 (M/S) of 2007 which was disposed of by this Court on 05.10.2007 directing the U.P.E.R.C. to dispose of the Reference No.116 of 2007 at the earliest and also recorded an undertaking given by the Corporation that they would not proceed with the matter of recovery of the supplementary demand till the application for interim relief is considered by the U.P.E.R.C.

(6) The U.P.E.R.C. informed the opposite party no.3 that its reference was not maintainable on 10.10.2007.

(7) The U.P.E.R.C. filed a Modification Application No.15451 of 2007 on 04.12.2007 before this Court bringing to the notice of this Court, the observations made by the Hon'ble Supreme Court in Maharashtra Electoral Recovery Commissioner Vs. Reliance Anand and Others reported in 2007 (10) SCALE, wherein the Supreme Court noted that under Section 86 of the Act the U.P.E.R.C. had only jurisdiction to adjudicate a dispute between the licensee and generating companies. This Court modified its order dated 05.10.2007 by an order dated 11.01.2008 clarifying that the Reference made by the opposite party no.3 was not maintainable before the U.P.E.R.C. and provided that the Consumer Grievance Redressal Forum is competent for redressal of grievance of the Consumers under the Regulations framed by the U.P.E.R.C.

(8) The opposite party no.3 thereafter filed a complaint before the Consumer Grievance Redressal Forum which complaint was against the Supplementary Bill raised on the basis of audit objection of the Comptroller and Auditor General of Rs.51,54,749/- lacs. The C.G.R.F. Meerut, set aside the assessment of Rs.51,54,749/- and is upheld the demand of Rs.14.44,251 lac made by the provisional assessment by the Corporation, although a challenge to the said provisional assessment had also been raised by the opposite party no.3 before C.G.R.F. The C.G.R.F. observed in its order dated 17.12.2008 that the prayer made with regard to refund of Rs.14,44,251/- cannot be entertained as the opposite party no.3 i.e. the Consumers had not challenged the demand but had made the payment and was satisfied with it.

(9) Aggrieved by the order passed by the opposite party no.1 the Corporation filed a Representation under Clause 8.1 of the Regulations before the opposite party no.1 while such representation was pending, the opposite party no.3 also filed an application/complaint under Section 142 of the Electricity Act, 2003, alleging non-compliance of the order passed by the C.G.R.F. and the insistence of the Corporation for recovery of Rs.51,54,749/- from the opposite party no.3.

(10) The Electricity Ombudsman after hearing both the parties rejected the Representation filed by the Corporation for setting aside the order of C.G.R.F. with regard to its Supplementary Demand of Rs.51 lacs and at the same time, also quashed the original demand made by the provisional assessment on 09.05.2005 accepted by the opposite party no.3 and against which no representation under Clause 8.1, the Regulation was filed by the opposite party no.3.

(11) When this writ petition was filed challenging the order of the Electricity Ombudsman by the Corporation a detailed interim order was granted to the Corporation staying the operation of the order dated 30.09.2009 till further orders of this Court. The writ petition was allowed by a detailed order of this Court later on on 19.07.2012 on the ground that an assessment could only be challenged by the Consumer by approaching U.P.E.R.C. and not by filing a complaint before the C.G.R.F. on the basis of the arguments of the learned counsel for Corporation that the consumer if aggrieved by the assessment of unauthorized dues of electricity and by an order passed under Section 126 of the Act, 2003 could file a statutory Appeal under Section 127.

(12) The order passed by this Court on 19.07.2012 was challenged before the Supreme Court by the opposite party no.3 and the Supreme Court in its judgment and order dated 30.08.2016 in SLP Civil No.260 of 2012 observed that the question of jurisdiction of the Ombudsman or even of the C.G.R.F. was not raised by the Corporation before the Forum concerned. Moreover there was already an order passed by the writ court on 11.01.2008, at the behest of the U.P.E.R.C., which had directed the Consumer to approach the C.G.R.F. The direction was issued by the Supreme Court that the matter be decided by this Court afresh dealing only with the merits of the case of the parties. Hence, this matter on remand is being heard and decided finally by this Court.

(13) Shri Dwivedi, while arguing the matter on behalf of the petitioners has referred to the fact that there was no Representation filed under the Clause 8 of the Regulations by the Consumer before the Ombudsman against the order passed by the C.G.R.F. refusing to interfere in the demand of Rs.14.44 lacs that was initially raised by the Corporation and which was applied by the Consumer. The opposite party no.3 had come before the Ombudsman only alleging non-compliance of the orders passed by the C.G.R.F. under Section 142 of the Act.

(14) The Ombudsman while dealing with the representation made by Corporation against the order of the C.G.R.F. together with the complaint made by the Consumer referred to two reports submitted by the Electricity Division, Meerut to the Dy. Accountant General explaining that there was no short assessment of recovery or penalty, and recommending the dropping of the Audit objections raised by it. The electricity Ombudsman referred to the fact that the Officers of the Corporation themselves had admitted that there was no actual theft of electricity but only a diversion thereof. The Ombudsman misdirected its energy in making afresh consideration where there was theft of electricity by the Consumer or not, which was not required at all as the consumer had not approached it under a Representation made under Clause 8.1, nor had challenged the demand letter dated 09.05.2005 nor had challenged the order of C.G.R.F. The Consumer had come before the Ombudsman only asking for the compliance of the order passed by the C.G.R.F. by the licensee.

(15) Shri Dwivedi, has also led this Court through the Audit objections that were raised by the Comptroller and Auditor General of India wherein Clause 4.46 of the U.P. Electricity Supply Act, 2005 was referred to, which provides that Consumer shall not supply any energy supplied to him to other premises unless he is authorized to do so. It had further referred to Clause 6.1 (G) of the Code which provides that if there is any unauthorized use of electricity being made by the consumer he shall be liable to pay the penalty at the rate of one and half times per unit of the tariff applicable to the consumers and units assessed as per LXFXHXD Format prescribed under the Code. The scrutiny of the record of Electricity Ombudsman Distribution Division-III Meerut, had revealed that Shaw Wallace Distillery Limited, the consumer unit had a distillery and a Brewery in Meerut having electricity connection for sanctioned load of 1000 KVA. The consumer had applied for reduction of load of such central unit and for grant of new connection for another factory i.e. SKOAL Breweries Ltd. adjacent to its Distillery in January, 2004. Before the fresh load to the new factory was sanctioned, and load in old unit could be reduced due to objection raised by the Director Electoral Safety, Lucknow, the consumer had been unauthorizedly using the electricity by extending the existing 11 KVA line to operate the new factory on 1000 KVA load. The Audit objections had found that the consumer was liable to be assessed for 21,60,000 KVA (h) arrived at after applying LXFXHXD formula, and a short recovery of the penalty had been pointed out in the audit objections.

(16) Shri Dwivedi, has led this Court though Clause 4.46 of the Electricity Code and also Annexure 6.3 of the Electricity Code wherein it has been provided that in case there is an application for reduction of load by consumer it should not be automatically accepted, unless assessment is made for the consumption of the past six months and is found that the consumer was consuming less than the load reduction as proposed by it.

(17) Shri Dwivedi, has also referred to Clause 4.41 of the Code in this connection, and has referred to the observation made by the Ombudsman in the impugned order that the Corporation deliberately kept the application for reduction in pending before it and for sanctioning of new load to the consumer, despite deposition of Rs.18.6 lacs by it for energizing the new meter. It has been submitted by Shri Dwivedi that the observation made by the Ombudsman is perverse to the statutory provisions as can be found in an Annexure 7.1 of the Code.

(18) Shri Dwivedi, has further submitted that this Court on 16.01.2017 had passed a detailed order asking the opposite party no.1 to file a personal affidavit stating whether any Representation under Clause 8.1 of the Regulations was filed by the consumer and whether the additional statement filed as Annexure 13 to the Counter Affidavit filed by the opposite party no.3 was on record of the opposite party no.1 in the aforesaid case.

(19) It has been submitted by Shri Dwivedi that although an affidavit of compliance was filed by the opposite party no.1 on 12.03.2019 no specific statement with regard to Clause 8.1 of the Regulations can be found in the said affidavit. The opposite party no.1 has only stated that Annexure CA-13 to the counter affidavit of the opposite party no.3 was filed before the opposite party no.1 on the date of hearing of Representation No.18 of 2009 on 25.06.2009 after it was served on the counsel for the Corporation.

(20) Shri Niraj Gupta, appearing for the opposite party no.3 has referred to the contents of the writ petition and submitted that the petitioners themselves have stated that the order passed by the Ombudsman is on the Representation/Appeal of the consumer treating it to be a Cross Appeal. He has referred to several paragraphs of the writ petition namely Paragarph Nos.1, 33, 34, 37 and to the several grounds for e.g Grounds D, E, F and N to show that the Corporation in the writ petition has itself referred to the Appeal of the opposite party no.3 on which the order has been passed by the Ombudsman.

(21) Shri Niraj Gupta, has also pointed out that when the Ombudsman was hearing the matter on the merits of the case, the Corporation had never objected to the fact that the consumer had not challenged the order of the CGRF in rejecting his complaint with regard to alleged illegal recovery of Rs.14.44 lacs for theft as pointed out by the Assessing Authority on the basis of inspection report dated 26.04.2005.

(22) The counsel for the opposite party no.3 has stated that since the opposite party no.3 was running an Industrial unit where production would have suffered if the supply of electricity had been disconnected, it had complied with the illegal demand of Rs.14.44 lac. There was no theft of electricity. Learned counsel for the opposite party no.3 has also referred to the complaint filed by the opposite party no.3 before CGRF and the prayer made therein for quashing of the recovery of Rs.14.44 lacs imposed by the Provisional Assessment Order dated 09.05.2005. It has been submitted that the Ombudsman can look into all grievances of the consumer and the Ombudsman rightly looked into the grievances of the consumer. All formalities were completed by the consumer in 2004 itself but the Corporation kept its application pending for sanctioning new load pending for no reason.

(23) Learned counsel for the opposite party no.3 has referred to repeatedly to the report dated 23.05.2006 and the letter dated 03.05.2008 sent by the Officers of the Corporation to the Accountant General regarding the audit objections raised and mentioning therein that there was no new unit set up by the consumer to which electricity was being diverted. It was submitted that the electricity was metered and consumed as provided in the line by the parent unit and only for administrative purposes the unit was bifurcated and the Distillery separated from the Breweries. The Breweries was situated adjacent to the Distillery.

(24) Learned counsel for the opposite party no.3 has also referred to the fact that the Appeal of a Licensee is not maintainable under Clause 8.1 of the Regulations as has been held by this Court in Full Bench decision in the case of Dakshinanchal Vidyut Vitran Nigam Ltd. Vs. Vitran Lokpal, Lucknow and has argued that the Representation No.18 of 2009 made by the Corporation was liable to be rejected by the Ombudsman on this ground alone. If the representation of the Corporation was liable to be rejected on the ground of maintainability, the Ombudsman could also look into the grievances raised by the consumer with regard to the illegal demand made by the Corporation, as admitted by its Officers before the Auditors, when they recommended the closure of the objections so made by the CAG.

(25) It has been argued that although CPC is in applicable and the Ombudsman is not a code of law yet as in civil suit filed before the Civil Court suit filed before the Civil Court a counter claim can be entertained and allowed, the Ombudsman could have allowed the counter claim of the consumer. It has been submitted that the correctness of the findings of the Corporation in raising the provisional assessment could have been looked into the by the Ombudsman and as he is responsible for redressal of grievance of a consumer against the licensee.

(26) It has also been submitted that only technical objections are being raised with regard to the non-filing of any representation under Clause 8.1 of the Regulations by the consumer against the order of the CGRA. All the facts were before the Ombudsman and he could have certainly looked into all the facts and passed the order to do substantial justice between the parties.

(27) It has been submitted that Section 126 (4) of the Electricity Act was amended only with effect from 15.06.2007 and the Proviso was omitted after provisional assessment was made and complied with as such, at the time when the such assessment was made the Corporation could not have raised any further liability or taken any action after the provisional assessment was accepted by the consumer.

(28) Moreover, this Court under writ jurisdiction should not interfere in an order which would revive an illegal order, on it being set aside.

(29) Shri Dwivedi, in his rejoinder has submitted that the paper of Annexure-13 to the counter affidavit filed by the consumer was an additional statement that was filed before the Ombudsman in the Representation No.18 of 2009. The additional statement, (CA-13) to the counter affidavit filed by the consumer referred to by the Ombudsman in the impugned order could not have been considered as a cross Appeal. There is no provision of Cross Appeal. If a consumer is aggrieved by an order passed by CGRF that appropriate remedy in the Regulation is Clause 8.1 If a thing has to be done in a manner prescribed it has to be done in that particular manner alone or not at all. The consumer had not approached the Ombudsman challenging the order of CGRF. It had filed a complaint under Section K-12 of the Electricity Act alleging non-compliance of the order of the CGRF. Even on merits of the case, the Ombudsman has made certain observations relating to the duty of the Corporation to give consumer a fresh electricity connection and the liability fixed under Paragraph 4.7 of the Code.

(30) The Annexure-7.1 of the Code provides for compensation in case the time schedule provided under the Code is not followed by the Licensee. The consumer had remedy under Annexure 7.1 of the Code, in case time schedule was not followed by the Corporation. The remedy admissible to the consumer for default in each case had been provided under the Code. The U.P.E.R.C. has fixed the standards of performance. In case the consumer was aggrieved by the non-performance of any duty of the Licensee then it could have approached the U.P.E.R.C. There is statutory remedy provided which was not availed of by the consumer when its application for grant of a fresh connection was not dealt with in time even after deposit of Rupees Eighteen and Half Lacs as alleged by it.

(31) Mr. Niraj Gupta, has again pointed out that the report of the Officers of the Corporation submitted before the Accountant General recommending removal of audit objections.

This Court has perused the report submitted by the Officers of the Corporation. It finds that the Officers of the Corporation have only referred to the fact that there was no theft from the line and the meter was being run properly and the bills were also being paid by the consumer in time and to the fact that no new factory was established by the consumer. However, the reports had not referred to the Audit objections with regard to Clauses 4.46 (a) of the Code and Clause 6.8 (c) of the Code. There was undisputedly "unauthorized use" of the electricity when the consumer had bifurcated its operations and applied for a fresh connection and it had supplied energy meant for it to its other premises without any authorization during pendency of its application.

(32) This Court has found from a perusal of the record also that the consumer did not file any Representation under Clause 8.1 of the Regulations. The Representation of the Corporation could have been rejected by the Ombudsman but the claim of the consumer could not have been allowed where that was no Representation filed by it against the order of the C.G.R.F. In State of U.P. Vs. Singhara Singh and Others reported in (1964) 4 SCR 485, Three Judges Bench of the Supreme Court has placed reliance upon the Nazir Ahmad Vs. The King Emperor reported in 1936 SCC OnLine PC 41, to hold that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performace are necessarily forbidden. The Judicial Committee of the Privy Council had relied upon the Taylor Vs. Taylor reported in 1875 1 Ch. D. 426 to hold that the manner of recording confession by Judicial Magistrate as given as Under Section 164 of the Cr.P.C. should be followed to the letter, and no other method adopted to record the said statement would be admissible in law. The judgment rendered in Nazir Ahmad Vs. The King Emperor (Supra) has been relied upon till date by the Supreme Court in several of its decisions to hold that where a procedure is prescribed to do a certain thing in a certain manner that manner has to be followed and the procedure prescribed must be strictly adhered to. The latest judgment being Lahu Shrirang Gatkal Vs. State of Maharashtra reported in (2017) 13 SCC 519.

With regard to the issue involved in this writ petition, it is admitted on the part of the opposite party no.3 that no Representation/Appeal was filed against the order of C.G.R.F. by it, therefore, the Ombudsman could not have set aside the order of CGRF by which the provisional assessment against the opposite party no.3 had been confirmed.

(33) The Opposite party no.3 also did not file any complaint before the U.P.E.R.C. under Annexure 7.1 of the Code. The statutory remedy available to it was not availed of by the consumer in case its application for Reduction in Load and sanction of Load was not being considered in time.

(34) Even for the compliance of of the orders of the Electricity Ombudsman or the C.G.R.F., remedy has been provided under Clause 14 of the Regulations framed by the U.P.E.R.C. which was not availed of by the Opposite party no.3.

(35) The remedy as was available under the statute having not been availed of by the consumer, and the Ombudsman exceeding its jurisdiction in referring to the validity of the Audit objections (which were not removed, despite the report of the Officers of the Corporation), leads this Court to the inescapable conclusion that the order of the Ombudsman is vitiated in law and is liable to be set aside. It is set aside in so far as it relates to provisional assessment being confirmed by the C.G.R.F..

(36) The liability arising under the order impugned in so far as the Supplementary Bill of Rs.51,54,749/- on the basis of Audit Objections is concerned, the same cannot be looked into as the Order of the C.G.R.F. cannot be challenged by the Licensee before the Ombudsman.

(37) This writ petition is accordingly allowed.

Order Date :- 5.7.2019

PAL