Bombay High Court
Maharashtra State Electricity ... vs M/S Rsr Mohota Spinning And ... on 8 June, 2021
Bench: S.B. Shukre, Avinash G. Gharote
Civil WP 7900 of 2017.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL WRIT PETITION NO.7900 OF 2017
PETITIONER : Maharashtra State Electricity Distribution
(Ori.Respondent) Company Limited - (MSEDCL) - Through its
Superintending Engineer, O & M Circle,
"VIDYUT BHAVAN", Boregaon Naka,
Wardha -1.
...VERSUS...
RESPONDENTS : 1. M/s. RSR Mohota Spinning & Weaving
(Ori.Complainant) Mills Limited - Through its Director,
Post Hinganghat, District Wardha - 442 301.
2. The Electricity Ombudsman,
Plot No.12 "SHRIKRUPA", Vijay Nagar,
Chhaoni, Nagpur - 440 013.
-------------------------------------------------------------------------------
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
--------------------------------------------------------------------------------
Mr. Shridhar V. Purohit, Advocate with Ms. Gauri Purohit,
Advocate for the petitioner
Mr. Shekhar Dhengale, Advocate for the respondent no.1
Mr. Ajay D. Mohgaokar, Mr. Arun S. Agrawal, and Mr. Tushar
Mandlekar, Advocates have also addressed the Court
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Order reserved on : 22/01/2021
Order pronounced on : 08/06/2021
O R D E R (PER : AVINASH G. GHAROTE, J.)
Civil WP 7900 of 2017.odt
1. This reference arises out of the judgment dated
13/10/2020 by the learned Single Judge of this Court (Shri Rohit B.
Deo, J.) in W.P. No.7900/2017, who noticing the decision in Writ
Petition No.6859 of 2017 (The Maharashtra State Electricity
Distribution Company Ltd. and another Vs. Jawahar Shetkari Soot
Girni Ltd. - 2019 (1) Mh.L.J. 342 ) in which it has been held that the
cause of action to approach the Forum, as constituted under
Section 42 (5) of the Electricity Act, 2003 shall be the sufferance of
the legal injury and the consumer has to complete his litigation
journey within two years, and noting that the Maharashtra
Electricity Regulatory Commission (Consumer Grievance Redressal
Forum and Electricity Ombudsman) Regulations, 2006 [For short,
"the Regulations, 2006" hereinafter], do not provide for limitation to
approach the Internal Grievance Redressal Cell ("the IGR-Cell" for
short hereinafter) as constituted under Regulation 6.1 of the
Regulations, 2006 came to the conclusion, that if the consumer
lodges his grievance with the IGR-Cell within a reasonable time and
if the grievance is not satisfactorily redressed within a period of two
months prescribed, he cannot be non-suited on the premise that the
entire litigation journey was not complete in two years, meaning
Civil WP 7900 of 2017.odt
thereby that in such a scenario it would not be open for the
distribution licensee to contend that the application before the
Forum was not lodged within two years from the sufferance of the
legal injury. The learned Single Judge reiterated, that the cause of
action to approach the Forum would be the date on which the period
within which the IGR-Cell was expected to decide the grievance
expires and the consumer becomes entitled to move the Forum.
2. A contrary view has been taken in Writ Petition No.1650
of 2012 (Maharashtra State Electricity Distribution Company
Limited through its Executive Engineer and another Vs. Electricity
Ombudsman, Nagpur and another) holding that since there is no
time limit provided for approaching the IGR-Cell it was expected of
the consumer to lodge his complaint with the IGR-Cell within
reasonable time from the establishment of the IGR-Cell. In M/s.
Hindustan Petroleum Corporation Limited Vs. Maharashtra State
Electricity Distribution Co. Ltd. and others (W.P. No. 9455 of 2011)
2012 SCC OnLine Bom 66 it has been held that the cause of action
to approach the Forum arises only when the IGR-Cell does not
redress the grievances and that the Forum and the Ombudsman
Civil WP 7900 of 2017.odt
erred in assuming that the cause of action arises when the legal
injury was suffered.
3. Thus, according to the learned Single Judge, Jawahar
Shetkari Soot Girni Ltd. (supra); Maharashtra State Electricity
Distribution Company Limited through its Executive Engineer and
another Vs. Electricity Ombudsman, Nagpur and another and M/s.
Hindustan Petroleum Corporation Limited Vs. Maharashtra State
Electricity Distribution Co. Ltd. and others, strike a discordant note
and have to be reconciled. The learned Single Judge therefore
framed the following three questions :-
(I) The question involved would be when is the
limitation to approach the Forum triggered ?
(II) Certain ancillary questions may call for
answers including the question whether in the absence of
limitation to approach the Grievance Cell whether a
Consumer would be justified in approaching the Grievance
Cell within a reasonable period ?
(III) The expression "cause of action" employed
in Regulation 6.6 shall have to be authoritatively
interpreted ?
and requested the Registrar (Judicial) to place the matter
before the Hon'ble the Chief Justice to constitute a larger bench to
Civil WP 7900 of 2017.odt
answer the above questions. This is how the matter has been placed
before us. After hearing the matter for some time, on 25/11/2020
we felt that the questions referred to us in the present matter for
their appropriate resolution could not be effectively dealt with
unless an issue which was inherently and implicitly included in the
questions referred to us was also answered, which question was not
specifically framed. We therefore framed question no.4. The
questions therefore to be answered are as under :-
"1. When is the limitation to approach the
Consumer Grievance Redressal Forum (CGRF)
triggered ?
2. Whether in the absence of limitation to
approach the Internal Grievance Redressal Cell (IGR
Cell), whether a consumer would be justified in
approaching the IGR Cell within a reasonable period ?
3. The expression "cause of action" employed
in Regulation 6.6 of the Maharashtra Electricity
Regulatory Commission (Consumer Grievance Redressal
Forum and Electricity Ombudsman) Regulations, 2006
shall have to be authoritatively interpreted ?
4. What is the nature of the limitation of "two
(2) years" in Regulation 6.6 of the Maharashtra
Electricity Regulatory Commission (Consumer Grievance
Redressal Forum and Electricity Ombudsman)
Regulations, 2006 for admitting grievance of a consumer,
Civil WP 7900 of 2017.odt
whether it is directory, made for facilitating the
convenience of the parties or mandatory having force of
law ?"
4. To appreciate the controversy in a proper manner, it is
necessary, to consider the factual background in light of which the
above questions are framed :-
Sr. Date Event
No.
1 13/11/2009 The Maharashtra State Electricity Distribution
Company Limited (MSEDCL hereinafter),
submitted a petition under Regulations 14 and
15 of the Maharashtra Electricity Regulatory
Commission (Standards of Performance of
Distribution Licensees, Period for Giving Supply
and Determination of Compensation)
Regulations, 2005, seeking approval for levy of
voltage surcharge to consumers who are supplied
power at voltages lower than that prescribed as
per SOP Regulations.
2 05/03/2010 The Maharashtra Electricity Regulatory
Commission (for short, "the MERC" hereinafter)
by an order, pending a detailed study and
Civil WP 7900 of 2017.odt
approval by the Commission of the levy of
voltage surcharge, as an interim relief permitted
levy of voltage surcharge of 2 % of additional
units to be billed for supply to the consumers at
voltages lower than that specified in the SOP
Regulations, till further orders.
3 09/11/2010 The MERC issued a clarificatory order stating
that the additional 2% voltage surcharge on
consumers on non-express feeder had not been
permitted for any period prior to 5/3/2010 and
thus levy with retrospective effect was not
permissible.
4 The respondent herein was charged with the
voltage surcharge of 2% additional units billed to
it for the period April, 2010 to November, 2012,
which it paid.
5 11/11/2013 Respondent approached the Superintending
Engineer, MSEDCL, Wardha and objected to the
levy of surcharge and seeking a waiver.
6 01/06/2015 MSEDCL replied rejecting the plea of waiver of
surcharge as raised by the respondent.
Civil WP 7900 of 2017.odt
7 07/10/2016 A grievance was raised by the respondent
regarding the voltage surcharge as paid by it, for
the above period before the IGR-Cell disputing its
liability to pay the same.
8 06/01/2017 The IGR-Cell, rejected the grievance.
9 16/01/2017 Challenge to the above rejection by the IGR-Cell,
was raised before the Consumer Grievance
Redressal Forum (for short "the Forum",
hereinafter), as constituted under Section 42 (5)
of the Electricity Act, 2003.
10 21/03/2017 The Forum by a majority, dismissed the challenge
on the ground of limitation, as the respondent
had not approached before the expiry of 2 years,
from the cause of action, which according to the
Forum was 9/11/2010, the date of the
clarificatory order by the MERC.
11 26/08/2017 The Electricity Ombudsman set aside the order of
the Forum holding that the cause of action, had
arisen on 1/6/2015 the rejection of waiver of
surcharge by the MSEDCL and therefore, the
respondent having approached the Forum on
30/1/2017 (in fact on 16/1/2017 as per the date
on the application), the application was well
Civil WP 7900 of 2017.odt
within time and therefore, set aside the order of
the Forum and directed refund of the full amount
of 2% surcharge paid by the respondent with
interest thereon at the Bank rate.
12 17/11/2017 The MSEDCL, filed Writ Petition No.7900 of 2017
challenging the decision of the Electricity
Ombudsman, whereupon noticing the discord as
indicated above, the present reference has been
made.
5. Mr. Shridhar Purohit, learned Counsel for the petitioner
invites our attention to Section 42 of the Electricity Act, 2003 which
postulates duties of distribution licensee. He further invites our
attention to sub-sections 5 to 8 of Section 42 of the Electricity Act,
2003. He further invites our attention to Section 181 of the
Electricity Act, 2003 under which powers have been conferred upon
the State Commissions to make regulations and specifically to
Section 181 (2) (r), under which the State Commissions have power
to frame guidelines for the Forum established under Section 42 (5)
and to Section 181 (2) (s) under which the State Commission has
power to frame regulations to provide for the time and manner for
Civil WP 7900 of 2017.odt
settlement of grievance by the Ombudsman under Section 42 (7) of
the Electricity Act, 2003. He submits, that in exercise of the powers
conferred under Section 181 (2) (r) of the Electricity Act, the State
Commissions have framed guidelines for the Forum established
under Section 42 (5) of the Electricity Act, 2003, and it is under
these guidelines, that the Maharashtra Electricity Regulatory
Commission (Consumer Grievance Redressal Forum and Electricity
Ombudsman) Regulations, 2006, have been framed under which the
IGR-Cell, has been created. Mr. Shridhar Purohit, learned Counsel
for the petitioner invites our attention to Regulations 2 (c), (d), (e)
and (f) which respectively define "grievance", "IGR-Cell" "Forum"
"Electricity Ombudsman". He further invites our attention to
Regulation 4 dealing with constitution of the Forum comprising of a
Chairperson and Two Members; Regulation 6 prescribing the
procedure for grievance redressal and specifically to Regulation 6.1-
establishing the IGR-Cell; Regulation 6.2, 6.4 to 6.9 & 8.3 and
contends that the limitation to approach the Forum would be
triggered upon the arising of the cause of action, which according to
him is the clarificatory order passed by the MERC dated 9/11/2010.
He further submits that without prejudice to the above, the cause of
Civil WP 7900 of 2017.odt
action can also be said to be the date of issuance of the first bill, in
which the 2% voltage surcharge as per the MERC order has been
levied. He submits that the period of two years of limitation,
provided in Regulation 6.6 shall have to be counted, from the above
two dates and any application filed beyond this period would be
barred by limitation. Reliance is placed upon Jawahar Shetkari Soot
Girni Ltd. (supra).
6. Mr. Shridhar Purohit, learned Counsel for the petitioner,
submits that the position as stated in (a) Maharashtra State
Electricity Distribution Company Limited, Nagpur Vs. Shilpa Steel
and Power Limited, Nagpur and others, 2018 (1) Mh.L.J. 740,
holding the date of rejection by the IGR-Cell is the date of cause of
action for approaching the Forum (b) Maharashtra State Electricity
Distribution Company Limited and another Vs. Electricity
Ombudsman, Nagpur and another Writ Petition No.1650 of 2012,
decided on 10/7/2013, holding that there is no time limit prescribed
for approaching the IGR-Cell and therefore it has to be done within
reasonable time, (c) M/s. Hindustan Petroleum Corporation Limited
Vs. Maharashtra State Electricity Distribution Co. Ltd., 2012 SCC
Civil WP 7900 of 2017.odt
OnLine Bom 66, which holding that the cause of action for
submitting a grievance to the Forum arises when the IGR-Cell does
not redress the grievance, and the limitation of two years would
start from this date, do not lay down the correct law as the
non-redressal of the grievance by the IGR-Cell cannot be said to be a
cause of action within the meaning of the term as occurring in
Regulation 6.6. He submits that the term 'cause of action' is directly
relatable to a legal injury, which could only mean the imposition of
the voltage surcharge upon the consumer, which would be found in
the monthly electric bill, which would contain such an entry and not
otherwise. He further submits that now new Regulations have been
framed in 2020, in which the IGR-Cell has been done away with. He
therefore submits, that the limitation to approach the Forum, would
be two years from the date of the voltage surcharge being billed,
which would be the cause of action. He further submits that the IGR-
Cell, being an internal grievance redressal mechanism, any decision
rendered by it, or non-redressal of a grievance by it, would not fall
within the expression "cause of action". He therefore submits that
the questions raised have to be answered accordingly.
Civil WP 7900 of 2017.odt
6.1. Mr. Shridhar Purohit, learned Counsel for the petitioner,
in the matter of how statutes are to be read and interpreted, places
reliance upon Chief Justice of A.P. and another Vs. L.V.A. Dikshitulu
and others etc., AIR 1979 SC 193 ; Bhatia International Vs. Bulk
Trading S.A. and another, AIR 2002 SC 1432 ; State of Tamil Nadu
Vs. Kodaikanal Motor Union (P) Ltd., (1986) 3 SCC 91 ; Collector
of Customs, Baroda Vs. Digvijaysinhji Spinning and Weaving Mills
Ltd. Jamnagar, AIR 1961 SC 1549 ; Chief Inspector of Mines & Anr.
Vs. Karam Chand Thapar etc., AIR 1961 SC 838 ; Commissioner of
Income Tax, Central Calcutta Vs. National Taj Traders, (1980) 1 SCC
370. He submits that even if there may be some discord in the
Regulations between the time period to approach the IGR-Cell and
the Forum (CGRF) the same has to be reconciled as best as possible,
considering the intention for creating the IGR-Cell. He further
submits that the conferment of power and authority upon the MERC
to frame guidelines in view of Section 181(2)(r) of the Electricity
Act, would include the power and authority to create the IGR-Cell or
for that matter any Forum which may result in speedy redressal of
the grievance of the consumer. He therefore submits that the
creation of the IGR-Cell cannot be faulted with.
Civil WP 7900 of 2017.odt
7. Mr. Ajay Mohgaonkar, learned Counsel supporting
learned Counsel Mr. Shridhar Purohit, submits that the IGR-Cell, is a
mechanism for settlement to facilitate early resolution of dispute,
without approaching the Forum. He submits that if there is no
resolution before the IGR-Cell, within the period of two months,
then the consumer has a right to approach the Forum. Even
otherwise, according to him, it is the liability of the IGR-Cell to
notify whether the grievance has been resolved or not, to the Forum.
He further submits that the decision of the IGR-Cell for the purpose
of the limitation for approaching the Forum is immaterial, as the
consumer, has to approach the Forum within a period of two years
from the cause of action. He further contends that the cause of
action remains the same and does not change, which according to
him is the date on which the 2% voltage surcharge is billed. He
further submits that the order of the IGR-Cell cannot be treated as a
grievance under Regulation 2 (c) and therefore would not give rise
to a cause of action. He cites the analogy of the dispute resolution
mechanism under the Industrial Disputes Act, whereunder, a dispute
has first to be referred to the Conciliation Officer and in case of its
non-resolution, goes to the Government. He submits that the
Civil WP 7900 of 2017.odt
limitation prescribed under Regulation 6.6 is mandatory in nature,
looking to the language of the Regulation which prohibits the
entertaining of any grievance filed beyond the period of two years
from the date of cause of action.
8. Mr. Shekhar Dhengale, learned Counsel for the
respondent no.1 submits that a cause of action would mean a legal
injury. He submits, that no limitation is provided to approach the
IGR-Cell. Regulation 6.7 makes it necessary to first approach the
IGR-Cell before approaching the Forum and therefore the time
consumed to approach the IGR-Cell and spent there for decision by
the IGR-Cell, which is not fixed would indicate, that the period of
two years, indicated for approaching the Forum, is not a fixed
period, but is variable, depending upon the time spent for the IGR-
Cell to decide the matter. The effect of creating the IGR-Cell, is
change in the period of limitation to approach the Forum. Therefore,
if the Forum is approached within a reasonable time, the party
cannot be non-suited.
Civil WP 7900 of 2017.odt
8.1. Learned Counsel Mr. Shekhar Dhengale, has placed on
record a compilation of judgments, in support of his submissions
which is as under :
a) Maharashtra State Electricity Distribution Company
Limited and another Vs. Electricity Ombudsman,
Nagpur and another (W.P. No.1650/2012, dated
10/7/2013),
b) M/s. Hindustan Petroleum Corporation Limited Vs.
Maharashtra State Electricity Distribution Co. Ltd. and
others, 2012 SCC OnLine Bom 66,
c) The Maharashtra State Electricity Distribution
Company Ltd., and another Vs. Jawahar Shetkari Soot
Girni Ltd. (W.P. No.6859/2017 decided on 21/8/2018),
d) Maharashtra State Electricity Distribution Company
Limited Vs. Electricity Ombudsman, Nagpur and
another (W.P. No.1588/2019, decided on 8/1/2020),
e) Maharashtra State Electricity Distribution Company
Limited Vs. Shilpa Steel & Power Limited and others
(W.P. No. 3997/2016, decided on 18/7/2017),
f) Maharashtra State Electricity Distribution Company
Ltd. Vs. Electricity Ombudsman and another (W.P.
No.422/2013, decided on 9/7/2013: 2014 (1) Mh.L.J.
930,
g) Maharashtra State Electricity Distribution Company
Ltd. Vs. Maharashtra State Electricity Regulatory
Civil WP 7900 of 2017.odt
Commission (W.P. No.197/2009, decided on
11/3/2011),
h) Madras Port Trust Vs. Hymanshu International,
(1979) 4 SCC 176,
i) Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)
(D) Thr. Lrs. and others, 2020 (4) BCR 232,
j) Sushila Devi Vs. Ramanandan Prasad, (1976) 1 SCC
361,
k) Central Board of Dawoodi Bohra Community and
another Vs. State of Maharashtra and another, (2005) 2
SCC 673,
l) Shakti Bhog Food Industries Ltd. Vs. Central Bank of
India and another, 2020 SCC OnLine SC 482,
m) Union of India Vs. Sri Sarada Mills Ltd., AIR 1973
SC 281.
9. Mr. Arun Agrawal, learned Counsel, has also addressed
the Court on the question under reference and supports the stand
taken by Learned Counsel Mr. Shekhar Dhengale. He submits, that
Regulation 6.7 (a), by making it mandatory to approach the IGR-Cell
before approaching the Forum and Regulation 6.2, by not
prescribing any time limit within which the Forum should be
approached, creates a contradictory position, which cannot be
reconciled. He submits that the Legislature consciously avoided
Civil WP 7900 of 2017.odt
framing of limitation under Section 42 (5) (7) of the Electricity Act
and therefore, the same cannot be prescribed by the Rules. He
submits that the expression "legal injury", would mean actual injury,
which would be the starting point of limitation, for which he places
reliance upon Shakti Bhog Food Industries Ltd. Vs. Central Bank of
India and another, 2020 SCC OnLine SC 482. He also relies upon
Regulations 6.5 & 6.6. and indicating the sequence of Regulations
6.2, 6.7 & 6.6 submits that in any case the IGR-Cell has to be
approached first before approaching the Forum, which makes the
time limit in Regulation 6.6, unworkable. By inviting our attention
to a document titled as "Rule and Procedure in MSEDCL for
Redressal of Grievances", as downloaded from the website, he
submits that the Rules of procedure, as indicated in Regulation 6.2,
have been framed, which again indicate, that there is no limitation
for approaching the Forum, and the limitation as contained in
Regulation 6.6, is not mandatory.
10. Mr. Tushar Mandlekar, learned Counsel has also
addressed upon the questions referred. He contends that Section 42
(5) (6) (7) (8) read with Section 181 (r) (s) read with Section 86
Civil WP 7900 of 2017.odt
read with Section 97 of the Electricity Act does not give any power
to MERC to frame Rules or Regulations on the point of limitation to
restrict the right of consumer to redress his grievance against illegal
or arbitrary actions of distribution licensee in any manner and the
MERC being a delegate has exceeded its jurisdiction in creating the
IGR-Cell. He submits that the Rules created by distribution licensee
under Regulation 3.3 (c) (ii) (iii) and (iv) illegally restrict the right
of the consumer and compels him to approach IGR-Cell within two
years, without any authority of law. Though he raised contentions
about the unreasonableness and invalidity of some of the
Regulations, we are not here concerned with these challenges, while
answering the reference, and even otherwise all these challenges
including to the validity of the Regulations on account of excessive
sub-delegation or being violative of Article 19 of the Constitution are
already the subject matter of another petition filed by him and can
be dealt with therein. It is therefore not necessary for us to deal with
the contentions or the judgments relied upon by him, relating to the
invalidity or excessive delegation.
Civil WP 7900 of 2017.odt
11. Mr. Tushar Mandlekar, learned Counsel places reliance
upon the following judgments :
a) Kishan Prakash Sharma and others Vs. Union of
India and others, (2001) 5 SCC 212.
b) State of U.P. and others Vs. Renusagar Power Co.
and others, AIR 1988 SC 1737.
c) State of T. N. and another Vs. P. Krishnamurthy and
others (2006) 4 SCC 517.
d) Babaji Kondaji Garad and others Vs. Nasik
Merchants Co-operative Bank Ltd., Nasik and others,
AIR 1984 SC 192.
e) State of Uttar Pradesh Vs. Singhara Singh and
others,1963 AIR 358.
f) Smt. Sushila Devi Vs. Ramanandan Prasad and
others, AIR 1976 SC 177.
g) Sakuru Vs. Tanaji, AIR 1985 SC 1279.
h) Dalchand Vs. Municipal Corporation, Bhopal and
another AIR 1983 SC 303.
12. For considering the questions referred, certain
provisions of the Electricity Act, 2003 and the Maharashtra
Electricity Regulatory Commission (Consumer Grievance Redressal
Forum and Electricity Ombudsman) Regulations, 2006 being
relevant and material are reproduced as under :-
Civil WP 7900 of 2017.odt
"Section 42. Duties of distribution licensee and open
access. -
(1) --------.
(2) -------.
(3) -------.
(4) ------------
(5) Every distribution licensee shall, within six months
from the appointed date or date of grant of licence,
whichever is earlier, establish a forum for redressal of
grievances of the consumers in accordance with the
guidelines as may be specified by the State Commission.
(6) ----------
(7) ----------
(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."
Section 181. Powers of State Commissions to make
regulations. - (1) The State Commissions may, by
notification, make regulations consistent with this Act
and the rules generally to carry out the provisions of this
Act.
(2) In particular and without prejudice to the generality
of the power contained in sub-section (1), such
regulations may provide for all or any of the following
matters, namely:
(a) ----------- ;
(r ) guidelines under sub-section (5) of section 42;
Civil WP 7900 of 2017.odt
(s) the time and manner for settlement of grievance
under sub-section (7) of section 42;
(t) ------------------ ;
(u) -----------------;
(za) ----------------; "
"The Maharashtra Electricity Regulatory Commission
(Consumer Grievance Redressal Forum and Electricity
Ombudsman) Regulations, 2006 -
2. Definitions. - 2.1 In these Regulations, unless the
context otherwise requires -
(a) "Act" means the Electricity Act, 2003 (36 of 2003);
(b) "Commission" means the Maharashtra Electricity
Regulatory Commission;
(c) "Grievance" means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and
manner of performance which has been undertaken to
be performed by a Distribution Licensee in pursuance of
a licence, contract, agreement or under the Electricity
Supply Code or in relation to standards of performance
of Distribution Licensees as specified by the Commission
and includes inter alia (a) safety of distribution system
having potential of endangering of life or property, and
(b) grievances in respect of non-compliance of any order
of the Commission or any action to be taken in
pursuance thereof which are within the jurisdiction of
the Forum or Ombudsman, as the case may be.
(d) "Internal Grievance Redressal Cell" or "IGR Cell"
means such first authority to be contacted by the
Civil WP 7900 of 2017.odt
consumer for redressal of his/her Grievance as notified
by the Distribution Licensee;
(e) "Forum" means the forum for redressal of grievances
of consumers required to be established by Distribution
Licensees pursuant to sub-section (5) of Section 42 of
the Act and these Regulations.
(f) "Electricity Ombudsman" means -------------.
6. Procedure for Grievance Redressal. - 6.1 The
Distribution Licensee shall have an Internal Grievance
Redressal Cell to record and redress Grievances in a
timely manner. The IGR Cell of the Distribution Licensee
shall have office(s) in each revenue district in the area of
supply.
Provided that where the area of supply is the city
of Greater Mumbai and adjoining areas, the IGR Cell of
the Distribution Licensee shall have at least one (1)
office for the area of supply. The Distribution Licensee
shall endeavour to redress Grievances through its IGR
Cell.
6.2 A consumer with a Grievance may intimate the
IGR Cell of such Grievance in the form and manner and
within the time frame as stipulated by the Distribution
Licensee in its rules and procedures for redressal of
Grievances.
Provided that where such Grievance cannot be
made in writing, the IGR Cell shall render all reasonable
assistance to the person making the Grievance orally to
reduce the same in writing.
Civil WP 7900 of 2017.odt
Provided also that the intimation given to officials
(who are not part of the IGR Cell) to whom consumers
approach due to lack of general awareness of the IGR
Cell established by the Distribution Licensee or the
procedure for approaching it, shall be deemed to be the
intimation for the purposes of these Regulations unless
such officials forthwith direct the consumer to the IGR
Cell.
6.3 (a) The office of the IGR Cell shall issue
acknowledgment of the receipt of the Grievance to the
consumer within five (5) working days from the date of
receipt of a Grievance. Where the Grievance has been
submitted in person, the acknowledgment shall be
provided at the time of submission.
Provided that where the Grievance is submitted
by email to the IGR Cell acknowledgment of the receipt
of the Grievance to the consumer shall be provided by
return email as promptly as possible.
Provided further that the IGR Cells shall keep
such electronic records in hard form for ease of retrieval.
Provided further that where the Grievance is
submitted by email hard copies of the same shall be
submitted forthwith separately to the IGR Cell.
(b) Notwithstanding sub-clause (a), the written
acknowledgment of receipt of grievance provided by
officials (who are not part of the IGR Cell) shall be
deemed to be the acknowledgment for the purposes of
these Regulations.
Civil WP 7900 of 2017.odt
6.4 Unless a shorter period is provided in the Act, in
the event that a consumer is not satisfied with the
remedy provided by the IGR Cell to his Grievance within
a period of two (2) months from the date of intimation
or where no remedy has been provided within such
period, the consumer may submit the Grievance to the
Forum. The Distribution Licensee shall, within the said
period of two (2) months, send a written reply to the
consumer stating the action it has taken or proposes to
take for redressing the Grievance.
6.5 Notwithstanding Regulation 6.4, a Grievance maybe
entertained before the expiry of the period specified
therein, if the consumer satisfies the Forum that prima
facie the Distribution Licensee has threatened or is likely
to remove or disconnect the electricity connection has or
is likely to contravene any of the provisions of the Act or
any rules and regulations made thereunder or any order
of the Commission, provided that, the Forum or
Electricity Ombudsman, as the case may be, has
jurisdiction on such matters.
Provided further that no such Grievance shall be
entertained, before the expiry of the period specified in
Regulation 6.4, unless the Forum records its reasons for
the same.
6.6 The Forum shall not admit any Grievance unless it is
filed within two (2) years from the date on which the
cause of action has arisen.
6.7 The Forum shall not entertain a Grievance. -
(a) unless the consumer has complied with the
Civil WP 7900 of 2017.odt
procedure under Regulation 6.2 and has submitted his
Grievance in the specified form, to the Forum;
(b) unless the consumer is aggrieved on account of his
Grievance being not redressed by the IGR Cell within the
period set out in these Regulations;
(c) unless the Forum is satisfied that the Grievance is not
in respect of the same subject matter that has been
settled by the Forum in any previous proceedings; and
(d) where a representation by the consumer, in respect
of the same Grievance, is pending in any proceedings
before any court, tribunal or arbitrator or any other
authority, or a decree or award or a final order has
already been passed by any such court, tribunal,
arbitrator or authority.
6.8 If the Forum is prima facie of the view that any
Grievance referred to it falls within the purview of any
of the following provisions of the Act the same shall be
excluded from the jurisdiction of the Forum:
(a) -----------;
(b) -----------;
(c) -----------; and
(d) ----------.
6.9 The Forum may reject the Grievance at any stage if it
appears to it that the Grievance is:
(a) frivolous, vexatious, mala fide;
(b) without any sufficient cause;
(c) there is no prima facie loss or damage or
inconvenience caused to the consumer."
Civil WP 7900 of 2017.odt
13. As the answer to question nos.1 and 3 are
interlinked, these are taken together for consideration.
Question No.3.
The expression "cause of action" employed in Regulation
6.6 of the Maharashtra Electricity Regulatory
Commission (Consumer Grievance Redressal Forum and
Electricity Ombudsman) Regulations, 2006 shall have to
be authoritatively interpreted ?
And
Question No.1.
When is the limitation to approach the Consumer
Grievance Redressal Forum (CGRF) triggered ?
Regulation 6.6. states that the Forum shall not admit
any grievance unless it is filed within two (2) years from the date on
which the cause of action has arisen.
13.1. The Regulations do not define "cause of action". The
same therefore has to be understood in the normal parlance as used
in civil proceedings.
13.2. In Halsbury's laws of England (4th edition) it has been
stated as follows :
Civil WP 7900 of 2017.odt
" 'cause of action' has been defined as meaning simply a
factual situation the existence of which entitles one person to
obtain from the court a remedy against another person. The
phrase has been held from earliest time to include every fact
which is material to be proved to entitle Plaintiff to succeed,
and every fact which a defendant would have a right to
traverse. "cause of action" has also been taken to mean that
particular act on the part of the defendant which gives the
Plaintiff his cause of complaint, or the subject matter of
grievance founding the action, not merely the technical cause
of action'' as quoted in Sundeep Polymers Private Limited
versus Bajaj Auto Ltd, 2007 (7) SCC 148."
13.3. Osborne's Concise Law Dictionary defines 'cause of
action' as the fact or combination of facts which gives rise to a right
or action. Black's law dictionary (9th edition) states it as a group of
operative facts giving rise to one or more bases for suing; a factual
situation that entitles one person to obtain a remedy in court from
another person. Stroud's Judicial Dictionary states it to be the entire
set of facts that give rise to an enforceable claim; the phrase
comprises every fact, which if traversed, the plaintiff must prove in
order to obtain judgment.
Civil WP 7900 of 2017.odt
13.4. A cause of action thus means every fact, which if
traversed, it would be necessary for the plaintiff to prove in order to
support his right to a judgment of the Court. In other words, it is a
bundle of facts which is taken with the law applicable to them gives
the plaintiff a right to relief against the defendant. It must include
some act done by the defendant since in the absence of such an act
no cause of action can possibly accrue. It is not limited to the actual
infringement of the right sued on but includes all the material facts
on which it is founded. It does not comprise evidence necessary to
prove such facts, but every fact necessary for the plaintiff to prove to
enable him to obtain a decree. Everything which if not proved would
give the defendant a right to immediate judgment must be part of
the cause of action. But it has no relation whatever to the defence
which may be set up by the defendant nor does it depend upon the
character of the relief prayed for by the plaintiff. [see Chand Kaur /
Partab Singh 15 IA 156 : 1888 SCC OnLine PC 14 ; Gurdit Singh
and others Vs. Munsha Singh and others, (1977) 1 SCC 791 ; A. B.
C. Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem (1989) 2 SCC 163;
Swamy Atmananda and others Vs. Sri Ramakrishna Tapovanam and
others, (2005) 10 SCC 51 ; South East Asia Shipping Co. Ltd. Vs.
Civil WP 7900 of 2017.odt
Nav Bharat Enterprises Pvt. Ltd. and others (1996) 3 SCC 443;
Navinchandra N. Majithia Vs. State of Maharashtra, (2000) 7 SCC
640; Rajasthan High Court Advocates' Association Vs. Union of
India and others, (2001) 2 SCC 294 ; Prem Chand Vijay Kumar Vs.
Yashpal Singh and another (2005) 4 SCC 417 ; A.V.M. Sales
Corporation Vs. Anuradha Chemicals Private Limited, (2012) 2 SCC
315 ; Indian Performing Rights Society Limited Vs. Sanjay Dalia and
another, (2015) 10 SCC 161 ; Shakti Bhog Food Industries Ltd.
(supra) ]. It is thus apparent that the expression 'cause of action',
takes its color from the factual background, in which it is invoked
and the law applicable. The 'cause of action', would also arise when
a 'legal injury' is caused.
13.5. The expression 'legal injury', is one of the greatest and
widest import and is incapable of any precise definition. Generally
speaking a 'legal injury', is a combination of 'legal right' and 'injury'
and would mean the violation of every legal right which a person
has, not only on account of any Statutory provision, Rule or
Regulation but also under the common law principles. In Shanti
Kumar R. Canji Vs. The Home Insurance Co. of New York (1974) 2
Civil WP 7900 of 2017.odt
SCC 387 a legal right is said to be an averment of entitlement
arising out of legal rules and has been defined as an advantage or
benefit conferred upon a person by a rule of law.
13.6. In Daniel Hailey Walcott and another Vs. State, 1967
SCC OnLine Madras 163 : AIR 1968 Madras 349 the concept of a
'legal right' has been explained as under :
"26. From the statements made by the jurists noted above,
the following principles can be deduced broadly to
understand what a 'legal right' is: (1) Legal right in its strict
sense is one which a an assertable claim, enforceable before
Courts and administrative agencies; (2) In its wider sense,
a legal right has to be understood as any advantage or
benefit conferred upon a person by a rule of law; (3) There
are legal rights which are not enforceable, though
recognised by the law; (4) There are rights recognised by
the International Court, granted by international law; but
not enforceable; and (5) A legal right is a capacity of
asserting a secured interest rather than a claim that could
be asserted in the Courts.
13.7. In Mr 'X' Vs. Hospital 'Z', (1998) 8 SCC 296 a legal right has
been defined as under :
"15. "Right" is an interest recognised and protected by
moral or legal rules. It is an interest the violation of which
would be a legal wrong. Respect for such interest would
be a legal duty. That is how Salmond has defined "right".
In order, therefore, that an interest becomes the subject of
a legal right, it has to have not merely legal protection
Civil WP 7900 of 2017.odt
but also legal recognition. The elements of a "legal right"
are that the "right" is vested in a person and is available
against a person who is under a corresponding obligation
and duty to respect that right and has to act or forbear
from acting in a manner so as to prevent the violation of
the right. If, therefore, there is a legal right vested in a
person, the latter can seek its protection against a person
who is bound by a corresponding duty not to violate that
right."
13.8. The word 'Injury', is a general word and is of an
inclusive nature encompassing in itself all manner of wrongs, be it to
the person, body or mind and includes physical, mental, financial or
the violation of a legal right available to any person.
13.9. In Halsbury's Laws of England, 4th Edn, Vol-12 - the
word 'Injuria' has been defined to mean a term which refers to the
damage which gives rise to a legal right to recompense. Black's Law
Dictionary 7th Edn., 1999- defines it as the violation of another's
legal right, for which the law provides a remedy; a wrong or
injustice. Wharton's Law Lexicon, Reprint 14 th Edn.- defines it as any
damage done to another, either in his person, rights, reputation, or
property, for which an action lies at law. It would be thus apparent
Civil WP 7900 of 2017.odt
that any violation of a 'legal right', which gives rise to an 'injury'
would mean a 'legal injury' and every legal injury would give rise to
a 'cause of action'.
13.10. The expression 'cause of action', in the present matter
is intrinsically linked to the definition of the word 'Grievance', as
defined in Regulation 2(c) and includes a grievance in respect of
non-compliance of any order of the Commission or any action to be
taken in pursuance thereof, which is within the jurisdiction of the
Forum (CGRF), occurring in a given case.
13.11. The word 'Grievance', has been defined in
Regulation 2 (c) in an expansive and inclusive manner :
It contemplates :
a) a Distribution Licensee having been appointed under a licence,
contract or agreement;
b) the duties, obligations and responsibilities to be performed by
such Distribution Licensee under :
(i) the licence, contract or agreement; or
(ii) under the Electricity Supply Code or
(iii) in relation to standards of performance of Distribution
Licensees as specified by the Commission and
Civil WP 7900 of 2017.odt
where such Distribution Licensee commits any :
c) fault, imperfection, shortcoming or inadequacy in ----
(i) the quality, nature and manner of performance; or
(ii) safety of distribution system having potential of
endangering of life or property,
and
d) grievances in respect of non-compliance of any order of the
Commission or any action to be taken in pursuance thereof ;
which are within the jurisdiction of the Forum,
Thus each and every fault, imperfection, shortcoming or
inadequacy in the performance of the duties, responsibilities and
obligations as well as in the safety of distribution system by the
Distribution Licensee and so also each and every grievance in
respect of non-compliance of any order of the Commission or any
action to be taken in pursuance thereof, if within the jurisdiction of
the Forum, would constitute a 'cause of action', to the consumer to
approach the Forum under Regulation 6.6, which is the answer to
Question no.3.
That takes us to the consideration of Question no.1.
Civil WP 7900 of 2017.odt
13.12. In the instant matter, by the order dated 5/3/2010,
the MERC, pending a detailed study and approval by the
Commission, as an interim relief, ordered the levy of Voltage
Surcharge of 2% additional units to be billed for supply to the
consumers at Voltages lower than the specified SOP regulations. By
the clarificatory order dated 9/11/2010, the MERC clarified that the
Voltage Surcharge would not be permitted for a period prior to
5/3/2010. It is in pursuance to these orders that Voltage Surcharge
of 2% additional units was billed. Thus the cause of action for
challenging the orders dated 5/3/2010 and 9/11/2010, would
accrue to the consumers, on the date on which they were passed,
however this is not a grievance which can be raised before the
Forum, as is apparent from the definition of 'Grievance', in
Section 2(c) of the Regulations of 2006. Thus in normal parlance, as
contended by Mr. Shridhar Purohit, learned Counsel for the
petitioner, had the position as discussed hereinafter not been extant,
the cause of action for the consumers would have arisen on the date
when the bill containing the inclusion of 2% additional units on
account of Voltage Surcharge, was received by the consumers, from
which date they had to approach the Forum within the time of 2
Civil WP 7900 of 2017.odt
years as stipulated in Regulation 6.6.
13.13. The question however has to be considered in light of
the embargo upon the Forum, put by the language of Regulations
6.2, 6.4, proviso to 6.5 and 6.7 (a) & (b) and the limitation as
prescribed by Regulation 6.6.
13.14. The scheme of the Regulations 2006, as indicated from
a perusal of the above stated Regulations makes it mandatory for a
consumer to approach the IGR-Cell before it approaches the Forum.
The definition clause 2.1 (d), which defines the IGR-Cell, states that
the IGR-Cell is the first authority to be contacted by the consumer
for redressal of his/her grievance. Regulation 6.2 requires a
consumer with a grievance to intimate the IGR-Cell of such
grievance in the form and manner and within the time frame as
stipulated by the Distribution Licensee in its rules and procedures
for redressal for grievances. The second proviso to Regulation 6.2
grants a deeming fiction to any intimation given by the consumer of
any grievance, even to authorities who are not part of IGR-Cell, to
be an intimation for the purposes of the Regulations, unless such
Civil WP 7900 of 2017.odt
officials forthwith direct the consumer to the IGR-Cell.
Regulation 6.4 requires the IGR-Cell to provide a remedy within two
months of the date of intimation of the grievance and if no such
remedy is provided within such period, entitles the consumer to
submit the grievance to the Forum. Regulation 6.4 further requires
the Distributor Licensee, within the period of two months to send a
written reply to the consumer stating the action it has taken or
proposes to take for redressal of the grievance. The proviso to
Regulation 6.5, though empowers a consumer to directly approach
the Forum with the grievance, before expiry of the period specified
in Regulation 6.4, it however requires the Forum to record reasons
for the same. Regulations 6.7 (a)(b) enjoins upon the Forum not to
entertain a grievance unless the consumer has approached the
IGR-Cell or having so approached is aggrieved on account of his
grievance not being addressed by the IGR-Cell. All this clearly
indicates that the approach by a consumer with his grievance to the
IGR-Cell is considered necessary, though not mandatory, before he
approaches the Forum.
Civil WP 7900 of 2017.odt
13.15. The import and effect of these Regulations, 2006 has
also to be considered in light of the Rules and procedure framed
under Regulation 6.2. The Rules of procedure framed under
Regulation 6.2 relating to the IGR-Cell, as brought to our notice by
learned Counsel Mr. Arun Agrawal, which have not been disputed
by Mr. Shridhar Purohit, learned Counsel for the petitioner, read as
under:
"1) Internal Grievances Redressal Cell (IGRC)
The Applicant may approach to the appropriate office of the
Distribution Licensee or IGRC and file the grievance as per
the prescribed Format 'Form X' which is available on website
& IGRC. The IGRC shall not admit any grievance unless it is
filed within two (2) years from the date on which the cause
of action has arisen. Where such grievance cannot be made
in writing, the IGRC shall render all reasonable assistance to
the person making the grievance orally to reduce the same
in writing. The office of the IGRC shall issue
acknowledgment of the receipt of the grievance to the
consumer within five (5) working days from the date of
receipt of a grievance. Where the grievance has been
submitted in person, the acknowledgement shall be
provided at the time of submission. The address & contact
nos. of IGRC are available on following link of website;"
Civil WP 7900 of 2017.odt
Thus the period of limitation for admitting a grievance
by the IGR-Cell is two years from the date on which the cause of
action has arisen, as per the Rules of procedure framed under
Regulation 6.2, as against which the limitation for approaching the
Forum, under Regulation 6.6 is also two years from the date on
which the cause of action has arisen, prior to which it is mandatory
for a consumer to approach the IGR-Cell as indicated above. Thus
though Regulation 6.4 provides for the grievance to be redressed by
the IGR-Cell within two months of the intimation, the procedure laid
down under Regulation 6.2 prescribes an outer limit of two years
from the date of cause of action, to approach the IGR-Cell itself.
Thus the dichotomy created by the Regulations regarding the
limitation for approach to the IGR-Cell and Forum, cannot be
resolved, unless a meaningful, purposive and harmonious
construction is placed upon the Regulations.
13.16. In light of the admitted position that the Regulations
have been created for the purpose of resolving the grievances of the
consumers, the purpose clearly appears to be, to benefit the
consumers. So also if there is an embargo upon the Forum
Civil WP 7900 of 2017.odt
entertaining a grievance unless the IGR-Cell has first been
approached as is reflected from Regulation 6.7 (a) and (b), then for
the purpose of approaching the Forum, the cause of action would
become the action of the IGR-Cell in either having inadequately
addressed the grievance or not having addressed the same at all,
within the time frame as stipulated in Regulation 6.4, subject to the
limitation as prescribed in the Rules of procedure framed under
Regulation 6.2 of approaching the IGR-Cell.
13.17. Thus considering the above position as spelt out by a
conjoint reading of the language of Regulations 6.2, 6.4, proviso to
6.5, 6.7 (a) and (b) and the limitation as prescribed by
Regulation 6.6, in conjunction with the Rules of procedure as framed
under Regulation 6.2 and the requirement of approaching the
IGR-Cell before approaching the Forum and harmonizing them in a
meaningful manner, the cause of action as contemplated by
Regulation 6.6 for approaching the Forum will have to be held to
arise when the IGR-Cell inadequately redresses the grievance as
brought to its notice or fails to redress the same. Any other
construction or meaning would result in creating a situation, where
Civil WP 7900 of 2017.odt
the above provisions cannot be reconciled with each other.
Considered in a different light, the Forum, in view of the necessity to
approach the IGR-Cell first, has been rendered as if it is an Appellate
Authority over the action or inaction taken by the IGR-Cell and it is
because of this reason also, that the cause of action for approaching
the Forum can only be said to be the inaction, or inadequate action
of the IGR-Cell. The answer to question no.1 therefore has to be that
the cause of action to approach the Forum, would be the inadequate
action or inaction of the IGR-Cell, as to the grievance referred to it
under Regulation 6.1 and the limitation shall begin from such date.
14. That takes us to the consideration of Question no.2.
Question No.2
Whether in the absence of limitation to approach the
Internal Grievance Redressal Cell (IGR Cell),
whether a consumer would be justified in
approaching the IGR Cell within a reasonable
period ?
14.1. As stated above, the Rules of procedure as framed under
Regulation 6.2, permits the approach to the IGR-Cell, within a period
Civil WP 7900 of 2017.odt
of two years from the date of the cause of action. Since the field is
already governed by the Rules of procedure as framed under
Regulation 6.2, the time frame as enumerated therein, will have to
be adhered to. This would indicate that a consumer would be liable
to approach the IGR-Cell within two years from the date of the cause
of action, and not within an undefined period of time. This would be
the answer to question no.2.
15. The question whether a particular provision is
mandatory or directory depends upon the language used and the
purpose for which it is used. Question no.4, will therefore have to be
considered, in view of the purpose for which the relevant
Regulation 6.6 was framed.
Question No.4
"What is the nature of the limitation of "two (2) years" in
Regulation 6.6. of the Maharashtra Electricity Regulatory
Commission (Consumer Grievance Redressal Forum and
Electricity Ombudsman) Regulations, 2006 for admitting
grievance of a consumer, whether it is directory, made for
facilitating the convenience of the parties or mandatory
having force of law ?"
Civil WP 7900 of 2017.odt
15.1. In Dalchand Vs. Municipal Corporation, Bhopal and
another, AIR 1983 SC 303 , while considering the question whether
a particular provision is mandatory or directory, in light of the
provisions of Rule 9 (j) of the Prevention of Food Adulteration Act,
as it then stood, it was held that :-
" There are no ready tests or invariable formulae to determine
whether a provision is mandatory or directory. The broad
purpose of the statute is important. The object of the
particular provision must be considered. The link between the
two is most important. The weighing of the consequence of
holding a provision to be mandatory or directory is vital and,
more often than not, determinative of the very question
whether the provision is mandatory or directory. Where the
design of the statute is the avoidance or prevention of public
mischief, but the enforcement of a particular provision
literally to its letter will tend to defeat that design, the
provision must be held to be directory, so that proof of
prejudice in addition to non-compliance of the provision is
necessary to invalidate the act complained of. It is well to
remember that quite often many rules, though couched in
language which appears to be imperative, are no more than
mere instructions to those entrusted with the task of
discharging statutory duties for public benefit. The negligence
of those to whom public duties are entrusted cannot by
statutory interpretation be allowed to promote public mischief
and cause public inconvenience and defeat the main object of
Civil WP 7900 of 2017.odt
the statute. It is as well to realise that every prescription of a
period within which an act must be done, is not the
prescription of a period of limitation with painful
consequences if the act is not done within that period."
(emphasis supplied)
15.2. In normal parlance, all provisions providing for a
limitation, have to be construed strictly and proceedings have to be
initiated within the time frame stated, thereby meaning that such
provisions are to be construed as mandatory. The present case, is
singled out to be an exception due to the peculiarity of the
Regulations, 2006, as already discussed while answering question
no.3, on account of the creation of the IGR-Cell and providing a time
frame to approach it with the grievance, which is not in consonance
with the time frame as provided in Regulation 6.6 to approach the
Forum, with the same grievance. While the Rules of Procedure
framed under Regulation 6.2 provide that the IGR-Cell, ought to be
approached within 2 years of the cause of action, Regulation 6.6 on
the other hand, provides that the Forum has to be approached within
the same time of 2 years, from the cause of action, thus making it
impossible for a consumer to follow both, for if a consumer
Civil WP 7900 of 2017.odt
approaches the IGR-Cell, let us say in the 18th month after the cause
of action, which is within the time of 2 years as per the Rules of
Procedure under Regulation 6.2 and the IGR-Cell is to address the
grievance within 2 months thereafter, the consumer then cannot
approach the Forum within the period of 2 years from the cause of
action, as required by Regulation 6.6, as the same would be
impossible, the time having already elapsed due to his adhering to
the requirement of the Rules of Procedure under Regulation 6.2 and
the necessity to approach the IGR-Cell before approaching the
Forum. It is trite that the law does not require of the litigant to do
that which is impossible, which is clearly enunciated by the maxim
"Lex non cogit ad impossibilia ". As discussed above while answering
question no.3, this position can only be reconciled if the cause of
action for approaching the Forum, is considered to be the inaction or
inadequate action of the IGR-Cell to/in addressing the grievance as
presented to it.
15.3. It is an admitted position on record that the creation of
the Forum and so also the IGR-Cell, were for the benefit of the
consumer, to create a Forum to redress the grievances of the
Civil WP 7900 of 2017.odt
consumers. In that sense of the matter, the creation of the Forum as
well as the IGR-Cell, are pieces of beneficial legislation. That being
the object and purpose of the creation of the Forum as well as the
IGR-Cell and further considering, the contrary limitations as
provided for approaching the Forum under Regulation 6.6 and the
IGR-Cell under the Rules of procedure as framed under
Regulation 6.2, it will have to held that the nature of limitation of
two years in Regulation 6.6, of approaching the Forum, is not
mandatory but is directory, as considering the law as laid down in
Dalchand (supra), the consequence of holding Regulation 6.6
mandatory, would result, in the consumer being left without any
remedy, though he may have approached the IGR-Cell, within the
time frame, as required for in the Rules of procedure framed under
Regulation 6.2. Such a consequence is not contemplated by the
Regulations, 2006 nor by the provisions of Section 42 (5) of the
Electricity Act, and a literal interpretation, of Regulation 6.6, would
result in not only causing inconvenience to the consumer, but also
defeating the object of Section 42 (5) of the Electricity Act, whereby
a right is created in the consumer to approach the Forum for
redressal of his grievance.
Civil WP 7900 of 2017.odt
15.4. There is one more reason for holding so. The majority
of the consumers, are not aware of the proceedings or the orders
passed by the MERC from time to time and become aware of the
same, only as a result of these orders being implemented by
translating them into imposition of charges in the bills issued to the
consumers. It is a salutary principle of law that the State or any of its
instrumentality cannot benefit and be unduly or unjustly enriched
by any action of the State or its instrumentality, more so, due to
delay in approaching the authorities empowered to take cognizance
of any grievance in this regard. Permitting it to be done, would
render the remedy provided therefor illusory, which is impermissible
in law. If a consumer, feels that the imposition of any charges upon
the consumer, are contrary to the provisions of any Statute or the
Rules and Regulations framed thereunder, he cannot be deprived of
a remedy to recover such charges.
15.5. The situation has developed only due to the creation of
the IGR-Cell and making it mandatory to approach it, before
approaching the Forum by the Regulations, 2006. The situation
therefore, is of the own making of the petitioner, and could have
Civil WP 7900 of 2017.odt
been avoided, had the Regulations, 2006, not contained any
provision for creation of the IGR-Cell and approaching it necessarily,
prior to approaching the Forum. It appears that realizing this
contradictory position as emanating from the Regulations, 2006, that
new Regulations have been framed in 2020, in which the IGR-Cell
has been done away with.
15.6. In these circumstances, in order to render the remedy of
approaching the Forum by the consumer for redressal of his
grievance, meaningful, effective and not illusory, it has to be held
that the provisions of Regulation 6.6 of the Regulations, 2006, are
not mandatory, but are directory in nature.
15.7. It is material to note that the petitioner, realizing the
controversy emanating due to the creation of the IGR-Cell in the
Regulations, 2006, these have since been superseded by the
Maharashtra Electricity Regulatory Commission (Consumer
Grievance Redressal Forum and Electricity Ombudsman)
Regulations, 2020, in which the IGR-Cell has been done away with
and now the Regulations enjoin a consumer to directly submit his
Civil WP 7900 of 2017.odt
grievance to the Forum and thus the controversy created due to the
formation of the IGR-Cell, thus stands adequately addressed, now,
however for matters filed and pending prior to the Regulations,
2020, the earlier Regulations, 2006 would govern the field, which
was the reason for determining the reference.
16. M/s. Hindustan Petroleum Corporation Limited and
Shilpa Steel and Power Limited (supra) holding that the cause of
action for submitting a Grievance to the Forum (CGRF) arises when
the IGR-Cell does not redress the grievance, in our considered
opinion, are in consonance with what we have expressed above.
16.1. Maharashtra State Electricity Distribution Company
Limited through its Executive Engineer and another Vs. Electricity
Ombudsman, Nagpur and another [W.P. 1650/2012] (supra), which
holds that the IGR-Cell is an internal arrangement and that the cause
of action arose when the electric supply was disrupted and therefore
the consumer ought to have approached the Forum within 2 years
from date of cause of action, in our considered view, does not
consider the near embargo in Regulations, 2006, to first approach
Civil WP 7900 of 2017.odt
the IGR-Cell before approaching the Forum nor does it attempt to
reconcile the position and thus does not lay down the correct
position, which reasoning also applies for Jawahar Shetkari Soot
Girni Limited (supra) which though noticed that the consumer could
not approach the Forum without first approaching the IGR-Cell, in
view of the requirement to approach the IGR-Cell, in view of the
language of Regulation 6.7 (a), did not go into it.
16.2. Electricity Ombudsman (supra) [W.P. No.1588 of 2019-
MANU/MH/0107/2020], though it noticed the contrary views in
M/s. Hindustan Petroleum Corporation Limited (supra) and
Jawahar Shetkari Soot Girni Limited (supra), was decided on a
different footing altogether, in as much as in para 21 it was found by
the Court that the petitioner had not raised an issue as to whether
the claim of the consumer for reimbursement would amount to a
'Grievance', under Regulation 2 (c) of the Regulations, 2006 and
therefore the matter was decided on the facts before it.
16.3. In Electricity Ombudsman (supra) [W.P. 422/2013]
2014 (1) Mh.L.J. 930, the questions in reference were not under
Civil WP 7900 of 2017.odt
consideration and therefore the same is of no assistance.
16.4. The judgments in Sushila Devi and Sakuru (supra) as
cited by learned Counsel Mr. Tushar Mandlekar, are of no assistance
to the questions in hand as the question of applicability of the
provisions of the Limitation Act, 1963 to proceedings under the
Regulations, 2006, is not an issue referred to us for an answer.
16.5. In none of the judgments cited before us, by
learned Counsel Mr. Shekhar Dhengale, the issue of creation of the
IGR-Cell, nor was the issue as to whether the time limit of 2 years as
per Regulation 6.6. was mandatory or directory fell for consideration
and these judgments were rendered on the basis of a presumption of
the legality of the IGR-Cell.
16.6. In Madras Port Trust (supra) the Hon'ble Apex Court,
held that the authorities should not adopt the practice of relying
upon technical pleas for the purpose of defeating legitimate claims
of citizens and should do what is fair and just to the citizens.
Civil WP 7900 of 2017.odt
16.7. In Dahiben (supra) the question which fell for
consideration, was whether the suit instituted on 15/12/2014, for
cancellation of the sale-deed executed on 2/7/2009, was barred by
limitation, which was so held, as the cause of action, accrued on the
date on which the sale-deed was executed and the suit ought to have
been filed within three years from its execution and does not assist
learned Counsel Mr. Shekhar Dhengale in his submission.
16.8. In Sushila Devi (supra), it was held that successive
applications, would not give rise to a fresh cause of action on each
application, as the same would have arisen on the first application
itself, and does not support the plea raised by learned Counsel
Mr. Shekhar Dhengale.
16.9. In Central Board of Dawoodi Bohra Community (supra)
principles have been laid down summing of the legal position as to
the binding nature of a decision delivered by a Bench of larger
strength, or equal strength has to be construed in respect of which
there cannot be any two opinions, however, the same are not
applicable in the present matter as the questions referred to have to
Civil WP 7900 of 2017.odt
be answered.
16.10. Sarada Mills Ltd. (supra) was a case of subrogation of
an insurance claim, in spite of which the assignee, sued in its own
name, which was upheld, and thus has no application to the
questions in hand.
16.11. In the Judgment in Appeal No.197/2009, Maharashtra
State Electricity Distribution Company Ltd. Vs. Maharashtra State
Electricity Regulatory Commission, relied upon by learned Counsel
Mr. Shridhar Purohit, the finding that the Electricity Act is a
complete Code in itself and the provisions of the Limitation Act,
1963 are not applicable to proceedings under it, cannot be disputed.
It also holds that when the Regulations as framed under the
Electricity Act, themselves provide for a limitation, then such a
limitation would clearly be mandatory and will have to be adhered
to. The finding in para 21 thereof that there is no bar with regard to
limitation in the Electricity Act, clearly appears to have been
rendered, in ignorance of the provisions of the Regulations, 2006
and specifically Regulation 6.6., whereby the limitation of 2 years
Civil WP 7900 of 2017.odt
has been prescribed, as can be seen from para 10 thereof and thus
cannot be said to be a good law.
16.12. In so far as the plea by Mr. Shridhar Purohit, learned
Counsel for the petitioner, as to how statutes are to be read and
interpreted, and the reliances thereupon, it is material to note that
in Chief Justice of A.P. (supra) it was held that a provision should be
construed according to the intent and purpose for which it is made
and if the language is precise the same must be given effect to
regardless of the consequences that may follow. In Bhatia
International (supra) it was held that if the language used is
capable of bearing more than one construction, in selecting the true
meaning, regard must be had to the consequences, resulting from
adopting the alternative construction and a construction that results
in hardship, serious inconvenience, injustice, absurdity or anomaly
or which leads to inconsistency or uncertainty and friction in the
system which the statute purports to regulate has to be rejected and
preference should be given to that construction which avoids such
results. In Kodaikanal Motor Union (P) Ltd., (supra), it was held
that the Courts must always seek to find out the intention of the
Civil WP 7900 of 2017.odt
legislature from the language used. In Digvijaysinhji Spinning and
Weaving Mills Ltd. Jamnagar, (supra) it was held that when the
words of a statute are in themselves precise and unambiguous, no
more is necessary than to expound those words in their natural and
ordinary sense. In Karam Chand Thapar (supra) it was held that
even if there might be some conflict between a rule and a provision,
they have to be reconciled as best as possible. In National Taj
Traders (supra) it was laid down that omissions are not to be
inferred and nothing is to be added to or taken away from a statute
unless there are adequate grounds to justify the inference that the
legislature intended something which it omitted to express.
16.13. There cannot be any two opinions about the principles
of statutory interpretation as laid down in the aforementioned
decisions, as cited by Mr. Shridhar Purohit, learned Counsel for the
petitioner. However, in our considered opinion, what has been
referred is not the validity of the creation of the IGR-Cell, and
therefore for the same reason as we have stated in respect of the
submissions as canvassed by learned Counsel Mr. Tushar Madlekar,
raising the plea of the creation of the IGR-Cell suffering from the
Civil WP 7900 of 2017.odt
vice of excessive delegation, which falls for consideration in the
petition challenging its validity as filed by Mr. Tushar Mandlekar,
learned Counsel, we do not think that the same can be determined
in this reference and the same is left open to be determined in the
petition wherein such a challenge has been raised.
17. To sum up, our answers to the questions as framed and
referred are as under :-
Sr. Question Answer
No.
1. When is the limitation to The limitation to approach the
approach the Consumer Consumer Grievance Redressal
Grievance Redressal Forum (CGRF) shall be triggered on
Forum (CGRF) the inadequate action or inaction
triggered ? of the IGR-Cell, as to the grievance
referred to it by the Consumer,
under Regulation 6.1 of the
Regulations, 2006 .
2. Whether in the absence A consumer would be liable to
of limitation to approach the IGR-Cell within two
approach the Internal years from the date of the cause of
Civil WP 7900 of 2017.odt
Grievance Redressal Cell action, and not within an
(IGR Cell), whether a undefined period of time.
consumer would be
justified in approaching
the IGR Cell within a
reasonable period ?
3. The expression "cause Each and every fault, imperfection,
of action" employed in shortcoming or inadequacy in the
Regulation 6.6 of the performance of the duties,
Maharashtra Electricity responsibilities and obligations as
Regulatory Commission well as, in the safety of distribution
(Consumer Grievance system by the Distribution Licensee
Redressal Forum and and so also each and every
Electricity Ombudsman) grievance in respect of non-
Regulations, 2006 shall compliance of any order of the
have to be Commission or any action to be
authoritatively taken in pursuance thereof, if
interpreted ? within the jurisdiction of the
Forum, would constitute a 'cause of
action', to the consumer to
approach the Forum under
Regulation 6.6 of the Regulations,
2006.
Civil WP 7900 of 2017.odt
4. What is the nature of Regulation 6.6 of the Regulations,
the limitation of "two 2006 for admitting grievance of a
(2) years" in consumer is directory.
Regulation 6.6 of the
Maharashtra Electricity
Regulatory Commission
(Consumer Grievance
Redressal Forum and
Electricity Ombudsman)
Regulations, 2006 for
admitting grievance of a
consumer, whether it is
directory, made for
facilitating the
convenience of the
parties or mandatory
having force of law ?"
18. Before parting with the matter, we hereby record our
appreciation of the efforts by all the learned Counsels who have
addressed us on the questions referred to and rendered their
valuable assistance in deciding the same.
Civil WP 7900 of 2017.odt
19. The matter may now be placed before the respective
Benches, for decision on their merits, in light of the answers to the
questions as given above.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar
