Bombay High Court

Executive Engineer vs Pramod Prabhakarrao Wakodkar ... on 17 March, 2021

Bench: R. G. Avachat

                                                    Writ Petition No.6182/2020
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                      WRIT PETITION NO.6182 OF 2020



 Executive Engineer,
 Maharashtra State Electricity
 Distribution Company Limited,
 O & M Division No.1, Parbhani,
 District Parbhani                                   ...PETITIONER

                  VERSUS

 Pramod Prabhakarrao Wakodkar (User)
 Chandrakant Joshi,
 Age major (Consumer No.5300104969760)
 At : Plot No.5, MIDC, Parbhani,
 District Parbhani - 431 401         ... RESPONDENT

                              .......
 Mr. U.S. Malte, Advocate for petitioner
 Mr. Shaikh Mohammad Osman, Advocate with
 Mr. I.G. Durani, Advocate for respondent
                               .......


                                  CORAM :       R. G. AVACHAT, J.

                  Date of reserving order : 21st January, 2021
                  Date of pronouncing order : 17th March, 2021


 ORDER:

The challenge in this Writ Petition is to the order

dated 3/12/2019, passed by the Electricity Ombudsman,

Nagpur in Representation No.81/2019. The order reads as

follows :-

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(i) The Respondent shall recover the tariff difference from LT-Industrial to LT-Commercial from April 2016 to march 2018 only i.e. for two years and revise the bill accordingly.

(ii) The Respondent shall not levy interest and DPC for the revised debit bill adjustment that would be raised.

(iii) The revision in bill shall be done as early as possible but not later than one month from the date of issue of this order.

(iv) The respondent shall submit the compliance report within two months from the date of issue of this order.

(v) The Secretariat of this office is directed to refund the amount of Rs.25,000/- deposited by the Appellant.

      (vi)     No order as to costs."


                  The      Maharashtra       State    Electricity     Distribution

Company (MSEDCL) is before this Court in this Writ Petition.

2. Electricity supply was given to one Shri

Chandrakant Joshi for Plot No.5, MIDC, Parbhani on

28/2/2007, bearing Consumer No. 530010496976. The

connected load was 5 HP under LT-V Industry tariff category.

The flying squad of the MSEDCL, Parbhani paid surprise visit

to the Plot No.5, MIDC, Parbhani on 13/12/2017. It was

found that, business of laundry was being run in the premises

Writ Petition No.6182/2020 :: 3 ::

supplied with electricity for industrial purpose. 'Laundry'

activity falls under commercial category. No manufacturing

process was noticed. The spot inspection report was prepared

by the flying squad in the presence of a representative of

consumer. A copy of the spot inspection report was delivered

to the representative. The Sub-Divisional Office, Parbhani

(Urban) then issued tariff difference arrears bill of

Rs.3,28,906=22 ps. for the period from January 2010 to

March 2018 from LTV Industrial to LT-II commercial category

in the month of October 2018. It also changed the tariff of

the consumer from April 2018 from industrial to commercial

category.

3. On receipt of the bill, the respondent approached

the Consumer Grievances Redressal Forum (CGRF) with the

grievance/ complaint. The MSEDCL appeared before the

CGRF. Vide its order dated 11/9/2019, the CGRF dismissed

the complaint. The respondent, therefore, moved a

representation thereagainst to the Electricity Ombudsman.

4. According to the respondent, he has been running

an industry by name "Snow-white Dry Cleaning" at Plot No.5,

Parbhani MIDC. The Small Scale Industries Department has

issued him 'industry certificate' in that regard. Shri

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Chandrakant Joshi would run manufacturing unit by name

"Prayag Industry" at Plot No.5. the said plot has been duly

transferred in the name of the respondent. He had then

applied to MSEDCL for transfer of electricity connection to his

name. The MSEDCL, however, did not transfer it. According

to the respondent, the business he was doing is an industrial

activity. The MSEDCL was, therefore, not justified to issue the

bill, charging commercial tariff.

5. Shri Uday Malte, learned counsel for the petitioner

MSEDCL would submit that, the respondent is not a consumer

within the meaning of Section 2(15) of the Electricity Act,

2003. When the flying squad paid visit to Plot No.5, MIDC,

Parbhani, it was noticed that the business of laundry was

being run. No manufacturing process was seen. The business

of laundry falls under commercial activity. The respondent

was, therefore, issued with the impugned bill. According to

learned counsel, the CGRF did not have jurisdiction to

entertain the complaint since the subject matter of the

complaint was an unauthorised use of electricity as provided

under Section 126 of the Electricity Act. Clause 6.8 of the

Maharashtra Electricity Regulatory Commission (Electricity

Supply Code and Other Conditions of supply) Regulations,

2005 provides that, if the CGRF is prima facie of the view

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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. Unauthorised use

of electricity falls within the purview of such provisions.

Learned counsel also placed reliance on Item Nos.10 and 13

pertaining to change of name and classification and re-

classification of consumer into tariff categories respectively

from Maharashtra Electricity Regulatory Commission

(Electricity Supply Code and Other Conditions of supply)

Regulations, 2005 to submit that there is a prescribed

procedure for change of name of a consumer i.e. transfer of

connection from the name of one person to another person in

case of transfer of ownership or occupancy of the premises.

According to learned counsel, the Ombudsman was not

justified to direct the MSEDCL to charge the bill for a period

not more than two years. According to him, under certain

circumstances, Section 56(2) of the Electricity Act has no

application. Learned counsel relied on the judgment of Apex

Court in case of Assistant Engineer (D1), Ajmer Vidyut Vitran

Nigam Limited and another Vs. Rahamatullah Khan Alias

Rahamjulla [ (2020) 4 SCC 650 ] and urged for setting aside

the impugned order.

6. Learned counsel for the respondent would, on the

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other hand, submit that the premises wherein the respondent

has been running an industry, has been transferred in his

name by the MIDC. The respondent fulfills the conditions of

being a consumer within the meaning of Section 2(15) of the

Act. The MSEDCL is not entitled to recover any sum due from

the consumer under Section 56 of the Act after the period of

two years from the date when such sum first became due

unless the same has been shown continuously as recoverable

as arrears of charge of electricity supplied. Learned counsel

supported the impugned order.

7. Section 2(15) of the Electricity act defines the

term 'consumer' to mean any person who is supplied with

electricity for his own use by a licensee or the Government or

by any other person engaged in the business of supplying

electricity to the public under this Act or any other law for the

time being in force and includes any person whose premises

are for the time being connected for the purpose of receiving

electricity with the works of a licensee, the Government or

such other person, as the case may be.

8. The record indicates that, the respondent had

applied long back for transfer of the electricity connection

from the name of Chandrakant Joshi to his. The premises to

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which the electricity has been supplied has been occupied by

the respondent. The MIDC has transferred the said premises

to the respondent. As such, the premises of the respondent

have been for the time being connected for the purpose of

receiving electricity with the works of the MSEDCL. He,

therefore, becomes a consumer within the meaning of the

term defined under Section2 (15) of the Electricity Act.

9. A consumer who has a grievance against an

electricity bill has a right to approach the CGRF for redressal

of his grievance. It is true that, vide clause 6.8, if the CGRF is

prima facie of the view that the grievance referred to it

pertains to unauthorised use of electricity as provided under

Section 126 of the Act, it has no jurisdiction to entertain the

same. Admittedly, the MSEDCL did not resort to Section 126

of the Electricity Act, whereunder a detailed procedure has

been prescribed. In the given circumstances, the respondent

was justified in approaching the CGRF. He made

representation to the Ombudsman, who, relying on the

judgment of a Full Bench of this Court in case of Maharashtra

State Electricity Distribution Company Ltd., Sindhudurg Kudal

Vs. Electricity Ombudsman, Mumbai [ 2019(2) Mh.L.J. 884 ],

passed the impugned order. According to the Ombudsman,

the MSEDCL can not recover the bill under Section 56 of the

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Electricity Act for a period of more than two years.

10. Before the Ombudsman, a submission was made

on behalf of the respondent that though he had prayed for

quashing the debit bill adjustment, he requested the authority

to pass an order as per the provisions of the Electricity Act.

He also did not press too much as regards the nature of

business that was being carried at the premises.

11. Section 56 of the Electricity Act reads thus :

"Section 56. (Disconnection of supply in default of payment): --

(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days' notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:

Provided that the supply of electricity shall not be cut off if such person deposits, under protest, -

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(a) an amount equal to the sum claimed from him, or

b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.

(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."

12. The impugned electricity bill has been raised for

the consumption of electricity for commercial purpose during

the period from January 2010 to March 2018. The bill is in

the nature of tariff difference arrears between the tariff meant

for industrial use and commercial category. From the bill, it is

not known whether it has been issued under Section 56 of the

Act. Sub-clause (2) of Section 56 bars recovery of amount

due beyond the period of two years from the date when such

sum became first due unless such sum has been shown

continuously as recoverable as arrear of charges of electricity

supplied. Admittedly, in the bills issued during the period

immediately preceding issuance of the impugned bill, such

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sum has not been shown in each bill recoverable of arrear of

charges of electricity supplied.

13. The learned counsel for the petitioner, relying on

the Apex Court's judgment in case of Ajmer Vidyut Vitran

Nigam Limited (supra) would submit that, it is only when a

surprise inspection was made on 13/12/2017 it was realised

that the electricity supplied for industrial purpose had all

along been used for commercial purpose and, therefore, the

impugned tariff difference arrears bill came to be issued.

I have perused the aforesaid judgment to find

that, during the course of regular audit, it was discovered

that, in 52 cases including that of the respondent, the bills

were raised under wrong tariff Code 4400 instead of Tariff

Code 9400, under which the prescribed tariff rate was Rs.2.10

per unit. The facts of the case in hand do not pertain to a

discovery of mistake in charging the respondent with a lesser

tariff meant for industrial purpose. The Apex Court observed

that, Section 56(2) did not preclude the licensee Company

from raising an additional or supplementary demand after the

expiry of limitation period under Section 56(2) in the case of a

mistake or bonafide error. It did not, however, empower the

licensee Company to take recourse to the coercive measures

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of disconnection of the electricity supply, for recovery of

additional demand. In case of a mistake, the limitation period

begins to run from the date when the mistake is discovered

for the first time. It further observed :-

"7.4. Sub-section (1) of Section 56 confers a statutory right to the licensee company to disconnect the supply of electricity, if the consumer neglects to pay the electricity dues. This statutory right is subject to the period of limitation of two years provided by sub-section (2) of Section 56 of the Act.

7.5. The period of limitation of two years would commence from the date on which the electricity charges became "first due" under sub-section (2) of Section 56. This provision restricts the right of the licensee company to disconnect electricity supply due to non-payment of dues by the consumer, unless such sum has been shown continuously to be recoverable as arrears of electrici' supplied, in the bills raised for the past period. If the licensee company were to be allowed to disconnect electricity supply after the expiry of the limitation period of two years after the sum became "first due", it would defeat the object of Section 56(2).

8. Section 56(2), however, does not preclude the licensee company from raising a supplementary demand after the expiry of the limitation period of two years. It only restricts the right of the licensee to disconnect electricity supply due to non-payment of dues after the period of limitation of two years has expired, nor does it restrict other modes of recovery which may be initiated by the licensee company for recovery of a supplementary demand."

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14. In my view, the petitioner MSEDCL ought to have

taken recourse to Section 126 of the Act. For better

appreciation, relevant provisions of Sections 126 and 127 of

the Electricity Act are reproduced below :-

Section 126: (Assessment): ---

(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.

(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

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(5) If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a rate equal to [twice] the tariff rates applicable for the relevant category of services specified in sub-section (5).

Explanation.- For the purposes of this section,-

(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;

(b) "unauthorised use of electricity" means the usage of electricity -

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

--------------------------------------------------------------- -

(v) for the premises or areas other than those for which the supply of electricity was authorized."

Section 127. (Appeal to Appellate Authority): ---

(1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such

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manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.

(2) No appeal against an order of assessment under sub-section (1) shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.

(3) The appellate authority referred to in sub- section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.

(4) The order of the appellate authority referred to in sub-section (1) passed under sub-section (3) shall be final.

(5) No appeal shall lie to the appellate authority referred to in sub-section (1) against the final order made with the consent of the parties.

(6) When a person defaults in making payment of assessed amount, he, in addition to the assessed amount shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent, per annum compounded every six months.

15. The respondent has all along been contending that

the electricity has been used for industrial purpose. If

according to the MSEDCL it was a case of an unauthorised use

of electricity and it proposed to raise the bill for the period of

more than two years, it ought to have resorted to the

procedure contemplated under Section 126 of the Act,

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whereunder the respondent gets a reasonable opportunity of

hearing before a final order of assessment is passed.

Moreover, the respondent/ assessee has a remedy of appeal

under Section 127 of the Act to challenge a final order made

under Section 126.