Sri Prasanta Sen And Another vs Ombudsman
2022 Latest Caselaw 3413 Cal

                       In the High Court at Calcutta
                      Constitutional Writ Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya


                           W.P.A. No.16016 of 2019

                       Sri Prasanta Sen and another

                                       Vs.

                   Ombudsman, West Bengal and others



     For the petitioners               :         Mr. Aniruddha Sarkar,
                                                 Mr. Goutam Dey,
                                                 Ms. Sweta Bhatta

     For the WBSEDCL                   :         Mr. Srijan Nayak,
                                                 Mrs. Rituparna Maitra

     Hearing concluded on              :         09.06.2022

     Judgment on                       :         15.06.2022



     Sabyasachi Bhattacharyya, J:-



1.   The petitioners, as partners of the firm, namely, M/s. Technocrats &

     Associates, have been running business at the premises-in-question.

2.   For the said purpose, the petitioners had been enjoying industrial

     electricity   connection   from       the   West   Bengal   State   Electricity

     Distribution Company (WBSEDCL) (respondent no.3). The electricity

supply to the petitioners was disconnected on January 22, 2014 on

the allegation of outstanding dues of electricity charges. The

petitioners applied for taking service connection at the premises and

issued a letter to that effect to the concerned Station Manager of the

WBSEDCL on March 27, 2014, expressing the intention of clearing the

amount allegedly outstanding.

3. On several occasions the petitioners allegedly appeared in the office of

the Station Manager, but without any fruitful result. Ultimately upon

being so advised at the office of the Station Manager, the petitioners

filed a complaint with theconcerned Regional Grievance Redressal

Officer (RGRO) on February 3, 2017. Ultimately, vide Memo No.

RM/24-PNR/PG dated March 29, 2017, the RGRO decided the

complaint by directing the complainant/petitioners to pay the total

outstanding dues. However, although it was recorded by the RGRO in

his order that the petitioners had asked for compensation as per law,

such request was not dealt with specifically and/or granted by the

RGRO.

4. Being thus aggrieved, the petitioners approached the Ombudsman,

West Bengal who, vide final order dated November 20, 2018 passed in

the petitioners Representation No. W-99 AKT/2017, decided the issue

in favour of the petitioner.Upon consideration of a report filed by the

distribution licensee and coming to the finding that the allegation

against the petitioners that the premises were often closed could not

be sustained, the Ombudsman arrived at the conclusion that the

Regulatory requirements for disconnection of the service line of the

complainants had not been properly fulfilled by the distribution

licensee. The Ombudsman further directed that the WBSEDCL (the

license) shall cancel electricity bills in respect of the service

connection of the complainant from January 16, 2014 to January 30,

2014 and regenerate the same on the basis of consumption recorded

in the installed meter along with other charges as per the regulatory

provisions, without claiming any LPSC (Late Payment Surcharge) after

adjustment of payment made by the complainant, if any.

5. The electricity bills from the date of restoration of the service

connection on January 12, 2018 were directed to be cancelled and

regenerated. However, the Ombudsman, despite having found that

the petitioners were otherwise entitled to compensation, refused to

pass any order of compensation for wrongful disconnection and

delayed restoration of service connection on the ground of violation of

Regulation 15.1 of the West Bengal Electricity Regulatory Commission

(Standards and Performance of Licensee Relating to Consumer

Services) Regulations, 2010, as amended. It was observed that the

petitioners had approached with the claim of compensation beyond 90

days from the date from which compensation arises.

6. Learned counsel for the petitioners argues that the date from which

compensation arises can only be the date of restoration of the

electricity supply and payment and/or payment of the compensation.

7. Since the cause of action for compensation accrues day-to-day, it is

argued that the claim for compensation did not crystallize before the

same was paid. It is submitted that,vide Clause 21 of Regulation

No.57 dated August 26, 2013 framed by the West Bengal Electricity

Regulatory Commission (WBERC), Clause 15.1 was inserted in the

principal Regulation of 2010.

8. Clause 15.1 provides that the limitation for claiming compensation is

90 days from the date from which compensation arises. However, in

Regulation No.46 dated May 31, 2010, the original Clause 15.0, which

remained substantially the same even after the amendment of 2013,

clearly stipulated the rates at which the compensation is to be paid.

9. Thus, it is contended that since the first complaint was alleged on

March 27, 2014, which was rejected after the period of three years on

March 29, 2017 by the RGRO, the date of rejection of the claim for

compensation has to be treated as the date on which the cause of

action for compensation arises.

10. Learned counsel appearing for the distribution licensee submits that

the complaint filed by the writ petitioners is not annexed to the writ

petition and, as such, no basis for calculation of compensation has

been disclosed by the petitioners.

11. It is further submitted that the date on which the claim for

compensation arose was the date of disconnection and not the date of

rejection by the RGRO.

12. Based on the rival contentions of parties, the following deductions can

be arrived at:

13. The amended Clause 15.1, inserted by the 2013 Regulation, provides

that no compensation as determined under Regulation 15.0 of the

principal Regulation of 2010 is payable if compensation is not

claimed by the affected person at the appropriate forum within 90

days from the date from which compensation arises. In the present

case, compensation was claimed before the RGRO on the date of filing

of the complaint, that is, on February 3, 2017. Although the

disconnection took place on January 22, 2014, the petitioners

communicated in writing to the Station Manager of the Madhyamgram

Sector Office of the WBSEDCL within 90 days therefrom, that is, on

March 27, 2014 (Annexure P1 at page 15 of the writ petition). In the

said communication, the petitioners clearly offered to pay up the

outstanding dues for the purpose of getting restoration of connection.

14. A complete reading of the order of the Ombudsman, however, reveals

that the Ombudsman, upon considering all relevant documents and

materials-on-record, came to the conclusion that the requirements for

disconnection of the service line of the complainant had not been

properly fulfilled by the distribution licensee. It was clearly observed

by the Ombudsman that the distribution licensee could not explain

the reason for the bills generated from their system for the relevant

period. Hence, the bills from 2018 onwards, raised during the

pendency of the case, were held to be unjustified and were directed to

be cancelled.

15. The Ombudsman further observed that the disconnection took place

without any valid notice as per Section 56(1) of the Indian Electricity

Act, 2003 and, as such, the disconnection was labelled as 'wrongful

disconnection' of the service line. Although the Ombudsman arrived

at the conclusion that the petitioners were otherwise entitled to be

compensated, such compensation was refused due to alleged violation

of Regulation 15.1 of the 2010 Regulation. Hence, in the present case,

the disconnection was held to bepatently wrongful by the

Ombudsman. In such view of the matter, the suffering of the

petitioners for disconnection started from the date of disconnection,

that is, January 22, 2014.

16. However, the restoration of the electricity connection took place in

January 12, 2018, subsequent to the RGRO's order dated March 29,

2017.

17. To determine the quantum of compensation, the relevant clause to be

looked into is Clause 15.0 of the Regulation No.57 dated August 26,

2013. Sub-clause (c) thereof provides for compensation for delay in

reconnection whereas sub-clause (d) deals with compensation for

wrongful disconnection. In the present case, in view of the clear

finding of the Ombudsman that the disconnection of the petitioners'

connection was wrongful, which has not been assailed by the

distribution licensee, sub-clause (d) of Clause 15.0 is squarely

applicable.

18. Clause 15.1, introduced by the 2013 Resolution No.57, stipulates the

time-limit for seeking compensation. It provides that, notwithstanding

anything contained contrary elsewhere in any other Regulation of the

Commission, no compensation as determined under Regulation 15.0

is payable if compensation is not claimed by the affected person at the

appropriate forum within 90 days "from the date from which

compensation arises".

19. The expression "from the date from which compensation arises" is also

found in sub-clause (c) of Clause 15.0. In paragraph (ii) thereof, the

number of days for which compensation will be applicable has been

stipulated to be the number of days or slab, as applicable, between

the date of the order of the compensation and the date from which

compensation arises.

20. For LT industrial categories of consumers, the chart given under

Clause (d)(ii) provides that the rate of compensation would be,

Rs.3,000/- per instance plus the amount paid by the consumer to the

licensee in getting reconnection plus Rs.500/- per day or part thereof

during which period the supply remained wrongfully disconnected.

21. Since the present petitioners have been enjoying an industrial

connection of LT category, the calculation of compensation shall be at

the rate as indicated above.

22. In the present case, the disconnection took place on January 22, 2014

and the connection was restored on January 29, 2018. Hence, the

date "from which compensation arises" for the purpose of Clause 15.1,

in order to calculate limitation, could only be the date on which the

reconnection was given, since the period during which the supply

remained wrongfully disconnected has to be calculated from the date

of disconnection to the date of restoration thereof. The claim of

compensation crystallizesonly when connection is restored.

23. Thus, there is an apparent anomaly between the senses conveyed by

the same expression, "from which compensation arises", as used in

Clause 15.0 (e) ii), read in conjunction with Clause 15.0 (d)i), on the

one hand and Clause 15.1 on the other. The first conveys the sense

that the claim for compensation matures upon connection being

restored, since all three categories of the chart under sub-clause (d) i)

speak of compensation to include the reconnection charge and the

period during which the supply remained wrongfully disconnected,

which can be calculated only after reconnection is given.

24. However, applying the Rule of Harmonious Construction, there ought

to be a parity in the sense conveyed by the phrase "from which

compensation arises", as used in Clause 15.0 (e) ii) and Clause 15.1.

Otherwise, the 90 days' limitation for the claim has to be calculated

from the date of reconnection, taking reconnection to be the starting

point of limitation, which signifies that the order of compensation can,

theoretically, precede the claim itself, on which it is passed.

25. As for example, in the present case, the disconnection took place

onJanuary 22, 2014 and reconnection onJanuary 12, 2018; whereas

the complaint (apparently including the claim of compensation) was

lodged onFebruary 3, 2017 and the RGRO passed order on the

complaint on March 29, 2017. So, applying the logic proposed above,

the limitation would start when the compensation claim matures, that

is, on reconnection (January 12, 2018) whereas the RGRO order is

passed before that, on March 29, 2017. Such an interpretation, thus,

would lead to absurdity, which cannot be attributed to legislative

intent.

26. To avoid such absurdity, the expression "from which compensation

arises" has to be taken as the date when the cause of action first

arises, that is, the wrongful disconnection takes place, and not the

date of reconnection, when the claim matures.

27. Proceeding on such premise, the Ombudsman was justified in

observing that the claim of compensation was made much after the

expiry of 90 days from the date of disconnection and, as such, was

time-barred. The first communication of the petitioners dated March

27, 2014, made within 90 days from disconnection, was merely an

offer to pay up the outstanding dues for the purpose of getting

restoration of connection and contained no claim of compensation.

Rather, arguably, such claim was waived by the petitioners, as

implicit in the offer to pay up and clear the outstanding dues.

28. Thus, the finding of the Ombudsman that the petitioners' application

was time-barred was fully justified. Hence, there is no scope of

interference with the decision of the Ombudsman under Article 226 of

the Constitution of India.

29. Accordingly, W.P.A. No.16016 of 2019 is dismissed, thereby affirming

the impugned order of the Ombudsman.

30. There will be no order as to costs.

31. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )