Gujarat High Court
Dakshin Gujarat Vij Company Ltd vs Ambeshwar Paper Mills Ltd on 7 June, 2021
Bench: B.N. Karia
C/LPA/97/2003 JUDGMENT DATED: 07/06/2021
DAKSHIN GUJARAT VIJ COMPANY LTD. & 2 other(s) Versus AMBESHWAR PAPER MILLS LTD. & 1 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
1. R/LETTERS PATENT APPEAL NO. 97 of 2003
In R/SPECIAL CIVIL APPLICATION NO. 11276 of 2001
With
2. R/LETTERS PATENT APPEAL NO. 123 of 2018
In
SPECIAL CIVIL APPLICATION NO. 14289 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
1.
DAKSHIN GUJARAT VIJ COMPANY LTD.
2.
THE EXECUTIVE ENGINEER (INDUSTRIAL),
3.
THE DEPUTY ENGINEER
Versus
1. SHREE AMBESHWAR PAPER MILLS LTD.
2. THE OFICIAL LIQUIDATOR OF AMBESHWAR PAPER
MILLS LTD.
===========================================================
Appearance:
Letters Patent Appeal No.97 of 2003
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2,3
MR KETAN D SHAH(1356) for the Respondent(s) No. 1
MR PATHIK M ACHARYA(3520) for the Respondent(s) No. 2
Letters Patent Appeal No.123 of 2018
MR DG CHAUHAN For the Appellant,
MS LILU K BHAYA For the Respondent No.2,
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C/LPA/97/2003 JUDGMENT DATED: 07/06/2021
DAKSHIN GUJARAT VIJ COMPANY LTD. & 2 other(s) Versus AMBESHWAR PAPER MILLS LTD. & 1 other(s)
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
Date : 07/06/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. Letters Patent Appeal No.97 of 2003 arising out of Special
Civil Application No.11276 of 2001 has been filed by Dakshin
Gujarat Vij Company Limited against M/s. Ambeshwar Paper
Mills Limited (now in liquidation) in the Bombay High Court
whose Official Liquidator is represented by Mr.Pathik Acharya,
learned advocate and the connected Letters Patent Appeal No.123
of 2018 arising out of Special Civil Application No.14289 of 2016
has been filed by M/s. Agro Pack Limited which claims to have
purchased part of the land over which the Papers Mill setup by
Respondent M/s.Ambeshwar Paper Mills Limited was located,
though no such Sale Deed or Conveyance Deed in its favour has
been placed on record.
2. The earlier Special Civil Application No.11276 of 2001 was
disposed of by the learned Single Judge of this Court (Coram: P.B.
Majmudar, J.) vide order dated 23.09.2002.
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3. While dealing with writ petition filed by M/s. Ambeshwar
Paper Mills Limited, the learned Single Judge inter alia observed
that the order passed by the Appellate Authority of Power Supply
Company was laconic and did not deal with all the contentions
raised by the PetitionerCompany M/s. Ambeshwar Paper Mills
Limited and therefore, the matter was remanded back to the
Appellate Committee, while confirming the findings of theft of
power committed by the Petitioner M/s. Ambeshwar Paper Mills
Limited.
4. The following observations of the learned Single Judge are
quoted below for ready reference:
"So far as the connected load part is concerned, the Appellate
Committee has brushed aside the argument of the petitioner by
observing that at the time of preparing the checking sheet, no protest
was made nor was stated before the officers of the checking squad
that the connected load is wrongly noted in the checking sheet. In my
view, the aforesaid aspect may be one of the considerations, but
other arguments advanced by the petitioner in this connection are
also required to be taken into account. Ultimately, the Appellate
Committee may not agree with the submissions, but the arguments
canvassed by the petitioner in this behalf are required to be taken
into account, and also the fact, whether any other material was
available for coming to the conclusion about connected load, is also
required to be stated in the order. Documents submitted by the
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petitioner are also not considered in detail and those documents are
also not taken into consideration by observing that they are
irrelevant. In my view, the Appellate Committee has not considered,
in detail, the submissions made by the petitioner in its written
submissions as regards M X H X C factor. It is, no doubt, true that
the Board has tried to justify the decision by submitting the said
aspect on merits, but, as observed earlier, ultimately, it is for the
Appellate Committee to consider the said aspect in more detail, as,
ultimately, the Board, which is assigned with wide powers while
deciding the rights of the parties, has to give finding of fact after
considering the totality of the evidence.
Under these circumstances, it is clear that documents submitted by
the petitioner are very casually dealt with, without giving detailed
reasons about the same by the Appellate Committee. In view of the
aforesaid aspects of the matter, and considering the fact that the
petitioner has submitted detailed arguments before the Appellate
Committee, in my view, the matter is required to be sent back to the
Appellate Committee for the purpose of considering the question
about the chargeable days for the purpose of supplementary bill and
for the purpose of considering M X H X C factor again, in the light
of the evidence on record. The Appellate Committee is free to take its
own decision in this connection is free to take its own decision in this
connection after after hearing both the sides. However, the Appellate
Committee may deal with all the submissions of the petitioner in
connection with the aforesaid three factors as well as the submission
of the Board in this behalf. Since the arguments are not dealt with,
in detail, and justification given by the Board before this Court, in
my view, it is not enough in the present case, as it is for the appellate
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Committee to decide all these questions at the time of hearing the
appeal. The matter is sent back to the Appellate Committee for giving
fresh decision, as indicated above, on the aspect about computation
of supplementary bill after considering all the relevant facts. The
Appellate Committee will accordingly consider the question of
assessment of supplementary bill afresh and while considering the
said aspect, the contention of the petitioner, as incorporated above in
this decision, may also be taken into consideration and the same
may be dealt with after giving proper reasoning, in detail.
Accordingly, so far as the finding of theft recorded by the Appellate
Committee is concerned, the submission of the petitioner on the same
is rejected and, accordingly, the aforesaid finding arrived at by the
Appellate Committee is confirmed. The matter is sent back to the
Appellate Committee. The matter is sent back to the Appellate
Committee for reconsideration of the question about computation of
supplementary bill and tis proper assessment, and the said aspect
may be considered after hearing the petitioner and the respondent
and whatever may be the documentary evidence available on the
record, the same may be dealt with by the Appellate Committee
again and the written submission as well as the arguments advanced
by the petitioner herein, as incorporated in this order, also may be
taken into account while considering the aforesaid question about
computation of supplementary bill. Since this aspect is not dealt
with, in detail, and even the documentary evidence of the petitioner
is not properly considered, by simply saying that it is irrelevant, the
matter is sent back to the Appellate committee. The Appellate
Committee is free to take its own decision after considering the
documentary evidence on record and after considering the arguments
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of both the sides. It is clarified that this Court has not expressed any
opinion on the merits of the quantum of supplementary bill in any
manner and it is for the Appellate Committee to decide the said
question again in the light of the observations made in the order."
5. The said remand directions of learned Single Judge could not
be complied with by the Appellate Committee as it existed under
the earlier Electricity Act, 1948 which was substituted by the new
Electricity Act, 2003 in view of the present Letters Patent Appeal
No.97 of 2003 filed by the M/s. Dakshin Gujarat Vij Company
Limited, aggrieved by the remand directions in which an interim
order was passed by the Coordinate Bench of this Court on
30.01.2003 staying the operation of the order passed by the
learned Single Judge and therefore, the said matter rested at that
stage.
6. During the pendency of the said litigation, since the
Respondent company M/s. Ambeshwar Paper Mills Limited went to
liquidation before the Bombay High Court and the O.L. is now
represented by learned counsel Mr.Pathik Acharya, the part of the
land is claimed to have been sold by the said Respondent M/s.
Ambeshwar Paper Mills Limited in favour of M/s. Agro Pack
through and M/s. K.K. Traders, though the documents regarding
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such conveyance or sale in favour of the present Appellant - M/s.
Agro Pack in Letters Patent Appeal No.123 of 2018 are not on the
record of the case. Be that as it may, it is not even found relevant
for disposal of the present Letters Patent Appeals.
7. The earlier law in the form of Electricity (Supply) Act, 1948
came to be substituted by the new law in the form of Electricity Act,
2003 which was enforced with effect from 26.05.2003 and which
inter alia made the following provisions, which are relevant for our
purposes in so far as the forums for alternative remedy available to
an aggrieved consumer are concerned in Section 42 in ChapterVI
as under:
"Section 42 - Duties of distribution licensees 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.
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(6) Any consumer, who is aggrieved by nonredressal of his
grievances under subsection (5), may make a representation for the
redressal of his grievance to an authority to be known as
Ombudsman to be appointed or designated by the State
Commission.
(7) The Ombudsman shall settle the grievance of the
consumer within such time and in such manner as may be specified
by the State Commission.
(8) The provisions of subsections (5), (6) and (7) shall be
without prejudice to right which the consumer may have part from
the rights conferred upon him by those subsections."
8. As far as the theft of electricity is concerned, ChapterXIV
contains Section 135 (theft of electricity) and Section 153 provided
for setting up the Special Courts for dealing with such criminal
offence of theft of power. The said provisions to their relevant
extract are also quoted as under:
"135. Theft of electricity. (1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with
overhead, underground or under water lines or cables, or
service wires, or service facilities of a licensee or supplier, as
the case may be; or
(b) tampers a meter, installs or uses a tampered meter,
current reversing transformer, loop connection or any other
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device or method which interferes with accurate or proper
registration, calibration or metering of electric current or
otherwise results in a manner whereby electricity is stolen or
wasted; or
(c) damages or destroys an electric meter, apparatus,
equipment, or wire or causes or allows any of them to be so
damaged or destroyed as it interfere with the proper or
accurate metering of electricity; or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the
usage of electricity was authorised;
so as to abstract or consume or use electricity shall be
punishable with imprisonment for a term which may extend to
three years or with fine or with both."
"153. Constitution of Special Courts. (1) The State Government
may, for the purposes of providing speedy trial of offences referred to
in [sections 135 to 140 and section 150], by notification in the
Official Gazette, constitute as many Special Court as may be
necessary for such area or areas, as may be specified in the
notification.
(2) A Special Court shall consist of a single Judge who shall be
appointed by the State Government with the concurrence of the High
Court.
(3) A person shall not be qualified for appointment as a Judge of
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a Special Court unless he was, immediately before such appointment,
an Additional District and Sessions Judge.
(4) Where the office of the Judge of a Special Court is vacant, or
such Judge is absent from the ordinary place of sitting of such
Special Court, or he is incapacitated by illness or otherwise for the
performance of his duties, any urgent business in the Special Court
shall be disposed of
(a) by a Judge, if any, exercising jurisdiction in the Special
Court;
(b) where there is no such other Judge available, in
accordance with the direction of District and Sessions Judge
having jurisdiction over the ordinary place of sitting of Special
Court, as notified under subsection (1)."
"154. Procedure and power of Special Court.
(1) ....
(2) ....
(3) ....
(4) A Special Court may, with a view to obtaining the
evidence of any person supposed to have been directly or
indirectly concerned in or privy to, any offence tender pardon
to such person on condition of his making a full and true
disclosure of the circumstances within his knowledge relating
to the offence and to every other person concerned whether as
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principal or abettor in the commission thereof, and any
pardon so tendered shall, for the purposes of section 308 of
the Code of Criminal Procedure, 1973 (2 of 1974), be deemed
to have been tendered under section 307 thereof.
(5) The [Special Court shall] determine the civil liability
against a consumer or a person in terms of money for theft of
energy which shall not be less than an amount equivalent to
two times of the tariff rate applicable for a period o twelve
months preceding the date o detection of theft of energy, or
the exact period of theft if determined whichever is less and
the amount of civil liability so determined shall be recovered
as if it were a decree of civil court."
9. When a demand was raised by Power Company (DGVC), vide
letter dated 27.07.2016 produced at AnnexureB in Letters Patent
Appeal No.123 of 2018, against the purchaser M/s.Agro Pack in
terms of Regulation No.4.30, that dues of Rs.2,93,25,401/ as
principal amount of dues from the erstwhile consumer M/s.
Ambeswar Papers Mills on the said Plot No.140/3 at GIDC,
Ankleshwar is due to be paid in terms of Regulation No.4.30 of
GERC vide Notification No.4 of 2015. The said Regulation
No.4.30 is quoted as under:
4.30 "An application for new connection, reconnection,
addition or reduction of load, change of name or shifting of service
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line for any premises need not be entertained unless any dues
relating to that premises or any dues of the applicant to the
Distribution Licensee in respect of any other service connection
held in his name anywhere in the jurisdiction of the Distribution
Licensee have been cleared.
Your application for new temporary connection is treated as
cancelled and requesting you to clear dues as early as possible."
10. The said consumer M/s.Agro Pack filed Special Civil
Application No.14289 of 2016 against the said demand raised by
the company, which, however, came to be dismissed by the learned
Single Judge (Coram: Bela M. Trivedi, J.) by the order impugned
before us on 12.01.2018 relegating the said Appellant M/s. Agro
Pack to the alternative forum available to it under the Act of 2003.
11. Against the said order of learned Single Judge, Letters Patent
Appeal No.123 of 2018 has been filed by the Appellant - M/s. Agro
Pack.
12. Learned counsel for the Power Company DGVC Ms. Lilu K.
Bhaya also brought to our notice that as far as findings of theft of
power by the erstwhile consumer M/s. Ambeshwar Paper Mills
Limited is concerned, two findings have achieved finality at the
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hands of the learned Single Judge in the order dated 23.09.2002 of
Justice P.B. Majmudar and the matter relating to the assessment on
some actual aspects were only remanded to the Appellate
Committee with certain observations, aggrieved by which, the
Power Company filed the aforesaid Letters Paten Appeal No.97 of
2003 and in the circumstances narrated above, in view of the stay
order dated 30.01.2003 passed by the Division Bench of this Court,
the Appellate Authority could not take up the matter again, as
directed by the learned Single Judge.
13. She also submitted that the Appellant Company - DGVC had
to file a recovery suit against the said M/s. Ambeshwar Paper Mills
Limited for recovery, which finally was decreed in favour of
Appellant by the Commercial Court upon its constitution under the
Commercial Court Act, 2015 in Case No.260 of 2016 vide Decree
dated 23.02.2018, and therefore, the Appellant Power Company
is entitled to recover the principal amount along with interest
which demand has now risen, almost to over Rs.8 crores now,
which the consumer M/s. Agro Pack if it intends to obtain new
power connection from the Appellant - company has to pay in view
of Regulation No.4.30 as quoted above. She also brought to our
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notice the earlier interim orders passed by the Coordinate Benches
of this Court to which one of us (Kothari, J. was a party), in which
the Appellant M/s. Agro Pack undertook to clear all the dues of
the erstwhile consumer M/s.Ambeshwar Paper Mills Limited (in
liquidation) which Appellant M/s. Agro Pack is now represented
by Mr.D.G. Chauhan, learned counsel. The following interim orders
dated 05.03.2021 and 26.03.2021 passed by this Court are quoted
for ready reference:
Interim order dated 05.03.2021 in this case (Coram:
Mr.Vineet Kothari and Mr.Biren Vaishnav, J.J.)
"1. Mr. D.G. Chauhan, learned Counsel appearing for M/s. Agro
Park Company to whom the unit in question was sold by earlier
defaulting company M/s. Ambeshwar Paper Mills Limited (In
Liquidation) submits that M/s. Agro Park is ready and willing to
square up the dues of the electricity company namely: Dakshin
Gujarat Vij Company Limited. He also refereed to the decree dated
23.3.2018 of the Commercial Court against the said Company in
this regard.
2. The learned Counsel Ms. Lilu Bhaya appearing for Dakshin
Gujarat Vij Company Limited undertakes to inform the final amount
to be paid by the said company which were outstanding and due
from the earlier company i.e. Ambeshwar Paper Mills Limited (In
Liquidation) which Mr. Chauhan's client M/s. Agro Park undertakes
to pay as early as possible.
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3. Let all these relevant papers be placed on the record after the
aforesaid dues are informed to M/s. Agro Park Company and are
paid by it as undertaken before this Court by Mr. D.G. Chauhan
appearing for M/s. Agro Park Company.
4. Mr. Pathik Acharya, learned counsel appears for Official
Liquidator, Bombay where the said Company i.e. M/s. Ambeshwar
Paper Mills Limited is in liquidation also submitted that with the
aforesaid deposit of the dues of the electricity company, the present
Appeals are likely to be rendered to be infructuous.
5. Let the relevant papers of the said developments be placed on
record after three weeks.
6. If the amount as informed by the Electricity Company is
deposited by M/s. Agro Park Company alongwith the requisite fees
for release of power connection in their favour, the said power
connection may also be released to them.
7. List on 26.3.2021.
Interim order dated 26.03.2021 in this case (Coram:
Mr.Vineet Kothari and Mr.Biren Vaishnav, J.J.)
"1. Mr.D.G. Chauhan, learned counsel appearing for M/s.Agro Pack,
is not available in the meeting, though he had undertaken before the
Court on the last date of hearing on 5.3.2021 that M/s.Agro Pack is
ready and willing to deposit the outstanding dues of
M/s.Ambeshwar Paper Mills (in Liquidation) which were
required to be informed by the Appellant Dakshin Gujarat Vij
Company Ltd.
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2. Ms.Lilu K. Bhaya, learned counsel, submitted that on that
very day i.e. on 5.3.2021, said Firm - M/s.Agro Pack was informed
that the total dues as per the Decree of the Commercial Court,
Vadodara was Rs.8,49,55,539/ but, the said partner of M/s.Agro
Pack - Mr.Vipin Madhavbhai Patel, through his Affidavit dated
6.3.2021, has submitted in his Affidavit that the said Firm is only
ready and wiling to deposit the principal amount of
Rs.2,48,33,768.81 without any interest as per the Decree dated
23.2.2018 passed by the Commercial Court, Vadodara. This
Affidavit is prima facie contrary to the undertaking given by
Mr.D.G. Chauhan, learned counsel, on behalf of his client -
M/s.Agro Pack before this Court on 5.3.2021.
3. Mr.D.G. Chauhan, learned counsel, is not present in the meeting
today, therefore, the hearing of this case at this stage is postponed.
4. Put up on 7.4.2021."
14. Today also, when these matters were taken up, learned
counsel Mr.D.G. Chauhan for M/s. Agro Pack offered to pay the
principal amount of Rs.2 crores and odd, but since the Respondent
- company Dakshin Gujarat Vij Company Limited insisted on the
payment of whole of Rs.8.49 crores along with interest, the
Appellant - M/s. Agro Pack has not paid anything to the said Power
Company. However, those interim orders and Undertaking given
thereunder stands not complied with by the M/s. Agro Pack. Be
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that as it may, since we are disposing of these appeals, we need not
to go further into that aspect of the matter.
15. The position as it stands now before us is that since both the
learned Single Judges of this Court, while disposing of both these
writ petitions, had relegated the consumer Appellant to the
alternative forum and even earlier, the learned Single Judge of this
Court was of the opinion that some factual aspects of the matter
deserve to be looked into by the Appellate Committee then
available, we are of the opinion that the factual aspects of the
matter even if the findings relating to the theft of power by
erstwhile company has become final the other factual aspects
deserves to be looked into by some competent body created under
the new enactment namely the Electricity Act, 2003.
16. As quoted above, the two authorities are now available under
subsection (5) and (6) of Section 42 of the Electricity Act, 2003 at
the District Level, the Consumer Grievance Redressal Forum have
been and similar forum at State level and the final authority is
created under subsection (6) of Section 42 is the Ombudsman to
be appointed or designated by the State Commission. These
authorities are created under the Gujarat Regulation Regulatory
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Commission (Consumer Grievances Redressal Forum and
Ombudsman) Regulations, 2019 recently published vide
Notification No.2 of 2019 published in the Gujarat Government
Gazette Extraordinary on 30th September, 2019. It is not in
dispute before us that these authorities are now functional, as
established by 2019 Regulations under Section 42 of the Electricity
Act, 2003.
17. We are of the further opinion that instead of relegating the
matter to a lower Authority at District Level viz. Consumer
Grievance Redressal Forum at Ankleshwar, where the said Paper
Mill was located, the highest body which provides an alternative
forum to the consumer and where both the parties can be heard is
that of the Ombudsman, created under subsection (6) of Section
42 of the Electricity Act, 2003, should adjudicate such factual
aspects.
18. Obviously, the disputed factual aspects cannot be and should
not be gone into in the extraordinary writ jurisdiction under
Section 226 of the Constitution of India. We are therefore of the
opinion that filing of the Letters Patent Appeal by both the parties
in this matter was rather misconceived and they ought to have
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resolved their dispute at the appropriate forums at the relevant
point of time itself. Since the present Letters Patent Appeals have
spent a huge period of time of this Court in present LPAs, a long
period has been lost without effective resolution of the dispute and
while the erstwhile consumer has gone into liquidation, the present
Appellant M/s. Agro Pack has half heartedly undertaken before
this Court to pay some dues of erstwhile consumer under
Regulation 4.30 vide interim orders quoted above which albeit
stands not paid.
19. Ms.Lilu Bhaya also made a submission that since the aspect
that supplementary bills raised against the purchaser M/s. Agro
Pack including the quatum of supplementary bill, has been gone
into by the Appellate Committee, the Ombudsman under the new
law cannot again go into it.
20. We are not inclined to accept the submission because in
terms of the orders passed by the learned Single Judges, in both the
orders, the Ombudsman will have to deal with the factual aspects
of the matter and only the finding of theft has been maintained
because that has become final at the hands of the learned Single
Judge which we are not inclined to disturb at this stage nor any
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such case has been made out before us.
21. The relevant Regulation in ChapterIII of Regulation 2019
with regard to appointment of Ombudsman and his power and
jurisdiction are also quoted below for ready reference.
"3. Appointment of Ombudsman.
3.1 In accordance with Subsection (6) of Section 42 of the Act,
the Commission may, from time to time, appoint or designate a
person as Ombudsman to discharge the functions in accordance with
Subsection (7) of Section 42 of the Act.
3.2 The Commission may appoint or designate more than one
Ombudsman for a Licensee or an Ombudsman for two or more
Licensees or establish a sitting bench of Ombudsman for licensee/es
for some days of a month/week at any place in the State considering
factors such as number of representations received, disposal of
representations within the specified time limit, ease of access for the
Consumer, etc.
3.3 The commission shall invite applications through public
advertisement for appointment of the Ombudsman. The Commission
shall form a selection committee for selection of the Ombudsman.
Provided that in case of superannuation or end of tenure of the
Electricity Ombudsman, applications shall be invited at least six (6)
months prior to the date of superannuation or the end of tenure, as
the case may be:
Provided also that in case of occurrence of vacancy for the post of
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DAKSHIN GUJARAT VIJ COMPANY LTD. & 2 other(s) Versus AMBESHWAR PAPER MILLS LTD. & 1 other(s)
Electricity Ombudsman, by reason of death, resignation or removal,
the applications shall be invited, without one (1) month from the
date of occurrence of such vacancy.
3.4 The Ombudsman shall be a person of experience, ability,
integrity and standing.
3.5 The following category of persons shall be eligible to be
appointed as Ombudsman:
i. A retired district judge; or
ii. A retired secretary to State Government; or
iii. Any person who has held the position of member or
chairperson of any statutory quasijudicial body at the state
level for at least 3 years; or
iv. A retired chief engineer or an equivalent officer having
experience in the electricity industry preferably distribution
business.
v. Any officer who has worked in the power sector for at
least thirty (30) years in Technical/Commercial field with at
least three (3) years of experience of working in the State or
Central Electricity Regulatory Commissions.
Provided that the Electricity Ombudsman shall preferably have
working knowledge of the vernacular language of the State of
Gujarat."
"Powers and Functions of the Ombudsman.
3.18. The Ombudsman shall have the following powers and duties:
i. To receive Representations, consider such
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Representations and facilitate settlement by agreement,
through conciliation and mediation between the Licensee and
Complainant, and pass an order in accordance with these
Regulations where such conciliation is not reached.
ii. On receipt of information from the Forum regarding
noncompliance of the Forum's order by the Distribution
Licensee, the Ombudsman shall initiate proceedings for
implementation of Forum's order by the Licensee.
iii. The Ombudsman shall in the first instance act as a
counsellor or mediator in matters which are the subject matte
of the Representation.
iv. The Ombudsman shall exercise general powers of
superintendence and control over its office and shall be
responsible for the conduct of business threat.
v. The Ombudsman shall have the powers to incur
expenditure on behalf of the office. In order to exercise such
power, the Ombudsman shall draw up an annual budget or its
office in consultation with the Commission and shall exercise
its powers of expenditure within such approved budget. The
budget shall have the provisions or the administrative
expenditure of the Ombudsman. The Commission shall
sanction the required amount out of the Fund. The
Commission shall, however, supervise the utilization of such
amount and shall issue such instructions, from time to time,
as it may deem reasonable and necessary."
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"Procedure to be followed by the Ombudsman.
3.22.The Representation shall be in writing, duly signed by the
Complainant or his authorized representative, including facsimile or
email mode, and shall contain the name and address of the
Complainant, the facts giving rise to the Grievance supported by
documents, if any, and may specify the relief sought from the
Ombudsman.
3.23. The Ombudsman shall receive a Representation in writing
including through email and facsimile mode. A Representation may
be submitted in the format given in Annexure III. However, no
Representation shall be rejected by the Ombudsman merely on the
ground that it is not in the prescribed format.
3.24. The Representation shall contain a statement, duly signed by
the Complainant, to the effect that the conditions stipulated in
Regulation 3.19 above have been fulfilled, and that there is nothing,
in the knowledge of the Complainant, which would bar the
Ombudsman from considering the Representations, facilitating the
settlement thereof, or passing an order in respect of the subject
matter of Representation, or otherwise dealing with the
Representation in accordance with the provisions of these
Regulations.
3.25. The Ombudsman shall acknowledge the receipt of the
Representation in the following manner:
i. Forthwith upon submission if the Representation is
delivered personally; or
ii. Post/email/fax within two working days of receipt of
the Representation if the same is received through
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post/courier/email/fax.
The Ombudsman, while issuing acknowledgment, shall assign
a unique case number and date to each Representation accept
by it.
3.26. The Ombudsman shall maintain true and correct records of
all Representations received from time to time."
22. The procedure to be followed by the Ombudsman in the
aforesaid ChapterIII of the Regulation 29 will be complied with by
the said authority in consonance with the aforesaid directions by
this Court and within time limit prescribed above and these
regulations will not be permitted to override or go beyond the
aforesaid time frame fixed by the Court.
23. In view of these, both these appeals are disposed of by
directing both the parties to appear before the Ombudsman
Authority created under Section 42(6) of the Act, where both the
parties viz. M/s. Agro Pack or parties concerned M/s.
Ambeshwar Paper Mills Limited (in liquidation), represented by
the Official Liquidator and Dakshin Gujarat Vij Company Limited
(DGVC) can file their respective claims/counter
claims/submissions, within a period of four weeks from today and
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no extension of time can be granted to them by the Ombudsman as
the present appeals are disposed of in the presence of their
respective counsel. The Ombudsman Authority is directed to hear
all the parties concerned and pass appropriate final orders on the
factual aspects of the matter without disturbing the findings of the
theft of power by the earlier consumer M/s. Ambeshwar Paper
Mills Limited and pass appropriate orders on the factual aspects
left open to him for consideration, within a period of next four
months.
24. All the parties without any further notice in this regard shall
appear before the said Ombudsman Authority on 01.07.2021
Thursday at 11:00 a.m. and the final orders shall be passed by the
Ombudsman Authority in any case on or before 01.11.2021. The
compliance report/order passed by the Ombudsman Authority
along with the claims and counterclaims or within submissions
made by the parties before Ombudsman may be placed on the
record of this Court in the Month of November, 2021. No costs.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
rakesh/
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