Gujarat High Court
Gopinathjidev Temple Trust vs State Of Gujarat on 1 August, 2022
Bench: A.S. Supehia
C/SCA/6185/2017 ORDER DATED: 01/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6185 of 2017
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GOPINATHJIDEV TEMPLE TRUST
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Petitioner(s) No. 1
MR SAHIL B. TRIVEDI, AGP for the Respondent(s) No. 1
MS LILU K BHAYA(1705) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 01/08/2022
ORAL ORDER
1. In the present writ petition, the petitioner has prayed for
quashing and setting aside the recovery notices issued by the
respondents.
2. Learned advocate Mr.Dave, appearing for the petitioner
has submitted that the recovery notices are issued to the
petitioner for recovery of the amounts beyond the period of
limitation as the same is for the period between September,
2011 to November, 2016. He has submitted that any dues for
recovery of dues prior to the period of limitation cannot be
recovered. He has further submitted that the recovery notices
issued by the respondents is without hearing the petitioner.
3. At the outset, learned advocate Ms.Bhaya, appearing for
the respondent No.2 has submitted that the petitioner has an
alternative efficacious remedy provided under Section 42(5) of
the Electricity Act, 2003 (for short, "the Act"). She has placed
reliance on the judgment dated 27.06.2022 passed in Special
Civil Application No.9655 of 2022 and has submitted that this
Court after considering the judgment of the Apex Court in the
C/SCA/6185/2017 ORDER DATED: 01/08/2022
case of Maharashtra Electricity Regulatory Commissions Vs.
Reliance Energy Ltd., and others, [2007 (8) SCC 381], has
dismissed, the writ petition on the ground of availability of
alternative remedy.
4. I have heard the learned advocates for the respective
parties to the lis. I have also perused the relevant documents.
5. It is the case of the petitioner that the petitioner is a
religious and charitable trust and functions for religious
activities and is a regular consumer of the respondents and
paying all the dues, as per the bills placed by the respondents.
Since the petitioner received a notice dated 06.01.2017 calling
upon the petitioner to make a payment of Rs.6,42,154.38
toward levy of electricity duty for the period from September,
2011 to November, 2016, such action is assailed before this
Court. It is not in dispute that the petitioner has a remedy
under the provisions of Section 42(5) of the Act, for
approaching the Consumer Grievances Redressal Forum.
6. The Apex Court in the case of Reliance Energy Ltd and
Ors. (supra), while examining the provision of Section 42(5)
of the Act has observed thus:
"33. As per the aforesaid provision, if any grievance is
made by a consumer, then they have a remedy under Section
42(5) of the Act and according to sub-section (5) every
distribution licensee has to appoint a forum for redressal
of grievances of the consumers. In exercise of this power
the State has already framed the Maharashtra Electricity
Regulatory Commission (Consumer Grievance Redressal Forum
and Ombudsman) Regulations, 2003 (hereinafter referred to
as "the 2003 Regulations") and created Consumer Grievance
Redressal Forum and Ombudsman. Under these Regulations a
proper forum for redressal of the grievances of individual
consumers has been created by the Commission. Therefore,
now by virtue of sub- section (5) of Section 42 of the
Act, all the individual Grievances of consumers have to be
C/SCA/6185/2017 ORDER DATED: 01/08/2022
raised before this forum only. In the fact of this
statutory provision we fail to understand how could the
Commission acquire jurisdiction to decide the matter when
a forum has been created under the Act for this purpose.
The matter should have been left to the said forum. This
question has already been considered and decided by the
Division Bench of the Delhi High Court in Suresh Jindal v.
BSES Rajdhani Power Ltd. and Dheeraj Singh v. BSES Yamuna
Power Ltd and we approve of these decision. It has been
held in these decisions that the forum and ombudsman have
power to grant interim orders. Thus a complete machinery
has been provided in Section 42(5) and 42(6) for redressal
of grievances of individual consumers. Hence wherever a
forum/ombudsman have been created the consumers can only
resort to these bodies for redressal of their grievances.
Therefore, not much is required to be discussed on this
issue. As the aforesaid two decisions correctly lay down
the law when an individual consumer has a grievance he can
approach the forum created under sub-section (5) of
Section 42 of the Act.
34. In this connection, we may also refer to Section 86 of
the Act which lays down the functions of the State
Commission. Sub-section (1)(f) of the said section lay
down the adjudicatory function of the State Commission
which does not encompass within its domain complaints of
individual consumers. It only provides that the Commission
can adjudicate upon the disputes between the licensees and
generating companies and to refer any such dispute for
arbitration. This dies not include in it an individual
consumer. The proper forum for that is Section 42(5) and
thereafter Section 42(6) read with the Regulations of 2003
as referred to hereinabove."
7. The Apex Court has held that by virtue of Section 42(5) of
the Act, all the individual grievances of consumers have to be
raised before the forum only and in the face of this statutory
provision, the Commission cannot acquire jurisdiction to decide
the matter when a forum has been created under the Act for
this purpose and the matter should have been left to the said
forum.
8. In the present case, the petitioner has directly
approached this Court, without availing the remedy as
envisaged under Section 42(5) of the Act. Since there is also a
C/SCA/6185/2017 ORDER DATED: 01/08/2022
disputed question of fact with regard to the usage of
electricity, the Court, while exercising the powers under
Section 226 of the Construction of India, cannot delve into
such disputed question of fact. The petitioner is relegated to
avail his remedy under Section 42(5) of the Act. He shall
appropriately file an application within a period of two months
from the date of receipt of the writ of this order.
9. The interim relief granted to the petitioner in this writ
petition shall continue till his application is heard by the
concerned forum.
10. With the foregoing reasons and analysis, the writ petition
is disposed of accordingly.
(A. S. SUPEHIA, J)
MAHESH BHATI/06
