M/S. Narrow Structures Pvt. Ltd vs Jharkhand Bijli Vitran Nigam ...
2022 Latest Caselaw 1596 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P.(C) No.127 of 2022
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M/s. Narrow Structures Pvt. Ltd., Upper Govind Nagar, Malad (East) Mumbai. .......... Petitioner.

-Versus-

1. Jharkhand Bijli Vitran Nigam Limited, through its Chairman, Engineers Bhawan, H.E.C., Dhurwa, Ranchi.

2. The General Manager-cum-Chief Engineer, Ranchi Electric Supply Area, Engineers Bhawan, H.E.C., Dhurwa, Ranchi.

3. The Electrical Superintending Engineer, Electric Supply Area, Engineers Bhawan, H.E.C., Dhurwa, Ranchi.

4. The Electrical Executive Engineer, Electric Supply Sub Division, Area East, Kusai Colony, Doranda, Ranchi.

5. The Electrical SDO, Electric Supply Sub Division, Area East, Kusai Colony, Doranda, Ranchi.

6. The Junior Electrical Engineer, Electric Supply Sub Division, Area East, Kusai Colony, Doranda, Ranchi.

7. RIADA through its Regional Director, Ranchi Industrial Area Development Authority, Central Office, Namkum Industrial Area, Lowadih, Namkum, Ranchi.

.......... Respondents.

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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner :         Mr. Anil Kumar, Advocate
For Res. Nos.1 to 6 :        Mr. Gaurav Raj, A.C. to
                             Mr. Sachin Kumar, Sr. S.C., JBVNL
For Res. No.7        :       Mr. C. A. Bardhan, Advocate
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Order No.04                                          Date: 21.04.2022

The present writ petition has been filed for issuance of direction upon the respondent nos.4 to 6 to show cause as to how and under what authority of law, the petitioner's application for grant of fresh electrical connection with respect to a contract demand of 40 KW under Low Tension Industrial Services category has been rejected on 17th December, 2021. Further prayer has been made for issuance of direction upon the respondents to grant fresh electrical connection in favour of the petitioner. The petitioner has also prayed for issuance of direction upon the respondents to pay compensation, as the respondents have illegally rejected its claim for grant of fresh electrical connection.

Mr. Gaurav Raj, learned A.C. to Mr. Sachin Kumar, learned Sr. S.C., JBVNL, raises preliminary objection with regard to maintainability of the writ petition and submits that this Court vide order/judgment dated 21st December, 2021 passed in W.P.(C) No.3650 of 2020 has held that a complaint can be filed by a person before the Electricity

Dispute Redressal Forum constituted by a distribution licensee under Section 42(5) of the Electricity Act, 2003, if the said distribution licensee refuses to grant fresh electrical connection.

On perusal of the aforesaid judgment referred to above by the learned counsel for the respondent-JBVNL, this Court, after discussing the provisions of the Electricity Act, 2003; Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2015; and Jharkhand State Electricity Regulatory Commission (Guidelines for Establishment of Forum for Redressal of Grievances of the Consumers, Electricity Ombudsman and Consumer Advocacy) Regulations, 2020, has held as under:-

"19. It is now well settled that though no legislative enactment can override or curtail the power of judicial review of High Court as conferred by the Constitution of India under Article 226 which is the basic feature of constitution, yet if a statutory forum is created for redressal of grievances, a writ petition should not be entertained ignoring such statutory dispensation.

20. Electricity Act, 2003 is a legislative mandate to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition, protecting interest of consumers and supply of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Regulatory Commission and establishment of Appellate Tribunal. The preamble of the Act, 2003 speaks about its aim for taking care of various aspects including protecting interest of consumers. It is evident from the Regulations, 2020 framed by the Jharkhand State Electricity Regulatory Commission that the constitution of Forum(s) is statutorily required which shall consist three members in which one member is required to be a judicial officer holding the post not below the rank of Additional District Judge having 20 years of experience in judicial work and the second member should be possessing degree in Electrical Engineering/Electrical & Instrumentation/Electrical and Electronics having 20 years of experience in the Transmission, Distribution and Trading of Electricity or shall be at least a CA/ICWA or MBA (Finance) with 20 years of experience and knowledge of Accounts and Finance. The third member shall be independent Member, who shall be representative of a registered society/NGO/consumer organization having 5 years of experience in consumer-related matters. Thus, the Forum so constituted deserves to be treated as statutory body consisting of the adjudicators having due expertise of their relevant fields and capable of providing redressal of the grievances of the aggrieved persons. In such circumstance, the scope of judicial review is minimal as has been delineated by the Hon'ble Supreme Court in the judgments referred hereinabove.

21. The learned Senior Counsel for the petitioner has put reliance on a judgment rendered by the Hon'ble Supreme Court in the case of "Brihanmumbai Electric Supply & Transport Undertaking Vs. Maharashtra Electricity Regulatory Commission (MERC) & Ors."

reported in (2015) 2 SCC 438 in support of his submission that a person seeking fresh electrical connection or against refusal of the same by the distribution licensee, cannot raise his grievance before the Forum created under Section 42(5) of the Act, 2003. In the said case, the

consumer wanted to switch over his electricity connection from Brihanmumbai Electricity Supply and Transport Undertaking (BEST) to Tata Power Company (TPC) as per his electricity requirement. In response to his request, TPC advised the consumer to approach BEST for its permission to use distribution network of BEST to enable TPC to supply electricity to the consumer using that network. Accordingly the consumer turned to BEST requesting it to give the said permission. However the required permission was not granted by BEST and thus the consumer approached Mumbai Electricity Regulatory Commission (hereinafter referred to as "the Regulatory Commission"). In the meantime, Respondents 4 to 8 of the said case also filed similar petitions before the Regulatory Commission with same relief as they also wanted to switch over to TPC for their electricity requirement. After hearing all the parties, the Regulatory Commission passed orders dated 22.02.2010 holding inter alia that TPC was bound to supply electricity in terms with applicable Regulations and, therefore, direction was issued to TPC to supply electricity to the consumers either through BEST wires or its own wires. BEST challenged the order of the Regulatory Commission by filing appeal before the Appellate Tribunal for Electricity, New Delhi however the same was dismissed.

22. The said matter having reached the Hon'ble Supreme Court, the appellant raised one of the contentions that there was an alternative remedy available to the consumer(s) to approach the Consumer Grievances Redressal Forum (CGRF) established under Section 42(5) of the Electricity Act, 2003 and as such the consumer(s) should have approached the said Forum instead of filing petition before the Regulatory Commission. There Lordships rejected the contention raised by the appellant and dismissed the appeal holding inter alia in para 8 and 9 as under:

Issue 1: Re: Jurisdiction of the Regulatory Commission

8. This contention was raised primarily on the ground that there was an alternative remedy provided to the consumer to raise his grievances before the Consumer Grievances Redressal Forum (CGRF) established under Section 42(5) of the Act. Therefore, the consumer should have approached the said Forum instead of filing petition before the Regulatory Commission. This contention is totally misconceived and rightly rejected by the authorities below. As noted above, the petition was filed by the consumer seeking direction against TPC to supply electricity to him. Thus, he approached the Regulatory Commission to enforce a distribution licensee obligation under the Act. As on that date, he was not the consumer of TPC but wanted to become its consumer. Insofar as CGRF is concerned, which each distribution licensee is required to set up under Section 42(5) of the Act, it deals with the grievances of the consumer. "Consumer" is defined under Section 2(15) of the Act and reads as under:

"2.(15) ... 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."

9. Thus, Respondent 3 not being a consumer could not have approached CGRF. Further, we find that in Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd. [(2007) 8 SCC 381], this Court has held that the Regulatory Commission has the power to require a licensee to fulfil its obligations under the Act. Thus, we are of the opinion that the Regulatory Commission had the requisite jurisdiction to entertain the petition filed by the consumer. Presumably, for this reason, this contention was pressed half-heartedly before us and given up in the middle.

23. It is thus evident that the facts and circumstances in the aforesaid case were entirely different from the case in hand. In the present case, the Electricity Regulatory Commission constituted by the State of Jharkhand has framed Regulations, 2020 which explicitly

defines the word "Complainant" including in its ambit the consumer of electricity as well as the applicants for new connection who have complaint against the distribution licensee. Thus, the Jharkhand State Regulatory Commission has already empowered the Consumer Dispute Redressal Forum(s) constituted by the distribution licensee(s) to entertain a complaint of an intending consumer having grievance against the distribution licensee particularly with respect to its refusal to grant fresh electricity connection. In the aforesaid case, Their Lordships while interpreting the word "consumer" as defined under Section 42(5) of the Act, 2003 have been pleased to hold that the term "consumer" does not include a person who applied for grant of electricity connection as by that time he had not become the consumer. However, in the case in hand, by virtue of framing the Regulation, 2020, the Jharkhand State Regulatory Commission, in specific term provides for entertaining "complaint" by the Consumer Dispute Redressal Forum not only from the consumers but also from the applicants for new connection i.e., filed by the intending consumers. The Hon'ble Supreme Court in the case of "Brihanmumbai Electric Supply & Transport Undertaking" (supra) has interpreted the definition of the word "consumer" as defined under Section 2(15) of the Act, 2003 and has held that the respondent no. 3 of that case was not the consumer of TPC, rather wanted to become its consumer and as such it could not have approached the Consumer Dispute Redressal Forum. However, in the case in hand, the Regulations, 2020 framed by the Jharkhand State Electricity Regulatory Commission in exercise of the power conferred under Section 181 of the Act, 2003 defines the word "complainant" in clear term which means a consumer of electricity supplied by the distribution licensee including the applicants for new connection which is an exhaustive definition of "complainant". Since the definition of "complainant" is clear and unambiguous, I am of the considered view that if a narrow interpretation is given to it, the same will defeat the objective sought to be achieved by the Jharkhand State Electricity Regulatory Commission. Hence, the petitioner could have filed a complaint before the Forum. The petitioner has neither assailed the power of the Jharkhand State Electricity Regulatory Commission in framing such Regulations nor has challenged any of the provisions of the Regulations, 2020. Since the Regulations, 2020 empowers the Forum to also entertain a complaint filed by an intending consumer, the present writ petition is not maintainable at this stage as the petitioner has an alternative, efficacious and statutory remedy to ventilate its grievance before the Forum created by the JBVNL under Section 42(5) of the Act, 2003. Moreover, it will also be in the interest of the applicants requiring fresh electrical connection to move before the VUSNF if the distribution licensee fails to provide the same as it is an expert body created to deal with such matters expeditiously.

24. In view of the aforesaid discussion, this Court is not inclined to entertain the writ petition at this stage as the petitioner has an efficacious remedy of filing a complaint before the VUSNF.

25. The writ petition is accordingly disposed of with liberty to the petitioner to file a complaint before the VUSNF for grant of fresh electric connection."

Considering the ratio laid down by this Court in the aforesaid judgment, the present writ petition is not maintainable at this stage and the same is, accordingly, dismissed as not maintainable.

The petitioner is, however, at liberty to prefer a complaint before the Vidyut Upbhokta Shikayat Niwaran Forum, Ranchi constituted by the licensee-JBVNL for redressal of its grievance against refusal to grant fresh electrical connection by the respondent-JBVNL.

(Rajesh Shankar, J.) Sanjay/