Kerala High Court
The Executive Engineer vs Upa Lok Ayukta on 28 June, 2022
W. P. (C) No. 20819 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944
WP(C) NO. 20819 OF 2022
PETITIONER/S:
1 THE EXECUTIVE ENGINEER
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, KERALA
STATE ELECTRICITY BOARD LTD.,
PALAYAM, THIRUVANANTHAPURAM , PIN - 695033
2
THE ASSISTANT ENGINEER
KERALA STATE ELECTRICITY BOARD LTD.,
ELECTRICAL SECTION, PUTHENCHANTHA,
SANTHI NAGAR, PULIMOODU,
THIRUVANANTHAPURAM , PIN - 695011
BY ADV RIJI RAJENDRAN
RESPONDENT/S:
1 UPA LOK AYUKTA
LEGISLATURE COMPLEX,
VIKAS BHAVAN,
THIRUVANANTHAPURAM, PIN - 695033
2 THE STATE ELECTRICITY OMBUDSMAN
CHARANGATTU BHAVAN NO. 38/2829
MAMANGALAM - ANCHUMANA ROAD,
EDAPALLY, ERNAKULAM , PIN - 682024
3 N.S.PRADEEP
REFRESHMENT & TRADERS (CAFÉ CABANA)
OPP.MALAYALA MANORAMA, THAMPANOOR.
THIRUVANANTHAPURAMPIN - 695001.
BY ADVS. SMT. D. P. RENU, SC FOR R1
SRI. B. PRAMOD, SC FOR R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) No. 20819 of 2022
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JUDGMENT
Shaji P. Chaly, J.
This writ petition is filed by the Executive Engineer of the
Kerala State Electricity Board
I) challenging Ext. P2 order dated 15.12.2021 passed by the Upa Lok
Ayukta in complaint No.203 of 2020 filed by the 3 rd respondent,
wherein it was found that the complainant is not liable to pay an
amount of Rs.45,476/- demanded by the Kerala State Electricity Board
and that the grievance raised by the complainant is liable to be
considered by the State Electricity Ombudsman, constituted as per the
Kerala State Electricity Regulatory Commission (Consumer Grievance
Redressal Forum and Electricity Ombudsman) Regulations, 2005.
II) to quash Ext. P5 order passed by the State Electricity Ombudsman
dated 17.03.2022 whereby the monthly bill of Rs. 45,476/- dated
19.10.2020 issued to the complainant / 3 rd respondent is quashed and
KSEB was directed to prepare a revised bill taking the average of the
three bi-monthly consumptions recorded in the meter from 19.10.2020
to 19.04.2021 and to issue a revised bill after adjusting the amount
remitted to the petitioner within 15 days from the date of the order. It
W. P. (C) No. 20819 of 2022
was also directed that if the amount remitted is excess, that shall be
adjusted in the future bills.
2. The paramount contention advanced by the Board is that Ext.
P2 order has been issued by the Upa Lok Ayukta on an incorrect
understanding of the legal framework for redressal of consumer
grievances and therefore the order cannot be sustained.
3. That apart, it is submitted that as electricity supply is an
essential, extensive and extremely technical field of operation, the
number and nature of consumer grievances mandates that a systematic
hierarchy for redressal is in place. However, in utter ignorance of the
provisions of law, the Upa Lok Ayukta has misstated that the
Electricity Ombudsman, the 2nd respondent, is the authority for enquiry
and resolution of consumer grievances, and incorrectly directed the 3 rd
respondent / the complainant to approach the Electricity Ombudsman.
That apart, it is submitted that the Upa Lok Ayukta has no authority to
confer jurisdiction to consider a complaint in violation of the
established statutory procedure.
4. Further, Ext. P5 order passed by the Electricity Ombudsman is
also challenged contending that the Electricity Ombudsman has
W. P. (C) No. 20819 of 2022
violated the hierarchical scheme provided for redressal of consumer
grievances under the Electricity Act, 2003. Furthermore, it is stated
that a conjoint reading of Sections 42(5) and 42(6) of the Electricity
Act, 2003 with Regulations 2(1)(f), 19(a) and 22(1)(a) of the Kerala
State Electricity Regulatory Commission (Consumer Grievance
Redressal Forum and Electricity Ombudsman) Regulations, 2005
(hereinafter referred to as 'Regulations, 2005' for brevity) clearly says
that an aggrieved consumer must first approach the Consumer
Grievance Redressal Forum constituted under Regulations 2005, and if
his grievance subsists, he is entitled to approach the Electricity
Ombudsman.
5. Therefore the sum and substance of the contention is that the
Electricity Ombudsman has usurped the jurisdiction of the Consumer
Grievance Redressal Forum by considering the complaint of the 3rd
respondent. Therefore it is submitted that this court is to interfere in
and set aside Ext. P2 order of the Upa Lok Ayukta and Ext. P5 order
passed by the Electricity Ombudsman.
6. We have heard the learned counsel for the petitioner, Sri. Riji
Rajendran and perused the pleadings and materials on record.
W. P. (C) No. 20819 of 2022
7. The sole question that emerges for consideration is whether
any interference is required with respect to the impugned orders.
8. The paramount contention advanced by the petitioners is that
the Upa Lok Ayukta erred in directing the complainant to approach the
Electricity Ombudsman since the Regulations, 2005 prescribes a clear
procedure for redressing the grievances of any excess bill through a
Consumer Grievance Redressal Forum constituted as per Regulations,
2005. For the said reason it is contended that the direction issued to file
a complaint before the Ombudsman is not legally correct.
9. In order to understand the true implication of the contention
advanced, we feel it appropriate to refer to the relevant provisions of
the Electricity Act, 2003 and the Regulations, 2005.
10. Section 42(5) of the Electricity Act, 2003 read along with
Section 42(6) makes it clear that a consumer is entitled to approach the
Ombudsman Board is vested with powers to recover the prices to be
charged by a distribution licensee for the supply of electricity by him
in pursuance of Section 43 of the Act, along with other charges
prescribed under law.
11. Regulation 2(f) defines a complaint to mean any grievance
W. P. (C) No. 20819 of 2022
made by a complainant in writing among others:-
xxx xxx xxx
(iii) charging of price in excess of the price fixed by the
Commission for supply of Electricity and allied services and (iv) errors
in billing.
12. Regulation 2(g) defines 'consumer' to mean any person who
is supplied with electricity for his own use by a licensee and includes
any person whose premises are connected for the purpose of receiving
electricity with the works of a licensee or a person whose electricity
supply is disconnected by a licensee or a person who has applied for
connection for receiving electricity from a licensee, as the case may
be.
13. Regulation 2(k) defines 'Electricity Ombudsman' to mean an
authority to be appointed or designated by the Commission, under sub-
section (6) of Section 42 of the Act, with whom a representation may
be made by any consumer, who is aggrieved by non-redressal of his
grievances by the Forum.
14. 'Forum' is defined under Regulation 2(m) to mean a 'Forum
W. P. (C) No. 20819 of 2022
for redressal of grievances of consumers' to be constituted by the
distribution licensee. As per Regulation 3 of Regulations, 2005,
Consumer Grievance Redressal Forum is established.
15. The jurisdiction of the forum, the kind of grievances that can
be taken up by the forum; the procedure to be followed for grievance
redressal and lodging complaints etc. are all guided by Regulation 6 to
Regulation 12 of Regulations, 2005.
16. It is true that Regulation 12A confers a power of review on
the Forum to review any order either on its own motion or on an
application of any person aggrieved, on the grounds specified
thereunder.
17. Regulation 2(k) defines 'Electricity Ombudsman' to mean an
authority to be appointed or designated by the State Commission,
under Section 42(6) of the Electricity Act, 2003 with whom a
representation may be made by any consumer, who is aggrieved by
non-redressal of his grievances by the Forum. Section 42(5) of the
Electricity Act, 2003 casts an onus on every distribution licensee to
establish a forum for redressal of grievances of the consumers in tune
with the guidelines of the State Commission. Section 42(6) states that
W. P. (C) No. 20819 of 2022
any consumer who is aggrieved by non-redressal of his grievance
under Section 42(5) may make a representation for the redressal of his
grievance to the ombudsman. The legislature has employed the phrase
'aggrieved by non-redressal of his grievance under sub-section (5)'
while describing the ambit of representations that may be considered
by the Ombudsman. Hence, from the simple interpretation of the
legislation it is clear that the legislative intent was to treat the
Ombudsman as an appellate authority that the consumers may
approach when their grievances are not redressed in the forum.
18. True that the Ombudsman is treated as an appellate authority
above the Forum. However, it cannot be said that the Ombudsman is
an authority without jurisdiction to redress a complaint from a
consumer who directly approached the ombudsman upon the direction
of the Upa Lok Ayukta. A consumer cannot be made to suffer because
they complied with the direction of a statutory body. The consumer
was directed by the Upa Lok Ayukta to remit Rs.20,000 as a condition
for grant of stay of the demand. Thereafter, when the matter was
finally heard the consumer was directed to approach the Ombudsman.
Hence, it cannot also be said that the petitioner herein was in any way
prejudiced by the order of the Upa Lok Ayukta just because the
W. P. (C) No. 20819 of 2022
consumer was granted the liberty to approach the Ombudsman.
19. Clearly, statutory bodies have been created under the
Electricity Act, 2003 with the intention of redressing the complaints of
aggrieved consumers. Therefore, it is only logical and in consonance
with the legislative intent that the consumer is not put to unwanted
difficulty by making them run from pillar to post, despite pursuing
their complaint diligently and following the directions that were issued
to them. Therefore, in the light of the facts and circumstances before
us, we are of the opinion that this case should be treated as a special
one and viewed in the said circumstances it cannot be said that the
order of the Upa Lok Ayukta, directing the consumer to approach
Ombudsman is bad in law. However, this shall not constitute a
precedent.
20. Now the sole question is whether there is any illegality or
arbitrariness in Ext. P5 order passed by the State Electricity
Ombudsman.
21. We have gone through the order extensively and we find that
the Ombudsman has arrived at the conclusions after taking into
account the entire contentions raised by the petitioners herein and the
W. P. (C) No. 20819 of 2022
3rd respondent / complainant and has arrived at the conclusions by
assimilating various factual situations and after providing opportunity
of hearing to both the parties.
22. It is also clear from Ext. P5 impugned order that the
Ombudsman has taken into account the inspections conducted by the
respective wing of the Kerala State Electricity Board in the premises of
the complainant due to the complaint of electric shock, the average
energy consumed during billing periods and the intricacies relating to
the findings rendered by the inspecting team etc. Whatever that be the
board is ultimately directed to prepare a revised bill taking the average
of the three bimonthly consumptions recorded in the meter from
19.10.2020 to 19.04.2021 and issue the revised bill after making
adjustment of the payments. This procedure and exercise adopted by
the Ombudsman by giving opportunity to the parties cannot be said to
be bad, illegal, arbitrary or without jurisdiction.
23. Therefore we are convinced that the order passed by the
Ombudsman is in accordance with the powers conferred, though as an
appellate authority, under the Regulations, 2005 and appreciating the
rival submissions made by the parties.
W. P. (C) No. 20819 of 2022
24. It is also significant to note that, though various contentions
are raised with respect to the lack of jurisdiction of the Ombudsman to
entertain a complaint, in the writ petition, from Ext. P4 statement of
facts submitted by the Board, it is clear that no such contentions were
raised before the Ombudsman.
Therefore after having analyzed the whole lot of factual and
legal situations, we are undoubtedly of the opinion that the petitioners
have not made out any case for interference either with Ext. P2 order
passed by the Upa Lok Ayukta or Ext. P5 order passed by the
Electricity Ombudsman.
Upshot of the above discussion is that writ petition fails.
Accordingly it is dismissed.
Sd/-
S. MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
W. P. (C) No. 20819 of 2022
APPENDIX OF WP(C) 20819/2022
PETITIONER EXHIBITS
EXHIBIT-P1 TRUE COPY OF THE BILL DATED 19-10-2020
ISSUED BY KSEBL TO THE 3RD RESPONDENT
FOR THE PERIOD FROM 17-08-2020 TO 19-10-
EXHIBIT-P2 TRUE COPY OF THE ORDER DATED 15.12.2021
IN COMPLAINT NO.203/2020A PASSED BY THE
UPA LOK AYUKTA
EXHIBIT-P3 TRUE COPY OF THE APPEAL PETITION NO.
P/080/2021 PREFERRED BY THE 3RD
RESPONDENT BEFORE THE STATE ELECTRICITY
OMBUDSMAN ON 28-12-2021
EXHIBIT-P4 TRUE COPY OF THE STATEMENT OF FACTS
DATED 19.01.2022 FILED BY THE PETITIONER
IN APPEAL PETITION NO.P/080/2021 BEFORE
THE STATE ELECTRICITY OMBUDSMAN
EXHIBIT-P5 TRUE COPY OF THE ORDER DATED 17.03.2022
PASSED BY THE STATE ELECTRICITY
OMBUDSMAN IN APPEAL PETITION
NO.P/080/2021
