Jaipur Vidyut Vitran Nigam ... vs Electricity Ombudsman
2022 Latest Caselaw 1628 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 14766/2019

Jaipur Vidyut Vitran Nigam Limited, Vidyut Bhawan, Janpath,
Jaipur-302005, through Executive Engineer (O And M), JPD,
Bhawani Mandi, Jhalawar, Rajasthan.
                                                                         ----Petitioner
                                     Versus
1.      Electricity Ombudsman, Rajasthan, Jaipur.
2.      Shri Rajasthan Textiles Mills, Pachpahar, Bhawani Mandi,
        Jhalawar-326502
                                                                   ----Respondents

For Petitioner(s) : Ms. Anuradha, through V.C. For Respondent(s) : Mr. P.N. Bhandari, through V.C.

                 HON'BLE MR. JUSTICE SAMEER JAIN

                                  Judgment

Judgment Reserved on                                     01.02.2022
Judgment Pronounced on                                    21.02.2022

1. Present petition has been filed by Jaipur Vidyut Vitran

Nigam Ltd., Jaipur (hereinafter referred as 'JVVNL'), being

aggrieved by the award order dated 16.05.2019 passed by the

Electricity Ombudsman Rajasthan, Jaipur in Case No.EOR

452/2019 whereby petitioner has been directed to revise bills

considering error of (+) 3.313% in one CVT of main meter from

29.06.2016 to 18.05.2018 and error of (+) 0.209% in another

CVT of main meter from 19.11.2017 to 18.05.2018 and petitioner

is further directed to refund excess amount which has been

recovered from respondent No.2.

2. Brief facts of the case are that the petitioner is a

government company duly registered under the Companies Act

(2 of 10) [CW-14766/2019]

and is thus permitted to avail remedy under Article 226 of the

Constitution of India. The submissions of the learned counsel for

the petitioner is that they are aggrieved of the order passed by

respondent No.1 in favour of respondent No.2 whereby excess

claim of refund of more than six months is awarded i.e. for the

period from 29.06.2016 to 18.05.2018.

3. Respondent No.2 is a consumer with the electricity

connection in Larger Industrial Category at Bhawani Mandi,

Jhalawar. Respondent No.2 was having grievance regarding energy

bills for the period from 29.06.2016 (date of connection) to

18.05.2018 (replacement of CVTs). During this period, the

metering equipment remained inaccurate due to error in CVTs. For

redressal of the same, Respondent No.2 approached the Corporate

Level Grievance Redressal Settlement Forum (hereinafter called

Settlement Forum) under the provisions of Section 42 read with

Rule 15 of the Electricity (Rights of Consumers) Rule 2020 framed

under Electricity Act, 2003.

4. Vide minutes of the Settlement Forum dated

08.01.2019 and 29.01.2019 finally a refund of Rs.41,34,667/- was

awarded and allowed to be adjusted for the period from

07.10.2017 to 06.04.2018, for the period of six months, in

accordance with law under the provisions of clause 33(5) of Terms

and Conditions of Supply of Electricity, 2004 (hereinafter called

TCOS- 2004).

5. Being aggrieved and not satisfied with the decision of

Settlement Forum, respondent No.2 filed the representation

before the Electricity Ombudsman (respondent No.1) for their

grievance and for refund of excess amount of entire period

(3 of 10) [CW-14766/2019]

starting from 29.06.2016 to 18.05.2018 i.e. from date of

connection to date of replacement of CVTs.

6. After consideration of the claim, the respondent No.1,

being an expert authority, in terms of Section 42(7) settled

grievance of the consumer and vide order dated 16.05.2019 held

that the respondent/consumer will be entitled for adjustment on

account of inaccuracy in the meter since the date of connection in

terms of para-2 Clause 33(5) of TCOS-2004 and limit of six

months restricted by the Settlement Forum was held to be

erroneous and therefore, vide para 8 of the award dated

16.05.2019, the Electricity Ombudsman passed order for revision

of bills as per above terms.

7. Being aggrieved of the order dated 16.05.2019 passed

by respondent No.1, the present writ petition was filed for judicial

review.

8. The contention of Ms. Anuradha Upadhyay appearing on

behalf of petitioner is that on account of the illegality, impropriety

and wrong interpretation given by the respondent No.1-

Ombudsman, the relief in favour of the respondent No.2 for a

period of more than six months is contrary to provisions of Section

33(5) of TCOS-2004. As per learned counsel for the petitioner the

express provision of Section 33(5) puts a rider that in case of

inaccuracy in the meter, the excess amount may be adjusted, but

in any case, it will not exceed six months. She submits that the

Hon'ble court should set aside the impugned order and restore the

findings of the Settlement Forum. Her further claim was that

under the doctrine of judicial review and Article 226 of the

Constitution of India the court is duty bound to entertain the

petition if there is an error apparent on the face of record,

(4 of 10) [CW-14766/2019]

interpretations of legal provisions as bad. Hence, there is no

question of not entertaining the present writ petition on account of

Section 42(8) of the Electricity Act, 2003 as after the orders of

respondent No.1, judicial review is permissible.

9. Apart from the above submissions learned counsel for

the petitioner further submitted that the Settlement Forum has

rightly considered the case and given the due relief and the excess

relief granted by respondent No.1 is not legal and needs to be set

aside.

10. Per contra learned counsel Mr. P.N. Bhandari, learned

counsel for respondent No.2 submitted that present case is a

classical case of frivolous litigation. Even the Settlement Forum

which comprises of various experts and is presided over by

Managing Director of the petitioner DISCOM Company in the

Settlement Committee meeting held on 08.01.2019, has admitted

that meter was running fast and a refund of Rs.41 lakhs should be

allowed for a period of six months. In the second meeting of the

Settlement Committee which took place on 29.01.2019 the

Settlement Committee after hearing the consumer and analyzing

the relevant records held that the meter was showing inaccurate

results and the benefit to the consumer that is respondent No.2

can be given from the first date of intimation i.e. 19.05.2017 i.e.

for a period of eleven months. He further submitted that even the

Settlement Forum interpreted the provisions of Clause 33 of

TCOS-2004 in favour of respondent No.1 and was bargaining for

not giving refund on account of access billing for the entire period.

Hence, the present writ petition is not maintainable on this count

itself.

                                         (5 of 10)                [CW-14766/2019]



11.       Learned    counsel        for    the      respondent   No.2   further

submitted that respondent No.1, who is an expert in the subject

as per Section 45 of the Evidence Act, has to be given weightage.

Respondent No.1 has given a categorical finding after considering

clause 33 of TCOS-2004 by reading it in entirety along with

proviso to clause 33(5), by giving the benefit of inaccurate meter

reading for the entire period as per Meter Reading Instrument

Report (hereinafter referred as MRI report). The body of the

impugned order in para-16 categorically reflects that the learned

Ombudsman has taken MRI Report for the period from June 2016

to 18.05.2018 and has given categorical finding that the complaint

needs to be considered since the date of connection i.e.

29.06.2016 to date of replacement of CVTs i.e. 18.05.2018 and

therefore the appeal should be revived and refund be adjusted

accordingly. Learned counsel further submitted that the provisions

of Section 42(7) and 42(8) settles the dispute and the present writ

petition under Article 226 is not maintainable as conclusive

findings have been given by the respondent No.1 which are not

assailable. In support of his claim, he has relied upon the

judgment reported in 2013 (289) ELT 106 (Del.) titled as

Union of India Vs. IND Metal Extrusions Private Ltd. and

Urban Improvement Trust, Bikaner Vs. Mohanlal reported in

2010 (1) SCC 512.

12. I have heard the submission of learned counsel for the

parties, scanned the record of writ petition and considered the

judgments cited at bar.

13. Learned counsel for the petitioners relied upon the

judgment in Special Appeal(Defective) No. 547/2010 titled as U.P.

Power Corporation Ltd. Vs. Electricity Ombudsman & Ors. with

(6 of 10) [CW-14766/2019]

regard to the maintainability of writ petition. However, the said

judgment of Allahabad High Court pertains to the maintainability

of writ petition under Article 227 of the Constitution of India,

whereas, the present petition has been filed under Article 226 of

the Constitution of India, and is therefore, distinguishable on this

ground. To substantiate her arguments, she also leaned on the

judgment of Hon'ble Apex Court titled as Shiv Shakti Coop.

Housing Society Nagpur Vs. Swaraj Developers & Ors. reported in

(2003) 6 SCC 659, that dealt with impugned interim order.

However, in the instant matter, the impugned order is not interim

in nature, and is henceforth, distinguishable on this aspect. Lastly,

she banked on the judgment of High Court of Jharkhand in W.P.C.

No. 1373/2008 titled as The Jharkhand State Electricity Board Vs.

M/S Akshaya Techonogies Pvt. Ltd. Ranchi, that dealt with the

jurisdiction of Ombudsman, which again is not contested in the

instant case at hand.

14. At the first instance, as regards the contention raised

by respondents counsels and in the light of express provisions of

Section 42(7), 42(8) of the Electricity Act, that the writ petition is

not maintainable, this court is of the view that Section 42(7) of

the Electricity Act states that the Ombudsman shall settle the

grievance of the consumer and provisions of Section 42(8) says

that the provisions of sub Section (5),(6),(7) of Section 42 shall

be without prejudice to rights which the consumer may have apart

from rights conferred upon him by these sub sections. The

relevant provisions are reproduced below:-

Section 42. (Duties of distribution licensee and open

access): ---

(5) Every distribution licensee shall, within six months from the appointed date or date of grant of

(7 of 10) [CW-14766/2019]

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.

(6) Any consumer, who is aggrieved by non- redressal of his grievances under sub-section (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 sub-sections (5),(6) and (7) shall be without prejudice to right which the consumer may have apart from the rights conferred upon him by those sub-sections."

15. Analyzing the scheme of the Electricity Act, 2003, Part-

VI Section 42, this court is of the view that alternative dispute

mechanism has been provided to the consumer which is binding

like petitioner like companies also firstly, by approaching the

Settlement Forum under the provisions of Section 42(4) read with

Rule 15 of Electricity Act (Rights of Consumer) Rules 2020. If the

consumer is aggrieved by the decision of Settlement Forum and

has grievance under Sub-section 42(5), he can file representation

for redressal of his grievance before Ombudsman.

16. Under Section 42(7), legislature has consciously used

the word "settle" while enacting that, 'the Ombudsman shall settle

the grievance of the consumer' and the provision of Section 42(8)

has only given liberty qua the consumer and not qua the

Electricity Distribution Company to have a right to assail the said

judgment. It is amply clear that the provisions of Electricity Act

under Section 42(6), 42(7) and 42(8) pertain to settlement of

dispute by Ombudsman, if the parties are at dispute. Section

42(8) makes things clear that it is a lock and key mechanism,

(8 of 10) [CW-14766/2019]

whereby the key is only with the consumer to approach higher

authorities or higher office to exercise its right, and with regard to

others, i.e. electricity companies it is locked. This is what is the

concept of alternative dispute remedy mechanism. Further, as

defined in the Black's Law Dictionary 4th ed Rev;

"settle' may be employed as meaning to agree, to approve, to arrange, to ascertain, to liquidate, to come to or reach an agreement, to determine, to establish, to fix, to free from uncertainty, to place, or to regulate."

17. In the light of restriction being imposed by Section

42(8) on the distributor company, like the petitioner, as per the

scheme of the Act and intention of the legislature by using the

word 'settle', this court is of the view that the present writ petition

is not maintainable qua Electricity Company like petitioner.

18. Secondly, it is also a fact that inaccuracy in meter is

duly admitted by the Settlement Forum and in the above referred

meeting, they have firstly bargained for a period of six months

and thereafter for a period of eleven months i.e. date of

intimation. Inaccuracy in the meter from the date of installation is

not disputed and the order/minutes of the Settlement Forum are

not agitated/appealed by the petitioner-company. This solicits the

contention of the respondent No.2 that his claim is for extended

period and the lock of six months is not tenable. Lastly, as the

arguments were advanced by the petitioners counsel and looking

to the substantial question of law that whether clause 33 of TCOS-

2004, which is reproduced below, empowers the petitioner-

company to give a relief of six months or for the entire period, the

Ombudsman, who is an expert, has considered the period from

(9 of 10) [CW-14766/2019]

date of connection on account of inaccuracy in meter i.e. from

29.06.2016 to 18.05.2018. Proviso to clause 33(5) of TCOS-2004

is reproduced as under:-

33.Inaccurate meter "(5) The excess or short amount under Sub-

Clause (4) may be adjusted or recovered, as the case may be, for the period from the previous meter testing till the date of meter being removed or replaced for testing or tested at site, but in any case this period shall not exceed six months.

Provided that where inaccuracy has been detected through MRI report or testing in the laboratory and the details of which are available with the Nigam, the assessment shall be made for the entire period during which meter remained inaccurate as per MRI reports/Laboratory test report and copy of such reports shall also be made available to the consumer."

19. This court in the light of Section 45 of the Indian

Evidence Act and on account of the fact that Ombudsman is an

expert authority, is of the view that restriction of six months was

not applicable and as per proviso to Section 33, respondent No.2

was entitled for relief/refund/credit of entire period in question i.e.

from 29.06.2016 to 18.05.2018.

20. Further placing reliance upon judgment of Hon'ble Apex

Court titled as DMRC Vs. Tarun Pal Singh reported in (2018)14

SCC 161, wherein after consideration of series of judgments of

Hon'ble Apex Court, it was held that while interpreting the proviso

care must be taken i.e. it is used to remove special cases from the

general enactment and provide course of action for them

separately.

21. In short, generally speaking the ratio of judgment of

Hon'ble Apex Court submits that Clause/Section should be read in

conjunction/harmony and in totality. In the given case in question

Clause 33 of TCOS-2004 in normal cases prescribes a period of six

(10 of 10) [CW-14766/2019]

months. When the meter is found inaccurate and the consumption

assessment is done as per the prescribed mechanism, the

assessment has to be made for entire period during which the

meter remained inaccurate as per MRI reports/laboratory reports.

The case in hand fulfills the requirement of proviso to Section

33(5) i.e. MRI Reports.

22. In the case in hand the respondent No.1 in para-16 of

its award after consideration of MRI report for the period from

29.06.2016 to 18.05.2018 has categorically held that the meter

was inaccurate since the date of connection till the date of

replacement, considering the said error, the entire period on the

said analysis under the Regulation of the Electricity Ombudsman

Regulations was granted as the benefit and was permitted for

adjustments.

23. In the light of above findings, this court is of the view

that the present writ petition is not only liable to be dismissed on

account of maintainability but on merits too.

24. Accordingly, the writ petition is dismissed.

25. All pending applications are also disposed of.

(SAMEER JAIN),J

JKP/61

Powered by TCPDF (www.tcpdf.org)