Executive Engineer vs Shri Parasram Joshi
2021 Latest Caselaw 683 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                 Writ Petition No. 3132 of 2018 (M/S)

Executive Engineer, Electricity Distribution Division
                                                    .....Petitioner.
                                Versus
Shri Parasram Joshi                                      ....Respondent

Present :
Mr. Tapan Singh, Advocate for the petitioner.
Mr. R.P. Nautiyal, Senior Advocate assisted by Mr. Anil Kumar, Advocate for the
respondent.

                                                   Dated: 5th March, 2021
                            JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

Heard learned counsel for the parties.

2. The petitioner has filed this Writ Petition for the following reliefs :-

"i) Issue a writ, order or direction, quashing impugned order dated 06-07-2018 passed by the learned Electricity Ombudsman Uttarakhand at Dehradun (Annexed as Annexure No.3 to this writ petition.

ii) Issue any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioner.

iii) Cost of the petition be awarded in favour of the petitioner."

3. In fact, the judgment and order, which has been put to challenge by the petitioner, herein, in the present Writ Petition, the petitioner was directed to remove the electricity poles, which were installed in the premises of the complainant/respondent, as would be apparent from the operative portion of the judgment dated 25th April, 2018, as was rendered by the Electricity Consumer Grievance Redressal Forum, Garhwal Zone, Dehradun, and also from the

judgment of Ombudsman, as was rendered on the Representation No. 16 of 2018, on 6th July, 2018, wherein too, the earlier direction was affirmed.

4. Be that as it may. If the writ averments itself are taken into consideration, where the petitioner has given a challenge to the judgment of the Ombudsman, and particularly, a reference may be had to para 5 and 6 of the Writ Petition, which is quoted hereunder :-

"4. That being aggrieved by the order dated 25.0.2018 the respondent preferred an appeal before the Ombudsman (Electricity) Dehradun, which was registered as appeal no.16 of 2018.

5. That the Ombudsman (Electricity) Dehradun vide its order dated 06.07.2018 allowed the appeal filed by the respondent and set-aside the order dated 25.04.2018 passed by the Consumer Grievance Redressal Forum Uttarakhand Power Corporation Ltd. Dehradun, and directed the petitioner to execute the work for shifting the poles if feasible as per the estimate and otherwise with necessary addition from their own fund as they stand committed to shift the poles from the land of the petitioner within the cost of the sanctioned estimate. The estimate had already been approved and the fund for the same had been made available from the Vidhayak Nidhi 2 years ago. Since estimate already sanctioned and pending grievance of the appellant (respondent herein) is redressed. The learned Ombudsman (Electricity) directed the petitioner to report within 30 days of this order for action and taken compliance Copy of the impugned order dated 06.07.2018 passed by the Ombudsman (Electricity) Dehradun and its true typed & correct copy are being filed herewith collectively and marked as Annexure No.3 to this writ petition."

5. The petitioner admits the fact that as a consequence of the compliance of the judgment, he had already shifted the poles from

the disputed site, which were proved to be installed on the land, which was belonging to the respondent/complainant, and in fact, as a consequence of the execution of the said judgment on their own volition, no cause of action as of now survives, to be adjudicated by this Court.

6. The learned counsel for the petitioner had sought to draw a distinction over the controversy from the perspective that, as to whether the complaint preferred by the respondent before the Grievance Redressal Forum Cell, will at all itself fall to be within the ambit of Section 42, because of the limitations which are contained under Sub-section (5) of Section 42 of the Act, and rather he wants to contend that the 'complaint', contained therein, which if is taken into consideration could be only at the behest of the "Consumer". His contention is that since the respondent/complainant, is not a consumer, his complaint would not be sustainable, under Section 42 of the Act, which has been decided by the impugned orders, which are under challenge herein.

7. For the said purpose, if reference of the definition of the "consumer" is taken, from Sub-section (15) of Section 2 of the Act, where the Act defines the consumer, it is extracted hereunder :-

"(15) "consumer" means 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;"

It divides the definition of "consumer", given under the Act into two segments, i.e. actual consumer of an electricity, which is supplied

by the licensee or the government or another other person engaged in the business. The second part of it, includes any person whose premises is being even utilised by the licensee for the purposes of receiving or supplying of electricity to the licensee, government or such other person, as the case may be. The subsequent part of Sub- section (15) of Section 2 of the Act, defines the consumer, where the use of the word "premise" of any such "other person", has also been brought within the ambit of the definition of consumer. Accordingly, I decide this question against the petitioner, holding thereof that the complaint of the petitioner on whose land the electricity poles were installed would fall to be sustainable before the Grievance Redressal Cell, but since admittedly as per the averment made in para 5 and 6 of the Writ Petition, the compliance and the removal of electricity poles have already been undertaken by the petitioner on their own, no merit adjudication is required in the Writ Petition at present.

8. After conclusion of the judgment, the learned counsel for the petitioner has sought to draw a distinction by interpreting Sub- section (5) of Section 42, as to be the provision which grants the permission for redressal of the grievance in relation to a 'bill' only for the payment of the electricity dues by the consumer, hence it would not be applicable over the complaint of the respondent.

9. This argument of the learned counsel for the petitioner is not accepted, for the reason being that the provisions of Sub-section (5) of Section 42, if it is read along with the Sub-section (7) or Sub- Section (6) of Section 42, there is no distinction as such, which has been carved out, but rather it is wide enough to include within its ambit any complaint, which is filed by the consumer, which could be adjudicated by the Consumer Grievance Redressal Cell, which was the aspect, which has already decided by this Court by interpreting the definition of the Consumer given under Section 2 (15) of the Act.

10. Consequently, the issue of excluding the respondent from the ambit of the consumer is not acceptable by this Court. Hence, the Writ Petition is dismissed.

(Sharad Kumar Sharma, J.) 05.03.2021 Shiv