The Maharashtra
State Electricity Distribution Co. Ltd Vs. Lloyds Steel Industries Ltd [2007] Insc
827 (14 August 2007)
A.K.Mathur
& Markandey Katju
CIVIL
APPEAL NO. 3551 OF 2006
1.
This appeal under Section 125 of the Electricity Act, 2003 (hereinafter for
short "the Act") is directed against the judgment passed by the
Appellate Tribunal for Electricity (hereinafter for short "the Appellate
Tribunal") dated 5th April, 2006 in Appellant's appeal No. 191/2005 and
the order dated 2nd June, 2006 passed by the Appellate Tribunal in Review
Petition No. 3/2006 and I.A. No. 60/2006.
2. It
is not necessary for us to go into the detailed facts. Suffice it to say that
the respondent company approached the Maharashtra Electricity Regulatory
Commission (hereinafter for short referred to as "the Commission")
with the grievance that a demand notice dated 26.8.2002 issued by the
Appellant's Wardha office be declared as illegal and may be set aside and
quashed and the respondent company be permitted to avail power supply to the
limit of 90 MVA without recovery of any additional charge either on account of
service connection charges or the service line charges and to further direct
the appellant herein to refund the amount of Rs. 227.9 lakhs so collected for
re-instatement of the contract demand to the original level of 90 MVA along
with interest @ 12% from the date of payment till the date of refund. The
respondent company was a consumer of the Maharashtra State Electricity Board
and originally they had a connection of 90 MVA which was subsequently reduced
to 80 MVA and finally to 56 MVA on a request made by the company. Thereafter
again they applied in June, 2002 for enhancement of their contract demand upto
90 MVA. Their request for enhancement of contract demand upto 90 MVA was
granted though it was clearly mentioned in the order dated 12.8.2001 while
reducing the contract demand to 56 MVA that in case enhancement of contract
demand was subsequently required by the respondent company, it would attract
payment of service line and other charges as per then prevailing conditions of
supply. However, the regular supply of 90 MVA was restored on the request of
the respondent company. The supply of 90 MVA was restored in June, 2002 and
thereafter a demand was raised in terms of letter dated 02.08.2001 for service
line charges, which was agreed to be paid by the respondent company, but in
installments. Aggrieved against the said order the respondent- company filed a
petition before the Commission on the ground that the demand of Rs.227.9 lakhs
so raised for reinstatement of contract demand of 90 MVA is not proper. An
objection was raised before the Commission that the Commission has no
jurisdiction in the matter in view of Section 42 of the Act and that the
consumer should approach the Consumer Grievance Redressal Forum and thereafter,
if still aggrieved, the Ombudsman created under the Act for redressal of their
grievances. The Commission over-ruled this objection by making a reference to
some decision of the Bombay High Court and proceeded to assume jurisdiction and
directed the refund of the aforesaid amount to the respondent company.
3.
Aggrieved against the said order dated 18th October, 2005, the Maharashtra State Electricity
Distribution Company Ltd. (hereinafter for short "MSEDCL") approached
the Appellate Tribunal for Electricity created under the Act. The Appellate
Tribunal vide its order dated 5th April, 2006
affirmed the order passed by the Commission. Thereafter a review petition was
filed by the MSEDCL before the Appellate Tribunal, which was also rejected vide
order dated 2nd June,
2006.
Aggrieved
against both these orders, the MSEDCL has approached this Court by the present
appeal under Section 125 of the Act.
4. We
have heard learned counsel for the parties and perused the record.
5. The
basic question which arises for our consideration in this appeal is whether the
individual consumer can approach the Commission under the Act or not. 6.
For
deciding this question, the relevant provision is Section 42(5) of the Act, which
reads as under:-
42.
Duties of distribution licensees and open access.-
(1) x
x x x x x (2) x x x x x x (3) x x x x x x (4) x x x x x x (5) Every
distribution licensee shall, within six months from the appointed date or date
of grant of 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."
7. 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 "2003
Regulations") and created Consumer Grievance Redressal Forum and
Ombudsman. Under these 2003 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 raised before this forum only. In
the face 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 a Division
Yamuna Power Ltd. and we approve of these decisions. 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.
8. 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 lays
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 does
not include in it an individual consumer. The proper forum for that is Section
42(5) and thereafter Section 42(6) read with Regulations of 2003 as referred to
hereinabove.
9.
Therefore, in the facts and circumstances of the present case, we are of the
opinion that the view taken by the Commission as well as the Appellate
Authority are unsustainable and they have erred in coming to the conclusion
that the Commission has jurisdiction. Consequently, we set aside the order
dated 18th October,
2005 passed by the
Commission and the orders dated 5th April, 2006 and 2nd
June, 2006 passed by
the Appellate Authority and remit the matter to the proper Forum created under
Section 42(5) of the Act to decide the grievance of the respondent herein in
accordance with law. We make it clear that we have not made any observation
with regard to the merits of the demand raised by the appellant upon the
respondent company and it will be open for the proper forum to adjudicate the
same. The payment, if any, made by the company will not operate as an estoppel
against the respondent company. We hope that the forum will decide the matter
expeditiously.
10.
With the above observations, the appeal is allowed with no order as to costs.
Back
Pages: 1 2
