Violation of mandatory provisions of the Electricity Act and the availability of alternative remedies under Section 111 of the Electricity Act.

K.L. Wadane, J.

1. Heard the learned counsel for the parties.

2. Rule. Rule made returnable forthwith. With consent of parties, the petition is taken up for final disposal.

3. The petitioner has challenged the order passed by respondent no.2, dated 5th September, 2013 along with public notice dated 24.02.2015 and the proceedings of advertisement No. 12/2014 by which respondent No.2 has fixed tariff. The petitioner has further challenged the order passed by respondent No.2 in Case No. 95/2013, dated 25.06.2015 by way of amendment in the writ petition.

4. The petitioner is a consumer of respondent No.3Company. Respondent No.2 is a Regulatory Commission established under the Electricity Act, 2003. It has power to fix tariff and is expected to be a watchdog of interest of the consumers and function transparently.

5. According to the petitioner, on 16.08.2012, respondent No.2 settled the tariff w.e.f. 1st August, 2012 in case No.19/2012. As per provisions of Electricity Act, respondent No.3 has to apply to respondent No.2 for increase in the tariff. On such application, respondent No.2 Commission has to issue a public notice, it has to call and hear objections of the consumers and then it has to take decision. On 05.09.2013, without any request or application of respondent No.3, respondent No.2 Commission took up suo moto proceedings and in total breach of the mandatory provisions of public hearing etc., allowed respondent No.3 Company to recover huge amount of Rs.3450.13/- crore, practically increasing cost by 20% to the consumers. The recovery was started from 7th September, 2013 and much more amount is recovered from the consumers.

6. TATA Motor challenged the said order in Appeal No. 295/2015 before the Appellate Tribunal for Electricity. The Appellate Tribunal remanded the matter to respondent No.2 for deciding the matter afresh. The Appellate Tribunal also directed respondent No.2 to decide the matter by following the procedure as contemplated under Sections 63, 64 and 86(3) of the Electricity Act, 2003.

7. On 24.02.2015, the Regulatory Commission, i.e. Respondent No.2 put up a notice on its website without disclosing any particulars as to how and why additional burden is put up, its impact, necessity, etc. due to which, public at large could not understand adverse affects and put objections etc. On 09.04.2013, date was fixed at Aurangabad. The petitioner was personally present and gave written representation, requesting to publish public notice in newspaper, giving all details to enable the public at large to raise effective objections. Representation was received but not answered nor detail publication was given on the website.

8. Respondent No.2 Commission has denied the material allegations in the petition and it is contended that petition is not maintainable as alternative remedy is available under the provisions of the Electricity Act, 2013. The Appellate Tribunal, has power to consider the aspect in appeal under section 111 of the Electricity Act. By way of additional affidavit it is contended that after remand of the matter, respondent no.2, after giving proper opportunity to these concerned parties, has passed order on 26.03.2015. Respondent No.2 prays to reject the petition.

9. We have heard the arguments of Mr. R. R. Mantri, learned counsel for the petitioner, Mr. B. A. Shidne, learned AGP for respondent No. 1 State, Mr. Ratnakar Singh, learned counsel for Respondent Nos. 2 & 4 and Mr. Anil S. Bajaj, Advocate for respondent No.3.

10. During the course of argument, Mr. Mantri has argued that respondent no.2 fixed and finalized the tariff without request/application of respondent no.3. The commission has took up the proceedings suo moto which is in contravention of section 64 of the Electricity Act. He further argued that respondent No.2 Commission has not followed the provisions of Section 64 of the Electricity Act nor gave a public notice. Objections were not called from the Consumers and it has decided the matter