Maharashtra State Electricity Distribution Company Limited vs Electricity Ombudsman, Mumbai

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Bom) 253

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. Dharmadhikari, A.M. Badar, Bharati H. Dangre, JJ.
Maharashtra State Electricity Distribution Company Limited - Appellant
Vs.
Electricity Ombudsman, Mumbai - Respondent
Writ Petition No. 10764 of 2011, 6783 of 2009, 495 of 2015, 4573 of 2016, 5367 of 2016, 9858 of 2016, 498 of 2009, 1850 of 2013
Decided On : 12-03-2019

Advocates Appeared:
A.A. Kumbhakoni, Adv., Rahul Sinha, Adv., S.B. Lolge, Adv., Dsk Legal, Adv., Abhay Nevagi, Adv., Sandesh Shukla, Adv., Amit Singh, Adv., Santosh Sawant, Adv., Abhay Nevagi & Associates, Adv., R.S. Apte, Adv., Padmanabh D. Pise, Adv., Rahul Narichania, Adv., Nidhish Mehrotra, Adv., Darshan Furia, Adv., Zoya Syed, Adv., Ashish Mehta, Adv., Neeta Masurkar, Adv., S.G. Thakur, Adv., Nieyaati Masurkar, Adv., Gautam Ankhad, Adv., Ankur Shah, Adv., Hemant Sethi, Adv., Shruti D. Vyas, Adv., Kavita Anchan, Adv., Arsh Mishra, Adv., M.V. Kini & Co, Adv., Abhishek Khare, Adv., P. Kedia, Adv., Bindu Bhatia, Adv., Khare Legal Chambers, Adv., Shyam Mehta, Adv., Arijit Maitra, Adv., Madhusudan G. Gawde, Adv.

Headnote:
Indian Electricity Act, 2003 - Sub-Section 2 of Section 56 - Constitution of India, 1950 - Articles 226 and 227 – Claim of compensation - Order of Electricity Ombudsman - Licensee to cut-off supply of electricity - Whether incorporated or not or artificial juridical person which owns or operates or maintains a generating station - Whether incorporated or not or artificial juridical person - Whether Electricity Ombudsman can pass order retrospectively covering a period from December when Electricity Ombudsman is established - Whether Electricity Ombudsman has jurisdiction to pass impugned order July allowing back billing by amending bills and regulation system Regulations, 2006 or part of disputes have been referred to - In court opinion impugned order of Electricity Ombudsman is in accordance with provisions of Sub-Section 2 of Section 56 of Electricity Act, 2003 and since Respondent is also a public sector undertaking namely not think that this is a fit case for granting interim relief as prayed for in Petition - Hence prayer for interim relief is refused - Writ Petition is however admitted in view of importance of issue regarding correct interpretation of Sub-Section 2 of Section 56 of Electricity Act, 2003 and direct conflict of opinion between Judgments of two Division Benches of this Court as elaborately staged by me herein after - On a careful perusal of various Judgments brought before me, it is clear that there is a clear conflict between two Judgments of this Court. On the interpretation of Section 52 of Indian Electricity Act, 2003, in present case it is case of Petitioner that instead of applying correct multiplier factor 2 wrong multiplier factor 1 was applied - According to Petitioner therefore a wrong bill for a lesser amount was issued - Hence by impugned bill seeking recovery of difference which bill is issued Petitioner sought recovery of difference for period from in my opinion there is no difficulty in way of Petitioner since even Sub-Section 2 of Section 56 does not bar such recovery - However in my opinion problem and dispute arises when Distribution Licensee like Petitioner seeks to recover Electricity charges and dues beyond a period of two years – Held, Court do not see how therefore there was any conflict was a simple case of threat of disconnection of electricity supply for default in payment of electricity charges - That was a notice of disconnection under which payment of arrears was raised - It was that notice of disconnection setting out demand which was under challenge - That demand was raised on basis of order of Electricity Ombudsman - Once Division Bench found that challenge to Electricity order is not raised by taking into account the subsequent relief granted by it was no other course left before Division Bench but to dismiss writ petition - Reason for that was obvious because demand was re-worked on basis of order of Electricity Ombudsman - That partially allowed appeal of facts in case were clear and there demand was within period of two years that writ petition came to be dismissed - In fact when such amount became first due was never controversy - In on facts it was found that after reworking of demand and curtailing it to period of two years preceding supplementary bill raised that bar carved out by sub-section (2) of Section 56 was held to be inapplicable - Hence there with greatest respect there is no conflict found between two Division Bench Judgments - Legal provision is clear and its applicability would depend upon facts and circumstances of a given case - With respect therefore there was no need for a reference - Division Benches order in case and latter Judgment in Rotate Polyesters case should not be read in isolation - Both Judgments would have to be read as a whole – Ultimately Judgments are not be read like statutes - Judgments only interpret statutes for statutes are already in place - Judges do not make law but interpret law as it stands and enacted by Parliament - Even if supplementary bills are raised to correct amounts by applying accurate multiplying factor still no recovery beyond two years is permissible unless that sum has been shown continuously as recoverable as arrears of charges for electricity supplied from date when such sum became first due and payable - Writ petitions are disposal

JUDGMENT :

S.C. Dharmadhikari, J.

Civil Writ Petition No.10764 of 2011 was placed before a Learned Single Judge of this Court on 24-1-2012. He made the following order:-

"1 Heard Ms. Raksha Gala, for the Petitioner.

2 On 17th January,2012, following order was passed:-

"1 Heard Ms. Gala, Advocate for Petitioner.

2 The impugned bill seeking difference of electricity charges levied on the basis of multiplying factor one instead of multiplying factor of 2 was issued in the month of December 2010 for the period of September, 2003 to December, 2010. Prima facie Sub-Section 2 of Section 56 of the Indian Electricity Act, 2003 will not empower the Petitioner to recover any amount for period of 2 years prior to the date of demand namely prior to December, 2008. The learned Advocate for the Petitioner has relied upon the Judgment of Division Bench (Ranjana Desai and A.A. Sayed, JJ) in the case of Rototex Polyester & anr. v/s. Administrator, Administration of Dadra and Nagar Havli (U.T.) Electricity Department, Silvassa & Ors., (2010) 4 BCR 456.

The Electricity Ombudsman relied upon the following Judgments of the High Court.

(a) Judgment of the Division Bench in W.P. (L) No.221 of 2006 Mr. Awadesh S. Pande (of M/s. Nand/A/15) v/s. Tata Power Co. Ltd.

(b) M.S.E.D.C.L. v/s. Green World Magnum Enterprises (WP No.2894/2007 decided on 7/9/2007).

The learned Advocate for the Petitioner seeks time of one week to produce the aforesaid 3 Judgments referred at Serial Nos.(a) to(c) above. Stand over to 24th January, 2012. Parr-heard. High on board."

3 Advocate Ms. Gala has brought to my notice the relevant Judgments. She has also brought to my notice that the Judgment of the Division Bench in the case of Rototex Polyester & Another was brought to the notice of the authorities of the Electricity Ombudsmen. However, the same has not been referred in the impugned Judgment.

4 RULE. Since prima facie, in my opinion the impugned order of the Electricity Ombudsman is in accordance with the provisions of Sub-Section 2 of Section 56 of the Electricity Act, 2003 and since the Respondent is also a public sector undertaking namely B.S.N.L., I do not think that this is a fit case for granting interim relief as prayed for in the Petition. Hence, prayer for interim relief is refused. The Writ Petition is, however, admitted in view of the importance of the issue regarding correct interpretation of Sub-Section 2 of Section 56 of the Electricity Act, 2003 and the direct conflict of opinion between the Judgments of two Division Benches of this Court as elaborately stated by me herein after.

5 On a careful perusal of various Judgments brought before me, it is clear that there is a clear conflict between two Judgments of this Court. On the interpretation of Section 56(2) of the Indian Electricity Act, 2003, in the present case, it is the case of the Petitioner that instead of applying correct multiplier factor 2, wrong multiplier factor 1 was applied. According to the Petitioner, therefore, a wrong bill for a lesser amount was issued. Hence, by the impugned bill seeking recovery of the difference, which bill is issued in the month of December, 2010, Petitioner sought recovery of the difference for the period from September, 2003 to December, 2010. In so far as period preceding two years of December, 2010 is concerned, in my opinion, there is no difficulty in the way of the Petitioner since even Sub-Section 2 of Section 56 does not bar such recovery. However, in my opinion, the problem and dispute arises when the Distribution Licensee like Petitioner seeks to recover Electricity charges and dues beyond a period of two years. In a case where such dues have not been continuously shown as recoverable as arrears of charges for electricity supplied, Section 56(2) bars the recovery. The Division Bench of this Court (Coram: Smt. R.P. Desai and A.A. Sayed JJ.) which has decided Rototex Polye

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2019 Supreme(Bom) 253

Cases Referred (8)