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IN THE HIGH COURT OF CALCUTTA
Nadira Patherya, J.
West Bengal State Electricity Distribution Company Limited - Petitioner
Versus
Sri Uttam Kumar Bhakat & Anr. - Respondents
W.P. No. 27601 (W) of 2012
Decided On : 15-05-2015
For the Petitioners (WBSEDCL):Srijan Nayek, Raja Saha, Arindam Mitra, Shehasis Banerjee, Advocates
For the Respondent No. 1:Shehasis Banerjee, Advocate
For the Licensing Company :Pratik Dhar and Ritwik Pattanayak, Advocates
For the Respondents No. 1:Subroto Roy Karmakar and Sukanya Bhattacharya, Advocates
The Ombudsman's power to grant compensation and impose penalty is limited to grievances of consumers under Section 42(5) of the Electricity Act, 2003.
Headnote:
OMBUDSMAN - POWER TO GRANT COMPENSATION AND IMPOSE PENALTY - ELECTRICITY ACT, 2003 - SECTIONS 42(5), 42(6), 42(7), 43, 43(1), 43(3), 57, 57(1), 57(2), 59(1), 82, 86(f), 97, 143, 143(1), 143(2), 181(2)(r), 181(2)(s), 181(2)(t), 181(2)(za), 181(zp) - WEST BENGAL ELECTRICITY REGULATORY COMMISSION (COMMISSION) REGULATIONS, 2003 - REGULATIONS 9.2, 10, 11, 24 - WEST BENGAL ELECTRICITY REGULATORY COMMISSION (COMMISSION) REGULATIONS, 2005 - RULES 7(2), 7(3), 7(4) - WEST BENGAL ELECTRICITY REGULATORY COMMISSION (COMMISSION) REGULATIONS, 2006 - REGULATIONS 2(e), 10, 16, 24, 27 - WEST BENGAL ELECTRICITY REGULATORY COMMISSION (COMMISSION) REGULATIONS, 2010 - REGULATIONS 3, 8, 10.4, 10.5, 12(a), 14, 14.3, 15, 46 - WEST BENGAL ELECTRICITY REGULATORY COMMISSION (COMMISSION) REGULATIONS, 2013 - REGULATIONS 56 - Ombudsperson can only consider grievances of consumers under Section 42(5) of the Electricity Act, 2003. Delay in grant of connection to a person who has not been supplied electricity does not make him a consumer under Section 2(15) of the Act and disentitles the Ombudsman from granting any compensation. Ombudsman cannot exercise any power under Section 143(2) of the Act as he is not a member of the Commission. Regulations framed by the Commission under Sections 181(2)(r), (s), (t) and (za) do not empower the Ombudsman to grant compensation or impose penalty. Regulations 10.4 and 10.5 of the 2013 Regulations empower the Ombudsman to award compensation and penalty under Section 43(3) of the Act, but the entitlement of a consumer to compensation arises under Section 43(1) of the Act. Regulation 46 of the 2010 Regulations is the only Regulation that has been relied upon by the Ombudsman to direct payment of compensation, but there has been no delegation under Section 97 of the Act till 2014. Section 57(1) of the Act is not applicable and compensation issued can only be considered under Section 57(2) of the Act and under Section 143 of the Act. Under Section 59(1) of the Act, information can only be sought by the Commission. Therefore, the 2010 Regulation is also not applicable. The 2005 Rules and in particular Rules 7(2) and Rules 7(3) have no manner of application. Under Rule 7(4) report on standard of performance could be sought but no compensation granted. Therefore, report only on performance could be sought and compensation levied. The grievance emanates from Section 43 of the Act as Section 43(1) of the Act postulates supply to be made within one month and for redressal of grievance, if any, consumer can approach the Grievance Redressal Officer and thereafter the Ombudsman. But both the Ombudsman and the Grievance Redressal Officer cannot impose compensation. The penalty postulated under Section 43(3) of the Act can only be imposed by the State Commission under Section 57(2) of the Act. Regulation 27 of 2006 (2006 Regulation) is in general terms and Regulation 56 is of August, 2013 under Section 97 but the instant case is of 2012 and is not governed by Regulation 56.
Fact of the Case:
The petitioner, a distribution company, challenged an order of the Ombudsman directing it to pay compensation under Regulations 3.3 and 12(a) of the 2005 Regulations and 2010 Regulation for delay in grant of electric connection to the consumer's submersible pump. The petitioner contended that the Ombudsman lacked the power to grant compensation as it was not a consumer under Section 2(15) of the Electricity Act, 2003, and that only the Commission could impose a penalty under Section 143(2) of the Act.
Finding of the Court:
The Court held that the Ombudsman could only consider the grievance of a consumer and not a pre-connection situation. Therefore, no compensation or penalty could have been imposed and if any adjudication had to be undertaken it had to be undertaken by the Commission under Section 143(2) of the Act. The Ombudsman is not a member of the Commission and, therefore, cannot exercise any power under Section 143(2) of the Act. The Regulations framed by the Commission did not empower the Ombudsman to grant compensation or impose penalty. The order of the Ombudsman was, therefore, set aside.
Issues: 1. Whether the Ombudsman had the power to grant compensation and impose penalty under the Electricity Act, 2003 and the Regulations framed thereunder? 2. Whether the petitioner was a consumer under Section 2(15) of the Act and entitled to compensation for delay in grant of electric connection?
Ratio Decidendi: 1. The Ombudsman's power to grant compensation and impose penalty is limited to grievances of consumers under Section 42(5) of the Electricity Act, 2003. 2. A person who has not been supplied electricity is not a consumer under Section 2(15) of the Act and is not entitled to compensation for delay in grant of electric connection. 3. Only the Commission can impose a penalty under Section 143(2) of the Act. 4. The Regulations framed by the Commission did not empower the Ombudsman to grant compensation or impose penalty.
Final Decision: The Court set aside the order of the Ombudsman directing the petitioner to pay compensation.
Nadira Patherya, J.
In this writ petition, the main issue that arises for consideration is the power of the Ombudsman to grant compensation and impose penalty.
2. The writ petitioner is the distribution company who is aggrieved by the order of the Ombudsman whereby a direction was given to pay compensation in terms of Regulation 3.3 and Regulation 12(a) of the 2005 Regulations so also 2010 Regulation for delay in grant of electric connection to the consumer's submersible pump.
3. The case of the petitioner is that the Ombudsman is a creature of Section 42(5) of the 2003 Act and under Section 42(6) any consumer who is aggrieved by non-redressal of his grievance will be entitled to make a representation to an authority known as the Ombudsman to be appointed by the State Commission and under Section 42(7) of the 2003 Act, the grievance of the petitioner has to be settled by the Ombudsman as may be specified by the State Commission. "Consumer" has been defined under Section 2(15) of the 2003 Act. Therefore, a person to whom supply is connected becomes a consumer and delay in grant of connection to a person who has not been given supply is not a consumer under Section 2(15) of the 2003 Act and will disentitle the Ombudsman from granting any compensation. An application for compensation at the pre-connection stage cannot be entertained by the Ombudsman. Section 43 of the 2003 Act casts a duty on the Distribution Company to supply on request and Section 43(3) of the 2003 Act, imposes a penalty in case of failure to supply within the time specified in Section 43(1) of the 2003 Act. It is only the appropriate Commission which can impose penalty as will be evidenced from Section 57(2) of the 2003 Act. It is under Section 82 of the 2003 Act, that the West Bengal Electricity Regulatory Commission (Commission) has been created and appointed as the appropriate Commission. Therefore, under Sections 143 and 143(2) of the 2003 Act it is the Commission which can impose penalty. Section 97 of the 2003 Act empowers delegation of powers by the appropriate Commission in writing and this delegation was made to the Ombudsman on 7th January, 2014 to adjudicate under Section 143 of the 2003 Act. In the instant case the order was passed on 27th August, 2012 that is before the delegation made in January, 2014. Therefore, the Ombudsman can only consider the grievance of a consumer not related to delay which is a pre-connection situation. Therefore, no compensation or penalty could have been imposed and if any adjudication had to be undertaken it had to be undertaken by the Commission under Section 143(2) of the 2003 Act. The Adjudicating Officer would not be the Ombudsman but the Commission and its Members. Under Section 143(2) of the 2003 Act the Commission would on failure of compliance of Section 43 impose penalty. Similarly under Section 57(2) of the 2003 Act along with penalty compensation could also be imposed. But in both the situations, it would be the Commission who would be entitled to undertake such exercise. The Ombudsman is not a member of the Commission and, therefore, cannot exercise any power under Section 143(2) of the 2003 Act. Section 181(2)(r) and (s) empowers the State Commission to make regulations in respect of Section 42(5) and (7) of the 2003 Act. Under Section 181(2)(t) the State Commission is also entitled to make regulations in respect of Section 43(1) of the 2003 Act. Therefore, the power to make regulations by the State Commission is accepted but the question is whether such regulations have been framed. No evidence was produced wherefrom it will appear that the consumer/complainant suffered loss for which compensation was to be fixed. Section 181(2)(za) empowers the Commission to make regulation in respect of Section 57(1) of the 2003 Act, no regulation can be framed by the Commission under Section 57(2) and, in fact, no regulations have been framed under Section 57(2) of the 2003 Act or Section 143 of the 2003 Act. R
