The Ombudsman erred in failing to recognize the commercial relationship between the parties, which affected the determination of electricity tariff under the Electricity Act.

JUDGMENT :

Partha Sarathi Sen, J.

1. In this writ petition the writ petitioners have prayed for issuance of an appropriate writ or writs for cancellation and/or revoking and/or rescinding the order dated 19.12.2011 as passed in GR Case no.DPSC-1 K of 2011 by the Ombudsman, West Bengal.

2. For effective adjudication of the instant lis the facts leading to filing of the instant writ petition are required to be discussed in a nut shell.

i. On 31.03.1993 a deed of lease was executed by and between the respondent no.1 (lessor) and the writ petitioner no.1 (DPSC) whereby and whereunder thermal power station of the respondent no.1 at Chinakuri Mining Complex was leased out to the writ petitioner no.1 for a term of 20 years commencing from 01.04.1991 for generation of electricity. Subsequently a Memorandum of Understanding (‘MOU’ in short) was also executed on 04.10.2010 by and between the writ petitioner and the respondent no.1 regarding supply of coal by the respondent no.1 to the writ petitioner no.1 for the aforementioned power station at Chinakuri Mining Complex.

ii. Post execution of the said MOU a dispute arose between the writ petitioner no.1 and the respondent no.1 with regard to the tariff of electricity as consumed by the respondent no.1 from the month of October 2010, to March, 2011.

iii. The said dispute centers around the charges of the units of electricity at the rate of Rs.1.61 per unit as charged by the writ petitioner no.1 from the respondent no.1 on account of alleged higher price of coal supplied by the respondent no.1 to the writ petitioner no.1 pursuant to the said MOU dated 04.10.2010.

iv. For non-payment of the said electricity charges the writ petitioner no.1 served a disconnection notice upon the respondent no.1.

v. The respondent no.1 approached the Grievance Redressal Forum for ventilating its grievance with regard to the alleged excess tariff as well as by challenging the notice of disconnection.

vi. The Grievance Redressal Forum by its order dated 18.08.2011 negatived the contention of the respondent no.1 and thus directed the respondent no.1 herein to pay enhanced tariff as levied by the writ petitioner no.1 at the rate of Rs.1.61 per unit for the said period.

vii. Impugning the said order dated 18.08.2011 as passed by the Grievance Redressal Forum the respondent no.1 approached before the Ombudsman which however set aside the order of the Grievance Redressal officer holding that the claim of electricity charges by the writ petitioner no.1 from October 2010, to March 2011 is not in accordance with the tariff order of the West Bengal Electricity Regulatory Commission (hereinafter referred to as the said ‘Commission’ in short) and thus set aside the said electric bills for October 2010 to March 2011 holding the same is inadmissible.

viii. As discussed (supra) the said order of the Ombudsman dated 19.12.2011 is the subject matter of the instant writ petition.

3. In support of the instant writ petition Mr. Anirban Ray, learned Senior Advocate duly assisted by Mr. Koushik Chowdhury, learned advocate for the writ petitioners at the very outset draws attention of this Court to the order dated 19.12.2011 as passed by the Ombudsman. Attention of this Court is also drawn to the aforesaid order as passed by the Grievance Redressal Forum. Attention of this Court is also drawn to the aforementioned deed of lease and the MOU as entered into by and between the writ petitioner no.1 and the respondent no.1.

4. In course of his submission Mr. Ray submits that from the different clauses of the aforementioned lease it would reveal that the writ petitioner is not only a power generator but also a distribution licensee and in that capacity he is not only duty bound to pay his rent to the respondent no.1 in respect of the electricity generation station as leased out to it but at the same time it is also duty bound to supply electricity to its lessor i.e the respondent no.1. It is further contended by Mr. Ray that when the writ petitioner