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2012 Supreme(All) 1805
[2012(8) ADJ 262 (LB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : SUDHIR AGARWAL, J.
M.D. PAKSHIMANCHAL VIDUT VITRAN NIGAM LTD. ....Petitioner
Versus
OMBUDSMAN, 3 RD FLOOR, NEEDA BUILDING, VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW ....Respondent
(Misc. Single No. 6088 of 2009, decided on 19th July, 2012)
Counsel :
Manoj Kumar Dwivedi for the Petitioner; I.B. Singh, A.Z. Siddiqui and Vishal Dixit for the Respondent.
Headnote:(A) Electricity Act, 2003—Section 126—U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007—Electricity—Assessment of consumption—Unauthorised use—Adjudication of—Jurisdiction of Consumer Grievances Redressal Forum—When the statute itself creates an adjudicatory forum as well as appellate forum, a parallel forum by means of subordinate legislation not permissible—CGRF and Ombudsman constituted under Regulation, 2007, by UPERC could not have jurisdiction to have a review of orders passed by Assessing Officer under Sections 126 and 127 of Act, 2003—Held, the entire proceedings before Ombudsman and CGRF being without jurisdiction and liable to be set aside. [Paras 18 and 30]
(B) Precedent—A judgment cannot be read to lay down a ratio decidendi unless an issue is raised, argued and decided—When an issue is raised, addressed and considered only then it would constitute a binding precedent. [Para 20]
Result; Petition Allowed.
Hon’ble Sudhir Agarwal, J.—Heard learned counsel for parties and perused the record.
2. Writ petition is directed against the order dated 30.9.2009 passed by Electricity Ombudsman (hereinafter referred to as “Ombudsman”) on representation made by Consumer, respondent No. 3, against the order dated 16.12.2008 passed by Consumer Grievance Redressal Forum (hereafter referred to as “CGRF”) denying refund of Rs. 14.44 lacs to respondent No. 3. The Ombudsman has set aside the order of CGRF to the extent it denies refund of Rs. 14.44 lacs to petitioner and has held that petitioner is not liable to pay any amount and the amount already paid by petitioner shall be adjusted.
3. The facts in brief giving rise to the present dispute may be narrated as under.
4. Respondent No. 3, M/S United Sprit Ltd., Meerut Cantt. Meerut is an industrial establishment running a distillery business. It had got an electric connection of 1000 KVA. In February 2004 it applied for reduction of load to 400 KVA in the existing factory and also applied for a new connection in a new unit adjacent to existing factory with electrical load of 1000 KVA. The new unit adjacent to the factory is titled as “Skol Breweries Ltd”.
5. Pakshimanchal Vidut Vitran Nigam Ltd. (hereinafter referred to as “PVVNL” or “the licensee”) is the supplier of Electricity and is petitioner No. 1 while petitioner No. 2 is local official in-charge where factory of respondent No. 3 is situated.
6. On 26.4.2005 a checking was made by a team of the licensee and found supply and consumption of electricity from premises of respondent No. 3 to Skol Breweries Ltd. also. The aforesaid consumption of electricity in adjacent unit amounts to an “unauthorized use of electricity” assessable under Section 126 of Electricity Act, 2003 (hereinafter referred to as the “Act, 2003”). Thereupon petitioner No. 2 proposed an assessment of Rs. 14.44 lacs vide provisional assessment notice dated 9.5.2005 requiring the petitioner either to pay or to show-cause. Petitioner did not raise any objection and paid the amount of proposed assessment. Thereafter all of a sudden, acting upon an audit objection, another bill of provisional assessment was issued by petitioner No. 2 to respondent No. 3 for Rs. 51,54,749/-. Thereagainst the consumer i.e. the respondent No. 3 filed Writ Petition No. 5216 (M/S) of 2007. It was stated in the Writ Petition by respondent No. 3 that against the bill supplied by petitioner alongwith letter dated 3.9.2007, he (the consumer) has approached U.P. Electricity Regulatory Commission (hereinafter referred to as “UPERC”) vide Reference No. 1116 of 2007 filed on 25.9.2007 but the same having not been decided, a direction be issued to UPERC to decide the same and in the meantime recovery of the aforesaid assessment be stayed.
7. The writ petition was disposed of vide order dated 5.10.2007 directing UPERC to dispose of representation of respondent No. 3 i.e. the consumer. The Court also recorded undertaking of counsel appearing for licensee i.e. the petitioners that no coercive action shall be taken till the matter is decided by UPERC.
8. Thereafter an application was filed by UPERC before this Court in Writ Petition No. 5216 (MS) of 2007 requesting for modification stating, since UPERC do not possess any power to decide a dispute between licensee and the consumer, therefore, the reference/representation made by consumer i.e. respondent No. 3 was not maintainable in law before UPERC.
9. The Court noticed provisions of U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007 (hereinafter referred to as the “Regulations, 2007”) and found that it is open to a consumer to raise his grievance before CGRF. Consequently the Court modified its judgment dated 5.10.2007 giving liberty to Consumer to approach CGRF who was directed to decide such representation.
10. It is pursuant to this order, respondent No. 3 filed a complaint before CGRF
