Full Judgment
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 28TH DAY OF JUNE 2022 / 7TH ASHADHA, 1944 WP(C) NO. 20819 OF 2022 PETITIONER/S: 1 THE EXECUTIVE ENGINEER UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, KERALA STATE ELECTRICITY BOARD LTD., PALAYAM, THIRUVANANTHAPURAM , PIN - 695033 THE ASSISTANT ENGINEER KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, PUTHENCHANTHA, SANTHI NAGAR, PULIMOODU, THIRUVANANTHAPURAM , PIN - 695011 BY ADV RIJI RAJENDRAN RESPONDENT/S: 1 UPA LOK AYUKTA LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033 2 THE STATE ELECTRICITY OMBUDSMAN CHARANGATTU BHAVAN NO. 38/2829 MAMANGALAM - ANCHUMANA ROAD, EDAPALLY, ERNAKULAM , PIN - 682024 3 N.S.PRADEEP REFRESHMENT & TRADERS (CAFÉ CABANA) OPP.MALAYALA MANORAMA, THAMPANOOR. THIRUVANANTHAPURAMPIN - 695001. BY ADVS. SMT. D. P. RENU, SC FOR R1 SRI. B. PRAMOD, SC FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
JUDGMENT
Shaji P. Chaly, J.
This writ petition is filed by the Executive Engineer of the Kerala State Electricity Board
I) challenging Ext. P2 order dated 15.12.2021 passed by the Upa Lok Ayukta in complaint No.203 of 2020 filed by the 3 rd respondent, wherein it was found that the complainant is not liable to pay an amount of Rs.45,476/- demanded by the Kerala State Electricity Board and that the grievance raised by the complainant is liable to be considered by the State Electricity Ombudsman, constituted as per the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2005.
II) to quash Ext. P5 order passed by the State Electricity Ombudsman dated 17.03.2022 whereby the monthly bill of Rs. 45,476/- dated 19.10.2020 issued to the complainant / 3 rd respondent is quashed and KSEB was directed to prepare a revised bill taking the average of the three bi-monthly consumptions recorded in the meter from 19.10.2020 to 19.04.2021 and to issue a revised bill after adjusting the amount remitted to the petitioner within 15 days from the date of the order. It
-3- was also directed that if the amount remitted is excess, that shall be adjusted in the future bills.
2. The paramount contention advanced by the Board is that Ext.
P2 order has been issued by the Upa Lok Ayukta on an incorrect understanding of the legal framework for redressal of consumer grievances and therefore the order cannot be sustained.
3. That apart, it is submitted that as electricity supply is an
essential, extensive and extremely technical field of operation, the number and nature of consumer grievances mandates that a systematic hierarchy for redressal is in place. However, in utter ignorance of the provisions of law, the Upa Lok Ayukta has misstated that the Electricity Ombudsman, the 2nd respondent, is the authority for enquiry and resolution of consumer grievances, and incorrectly directed the 3 rd respondent / the complainant to approach the Electricity Ombudsman. That apart, it is submitted that the Upa Lok Ayukta has no authority to confer jurisdiction to consider a complaint in violation of the established statutory procedure.
4. Further, Ext. P5 order passed by the Electricity Ombudsman is also challenged contending that the Electricity Ombudsman has -4-
violated the hierarchical scheme provided for redressal of consumer grievances under the Electricity Act, 2003. Furthermore, it is stated that a conjoint reading of Sections 42(5) and 42(6) of the Electricity Act, 2003 with Regulations 2(1)(f), 19(a) and 22(1)(a) of the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2005 (hereinafter referred to as ‘Regulations, 2005’ for brevity) clearly says that an aggrieved consumer must first approach the Consumer Grievance Redressal Forum constituted under Regulations 2005, and if his grievance subsists, he is entitled to approach the Electricity Ombudsman.
5. Therefore the sum and substance of the contention is that the
Electricity Ombudsman has usurped the jurisdiction of the Consumer Grievance Redressal Forum by considering the complaint of the 3rd respondent. Therefore it is submitted that this court is to interfere in
and set aside Ext. P2 order of the Upa Lok Ayukta and Ext. P5 order
passed by the Electricity Ombudsman.
6. We have heard the learned counsel for the petitioner, Sri. Riji Rajendran and perused the pleadings and materials on record. -5-
7. The sole question that emerges for consideration is whether any interference is required with respect to the impugned orders.
8. The paramount contention advanced by the petitioners is that
the Upa Lok Ayukta erred in directing the complainant to approach the Electricity Ombudsman since the Regulations, 2005 prescribes a clear procedure for redressing the grievances of any excess bill through a Consumer Grievance Redressal Forum constituted as per Regulations,
2005. For the said reason it is contended that the direction issued to file a complaint before the Ombudsman is not legally correct.
9. In order to understand the true implication of the contention advanced, we feel it appropriate to refer to the relevant provisions of the Electricity Act, 2003 and the Regulations, 2005.
10. Section 42(5) of the Electricity Act, 2003 read along with
Section 42(6) makes it clear that a consumer is entitled to approach the Ombudsman Board is vested with powers to recover the prices to be charged by a distribution licensee for the supply of electricity by him in pursuance of Section 43 of the Act, along with other charges prescribed under law.
11. Regulation 2(f) defines a complaint to mean any grievance -6- made by a complainant in writing among others:- xxx xxx xxx
(iii) charging of price in excess of the price fixed by the Commission for supply of Electricity and allied services and (iv) errors in billing.
12. Regulation 2(g) defines 'consumer' to mean any person who
is supplied with electricity for his own use by a licensee and includes any person whose premises are connected for the purpose of receiving electricity with the works of a licensee or a person whose electricity supply is disconnected by a licensee or a person who has applied for connection for receiving electricity from a licensee, as the case may be.
13. Regulation 2(k) defines 'Electricity Ombudsman' to mean an
authority to be appointed or designated by the Commission, under sub- section (6) of Section 42 of the Act, with whom a representation may be made by any consumer, who is aggrieved by non-redressal of his grievances by the Forum.
14. 'Forum' is defined under Regulation 2(m) to mean a 'Forum -7-
for redressal of grievances of consumers' to be constituted by the distribution licensee. As per Regulation 3 of Regulations, 2005, Consumer Grievance Redressal Forum is established.
15. The jurisdiction of the forum, the kind of grievances that can
be taken up by the forum; the procedure to be followed for grievance redressal and lodging complaints etc. are all guided by Regulation 6 to Regulation 12 of Regulations, 2005.
16. It is true that Regulation 12A confers a power of review on the Forum to review any order either on its own motion or on an application of any person aggrieved, on the grounds specified thereunder.
17. Regulation 2(k) defines ‘Electricity Ombudsman’ to mean an
authority to be appointed or designated by the State Commission, under Section 42(6) of the Electricity Act, 2003 with whom a representation may be made by any consumer, who is aggrieved by non-redressal of his grievances by the Forum. Section 42(5) of the Electricity Act, 2003 casts an onus on every distribution licensee to establish a forum for redressal of grievances of the consumers in tune with the guidelines of the State Commission. Section 42(6) states that
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any consumer who is aggrieved by non-redressal of his grievance under Section 42(5) may make a representation for the redressal of his grievance to the ombudsman. The legislature has employed the phrase ‘aggrieved by non-redressal of his grievance under sub-section (5)’ while describing the ambit of representations that may be considered by the Ombudsman. Hence, from the simple interpretation of the legislation it is clear that the legislative intent was to treat the Ombudsman as an appellate authority that the consumers may approach when their grievances are not redressed in the forum.
18. True that the Ombudsman is treated as an appellate authority
above the Forum. However, it cannot be said that the Ombudsman is an authority without jurisdiction to redress a complaint from a consumer who directly approached the ombudsman upon the direction of the Upa Lok Ayukta. A consumer cannot be made to suffer because they complied with the direction of a statutory body. The consumer was directed by the Upa Lok Ayukta to remit Rs.20,000 as a condition for grant of stay of the demand. Thereafter, when the matter was finally heard the consumer was directed to approach the Ombudsman. Hence, it cannot also be said that the petitioner herein was in any way prejudiced by the order of the Upa Lok Ayukta just because the
-9- consumer was granted the liberty to approach the Ombudsman.
19. Clearly, statutory bodies have been created under the
Electricity Act, 2003 with the intention of redressing the complaints of aggrieved consumers. Therefore, it is only logical and in consonance with the legislative intent that the consumer is not put to unwanted difficulty by making them run from pillar to post, despite pursuing their complaint diligently and following the directions that were issued to them. Therefore, in the light of the facts and circumstances before us, we are of the opinion that this case should be treated as a special one and viewed in the said circumstances it cannot be said that the
order of the Upa Lok Ayukta, directing the consumer to approach
Ombudsman is bad in law. However, this shall not constitute a precedent.
20. Now the sole question is whether there is any illegality or arbitrariness in Ext. P5 order passed by the State Electricity Ombudsman.
21. We have gone through the order extensively and we find that the Ombudsman has arrived at the conclusions after taking into account the entire contentions raised by the petitioners herein and the -10-
3rd respondent / complainant and has arrived at the conclusions by assimilating various factual situations and after providing opportunity of hearing to both the parties.
22. It is also clear from Ext. P5 impugned order that the
Ombudsman has taken into account the inspections conducted by the respective wing of the Kerala State Electricity Board in the premises of the complainant due to the complaint of electric shock, the average energy consumed during billing periods and the intricacies relating to the findings rendered by the inspecting team etc. Whatever that be the board is ultimately directed to prepare a revised bill taking the average of the three bimonthly consumptions recorded in the meter from 19.10.2020 to 19.04.2021 and issue the revised bill after making adjustment of the payments. This procedure and exercise adopted by the Ombudsman by giving opportunity to the parties cannot be said to be bad, illegal, arbitrary or without jurisdiction.
23. Therefore we are convinced that the order passed by the
Ombudsman is in accordance with the powers conferred, though as an appellate authority, under the Regulations, 2005 and appreciating the rival submissions made by the parties. -11-
24. It is also significant to note that, though various contentions are raised with respect to the lack of jurisdiction of the Ombudsman to entertain a complaint, in the writ petition, from Ext. P4 statement of
facts submitted by the Board, it is clear that no such contentions were
raised before the Ombudsman. Therefore after having analyzed the whole lot of factual and legal situations, we are undoubtedly of the opinion that the petitioners
have not made out any case for interference either with Ext. P2 order
passed by the Upa Lok Ayukta or Ext. P5 order passed by the Electricity Ombudsman. Upshot of the above discussion is that writ petition fails. Accordingly it is dismissed. Sd/- S. MANIKUMAR CHIEF JUSTICE Sd/- SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE -12- APPENDIX OF WP(C) 20819/2022 PETITIONER EXHIBITS EXHIBIT-P1 TRUE COPY OF THE BILL DATED 19-10-2020
ISSUED BY KSEBL TO THE 3RD RESPONDENT FOR THE PERIOD FROM 17-08-2020 TO 19-10EXHIBIT-P2 TRUE COPY OF THE ORDER DATED 15.12.2021 IN COMPLAINT NO.203/2020A PASSED BY THE UPA LOK AYUKTA EXHIBIT-P3 TRUE COPY OF THE APPEAL PETITION NO. P/080/2021 PREFERRED BY THE 3RD RESPONDENT BEFORE THE STATE ELECTRICITY OMBUDSMAN ON 28-12-2021
EXHIBIT-P4 TRUE COPY OF THE STATEMENT OF FACTS
DATED 19.01.2022 FILED BY THE PETITIONER IN APPEAL PETITION NO.P/080/2021 BEFORE THE STATE ELECTRICITY OMBUDSMAN EXHIBIT-P5 TRUE COPY OF THE ORDER DATED 17.03.2022 PASSED BY THE STATE ELECTRICITY OMBUDSMAN IN APPEAL PETITION NO.P/080/2021