IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE1T DAY OF APRIL201411TH CHAITHRA, 1936 WA.No.157 of 2014 IN WP(C).22865/2010 ------------------------------------------- AGAINST THE ORDER
IN WP(C) 22865/2010 of HIGH COURT OF KERALA DATED2906-2012 APPELLANT/PETITIONER IN THE WPC: ---------------------------------- KERALA STATE ELECTRICITY BOARD, REP. BY THE SPECIAL OFFICER (REVENUE), VYDHYUTHIBHAVAN, PATTOM, THIRUVANANTHAPURAM. BY ADVS.SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN, SC, K.S.E.BOARD RESPONDENT/RESPONDENT IN WPC: --------------------------------- M/S.BINANI ZINC LTD., BINANI PURAM, ERNAKULAM DISTRICT - 683 101. BY SRI.V.ABRAHAM MARKOS SRI.JOSEPH KODIANTHARA (SR.) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON0104-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & ANIL K.NARENDRAN, JJ.
-------------------------------------------------------------------- W.A.No.157 of 2014 -------------------------------------------------------------------- Dated this the 01st day of April, 2014 JUDGMENT
ANTONY DOMINIC, J.
This appeal is filed by the unsuccessful petitioner in W.P.(C).No.22865 of 2010 which was dismissed by the learned Single Judge by his judgment dated 29th June, 2012.
2. The respondent, a company incorporated under the Companies Act, is an EHT consumer of electrical energy. By order dated 24/7/2008, the Kerala State Electricity Regulatory Commission, directed that for energy consumed in excess of the 75% quota fixed would be charged at the Liquid Power Purchase Cost incurred by the appellant. This order was to be effective from 25/7/2008 and as a result of this order, those who consume power in excess of the 75% quota, were liable to W.A.No.157 of 2014 2 pay for the excess consumption at the higher tariff applicable to imported energy.
3. While the situation was thus prevailing, respondent filed a petition before the Consumer Grievances Redressal Forum claiming the benefit of Ext.P1, Board Order No. Plg.Com/PC/802/84/Billing dated 01/01/1985, providing for reduction of maximum demand charges during power cut periods, in respect of high tension and extra high tension consumers. By Ext.P2 order of the Consumer Grievances Redressal Forum, it was held that during the period from July to October, 2008, in relation to which the claim was raised, there was no power cut imposed by the Board and that there was only restriction in the consumption of power. Therefore, according to the Consumer Grievances Redressal Forum, the benefit of Ext.P1 Board Order could not have been claimed by the respondent and on that basis the petition was dismissed. W.A.No.157 of 2014 3 4. Aggrieved by Ext.P2 order of the Consumer Grievances Redressal Forum respondent filed an appeal before the State Electricity Ombudsman, in terms of the provisions contained in the Kerala State Electricity Regulatory Commission (Consumer Grievances Redressal Forum and Electricity Ombudsman) Regulation, 2005. After hearing both sides the Ombudsman passed Ext.P3 order holding that in the content of the claim raised, Ext.P1 order was not relevant. However, proceeding further and referring to Clause 17 of the agreement executed between the appellant and the respondent in 1993, the Ombudsman held that in July, 2008 due to causes beyond control as contemplated in Clause 17 of the agreement, the Board had been prevented from supplying energy to the respondent and had enforced restrictions. On this basis the Ombudsman set aside Ext.P2 order and directed the appellant to allow reduction in demand charges for the period from July to October, 2008, in terms W.A.No.157 of 2014 4 of Clause 17 of the agreement executed between the parties. It was this order which was challenged before the learned Single Judge, in the Writ Petition filed by the appellant. The learned Single Judge, held that there is no illegality or impropriety in Ext.P3 order and dismissed the Writ Petition. This judgment is under challenge.
5. We heard the learned Senior counsel for the appellant and also the learned Senior counsel appearing for the respondent.
6. According to the learned Senior counsel for the appellant the benefit of Clause 17 of Ext.P4 agreement executed between the appellant and the respondent, was not claimed by the respondent before the Consumer Grievances Redressal Forum and that therefore relief could not have been claimed before the Ombudsman relying on the agreement. Therefore, according to him, the Ombudsman acted in excess of its jurisdiction in relying on Clause 17 of the agreement and granting relief W.A.No.157 of 2014 5 to the respondent. Counsel also contended that during the period from July to October, 2008, though the Board had fixed a quota at 75% of the contract demand, consumers were at liberty to consume energy in excess of that quota and that only restriction was that for the quantity consumed in excess of the quota, the rate applicable would be the rate fixed for imported energy. This, according to the learned Senior counsel, was not a power cut but at best a restriction on consumption and that therefore neither Ext.P1 Board Order nor Clause 17 of the agreement are attracted to that situation. According to him, therefore the Ombudsman's order allowing the appeal filed is illegal and is to be set aside.
7. On the other hand, the learned Senior counsel for the respondent contended that irrespective of the terminology used, be it either a power cut or restriction, as far as a consumer is concerned the effect of both are the same. Therefore, according to him the respondent W.A.No.157 of 2014 6 was entitled to the benefit of reduction in demand charges as allowed by the Ombudsman. He also contended that the respondent had claimed the benefit of Clause 17 of the agreement before the Consumer Grievances Redressal Forum and that therefore the Ombudsman was perfectly justified in granting relief, relying on the said provision of the agreement. The learned counsel also placed considerable reliance on the Apex Court judgment in Orissa State Electricity Board and another etc., Vs. M/s.IPI Steel Ltd., etc. [AIR1995SC1553.
8. We have considered the submissions made. The first contention raised by the learned counsel for the appellant is that, since Clause 17 of the agreement was not relied on by the respondent in the proceedings before the Consumer Grievances Redressal Forum, the respondent could not have relied on that provision of the agreement before the Ombudsman and sought relief. Though this contention was contradicted by the learned W.A.No.157 of 2014 7 counsel for the respondent, the correctness of the plea has to be decided with reference to the materials that are available before us and the Regulations that govern the functioning of the Ombudsman.
9. The Ombudsman is created under the Kerala State Electricity Regulatory Commission (Consumer Grievances Redressal Forum and Electricity Ombudsman) Regulations, 2005. Chapter III of the Regulation provides for the establishment of Electricity Ombudsman. Clause 19 provides for the powers and duties of the Ombudsman. Clause 19 (a) provides that the Ombudsman shall have the power to receive the representations against the order of the Consumer Grievances Redressal Forum and consider such representation and facilitate their satisfaction or settlement by agreement through conciliation and mediation between the licensee and complainant or by passing an award in accordance with the Regulations. Clause 22 provides for maintainability of the complaint. W.A.No.157 of 2014 8 As per Clause 22(1)(b) no representation to the Ombudsman shall lie, unless the complainant is aggrieved on account of his complaint being not redressed by the Forum. Regulation 25 provides for settlement of representation by agreement. As per Regulation 27(1), where the representation is not settled by agreement under Regulation 25, the Electricity Ombudsman shall pass a speaking order with detailed reasoning on the representation.
10. These provisions of the Regulations show that the Ombudsman is competent to entertain a representation against the decision of the Consumer Grievances Redressal Forum. This therefore means that the issue raised before the Ombudsman should be the correctness of the issues raised and decided by the Consumer Grievances Redressal Forum. Therefore, if it is found that the respondent did not raise or rely on Clause 17 of the agreement and invited an order from the Consumer W.A.No.157 of 2014 9 Grievances Redressal Forum on that issue, it is precluded by the provisions of the Regulations from raising that issue before the Ombudsman for the first time.
11. Neither of the parties have produced the representation filed by the respondent or the objection filed by the appellant before the Consumer Grievances Redressal Forum. Ext.P2 is the order passed by the Consumer Grievances Redressal Forum. We have gone through its order entirely and we could not find any reference in this order about a contention raised by the respondent relying on Clause 17 of the agreement. Respondent has no case that Clause 17 of the agreement was relied on and that it was not considered by the CGRF. This therefore means that Clause 17 of the agreement was not relied on by the respondent before the Consumer Grievances Redressal Forum. If that be so, they could not have relied on that provision before the Ombudsman. W.A.No.157 of 2014 10 12. In fact in Ext.R1, the written submissions submitted by the respondent before the Ombudsman also does not contain any reference to the agreement or Clause 17 thereof. It is despite this that the Ombudsman has relied on Clause 17 of the agreement and granted relief to the respondent. We are at a loss to understand as to how the contention relying on Clause 17 was introduced in the proceedings before the Ombudsman. At any rate we have no doubt in our minds that, since respondent had not relied on the agreement in the proceedings before the Consumer Grievances Redressal Forum, the Ombudsman could not have granted relief to the respondent relying on Clause 17 of the agreement.
13. Second contention that is raised is whether the power cut and restriction in consumption are one and the same. Insofar as this case is concerned, as we have already mentioned, by its order dated 24/7/2008 the Regulatory Commission had directed that, in view of the W.A.No.157 of 2014 11 precarious power situation in the State, those who consume in excess of the 75% of the quota, would be charged at the tariff applicable to imported energy. Therefore there was no order prohibiting any consumer from consuming energy in excess of the quota and the only restriction was that for such excess consumption they would be charged at the higher tariff rate applicable to imported power. Power cut is a situation, where there is a prohibition imposed in the consumption of electrical energy either fully or partially. Such was not the situation prevailing in 2008, during the period in question. Therefore we are not prepared to accept the contention of the respondent that, what was prevailing was the power cut situation attracting either Ext.P1 or Clause 17 of Ext.P4 agreement. Therefore the reasoning of the Ombudsman that in 2008 due to causes beyond its control the Board was prevented from supplying energy under the agreement and enforced restriction attracting Clause 17 is W.A.No.157 of 2014 12 totally illegal and cannot be accepted.
14. The learned Senior counsel for the appellant relied on the judgment of the Apex Court in Orissa State Electricity Board and another etc., Vs. M/s.IPI Steel Ltd., etc. [AIR1995SC1553 contended that both the power cut and power restriction are one and the same. That is a case where the Apex Court was considering the validity of the some of the provisions of the Orissa State Electricity Board (General conditions of supply) Regulation, 1981, which provided for restrictions in the supply. It appears from the judgment that in some places of the judgment the restrictions imposed are described as the power cut imposed mainly because during the relevant period the power cut imposed by the Orissa State Electricity Board, prohibiting consumption of energy in excess of the quota and providing as a consequence, disconnection of power supply was in force. This judgment nowhere lays down as a matter of principle that W.A.No.157 of 2014 13 in all situations restrictions imposed by the Board would amount to power cut. Therefore, we are not in a position to accept the contention of the learned counsel for the respondent that this judgment would lend support to him in justifying Ext.P3 order passed by the Ombudsman. For the aforesaid reasons, we are unable to sustain the judgment of the learned Single Judge. The judgment of the learned Single Judge is set aside and the Writ Petition filed by the appellant will stand allowed as prayed for. ANTONY DOMINIC, JUDGE ANIL K.NARENDRAN, JUDGE skj True copy P.A. To Judge