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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.09.2013
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
W.P.No.24536 of 2013
M.P.No.1 of 2013
N.Mohamed Kani ... Petitioner
Versus
1. The Secretary,
Tamil Nadu Electricity Board,
Annasalai, Chennai-2.
2. The Assistant Engineer,
Tamil Nadu Electricity Board,
T.Nagar, Chennai-17. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Mandamus, directing the 2nd respondent to assess the correct electricity consumption charges to the petitioner's electricity connection No.181-32-18, situated at No.23, Ranganathan Street, T.Nagar, Chennai-61, for the period from 20.03.2013 to May 2013, contemplated in Rule 11(2) of the Tamil Nadu Electricity Regulation.
For Petitioner : Mr.P.Vijendran
For Respondents : Mr.G.Vasudevan
O R D E R
The petitioner is running Garment business, at Door No.23, Ranganathan Street, T.Nagar, Chennai-61. Electricity Service Connection No.181-32-18, has been disconnected due to non-payment of Current Consumption Charges. He has filed this present writ petition, for a Mandamus, directing the Assistant Engineer, Tamil Nadu Electricity Board, T.Nagar, Chennai-17, 2nd respondent herein, to assess the correct electricity consumption charges, to the service connection, for the period from 20.03.2013 to May 2013, as contemplated in Rule 11(2) of the Tamil Nadu Electricity Supply Code, 2004.
2. According to the petitioner, he is regular in payment of Current Consumption Charges. That on 19.03.2013, while calculating the same, an employee of the respondents-Board, informed the petitioner that the electric meter defective. Therefore, he made a representation on 20.03.2013 to the 2nd respondent, to change the electric meter. Accordingly, a new meter was fixed on 06.06.2013. While that be so, on 20.07.2013, some other employee of the Electricity Board informed the petitioner that he has to pay Rs.1,67,794/-, as Current Consumption Charges, for the period from January' 2012 to May' 2013. According to him, the respondents have taken the average Current Consumption Charges at Rs.3,420/- and arbitrarily, assessed the same, for the abovesaid period, totalling Rs.1,67,794/-.
3. Referring to the meter reading from September' 2011 to March' 2013, Current Consumption Charges entered in the meter card, issued by the Electricity Board, Mr.P.Vijendran, learned counsel for the petitioner submitted that even after the employee of the Electricity Board, noticing the defect on 19.03.2013, whatever be the Current Consumption Charges recorded in the meter card, the same has been duly and promptly paid by the petitioner and that therefore, the calculation made by the Board, determining a huge sum of Rs.1,67,794/-, as current consumption charges, for the period between January' 2012 to May' 2013, is illegal.
4. Learned counsel for the petitioner further submitted that as per Regulation 11(2) of the Tamil Nadu Electricity Supply Code, 2004, 2003, the quantity of electricity supplied during the period in question shall be determined by taking the average of the electricity supplied during the preceding four months, in respect of both High Tension service connections and Low Tension service connections provided that the conditions in regard to use of electricity during the said four months were not different from those which prevailed during the period in question.
5. According to the learned counsel for the petitioner, the respondents have not properly calculated the Current Consumption Charges. He submitted that no sooner, the employee had noticed the electric meter was defective, the petitioner submitted a letter, dated 20.03.2013 to the respondents, for changing the meter, but the meter was changed only on 06.06.2013.
6. Referring to the representation, dated 25.07.2013 and the reminder, dated 06.08.2013, learned counsel for the petitioner submitted that as per his calculation, the average Current Consumption Charges, for the period between 25.11.2012 to 24.05.2013, is higher than the sum, that ought to have been arrived at, and that, the respondents have erred in calculating the average Current Consumption Charges. Referring to Section 56 of the Electricity Act, 2003, he submitted that 15 days' notice in writing had not been given before disconnecting the supply and that therefore, there is a violation of principles of natural justice.
7. On the objection regarding maintainability of the writ petition that for the dispute now raised, regarding calculation of the Current Consumption Charges and that there is a separate forum, viz., Consumer Grievances Redressal Forum, learned counsel for the petitioner submitted that, as per Regulation No.6 of the Regulations for Consumer Grievance Redressal Forum and Electricity Ombudsman, 2004, the Electricity Board ought to have notified the details of the address of the forum in the Media and the licencee, viz., Electricity Board ought to have made the copies of the procedure available to the consumers for lodging complaints. According to the learned counsel, the procedure contemplated in Regulation 6 of the abovesaid Regulation, has not been done and therefore, it is not open to the respondents to object to the maintainability of the writ petition, wherein, judicial review has been sought for.
8. Placing reliance on a decision of the Apex Court in 1980 (4) SCC 531, learned counsel for the petitioner submitted that when judicial review of the action of the respondents is sought for, and when electricity supply is a necessity, disconnection of which, has affected the petitioner's right to trade and business under Article 19(g) of the Constitution of India and therefore, prayed to overrule the objections, regarding maintainability.
9. Per contra, based on the counter affidavit, filed by the Assistant Executive Engineer, O & M, Usman Road, CEDC Centra, TANGEDCO, T.N.E.B., Ltd., T.Nagar, Chennai-17, Mr.G.Vasudevan, learned counsel appearing for the Electricity Board made a preliminary objection to the maintainability of the writ petition, contending inter-alia that if the petitioner was aggrieved over the Current Consumption Charges determined by the Board, he should have filed a complaint before the Consumer Grievances Redressal Forum, constituted under Section 42 of the Electricity Act, 2003. He further submitted that the Forum is presided over by a Chairperson, in the rank of a Superintending Engineer and two members. He therefore submitted that the writ petition has to be dismissed in limini on the abovesaid ground of not availing an alternative and comprehensive remedy, before the said authority.
10. Without prejudice to the above, on merits, learned counsel appearing for the Electricity Board submitted that the petitioner has made a representation on 26.03.2013, for changing the meter on the ground that it was not functioning and accordingly, the meter was replaced on 05.06.2013. He further submitted that it could be evident from the reading recorded in the meter card and entered in data base of TANGEDCO that revision of past bills pertaining to the defective period from March 2012 to May 2013 was necessitated. He further submitted that the revision of assessment has been done, in terms of Regulation 11 of the Tamil Nadu Electricity Supply Code, 2004, which provides the manner of Assessment of billing, in cases, where there is no meter or meter is defective.
11. Taking this Court through the comparative consumption reading recorded, as extracted in Paragraph 6 of the counter affidavit, learned counsel appearing for the Electricity Board submitted that from the perusal of meter reading from September 2011, it is evident that the meter was not running properly from the month of March 2012 and until 05.06.2013, it was replaced. By referring to the Tabular Column, at Paragraph 7 of the counter affidavit, he submitted that as per Regulation 11(5) of the Supply Code, 2004, revision of assessment for the period, when the meter was defective, has been assessed properly and that there is no illegality or irregularity.
12. Learned Counsel appearing for the Electricity Board contended that the manner of assessment suggested by the petitioner, is untenable, for the reason that, the petitioner is seeking to assess the average for the defective period, taking into account the defective reading, instead of the reading recorded, in normal circumstances.
13. Referring to a decision of the Supreme Court in Maharastra State Electricity Distribution Co. Ltd., v. Lloyds Steel Industries Ltd., reported in AIR 2008 SC 1042, learned counsel appearing for the Electricity Board submitted that when a Forum has been created, the consumers can only resort to the said Forum, for redressal of their grievances and a writ petition filed under Article 226 of the Constitution of India, is not maintainable.
14. After the completion of the arguments, on the side of the respondents, though it was pointed out that as per Section 42(5) of the Electricity Act, a Consumer Grievances Redressal Forum has been constituted with the Superintending Engineer, Electricity Board, heading the forum, with two other members, and when the learned counsel for the petitioner was given a option to approach the said Forum, he insisted that the matter be decided under judicial review. Submission of the learned counsel for the petitioner is placed on record. In the abovesaid circumstances, this Court is proposed to consider the rival submissions of the learned counsel for either side.
Heard the learned counsel appearing for parties and perused the materials available on record.
15. Sections 1 to 120 and Sections 122 to 185 of the Electricity Act, 2003, have come into force on 10.06.2003, vide Notification No.S.O.669(E), dated 10th June, 2003. As per the decision of the Supreme Court in Chattisgarh SEB v. Central Electricity Regulatory Commission reported in 2010 (5) SCC 23 = AIR 2010 SC 2061, the Electricity Act, 2003 is a self-contained and comprehensive legislation.
16. In exercise of the powers under Section 50 of the Electricity Act, 2003, r/w. Section 181 thereof, the Tamil Nadu Electricity Regulatory Commission has issued Notification No.TNERC/SC/7/1, dated 21st July' 2004, and framed the Tamil Nadu Electricity Supply Code, 2004, as follows:
"No.VI (2)/2484/2004:- WHEREAS, under the Electricity Act 2003 (Central Act 36 of 2003) the State Electricity Regulatory Commission shall specify an Electricity Supply Code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply, tampering, distress or damage to electrical plant, electric lines or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plant or meter;
AND WHEREAS, the regulations providing for, among others, the Electricity Supply Code shall be subject to the condition of previous publication; and has accordingly undergone previous publication.
NOW, THEREFORE, under section 50 of the said Electricity Act, 2003 read with section 181 thereof and all other powers enabling in that behalf the Tamil Nadu Electricity Regulatory Commission hereby specifies the following Code."
17. Regulation 11 of the Tamil Nadu Electricity Supply Code, deals with the assessment of billing in cases, where there is no meter or meter is defective. The said Regulation is extracted hereunder:
"11.Assessment of billing in cases where there is no meter or meter is defective:
(1) Where supply to the consumer is given without a meter or where the meter fixed is found defective or to have ceased to function and no theft of energy or violation is suspected, the quantity of electricity supplied during the period when the meter was not installed or the meter installed was defective, shall be assessed as mentioned hereunder.
(2) The quantity of electricity, supplied during the period in question shall be determined by taking the average of the electricity supplied during the preceding four months in respect of both High Tension service connections and Low Tension service connections provided that the conditions in regard to use of electricity during the said four months were not different from those which prevailed during the period in question.
(3) In respect of High Tension service connections, where the meter fixed for measuring the maximum Demand becomes defective, the Maximum Demand shall be assessed by computation on the basis of the average of the recorded demand during the previous four months.
(4) Where the meter becomes defective immediately after the service connection is effected, the quantum of electricity supplied during the period in question is to be determined by taking the average of the electricity supplied during the succeeding four months periods after installation of a correct meter, provided the conditions in regard to the use of electricity in respect of such low tension service connection are not different. The consumer shall be charged monthly minimum provisionally for defective period and after assessment the actual charges will be recovered after adjusting the amount collected provisionally.
(5) If the conditions in regard to use of electricity during the periods as mentioned above were different, assessment shall be made on the basis of any consecutive four months period during the preceding twelve months when the conditions of working were similar to those in the period covered by the billing.
(6) Where it is not possible to select a set of four months, the quantity of electricity supplied will be assessed in the case of Low Tension service connections by the Engineer in charge of the distribution and in the case of High Tension service connections by the next higher level officer on the basis of the connected load and the hours of usage of electricity by the consumer.
(7) In case the consumer does not agree with the assessment made by the Engineer or the higher-level officer as the case may be, the matter may be referred to the next higher-level officer of the Licensee. In case the consumer is still not satisfied, the consumer is at liberty to approach the respective Consumer Grievance Redressal Forum of the Licensee."
18. As per Regulation 18 of the Supply Code, 2004, all grievances, relating to the provisions under regulations (3) to (17) of this Code shall be referred by the Consumer to the respective Consumer Grievance Redressal Forum constituted under the Act. For better understanding, Regulations 3 to 17, are extracted hereunder:
"3. Categories of supply Supply of electricity available to the consumer is of the following categories:-
a. Single-phase 2 wire 240 volts between phase and neutral for supply to a total connected load not exceeding 4000 watts (including power loads).
b. Three-phase 4 wire 415 volts between phases and 240 volts between phase and neutral for supply to a total connected load exceeding 4000 watts but not exceeding a demand of 112 KW.
c. The consumer may elect to avail supply under any one of the above categories where the connected load does not exceed 4000 watts.
d. Three-phase 3 wire, 11,000 volts and above between phases for power installation exceeding a demand of 112 KW, the minimum demand however being 63 KVA.
e.The consumer shall avail supply at 33 kV and above when the demand is 5 MVA and above.
4. Charges recoverable by the Licensee- The charges, recoverable by the Licensee from the consumers are: -
(1) Tariff related charges, namely, -
(i) The price of electricity supplied by him to the consumer which shall be in accordance with the tariff rates as the Commission may fix from time to time, for HT supply, LT supply, temporary supply and for different categories of consumers. In case the temporary supply is for construction of residential houses, housing complexes, the tariff shall be Commercial Tariff till the completion of construction and to be changed to appropriate tariff on completion. Where it is intended to use Floor Polishing equipments, welding equipments for repairs/ maintenance and such other portable equipments temporarily in a premises having permanent supply, such use shall not be treated as temporary supply for purpose of levying charges.. It shall be construed as regular consumption under the permanent supply tariff.
(ii) Demand charges for HT supply and fixed charges for LT supply shall be payable by the consumer in accordance with the rates as the Commission may fix from time to time for different categories of consumers.
(iii) Disincentive for power factor Every consumer shall maintain a power factor-
In case of LT supply, of 0.85 lag and In case HT supply, of 0.90 lag failing which he shall be liable to pay compensation by way of disincentive at such rates as the Commission may declare from time to time. Likewise, the consumer who maintains the power factor above a specified level may be rewarded by way of incentive at such rates as the Commission may declare from time to time which shall be adjusted in the bill.
(iv) Additional charges for harmonics dumping Where any equipment installed by a consumer generates harmonics, the consumer shall provide adequate harmonic suppression units to avoid dumping of harmonics into Licensees distribution system and the Licensee is at liberty to provide suitable metering equipment to measure the harmonic level pursuant to such harmonic.
Where the consumer fails to provide such units, he shall be liable to pay compensation at such rates as the Commission may declare from time to time.
(v) The tax or duty, if any, on electricity supplied or consumed as may be levied by the State Government which shall be credited to the Government account as per the directions received from Government from time to time.
(vi) At the time of extension of period of temporary supply, it shall be ensured that the advance current consumption (CC) charges are adequate. The CC charges shall be adjusted against the advance CC charges (2) Miscellaneous charges, namely, -
(i) Capacitor Compensation charge;
(ii) Excess demand charge;
(iii) Excess contracted load charge
(iv) Belated payment surcharge
(v) Additional security Deposit, when so called upon;
(vi) Service / Line shifting charge
(vii) Name transfer charge
(viii) Reconnection charge
(ix) Consumer meter card replacement charge
(x) Dishonored cheque service charge
(xi) Meter related charges
(xii) Application Registration charge (3) Minimum charges where applicable.
5. Miscellaneous charges (1) Capacitor Compensation charge
(a) No new LT service with a connected load of motors of 3 HP and above or for using welding transformers shall be given unless capacitors of adequate ratings with ISI marking are installed;
(b) In the case of existing LT service connections(which are not coming under the purview of power factor incentive/disincentive scheme) with connected load of motors of 3 HP and above or for using welding transformers (irrespective of their rating), the consumer shall install adequate capacitors within a period of two months and shall be liable to pay a compensation charge of ten percent of the price of electricity supplied to him for the preceding four months of consumption till such time adequate capacitors are installed; and where inadequate capacitors are installed or where some of the capacitors are defective, the ten percent shall be reckoned proportionate to the extent of inadequacy or defect, as the case may be ;
(c) Where it is found that the capacitors installed are either inadequate or defective, the Licensee shall, in addition to the levy and collection of capacitor compensation charges, by notice in writing, call upon the consumer to install adequate capacitors or to rectify or to replace the defective capacitors, as the case may be, within two months from the date of notice.
(2) Excess demand charge Whenever the consumer exceeds the sanctioned demand, excess demand charge shall be: -
(i) In the case of HT supply, the maximum demand charges for any month shall be based on the KVA demand recorded in that month at the point of supply or such percentage of sanctioned demand as may be declared by the Commission from time to time whichever is higher. The exceeded demand shall alone be charged at double the normal rate.
(ii) In case of LT supply,
(a) For Domestic and Agricultural category of service, the excess demand charges shall not be applicable.
(b) For other categories of LT services where the contracted demand and connected load is equal to or less than 18.6 KW (25 HP), the excess demand charges shall not be applicable.
Note: 1. Even if a consumers contracted demand is equal to or less than 18.6 KW (25 HP), or the connected load is more than the contracted demand but less than 18.6 KW (25 HP) as the case may be, the licensee shall install meters with demand recording facility and bring the consumer under the scope of excess demand chargeable category.
After installation of the meter, if the recorded demand is in excess of contracted demand the existing demand, shall, after intimation to the consumer, be revised to the level of recorded demand and all relevant charges applicable for extension of additional demand 5 shall be included in the next bill. No excess demand charge is leviable till such time the licensee installs meter with demand recording facility and bring the consumer under the scope of excess demand chargeable category.
(c) For the remaining LT services other than those service connections covered in (a) and (b) above, when the contracted demand is in excess of 18.6KW (25HP) and for such of those consumers whose contracted demand is less than 18.6 KW (25HP) but opted for having meters with demand recording facility, the excess demand charges shall be -, (I) Where the recorded demand does not exceed 112 KW, for every KW or part thereof in excess of the sanctioned demand, at the rate of 1% of the total energy charges;
(II) where the recorded demand exceeds 112KW, for every KW or part thereof in excess of sanctioned demand:-
- for the first two occurrences, at the rate of 1% of the charges for electricity supplied up to 112 kW;
- and 1.5% for every KW or part thereof over and above 112KW,
- and thereafter, that is, the third and subsequent occurrences at the rate of three percent for every KW or part thereof over and above 112KW.
(III) Where the recorded demand exceeds the sanctioned demand for the second and subsequent times ,-
(A) In case the recorded demand has not exceeded 112 KW, the existing load sanction shall, after intimation to the consumer, be revised within one month of the second occurrence to the level of recorded demand and all the relevant charges applicable to the additional load shall be included in the next bill ;
(B) In case the recorded demand has exceeded 112 KW,, the existing load sanction shall, after intimation to the consumer, be revised within one month of the second occurrence, to the level of 112 KW and all relevant charges applicable to the additional load shall be included in the next bill; if, however, the recorded demand has exceeded 112 KW for the third or more number of times, it is open to the consumer to opt for HT service.
(iii) In the case of temporary supply, the excess demand charges shall be the difference between the minimum charge for temporary supply computed at the rate notified, for a back period of six months or date of supply whichever is lesser, and the corresponding current consumption charges already recovered form the consumer.
(3) Excess Contracted load charge.
These charges are applicable to the subsidized category of Agricultural service connections, which need to be regulated with a view to-
(i) comply with the contracted load until the cross subsidy from other sources are eliminated and a viable tariff is implemented for agricultural services.
(ii) comply with the directives of Government towards restriction on exploitation of ground water for irrigation and environmental constraints. Accordingly, special provisions have been made in this Code in relation to agricultural service connections as below and they shall remain in force until cross subsidy from other sources / categories are eliminated.
(a) No electric motor shall be used in Agricultural service connections without its manufacturers nameplate indicating its rating/capacity permanently affixed on it.
(b) If, at the time of effecting service connections under Agricultural category, it is found that the assessed capacity is in excess of the capacity applied for by the consumer, the Engineer shall refuse to effect supply. If the intending consumer challenges the decision regarding the assessed capacity of the motor made by the Engineer, he may make an appeal to the next higher officer, furnishing certificate regarding capacity of motor issued by any agency acceptable to the Licensee. The decision of the next higher officer shall be final and binding on the consumer.
(c) If during periodical check or inspection of an existing Agriculture service connection by the Engineer, it is found that the name plate of any motor does not show the correct capacity of the motor or the name plate is missing or the rating of such motor as assessed by the 6 Engineer authorized in this behalf is in excess of the rating noted in the Test Report, action shall be taken under this Code.
(d) If the existing consumer challenges the decision regarding the assessed capacity of the motor made by the Engineer, a letter may be issued to the consumer asking him to test the motor for its capacity at Government Laboratory or by any other agency acceptable to the Licensee at the cost of the consumer and produce the same to the officer concerned within two months from the date of issue of such letter.
The excess contracted load charges for both metered and unmetered supply shall be sixty rupees per HP per month prospectively and as long as the excess contracted load remains connected.
(4) Belated payment surcharge (BPSC)
(i) All bills are to be paid in the case of HT consumers, within the due date specified in the bill and in the case of LT consumers, within the due date and notice period specified in the consumer meter card.
(ii) Where any HT consumer neglects to pay any bill by the due date, he shall be liable to pay belated payment surcharge from the day following the due date for payment.
Where any LT consumer neglects to pay any bill by the last day of the notice period, he shall be liable to pay belated payment surcharge from the day following the last day of the notice period. The surcharge shall be for a minimum period of fifteen days and where the delay exceeds fifteen days but does not exceed one month, it shall be for one whole month and where the delay exceeds one month, it shall be for the number of whole months and for any fraction of a month it shall be proportionate to the number of days
(iii) If the due date in the case of HT consumers and the last day of the notice period in the case of LT consumers falls on a holiday, the surcharge is payable from the day following the next working day.
(iv) In the case of LT consumers, the surcharge shall be 1.5 % per month for the sum outstanding towards the price of electricity supplied.
(v) In the case of HT consumers the surcharge shall be 1.5% per month for the notice period. However, for the consumers who are availing of extension of time beyond the notice period, on an application to the Licensee, the BPSC shall be at 3% per month from the expiry of the due date allowed for payment for a full month irrespective of number of days delayed. Where no extension of time is granted or the delay continues after the expiry of extended time, the surcharge shall be at 1.5 % per month.
(vi) In case of sums other than price of electricity supplied which are outstanding, surcharge shall be leviable at the discretion of the Licensee at a rate not exceeding 1.5 % per month.
(vii) In the case of short assessment included in a subsequent bill, surcharge shall accrue in the case of HT consumers, after the due date for the payment of the subsequent bill wherein the short assessment is included and in the case of LT consumers, it shall accrue from the day following the last day of the notice period.
(viii) In the case of short assessment permitted to be payable in installments, the surcharge shall accrue only when there is default in the payment schedule and the surcharge shall be worked out from the day following the day on which the installment fell due and shall be payable along with the amount of installment due.
(ix) Where the service connection stands terminated, the amount of Security Deposit and the interest accrued thereon shall first be adjusted against belated payment surcharge and the remainder if any, against other dues.
(x) The belated payment surcharge is payable only on any outstanding amount excluding belated payment surcharge component .
(xi) The belated payment surcharge shall not be levied on electricity tax and electricity tax shall not be levied on the belated payment surcharge (5) Additional Security Deposit
i) The adequacy of security deposit may be reviewed and refixed once in a year in case of HT consumers and once in every two years in case of LT consumers taking into account the interest due for credit. Such reviews shall be made in the month of April / May. The rate of interest on the security deposit shall be on the basis of the Commissions directive to the Licensees in this regard.
ii) The adequacy of security deposit shall be based on the periodicity of billing for the respective category.
(a) For the categories of consumer under monthly billing, the Security Deposit is equivalent to two times of the monthly average of the electricity charges for the preceding twelve months prior to April.
(b) For the categories of consumer under bi-monthly billing, the Security Deposit is equivalent to three times of the monthly average of the electricity charges for the preceding twelve months.
(c) For the categories of consumer under half yearly billing, the security deposit is equivalent to seven times of the average charges per month.
iii) Interest at Bank rate or more as specified by the Commission shall be calculated and credited to the Security Deposit accounts of the consumers at the beginning of every financial year i.e. April and the credit available including the interest shall be informed to each consumer before the end of June of every year.
iv) If available deposit is less than the revised Security deposit, the balance shall be collected as Additional Security deposit either through a separate notice or by a distinct entry in the consumer meter card for LT services. Thirty days notice period shall be allowed for the payment. If the payment is not received within the above period of thirty days, the service is liable for disconnection.
v) Where, on review, the amount of Security deposit held is found to be in excess of the requirement, the excess shall be adjusted against two future demands for the electricity supplied. Where, after such adjustment in future two demands, there is balance to be refunded, the refund shall be made by cheque before the due date for payment of the third demand.
vi) In the event of the consumer failing to pay to the Licensee any sum that may become due for payment to the Licensee on the dates fixed for payment thereof, the Licensee may, in addition to and without prejudice to the other rights of the Licensee, appropriate a part or whole of the Security Deposit and interest thereon towards the sum due from the consumer.
(6) Service / Line shifting charge.
(1) The cost of shifting service / line shall be borne by the consumer. The consumer shall pay the estimated cost of shifting in advance in full. The shifting work will be taken up only after the payment is made.
The estimate will cover the following: -
i. Charges for dismantling at the old site.
ii. Charges for transport from the old site to the new site.
iii. Charges for re-erection at the new site.
iv. Depreciation on retrievable old materials, if any, not re-used at the site.
v. Cost of new materials, if required.
vi. Cost of irretrievable materials.
vii. Overhead charges.
(2) Temporary dismantling and re-erection or shifting of a service connection within the same premises necessitated due to remodeling of premises will be carried out on payment of the required charges for the same.
(3) Shifting of an existing service connection involving change in door number or sub-door number or survey field number, shall be considered as a new service connection only. No shifting of an existing service connection is permissible unless all arrears in the service connection are paid, if so demanded by the Licensee.
(7) Name Transfer charge Every application for transfer of name consequent to the death of the consumer shall be in Form (1) accompanied by :
(a) Legal heirship certificate from the Tahsildar concerned or proof of ownership such as local body tax receipts ( latest)
(b) No objection certificate from other legal heirs, if any, (or) an indemnity bond in Form (3) in Appendix to this Code on non-judicial stamp paper for a value of Rs.80/- and a sworn-in affidavit and authenticated by a Notary Public or by a gazetted officer to show the status of other legal heirs.
(c) Fresh application with fee to be specified by the Commission and agreement form.
Every application for transfer of name, in other cases, shall be in Forms (1) and (2) in Appendix to this Code accompanied by-
(a) The document supporting the transfer with an undertaking in Form (4) in Appendix to this Code
(b) Consent letter from the consumer for the transfer of the Security Deposit. Where no such consent letter can be produced, the applicant shall pay fresh Security Deposit.
(c) Fresh application with fee to be specified by the Commission and agreement form.
Explanation : The name transfer is effected only for such services which are not under disconnection.
(8) Reconnection Charge : The Licensee shall collect reconnection charge from LT/HT consumers at the rates specified by the Commission from time to time.
(9) Consumer Meter Card Replacement Charge: The Licensee shall collect charges at the rate specified by the Commission for replacement of consumer meter card if lost or damaged. Wherever the space in the card is used up, the replacement shall be free of cost.
(10) Dishonoured cheque service charge: The Licensee shall collect service charges as specified by the Commission from time to time from the consumer, when a Cheque given by consumer is returned by the Bank for any reason whatsoever.
(11) Meter Related Charges: Meter rental charges shall be payable by the consumer, unless the consumer elects to purchase a meter, in accordance with the rates as the Commission may fix from time to time for different categories of consumers. The Licensee shall, besides meter rent where payable, collect charges towards changing of meters and boards, testing of meters, testing of installations, inspection charges etc., at the rates specified by the Commission from time to time.
(12) Application Registration Charge.
The Licensee shall collect registration charges from LT/HT consumers for the following, at the rates specified by the Commission from time to time.
(a) Application Registration charge at the appropriate rates for conversion of a service from L.T. to H.T. and vice versa and also wherever the consumers apply for additional loads both for H.T. and L.T. Services.
(b) Applications for reduction of demand/load in respect of H.T. and L.T. Services.
(c) Application for shifting of HT/LT Services.
(d) Application for street light service
(e) Replacement due to accident for poles broken etc., due to dashing of vehicle or any accident under Deposit Contribution Works (DCW).
(f) Shifting of line and deviation of line under Deposit Contribution Works.
(g) Application for temporary supply
6. Minimum Charges The consumer shall pay to the Licensee a minimum charge in respect of every connection as detailed below. The minimum monthly charges are payable even when no electricity was consumed or supply disconnected by orders of Court or when the price of electricity supplied is less than the minimum charges.
(a) For the H.T. services disconnected as per Licensees right to disconnect supply, the following monthly minimum charges based on the KVA demand shall be collected.
(i) If the disconnection is for the full month then 20% of the sanctioned demand.
(ii) If the disconnection is for part of a month, the actual recorded demand or such percentage of sanctioned demand as declared by the Commission whichever is higher.
(b) For the H.T services disconnected on the request of the consumer, the monthly minimum charges based on the KVA demand shall be the actual recorded demand (when the disconnection is for part of a month) or such percentage of sanctioned demand declared by the Commission whichever is higher :
Provided that where the Licensee is prevented from supplying electricity owing to cyclone, floods, storms, fire, strike or lockout in the Licensees establishment or other occurrences beyond the control of the Licensee, or if the Licensee is satisfied that the consumer has been prevented from consuming electricity either in whole or in part for similar reasons, the Licensee may recover from the consumer a minimum charges at twenty percent of the billable demand or recorded demand whichever is higher besides charges for the actual consumption of electricity :
Provided further that where the consumer has been prevented from consuming electricity.-
(i) the consumer shall produce a certificate from the Labour Officer to that effect, indicating the period of lockout or strike or temporary closure and the date on which it was called off.
(ii) the consumer shall give prompt intimation of the commencement of the lockout or strike so that the Maximum Demand meter can be reset. In the case of temporary closure the consumer shall give intimation of the closure. The consumer shall give intimation to the Licensee immediately after lifting of the strike, lockout or temporary closure.
Provided also that , in the case of steel industries having more than one electric furnace in a HT service and when one or more electric furnaces are under total strike / closure, then the benefit of billing on the actual recorded demand or the percentage as may be notified by the Commission from time to time of the sanctioned demand less the KVA load of the furnaces under total strike or closure whichever is higher shall be given. This provision is not applicable when there is lockout.
(c) for the LT services disconnected as per the Licensees right to disconnect the supply or at the request of the consumer to disconnect supply, the monthly minimum charges shall be recovered by the Licensee till the agreement is terminated.
7. Installation of Meter (1) Sub section (1) of section 55 of the Act provides for the use of meters and reads as No Licensee shall supply electricity, after the expiry of two years from the appointed date, except through installation of a correct meter in accordance with the regulations to be made in this behalf by the Authority:
Provided that the Licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter:
Provided further that the State Commission may , by notification, extend the said period of two years for a class or classes of persons or for such area as may be specified in the notification (2) All new service connections shall be extended with meters only. For all new LT service connections other than domestic and agricultural category, when the contracted demand is in excess of 18.6 KW ( 25 HP), the Licensee shall install meters with demand recording facility. For existing services, when the contracted demand is in excess of 18.6 KW (25 HP), this facility will have to be extended by the Licensee to enable implementation of excess demand charges as per regulation 5(2) of this Code.
(3) Unless the consumer elects to purchase his own meter, the Licensee shall provide meter of high quality, high precision and accuracy and may require the consumer to give adequate security for the price of the meter and pay the hire charges therefor. Where the consumer elects to purchase his own meter, the Licensee shall ensure that such meter is of high quality, high precision and accuracy and shall arrange to recalibrate the same at consumer cost.
(4) The meter shall ordinarily be installed at the point of entry to the consumers premises at a suitable and easily accessible place as the Engineer may decide. After installation, the security seals shall be affixed in the presence of the consumer or his representative on the meter box cover, current transformer chamber, terminal cover of the meter, test block, cut outs, air-break switch and gate and such other part of the installation as the Licensee may decide. The consumer shall be responsible to ensure that the meter and the seals are not stolen, damaged or tampered with. The consumer shall run his wiring from such point of supply.
(5) The quantity of electricity recorded by such meter shall be taken as the quantity actually supplied by the Licensee.
(6) The Licensee will provide the Security seals in the meter box cover and the current transformer chamber after testing the meter. The seals on the terminal cover of meter (Low Tension and High Tension), test-block, metering set, meter box, cutouts, air-break switch and gate and other seals as desired by the Licensee will be provided at site in the presence of the consumer or his representative who shall satisfy himself that all the seals including the security seals are intact and the meter disc is functional. It is the responsibility of the consumer to ensure that the seals are not damaged or tampered with.
(7) Where metering of the High Tension service connection is on the Low Tension side i.e. on the secondary side of the Transformer :
i) The average losses in the transformer shall be calculated as follows and added to the energy consumption indicated by the meter :-
720 x 1.0 x C Average loss = ------------------- Units per month 100 where C = KVA rating of the transformer
ii) The transformer loss arrived at by the above formula shall be added to the energy consumption, even when the recorded energy consumption is nil.
iii) 1% of the transformer capacity for transformer above 63 KVA. will be added to the recorded maximum demand on the Low Tension side to arrive at the equivalent High Tension demand (8) At periodical intervals, the meters shall be recalibrated and standardized by means of standard instruments by the Licensee. In respect of High Tension service connections, however, such recalibration will be done in the presence of the Consumers Electrical Engineer or his representative if the consumer so desires. If the meter is found defective/ incorrect, the adjustments in bills shall be made for error beyond permissible limits as laid down in the relevant rules made under the Act.
(9) If the consumer considers that the meter is defective, he may apply to the Licensee to have a special test carried out on the meters at any time and the cost of such a test shall be borne by the Licensee or the consumer according as the meter is found defective or correct as a result of such a test. The meter shall be deemed to be correct if the limits of error do not exceed those laid down in the relevant rules made under the Act. The consumer may also be allowed to install a check meter after recalibration by the Licensee. Such check meter shall be of high quality, high precision and high accuracy and sealed by the Licensee. Whenever the Licensees meter becomes defective the check meter reading may be taken for billing .
(10) The procedure to be followed for replacement of defective/ damaged/ burnt meter shall be as follows:
i) It is the responsibility of the Licensee to replace all defective meters at his cost
ii) Since the safe custody of the meter is the consumers responsibility, replacement of meter due to damages shall be at the cost of consumer.
iii) The cost of replacement for burnt meters shall be met by the Licensee unless it is proved otherwise that the burning out is due to the fault of the consumer.
iv) When the meter is owned by the consumer and becomes defective / damaged or when the meter is burnt due to the fault of the consumer, it is the responsibility of the consumer to replace the meter by a healthy one, if he elects to continue to have his own meter. Otherwise the Licensee shall replace the meter and enter into an agreement for hire and collect the specified deposits.
8. Meter Reading, Billing and intervals (1) Reading of meter or meters shall be taken by the employees of the Licensee at such intervals or times the Licensee may consider expedient and they shall have access to the consumers premises at all reasonable hours for the purpose of such reading as per the provisions contained in section 163 of the Act.. The format of the meter cards containing all basic information to be made available to the consumer shall be got approved by the Commission. It is the responsibility of the Licensee to ensure that the details in the respective meter cards are entered without omission.
(2) In the case of High Tension Service Connections, the Licensee shall, within four days after the expiry of each billing month, cause to be delivered to every consumer a bill of charges stating the amount payable by the consumer in connection with supply of electricity by the Licensee.
(3) In the case of Low Tension service connections, the Licensee in consultation with, and approval of the Commission shall decide the periodicity of meter readings, collection dates, modes etc.. However, in the case of temporary supply, the meter reading shall be taken at the end of the period in case sanction is for less than a month and once in a month in case sanction is for a period more than a month.
(4) In case of LT services the meter readings of last digit up to and inclusive of five units shall be rounded off to the lower multiple of ten units and the meter readings of last digit from six to nine units shall be rounded off to the higher multiple of ten units.
(5) In case of LT services, after taking the meter readings, the particulars of meter readings, energy consumption and charges payable will be incorporated in the consumer meter card.
(6) Payment for energy supplied shall be made by the consumer according to the meter readings referred to above and on delivery of a bill therefor in the case of High Tension consumers and incorporation of current consumption charges in the consumer meter card or assessment slip in the case of Low Tension consumers.
(7) The total of current consumption charges and other miscellaneous charges etc. in a bill/ assessment shall be rounded off to the nearest rupee.
(8) In respect of High Tension service connections, the employee of the Licensee, in the presence of the consumer or his representative, will take the meter readings. The signature of the consumer or his representative will be taken in the meter card in token of being present at the time of taking the reading. If the consumer or his representative refuses to be present or refuses to sign in the meter card, the fact will be recorded. The meter readings and consumption will nevertheless be entered in the meter card.
(9) In respect of captive generation, including windmill, the Licensee shall ensure provision of a meter card to enter the generation and consumption details. The employee of the Licensee, in the presence of the consumer or his representative, will take the meter readings. The signature of the consumer or his representative will be taken in the meter card in token of being present at the time of taking the reading. If the consumer or his representative refuses to be present or refuses to sign in the meter card, the fact will be recorded. The meter readings and consumption will nevertheless be entered in the meter card
9. Meter readings when there is changes in sanctioned demand etc., (1) Whenever there is change in the sanctioned demand, the change shall be effected, as far as possible, to coincide with the next meter reading. If , however, it is not possible so to do, the meter shall be reset and the maximum demand charges shall be billed proportionately for the respective periods.
(2) Whenever a tariff change is to be effected in a service connection, such change shall be effected only after obtaining a Revised Test Report (RTR) and the reading taken shall be conclusive proof of the electricity supplied.
10. Inaccessibility of meter for reading.
(1) When a Low Tension consumer leaves his installation connected to the Licensees mains but makes it inaccessible for reading by the employees of the Licensee, the consumer shall, for the first occasion of such inaccessibility, be charged provisionally on the basis of the amount charged on the previous assessment. The employee of the Licensee will leave an assessment slip in the premises, wherever possible.
(2) If, on the next occasion, the meter is accessible for reading, the consumer will be charged for the actual consumption less the amount already charged, subject to the minimum monthly charges for both the periods. If, on the other hand, the meter remains inaccessible on the second occasion also, the consumer will be served with a 24 hours notice to open his premises at a fixed time and date to enable an employee of the Licensee to read the meter. If the meter is now made accessible for reading, the consumer will be charged the actual consumption less the provisional amount charged and paid for the first period of inaccessibility subject to the minimum monthly charges for both the periods. If the meter remains inaccessible even after the 24 hours notice, the supply to the premises will be disconnected and for that period also provisional amount as in the case of previous occasion will be charged.
(3) If the meter is made accessible, subsequent to the disconnection, for purpose of reading the meter and settling accounts or for reconnection of the service as the case may be, the consumer will be charged the actual consumption subject to the minimum monthly charges payable for both periods less the two provisional amounts levied and paid for the two periods of inaccessibility. Reconnection charges, if any, shall also be levied. Any excess amount collected will be adjusted in future current consumption charges.
(4) When a High Tension consumer leaves his installation connected to the Licensees mains but makes the meter inaccessible for reading by the employees of the Licensee, the employees of the Licensee will serve the consumer with a 24 hours notice to open his premises for reading of the meter at a fixed time. If the meter is now made available for reading, the readings will be taken. If the meter remains inaccessible even after the 24 hours notice, the supply to the premises will be disconnected and the consumer will be charged provisionally on the basis of the amount charged for the previous month. If the meter is made accessible subsequent to the disconnection, the consumer will be charged the actual consumption less the provisional amount charged subject to minimum monthly charges. All reconnections shall attract reconnection charges over and above the other charges as are applicable.
(5) Serving of notices to the consumers with regard to the provisions under the sections above, can be executed by pasting the same at a conspicuous place at the premises.
................
12. Errors in billing (1) In the event of any clerical errors or mistakes in the amount levied, demanded or charged by the Licensee, the Licensee will have the right to demand an additional amount in case of undercharging and the consumer will have the right to get refund of the excess amount in the case of overcharging (2) Where it is found that the consumer has been over-charged, the excess amount paid in such cases will be adjusted against future current consumption charges. If, even after such adjustment against future current consumption charges for two assessment periods, there is still a balance to be refunded, the refund will be made by cheque.
(3) Wherever the Licensees receive complaints from consumers that there is error in billing, etc. the Licensee shall resolve such disputes regarding quantum of commercial transaction involved within the due date for payment, provided the complaint is lodged three days prior to the due date for payment. Such of those complaints received during the last three days period shall be resolved before the next billing along with refunds / adjustments if any. However, the consumer shall not, on the plea of incorrectness of the charges, withhold any portion of the charges.
13. Servicing of bills (1) For the HT services, bills shall normally be sent by post or by hand delivery but the Licensee takes no responsibility for loss in transit. The consumer should notify the concerned office of the Licensee, if no bill or assessment is received. Non-receipt of the bills/ assessments will not entitle the consumer to delay payment of the charges beyond the due date. For LT services, entry in consumer meter card shall be the bill of demand and there will be no separate issue of bill.
(2) For any arrears other than the regular current consumption bill, it is the Licensees obligation to inform the consumer by a separate communication with details.
14. Due dates and notice periods (1) The Licensee shall provide the following minimum days with regard to due dates, notice period for payment of tariff related electricity charges:
(a) For LT Services, the due date shall be not less than 5 days from the date of entry in the consumer meter card. 15 days clear notice period shall be allowed prior to disconnection for non-payment. Belated payment surcharge shall not be levied for LT services during the notice period.
(b) For HT Services, the due date shall be not less than 7 days from the date of billing. If the last day of the due date happens to be a holiday, the due date shall be extended to till the next working day. 15 days clear notice period shall be allowed prior to disconnection for non-payment. Belated payment surcharge shall be levied for HT services during the notice period as specified in this Code.
(2) In the case of Low Tension consumers who do not pay their current consumption charges as per the periods specified by the Licensee in the consumer meter card, the printed notice period in the consumer meter card shall be construed as the notice to the consumer. Payments may also be accepted during the notice period. If the last day included in the notice period happens to be a holiday, the period of notice will get extended and the last day for payment to avoid disconnection will be the next working day.
(3) Supply to such Low Tension consumers as specified above is liable to be disconnected after the expiry of the notice period.
(4) Bills rendered to High Tension consumers and the charges incorporated in the consumer meter cards of Low Tension consumers shall be paid as stipulated and are subject to BPSC, for delayed payment as stipulated in this Code.
(5) If the amount of any bill remains unpaid beyond the period specified, the Licensee may also, without prejudice to any of its rights under the agreement entered into by the consumer with the Licensee, order supply of electricity to the consumer to be discontinued forthwith without further notice and keep the service connection disconnected until full payment for all obligations pending and the charge for the work of disconnection and reconnection has been paid. Such discontinuance of supply of electricity shall not relieve the consumer of his liability to pay the minimum monthly charges nor shall such discontinuance affect any right, claim, demand or power which may have accrued to the Licensee hereunder.
15. Mode of payment (1) The Licensee shall issue receipts for every recovery or payment from the consumers.
(2) All High Tension bills, including those on account of miscellaneous charges, are to be paid within the due date fixed by the Licensee from the date of the bill. The High Tension Consumer shall pay the bills in cash or by demand draft on local bank or Cheque drawn on a bank at the headquarters of the Engineer. Payment for amounts exceeding Rs. 2000/- is preferred by DD/ Cheque. Depending on the circumstances, the Engineer shall however accept cash payments also and advise the consumer for future remittances by DD/ Cheque. In case the Cheque is dishonored for any reason whatsoever, the High Tension consumer will be required to pay the High Tension bills in cash or by demand draft thereafter. If the payment is not received within fifteen days (notice period) from the expiry of the due date allowed for payment, the supply will be disconnected. However the consumer may be allowed extension of time to make payment beyond the expiry of the notice period allowed for payment, on an application made to the designated authority of the Distribution Licensee, subject to the levy of BPSC as specified in this Code.
(3) Low Tension Consumers shall pay the amount due in cash or by money order or by demand draft on local bank, or by Cheque drawn on a bank where the Distribution Section Office is located. However, local bodies and Railways may issue Cheque on the banks situated in the place of their office and the Licensee may claim the collection charges, if any, from such consumers. Payment for amounts exceeding Rs 2000 is preferred by DD/ Cheque. Depending on the circumstances, the Engineer shall however accept cash payments also and advise the consumer for future remittances by DD / Cheque. In case the Cheque is dishonored for any reason whatsoever the Low Tension Consumer will be required to pay thereafter the amount due by cash/money order/ demand draft only. The Licensee shall have the powers to accord approval for restoring the Cheque facility for payment by the consumers after watching the performance of the consumers in regard to settlement of current consumption charges at least for the last three consecutive billing periods in respect of L.T. consumers and three months period in respect of H.T consumers. The Licensee shall have the powers for restoration of cheque payment facility for a second occasion after watching the performance of the consumers in regard to subsequent settlement of charges. Such consumers shall pay service charges for dishonor of cheque as stipulated by the Commission in addition to the following:
(a) Low Tension Consumers : Additional service charges @ 1% of the dishonored cheque amount subject to a minimum of Rs.500/-
(b) High Tension Consumers: Additional service charges @ 1% of the dishonored cheque amount subject to a minimum of Rs.1000/-
(c) This concession of restoration of cheque payment facility shall not be given thereafter for a service connection.
16. Option to pay charges in advance The consumers who opt for depositing electricity charges in advance shall be permitted to do so. Such deposits shall be recorded in the consumer meter card.
17. Agreement with respect to supply : Issues on recovery of charges (1) Every consumer shall pay to the Licensee, from the date of commencement of supply till the agreement is terminated, security deposit, minimum monthly charges, fixed charges, if any, and other charges as provided in the Tariff Orders, this Code and any other orders in this regard by the Commission, from time to time. However, any consumer, who has not availed of reconnection even after the expiry of termination of agreement period, the monthly minimum charges may be limited to the date of disconnection.
(2) Notwithstanding the termination of the agreement, the consumer shall be liable to pay the arrears of current consumption charges or any other sum due to the Licensee on the date of disconnection and meter rent, if any, up to the date of termination of the agreement and Belated Payment Surcharge (BPSC) up to the date of payment.
(3) The Licensee may require the consumer, who, at any time during the currency of the agreement, intends to sell or otherwise dispose of or lease out in whole or in part of the premises or business to which supply is given or has been contracted for, to give three months notice of his intention to the Engineer of the Licensee and clear all dues up to the date of sale/ disposal/ lease. In the case of such notice, the agreement in so far as the consumer is concerned, will cease to operate with effect from the date specified in such notice, but without prejudice to any claim or right which may have accrued to the parties there under.
(4) If the consumer fails to give advance intimation as aforementioned of his intention to sell or lease out or otherwise dispose of the properties or business to which supply is given or contracted for, the Licensee shall have the right to recover the charges for consumption and other charges due to the Licensee under the agreement even beyond the date of sale or lease out or otherwise disposal of the properties or business.
(5) If a service connection remains disconnected for a period of three months for non-payment dues to the Licensee, the Licensee shall issue a notice requiring the consumer to get supply restored within three months from the date of receipt of such a notice and intimating him that failure to avail supply within that period will result in termination of the agreement. After the expiry of notice period of three months, the agreement shall stand terminated."
19. Regulation 21 relates to disconnection of the Supply and it is extracted hereunder:
"21. Disconnection of supply:- Section 56 of the Act with regard to disconnection of supply in default of payment reads as follows :
"(1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and re-connecting the supply, are paid, but no longer :
Provided that the supply of electricity shall not be cut off if such person deposits, under protest,
(a) an amount equal to the sum claimed from him. Or
(b) the electricity charges due from him for each calculated on the basis of average charge for electricity paid during the preceding six months, whichever is less, pending disposal of any dispute between him licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date such sum became first due unless such sum has been shown continuous as recoverable as arrears of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."
The provision of the Act as in sub-section (1) above are in addition to and not in derogation of any other law for the time being in force Accordingly, the licensee shall be entitled to disconnect the supply of electricity subject to the provisions of Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act 1981 and Environment (Protection) Act, 1986, etc."
20. Section 42 of the Electricity Act, 2003, deals with the duties of distribution licensees and open access and sub-Sections (5), (6) and (7), read as follows:
"(5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission.
(6) Any consumer, who is aggrieved by non-redressal of his grievances under sub-section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission.
(7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission."
21. Section 56 of the Electricity Act, deals with disconnection of supply in default of payment and it reads as follows:
"56. (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits , under protest, -
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."
22. Before adverting to the case on merits, let me address the issue, as to the maintainability of the writ petition, on the grounds of availability of an alternative remedy, with the background of the principles of law, settled by the Apex Court, on the powers and discretion of High Courts to entertain the writ petitions, when a statutory alternative remedy is available.
23. The Constitutional Bench of the Supreme Court in Thansingh Nathmal v. Superintendent of Taxes reported in AIR 1964 SC 1419, at Paragraph 7, held as follows:
"........The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up."
24. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in AIR 1999 SC 22, the Supreme Court, at Paragraph 20, held as follows:
"Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
25. In U.P. State Spinning Co. Ltd., v. R.S.Pandey reported in 2005 (8) SCC 264, the Supreme Court after considering a catena of decisions, at Paragraphs 20 and 21, as follows:
"20. In a catena of decisions it has been held that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out.
21. In U.P.State Bridge Corporation Ltd., and Ors. v. U.P. Rajya Setu Nigam S. Karamachari Sangh, [2004] 4 SCC 268, it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in Premier Automobiles Ltd., v. Kamlekar Shantarum Wadke, [1976] 1 SCC 496, Rajasthan SRTC. v. Krishna Kant, [1995] 5 SCC 75, Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad and Anr., [2002] 2 SCC 542 and in Scooters India and Ors. v. Vijai V. Eldred, [1998] 6 SCC 549."
26. In Mumtaz Post Graduate Decree College v. Vice Chancellor reported in (2009) 2 SCC 630, the Supreme Court, at Paragraphs 22 and 23, held as follows:
"22. Apart from the fact that a statutory authority cannot consider the validity of a Statute, as has been urged before us by Mr. Choudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one.
23. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 :
"15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ...."
27. The decision made in Kanaiyalal Lalchand Sachidev v. State of Maharashtra reported in 2011 (2) SCC 782, was under Secritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and at paragraph 23, held as follows:
ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. It is worthwhile to extract the judgment made in City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala reported in 2009 (1) SCC 168, referred in Kanaiyalal Lalchand Sachidev 's case (cited supra), as follows:
The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
28. The decision made in Subhash Popatlal Dave v. Union of India reported in 2012 (7) SCC 533, was under Preventive Detention and at paragraph 43, the Supreme Court held as follows:
........Their Lordships observed that: (SCC p.520, para 30) "30. .....the powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive action resulting in civil or criminal consequences."
However, the said observations were, thereafter, somewhat whittled down by the subsequent observation that the Courts have over the years evolved certain self-restraints in exercising these powers. Such self-imposed restraints were not confined to the review of the orders passed under detention law only, but they extended to orders passed and decisions made under all laws. It was also observed that in pursuance of such self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person should first allow the due operation and implementation of the law concerned and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary, extraordinary and equitable jurisdiction under Articles 226 and 32, respectively and that such jurisdiction by its very nature has to be used sparingly and in circumstances, where no other efficacious remedy is available. However, having held as above, Their Lordships also observed that all the self-imposed restrictions in respect of detention orders would have to be respected as it would otherwise frustrate the very purpose for which such detention orders are passed for a limited purpose."
29. In exercise of the powers conferred in Section 181 r/w. Sub-Sections (5), (6) and (7) of Section 42 of the Electricity Act, 2003 (36 of 2003), The Tamil Nadu Electricity Regulatory Commission has framed "The Regulations for Consumer Grievance Redressal Forum and Electricity Ombudsman, 2004 and that a Notification No.TNERC/CGR&EO/6/1, dated 08.01.2004 has been published in the Tamil Nadu Government Gazettee on 18th February' 2004. Some of the definitions given in Regulation 2 of the abovesaid Regulations are as follows:
"(b) "area of supply" means the area within which a distribution licensee is authorised by his/her/their licence to supply electricity.
(e) "Complainant" means
(i) a consumer of electricity supplied by the Licensee including applicants for new connections;
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force;
(iii) the Central Government or any State Government - who or which makes the complaint;
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heirs or representatives.
(f) complaint means any grievance made by a complainant in writing on:-
(i) defect or deficiency in electricity service provided by the licensee;
(ii) unfair or restrictive trade practices of licensee in providing electricity services;
(iii) Charging of a price in excess of the price fixed by the Commission for consumption of electricity and allied services;
(iv) Electricity services which will be unsafe or hazardous to public life in contravention of the provisions of any law for the time being in force.
(g) "consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person as the case may be.
(h) defect means any fault, imperfection or shortcoming in the quality, quantity, purity or standard of service, equipment or material which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the distribution licensee in any manner whatsoever in relation to electricity service.
(i) deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of supply which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by distribution licensee in pursuance of a contract agreement or otherwise in relation to electricity service or performance standard, violations of Electricity Supply Code, contraventions of Act, Rules or Regulations made thereunder with regard to consumer interest.
(j) distribution system means the system of wires and associated facilities between the delivery points on the transmission lines or the generating station connection and the point of connection to the installation of the consumers.
(l) In particular and without prejudice to the generality of the term the "electricity service" means electricity supply, metering, billing, maintenance of electrical energy, maintenance of distribution system and all other attendant sub service etc.
(m) "licensee" means a person who has been granted a licence under Section 14 of the Act."
30. Part II deals with the Consumer Grievance Redressal Forum and some of the Regulations, require extraction.
"4. Jurisdiction of the forum. Subject to the other provisions of these Regulations, the forum shall have jurisdiction to entertain the complaints within the jurisdiction of the distribution licensee. If there is more than one forum in the same Licensee's area, then the area of jurisdiction may be decided by the Licensee in accordance with sub-clause 3 (2).
5. Kind of grievances that can be taken up by the forum. The forum shall take up any kind of grievances / complaints as defined in clause 2 (l) of these regulations. However, the consumer's grievances concerned with
(i) authorised use of electricity as detailed under section 126; and
(ii) offences and penalties as detailed under sections 135 to 141 of the Electricity Act, 2003 are excluded from the purview of this forum.
6. (1) The licensee shall notify details such as the address, telephone numbers and e-mail address of the Forum often in the media. The licensee shall make available copies of the procedure for lodging complaints to the complainants at free of cost. The applications/bills/receipts issued by the licensee to the consumers shall contain the address of the concerned Consumer Grievance Redressal Forum and the statement 'Complainants whose grievance is not redressed by the official of the licensee may approach the Consumer Grievance Redressal Forum' shall also be printed on it.
(2) Grievance filing procedure. Every grievance to the forum must be submitted in writing to the Chairperson of the forum in the complaint format given in Annexure-I. The complaint can also be lodged through e-mail to the respective forum's e-mail ID (which will be published by them widely). Such mode of complaint can be in text format with the required information and address of the complainant.
7. Grievance handling procedure for the forum. (1) On receipt of the grievance from any complainant, the Chairperson shall make endorsement on the grievance subscribing his dated initial. Grievances received shall be registered and serially numbered for each year.
(2) Within seven working days of receipt of a consumer grievance, the forum shall send an acknowledgement to the complainant. If the grievance / petition is anonymous, the same shall be rejected on receipt and placed before the forum in the next available opportunity for recording the same.
(3) On receipt of a complaint and following the procedure mentioned under sub-clause 7(1), the forum may, by order allow the complaint to be proceeded with or reject. Provided that the complainant shall be informed in writing if the complaint is rejected. Provided further that the admissibility of the complaint shall ordinarily be decided within 10 working days from the date on which the complaint was received.
Where a complaint is allowed to be proceeded, the forum may proceed with the complaint in the manner provided under these Regulations.
(4) A copy of the admitted complaint shall be forwarded simultaneously to the nodal officer of the concerned licensee for redressal or to file objection in writing if the licensee is not agreeable to the request of the complainant.
(5) The licensee shall furnish the para-wise comments on the grievance within 15 days of receipt of the letter from the forum, failing which the forum shall proceed on the basis of the material record available. The complainant can represent himself or through a representative of his choice. Where the complainant or his representative fails to appear on the date of hearing before the forum, the forum may either dismiss the complaint for default or decide it on merits.
(6) The forum shall be entitled to call for any record of the licensee and also from the complainant in respect of the grievance received by the forum for examination and disposal of the grievances.
(7) On receipt of the comments from the licensee or otherwise, the forum shall complete enquiry as expeditiously as possible and every endeavour shall be made to pass appropriate order on the complaint within a maximum period of 2 months from the date of receipt of complaint by the forum.
(8) All decisions shall be taken by a majority of votes by the members present and in the event of the equality of the votes, the facts may be recorded and referred to the Electricity Ombudsman.for final orders. All the members present shall sign every order passed by the forum. The decisions of the forum shall be strictly in accordance with the provisions of the Act, the rules and regulations made thereunder and in particular the Tamil Nadu Electricity Supply Code and the Tamil Nadu Electricity Distribution Code and the directions of the Commission and it is not open to the Members and the Chairperson of the Forum to deviate either expressly or impliedly from the provisions of the Act or the rules or regulations made thereunder or the Tamil Nadu Electricity Supply Code or the Tamil Nadu Electricity Distribution Code or the directions of the Commission while taking the decisions by the forum.
(9) The proceedings and decisions of the forum along with time-frame for compliance shall be recorded and communicated to the complainant and licensee for compliance.
(10) The licensee shall implement the decisions of the forum within the time-frame specified in the order and report compliance to the forum within 5 days of the implementation of the order.
(11) In respect of grievances on non-implementation of standards of performance of licensee on consumer service specified by the Commission under section 57(1) of the Electricity Act, 2003, if the forum finds that there was default of the licensee, it shall only hold that the consumer is entitled to the compensation and shall state that, the consumer if agreed, can accept the compensation prescribed by the Commission in the relevant Regulations.
8. Appeal. Any person aggrieved by an order made by the forum may refer an appeal against such order to the Electricity Ombudsman within a period of 30 days from the date of the order, in such form and manner as may be prescribed by the Commission :
Provided that the Electricity Ombudsman may entertain an appeal after the expiry of the said period of. 30 days if the Electricity Ombudsman is satisfied that there was sufficient cause for not filing it within that period :
Provided further that the Electricity Ombudsman shall entertain no appeal by any party, who is required to pay any amount in terms of an order of the forum, unless the appellant has deposited in the prescribed manner, twenty-five per cent of the amount as ordered by the forum.
9. Monitoring report. The forum shall" submit a report to the Commission on the category-wise number of complaints received, redressed and pending for every quarter of calendar year in the Format given in Annexure-II."
31. Procedure for filing a complaint, as per Regulation 17, reads as follows:
"17. Procedure for filing a complaint. (1) Any consumer, who is aggrieved on the order on the grievance or non-redressal of his grievances by forum constituted under section 42 (5) of the Electricity Act, 2003 by licensees relating to providing of electricity supply, may himself or through his representative make a complaint to the Electricity Ombudsman. Complaints of common nature (which may be considered applicable to more than one forum) can be directly brought upto Electricity Ombudsman by a State Level Consumer Association.
(2) The complaint shall be in writing duly signed by the, complainant or his authorised representative and shall state clearly the name of the individual or the organisation, postal address, telephone number and e-mail address (if any) of the complainant.
(3) The complaint shall also contain the number of the service connection, category of the service, address of the location of the service connection, name of the local licensees' office and address against which the complaint is made, the facts giving rise to the complaint supported by documents, if any, and the relief sought from the Electricity Ombudsman.
(4) No complaint to the Electricity Ombudsman shall lie unless
(a) The complainant had before making a complaint to the Electricity Ombudsman made a written representation to the forum of the licensee named in the complaint and either the forum had rejected the complaint or the complainant had not received any reply within a period of two months from the date of filing of the grievance or the complainant is not satisfied with the reply given to him by the forum. This shall, however, not be applicable to the complaints of common nature described under clause 17(1).
(b) The complaint is made within three months after cause of action has arisen;
(c) The complaint, which is not settled, is not in respect of the same subject, which was settled through the office of the Electricity Ombudsman in any previous proceedings whether received from the same complainant or along with one or more complainants or anyone or more of the parties concerned with the subject matter;
(d) The complaint does not pertain to the same subject matter for which any proceedings before any Court is pending or a decree or award or a final order has already been passed by any competent Court; and
(e) The complaint is not frivolous or vexatious in nature."
32. By the abovesaid Regulations notified in No.TNERC/CGR&EO/6/1, dated 08.01.2004 and published in the Tamil Nadu Government Gazette on 18th February' 2004, the Tamil Nadu Electricity Regulatory Commission has framed comprehensive and detailed Regulations, for redressal of the grievances, made in writing, on the matters, relating to defect or deficiency in electical service, provided by the licencee, viz., the Electricity Board.
33. The words "electricity service" provided in Regulation 2(l), means "electricity supply, metering, billing, maintenance of electrical energy, maintenance of distribution system and all other attendant sub-service etc.," As per Regulation 5, the forum shall take up any kind of grievances/complaints as defined in clause 2 (l) of the said regulations. Exclusions to the jurisdiction of the forum are, related to the consumer's grievances, concerned with,
(i) authorised use of electricity as detailed under section 126; and
(ii) offences and penalties as detailed under sections 135 to 141 of the Electricity Act, 2003 are excluded from the purview of this forum.
34. Annexure-I of the abovesaid Regulation is the complaint format to be filed before the Comsumer Redressal Forum and the same reads as follows:
ANNEXURE - I COMPLAINT FORMAT (Please tick ( v ) in the box whichever is applicable)
1) SERVICE CONNECTION RELATED
i) FOR NEW SERVICE (TYPE) Domestic Commercial Industrial Agriculture Other Services
ii) FOR EXISTING SERVICE: Service No. Additional Meter Defective Meter/ Capacity Enhancement Replacement of Meter Additional Load Conversion to 3 Phase Shifting Of Service Name Transfer Tariff Change Bill Revision Deficiency in Services Other Complaint
a) Date of Application
b) Date of payment made if any
c) Address of the location of the existing / proposed service connection
d) Name, Designation and address of the Officer concerned
2) Licensees employee against whom complaint is made (for more than one person fill in separate form) NAME DESIGNATION OFFICE ADDRESS NATURE OF COMPLAINT
i) Discourtesy
ii) Denial of requisite information
iii) WANTON DELAY ON ACCOUNT OF Registration of application Acceptance of payment Fixing of meter Effecting service connection
iv) QUALITY OF POWER SUPPLY Low Voltage From (Hrs) To (Hrs) (Generally) Voltage Fluctuation From (Hrs) To (Hrs) (Generally) Frequent From (Date) To (Date) Interruption of supply Any other Problem From (Date) To (Date )
v) DEMAND / ACCEPTANCE OF BRIBE
i) Bribe demanded Time Date Place
ii) Bribe accepted by officer directly through the agent Amount paid Rs. Time Date Place
3) GENERAL (Descriptive details of the above or other matters)
-----------------------------------------------------
---------------------------
Telephone Signature of the Complainant Number Mail ID Date: Address of the Complainant
NOTE: Strike out whichever is not applicable ii) Send separate sheet if necessary to cover details iii) Complainant is assured that there will be no harassment for giving this complaint iv) Complete postal address of the complainant is essential for taking action."
35. In Maharastra State Electricity Distribution Co. Ltd., v. Lloyds Steel Industries Ltd., reported in AIR 2008 SC 1042 = 2007 (8) SCC 381, the Supreme Court tested the correctness of a judgment passed by the Appellate Tribunal of the Electricity Board. In the above reported case, the respondent-Company approached the Maharastra Regulatory Commission, with the prayer that the demand notice issued by the Maharastra Electricity State Distribution Ltd., to be declared as illegal and consequently, to be quashed. An adverse order was passed against the Company. Being aggrieved by the same, a petition was filed before the Maharastra Electricity Regulatory Commission. An objection was raised, stating that the Commission had no jurisdiction, in view of Section 42 of the Electricity Act, 2003 and that the consumer should only approach the Consumer Greivances Redressal Forum. The Commission overruled the objection and directed refund of some amount to the Company. Being aggrieved by the same, the appellant therein approached the Appellate Tribunal for Electricity, created under the Act and that the Tribunal has affirmed the order passed by the Commission. Review Petition was filed by the appellant therein was also dismissed. Being aggrieved by the abovesaid orders, the appellant therein filed a Special Leave Petition before the Apex Court and after considering the provisions, the Supreme Court, at Paragraph 7, held as follows:
"7. As per the aforesaid provision, if any grievance is made by a consumer, then they have a remedy under Section 42(5) of the Act and according to sub-section (5) every distribution licensee has to appoint a forum for redressal of grievances of the consumers. In exercise of this power the State has already framed The Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2003 (hereinafter referred to as "2003 Regulations") and created Consumer Grievance Redressal Forum and Ombudsman. Under these 2003 Regulations a proper forum for redressal of the grievances of individual consumers has been created by the Commission. Therefore, now by virtue of sub-section (5) of Section 42 of the Act, all the individual grievances of consumers have to be raised before this forum only. In the face of this statutory provision we fail to understand how could the Commission acquire jurisdiction to decide the matter when a forum has been created under the Act for this purpose. The matter should have been left to the said forum. This question has already been considered and decided by a Division Bench of the Delhi High Court in the cases of Suresh Jindal Vs. BSES Rajdhani Power Ltd. & Ors. reported in 132 (2006) DLT 339 (DB) and Dheeraj Singh Vs. BSES Yamuna Power Ltd. and we approve of these decisions. It has been held in these decisions that the Forum and Ombudsman have power to grant interim orders. Thus a complete machinery has been provided in Section 42(5) and 42(6) for redressal of grievances of individual consumers. Hence wherever a Forum/Ombudsman have been created the consumers can only resort to these bodies for redressal of their grievances. Therefore, not much is required to be discussed on this issue. As the aforesaid two decisions correctly lay down the law when an individual consumer has a grievance he can approach the forum created under sub-section (5) of Section 42 of the Act."
Let me also consider some of the decisions rendered by this Court and other High Courts.
36. In W.P.(MD)No.3148 of 2008, dated 26.06.2008 [A.A.A.P.Angamuthu v. The Assistant Engineer (Town)], an order passed by the Assistant Engineer (Town), Tamil Nadu Electricity Board, Melur, directing the petitioner to pay a sum of Rs.24,581/-, was challenged. The Board has contended that without obtaining a temporary service connection for construction, the petitioner had utilised the electricity supply from the disconnected service connection given to his father, for commercial purpose and hence, liable to pay Rs.50/- per day, for 385 days, totalling a sum of Rs.24,581/-. The petitioner has defended the action, contending inter alia that when the construction was started in the year 2004, the original service was disconnected. The construction was completed in March' 2006. The service connection was restored on 04.04.2006. The Electricity Department has chosen to wrongly calculate the amount, based on the previous alleged use of electricity, which is contrary to law. Taking note of the objections of the respondents, as to the maintainability of the writ petition, on the grounds of availability of an alternative remedy, before the Consumer Grievance Redressal Forum, a learned single Judge of this Court, by order, dated 26.06.2008, dismissed the writ petition, as not maintainable. At Paragraph 7, this Court held as follows:
"7.On the basis of the Regulations for Consumer Grievance Redressal Forum and Electricity Ombudsman, 2004, in particular Regulation No.3, which contemplates the Consumer Grievance Redressal Forum is constituted and as per Regulation No.4, the said Forum has jurisdiction to entertain the complaints in respect of distribution licensee and the nature of the grievances that can be redressed under Regulation 5, which excludes as follows:-
(1) the dispute use of unauthorized electricity reads as per section 126 of the Electricity Act and (2) the offences and penalty as enumerated under Sections 135 to 141 of the Electricity Act."
37. In W.P.No.1859 of 2007, dated 29.08.2008 [B.T.C.Industries Pvt. Ltd., v. Uttaranchal Power Corporation Ltd.,], a writ of Certiorarified Mandamus, has been sought for, to quash the order passed by the Power Corporation, by which, a demand has been made. The dispute was with reference to the payment of proportionate cost of an independent feeder. The petitioner therein sought for a direction not to disconnect the electric connection. Taking note of the objections, regarding the maintainability of the writ petition, on the grounds that a statutory alternative remedy is available to the petitioner, for redressal before the Consumer Grievance Redressal Forum, and the judgment of the Apex Court in Maharastra State Electricity Distribution Ltd., case (cited supra), the Uttaranchal High Court, has dismissed the writ petition, as hereunder, "In the peculiar facts and circumstances of the case coupled with the fact that only notice has been issued against the petitioner vide Annexure No.11 and also considering the fact that statutory remedy is available to the petitioner for redressal of his grievance before the Consumer's Grievances Redressal Forum constituted under Section 42(5) of the Electricity Act, 2003, therefore, it would not be proper to enter into the merits and to decide the case by this Court."
While parting with the judgment, after extracting the judgment in Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Ltd. and Others and Maharashtra State Electricity Distribution Co. Ltd. Vs. Lloyds Steel Industries Ltd [(2007) 8 Supreme Court Cases, 381], the Uttaranchal High Court, held as follows:
"The ratio of the Apex Court judgment is fully applicable to the facts of the case at hand. It is undisputed that a complete machinery as provided in Section 42(5) and 42(6) of the Electricity Act 2003 has been in existence in the State of Uttarakhand, therefore, the petitioner has statutory remedy to approach the Consumer Grievance Redressal Forum for redressal of his grievance. Accordingly, on the ground of alternate remedy, the writ petition deserves to be dismissed and is hereby dismissed. Costs easy.
Interim order dated 24-8-2006 passed by this Court is vacated."
38. In F.A.O.No.304 of 2008, dated 07.11.2008 [Shri Kishan Kumar v. Manager (Business) and Another], an appeal was filed in the High Court against the order of the Consumer Grievance Redressal Forum. Objection was raised to the maintainability of the writ petition, on the grounds that an order passed by the Forum could be appealed to the Ombudsman, in terms of Sections 42(6) and (7) of the Electricity Act. Following the judgment of the Apex Court in Maharashtra Electricity Regulatory Commission's case (cited supra), the Delhi High Court, by order, dated 07.11.2008, rejected the appeal, as hereunder:
"7. In this context, the observations of the Supreme Court in the case of State of Haryana Vs. Maruti Udyog Ltd. and Ors., (2000) 7 SCC 348 are apposite:-
"Right of appeal is the creature of the statute and has to be exercised within the limits and according to the procedure provided by law. It is filed for invoking the powers of a superior court to redress the error of the court below, if any. No right of appeal can be conferred except by express words. An appeal, for its maintainability, must have a clear authority of law."
8. The nature of jurisdiction exercised by the forum under Sections 42(5) and 42(6) under the Electricity Act, 2003 has been set down by the Supreme Court in the case of Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Ltd. (2007) 8 SCC 381 wherein the Court held that where the Statute concerned had created a proper forum/ombudsman for the redressal of grievances of individual consumers, the consumers can only resort to these bodies for redressal of their grievances. The proper forum in such cases is thus Section 42(5), and thereafter, Section 42(6) of the Electricity Act, 2003.
9. The appellate jurisdiction conferred on this court by Section 42 of the Delhi Electricity Reforms Act, 2000 is quite different. It is conferred for the purpose of hearing grievances against orders that have been passed under the Delhi Electricity Reforms Act, 2000 only, and that cannot be read to mean that the appellate jurisdiction conferred under that Act is also exercisable with regard to the orders passed under Section 42(5) of the Electricity Act, 2003, which is an entirely different statute. Therefore, to my mind, the reliance of learned counsel for the appellant on Section 42 of the Delhi Electricity Reforms Act, 2000 is misconceived.
10. Looking to the grievance of the appellant, it is obvious that even the original jurisdiction under the Delhi Electricity Reforms Act, 2000 was not available to him. It is perhaps for the reason that he did not approach the Commission under the Delhi Electricity Reforms Act, 2000 and moved the Consumer Grievance Redressal Forum under the Electricity Act, 2003, instead.
11. Since the dispute raised by the appellant did not fall within the purview of the jurisdiction exercised by the Delhi Electricity Regulatory Commission under the Delhi Electricity Reforms Act, 2000 in the first place, there can be no question of the right of appeal to the High Court envisaged under the said Act being available to the appellant. The High Court exercises appellate jurisdiction against the orders of various forums including the Civil and Criminal Courts, as also against the decisions of various bodies constituted under diverse statutes. The scope and availability of the appellate jurisdiction when exercised by the High Court in any manner is circumscribed by the relevant statute under which the same is envisaged.
12. For all these reasons, I find that this court does not have jurisdiction to entertain this appeal and the same is not maintainable on this ground.
13. The appeal is accordingly dismissed."
39. In W.P.(C)No.1945 of 2011, dated 04.02.2011 [M/s.Godrej & Boyce v. The Deputy Chief Engineer], pursuant to an inspection conducted by the Anti Power Theft Squad, it was found that one phase of the digital meter installed in the petitioner's premises was defective. The demand made by the Board was disputed. The objection made by the petitioner therein was overrulled and he was informed that if he is still aggrieved, he can move the Deputy Chief Engineer, Electrical Circle, Ernakulam, after remitting 50% of the said amount. The Board counsel objected to the maintainability of the writ petition, on the ground that the remedy lies before the Consumer Grievance Redressal Forum. Accepting the said submission, the Kerala High Court, by order, dated 04.02.2011, dismissed the writ petition, granting liberty to the petitioner therein, to move the Forum.
40. In W.P.No.22337 of 2011, dated 16.11.2011 [A.S.Krishnamoorthy v. The Executive Engineer (O & M)], consumption charges demanded by the Board, for the period, when the meter was defective, has been challenged on merits and on the ground of failure to follow 11(2) of the Electricity Supply Code, 2004. The writ petition has been defended both on merits, and on the grounds of availability of an alternative remedy before the Consumer Grievance Redressal Forum. After considering Regulation 18 of the Supply Code and Regulations 3 to 17, this Court, by order, dated 16.11.2011, dismissed the writ petition, as follows:
"18. For the foregoing reasonings and the discussion made, as this Court cannot sit over the assessment/re-assessment of the electricity consumption charges, and as an alternative statutory remedy of approaching the said Forum is available for the petitioner for redressal of the grievance, the petitioner/consumer may approach the said Consumer Grievance Redressal Forum.
19. Accordingly, the Writ Petition is disposed of, with a direction to the petitioner to move the Consumer Grievance Redressal Forum as per Regulation 18 of the Supply Code, within a period of four weeks from the date of receipt of a copy of this order, and on such approach, the said Forum shall look into the same on merits and in accordance with law, after giving an opportunity of hearing to the parties concerned."
41. In W.P.(C)No.6602 of 2008, dated 05.11.2012, Varun Steel and Another v. The Chattisgarh State Power Distribution Company Ltd., a revised bill and the notice of disconnection were challenged. Direction to the respondents therein, not to disconnect the supply of the electricity, was also sought for. On the objections regarding the maintainability of the writ petition and following the judgment of the Apex Court in Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Ltd. (2007) 8 SCC 381 and the Division Bench judgment of the Delhi High Court in Suresh Jindal Vs. BSES Rajdhani Power Ltd. & Ors. reported in 132 (2006) DLT 339 (DB), by order, dated 05.11.2012, the Chattisgarh High Court dismissed the writ petition as not maintainable.
42. Regulations for Consumer Grievance Redressal Forum and Electricity Ombudsman, 2004, makes it clear that any defect or deficiency, in respect of electricity service, as defined in Regulation 2(l), stated supra, also covers electricity supply, metering, billing, maintenance of electrical energy, maintenance of distribution system and all other attendant sub-service etc. Even taking it for granted that the licencee had not notified the details of the Consumer Grievances Redressal Forum, it shall not confer any right to the petitioner to straightaway approach the High Court under Article 226 of the Constitution of India, for the reason that the Regulations for Consumer Grievances Redressal Forum and Electricity Ombudsman, 2004 have been notified in the Government Gazettee, dated 18th February' 2004 (Issue No.6A).
43. Once the Regulations have been notified in the Government Gazettee, it is deemed to have been notified to all the general public. The Regulations also contain Annexure No.1, prescribing a format of the complaint and also matters, upon which, a complaint could be made. As per Regulation 4, subject to the other provisions of these Regulations, the forum shall have jurisdiction to entertain the complaints within the jurisdiction of the distribution licensee. If there is more than one forum in the same licensee's area, then the area of jurisdiction may be decided by the licensee, in accordance with sub-clause 3(2). The kind of grievances that can be taken up and adjudicated by the forum, are also mentioned under Regulation 5. Filing and handling procedures have been set out in, Regulations 6 and 7 respectively.
44. The very purpose of creation of the Regulations for Consumer Grievance Redressal Forum and Electricity Ombudsman, 2004, presided over by a Superintending Engineer and two other members, and devising a comprehensive procedure, as to how the complaint has to be made, with reference to Regulations 3 to 17 and more particularly, to the defect, deficiency and electricity service, which includes, "electricity supply", "metering", "billing", "maintenance of electrical energy", "maintenance of distribution system" and all other sub service, etc., clearly indicate that the above aspects are technical in nature and that therefore, the Forum headed by a Superintending Engineer and two other members, can very well adjudicate all the issues and decide, comprehensively. Disputed facts can also be adjudicated before the Forum. At the risk of repetition, Regulation 7(4) to (10) of the Regulations for Consumer Grievance Redressal Forum and Ombudsman, 2004, are extracted hereunder:
"(4) A copy of the admitted complaint shall be forwarded simultaneously to the nodal officer of the concerned licensee for redressal or to file objection in writing if the licensee is not agreeable to the request of the complainant.
(5) The licensee shall furnish the para-wise comments on the grievance within 15 days of receipt of the letter from the forum, failing which the forum shall proceed on the basis of the material record available. The complainant can represent himself or through a representative of his choice. Where the complainant or his representative fails to appear on the date of hearing before the forum, the forum may either dismiss the complaint for default or decide it on merits.
(6) The forum shall be entitled to call for any record of the licensee and also from the complainant in respect of the grievance received by the forum for examination and disposal of the grievances.
(7) On receipt of the comments from the licensee or otherwise, the forum shall complete enquiry as expeditiously as possible and every endeavour shall be made to pass appropriate order on the complaint within a maximum period of 2 months from the date of receipt of complaint by the forum.
(8) All decisions shall be taken by a majority of votes by the members present and in the event of the equality of the votes, the facts may be recorded and referred to the Electricity Ombudsman.for final orders. All the members present shall sign every order passed by the forum. The decisions of the forum shall be strictly in accordance with the provisions of the Act, the rules and regulations made thereunder and in particular the Tamil Nadu Electricity Supply Code and the Tamil Nadu Electricity Distribution Code and the directions of the Commission and it is not open to the Members and the Chairperson of the Forum to deviate either expressly or impliedly from the provisions of the Act or the rules or regulations made thereunder or the Tamil Nadu Electricity Supply Code or the Tamil Nadu Electricity Distribution Code or the directions of the Commission while taking the decisions by the forum.
(9) The proceedings and decisions of the forum along with time-frame for compliance shall be recorded and communicated to the complainant and licensee for compliance.
(10) The licensee shall implement the decisions of the forum within the time-frame specified in the order and report compliance to the forum within 5 days of the implementation of the order.
45. Billing problems, deficiency in service and other complaints, can be very well as raised in the complaint format, as provided in Annexure-I of the said Regulations. Thus, reading of the provisions of the Electricity Act, Regulations framed by the Tamil Nadu Regulatory Commission, makes it abundantly clear that the Act and the Regulations framed, are self contained and that comprehensive regulations have been framed. A Forum has been constituted to redress the complaints, specified therein.
46. Remedy under Article 226 of the Constitution of India, is available only if there is no other alternate and efficacious remedy. The above principle is of course only to certain exceptions. The questions to be considered at this juncture, is whether the alternative remedy available is efficacious, meaningful and not onerous. The dictionary meaning of the word efficacious is given below:
(i) In Webstar's Dictionary, efficacious means, having the power to produce a desired effect;
(ii) In Oxford Dictionary, efficacious means, (of something inanimate or abstract) successful in producing a desired or intended result; effective.
(iii) In Chamber's Dictionary, efficacious means, able to produce the result intended
(iv) In The Penguin Dictionary of English Synonyms, efficacious means, effectual, effective, powerful, active, operative, efficient, energetic of adequate power.
47. The Allahabad High Court in Mohamood Ilahi v. Dayawati reported in 1989 (1) All.RC 105, has explained the said term as follows:
In fact, the word efficacious is adjective according to grammer and its noun is efficacy. The word efficacy' is derived from Latin word efficacie which means capacity to produce results. The word 'efficacious' accordingly means able to produce the intended effect or result. In case the relief which can be obtained by other usual mode is equally efficacious meaning thereby equally able to produce the result which was intended by the plaintiff, then only injunction can be refused. Even there must be no doubt about the said relief being obtained because the legislature has used the word 'certainly'.
48. The remedy provided under the Statute should not only be alternative, but also efficacious. The remedy provided under the Statute, should be meaningful and not onerous. In the above background, when this Court examined the statutory provisions and the regulations framed, as to whether, the statutory provisions envisage a meaningful and efficacious remedy to the aggrieved person to vindicate his grievances to a competent authority for redressing the same and whether, the statutory authority or the Forum, constituted under the Act, is assigned the jurisdiction to adjudge the complaints/disputes, in a efficacious manner, the answer is in affirmative.
49. Thus, it could be seen that a outer time limit has also been prescribed in the regulations, as to the disposal of the complaints and the implementation of the orders, by the licencee. The remedy available to the petitioner cannot be said to be not efficacious. Therefore, after exhausting the alternative remedy available under the Act and the Regulations, a consumer can approach the High Court, for judicial review. The object and the purpose, for which, a forum has been created should not be allowed to be defeated, by entertaining writ petitions, directly, except, in exceptional circumstances.
50. When the Regulations have come into force from 10.06.2004 and that when every district is stated to have a Consumer Grievances Redressal Forum, presided over by a Superintending Engineer, Electricity Board and two other members, nothing prevented the petitioner from approaching the Consumer Grievance Redressal Forum. The decision relied on by Mr.G.Vasudevan, learned counsel for the respondent-Board would lend support to the contention that in respect of a dispute, over the determination of Current Consumption Charges, the petitioner cannot as a matter of right, approach this Court under Article 226 of the Constitution of India and that he can only approach the Forum, created for redressal of the complaints/disputes. In the light of the statutory provisions, this Court is of the view that a writ petition filed under Article 226 of the Constitution of India, for a Mandamus, is not maintainable and hence, it is liable to be dismissed.
51. Perusal of the Regulations for Consumer Grievance Redressal Forum and Electricity Ombudsman, 2004, does not indicate any provision for passing any interim order of stay, direction, etc. In a given case of disconnection, the user of the electricity supply, would put to hardship. A complaint or dispute is envisaged, against an order or proceedings or action of the competent authorities, under the Electricity Act and the Regulations framed thereunder. Though it is not captioned as an appeal, yet, in the case of disconnection or imposition of penalty or excess demand or in such other cases, entailing civil consequences or serious hardship, the Consumer Grievance Redressal Forum, has to consider the merits of each case and pass appropriate interim orders. Otherwise, in the case of disconnection or penal action, taken by the Board and the other authorities under the Electricity Act, the complainant has to wait till the disposal of the complaints/disputes, which may take sometime, though as per Regulation 7(7), the forum shall complete enquiry as expeditiously as possible and every endeavour shall be made to pass appropriate order on the complaint within a maximum period of 2 months from the date of receipt of complaint by the forum. On the aspect of granting interim orders, this Court deems it fit to consider the following decisions,
52. In Commissioner of Income-Tax v. Bansi Dhar reported in 1986 (1) SCC 523, the Supreme Court, at Paragraphs 40 to 42, held as follows:
"40. It has to be borne in mind that in answering questions or disposing of references either under section 66 of 1922 Act or section 256 of 1961 Act, the High Courts do not exercise any jurisdiction conferred upon them by the Code of Civil Procedure or the Charters or by the Acts establishing respective High Courts. In respect of certain matters jurisdictions exercised by the High Court, must be kept separate from the concept of inherent powers or incidental powers in exercising jurisdiction under section 66 of 1922 Act or 256 of 1961 Act. Section 66 of Income-Tax Act of 1922 or section 256 of Income-Tax Act of 1961 is a special jurisdiction of a limited nature conferred not by the Code of Civil Procedure or by the Charters or by the special Acts constituting such High Courts but by the special provisions of Income-Tax Act 1922 or 1961 for limited purpose of obtaining High Court's opinion on questions of law. In giving that opinion properly if any question of incidental or ancillary power arises such as giving an opportunity or restoring a reference dismissed without hearing or giving some additional time to file paper book, such powers inhered to the Jurisdiction conferred upon it. But such incidental powers can not be so construed as to confer the power of stay of recovery of taxes pending a reference which lie in the domain of an appellate authority. Therefore, the concept of granting stay in a reference ex debito justitiae does not arise. That concept might arise in case of the appellate authority exercising its power to grant stay where there is not express provision. Ex debito justitiae is to do justice between the parties.
41. Rendering advice on the question of law referred to the courts has nothing to do with the recovery of tax or granting stay in respect of the same.
42. Therefore, in our opinion it cannot be said that the High Court had inherent power or incidental power in the matter of a reference pending before it to grant stay of realisation or to grant injunction. That must remain within the jurisdiction of the appellate authority and pendency of a reference does not detract from that jurisdiction of the appellate authority. In our opinion, therefore, the High Court was in error in exercising its jurisdiction by passing an order for stay of realisation under section 151 of the Code of Civil Procedure in a pending reference. The High Court could have exercised its power if the appellate authority had not properly exercised its jurisdiction, not in reference jurisdiction but by virtue of its jurisdiction under article 226 or article 227 in appropriate cases. But that was not the case here."
53. In Lipton India Ltd., v. Assistant Commissioner (CT) reported in 1994 (95) STC 216, this Court, at Paragraphs 17 to 20, held as follows:
"17. It is not as if such a question never arose for consideration on prior occasions before superior courts of jurisdiction and the plain fact is such a question did come to be canvassed, on occasions more than one, and some of the precedents in that behalf may now be examined to solve the tangle posed in the issue in question.
18. The case in Burhanpur Tapti Mill Ltd. v. Board of Revenue, Madhya Pradesh [1955] 6 STC 670 (Nag) may be referred to first. In that case, the petitioners were assessees under the C.P. and Berar Sales Tax Act, 1947 (for short "the Act"). They were assessed to sales tax which was duly paid by them. The Commissioner of Sales Tax, however, reopened the assessment under Section 22B of the Act and remitted the case to the Regional Assistant Commissioner of Sales Tax, Amravati, for making a fresh assessment. Against the order of the Commissioner of Sales Tax, the petitioners appealed to the Board of Revenue, which is the Appellate Tribunal under Sub-section (3) of Section 22B. The petitioners made an application to the Board of Revenue to stay the proceedings before the Regional Assistant Commissioner of Sales Tax, but the application was rejected on the ground that there was no provision in the Act in regard to stay of proceedings. The aggrieved petitioners challenged the said order of the Board of Revenue before the High Court of Judicature at Nagpur in writ proceedings. Learned single Judge of that court while deciding that matter expressed thus (at pages 671-672) :
"3............'.Since an appeal is expressly provided in Sub-section (3) of Section 22B of the Sales Tax Act, it is implicit that the Board of Revenue can exercise all the powers which are necessary for the proper disposal of the appeal. The law on the subject is laid down in Maxwell on the Interpretation of Statutes, 10th Edition, on page 361 in the following terms :--
'Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio explicari non potuit.'
4. The order impugned reopens the assessment on certain grounds. The Board of Revenue is empowered to decide whether the principles of assessment set down by the Commissioner of Sales Tax are proper. If there was no scope for reopening the assessment, the resultant proceedings before the Regional Assistant Commissioner of Sales Tax would be an abuse of the process of the Court. It seems axiomatic that where the Legislature invests an Appellate Tribunal with powers to prevent an injustice, it impliedly empowers it to stay the proceedings which may result in causing further mischief. In such cases the refusal to stay the proceedings may make the appeal itself nugatory, if a reassessment is made in the meantime requiring the assessee to file another and costly appeal. A view of law which leads to such onerous results is prima facie untenable.
5. It is no doubt true that in the Code of Civil Procedure, there is a specific provision, namely, Section 151, relating to the inherent powers of courts. But that section does not create any new right and only enunciates the powers which are exercisable by courts for the ends of justice or to prevent the abuse of any legal process : Hukum Chand Boid v. Kamalnand Singh ILR 33 Cal 927, followed in Nand Kishore Singh v. Ram Golam Sahu, ILR 40 Cal 955. In Janki Das v. Sheo Prasad ILR 54 All. 344 and Asadali Chowdhury v. Mahamed Hossain Chowdhury ILR 43 Cal 986, it was held that the appellate court can exercise powers of stay even if order 41, Rule 5, Civil Procedure Code, is not in terms applicable. The principle underlying these decisions is that courts of law have got the power, apart from any express provision, to further the ends of justice and prevent harassment to the parties. What applies to the courts of law also applies to quasi-judicial Tribunals. Therefore, since the Board of Revenue has the power to adjudge the correctness of the impugned order, it has also the power to stay the proceedings in pursuance of that order."
19. Secondly, the case of State of Orissa v. Member, Sales Tax Tribunal [1971] 28 STC 652 (Orissa) may be adverted to. In that case, as against the orders of assessments, appeals had been preferred before the Commissioner of Sales Tax. The appeals were dismissed. Second appeals were preferred before the Sales Tax Tribunal. During the pendency of the second appeals, the Tribunal granted interim stay. Writ petition had been filed challenging the jurisdiction of the Tribunal to grant stay during the pendency of second appeals. The Orissa Sales Tax Act, 1947 (Act 14 of 1947) underwent amendments on occasions more than one, initially in the year 1955, then in the year 1957 and finally in the year 1968. Initially there was no provision conferring power on the Tribunal to grant stay. However, the provision to grant power, which had been introduced by the 1955 Act, was, however, not brought into force ; and later such a provision was, in fact, omitted by the 1957 Act. After the passing of the 1968 Act, the Commissioner alone was competent to grant stay, during the pendency of the second appeal and the Tribunal, has no such power. In such a situation, the point that arose for consideration was whether the Tribunal has the power to grant the stay.
(a) In a bid to find out an answer to such a question, their Lordships of the Division Bench of the Orissa High Court referred to the case of the Income-Tax Officer, Cannanore v. M.K.Mahammed [1969] 71 ITR 815 (SC), as that case threw light directly on the question in issue--though it arose out of the Income-tax Act, 1961.
(i) Section 254(1) of that Act deals with orders of the Appellate Tribunal. Sub-section (1.) thereof lays down that the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. Indisputably powers have not been expressly conferred upon the Appellate Tribunal to stay proceedings relating to the recovery of penalty or tax due from an assessee. Under Section 220(6), power of stay by treating the assessee, as not being in default during the pendency of an appeal has been given to the Income-tax Officer only when an appeal has been presented under Section 246 to the Appellate Assistant Commissioner. Thus, there is express provision in the Income-tax Act for stay of proceedings by the Income-tax Officer relating to recovery of penalty and tax when first appeal is pending, but there is no corresponding express provision to grant stay when the second appeal is pending before the Appellate Tribunal.
(ii) Despite the absence of such express provision for grant of stay, their Lordships held that the Tribunal had implied powers to grant stay. The logic through which such a conclusion was reached is based on the basic principle to be found in Maxwell on Interpretation of Statutes, Eleventh Edition, at page 350. The statement is that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means ; as are essentially necessary to its execution".
(iii) Their Lordships applied the above principle to the wide, powers exercised by the Tribunal under Section 254(1), They concluded thus :
"If the Income-tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is entirely helpless in the matter of stay of recovery, the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside. It is difficult to conceive that the Legislature should have left the entire matter to the administrative authorities to make such orders as they choose to pass in exercise of unfettered discretion. The assessee, as has been pointed out before, has no right to even move an application when an appeal is pending before the Appellate Tribunal under Section 220(6) and it is only at the earlier stage of appeal before the Appellate Assistant Commissioner that the statute provides for such a matter being dealt with by the Income-tax Officer."
(iv) Their Lordships' ultimate conclusion was summed up in paragraph 8 as follows :
"In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power, of doing all such acts, or employing such mean's, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory."
(b) After penning down the ultimate conclusion of their Lordships of the Supreme Court, the Division Bench of the Orissa High Court deduced the following two propositions :
(i) Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its execution. This implied power is incidental and ancillary to the exercise of the appellate jurisdiction.
(ii) If, however, the statute confers express power on any authority to deal with a particular contingency, then by necessary implication that particular power is to be taken as excluded from the ambit of implied power. In other words, the theory of implied powers cannot be invoked when express jurisdiction has been conferred on any authority to exercise a particular power.
20. Coming to the facts of the case on hand, as already adverted to, stay of giving effect to the remand order had alone been prayed for on all those stay applications and nothing more. Such a relief is capable of being granted only by the invocation of the implied or incidental or ancillary power, implicit in the exercise of the appellate jurisdiction conferred on the Tribunal, if the facts and circumstances of the case so warrant, and to say that the Tribunal has no such power, as had been done here, cannot at all be reflecting the reality of the situation, in the light of the law, as laid down by the superior courts cited supra. The resultant position would be that the composite order impugned has to be necessarily quashed and the same is accordingly quashed." (emphasis supplied)
54. As stated supra, when option was given to the learned counsel for the petitioner to approach the Consumer Grievance Redressal Forum, he insisted for judicial review, on the ground that the licencee had not notified the address and other particulars of the Forum in the Media. Therefore, in the abovesaid circumstances, this Court deems it fit to consider, as to whether, the Electricity Board has assessed the Current Consumption Charges, in accordance with the statutory provisions and the Regulations framed by the Tamil Nadu Electricity Supply Code, 2004.
55. Judicial review under Article 226 of the Constitution of India, can be exercised on the grounds of perversity, extraneous and irrelevant considerations, mala fides and other infirmities. [Organo Chemical Industries v. Union of India [1979 (4) SCC 573], Babubhai & Co., v. State of Gujarat [1985 (2) SCC 732] and Workmen v. Meenakshi Mills Ltd., [1992 (3) SCC 336]].
56. In Government of A.P., v. Mohd. Narsullah Khan reported in 2006 (2) SCC 373, at Paragraph 11, the Supreme Court held that it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority.
57. In Bachan Singh v. Union of India reported in 2008 (9) SCC 161, the Supreme Court reiterated that judicial review under Article 226 of the Constitution of India is not directed against the decision, but is confined to the decision-making process. Judicial review is not an appeal, but a review of the manner, in which, the decision is made. The Court sits in judgment only on the correctness of the decision-making process and not on the correctness of the decision itself.
58. As rightly contended by Mr.G.Vasudevan, learned counsel for the Electricity Board, the petitioner has not challenged the demand of the Current Consumption Charges, to the tune of Rs.1,62,870/-, for the period from May' 2013 to July' 2013 before the Forum. Whereas, the petitioner has sought for a Mandamus, to assess the Current Consumption Charges, for the service connection No.181-32-18, for the period between 20.03.2013 to May' 2013, as contemplated under Regulation 11(2) of the Tamil Nadu Electricity Supply Code, 2004. The Current Consumption Reading recorded in the meter from September' 2011 to July' 2013, is as follows:
Month and Year Consumption recorded in Units September' 2011 3630 November' 2011 3730 January' 2012 3560 March' 2012 3240 May' 2012 1050 July' 2012 370 September' 2012 430 November' 2012 400 January' 2013 380 March' 2013 380 May' 2013 390 (Meter replaced on 05.06.2013) July' 2013 (i.e., from 05.06.2013 to 18.07.2013) 1570
59. As rightly pointed out by the Assistant Executive Engineer (O&M), Usman Road, CEDC Central, TANGEDCO, T.N.E.B. Ltd., T.Nagar, Chennai-17, that from September' 2011 to March' 2012, the Current Consumption Charges ranges from 3630 to 3240 Units. But then, ie., from May' 2012, there has been a sharp decrease in the Current Consumption Charges and in the subsequent months, there is a clear variation in Current Consumption Charges. The Current Consumption Charges, which were between 3240 and 3620 Units, has gone down upto 380 Units. The assessment of billing in cases, where there is no meter or meter is defective, has been done, as per Regulation 11 of the Tamil Nadu Electricity Supply Code, 2004.
60. In view of the gross variation from May' 2012, the respondents have taken into consideration, the average Current Consumption energy, not recorded during the defective period, but based on the reading recorded in the meter, during the preceeding four months (two bi-monthly assessments) of January' 2012 and March' 2012, as follows:
January' 2012 = 3,560 + March' 2012 = 3,240
---------
6,800/2 =3400 Units (for a bi-monthly)
---------
Accordingly, the following revision has been made for the period from May' 2012 to July' 2013, amount to Rs.1,62,870/-, during which, the meter was defective.
Assessment Month & Year Average Units Arrived Total CC Charges Rs.
Already Billed Units Already Billed Amount Rs.
Amount to be collected Rs.
05/2012 3400 25,470 1050 7850 17,620 07/2012 3400 25,470 370 3200 22,270 09/2012 3400 25,470 430 3641 21,829 11/2012 3400 25,470 400 3420 22,050 01/2013 3400 25,470 380 3273 22,197 03/2013 3400 25,470 380 3273 22,197 05/2013 3400 25,470 390 3420 22,050 07/2013 3400 25,470 1678 12813 12,657 Total 1,62,870
61. As per Regulation 11 of the Supply Code, 2004, assessment has to be made on the basis of any consecutive four months period during the preceding twelve months when the conditions of working were similar to those in the period covered by the billing. Thus, as rightly contended by the respondents, the petitioner is seeking to assess the average of the electricity supplied during the period when the meter was defective, instead of the reading, recorded during the consecutive four months period, during the preceding twelve months, when the conditions of working were similar to those in the period covered by the billing. The contention of the petitioner to the contra, cannot be accepted, in the light of the statutory provisions, stated supra.
62. In the light of the principles of law, as regards, exercise of judicial review, by the High Court, under Article 226 of the Constitution of India, there is no manifest illegality in the decision-making process, in assessing the Current Consumption Charges, for the period between May' 2012 to July' 2013, nor the decision can be said to have suffered from any arbitrariness, perversity or mala fides, warranting interference. There is no breach of law or any constitutional provision, as alleged by the petitioner. The decision relied on by the learned counsel for the petitioner is inapplicable to the facts of this case. On the facts and circumstances of the case and in the light of the provisions, the writ petition, is not maintainable, without approaching the Consumer Grievance Redressal Forum. The aspect relating to disconnection of supply is also a matter to be adjudicated before the Consumer Grievance Redressal Forum. As rightly pointed out by the learned counsel for the respondents, the petitioner has not challenged the same.
63. In the result, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.
skm To
1. The Secretary, Tamil Nadu Electricity Board, Annasalai, Chennai-2.
2. The Assistant Engineer, Tamil Nadu Electricity Board, T.Nagar, Chennai-17.