w w w . L a w y e r S e r v i c e s . i n



Kisan Cold Storage & Ice Factory Thru Partner 6114(M/S)2012 v/s Paschimanchal Vidyut Vitran Nigam Ltd. & Others


Company & Directors' Information:- R J COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049659

Company & Directors' Information:- S. D. COLD STORAGE PRIVATE LIMITED [Active] CIN = U15132UP1995PTC018791

Company & Directors' Information:- H M ICE AND STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC101275

Company & Directors' Information:- D G COLD STORAGE PRIVATE LIMITED [Active] CIN = U45209WB2001PTC092809

Company & Directors' Information:- N P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15549WB1997PTC085229

Company & Directors' Information:- P G ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U15435UP2015PTC070434

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC041010

Company & Directors' Information:- G C G COLD STORAGE PRIVATE LIMITED [Active] CIN = U01400MH2012PTC235712

Company & Directors' Information:- NIGAM COLD STORAGE PVT LTD [Active] CIN = U76028WB1995PTC076028

Company & Directors' Information:- L P COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC021864

Company & Directors' Information:- P D COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2010PTC039698

Company & Directors' Information:- N R S COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031524

Company & Directors' Information:- S M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC040843

Company & Directors' Information:- A TO Z COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2010PTC040956

Company & Directors' Information:- A-1 COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900TG2015PTC100777

Company & Directors' Information:- D N COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1989PTC010708

Company & Directors' Information:- P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15139UP2001PTC026373

Company & Directors' Information:- N L COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022ML2001PTC006536

Company & Directors' Information:- K H I COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC100373

Company & Directors' Information:- K J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1996PTC018274

Company & Directors' Information:- S J ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC022564

Company & Directors' Information:- V K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022RJ1998PTC014964

Company & Directors' Information:- R M COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024532

Company & Directors' Information:- S L P COLD STORAGE PRIVATE LIMITED [Converted to LLP] CIN = U00063KA1997PTC022544

Company & Directors' Information:- M D COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP2001PTC025987

Company & Directors' Information:- S N COLD STORAGE PVT LTD [Active] CIN = U15132WB1977PTC031040

Company & Directors' Information:- A K COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024374

Company & Directors' Information:- G. T. COLD STORAGE PRIVATE LIMITED [Active] CIN = U70101UP1999PTC024239

Company & Directors' Information:- S R ICE AND COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1988PTC030645

Company & Directors' Information:- G L ICE & COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U15122UP2012PTC052836

Company & Directors' Information:- S. K. ICE FACTORY PRIVATE LIMITED [Strike Off] CIN = U01134UP1998PTC023094

Company & Directors' Information:- G D COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1997PTC084601

Company & Directors' Information:- J S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020250

Company & Directors' Information:- B C COLD STORAGE PRIVATE LIMITED [Active] CIN = U45302PB1997PTC019355

Company & Directors' Information:- G S P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069618

Company & Directors' Information:- R R COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022TZ1995PTC006478

Company & Directors' Information:- G C ICE FACTORY AND COLD STORAGE PVT LTD [Active] CIN = U63022PB1991PTC011202

Company & Directors' Information:- H J COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1999PTC089452

Company & Directors' Information:- J M C ICE AND COLD STORAGE PVT LTD [Strike Off] CIN = U63020MH1980PTC023218

Company & Directors' Information:- B K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020070

Company & Directors' Information:- I T FACTORY (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72200DL2002PTC114798

Company & Directors' Information:- J T S COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2011PTC044733

Company & Directors' Information:- COLD STORAGE CORPORATION OF INDIA LIMITED [Active] CIN = U25193UP1946PLC001472

Company & Directors' Information:- INDIA COLD STORAGE AND ICE COMPANY LIMITED [Strike Off] CIN = U15133UP1946PLC001591

Company & Directors' Information:- M K R S S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63090WB2020PTC241530

Company & Directors' Information:- R G P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74999KA2006PTC039844

Company & Directors' Information:- ICE INDIA PVT LTD [Strike Off] CIN = U72400ML1996PTC004753

Company & Directors' Information:- J P G A COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB2005PTC028831

Company & Directors' Information:- R B COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022BR1979PTC001418

Company & Directors' Information:- N J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63020DL2010PTC207001

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Strike Off] CIN = U63022OR1985PTC001574

Company & Directors' Information:- G. R. KISAN COLD STORAGE PRIVATE LIMITED [Active] CIN = U01100UP2016PTC086213

Company & Directors' Information:- S V S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U74999AP1999PTC033134

Company & Directors' Information:- R V COLD STORAGE PVT LTD [Strike Off] CIN = U15133UP1988PTC010122

Company & Directors' Information:- V L S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63010TG2011PTC072072

Company & Directors' Information:- M K V ICE AND COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031508

Company & Directors' Information:- ICE AND COLD STORAGE COMPANY PRIVATE LIMITED [Strike Off] CIN = U15133UP1949PTC002125

Company & Directors' Information:- J AND K VIDYUT PRIVATE LIMITED [Strike Off] CIN = U40101JK2001PTC002185

Company & Directors' Information:- M Y COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2012PTC053516

Company & Directors' Information:- K T COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022NL2001PTC006616

Company & Directors' Information:- M M COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63090TG2013PTC090068

Company & Directors' Information:- H. R. COLD STORAGE PRIVATE LIMITED [Active] CIN = U63030GJ2016PTC092718

Company & Directors' Information:- A K STORAGE PRIVATE LIMITED [Strike Off] CIN = U99999MH1978PTC020884

Company & Directors' Information:- COLD STORAGE (INDIA) LTD. [Dissolved] CIN = U99999MH1922PTC000998

Company & Directors' Information:- INDIA COLD STORAGE CO. LTD. [Not available for efiling] CIN = U99999MH1948PLC006673

Company & Directors' Information:- KISAN LIMITED [Dissolved] CIN = U99999MH1950PLC010492

    Special Appeal No. 20 of 2016

    Decided On, 03 April 2019

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE VIKRAM NATH
    By, THE HONOURABLE MR. JUSTICE RAJESH SINGH CHAUHAN & THE HONOURABLE MR. JUSTICE ABDUL MOIN

    For the Appellant: Tanveer Ahmad Siddiqui, Bidhan Chandra Rai, Advocates. For the Respondent: Amarjeet Singh Rakhra, Aprajita Bansal, Nandita Bharti, Sanjai Singh, Advocates.



Judgment Text

Abdul Moin, J.

1. We have heard Sri B.C. Rai, learned counsel for the appellant, Sri J.N. Mathur, Senior Advocate assisted by Sri Amarjeet Singh Rakhra and Ms. Aprajita Bansal, learned counsel representing respondent Nos.1 & 2, Sri Sanjay Singh, learned counsel representing respondent No.5 and Sri S.B. Pandey, learned Assistant Solicitor General of India along with Ms. Nandita Bharati, Advocate representing the Union of India- respondent No.6.

2. The present reference before the Full Bench has been occasioned by a referring order of a Division Bench dated 20.01.2016. The Division Bench upon noticing that there was a conflict between the decisions of the Division Bench in the case of M/s Jindal Poly Films Limited vs. U.P. Electricity Regulatory Commission, Lucknow and others in Writ Petition No.2456 (MB) of 2011 decided on 15.04.2011 and the judgment of Single Judge in the case of Dakshinanchal Vidyut Vitran Nigam Limited vs. Vidyut Lokpal Lucknow and others in Writ Petition No.4237 (MS) of 2008 as well as another judgment by Single Judge in the case of Pachimanchal Vidyut Vitran Nigam Limited vs. Electricity Ombudsman and others in Writ Petition No.6411 (MS) of 2012 and being of the view that the judgment of the Division Bench in the case of M/s Jindal Poly Films Limited requires reconsideration keeping in view the provisions of Section 42 (5) (6) and (7) of the Electricity Act, 2003 (hereinafter referred to as 'the Act, 2003') has referred the following questions of law for decision:-

"(I) In view of the provisions of sub-sections (5), (6) and (7) of Section 42 of the Electricity Act, 2003, under which a consumer who is aggrieved by non-redressal of his grievance is permitted to make a representation before the Ombudsman and the Ombudsman is required to settle the grievance of the consumer, whether Regulation 8.1(i) of the Uttar Pradesh Electricity Regulatory Commission (Consumer Grievance Redressal Forum & Electricity Ombudsman) Regulations, 2007 is ultra vires the provisions of the Act;

(II) Whether the judgment of the Division Bench in M/s Jindal Poly Films Ltd. vs. U.P. Electricity Regulatory Commission, Lucknow decided on 15 April 2011 can be regarded as laying down the correct principle of law."

3. While dealing with the questions which have been framed for consideration by the Full Bench, it would be convenient to reproduce the relevant provisions of the Electricity Act, 2003 along with the Regulations of the Uttar Pradesh Electricity Regulatory Commission (Consumer Grievance Redressal Forum & Electricity Ombudsman) Regulations, 2007 (hereinafter referred to as 'the Regulations, 2007') which are set out below:-

4. The "Area of Supply" has been defined under Section 2(3) of the Act, 2003, as under:-

"area of supply" means the area within which a Distribution Licensee is authorised by his licence to supply electricity;

5. The "Consumer" under the provisions of the Act, 2003 has been defined in Section 2(15) of the Act, 2003, as under:-

"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;

6. A "Distribution Licensee" has been defined under Section 2(17) of the Act, 2003, as under:-

"Distribution Licensee" means a Licensee authorised to operate and maintain a distribution system for supplying electricity to the consumers in his area of supply;

7. A "Licensee" has been defined under Section 2 (39) of the Act, 2003, as under:-

"Licensee" means a person who has been granted a licence under section 14;

8. 'Rules" have been defined under Section 2 (59) of the Act, 2003 as "rules" means rules made under the Act.

9. The "State Commission" has been defined under Section 2(64) of the Act, 2003, as under:-

"State Commission" means the State Electricity Regulatory Commission constituted under sub-section (1) of section 82 and includes a Joint Commission constituted under sub-section (1) of section 83;

10. Section 42 of the Act, 2003 provides as follows:-

"Section 42. (Duties of Distribution Licensee and open access): --- (1) It shall be the duty of a Distribution Licensee to develop and maintain an efficient, co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.

(2) The State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling, it shall have due regard to all relevant factors including such cross subsidies, and other operational constraints:

Provided that [such open access shall be allowed on payment of a surcharge] in addition to the charges for wheeling as may be determined by the State Commission:

Provided further that such surcharge shall be utilised to meet the requirements of current level of cross subsidy within the area of supply of the Distribution Licensee:

Provided also that such surcharge and cross subsidies shall be progressively reduced in the manner as may be specified by the State Commission: Provided also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use:

[Provided also that the State Commission shall, not later than five years from the date of commencement of the Electricity (Amendment) Act, 2003, by regulations, provide such open access to all consumers who require a supply of electricity where the maximum power to be made available at any time exceeds one megawatt.]

(3) Where any person, whose premises are situated within the area of supply of a Distribution Licensee, (not being a local authority engaged in the business of distribution of electricity before the appointed date) requires a supply of electricity from a generating company or any Licensee other than such Distribution Licensee, such person may, by notice, require the Distribution Licensee for wheeling such electricity in accordance with regulations made by the State Commission and the duties of the Distribution Licensee with respect to such supply shall be of a common carrier providing non-discriminatory open access.

(4) Where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the Distribution Licensee of his area of supply, such consumer shall be liable to pay an additional surcharge on the charges of wheeling, as may be specified by the State Commission, to meet the fixed cost of such Distribution Licensee arising out of his obligation to supply.

(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.

(8) The provisions of sub-sections (5),(6) and (7) shall be without prejudice to right which the consumer may have apart from the rights conferred upon him by those sub-sections."

11. From perusal of Section 42 of the Act, 2003 along with the definitions as set forth above, it clearly comes out that it shall be the duty of the Distribution Licensee to develop and maintain an efficient, coordinated and economical distribution system in his area of supply and to supply the electricity in accordance with the provisions contained in the Act, 2003. As per sub-section (5) of Section 42 of the Act, 2003, every Distribution Licensee shall, within six months from the appointed date or date of grant of licence, establish a Forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission. Sub-section (6) of Section 42 of the Act, 2003, provides that 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. As per sub-section (7) of Section 42 of the Act, 2003, the Ombudsman shall settle the grievance of the consumer. Thus, it clearly comes out that the Distribution Licensee is to establish a Forum for redressal of grievances of the consumer who if aggrieved by non-redressal of his grievance may make a representation to the Ombudsman for the redressal of his grievance. The Forum is to be established by the Distribution Licensee in accordance with the guidelines specified by the State Commission.

12. Section 181 of Act, 2003, prescribes the power of the State Commission to make Regulations. For the sake of convenience, Section 181 of the Act, 2003, is reproduced below:-

"Section 181. (Powers of State Commissions to make regulations): --- (1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely:-

(a) period to be specified under the first proviso of section 14;

(b) the form and the manner of application under sub-section (1) of section 15;

(c) the manner and particulars of application for licence to be published under sub-section (2) of section 15;

(d) the conditions of licence section 16;

(e) the manner and particulars of notice under clause(a) of subsection (2) of section 18;

(f) publication of the alterations or amendments to be made in the licence under clause (c) of sub-section (2) of section 18;

(g) levy and collection of fees and charges from generating companies or Licensees under sub-section (3) of section 32;

(h) rates, charges and the term and conditions in respect of intervening transmission facilities under proviso to section 36;

(i) payment of the transmission charges and a surcharge under subclause (ii) of clause(d) of sub-section (2) of section 39;

(j) reduction 1[***] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 39;

(k) manner and utilisation of payment and surcharge under the fourth proviso to sub-clause(ii) of clause (d) of sub-section (2) of section 39;

(l) payment of the transmission charges and a surcharge under sub-clause (ii) of clause (c) of section 40;

(m) reduction 1[***] of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (c) of section 40;

(n) the manner of payment of surcharge under the fourth proviso to sub-clause (ii) of clause (c) of section 40;

(o) proportion of revenues from other business to be utilised for reducing the transmission and wheeling charges under proviso to section 41;

(p) reduction 2[***] of surcharge and cross-subsidies under the third proviso to sub-section (2) of section 42;

(q) payment of additional charges on charges of wheeling under subsection (4) of section 42;

(r) guidelines under sub-section (5) of section 42;

(s) the time and manner for settlement of grievances under sub-section (7) of section 42;

(t) the period to be specified by the State Commission for the purposes specified under sub-section (1) of section 43;

(u) methods and principles by which charges for electricity shall be fixed under sub-section (2) of section 45;

(v) reasonable security payable to the Distribution Licensee under sub-section (1) of section 47;

(w) payment of interest on security under sub-section (4) of section 47;

(x) electricity supply code under section 50;

(y) the proportion of revenues from other business to be utilised for reducing wheeling charges under proviso to section 51;

(z) duties of electricity trader under sub-section (2) of section 52;

(za) standards of performance of a Licensee or a class of Licensees under sub-section (1) of section 57;

(zb) the period within which information to be furnished by the Licensee under sub-section (1) of section 59;

1[(zc) the manner of reduction of cross-subsidies under clause (g) of section 61;]

(zd) the terms and conditions for the determination of tariff under section 61;

(ze) details to be furnished by Licensee or generating company under sub-section (2) of section 62;

(zf) the methodologies and procedures for calculating the expected revenue from tariff and charges under sub-section (5) of section 62;

(zg) the manner of making an application before the State Commission and the

fee payable therefor under sub-section (1) of section 64;

(zh) issue of tariff order with modifications or conditions under subsection(3) of section 64;

(zi) the manner by which development of market in power including trading specified under section 66;

(zj) the powers and duties of the Secretary of the State Commission under sub-section (1) of section 91;

(zk) the terms and conditions of service of the secretary, officers and other employees of the State Commission under sub-section (2) of section 91;

(zl) rules of procedure for transaction of business under sub-section (1) of section 92;

(zm) minimum information to be maintained by a Licensee or the generating company and the manner of such information to be maintained under sub-section (8) of section 128;

(zn) the manner of service and publication of notice under section 130;

(zo) the form of preferring the appeal and the manner in which such form shall be verified and the fee for preferring the appeal under sub-section (1) of section 127;

(zp) any other matter which is to be, or may be, specified.

(3) All regulations made by the State Commission under this Act shall be subject to the condition of previous publication."

13. From the aforesaid, it comes out that as per sub-section (1) of Section 181, the State Commission may make Regulations consistent with Act, 2003 and the Rules to carry out the provisions of the Act, 2003.

14. So far as the rules as referred to in Section 181 of the Act, 2003, are concerned (keeping in view the definition of "rules" under Section 2(59) of the Act, 2003, the rules are the Electricity Rules, 2005 (hereinafter referred to as 'the Rules, 2005'), which, so far as the consumer redressal Forum and Ombudsman are concerned, is governed by Rule 7 of the Rules, 2005, which for the sake of convenience, is reproduced below:-

"Consumer Redressal Forum and Ombudsman.- (1) The Distribution Licensee shall establish a Forum for redressal of grievances of consumers under sub-section (5) of section 42 which shall consist of officers of the Licensee.

(2) The Ombudsman to be appointed or designated by the State Commission under sub-section (6) of section 42 of the Act shall be such person as the State Commission may decide from time to time.

(3) The Ombudsman shall consider the representations of the consumers consistent with the provisions of the Act, the Rules and Regulations made hereunder or general orders or directions given by the Appropriate Government or the Appropriate Commission in this regard before settling their grievances.

(4) (a) The Ombudsman shall prepare a report on a six monthly basis giving details of the nature of the grievances of the consumer dealt by the ombudsman, the response of the Licensees in the redressal of the grievances and the opinion of the ombudsman on the Licensee's compliance of the standards of performance as specified by the Commission under section 57 of the Act during the preceding six months.

(b) The report under sub-clause (a) above shall be forwarded to the State Commission and the State Government within 45 days after the end of the relevant period of six months."

15. A perusal of the sub-rule (1) of Rule 7 of the Rules, 2005, categorically provides that the Distribution Licensee shall establish a Forum for redressal of grievances of consumers under sub-section (5) of section 42 which shall consist of officers of the Licensee.

16. From a perusal of the aforesaid sections and the rules, it is clearly apparent that the entire thrust of Section 42 of the Act, 2003 and Rule 7 of the Rules, 2005, is on the establishment of a Forum for redressal of grievances of the consumers which, as per definition clause of Section 2(15) of the Act, 2003, means any person who is supplied electricity for his own use.

17. The U.P. Electricity Regulatory Commission i.e. the State Commission while exercising powers conferred by Section 181 of the Act, 2003 read with sub-section (5) to (8) of Section 42 of the Act, 2003 made the Regulations namely the Regulations, 2007. Regulation 1.4 of the Regulations, 2007, clearly specifies that the Regulations shall be read with the relevant provisions of the U.P. Electricity Reforms Act, 1999 (for short, 'the Act, 1999'), to the extent they are not inconsistent with the provisions of the Electricity Act, 2003. For the sake of convenience, Regulation 1.4 of the Regulations, 2007, is reproduced as under:-

"These Regulations shall be read with the relevant provisions of the U.P. Electricity Reforms Act, 1999 to the extent they are not inconsistent with the provisions of the Electricity Act, 2003."

18. The definition of a "Complainant" as provided in Regulation 2.1 (d) of the Regulations, 2007, reads as under:-

""Complainant" means -

(i) a consumer or more than one consumer having shared interest in the grievance or authorized representative of such consumer(s); or

(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) a person who has completed all procedural requirement for obtaining a connection but the sanction has not been accorded by the Distribution Licensee within the time frame specified by the Commission in the Electricity Supply Code."

19. A "complaint" has been defined in Regulation 2.1 (e) of the Regulations, 2007, as follows:-

"Complaint" means any allegation in writing made by a complainant or his authorized representative regarding any consumer grievance arising in relation to-

(i) any defect or deficiency in electricity supply or service by a Licensee, including non-conformity with the applicable performance standards specified in the Electricity Supply Code;

(ii) billing including charging for the electricity supplied or services mentioned in the complaint, a price in excess of the price fixed by the Commission in tariff order or otherwise;

(iii) offering electricity services, to the public which will be hazardous to life and safety when availed, in contravention of the provisions of the Act, rules made there under, Electricity Supply Code or any other law.

(iv) violation of any provision of the Act, the rules or regulations made there under or license requiring the Licensee to display the information in regard to the manner or effect of use of the electrical services.

(v) breach of any obligation, made under the Act, the Electricity Supply Code, tariff order, provisions relating to safety and electricity supply, meter, disconnection, realization of dues, by the Licensee which adversely affects any consumer or which the Forum may consider appropriate to be treated as a complaint.

20. The "Consumer" has been defined in Regulation 2.1(f) of the Regulations, 2007, as under:-

""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 the Act or any other law for 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, Government or any other person, as the case may be."

21. The "Grievance" has been defined in Regulation 2.1 (n) of the Regulations, 2007, as under:-

""grievance" in relation to the consumer means failure of the Distribution Licensee to provide the specified or agreed electricity service, giving rise to a complaint."

22. From perusal of Regulation 1.4 of the Regulations, 2007, it clearly comes out that the Regulations, 2007, have to be read with the relevant provisions of the Act, 1999, to the extent that they are not inconsistent with the provisions of the Act, 2003, meaning thereby that it is Act, 2003, which is to prevail in case of any inconsistency.

23. Likewise, a complainant before the Forum would mean "consumer" moving a "complaint" for any consumer 'grievance' and a 'consumer' would be a person who is supplied electricity for his own use.

24. The other relevant provisions of Regulations, 2007, would be Regulation 5 pertaining to the jurisdiction of the Forum, Regulation 6 pertaining to the procedure before the Forum and Regulation 8 dealing with the representation before Electricity Ombudsman. For the sake of convenience, Regulations 5, 6 & 8 of the Regulations, 2007, are reproduced as under:-

"5.0 Jurisdiction of the Forum-

5.1 The Forum shall not entertain a complaint, if it pertains to matters mentioned in Section 126,127, 128,135 to 139,143,152 and 161 of the Electricity Act,03.

5.2 The Forum shall have the jurisdiction to take up complaints, except those under Regulation 5.1, on an application before it or suo-moto if it considers appropriate in the interest of justice.

5.3 The Forum shall not entertain a complaint if it pertains to the same subject matter for which any proceedings before any court, authority or any other Forum is pending or a decree, award or a final order has already been passed by any competent court, authority or Forum.

6.0 Procedure before the Forum-

6.1 The designated staff of the Forum shall -

(i) receive Complaints and issue acknowledgement;

(ii) maintain records;

(iii) post the matter/complaint for hearing as per direction of the Forum;

(iv) function as decided by the Forum.

6.2 Every complaint to the Forum must be submitted in writing and shall contain the following particulars;

(i) Name of the individual or the organization, postal address, service connection number, tariff category, telephone number, fax number and the E-mail address (if any) of the complainant;

(ii) Name of the Distribution Licensee and its office to which complaint pertains;

(iii) Full facts of the matter supported by self-attested copies of relevant documents;

(iv) the relief prayed for ;

(v) a statement that the matter is not pending before any court, authority or Forum;

(vi) a copy of response, if any, or order of the Licensee; and

(vii) any other matter considered relevant.

6.3 Complaint shall be accompanied by fees of Rs. 50/-through Indian postal order or demand draft or banker's cheque payable to Forum or any other instrument specified by the Forum.

6.4 The Forum shall determine the admissibility of the Complaint not later than seven working days from the date of receipt of the complaint. No complaint shall be rejected unless an opportunity of hearing is provided to the complainant except matters related to Regulation-5.1.

6.5 After admission, the Forum shall proceed to adjudicate upon the complaint in the manner provided in these Regulations.

6.6 The Forum shall cause a copy of the Complaint served on the concerned Distribution Licensee directing it to submit, in writing, its reply with a copy of such reply directly to the complainant within two weeks or such extended period, not exceeding three weeks, as may be granted by the Forum. The complainant shall file a counter reply, if any, to the reply of the Distribution Licensee within next one week with a copy to such Licensee.

6.7 If the Distribution Licensee fails to respond within the time given by the Forum or fails to appear before the Forum through an authorized representative, the Forum may proceed to hear and dispose of the matter ex-parte on the basis of the documents and any other evidence on record or pass such order as may be considered proper in the interest of justice.

6.8 If the Complainant does not appear on the date of hearing before the Forum, the Forum may dispose it of on the basis of the documents on record or pass such order as may be considered proper in the interest of justice.

6.9 (i) Every Complaint shall be heard as expeditiously as possible. The Forum shall adjudicate upon a Complaint by a speaking order at the earliest but preferably within three months from the date of receipt of complaint by the Forum.

(ii) In the event of Complaint being not disposed of within the period, the Forum shall record in writing reasons for the same. In such cases, the complainant may also approach the Ombudsman.

6.10 (i)The Forum may pass such interim orders, as it may consider necessary, pending final disposal of the complaint:

Provided that, save in exceptional circumstances, the interim relief shall not be allowed for a period of more than three months;

Provided further that in case of dispute in regard to bill, the interim relief shall not be granted unless the complainant deposits with the authority /office/officer, with whom the amount has to be deposited, an amount at the following rates or at such rates as may be revised by the Commission by an Order:

(a) Rs.1000 per KW for sanctioned loads upto 5 KW,

(b) Rs.5000/= plus Rs.2000/= per KW for each additional KW of sanctioned load above 5 KW to 25 KW, and

(c) Rs. 45000/= plus Rs.2500 per KW for each additional KW of sanctioned load above 25 KW; or an amount to the extent of fifty percent of the impugned demand, whichever is less;

Provided also that the application seeking interim relief shall be disposed of within three working days after receipt of the complaint.

(ii) the supply of the consumer shall not be disconnected and, if disconnected, shall be reconnected within 24 hours if he has deposited the amount directed by the Forum.

6.11 The Forum shall not grant more than one adjournment unless sufficient cause is shown and the reasons for grant of adjournment shall be recorded in writing by the Forum. In such case, the party seeking adjournment shall pay other party a sum of Rs.100/- as compensation for the hardship caused due to adjournment of the case.

8.0 Representation before Electricity Ombudsman

8.1 (i) Any consumer aggrieved by the order made by the Forum or where the Forum has failed to redress the grievance within the specified period or Distribution Licensee is aggrieved by the Order of the Forum, may prefer representation to the ''Electricity Ombudsman'.

(ii)The representation may be made by the consumer or by his authorized representative or by the Distribution Licensee within 30 days of the order.

(iii)The representation shall be in writing, signed by the consumer or his authorized representative or, as the case may be, by the authorized officer of the Distribution Licensee, shall be accompanied by the copy of the order of the Forum, where an order has been passed, and shall state-

(a) Name and address of the consumer,

(b) Name and address the Distribution Licensee,

(c) Name and address of the Forum,

(d) Facts giving rise to representation,

(e) Relief sought.

(f) Any other relevant fact.

8.2 No representation shall lie to Electricity Ombudsman unless-

(a) the Consumer has made a written representation to the Forum in prescribed manner and the Forum has either rejected the representation or has failed to dispose it of within specified time;

(b) the consumer or the Distribution Licensee is aggrieved by the decision of the Forum;

(c) the representation is in respect of the matter, which has not been already settled by the Electricity Ombudsman or by any Court, Tribunal or any other competent authority;

(d) the representation relates to a matter which is not pending in any Court, Tribunal, Arbitrator or any other competent authority.

8.3 ''Electricity Ombudsman' may, for reason to be recorded, entertain a representation after the expiry of the specified period, if it is satisfied that there was sufficient cause for not filing the same within that period.

8.4 ''Electricity Ombudsman' shall not entertain a representation from any consumer, who is required to pay an amount to any authority /office/officer of the concerned Distribution Licensee as specified by the Forum in the final order, until the complainant has deposited, in compliance with such order of the Forum, thirty three percent of such amount inclusive of any amount already paid to such authority /office/officer in pursuance to an interim order of the Forum, if any."

25. As per Regulation 5.1 of the Regulations, 2007, the Forum is not to entertain a complaint if it pertains to a matter mentioned in Sections 126, 127, 128, 135, to 139, 143, 152 and 161 of the Act, 2003.

26. A complaint is to be made before the Forum under the provisions of Regulation 5.2 of the Regulations, 2007, and the Forum, as per Regulation 6.5 of the Regulations, 2007, after admission, would proceed to adjudicate upon the complaint. As per Regulation 6.9 (i) of the Regulations, 2007, every complaint shall be heard as expeditiously as possible and the Forum shall adjudicate upon a complaint by a speaking order at the earliest but preferably within three months from the date of receipt of complaint by the Forum.

27. As per Regulation 6.9 (ii) of the Regulations, 2007, in the event of complaint being not disposed of within the period, the complainant may also approach the Ombudsman.

28. In terms of Regulation 8 of the Regulations, 2007, a representation before the Electricity Ombudsman is provided.

29. In terms of Regulation 8.1(i) of the Regulations, 2007, any consumer aggrieved by the order made by the Forum or where the Forum has failed to redress the grievance within the specified period or a Distribution Licensee, if aggrieved by the order of the Forum, may prefer representation to the Electricity Ombudsman.

30. Regulation 8.2 of the Regulations, 2007, provides that no representation would lie to the Electricity Ombudsman unless the consumer has made a written representation to the Forum in prescribed manner and the Forum has either rejected the representation or has failed to dispose it of within specified time or the consumer or the Distribution Licensee is aggrieved by the decision of the Forum.

31. Thus, it is apparent that though the Regulations, 2007 have been framed by the State Commission while exercising power conferred upon it by Section 181 read with sub-section (5) to (8) of Section 42 of the Act, 2003, which only pertains to establishment of a Forum for redressal of grievances of the consumers yet Regulation 8.1(i) of the Regulations, 2007, has gone beyond redressal of grievance of the consumer by also giving the Distribution Licensee the remedy of approaching the Electricity Ombudsman if aggrieved by the order of the Forum. Whether inclusion of Distribution Licensee in Regulation 8.1(i) and giving him the remedy of approaching the Electricity Ombudsman against the order passed by the Forum would render Regulation 8.1 of the Regulations, 2007, ultra vires, the mandatory provisions of Section 42 (5) (6) and (7) of the Act, 2003 and Rule 7 of the Rules, 2005, would be the question to be decided by the Full Bench.

32. Having thus summed up the issue before the Full Bench, we proceed to discuss the arguments raised on behalf of the learned counsels for the contesting parties.

33. Learned counsel for the appellant submits that though the framing of the aforesaid Regulations, 2007, are within the competence of the State Commission yet part of Regulation 8 of the Regulations, 2007, which gives a remedy to the Distribution Licensee also to approach the Electricity Ombudsman would be going against the mandatory provisions of Sections 42 (5) (6) and (7) of the Act, 2003, which mandates that the Forum would be for redressal of the grievances of the consumers and that it is the consumer, who if aggrieved by non-redressal of his grievance by the Forum, may make a representation to the Electricity Ombudsman, who shall settle the grievance of the consumer. Thus, it is argued that once sub-sections (5) (6) and (7) of Section 42 of the Act, 2003 read with Rule 7 of the Rules, 2005, do not contemplate any grievance redressal for Distribution Licensee in the Forum to be established and the Forum is only for the consumer, consequently part of Regulation 8 which provides a remedy to the Distribution Licensee to approach the Electricity Ombudsman, would be ultra vires the Act, 2003, more particularly to Section 42 (5), (6) and (7) read with Rule 7 of the Rules, 2005.

34. Learned counsel for the appellant further argues that Section 181 of the Act, 2003, gives the power to the State Commission to make regulations which are consistent with the Act, 2003. It is thus contended that once the Act, 2003 mandates for establishment of a Forum for redressal of grievances of the consumer then the said Regulations more particularly Regulation 8 of the Regulations, 2007, which gives a remedy even to the Distribution Licensee to approach the Electricity Ombudsman, would make the said Regulation inconsistent to the Act, 2003, thereby rendering Regulation 8 of the Regulations, 2007, so far as it includes the Distribution Licensee and giving him the remedy of approaching the Electricity Ombudsman as ultra vires to the Act of 2003.

35. So far as the judgment in the case of M/s Jindal Poly Films Limited (supra) is concerned, learned counsel for the appellant argues that the Division Bench of this Court has not explicitly gone into the aforesaid aspects of the matter while holding Regulation 8.1 of the Regulations, 2007, as intra-vires inasmuch as the Division Bench has proceeded on a general assertion and presumption that the Act, 2003 should be read as a whole and not be read section by section and word by word and thereafter held the same to be intra-vires to the Act. It is argued that had the Division Bench gone into the specific provisions of Section 42(5) to (7) of the Act, 2003 read with Section 181 of the Act, 2003 and there being no other provision in the Act, 2003 providing otherwise, consequently the said finding of Regulation 8.1 of the Regulations, 2007 being intra-vires could not have been arrived at by Division Bench. It is also argued that Division Bench has held Regulation 8.1 of the Regulations, 2007, to be intra-vires in view of "related provisions of the Act" without indicating as to which of the related provisions of the Act were being referred to and once there are no other related provisions of the Act which give any right to the Distribution Licensee to approach the Ombudsman against the order of the Forum and the Forum has been constituted only for redressal of grievance(s) of the consumer consequently the judgment of Division Bench in the case of M/s Jindal Poly Films Limited (supra) cannot be said to have laid down the correct law.

36. In this regard, reliance has been placed on the following judgments:-

(1) A.R. Antulay vs. R.S. Nayak - (1988) 2 SCC 602;

(2) Hitendra Vishnu Thakur vs. State of Maharashtra - (1994) 4 SCC 602;

(3) State of Haryana vs. Maruti Udyog Ltd. - (2000) 7 SCC 348;

(4) Newspapers Ltd. vs. State Industrial Tribunal - AIR 1957 SC 532;

(5) Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council - (2004) 8 SCC 747;

(6) State of Rajasthan vs. Basant Nahata - (2005) 12 SCC 77;

(7) Chandra Kumar Sah & another vs. The District Judge & others - AIR 1976 ALL (FB);

(8) Dayal Singh vs. Union of India - (2003) 2 SCC 593;

(9) Sales Tax Officer vs. K.I. Abraham - AIR 1967 SC 1823;

(10) M. Chandru vs. Chennai Metropolitan Development Authority - (2009) 4 SCC 72;

(11) Kunj Behari Lal Butail vs. State of Himanchal Pradesh - (2000) 3 SCC 40;

(12) Global Energy Ltd. vs. Central Electricity Regulatory Commission - (2009) 15 SCC 570;

(13) Petroleum & Natural Gas Regulatory Board vs. Indraprastha Gas Ltd. - (2015) 9 SCC 209;

(14) State of Karnataka vs. H. Ganesh Kamath - (1983) 2 SCC 402;

(15) General Officer Commanding in Chief vs. Subhash Chandra Yadav - (1988) 2 SCC 351;

(16) ADM (Revenue) Delhi Admn. vs. Siri Ram - (2000) 5 SCC 451;

(17) Union of India vs. Srinivasan - (2012) 7 SCC 683;

(18) Academy of Nutrition Improvement vs. Union of India - (2011) 8 SCC 274;

(19) BSNL vs. Telecom Regulatory Authority of India - (2014) 3 SCC 222;

(20) Bharathidasan University vs. All India Council For Technical Education - (2001) 8 SCC 676;

(21) Cellular Operators Association of India vs. Telecom Regulatory Authority of India and others - (2016) 7 SCC 703;

(22) St. Johns Teachers Training Institute vs. Regional Director, NCTE - (2003) 3 SCC 321;

(23) Union of India vs. Charantjit S. Gill - (2000) 5 SCC 742;

(24) Bharat Aluminum Co. vs. Kaiser Aluminum Technical Services Inc. - (2012) 9 SCC 552;

(25) Raghunath Rai Bareja vs. Punjab National Bank - (2007) 2 SCC 230;

(26) Morvi Mercantile Bank Ltd. vs. Union of India - AIR 1965 SC 1954;

(27) Easland Combines vs. CCE - (2003) 3 SCC 410;

(28) Rohitash Kumar vs. Om Prakash Sharms - (2013) 11 SCC 451;

(29) Dhannalal vs. Kalawatibai - (2002) 6 SCC 16;

(30) The Mumbai Kamgar Sabha Bombay vs. M/s Abdulbhai Faizullabhai and others - (1976) 3 SCC 382;

(31) Municipal Corporation Delhi vs. Gurnam Kaur - (1989) 1 SCC 101;

(32) Punjab Land Development and Reclamation Corporation Ltd. vs. Presiding Officer, Labour Court - (1990) 3 SCC 682;

(33) State of U.P. and another vs. Synthetics and Chemicals Ltd. and another - (1991) 4 SCC 139;

(34) Maharashtra State Cooperative Cotton Growers' Marketing Federation Ltd. vs. Employees' Union - 1994 Supp. (3) SCC 385;

(35) Arnit Das vs. State of Bihar - (2000) 5 SCC 488;

(36) Divisional Controller KSRTC vs. Mahadeva Shetty and another - (2003) 7 SCC 197;

(37) N. Bhargavan Pillai vs. State of Kerala - (2004) 13 SCC 217;

(38) Farhat Hussain Azad vs. State of U.P. and others - 2005 (1) UPLBEC 474, and

(39) Kalpana Mehta and others vs. Union of India and others - (2018) 7 SCC 1.

37. Per contra, Sri Jai Deep Narain Mathur, Senior Advocate, assisted by Sri Amarjeet Singh Rakhra and Ms. Aprajita Bansal, has argued that once the Act, 2003 more particularly Section 42 (5) to (7) did not bar the Distribution Licensee to approach the Electricity Ombudsman, if aggrieved against the order of the Forum, and taking this into consideration, the Regulations, 2007 have been framed by the State Commission under the provisions of Section 181 of the Act, 2003. Consequently merely because the Distribution Licensee has been given the right of approaching the Electricity Ombudsman aggrieved by the order of the Forum, the same by itself would not render Regulation 8.1 of the Regulations, 2007 ultra-vires.

38. Elaborating this further, it is argued that the Distribution Licensee has been defined in Section 2(1) of the Act, 2003, and Section 16 of the Act, 2003 provides that the appropriate Commission may specify any general or specific condition which would apply to a Licensee and such conditions would be deemed to be the condition of the License which has been granted to the Licensee by the appropriate Commission. Further Section 181 (2) (d) of the Act, 2003 provides that the State Commission would enumerate the conditions of license under Section 16 by taking recourse to its regulation making power under Section 181 of the Act, 2003. Regulation 3.17 of the Regulations, 2007, provides that constitution of Forum under the regulation and compliance of various provisions of regulation would be deemed to be a condition of the license of the Licensee and non-compliance is to be dealt in accordance with the provisions of the Act, 2003 and hence the license is deemed to include a provision by which the Licensee will have an opportunity to initiate proceedings for settlement of a consumer grievance before the Electricity Ombudsman. It is argued that as the said condition is a condition of a license of the Licensee, the same would not be open to challenge by a consumer who is receiving electricity in accordance with the power given to the Distribution Licensee in accordance with his license. It is also argued that it is for the purpose of enabling the Distribution Licensee to develop and maintain an efficient, coordinated and economical system in accordance with the provisions of the Act, 2003 that the State Commission in exercise of powers under Section 16 read with Section 181 (2) (d) of the Act of 2003 has made it mandatory for the Distribution Licensee to create an independent Forum for settlement of the grievance of the consumers and for an Electricity Ombudsman who would entertain the representations from both the consumers as well as the Licensee. It is argued that the term "settle the grievance" as used under Section 42(7) of the Act, 2003 cannot only mean settlement of the grievance at the instance of one party to the dispute rather the same has to be given a broad meaning so as to enable the Distribution Licensee also to approach the Electricity Ombudsman.

39. Sri Mathur also argues that once the State Commission has created an independent Forum under Section 42(5) of the Act, 2003, which is neither an extension of the Distribution Licensee nor under its control, accordingly it would be in the fitness of things that in the event of a Distribution Licensee being aggrieved by the decision of the Forum, the compliance of which would effect the efficient, coordinated and economical distribution system in the areas of supply of the Distribution Licensee as such the Distribution Licensee must be given an opportunity to get the grievance of the consumer settled by the Electricity Ombudsman. Such a purposive intent clearly comes out from the whole reading of Section 42 of the Act, 2003 and cannot be permitted to be given a restrictive meaning.

40. Sri Mathur further argues that in terms of Section 181 (2)(s) of the Act, 2003, once the State Commission has exercised its power and has framed the Regulations specifying the time and manner for settlement of the grievances under sub-section (7) of Section 42 of the Act, 2003, consequently it would mean the settlement of grievances of both the consumer as well as the Distribution Licensee. It is argued that once such a power is vested with the State Commission of framing of Regulations consequently after the said Regulations have been framed, same cannot be called in question on the grounds as indicated by the appellant. In terms of Section 42(5) and 42 (7) of the Act, 2003. the exclusive supporting legislative power has been conferred upon the State Commission and the same having been exercised and the Regulations, 2007 having been framed, merely because the Distribution Licensee has also been included in Regulation 8 of the Regulations, 2007, cannot be a ground for holding Regulation 8 ultra-vires to the Act, 2003.

41. Sri Mathur argues that in case the Distribution Licensee prefers a representation before the Electricity Ombudsman for settlement of the grievance of the consumer, that itself would not ipso-facto prejudice the consumer inasmuch as Regulation 7.6 of the Regulations, 2007 lends finality to the settlement of the grievances of the consumers by the Forum and makes the order of the Forum binding on the Distribution Licensee only after the right of representation before the Electricity Ombudsman has been availed by the Distribution Licensee. Thus, once no prejudice is caused to the consumer consequently Regulation 8 of the Regulations, 2007 cannot be said to be ultra-vires to the Act, 2003. It is also argued that once no pecuniary limit has been fixed for exercise of power by the Forum as such in case the Distribution Licensee is aggrieved by the decision of the Forum, the compliance of which would affect its efficient, coordinated and economical distribution system in its areas of supply, it is only fair and just that the Distribution Licensee be also given an opportunity to get the grievance of the consumer settled by the Electricity Ombudsman in terms of Regulation 8 of the Regulations, 2007.

42. In support of his arguments, Sri Mathur has placed reliance on the following judgments:-

(1) J.K. Cotton Spinning and Weaving Mills Ltd. vs. Union of India - AIR 1988 SC 191;

(2) Sant Ram Sharma vs. State of Rajasthan - AIR 1967 SC 1910;

(3) PTC India vs. CERC - (2010) 4 SCC 603;

(4) Chief Forest Conservator vs. Nisar Khan - (2003) 4 SCC 595;

(5) Dhananjay Malik vs. State of Uttaranchal - (2008) 4 SCC 171, and

(6) J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. State of Uttar Pradesh and others - 1991 (3) SCR 185.

43. Sri Sanjay Singh, learned counsel appearing for respondent no.5 - U.P. Electricity Regulatory Commission, while adopting the arguments of Sri Jaideep Narain Mathur, Senior Advocate, has also argued that once the Act, 2003 confers exclusive jurisdiction upon the State Commission to frame Regulations for establishment of Forum and Ombudsman and the said Regulations having been framed by the Commission resulting in issue of Regulations, 2007 consequently there is presumption with regard to constitutional validity of the Act, Rules or Regulations. In this regard, reliance has been placed upon the judgment of Hon'ble the Supreme Court in the case of State of T.N. and another vs. P. Krishnamurthy and others - (2006) 4 SCC 517. Sri Singh also argues that by framing of Regulations no fundamental right guaranteed under the Constitution of India of the consumer is being violated apart from the fact that there is no arbitrariness or unreasonableness in Regulation 8 of the Regulations, 2007, so far as it includes the Distribution Licensee within its ambit. It is also argued that in case a holistic view of the issue is taken then there does not appear any conflict or inconsistency between the Rules, 2005, Act 2003 and the Regulations, 2007. It is submitted that even if for the argument's sake, it is assumed that there is a conflict or inconsistency between Rule 7 of the Rules, 2005 and Regulation 8.1 (i) of the Regulations, 2007, even then the provisions of Regulations 2007 will prevail over the Electricity Rules, 2005 as the power to make Regulations has specifically been conferred upon the State Commission under sub-section (5) to (7) of Section 42 of the Act, 2003 and consequently the general power will yield to special power. In this regard, reliance has been placed upon the judgment of Hon'ble the Supreme Court in the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs. State of U.P. and others - AIR 1961 SC 1170. Sri Singh also argues that once the Forum functions independently of the Distribution Licensee as such denial of remedy to Distribution Licensee by way of representation before the Electricity Ombudsman will amount to procedural discrimination. Sri Singh has also placed reliance on the following judgments:-

(1) N.T. Veluswami Thevar vs. G. Raja Nainar and others - 1959 AIR 422;

(2) Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer and another - 1961 AIR 1500;

(3) Chairman, Board of Mining Examination and another vs. Ramjee - 1977 SCC (2) 256;

(4) Directorate of Enforcement vs. Deepak Mahajan and another -AIR 1994 SC 1775;

(5) Sachida Nand Singh and another vs. State of Bihar and another - MANU/SC/0077/1998, and

(6) D. Saibaba vs. Bar Council of India and another - MANU/SC/0388/2003.

44. Heard learned counsel for the contesting parties and perused the records.

45. The Regulations, 2007 have been framed by the U.P. Electricity Regulatory Commission by exercising the powers conferred on it by Section 181 read with sub-sections (5) to (7) of Section 42 of the Act, 2003. Sub-sections (5) of Section 42 of the Act, 2003, gave the power to the State Commission to frame the guidelines in pursuance to which the Distribution Licensee, within six months from the appointed date or date of grant of license, establish a Forum for redressal of grievances of the consumers. Further in terms of sub-section (6) of the Section 42 of the Act, 2003, any consumer who is aggrieved by non-redressal of his grievance under sub-section (5) may make a representation for the redressal of his grievance to the Electricity Ombudsman and the Electricity Ombudsman, in terms of sub-section (7) of Section 42 of the Act, 2003 shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission.

46. In pursuance to the aforesaid provisions, the State Commission made the Regulations, 2007, which also include in Regulation 3 the Constitution of the Consumer Grievance Redressal Forum. In terms of Regulation 3.1 of the Regulations, 2007, the Distribution Licensee has to establish and operate a Forum in accordance with the Regulations, 2007 at certain locations. Regulation 3.7 of the Regulations, 2007 provides that the Forum shall function independent of the Licensee. Regulation 5 of the Regulations, 2007 sets out the jurisdiction of the Forum.

47. The controversy arises after a complaint filed by the consumer is either decided whereby the remedy is spelt out in Regulation 8.1(i) of the Regulations, 2007 whereby any consumer aggrieved by the order made by the Forum or where the Forum has failed to redress the grievance within the specified period has been given a remedy of preferring a representation to the Electricity Ombudsman. However, Regulation 8.1 (i) of the Regulations, 2007 also provides that in case a Distribution Licensee is aggrieved by the order of the Forum he may prefer a representation to the Electricity Ombudsman.

48. Once sub-section (5) of Section 42 of the Act, 2003 provides that a Forum would be for redressal of the grievance of the consumers and sub-section (6) of Section 42 of the Act, 2003 provides that any consumer aggrieved by non-redressal of his grievance under sub-section (5), may make a representation for redressal of his grievance to the Electricity Ombudsman and sub-section (7) provides that the Electricity Ombudsman shall settle the grievance of the consumer consequently it clearly comes out that inclusion of "Distribution Licensee" in Regulation 8.1 (i) of Regulations, 2007 would be in conflict to the specific provisions of Section 42 (5) & (6) of the Act, 2003 and Rule 7 of the Rules, 2005.

49. Elaborating this, we may refer to the definition of "Consumer" as given under Section 2(15) of the Act, 2003 as well as Regulation 2.1(f) of the Regulations, 2007 which do not include the Distribution Licensee in its ambit rather the Distribution Licensee has been defined separately under Section 2(17) of the Act, 2003. A 'consumer' would be a person who is supplied with the electricity for his own use by a Licensee or the Government or by any other person and includes a person whose premises are for the time being connected for the purpose of receiving electricity. Thus, for his grievance, the Consumer may approach the Forum and being aggrieved with the order of the Forum, the Consumer may approach the Electricity Ombudsman. Section 42(5) provides for a consumer grievance redressal forum. Likewise, Rule 7 of Rules, 2005 also speaks about the Distribution Licensee establishing a Forum for redressal of the grievances of the consumers. Likewise Section 181 (1) of the Act gives the power to the State Commission to make regulations consistent with the Act and the Rules. Once the Act and the Rules themselves do not contemplate for constitution of any Forum for redressal of grievance of a Distribution Licensee rather the thrust is for redressal of grievance of the consumer then by no stretch of imagination could the State Commission have framed regulations whereby the grievance redressal for the Distribution Licensee has also been provided and thus inclusion of Distribution Licensee in Regulation 8.1(i) of the Regulations, 2007 would be ultra vires to Section 42 (5) to (7) of the Act, 2003.

50. From the aforesaid discussions, it clearly comes out that both the Act, 2003 and the Rules, 2005 are clear, categoric and unambiguous and require no addition of any word or reading of an additional word in it. Once the Act, 2003 read with Rules, 2005 provides for a Forum for redressal of grievance of the consumer and the consumer alone consequently there is no scope of a Distribution Licensee staking its claim to approach the Electricity Ombudsman as is sought to be done under Regulation 8 of the Regulations, 2007.

51. Further sub-section (6) of Section 42 of the Act, 2003 provides a remedy of making representation to a Consumer aggrieved by non-redressal of his grievance to the Electricity Ombudsman and no one else. It is settled proposition of law that statutory right in the realm of appeal, review, revision etc must be provided in the statute. The statute has provided such a remedy to a consumer for non-redressal of his grievance but not to the Distribution Licensee and consequently the Distribution Licensee cannot be allowed to be included through Regulation 8.1(i) of the Regulations, 2007 for the purpose of approaching the Electricity Ombudsman as has been provided in Regulation 8 of the Regulations, 2007. Once the regulations are to be framed in terms of Section 181 (1) of the Act, 2003 consistent with the Act, 2003 and the Rules, 2005, the same could not have included the Distribution Licensee for the purpose of approaching the Electricity Ombudsman as is sought to be done in terms of Regulation 8.1(i) of the Regulations, 2007.

52. The argument of Sri Mathur that Section 42 (5) to (7) of the Act, 2003, did not bar the Distribution Licensee to approach the Electricity Ombudsman is patently misconceived for a plain reading of Section 42(6) of the Act, 2003 clearly provides tha

Please Login To View The Full Judgment!

t it is consumer who if aggrieved by non-redressal of his grievance under sub-section (5) may make a representation for redressal of his grievance to the Electricity Ombudsman. The statute itself not having given this remedy to the Distribution Licensee, would not empower the Regulations framed under the provisions of the Act, 2003 to provide the said remedy to the Distribution Licensee. 53. The argument of Sri Mathur that the State Commission has created an independent Forum under Section 42(5) of the Act, 2003, which is neither an extension of the Distribution Licensee nor under its control and it being an independent Forum, the Distribution Licensee must be given an opportunity to approach the Electricity Ombudsman is also patently misconceived inasmuch as, as already discussed above, the Act 2003 only gives a remedy to a consumer to approach the Electricity Ombudsman. The said remedy provided to the Consumer being a creation of statute, as such, the Distribution Licensee cannot be expected to have a remedy in this regard of approaching the Electricity Ombudsman. So far as the independence of the Forum is concerned, though Regulation 3.5 of the Regulations, 2007 indicates that the Forum shall function independent of the Licensee yet Regulation 3.3 of the Regulations, 2007 itself provides that the Distribution Licensee shall invite applications for appointment on the post of a Technical Member of the Forum. The Officer of the Licensee is also to be a Member of the Forum in terms of Regulation 3.2 of the Regulations, 2007. As such, once the power of selection and appointment is given to the Distribution Licensee, the funds and expenditure are also in the hands of the Distribution Licensee and the power of removal of members of the Forum in practice is also with the Distribution Licensee. Consequently, the kind of independence expected from such Forum cannot be said to be complete independence of the Forum. This would also be apparent from perusal of Regulation 3.12 of the Regulations, 2007, which categorically provides that the salary, allowances, secretarial support, office accommodation and infrastructure facilities for establishing the office and other facilities required for efficient functioning of the Forum shall be provided by the concerned Distribution Licensee. The power of removal of any Member has also been given to the Distribution Licensee which, suffice to state, makes it apparent that the independence of the Forum is illusory. However, as we have not been called upon to give any finding regarding independence of the Forum, we refrain from doing so. 54. As regards the argument of Sri Sanjay Singh, learned counsel for respondent no.5, that inclusion of the Distribution Licensee in Regulation 8 of the Regulations, 2007, is not violative of fundamental rights or any provisions of the Constitution of India or is not manifestly arbitrary or unreasonable, suffice to state that, as already discussed above, Regulations 8.1(i) of the Regulations, 2007 so far as it includes the Distribution Licensee runs foul of the specific provisions of Section 42(5) to (7) of the Act, 2003 read with Rule 7 of the Rules, 2005 and Section 181 (1) of the Act, 2003 by which the Forum is to be constituted for the redressal of the grievance of the consumer and that in terms of Section 42(6) of the Act, 2003, it is a consumer who if aggrieved by the non-redressal of his grievance under sub-section (5) may approach the Electricity Ombudsman. Once specific provisions under the Act, 2003 stand unambiguous no regulations could have been framed contrary to the provisions of the Act, 2003 and as such the argument of Sri Singh is rejected. 55. So far as the judgment in the case of M/s Jindal Poly Films Limited (supra) is concerned by which the vires of the Regulation 8.1(i) of the Regulations, 2007 have been upheld, a perusal of the said Division Bench judgment clearly reveals that the Division Bench of this Court has not considered in depth the aforesaid aspects of the matter while holding Regulation 8.1(i) of the Regulations, 2007 as intra-vires inasmuch as the Division Bench has proceeded on a general assertion that the Act, 2003 should be read as a whole and not section by section and word by word. We have already extracted the relevant provisions of the Act, 2003 and we have categorically found that the Act, 2003 does not provide for any remedy to the Distribution Licensee to approach the Electricity Ombudsman against the order passed by the Forum rather the said remedy has only been given to the Consumer. Thus, the general assertion of the Division Bench of there being related provisions of the Act without specifically referring to or indicating as to which provisions of the Act were being referred to while holding Regulation 8.1(i) of the Regulations, 2007 to be intra-vires more particularly when Section 42(5) to (7) of the Act, 2003 are explicit, thus renders the judgment of the Division Bench as not laying down the correct principle of law. 56. As regards the case laws cited on behalf of the appellant as well as the respondents, suffice to state that discussion of the said case laws would unnecessarily burden our judgment more particularly when the Act, 2003 read with Rule 7 of the Rules, 2005 and Section 181 (1) of the Act, 2003, itself is clear and umambiguous. 57. Accordingly, keeping in view the aforesaid discussions, we answer these issues in the following manner:- (i) Regulation 8.1(i) of the Uttar Pradesh Electricity Regulatory Commission (Consumer Grievance Redressal Forum & Electricity Ombudsman) Regulations, 2007, so far as it includes the Distribution Licensee is ultra-vires to the provisions of the Act, 2003. (ii) The judgment of the Division Bench in M/s Jindal Poly Films Limited (supra) decided on 15.04.2011 does not lay down the correct principle of law. 58. In view of the answers to the two questions, the special appeal be sent to the concerned Division Bench for decision. The other special appeals/writ petitions connected with this reference or whose papers were produced, will be de-linked and shall be placed before the concerned appropriate Courts for decision in accordance with law laid down in this judgment.
O R