1. These two writ petitions, involving similar and akin facts, and proceeding on identical grounds, have been considered together; and are taken for disposal by this common order. The similar nature grievance in these writ petitions is against similar nature orders dated 24.9.2014 passed by the respondent No. 1, Uttar Pradesh Electricity Regulatory Commission (the Commission' hereinafter) whereby the Commission, while dealing with the complaints of the petitioners under Section 142 of the Electricity Act, 2003 (the Act of 2003') regarding non-compliance of similar orders of the Electricity Ombudsman dated 26.9.2005, has directed the Consumer Grievance Redressal Forum (the Forum') to decide the issues with regard to the compliance of the order of Electricity Ombudsman.
2. After having heard the learned counsel for the parties and having perused the material placed on record, we have formed the opinion that the matters are required to be restored to the file of the Commission for decision afresh in accordance with law as in our view, the Commission has omitted to exercise the jurisdiction vested in it by law. In this view of the matter, dilatation on all the factual aspects is not necessary; only a brief reference to the background aspects would suffice.
3. It appears that the petitioners commissioned respective Cold Storage Units at Village Bhatoli, Post Office Rura, District Kanpur Dehat and entered into electricity supply agreements with the U.P. State Electricity Board. On 29.7.2004, the petitioners filed respective complaints under Section 42(5) of the Electricity Act, 2003 before the Forum with the submissions that the electricity bills prepared and issued to them were not in accord with the applicable tariff. Such complaints remained pending and thereupon, the petitioners filed respective representations before the Electricity Ombudsman under Section 42(6) of the Act of 2003 on 22.8.2005. Thereafter, on 1.9.2005, a compromise was entered into between the parties whereby, according to the petitioners, the respondents related with Dakshinanchal Vidyut Vitaran Nigam Ltd. agreed to correct the electricity bills from 1.4.1998 to 31.7.2005. Further, according to the petitioners, as per the said compromise, an Office Memorandum dated 1.9.2005 was issued by the Executive Engineer concerned (respondent No. 3 herein) whereby and whereunder, all the electricity bills were to be consolidated and the money that had been deposited in excess was to be adjusted.
4. The petitioners have further averred that after the compromise, the respondent No. 3, under his communication dated 24.9.2005 addressed to the Electricity Ombudsman, sought one month's time for correction of the electricity bills. Thereafter, the Electricity Ombudsman disposed of the cases of the petitioners on 26.9.2005 taking note of the compromise/settlement said to have been arrived at.
5. It is further stated that after the decision of the Ombudsman dated 26.9.2005, the electricity bills for the months of August and September, 2005 were corrected on the basis of the compromise but then, on 16.11.2005, the respondent No. 3 abruptly prepared and issued the electricity bills de hors the award made by the Electricity Ombudsman and the electricity supply of the petitioners was also disconnected. Aggrieved, the petitioners again approached the Electricity Ombudsman, who passed an order on 30.11.2005 (Annexure 6) requiring the respondent No. 2 to carry out the compliance in accordance with law. When the petitioners still failed to get the requisite relief, they approached the Commission seeking compliance of the award made by the Electricity Ombudsman. However, the Commission, by its order dated 6.1.2006, proceeded to cancel the order of the Electricity Ombudsman.
6. Aggrieved by the aforesaid order of the Commission dated 6.1.2006, the petitioners approached this Court in Writ Petition No. 3797 of 2007, which was allowed on 15.3.2011. This Court found the Commission unjustified in cancelling the order passed by the Electricity Ombudsman and hence, the order of the Commission dated 6.1.2006 was disapproved and set aside. The order so passed by this Court on 15.3.2011 reads as under:
"By means of instant writ petition the petitioners have challenged the order dated 6.1.2006 passed by the U.P. Electricity Regulatory Commission by which the Commission has cancelled the order of the Electricity Ombudsman. The petitioners approached the Electricity Ombudsman for redressal of their grievance with regard to illegal higher raising of the bills. The Electricity Ombudsman decided the case between the parties on the basis of compromise. The Electricity Ombudsman order was followed by the U.P. Power Corporation Ltd. for two months.
According to petitioner all of a sudden the Executive Engineer again raised the bills. Learned counsel for the Corporation submitted that it was done after the inquiry, as the Corporation found that the compromise was illegally entered into with collusion and with regard to that disciplinary proceeding is pending against the Officer concerned. He further contended that the document contained Annexure-22 to the writ petition is a forged one and the correct document has been filed as Annexure-4 to the counter affidavit and in view, of this fact that the petitioners hands are not clean, they are not entitled for the remedy under Article 226 of the Constitution of India.
On the query of the Court learned counsel for the Commission failed to establish that the Commission has power to set aside the order passed by the Electricity Ombudsman. In our opinion, if the case, was of forgery or collusion the Corporation ought to have made an application to the Electricity Ombudsman for recall of its order and then ought to have raised the bill. No doubt a person who does not come with a clean hand is entitle for any remedy.
But it is also settled law that the power under Article 226 of the Constitution of India conferred to the High Court is wide enough and if it is found that there is any illegality, then this Court cannot shut eyes on it. Therefore, we hold that the order passed by the Uttar Pradesh Electricity Regulatory Commission dated 6.1.2006 (Annexure-1 and 2 to the writ petition) is liable to be quashed.
Accordingly, order passed by the Uttar Pradesh Electricity Regulatory Commission dated 6.1.2006 (Annexure-1 and 2 to the writ petition) is liable to be quashed. The writ petition is allowed. No orders as to cost."
7. It appears that the petitioners still carried the grievance that the award of Electricity Ombudsman was not being complied with by the respondent No. 3 and hence, on 19.9.2012, they again approached the Commission with reference to Section 142 of the Act of 2003. Such complaints made under Section 142 of the Act of 2003 have been dealt with and disposed of by the Commission in its impugned orders dated 24.9.2014.
8. In the identical orders dated 24.9.2014 in relation to the present petitioners, the Commission has taken note of the order of the Electricity Ombudsman dated 26.9.2005 and the agreement dated 1.9.2005 and then, after recording the representations on behalf of the respective parties, the Commission has disposed of the matters with the following observations and directions:
"The compliance report has been filed by licensee. The copy of the same has also been provided to the petitioner. The petitioner has raised some issues regarding the calculation, interest, installment etc. in the matter.
The Commission directs the CGRF to look into the matter and decide within one month as to whether the compliance has been done duly and properly.
The matter is disposed off."
9. The orders so passed by the Commission are questioned in these writ petitions with reference to the provisions of the Act of 2003 as also the Uttar Pradesh Electricity Regulatory Commission (Consumer Grievance Redressal Forum And Electricity Ombudsman) Regulations, 2007 (the Regulations of 2007'). It is submitted, inter alia, that the functions of Commission under the Scheme of the Act of 2003 are not merely advisory or regulatory but are adjudicatory too and in the present cases, the Commission has acted wholly illegally in not exercising the powers under Section 142 of the Act of 2003 and in relegating the petitioners before the Forum. The learned counsel appearing for the respondents have, however, defended the orders passed by the Commission with the submissions that in the given fact situation, the questions as regards calculation, interest, installment etc. could be properly determined by the Forum and hence, the matter has been referred to it.
10. In our view, the Commission has obviously failed to exercise the jurisdiction vested in it by law; and the matter has unjustifiably been sent to the Forum when an appropriate decision was required to be taken by the Commission itself.
11. As per Regulation 14 of the Regulations of 2007, in case of a grievance about non-compliance of the orders of Forum or Electricity Ombudsman, either the Ombudsman may issue appropriate directions for compliance or he may refer the matter to the Commission. Clauses 14.2 and 14.3 make it further clear that in case of grievance about non-compliance of the directions of the Ombudsman or the Forum, a consumer is entitled to approach the Commission directly by way of a complaint under Section 142 of the Act of 2003; and, upon receiving such a complaint, the Commission is required to pass appropriate order under Section 142 of the Act of 2003. Regulation 14 of the Regulations of 2007 reads as under:
"14.0 Compliance with the Orders:
14.1 In case, a Distribution Licensee fails to comply with the orders of the Forum or, as the case may be, of the Electricity Ombudsman, within 30 days of the order or within such time as may be granted, the Electricity Ombudsman may within thirty days of the date of the application of the consumer and, after giving opportunity to the Distribution Licensee,-
(a) issue necessary direction to ensure compliance of the order; or
(b) refer the matter to the Commission for appropriate order under Section 142 of the Act.
14.2 Notwithstanding anything contained in these regulations, where the Distribution Licensee fails to comply with the directions or orders of the-
(i) Electricity Ombudsman, within the time specified by him;
(ii) Forum passed under Regulation 6.10(ii);
The consumer may approach the Commission directly by way of a complaint under Section 142 of the Electricity Act, 2003 for appropriate orders.
14.3 On receiving reference from the Ombudsman or a complaint directly from the consumer, the Commission shall pass appropriate order under Section 142 of the Act,--
(a) after hearing the parties, and
(b) if considered necessary, after obtaining report from the Ombudsman."
12. Section 142 of the Act of 2003 provides for punishment for non-compliance of the directions by the appropriate Commission and reads as under:
"Punishment for non-compliance of directions by Appropriate Commission.--In case any complaint is filed before the Appropriate Commission by any person or if that Commission is satisfied that any person has contravened any of the provisions of this Act or the rules or regulations made thereunder, or any direction issued by the Commission, the Appropriate Commission may after giving such person an opportunity of being heard in the matter, by order in writing, direct that, without prejudice to any other penalty to which he may be liable under this Act, such person shall pay, by way of penalty which shall not exceed one lakh rupees for each contravention and in case of a continuing failure with an additional penalty which may extend to six thousand rupees for every day during which the failure continues after contravention of the first such direction."
13. It needs hardly any emphasis that the Commission has been constituted under the provisions of the Act of 2003 for the purposes of carrying out the functions specified therein. Section 86 of the Ac t of 2003 generally enumerates the functions of the State Commission and clause (f) of sub-section (1) of Section 86 makes it clear that adjudicating upon the disputes between the licencees and the generating companies is also one of its functions. The Commission is invested with the powers of Civil Court in respect of the matters enumerated in Section 94 and the proceeding before it are deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code; and the Commission is deemed to be a Civil Court for the purpose of Sections 345 and 346 of the Code of Criminal Procedure. Significantly, per Section 97 of the Act of 2003, though the Commission could delegate some of its powers and functions but not the powers to adjudicate the disputes. Section 142 of the Act of 2003 provides for punishment for non-compliance of directions by the Commission.
14. A conjoint reading of the provisions of the Regulations of 2007 and the Act of 2003 puts it beyond the pale of doubt that in the scheme of these provisions, the Commission is not merely an advisory and recommendatory body but has been invested with wide variety of adjudicatory functions too; and particularly in the matter of present nature, where a complaint is under Section 142 of the Act of 2003, the decision thereupon is required to be taken only by the Commission.
15. We are unable to find any scope in the scheme of the Act of 2003 and the Regulations of 2007 wherefor and where-under, the Commission could delegate its powers and functions to the Forum. Rather, as noticed above, the Commission cannot delegate its adjudicatory functions to any other body or person.
16. To say the very least, the impugned orders as passed in these matters are rather suggestive of abdication of its powers by the Commission. We are unable to find any reason as to why the Commission has chosen not take a concrete decision in the matter despite being invested with such powers and rather being under statutory duty to do so. It is expected of the Commission that it deals with the matters requiring its adjudication in accordance with law rather than relegating the parties to the Forum.
17. Moreover, with reference to the background facts it get
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s per force observed that in these matters, the Commission had, even on the earlier occasion, proceeded to cancel the order of the Electricity Ombudsman in a wholly unjustified manner and such an order was disapproved by this Court while allowing writ petition No. 3797 of 2006 by the order dated 15.3.2011. Once again, it is found that the Commission has not dealt with the matter in accordance with law. We would leave the matter at that only while expecting from the Commission, who is invested with statutory duties, powers and functions, that the matters are examined dispassionately and in accordance with law. 18. For what has been observed and discussed hereinabove, we are clearly of the view that the matters deserve to be restored to the file of Commission for decision afresh and in accordance with law. 19. Consequently, the writ petitions are allowed in the manner indicated; and the impugned orders dated 24.9.2014 are set aside. The complaints of the petitioners under Section 142 of the Act of 2003 are restored for reconsideration of the Uttar Pradesh Electricity Regulatory Commission, who shall deal with the same in accordance with law and take appropriate decision thereupon expeditiously, preferably within 90 days from the date of first appearance of the parties. The contesting parties through their respective counsel shall stand at notice to appear before the Commission on 7.1.2015. It is made clear that we have otherwise not pronounced on the merits of the case either way that shall be for the consideration and appropriate decision of the Commission in accordance with law.