Full Text
HIGH COURT OF DELHI
Date of Decision: 27.11.2024
M/S D.D. MOTORS .....Petitioner
Through: Mr. Fanish K. Jain & Mr. Nilay Kaushal, Advocates.
Through: Mr. Akhil Hasija, Advocate for BSES RPL.
PRATEEK JALAN, J. (ORAL)
JUDGMENT
1. The petitioner has filed this petition under Article 226 of the Constitution for the following reliefs:- “a) A direction, order or writ in the nature of certiorari or any other appropriate writ quashing/setting aside the impugned demand of Rs.1,68,598/ in the bill month of November 2004 showing arrears of Rs 1,36,489/ on the basis of the bill for billing month of Oct 2004 raised against K. No. 9JP802140748/0000/JANAKPURI. b) pass a direction to the respondent to raise the correct bill by withdrawing the penalty of LIP from the date of its levy. c) award the costs of present proceedings in favour of the petitioner; d) any other relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also be granted in favour of the petitioner.”
2. The petitioner was running a car dealership and workshop from premises No. A-100, Phase-II, Mayapuri Industrial Area, New Delhi. It has challenged a bill issued by the respondent for electricity charges for the month of November 2004 [Annexure P-10 to the writ petition], to the extent that the bill reflects arrears of ₹136489.20/-. The amount of ₹1,36,489/- has been carried over from the bill for the month of October 2004 [Annexure P-8 to the writ petition].
3. The dispute urged is with regard to the Maximum Demand Indicator [“MDI”] reflected in the said bill as more than 100 KW, so as to render the petitioner liable to tariff in the category of “Large Industrial Power” [“LIP”] instead of “Small Industrial Power” [“SIP”].
4. I have heard learned counsel for the parties.
5. A preliminary objection has been taken in the counter affidavit filed by the respondent on 17.01.2005, and has also been noted in the order of the Court dated 10.11.2023, to the effect that a dispute as to the correctness of the bill is inappropriate for adjudication under Article 226 of the Constitution. Mr. Akhil Hasija, learned counsel for the respondent, submits that the matter falls within the jurisdiction of the Consumer Grievance Redressal Forum [“CGRF”] constituted under Section 42(5) of the Electricity Act, 2003 [“the Act”], against which the petitioner would also have a remedy of appeal before the Ombudsman under Section 42(6) of the Act. He relies upon the judgment of the Supreme Court in Maharashtra Electricity Regulatory Commission vs. Reliance Energy Ltd. and Others[1], wherein it was held that the exclusive remedy before the CGRF and the Ombudsman are available for resolution of “all the individual grievances of consumers”. Mr. Hasija therefore submits that the petitioner ought to be relegated to that remedy.
6. Mr. Fanish K. Jain, learned counsel for the petitioner, on the other hand, submits that existence of an alternative remedy cannot be an absolute bar to exercise of jurisdiction under Article 226 of the Constitution, particularly in respect of an allegation of violation of natural justice and of the prevailing regulatory regime.
7. The submission of Mr. Jain on this point is, in my view, correct. While the CGRF provides an adequate remedy for agitating consumer grievances, as held by the Supreme Court, no absolute bar on the exercise of writ jurisdiction can be imposed by statute. The judgment of the Supreme Court also arose in the context of jurisdiction of the Electricity Regulatory Commission [“ERC”], and not of the writ Court. The present petition has been pending for 20 years, and I am therefore inclined to consider the petitioner’s submission, albeit limited to the question of natural justice and violation of the Regulations in these proceedings.
8. Learned counsel for the parties submit that the applicable Regulations, at the relevant time, was the Delhi Electricity Regulatory Commission (Performance Standards – Metering & Billing) Regulations, 2002 [hereinafter referred to as “2002 Regulations”], dated 17.08.2002, issued by the Delhi Electricity Regulatory Commission [“DERC”] under Section 61 of the Delhi Electricity Reform Act, 2000.
9. Mr. Jain contends that the present case is covered by Chapter VIII of the 2002 Regulations, entitled “Violation of Provision(s) of Tariff Schedule”. He submits that Regulations 31, 32 and 33 provide for the procedural safeguards which are required to be observed before any charge can be levied on a consumer for violation of the provisions of the tariff schedule.
10. Regulations 31 to 33 of the 2002 Regulations provide as follows:- “31. Procedure for levy of charges other than normal tariff for violation of provision(s) of Tariff Schedule
(i) The licensee shall not be entitled to levy any charge on account of violation of provision(s) of Tariff Schedule prior to the date of last reading/inspection and in no case beyond past six months from the date of the current reading/inspection.
(ii) In the Inspection Report the nature of violation shall be clearly mentioned.
(iii) The inspection report and the show cause notice thereto must be signed by an authorised signatory of the licensee and must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises. Simultaneously, the inspection report and the notice shall be sent to the consumer under Registered Post.
(iv) The consumer shall be served upon with a 7 working day show cause notice at site as to why charges on account of violation of the provision(s) of Tariff Schedule, indicated in the inspection report, should not be levied on him/her. The notice should clearly state the time, days and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
32. Submission of consumer's reply
(i) Within 7 working days. from the date of receipt of inspection report/show cause notice the consumer may submit a reply or deposit prescribed inspection fee and request the licensee to do site verification again.
(ii) Within 7 working days from the date of such request the licensee shall arrange an inspection of the consumer's premises and shall do site verification.
(iii) Within 7 working days from the date of submission of consumer's reply, if made within stipulated time, or the date of second inspection, whichever is later, the licensee shall analyse the case after carefully considering all the documents, submissions by the consumer, facts on record and the report of inspection on consumer's request. If it is concluded that there is no violation of any provision of Tariff Schedule, the case of violation of provision (s) of Tariff Schedule shall be dropped immediately and the decision shall be communicated to the consumer under proper receipt within 7 working days from the date of taking the decision.
(iv) If it is concluded that charges on account of violation of the provision(s) of Tariff Schedule be levied, the licensee shall arrange personal hearing with the consumer within 15 days from the date of such decision.
33. Personal hearing
(i) During the personal hearing the licensee shall give due consideration to the facts submitted by the consumer along with the facts on record and pass a speaking order as to whether the case of violation of provision(s) of Tariff Schedule is established or not. In case, violation of provision(s) of Tariff Schedule is not established, the case shall be withdrawn immediately. In case of establishment of the case of violation of provision(s) of Tariff Schedule the licensee shall levy the charges on this account from the date of reading/inspection immediately preceding the date of issue of notice to the consumer provided that this date shall not be beyond past six months from the date of issue of notice. The speaking order shall clearly state the decision taken and the charges to be levied with their effective dates. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.
(ii) The licensee shall recover these charges through subsequent electricity bills and permit recovery in instalments, if needed.”2
11. In the present case, the petitioner’s submission is that the bill for October 2004 has been raised on an allegation of violation of the tariff condition, viz., that the MDI, in respect of the petitioner’s connection, exceeded the limit of 100KW for SIP connections. This contention is borne out by paragraphs 10 and 20 of the counter affidavit filed by the respondent, which are reproduced below:-
Emphasis supplied. Therefore, the bill raised by the Respondent is justified. The Petitioner, in challenging the said bill by means of a Writ Petition, is misusing the provisions of the Constitution. There are equally efficacious remedies available to the petitioner even if the petitioner were to have a genuine grievance, apart from filing a petition under Article 226, Constitution of India. xxxx xxxx xxxx
20. Para 20 is wrong and is denied. It is wrong to allege that the requirements of Natural Justice are being violated by the Respondent in any manner. The tariff which provides for the charges to be levied, does not stipulate any such notice being given by the Respondent to each consumer. The date on which the bill has been based is verifiable data, and is recorded electronically, through a computer system. Therefore, there is complete transparency in the functioning of the respondent. The fact is that for a period of six months after the MDI exceeds 100 KW, the LIP tariff is chargeable.”3
12. It is clear from these averments of the respondent itself, that the respondent justified the levy of “bulk supply tariff” [also known as Mixed Load High Tension(MLHT)/LIP], on the basis of clause 10.2.1.[1] of the tariff for the year 2004-05. Paragraph 10 of the counter affidavit discloses the respondent’s contention that MDI in excess of 100KW in respect of a Non-domestic Low Tension (NDLT)/SIP connection, would render the consumer liable to bulk tariff for a period of 6 months, after the load is brought within the SIP/NDLT limit. The same contention is reiterated in paragraph 20 of the counter affidavit. On the basis of these averments, I am of the view that the case does involve an allegation of violation of the provision of tariff schedule, pursuant to which LIP tariffs are sought to be charged upon the petitioner.
13. Viewed in this context, Regulations 31 to 33 of the 2002 Regulations clearly require issuance of a show cause notice and grant of a personal hearing. Factually, these requirements have not been fulfilled. Emphasis supplied. The petitioner had also submitted a request on 28.10.2004 for a reinspection of the premises for verification of the load [Annexure P-9 to the writ petition], which was also not granted.
14. On the basis of paragraph 20 of the counter affidavit, Mr. Hasija submits that the requirements of natural justice do not apply in the present case, as the present the bill was electronically generated through a computer system, and not on the basis of inspection and reading as contemplated in Regulation 31.
15. As far as this aspect is concerned, the Regulations in force at the time, were admittedly the 2002 Regulations. Even if the system of inspection and reading of meters had been substituted by the methodology of electronic meter and electronic billing, this cannot supersede the regulatory incorporation of the rules of natural justice, manifested in the requirement of a show cause notice, re-inspection request, and personal hearing.
16. The matter must therefore be remanded to the respondent for consideration in accordance with the Regulations.
17. At this distance of time, particularly when each of the parties has articulated its position in pleadings filed before this Court, I am of the view that issuance of a show cause notice and reply thereto are unnecessary. However, the petitioner must be afforded of an opportunity of hearing. For this purpose, the petitioner is permitted to submit a comprehensive representation to the respondent within two weeks from today. Mr. Hasija states that the representation may be submitted to Mr. Sunil Singh, Assistant Vice President of the respondent. The personal hearing will be provided in terms of Regulations 31 to 33 of 2002 Regulations, and a reasoned decision will follow thereafter. If the petitioner is aggrieved by the decision, it will be at liberty to approach CGRF in accordance with law.
18. During the pendency of this writ petition, the petitioner has been protected against disconnection by an ad interim order dated 03.01.2005. Although the petitioner has sold the premises, Mr. Jain submits that the petitioner may be protected from coercive steps, until the decision is taken by the respondent in terms of this order and for a short period thereafter to enable it to approach CGRF, if necessary. Having regard to the above, it is directed that no coercive steps will be taken pursuant to the impugned demand until an order is passed in terms of the directions given hereinabove, and for a period of six weeks thereafter. If necessary, the petitioner may approach CGRF for interim relief, which CGRF may consider in accordance with law.
19. The writ petition stands disposed of with these observations.
PRATEEK JALAN, J NOVEMBER 27, 2024 „pv/Jishnu‟/