IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9346 of 2008 1. Bihar State Electricity Board through its Secretary, Vidyut Bhawan, Bailey Road, Patna. 2. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. -Petitioners. VERSUS 1. The Bihar Electricity Regulatory Commission, through its Secretary, Vidyut Bhawan-II, Bailey Road, Patna. 2. The Consumer Grievance Redressal Forum, Vidyut Bhawan-II, Bailey Road, Patna through its President/Chairperson. 3. Poonam Verma wife of Sunil Kumar Verma, resident of Mohalla-Bakarganj Bazar, P.S.-Pirbahore, District-Patna. 4. M/s Gramin Cold Storage (P) Ltd. through its Director, Sunil Shekhar son of Sri Yudhishtar Mandal, Salehpur, P.S.-Habibpur, Town & District-Bhagalpur. 5. M/s Maa Sheet Grih (P) Ltd., through its Managing Director Banarsi Lal Khetan, Son of Late Megh Raj Khetan, resident of Gurudwara Road, P.S.- Kotwali, Town & District-Bhagalpur. 6. M/s Parwati Industries, Simli Murarpur, Patna City through its Partner Vijay Kumar, Son of Late Ram Prayag Yadav, resident of Simli Nawabganj, P.S.- Malsalami, Town-Patna City, District-Patna. -Respondents. WITH CWJC No.3136 of 2009 Shivajee Sah, Son of Late Musadi Sah, resident of village-Mirpur, P.S.- Chiriya, District-East Champaran. -Petitioner. VERSUS 1. Bihar State Electricity Board, through the Chairman, Vidyut Bhawan, Baily Road, Patna. 2. The Secretary, Bihar State Electricity Board, Patna. 3. Executive Engineer, Electricity Supply Division, Raksol. 4. Assistant Electricity Engineer, Electricity Supply Sub-Division, Daka. -Respondents. ----------- (In C.W.J.C. No.9346 of 2008) For the Petitioner : Mr. Y.V. Giri, Sr. Adv. Mr. Raju Giri. For Respondent No.1 : Mr. Shrinandan Pd. Singh. Mr. Ashok Kumar. For Respondent Nos.1&5: Mr. S.S. Rekhi. (In C.W.J.C. No.3136 of 2009) For the Petitioner : Mr. Satyendra Kr. Sinha. For the B.S.E.B. : Mr. Anand Kumar Ojha. ------------- - 2 - 11 22.04.2010 These two writ petitions raise interlinking questions of law. The first writ petition being C.W.J.C. No.9346 of 2008 has been filed by the Bihar State Electricity Board and its raises two issues. First is in relation to the jurisdiction of the Consumer Grievance Redressal Forum as created by the Bihar State Electricity Board (hereinafter referred to as the Board) itself in terms of Section 42(5) of the Electricity Act, 2003, which question has already been answered against the Board in the case of M/s Bikaner Plasto Flex Private Limited Vs. The State of Bihar & Ors. being C.W.J.C. No.18528 of 2008 disposed of on 04.02.2009, and the said decision has not been interfered with and stands affirmed in the case of Bihar State Electricity Board Vs. M/s Bikaner Plasto Flex Private Limited & Ors. being L.P.A. No.401 of 2009, which was dismissed on 21.04.2010. But, I intend to deal with the issues in brief once again for there remains some confusion in the Board. The second issue is with regard to the competence and jurisdiction of the Bihar Electricity Regulatory Commission to entertain disputes on its own or at behest of consumers as against the Board. The second writ petition being C.W.J.C. No.3136 of 2009 is by a consumer for issuance of a writ of mandamus to the respondent Board to obey and implement the orders of the forum as constituted by the Board in terms of Section 42(5) of the Act. A related issue that arises is as to how the orders of the forum, Ombudsman and the Bihar Electricity Regulatory Commission are to be enforced and what would be the consequence of non- - 3 - compliance thereof by the Board. Mr. Y.V. Giri, learned Senior Counsel appears for the Board in the first writ petition and Mr. Anand Kumar Ojha appears for the respondent Board in the second writ petition. The petitioner in the second writ petition and private-respondents in the first writ petition are represented. Having heard the matter, with consent of parties, the writ petitions are disposed of at this stage itself. So far as the first question as indicated above is concerned, the forum for Redressal of grievances of consumer is to be created by the Board itself. Section 42 of the Electricity Act, 2003 deals with the duties of distribution licensee. The Bihar State Electricity Board apart from being a generating licensee is also a distributing licensee. That is not in dispute. The obligation being caste upon the Board itself to create the forum for redressal of consumer’s disputes. The contention of the Board is that “consumer” would not include “commercial consumers”. The argument is noted only to be rejected because Section 2(15) of the Act defines a consumer and includes any person whose premises for the time being is connected for the purpose of receiving electricity. The expression person is then defined in Section 2(49) which includes Companies or body corporate etc. Thus seen, the law does not make any distinction between the private consumers or commercial consumers and I wonder from where this cynical distinction is sought to be drawn - 4 - by the Board. Thus, any person who is supplied with electrical energy by the Board is a consumer within the meaning of Section 42(5) of the Act, and any dispute he has with the Board in relation to supply of energy or charges in respect thereof, or any service conditions in relation thereto, the dispute would lie to the forum. I would like to point out here that the forum is the creature of the Board itself. I wonder how the Board itself can challenge its order or disregard its order. Board has no such discretion in the matter of implementation of orders of the forum. The first issue is answered accordingly against the Board. Coming to the second issue, as to whether the Bihar Electricity Regulatory Commission is competent to deal with a dispute qua consumer and Board one has to refer to Section 86(1)(f). The Commission has been conferred power to adjudicate disputes between the licensees and the generating company and to refer any dispute for arbitration. Firstly, I must clarify that the expression “refers any dispute for arbitration” qualifies the first part of the said provision. Those disputes would be disputes between the licensee and the generating company. The consumer is not a licensee under the Act nor can it be said to be generating company. A dispute qua consumer with the Board is beyond the jurisdiction of the Regulatory Commission and advisedly so because so far as consumer is concerned, he has in addition to others, the consumer forum available for redressal of his grievances being the forum under Section 42(5) of the Act or if he - 5 - is still aggrieved, by an appeal to the Ombudsman in terms of Section 42(6), but, surely the consumer cannot go to the Regulatory Commission even from an order passed by the Ombudsman nor can the Regulatory Commission suo motu take up such a dispute. Thus, this issue is decided in favour of the Board. Here, I would like to clarify one position, which was taken by the Regulatory Commission to justify its jurisdiction to entertain such matters. It had referred to Section 128(1) of the Act. To this, I may only add Section 129 as well. A conjoint reading of Sections 128 & 129 would show that the Regulatory Commission has the jurisdiction to interfere where it finds that the licensee is violating the Act or the terms of licenses. In my view, though a dispute would not lie directly to the Regulatory Commission qua consumer and licensee, but certainly the complaint of a consumer of non-implementation of orders of the forum or the Ombudsman by the licensee would surely lie to the Commission. The reason is, thus. As noted in my answer to the first issue. Once the forum as constituted under Section 42(5) passes an order then the licensee (Board) has absolutely no discretion in the matter. The Act contemplates compliance thereof, of course, if the Board is aggrieved by the said order, it may challenge it, the propriety of which may be subject to question, because the forum is Board’s own creation and a part of the Board to dispense statutory function. But, the facts remains that once an order passed by the forum, the Board cannot sit over it or sit on it and, if it does so, it is clearly - 6 - violating the Act. If it violates the Act, the jurisdiction of the Regulatory Commission to check such violation and issue such orders for enforcement of orders of either the Ombudsman or the forum. I may also point out that Section 128 and for that matter Section 129 are in Part XII of the Act dealing with investigations and enforcement. Enforcement would be enforcement of the Act, Rules, Regulations and Orders issued thereunder. Mr. Giri relies on a judgment of the Apex Court in the case of Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Limited & Ors. since reported in (2007) 8 Supreme Court Cases 381 for the proposition that the Regulatory Commission has no jurisdiction under Section 128 of the Act. In my view, the judgment is otherwise. The judgment clearly upholds the jurisdiction of the Board under Section 128 of the Act, but on the facts the Apex Court disapproves the order. The Court points out that if there is an individual grievance that cannot be taken up by the Commission for it is to be taken up by the forum under Section 45 that would be followed by Ombudsman under Section 46. That is not the case in the present. In the present case, the Regulatory Commission was moved by the consumers, seeking implementation of the orders of the forum. The Commission was not to resolve any dispute. The Commission was being asked to see whether the licensee was violating the terms of its licence or not, indeed by not implementing the order of the forum, which is a statutory body. - 7 - The licensee was violating the Act and, hence, the Regulatory Commission did have the jurisdiction to entertain such an appeal or a complaint. It would have been a different matter where the consumer has come to the Commission for resolving a dispute. That is not the case. If anything the judgment relied upon by Mr. Giri helps the Regulatory Commission rather than Board in any manner. Next, I must refer to Section 142 of the Act, which provides for punishment of non-compliance of direction of the Regulatory Commission. If we see the scheme of the Act, that is, if a consumer has a dispute he goes to the forum under Section 42(5) of the Act, the dispute not being fully resolved, he goes to Ombudsman under Section 46(2). The dispute being resolved, the Board, the licensee refusing to obey, what happens then? The Act does not provide any manner of enforcement of the orders. The only way they can be made enforceable is for a consumer then to go to the Commission pointing out that by non-enforcement of the order of the statutory authority the Board, the licensee is violating the terms of the licence. The Regulatory Commission has to pass order and directions in that regards. This is where Section 142 becomes relevant because it provides that in case any complaint is filed before the Regulatory Commission by any person or if that Commission is satisfied that any person contravening any provision of the Act or any direction issued by the Commission, the Commission may impose penalty, as provided therein, which - 8 - shall not exceed Rs.1 lac for each contravention and Rs.6 thousand per day for a continuing contravention. This is the only effective method of implementation of orders passed by statutory authorities like the forum or Ombudsman. Mr. Giri refers to Clause 24 of the Bihar Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2006, which are regulations, which have been framed by the Regulatory Commission in respect of Section 42. This provides that any order or award passed by the Electricity Ombudsman shall be implemented by the licensee or the person required and failure to implement them would be punishable under Section 142 of the Electricity Act. Mr. Giri submits that for non-compliance of orders issued by the forum under Section 42(5), a consumer may move to the Ombudsman under Section 42(6) and, thus, by reading Clause 24 of the said Regulations a direction issued by the Ombudsman would be binding and failure to comply would be penal and, thus, the order could be enforced. In my view, the submission is misconceived. Once a person moves a forum and his grievances are redressed then there is no occasion to move Ombudsman. He moves the Ombudsman only when his grievances are not fully redressed by the forum. If what Mr. Giri submits is accepted, the result would be that if the forum gives full and complete relief to the consumer, which leads to no case to the Ombudsman and consequently Ombudsman - 9 - passes no order then the licensee/Board can turn around and show a big thumb to the consumer and leave the consumer in lurch without implementing the order. Regulation 24 aforesaid would not come in play. That surely is not the scheme of the Act nor is a consumer is required to go to the Ombudsman merely to get the order of the forum implemented, the scheme is otherwise. Where a consumer dispute is first to be resolved by the forum, the consumer not being fully satisfied can appeal to the Ombudsman. Not complying with directions of Ombudsman, by virtue of Clause 24 of the Regulations aforesaid, would be penal, but if the full grievances has been met at the forum level and if the orders are not implemented, which the licensee is bound under Act to implement, that would attract Sections 128 & 129 and give jurisdiction to the Regulatory Authority to issue directions for implementation of the Act, the Rules, the Regulations and the terms of licence, failure on part of the licensee to then implement the orders would attract penalty under Section 142, that in my view is the true scheme of the Act, otherwise there would be no end to harassment of the consumer with no legal obligation on the licensee to comply with statutory directions and orders. That answers the second issue. Now, we come to the second writ petition. In the second writ petition, the prayer of the petitioner is to issue a writ in the nature of mandamus to the Board to obey the order of the forum. In my view, the writ petition is maintainable because the licensee, the Board has no discretion in the matter. Once the - 10 - forum has decided an issue between the parties, the licensee has to implement the order as indicated above. If the licensee fails to implement, apart from the scheme as aforesaid, in exceptional circumstances, the consumer has a right to move this Court under Article 226 and pray for issuance of a writ in the nature of mandamus to the Board to comply with the order of statutory forum. This Court would issue writ in that regard without examining the correctness of the order of the forum. This has been settled by the Constitution Bench of the Apex Court as far back as in the case of Bhopal Sugar Industries Limited Vs. Income Tax Officer, Bhopal since reported in AIR 1961 Supreme Court 182. In that case, the Income Tax Appellate Tribunal had given its final order. The Income Tax Officer refused to give effect to the final order, the petitioner approached the High Court for implementation of the said order, the High Court refused to issue mandamus on the ground that no injustice would be caused by the order of the Income Tax Officer as in view of the High Court error was committed by the Tribunal itself in its order. The matter reached the Apex Court. The Apex Court held thus:- “Where the Income-tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income Tax Appellate Tribunal, had given to him by its final order in exercise of its appellate powers in respect of an order of - 11 - assessment made by him, such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is on the hierarchy of Courts. In such a case a writ of mandamus should issue ex debito justitiae to compel the Income-tax Officer to carry out the directions given to him by the Income Tax Appellate Tribunal. The High Court would be clearly in error if it refuses to issue a writ on the ground that no manifest injustice had resulted from the order of the Income-tax Officer in view of the error committed by the Tribunal itself in its order. Such a view is destructive of one of the basic principles of the administration of justice.” Thus, this issue is decided against the Board and in favour of the consumer. With these observations and directions, the two writ petitions are disposed of. Trivedi (Navaniti Prasad Singh, J.)