IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 WP(C).No. 28973 of 2011(V) ---------------------------------------- PETITIONER(S): ------------------------- M/S.L & T TECH PARK LTD., 1 ST FLOOR, “TEJOMAYA”, INFO PARK SPECIAL ECONOMIC ZONE, KUSUMAGIRI P.O, KAKKANAD, KOCHI-682 030, REP. BY ITS PROJECT-IN-CHARGE, JIMMY GEORGE, AGED 53, S/O.K.C.GEORGE,R/A.34/663A,KUTTICKAL, PALARIVATTOM PO, MAMANGALAM, ERNAKULAM DISTRICT. BY ADVS. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH). RESPONDENT(S): --------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 001. 2. THE SPECIAL OFFICER, MANAGING COMMITTEE, KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM-695 001. 3. THE ELECTRICITY OMBUDSMAN, PALLIKAVIL BUILDINGS, MAMANGALAM-ANCHUMANA TEMPLE ROAD, OPPOSITE COCHIN CORPORATION REGIONAL OFFICE, EDAPPALLY,PIN-682 024. 4. THE KERALA STATE ELECTRICITY REGULATORY COMMISSION, C.V.RAMAN PILLAI ROAD, VELLAYAMABALAM, THIRUVANANTHAPURAM-695 010. 5. M/S.KINESCO POWER AND UTILITIES (P) LTD, KUSUMAGIRI P.O., KAKKANAD, KOCHI-30. BY ADV. SRI. T.R. RAJAN, SC, KSEB R4 BY ADV. SRI.ANEESH JAMES,SC,KSEB REGULATORY COMN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28973/2011 V APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1. A TRUE COPY OF THE ORDER OF THE HON'BLE OMBUDSMAN DATED 30.04.2009. EXHIBIT P2. A TRUE COPY OF THE COMMUNICATION OF THE FOURTH RESPONDENT DATED 21.10.2009. EXHIBIT P3. A TRUE COPY OF THE LETTER OF THE OMBUDSMAN DATED 22.7.2010. EXHIBIT P4. A TRUE COPY OF THE ORDER PASSED BY THE OMBUDSMAN DATED 1.8.2011. EXHIBIT P5.. A TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT DTD. 14/09/2011. EXHIBIT P6: COPY OF THE COMMUNICATION BY THE FOURTH RESPONDENT DTD. 19/10/2011. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ....................................................... W.P.(C).28973/2011 .............................................. Dated this the 2nd day of November, 2011 JUDGMENT Petitioner is a consumer of the first respondent availing supply of electricity from the fifth respondent. Aggrieved by Ext.P4 order passed by the third respondent, they have filed Ext.P5 application before the fourth respondent. Ext.P5 application is scheduled to be heard on 16.11.2011. It is stated that in the meanwhile, the fifth respondent is demanding payment of the amount due from the petitioner in terms of Ext.P4. It is in these circumstances the writ petition is filed seeking a direction to the fourth respondent to consider Ext.P5 and in the meanwhile, the fifth respondent shall not take coercive action for payment of the amount due under Ext.P4. 2. On behalf of the fourth respondent, relying on the Apex Court judgment in Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd, and Others (2007 (8) SCC 381), the learned counsel contends that the application is not maintainable. In the aforesaid judgment, in paragraph 31 to 33 the Apex Court has held thus:- W.P.(C).28973/11 2 “The basic question which arises for our consideration in this appeal is whether the individual consumer can approach the Commission under the Act or not. For deciding this question, the relevant provision is Section 42(5) of the Act, which reads as under: “42. Duties of distribution licensee and open access - (1)-(4) (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.” As per the aforesaid provision, if any grievance is made by a consumer, then they have a remedy under Section 42(5) of the Act and according to sub-section (5) every distribution licensee has to appoint a forum for redressal of grievances of the consumers. In exercise of this power the State has already framed the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Ombudsman) Regulations, 2003 (hereinafter referred to as “the 2003 Regulations”) and created Consumer Grievance W.P.(C).28973/11 3 Redressal Forum and Ombudsman. Under these 2003 Regulations a proper forum for redressal of the grievances of individual consumers has been created by the Commission. Therefore, now by virtue of sub-section (5) of Section 42 of the Act, all the individual grievances of consumers have to be raised before this forum only. In the face of this statutory provision we fail to understand how could the Commission acquire jurisdiction to decide the matter when a forum has been created under the Act for this purpose. The matter should have been left to the said forum. This question has already been considered and decided by a Division Bench of the Delhi High Court in Suresh Jindal v. BSES Rajdhani Power Ltd and Dheeraj Singh v. BSES Yamuna Power Ltd and we approve of these decisions. It has been held in these decisions that the forum and ombudsman have power to grant interim orders. Thus a complete machinery has been provided in Sections 42(5) and 42(6) for redressal of grievances of individual consumers. Hence wherever a forum/ombudsman have been created the consumers can only resort to these bodies for redressal of their grievances. Therefore, not much is required to be discussed on this issue. W.P.(C).28973/11 4 As the aforesaid two decisions correctly lay down the law when an individual consumer has a grievance he can approach the forum created under sub-section (5) of Section 42 of the Act.” 3. From the law laid down by the Apex Court, it is obvious that the application made by the petitioner before the fourth respondent is not maintainable. In such circumstances, this Court will not be justified in issuing any direction as sought for. However, it is clarified that the contentions raised on merits are left open. Subject to the above clarification, the writ petition is dismissed. ANTONY DOMINIC, Judge mrcs