IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.12647 of 2008 Date of decision: 1st December, 2009 Punjab State Electricity Board … Petitioner Versus The Garrison Engineer and another … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. P.S. Thiara, Advocate for the petitioner. Mr. R.K. Chugh, Advocate for respondent No.1. Mr. Ramesh Goyal, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present writ petition has been filed by Punjab State Electricity Board (hereinafter referred to as, ‘PSEB’). They are aggrieved against the order passed by the Ombudsman, Electricity, Punjab, whereby he rightly held that M/s Garrison Engineers, Ferozepur Road, Ludhiana, who provide electricity to the Ministry of Defence, is a Distribution Licensee and not a consumer. Brief facts of the case can be recapitulated as under. M/s Garrison Engineers, Ludhiana are supplied electricity by PSEB. The electricity is supplied at 11 KV and same is used by the Military Engineering Services for the Baddowal Military Complex, located at Ferozepur Road, Ludhiana. MES is having a regular account with the PSEB. The PSEB allegedly conducted a raid on the premises of MES on 26th February, 2004. The raiding party consisted of Assistant Executive Engineer, belonging to the Enforcement Wing of PSEB. According to the Civil Writ Petition No.12647 of 2008 raiding party, M/s Garrison Engineers were having two transformers with capacity of 1200 KVA (one transformer of 800 KVA and another of 400 KVA). A reference was made to Electricity Supply Regulation No.88.5.2, according to which upon bulk supply consumers, no load charges are applicable. However, in case the consumer increases his 11 KV transformer capacity, then the consumer is liable to pay charges at the rate of Rs.750/- per KW for each default. PSEB fastened the respondent with charges of Rs.4,50,000/- for excess transformer capacity of 600 KVA and another payment of Rs.16,875/- on account of generator set permission fee. A notice was issued to this effect. Respondent deposited 33 per cent of the amount and the dispute was referred to the Zonal Level Dispute Settlement Committee (hereinafter referred to as, ‘ZLDSC’). Respondent had raised another argument before the ZLDSC that the matter regarding the extension of load of 1053 KW was pending with the petitioner. ZLDSC upheld the assessment of the raiding party. Thereafter, respondent approached the Dispute Settlement Authority. The Grievance Redressal Forum also upheld the demand, which lead the respondent to approach Electricity Ombudsman. The Ombudsman accepted the appeal and passed the impugned order (Annexure P-4). This order has been challenged by the PSEB. Section 42(5) of the Electricity Act, 2003 reads as under: “42. Duties of distribution licensee and open access. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (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.” 2 Civil Writ Petition No.12647 of 2008 The provisions have been enacted to appoint Ombudsman to achieve the laudable object of consumer satisfaction. A consumer can assail the order of Ombudsman. But the Electricity Board having accepted the Ombudsman as a watchdog for smooth conduct of its operations for giving better services to the end consumer, cannot assail the order of Ombudsman, as the order neither suffers from grave error, patent illegality nor the Ombudsman has acted without jurisdiction. The Electricity Board cannot assail the order of Ombudsman in each and every case. The writ Court will be very circumspect to intervene in case the order passed by the Ombudsman is neither perverse nor perfunctory. The parameters for challenging the order passed by the Ombudsman for a consumer and for a service provider are entirely different. I have perused the impugned order (Annexure P-4) passed by the Ombudsman. He has considered all the submissions raised by the respective parties. He has rightly come to the conclusion that respondent No.1 M/s Garrison Engineers, MES, Ferozepur Road, Ludhiana have got the status of deemed licensee and not of a consumer. He has further held that the status of the respondent cannot be altered on the basis of the letters relied by the petitioner, which have been issued subsequent to the checking date. The following finding of the Ombudsman suffers from no infirmity: “5. I have carefully considered the written submissions made, the oral discussions and the documentary evidence produced by both the parties. The claim of the petitioner’s status that of a deemed licensee and not of a consumer as on 26.02.2004 i.e. the date of inspection relying on letters issued by Ministry of Power and PSERC cannot be accepted. The un-bundling of functions of the Respondents i.e. Generation, Transmission and Distribution of Electricity has yet to materialize. Consequential amendment to the Conditions of Supply of Electricity by the concerned 3 Civil Writ Petition No.12647 of 2008 Authorities or Respondents governing the classifications of consumers or chargeable tariffs for various categories of consumer etc. will follow later. Moreover, I am of the view that the status of the petitioner cannot be altered retrospectively as both letters relied upon have been issued subsequent to the checking date. As such, the existing Agreement of the supply of power as entered at the time of seeing connection or extended contract demand as a bulk supply consumer survives. Under the circumstances, the status quo of the appellant continues to fall under the definition and classification of Consumer as per Regulation 2.3 and 6.3 of Conditions of Supply for Sale of Electric Energy notified by the Respondents.” The Ombudsman further held that on the date when the raid was conducted, Senior Executive Engineer (Enforcement) could only raid the premises and carrying of the raid by an officer of lower grade vitiated the same. Furthermore, the case was decided on mutual agreement between the parties and it was observed as under: “Regarding the refund of cost of estimate of augmentation work not having been taken up till date, a mutual agreement between the petitioner and Respondents has been arrived. Both the parties agreed that the existing line of about 40 Amp (11 KV side) with 30 mm2 ACSR should be able to take up the sufficient load in future which is being presently used in the Baddowal Ammunition Depot., Ferozepur Road, Ludhiana. Nevertheless, the service connection charges as per the enhanced load are recoverable and the estimated cost of work of Rs.9,57,986/- and departmental charges as Rs.1,02,650/- are not to be levied. In view of the mutual agreement, it is directed that Respondents will adjust the service connection charges and refund the balance excess amount to the petitioner within two months of the receipt of this order. Appeal is partly allowed.” 4 Civil Writ Petition No.12647 of 2008 This Court fails to comprehend as to why the case, which has been decided by way of mutual agreement, has been made subject matter of the writ petition. At this stage, Mr.P.S. Thiara, appearing for the petitioner, has very fairly stated that the part of the impugned order, which was subject matter of mutual agreement, has not been assailed in the present writ petition. Since, this Court is unable to find any infirmity in the findings recorded by the Ombudsman, which have been challenged before this Court, there is no merit in the present writ petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE December 1, 2009 rps 5