UTTARANCHAL POWER CORPORATION LTD Vs. OMBUDSMAN

JUDGEMENT

(1.) In all these writ petitions common question of law has been raised on behalf of the petitioners, as such these matters are being taken up together. The question raised in these petitions is that whether the petitioners have a right to realise System Loading Charges (for short SLC) from the Industrial Consumers without their being, express approval in this regard from Uttarakhand Electricity Regulatory Commission (for short UERC), and whether the Ombudsman (or Consumer Grievance Redressal Forum in W.P. 1243 of 2008(M/S) has erred in law in directing to the petitioners to refund the charges recovered as S.L.C., from them.

(2.) Heard learned counsel for the parties and perused the affidavits, and counter affidavits filed by the parties, in the writ petitions.

(3.) Brief facts of the case are that Uttaranchal Power Corporation Limited (for short UPCL) is a licensee, authorized to operate and maintain a distribution system in supplying electricity to the consumers, and its functioning is governed by the provisions contained in Electricity Act, 2003 (for short the Act) . Part IV of said Act contains provisions relating to distribution of Electricity. Sub section (5) of section 42 of the Act provides that the licensee shall establish a Forum for Redressal of Grievances of the consumers in accordance with the guidelines as may be specified by the State Commission. Sub section (6) of section 42 of the Act provides that any consumer, who is aggrieved by non redressal of his grievances under Sub section (5), may make a representation before an authority known as Ombudsman, to be appointed by the State Commission. Chapter-VII of the Act deals with the tariff. Section 62 in the chapter provides that the State Commission shall determine tariff in accordance with the provisions of the Act for supply of electricity by a generating company to a distribution licensee, transmission of electricity; wheeling of electricity; and retail sale of electricity; respondent no.2 in the writ petitions are consumers of UPCL within the meaning of section 2 (15) of Electricity Act, 2003, who have entered into agreement with the petitioners. The Consumers (respondent no.2 of the writ petitions) filed complaints before Consumer Grievances Redressal Forum stating that in view of para 8.2.4.4 of tariff order dated 20th of September 2003 issued by UERC System Loading Charges (SLC), is not payable by the consumer. Respondent no.2 of each writ petition pleaded before Consumer Grievances Redressal Forum that the amount so charged by UPCL (petitioner) be refunded with interest. Said authority (except in writ petition no.1243 of 2008 M/S)after hearing the parties rejected the complaints. Aggrieved by the orders of Consumer Grievances Redressal Forum, respondent no. 2 of the writ petitions, made representations before Ombudsman {except in writ petition no. 1243 (M/S) of 2008}. The Ombudsman vide impugned order dated 07.02.2007 allowed the representations and directed the petitioners to refund the charges recovered as SLC. As far as order dated 17.06.2008 passed by Consumer Grievances Redressal Forum, Garhwal, challenged in writ petition no. 1243 (M/S) of 2008 is concerned, the complaint/petition of the Consumer was allowed by the Forum itself, which is challenged by the writ petitioner before this court. The petitioners have challenged the orders of the Ombudsman and (in the five writ petitions) and order of Consumer Grievances Redressal Forum (in W.P. no. 1243 (M/S) of 2008), on the ground that System Loading Charges are part of the capital expenditure, as such there was no need for express direction from Regulatory Commission to realise it . It is further pleaded that prior to 08.09.2003 SLC was being charged from industrial Consumers as it was necessiated as each release of load, puts a burden on the power system which requires upgradation, augmentation and strengthening. Section 62 of Electricity Act, 2003, empowers UERC to approve the revenue requirement of the licensee (petitioners) in the process of laying down rates of supply of Electricity to the Consumers, but that does not include expences of the licensee incurred in supplying electricity to the consumers. Though the provision is made under section 46 of the Act that the State Commission may, by regulation, authorize distribution licensee to charge expences from the person, incurred in providing the electric line or supply, but UERC has failed to make any provision in this regard. In view of the failure on the part of the UERC it is pleaded that the petitioners had committed no illegality in taking SLC from the industrial Consumers, as such the impugned order challenged in the writ petitions passed by Ombudsman is illegal and sought to be quashed. In WP No. 1243(M/S) of 2008 order passed by Consumer Grievances Redressal Forum on the same ground sought to be quashed.