UTTARAKHAND POWER CORPORATION LTD Vs. OMBUDSMAN
LAWS(UTN)-2012-1-2
HIGH COURT OF UTTARAKHAND
Decided on January 02,2012

UTTARAKHAND POWER CORPORATION LTD. Appellant
VERSUS
OMBUDSMAN Respondents

JUDGEMENT

BARIN GHOSH, J. - (1.) ALL these appeals have raised identical questions of fact and law, and accordingly, they are being disposed of by this common judgment and order.
(2.) UTTARAKHAND Electricity Regulatory Commission, constituted by and under the Electricity Act, 2003, made and published tariff order on 8th September, 2003, whereby and under, it provided 'no system loading charge will be payable' under the heading 'industrial consumers'. In the next tariff order for the Financial Year 2005-06, UERC repeated what it had stated in its order dated 9th September, 2003, and on top of that directed refund of the same together with interest at bank rate. Appellant subsequent to 8th September, 2003, charged system loading charge from the respondents. Respondents, accordingly, approached the Consumer Grievances Redressal Forum, constituted by the appellant under sub-section (5) of Section 42 of the Act. Forum held that system loading charge is no part of tariff, and accordingly, UERC had no authority to speak in relation thereto in the tariff order. Being aggrieved by the said decision of the Consumer Grievances Redressal Forum, the respondents went before the Ombudsman, appointed or designated by the State Commission under subsection (6) of Section 42 of the Act. The Ombudsman held that a decision has been taken by UERC that no system loading charge will be payable, and accordingly, the respondents have no obligation to pay the same, and at the same time the appellants had also no right to claim the same. That being the situation, the Ombudsman set aside the order of the Consumer Grievances Redressal Forum, and directed refund of system loading charge collected by the appellant from the respondents along with interest at bank rate. Aggrieved thereby, the appellants filed writ petitions, where the principal contention was that UERC had no jurisdiction to deal with system loading charge, as the same was no the part of the cost of supply of electricity, but was part of the cost of making the same available at the doorstep of the consumer. It was also the contention of the appellant that UERC did not give any opportunity of hearing to the appellant in relation to its claim pertaining to system loading charge. A learned Single Judge of this court, while dealing with the said writ petition, held that in the absence of UERC, the contentions raised in the writ petition cannot be decided, and accordingly, dismissed the writ petitions. In the present appeals too, it is being contended by the appellant that UERC had no authority to go into the question of deciding the claim of the appellant on account of system loading charge, while settling a tariff order, and in any event the contentions of the appellant pertaining to its claim on account of system loading charge has not been heard by UERC before it passed the order dated 8th September, 2003. It has also been contended that system loading charge is part of capital expenditure required to be incurred for reaching electricity at the doorstep of the consumer, and in terms of the provisions contained in Section 43 of the Act, the appellant has right to recover the same. It has further been contended that in relation to such right of the appellant, though UERC has power to issue a Regulation under Section 46 of the Act, but as yet it has not issued any such Regulation, and accordingly, there is no impediment on the part of the appellant to collect the same.
(3.) SINCE these were the questions, we thought that it would be appropriate to permit the appellants to add UERC as a party to the appeals, and accordingly, UERC has been added as party to the appeals. However, the fact remains that the validity of the order of UERC dated 8th September, 2003 and follow up orders are required to be successfully challenged by the appellant to enable it to claim from the respondents payment of system loading charge, inasmuch as, by the tariff order dated 8th September, 2003, made and published in the manner prescribed in the Act, a representation has been made to the world at large, including the respondents, that no system loading charge is recoverable by the appellant or payable by the respondents. In the circumstances, until the appellant successfully removed the direction to the effect that no system loading charge will be payable, from the tariff order dated 8th September, 2003, since the appellant is equally bound by the said tariff order and the directions contained therein, it could not claim the same. The Consumer Grievances Redressal Forum and the Ombudsman, constituted / designated or appointed, as the case may be, under the provisions of the said Act, had and have no jurisdiction to determine the correctness of a tariff order. In those circumstances, in the writ petition filed by the appellant, in the form as it was filed, the question whether the decision contained in the tariff order dated 8th September, 2003, to the effect that no system loading charge will be payable is or is not correct could not, nor can be gone into. The same has to be challenged in the manner provided in the Act, and that is by preferring an appeal. We are told that a writ petition was filed to challenge the same, which has since been withdrawn.;


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