FERDINO I.REBELLO,C.J. - (1.) THE contesting respondent has raised a preliminary objection that the appeal, as filed, is not maintainable in view of Rule 5 Chapter VIII of the Allahabad High Court Rules, 1952 (hereinafter referred to as the ''Rules').
(2.) TO answer the issue, we may briefly set out some facts. A petition came to be filed by respondent no.3 before the Electricity Grievance Redressal Forum (hereinafter referred to as the ''Forum'), wherein an application for interim relief was also filed. The Forum, by its order dated 17.03.2007 rejected the petition for stay and application for interim relief. The respondent no.3, thereafter, made a representation to the Electricity Ombudsman, which was numbered as Appeal No. 08 of 2007. The Ombudsman, by a detailed order, was pleased to hold that the consumer is not liable to pay the difference in KVAH of main meter and check meter and, consequently, allowed the appeal filed by respondent no.3 herein. Further direction was issued that the appellant herein shall provide the bill only on the basis of main meter No. UPE 54864 up to 19.09.2006 and thereafter on the basis of new main meter No. UPE 64196. The appellant, aggrieved by the said order, filed a petition before this Court being Writ Petition No. 5670 (M/S) of 2007. A learned Single Judge, by order dated 16.12.2008, was pleased to hold that the finding of fact recorded by the Electricity Ombudsman does not seem to suffer from any impropriety or illegality and, consequently, dismissed the petition. The appellant, against the said order, preferred a review petition, which was numbered as Review Petition Defective No. 105 of 2009 and, as none appeared for the appellant herein, the learned Judge, by order dated 23.04.2010, was pleased to hold that there appeared to be no error on the face of the record calling for interference by this Court and dismissed the review petition. An application to recall the order dated 23.04.2010 was moved, which came to be dismissed by order dated 09.07.2010 on the ground that the application was not maintainable, as the review petition had already been dismissed by order dated 23.04.2010. The present appeal has been preferred against the aforesaid three orders. Since the main order dated 16.12.2008 itself is the subject matter of this appeal, it is not necessary to consider the legality of the order passed in review petition and the order passed on the application for recalling the order dated 23.04.2010 as the main order is impugned before us.
(3.) THE controversy before us is, whether the present appeal filed against the order dated 16.12.2008 is maintainable? There is no doubt that the order has been passed by the Ombudsman pursuant to the powers conferred under Section 42 of the Electricity Act, 2003 (hereinafter referred to as the ''Act'), which reads as under:- "Section 42 - Duties of distribution licensee and open access. (1) It shall be the duty of a distribution licensee to develop and maintain an efficient, co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act. (2) The State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling, it shall have due regard to all relevant factors including such cross subsidies, and other operational constraints: PROVIDED that such open access shall be allowed on payment of a surcharge in addition to the charges for wheeling as may be determined by the State Commission: PROVIDED FURTHER that such surcharge shall be utilised to meet the requirements of current level of cross subsidy within the area of supply of the distribution licensee: PROVIDED also that such surcharge and cross subsidies shall be progressively reduced in the manner as may be specified by the State Commission: PROVIDED also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use: [PROVIDED also that the State Government shall, not later than five years from the date of commencement of the Electricity (Amendment) Act, 2003, by regulations, provide such open access to all consumers who require a supply of electricity where the maximum power to be made available at any time exceeds one megawatt. (3) Where any person, whose premises are situated within the area of supply of a distribution licensee, (not being a local authority engaged in the business of distribution of electricity before the appointed date) requires a supply of electricity from a generating company or any licensee other than such distribution licensee, such person may, by notice, require the distribution licensee for wheeling such electricity in accordance with regulations made by the State Commission and the duties of the distribution licensee with respect to such supply shall be of a common carrier providing non-discriminatory open access. (4) Where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the distribution licensee of his area of supply, such consumer shall be liable to pay an additional surcharge on the charges of wheeling, as may be specified by the State Commission, to meet the fixed cost of such distribution licensee arising out of his obligation to supply. (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. (6) Any consumer, who is aggrieved by non-redressal of his grievances under sub-sec. (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission. (7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission. (8) The provisions of sub-sections (5), (6) and (7) shall be without prejudice to right which the consumer may have apart from the rights, conferred upon him by those sub-sections." ;