IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 10122 of 2009(I)
1. JOSE FRANCIS, DIRECTOR,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE CONSUMER GRIEVANCE REDRESSAL FORUM,
3. THE ASSISTANT ENGINEER, KERALA STATE
4. KERALA STATE ELECTRICITY REGULATORY
For Petitioner :SRI.KKM.SHERIF
For Respondent :SMT.SREEDEVI KYLASANATH,SC,KSER COMMN.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :09/10/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).Nos.10122 & 10896 of 2009
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Dated this the 9th day of October, 2009
J U D G M E N T
In W.P.(C).No.10122/2009 the petitioner is aggrieved by re-
classification of their electricity connection for the purpose of payment
of electricity charges from LT IV to LT VIIA tariff. The petitioner in W.P.
(C).No. 10896/2009 is aggrieved by similar re-classification from LT
VIA to LT VIIA. According to the petitioners, under Regulation 7 of the
Kerala State Electricity Regulatory Commission (Consumer Grievance
Redressal Forum and Electricity Ombudsman), Regulations, 2005, a
consumer has a right to approach the Consumer Grievance Redresssal
Forum against tariff classification. But they are prevented from
approaching the Forum in view of Ext.P6 order [in W.P.(C).
No.10122/09 which is Ext.P9 in the other writ petition] of the
Electricity Board, by which, the Electricity Board directed the Forum
not to entertain any appeal regarding change of tariff and also to
forward orders issued by the Forum to the office of the Chief Engineer
(Commercial and Tariff) and to the Law Section of the Board
Secretariat in order to have a close monitoring of the Forum. The
petitioners are challenging that order of the Board along with
challenge against the re-classification itself. According to the
petitioners, the Forum is expected to function as an independent
statutory quasi-judicial body. Therefore, the Forum is not expected to
W.P.C.10122/09 & CC 2
function as per the instructions of the Board, but only as an
independent adjudicatory body. Therefore, the Board is incompetent to
issue the order impugned directing the Forum not to entertain any
appeal regarding change of tariff.
2. The learned Standing Counsel for the Board would contend
that under Section 42(6)(5) of the Electricity Act, 2003, it is for the
Board to establish the Forum for redressal of the grievance of the
consumers in accordance with the guidelines as may be specified by
the State Commission and, therefore, the Board has powers to issue
direction to the Forum in the nature of Ext.P6 in W.P.(C).No.
10122/09.
3. I have considered the rival contentions in detail.
4. I am of opinion that the argument of the Kerala Electricity
Board is counter productive. The very object of establishing a Forum
for redressal of the grievance of the consumers against the licensee is
to hear complaints against the licensee. If the Board is permitted to
issue directions to the Forum as to how the Forum should consider
complaints filed before it, then it is better that there be no Forum at
all, since the Forum would not be in a position to adjudicate the
complaint filed by a consumer against the Board independently, if the
Forum is bound by the directions of the Board in any manner. Simply
W.P.C.10122/09 & CC 3
because the Board established the Forum that does not mean that the
Forum is under their control regarding the statutory functions of the
Forum. When the Forum is created as an independent arbitrator as
between the consumer and the licensee, the Forum should be free
from any kind of influence from anybody particularly the Board. If
there is any such constraints on the Forum, it would not be an
independent arbitrator at all. In fact the courts in Kerala are
established by the Government of Kerala. That does not mean that the
Government of Kerala has control over the judicial functions of the
judicial officers of the State manning the courts. Likewise, the Forum
established by the Board is not under the control of the Board at all.
That being so, the Board has absolutely no power whatsoever to issue
an order in the nature of Ext.P6. In fact in the counter affidavit
submitted by the Kerala State Electricity Regulatory Commission, they
also rightly subscribe to the same view. In their counter affidavit the
Kerala State Electricity Regulatory Commission has stated thus:
“4. It is respectfully submitted that, Complaints regarding
change of tariff made by field officers of KSEB without considering the
classification/categorisation declared by this respondent can be
entertained by CGRF. Inclusion of particular types of consumers in
particular categories are done by Regulatory Commission after hearing
public responses in a transparent process. However, KSEB has no
authority to issue such an order to the CGRF.5. It is submitted that, Sec. 42(5) of the Electricity Act
provides for establishment of a forum for redressal of grievances of the
consumers in accordance with the guidelines as specified by the StateW.P.C.10122/09 & CC 4
Commission. Sec.42(6) any consumer aggrieved by the non-redressal of
grievances under sub sec. (5) may approach the Ombudsman. In
exercise of power conferred under Sec.181 (1), 2(r), (s) & (zp) of
Electricity Act, 2003, Kerala State Electricity Regulatory Commission
framed “The Kerala State Electricity Regulatory Commission (Consumer
Grievance Redresal Forum and Electricity Ombudsman) Regulations, 2005
taking into account the need for safeguarding the right and interest of
consumers. Regulation 7 of it deals with the kinds of grievances that can
be taken up by the Forum. The Forum shall take up any kind of
grievances/complaints as defined in Regulation 2(1)(f). 2(1)(f)(III)
empowers the CGRF to entertain complaint regarding charging of a price
in excess of the price fixed by the Commission for supply of electricity
and allied service. Regulation 2(f)(VII) empowers the CGRF to entertain
any other grievance connected with the use of electricity by the licensee
except relating to unauthorised use of electricity as provided under
Sec.126 of the Act, offences and penalties as provided under sec. 135 to
139 of the Act, and accident in the distribution, supply of use of electricity
under sec. 161 of the Act. Hence CGRF can entertain petitioner’s
grievances.6. It is submitted that, CGRF being a statutory independent
body established under Sec.42(5) of the Electricity Act, all the individual
grievances of consumers have to be raised before this Forum only. KSEB
has no authority to issue orders directing CGRF not to entertain any
consumers’ grievances regarding change of tariff made by the field
officers with out considering the classification/categorisation declared by
KSERC. The Hon’ble Supreme Court in Maharashtra Electricity Regulatory
Commission v. Reliance Energy Ltd., (2007) 8 SCC 381 held “A complete
machinery has been provided in Sec. 42(5) and 42(6) of the Electricity
Act, 2003 for redressal of grievances of individual consumers, the
consumers can only resort to these bodies for redressal of their
grievances.”5. Under Regulation 7 of the Kerala State Electricity
Regulatory Commission (Consumer Grievance Redressal Forum and
Electricity Ombudsman) Regulations, 2005, the Forum shall take up
any types of grievances/complaints as defined in Regulation 2(1)(f).
Regulation 2(1)(f) reads thus:
‘2. Definitions.- (1) in these regulations, unless the context
otherwise requires,-W.P.C.10122/09 & CC 5
xxx xxx xxx
(f) “Complaint” means any grievance made by a complainant in writing on:-
(i) defect or deficiency in electricity service provided by the licensee;
(ii) unfair or restrictive trade practices of licensee in providing
electricity services;(iii) charging of a price in excess of the price fixed by the Commission
for supply of electricity and allied services;(iv) errors in billing;
(v) erroneous disconnection of supply;
(vi) electricity services which are unsafe or hazardous to public life in
contravention of the provisions of any law or rule in force; or(viii) any other grievance connected with the supply of electricity by the
licensee except those related to the following:-(1) unauthorised use of electricity as provided under Section
126 of the Act;
(2) offences and penalties as provided under Sections 135 to
139 of the Act; and(3) accident in the distribution, supply or use of electricity
under Section 161 of the Act.’As per sub clause (iii) thereof, “charging of a price in excess of the
price fixed by the Commission for supply of electricity and allied
services” is a grievance which can be raised before the Forum. The
Commission has fixed the price for supply of electricity as per the
schedule of the tariff for retail supply. When the Board changes the
tariff applicable to a consumer, it amounts to charging of a price in
excess of the price fixed by the Commission for supply of electricity.
W.P.C.10122/09 & CC 6
Therefore, change of tariff is a grievance which can be raised by a
consumer before the Forum. Therefore, on merits also, Ext.P9 is
unsustainable.
6. In any event, if the Board has a contention that the
complaint is not maintainable before the Forum, it is for the Board to
urge that contention before the Forum and it is for the Forum to
consider such contention in accordance with law and the Board cannot
pass an order like Ext.P9 pre-empting the Forum from considering that
issue. When a consumer approaches the Forum with a grievance, it is
for the Forum to decide the question of jurisdiction also in the first
instance, subject of course to scrutiny of the decision of the Forum by
higher fora.
7. In the above circumstances, I do not have any doubt in
my mind that Ext.P6 in W.P.(C).No. 10122/2009, which is Ext.P9 in the
other writ petition, is without jurisdiction and liable to be quashed.
Accordingly, the impugned orders are quashed. I further hold that the
Kerala State Electricity Board is not entitled to issue any directions to
the Forum in the matter exercise of their quasi-judicial functions. The
Forum is statutorily bound to exercise their functions uninfluenced by
any such directions and shall decide complaints before it independently
like any other quasi-judicial body.
W.P.C.10122/09 & CC 7
8. Now that Ext.P6 in W.P.(C).No.10122/2006, which is
Ext.P9 in the other writ petition, has been quashed, there is no
impediment for the petitioners to approach the Forum. Accordingly, in
both cases if the complaints filed by the petitioners have been either
closed or refused to be accepted, the petitioners shall re-submit those
complaints before the Forum within two weeks. The Forum shall accept
the complaints as filed within time and dispose of the same in
accordance with law. To enable the petitioners to approach the Forum
and seek interim orders in the matter, I direct that the interim orders
passed by this Court in these two writ petitions shall continue to be in
force for a period of another one month.
The writ petitions are disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge