CASE No. 156 of In the matter of

Transcription

1 Before the MAHARASHTRA ELECTRICITY REGULATORY COMMISSION World Trade Centre, Centre No.1, 13th Floor, Cuffe Parade, Mumbai Tel /65/69 Fax Website: / www. merc.gov.in CASE No. 156 of 2016 In the matter of Petition of Kisan Mouldings Ltd. regarding non-compliance of Electricity Ombudsman, Mumbai s Order dated in Representation No. 30/ 2013 by Maharashtra State Electricity Distribution Co. Ltd. Coram Shri Azeez M. Khan, Member Shri Deepak Lad, Member M/s. Kisan Mouldings Ltd. Maharashtra State Electricity Distribution Co. Ltd. Petitioner Respondent Appearance For the Petitioner For the Respondent For Authorized Consumer Representative :Shri. S.H.Jalwadi :Shri. Ashish Singh (Adv.) :Dr. Ashok Pendse, TBIA ORDER Dated: 8 February, M/s. Kisan Mouldings Ltd., Survey No.70 to 72, Mahagaon Village, Taluka and District Palghar, has filed a Petition on 29 November, 2016 regarding non-compliance of the Electricity Ombudsman (EO), Mumbai s Order dated 9 May, 2013 in Representation No. 30 of 2013, by the Maharashtra State Electricity Distribution Co. Ltd. (MSEDCL). The Petition cites Sections 142, 146 and 149 of the Electricity Act (EA), 2003 and Regulation 2 (1) (g) of the MERC (Electricity Supply Code and Other Conditions of Supply) Regulations, 2005 ( Supply Code ). 2. The prayers in the Petition are as follows: MERC Order in Case No. 156 of 2016 Page 1 of 9

2 a) Accept the petition for invocation of sec 142,146 and 149(1) &(2) for noncompliance of directions by MERC, non-compliance of order of The Electricity Ombudsman, Constituted by the MERC Regulations and offence has been committed with the consent or connivance of or is attributable to any neglect on the part of officer of the Company regarding the matter of dedicated distribution facility by the Maharashtra State Electricity Distribution Company Limited. b) To grant an opportunity in person before Hon Commission during the hearing on the above matter. c) Immediate removal of power supply connection of M/s Encorp PowerTrans (p) Ltd from the 33 kv Line, which is the DDF line for the petitioner, as per the Electricity Ombudsman s order. d) Adjustment of Rs.10,000 in energy bill as per the The Electricity Ombudsman order. e) Punishment to the MSEDCL, as the company, for non-compliance of directions by MERC and non-compliance of order of The Electricity Ombudsman, Constituted by the MERC Regulations. f) Investigation for involvement of the MSEDCL and his subordinate in commission of the offence. 3. The Petition states that: (1) The Petitioner was availing uninterrupted power supply through a 33 kv express feeder erected under Dedicated Distribution Facility (DDF) Scheme, which was tapped by MSEDCL in August, 2011 while releasing power supply to Encorp Powertrans Pvt. Ltd ( Encorp ). (2) The Petitioner reported this irregularity to the Chief Engineer (CE), Kalyan Zone, who instructed Superintending Engineer (SE), Vasai Circle and Executive Engineer(EE), Palghar Division to hold up the release of supply to Encorp. However, on 12 August, 2011, MSEDCL s field Engineer, with a view to tapping the Petitioner s DDF 33 kv express feeder, disconnected its power supply without prior notice. This caused a surprise power interruption at about 2:30 p.m. on this feeder. (3) Thereafter, The Petitioner made telephonic inquiries with the field Engineer, who did not respond properly. Hence, the Petitioner deputed its representative to inspect the 33kV express feeder. It was noticed that the Petitioner s DDF feeder was tapped and electrical connection was given to a new party which was under construction at Churi pada, i.e. to Encorp, and that too under police protection. (4) Thereafter, the Petitioner inquired with EE, Palghar Division with reference to the letter of CE, Kalyan Zone to hold up the release of power connection to Encorp, but the EE replied that the action is going on under police protection as per the instruction of the CE, Kalyan Zone. (5) The Petitioner lodged a complaint with the SE apprising him of the tapping of electricity episode, and this was also brought to the notice of the CE, Kalyan. The CE was informed that it had suffered a heavy loss of approximately Rs. 15 lakh due to MERC Order in Case No. 156 of 2016 Page 2 of 9

3 interruption of power by way of shut-down without any prior notice because of this tapping of electricity. The Petitioner also informed the CE that it had already complained to the SE but there was no legitimate response from him. (6) When no response was received to the complaint, a reminder was sent to the CE, Kalyan Zone on 20 August, The CE, vide his letter dated 23 August, 2011, acknowledged the grievance raised and asked the Petitioner to wait the till final investigation report is received by him. However, nothing further was heard from him. (7) Hence, vide its application dated 14 December, 2011, the Petitioner approached the Internal Grievance Redressal Cell (IGRC) and sought that MSEDCL be directed to remove the tapping of electricity. In its Order dated 2 March, 2012, the IGRC accepted the position as submitted in MSEDCL s reply that sanction to the Petitioner was under DDF; but, in order to deny relief to the Petitioner, it observed that the supply given to the Petitioner was by extension of the line erected for M/s Responsive. In fact, the IGRC advised that Encorp shift its load from the existing line by making alternative arrangements. Being aggrieved, the Petitioner, vide its application dated 9 April, 2012, approached the Consumer Grievance Redressal Forum (CGRF) which, by its Order dated 11 January, 2013 also rejected it. (8) Hence, vide its Representation dated 19 March, 2013, the Petitioner approached the EO, Mumbai. By his Order dated 9 May, 2013, the EO directed MSEDCL to provide infrastructure at its own cost to give supply to Encorp and remove the tapping from the Petitioner s DDF facility within 3 months, and also to pay compensation of Rs. 10,000/- by way of credit in the Petitioner ensuing bill. (9) MSEDCL challenged the EO, Mumbai s Order vide a Writ Petition (WP) in the Bombay High Court, Bombay Bench on 20 September, It was registered on 10 December, 2013 as WP No of 2013, but was rejected on 15 September, 2015 by the High Court. The Petitioner had corresponded thereafter with MSEDCL on 8 March, 12 April and 31 May, 2016, but has not received any reply. MSEDCL has still not complied with the EO, Mumbai s Order even after continuous follow-ups. 4. In its Reply dated 23 January, 2017, MSEDCL has stated that: (1) MSEDCL received the certified copy of the High Court Order dated 15 September, 2015 on 8 October, The SE, by letter dated 27 October, 2015, informed the CE about the survey carried out and also requested guidelines and approvals for compliance of the EO s Order. Vide his letter dated 28 December, 2015, the SE informed EE (Administration) that the CE has accorded approval to comply with the EO s Order, and had also given instructions to explore the possibility of shifting Encorp s power supply to a 11 kv power line. Moreover, a survey was carried out followed by a letter on 8 June, 2016 to Encorp informing it of the decision taken by MSEDCL to shift its connection from the Kisan Moulding s 33kV DDF line to another 11 kv line and seeking cooperation by making necessary changes in the equipments and the internal wiring within 15 days which are suited to 11 kv, but Encorp never co-operated. Hence, MSEDCL informed Encorp again on 2 September, 2016 that its supply will be disconnected in case it fails to make the requisite changes. MERC Order in Case No. 156 of 2016 Page 3 of 9

4 (2) In response, Encorp requested additional time by its letter dated 8 September, Therafter on 9 December, 2016, the SE wrote to Encorp for making necessary changes from 33 kv to 11 kv, but Encorp was reluctant to do so. MSEDCL s 11 kv feeder is close to the premises of Encorp from where the supply can be extended, but Encorp did not respond to this arrangement. On December 14, 2016, Encorp gave conditional consent for carrying out the work. (3) Local villagers opposed this shifting of Encorp to the 11 kv line as they were getting power on that line and supplying Encorp on it may affect them. An attempt at shifting failed on 2 September, 2016 because of these objections and violence by the local villagers. Hence, MSEDCL removed the tapping under police protection on 3 January, (4) The delay in giving effect to the EO, Mumbai and the High Court Orders was neither willful nor deliberate and was mainly due to the inaction of Encorp in carrying out the necessary changes in order to shift its supply from the 33 kv power line to an 11 kv line. There was further delay due to the agitation by the locals who prevented MSEDCL from carrying out the work. Hence, it was impossible for MSEDCL to comply with the Orders till police support was provided. (5) In the matter of Gyani Chand vs State of AP, 2016 SCC Online SC 961, the Supreme Court has held that, to hold somebody guilty of contempt of court, he must have willfully disobeyed any judgment, decree, direction, etc. or willfully committed breach of an undertaking given to a court: 11. Upon perusal of the above mentioned definition of civil contempt, it is very clear that so as to hold somebody guilty of contempt of court, the concerned person must have wilfully disobeyed any judgment, decree, direction, order, writ or any other process of a court or should have wilfully committed breach of an undertaking given to a court 12. In the instant case, from the facts stated hereinabove, it is crystal clear that the appellant had no intention of committing breach of the undertaking given to the court. It was physically impossible for the appellant to produce the documents as the documents had already been given by him to his mother, on whose behalf he had collected the same from the court and the said documents had been subsequently destroyed because of a natural calamity. In our opinion, after knowing the above stated facts, the court should not have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents. It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt. 5. The proceedings at the hearing held on 14 March, 2017 are summarized below: (1) The Petitioner stated that, instead of taking consent from it to release a new connection on the 33 kv DDF line, MSEDCL had illegally tapped it under police protection. This line was erected by the Petitioner under DDF for availing uninterrupted power supply from MSEDCL. Due to the illegal tapping, it has suffered losses of Rs. 15 lakh per annum. The Petitioner had pursued the matter with MERC Order in Case No. 156 of 2016 Page 4 of 9

5 the CE, Kalyan Zone and was informed that the matter is under investigation and that the Petitioner would be informed about the outcome. Till date, MSEDCL has not informed it regarding the outcome of the investigation. Vide Order dated 9 May, 2013, the EO directed MSEDCL to remove the tapping from the DDF line within 3 months and pay Rs.10,000/- as compensation. Instead of complying with the Order, on 20 September, 2013, MSEDCL filed a WP in the High Court challenging the Order. The High Court never stayed the Order and, on 15 September, 2015, has dismissed the WP. Thereafter, the Petitioner continuously followed up the matter. Even after the dismissal of the WP, MSEDCL did not comply with the EO s Order till filing of this Petition. However, on 3 January, 2017, MSEDCL removed the tapping from the DDF line, but it has still not paid the compensation of Rs.10, 000/- as directed by the EO. (2) The Petitioner submitted a letter dated 23 August, 2011 addressed to S.E, Vasai by C.E., Kalyan in which the C.E. has mentioned that the sanctioning of the power supply to Encorp by tapping the DDF line of the Petitioner is wrong and against the provisions. C.E. Kalyan directed S.E. Vasai to submit a detailed report immediately on the complaint. (3) The Petitioner further stated that the officers of MSEDCL deliberately tapped the DDF line and, consequently, interruptions have occurred on the line, resulting in wastage of raw material. Hence, the Commission may, under Section 149 of the EA, 2003, direct MSEDCL to conduct a detailed investigation and initiate action against the erring officer/s and compensate the losses of Rs.15 lakh per annum. MSEDCL should also compensate the Petitioner for the legal costs incurred till filing of this Petition and the harassment suffered by it. MSEDCL should also pay Rs.10,000/- compensation as directed by EO. (4) MSEDCL re-iterated the submissions in its Reply, and stated that the WP was dismissed by the High Court on 15 May, Thereafter, MSEDCL has given effect to the EO s Order on 3 January, 2017 by disconnecting the tapped connection on the DDF line. (5) To a query of the Commission, MSEDCL replied that there had been no stay by the High Court on the EO s Order. The Commission expressed its displeasure on noncompliance of EO Order within the specified time and even after the WP was dismissed as long back as May, MSEDCL stated that the delay was on account of approval sought at various levels from MSEDCL s Head Office and due to local agitations. MSEDCL will submit its justification for delay. (6) The Commission asked MSEDCL what action has been taken against the officer/s who had directed tapping of the DDF line of the Petitioner, and did not submit the detailed investigation report to the C.E. on the complaint. The Petitioner had to file complaints at various levels of MSEDCL, and before the IGRC, CGRF, EO and now the Commission. The Commission also asked MSEDCL how it would compensate the Petitioner on account of interruptions due to tapping on the DDF line, legal costs and harassment; and why it had not paid Rs.10,000/- to the MERC Order in Case No. 156 of 2016 Page 5 of 9

6 Petitioner as directed by the EO. In response, MSEDCL stated that it would initiate an inquiry to find out the facts that led to tapping of the DDF line of the Petitioner. (7) The Commission directed MSEDCL to submit the details of the erring officer/s who were directly involved in this case within four weeks, with a copy to the Petitioner. The Petitioner may submit its Rejoinder, if any, within a week thereafter. The Petitioner may also inform the Advocate of MSEDCL regarding the erring officer/s. 6. On 20 April, 2017, MSEDCL submitted its response to the directions given at the hearing, stating that: (1) The compensation of Rs. 10,000/- directed by the EO has been adjusted/credited to the Petitioner s electricity bill of March, (2) The names of the erring officials are as under: a) Shri. Shailendra Mohanlal Rathore, SE, Vasai Circle b) Shri. Shriram Dattatray Deshpande, EE, Palghar Division (retired), c) Shri. Vinod Laxman Deshmukh, Additional EE, Palghar Division. (3) Vide his letter dated 31 March, 2017, the CE, Kalyan Zone had submitted these names for initiating disciplinary action for misconduct to the Regional Director, Konkan Region, Kalyan (the competent authority for initiating disciplinary action). 7. The proceedings at the hearing held on 16 May, 2017 are summarized below: (1) The Petitioner sought a week s time to submit its Rejoinder, and requested an adjournment. MSEDCL stated that it had no objection. (2) MSEDCL stated that, last year, MSEDCL has paid the compensation of Rs.10, 000/- to the Petitioner as directed by the EO. It has submitted the names of the erring officials. It has issued show-cause notices to them and has initiated disciplinary proceedings. 8. In its Rejoinder dated 7 September, 2017, the Petitioner has stated that: (1) According to the Daily Order dated 14 March, 2017, MSEDCL has to act against the officer/s involved in handling this case and provide a copy to the Petitioner. However nothing is heard from MSEDCL so far. (2) The method proposed for compensation for tapping of the DDF line, legal costs and harassment is not given by MSEDCL till date. Hence, the loss calculations could not be submitted. After receipt of the proposed method from MSEDCL, the Petitioner may be allowed to submit its say on the loss. MERC Order in Case No. 156 of 2016 Page 6 of 9

7 (3) MSEDCL is investigating the matter in the right direction, but not submitting the report as requested by the Petitioner and directions of the Commission dated 14 March, (4) Appropriate action may be taken as per the prayers in the Petition and orders may be passed as deemed fit. 9. The proceedings at the hearing held on 7 September, 2017 are summarized below: (1) The Petitioner stated that, as there are no new issues, it would not be filing any Rejoinder. However, MSEDCL has still not submitted its response in compliance with the directives issued vide Daily Order dated 14 March, MSEDCL has also not informed the status of the departmental enquires. The Commission observed that details of the departmental enquiries may not be relevant to the Petitioner. (2) MSEDCL stated that it has forwarded its Reply to the Petitioner on 28 April, 2017, and it has been acknowledged. MSEDCL is not bound to give the details of the departmental enquiries to the Petitioner. (3) To a query of the Commission, MSEDCL replied that MSEDCL has already credited compensation amount of Rs. 10,000/- and has also removed the tapping from the 33 kv dedicated line of the Petitioner as directed by the EO. (4) The Petitioner stated that MSEDCL has not informed it of the method of settlement of compensation and has still not worked out the losses suffered by the Petitioner. To a query, the Petitioner stated that it has claimed losses of Rs. 15 lakh / year and had submitted its calculation during the proceedings before the EO, Mumbai. (5) Referring to the EO, Mumbai s Order, the Commission observed that, as the issue of compensation is already decided by him, the scope of the Commission is limited to the issue of non-compliance of the EO s Order. (6) The Petitioner sought that action under Section 149 of the EA, 2003 be initiated against MSEDCL considering the harassment and losses suffered by it. Commission s Analysis and Ruling 10. The operative part of the EO, Mumbai s Order dated 9 May, 2013 reads as follows: 7. It is undisputed that the Respondent interrupted HT supply of electricity to the Appellant on 12 th August, 2011, without giving any prior intimation to the Appellant, for the purpose of tapping Appellant s DDF 33 kv line for giving supply to M/s. Encorp Powertrans (P) Ltd, which is clearly contrary to the Commission s order dated 16 th February, 2008, and Regulation 3.3.3, and of the Electricity Supply Code Regulations, The Respondent is, therefore, hereby directed to provide infrastructure at its own cost to give supply to M/s. Encorp Powertrans (P) Ltd. and remove the tapping from Appellant s DDF facility within 3 months from the date of this order. Forum s order in this regard is hereby set aside. MERC Order in Case No. 156 of 2016 Page 7 of 9

8 8. It is also undisputed that the Respondent interrupted HT supply to the Appellant for the purpose of carrying out the work of tapping Appellant s DDF facility to give supply of electricity to the other consumer, M/s. Encorp Powertrans (P) Ltd. No intimation of any kind was given to the Appellant before interrupting the supply. The Appellant has claimed compensation of Rs. 2,00,000/- towards losses suffered due to interrupting its supply without prior intimation. The Appellant has not submitted any evidence or documentary proof to substantiate its claim of compensation of Rs. 2,00,000/-. To meet ends of justice, I am inclined to award compensation of Rs. 10,000/- for negligence on the part of the Respondent in not giving any intimation before interrupting Appellant s supply. The Respondent is hereby directed to pay the compensation of Rs. 10,000/- by way of credit in the Appellant s ensuing bill. 9. The Representation is disposed in terms of the above order. Compliance shall be intimated within 3 months hereof. 11. Regulation of the CGRF Regulations, 2006 provide that directions of the EO are binding on the parties and are to be complied with in the stipulated time. The EO required compliance to be reported by MSEDCL within 3 months, i.e. by 9 August, MSEDCL did not do so. Instead, it challenged the EO s Order in a WP before the Bombay High Court on 20 September, 2013, but the High Court did not stay it and dismissed the WP on 15 September, Even thereafter, MSEDCL admittedly did not implement the EO s Order till very much later, i.e. more than 3 years after the EO s Order and one and a half years after the WP was dismissed. 12. While the EO, Mumbai directed MSEDCL to remove the tapping from the DDF line within 3 months, MSEDCL removed it only on 3 January, 2017, only after the Petitioner approached the Commission. The Commission recognizes that reconfiguring the network so as to remove the tapping requires various approvals, outages and consents, and that there may have been local resistance. However, the delay of more than 3 years can in no way be justified. Moreover, those issues did not affect the timely payment of the compensation directed by the EO. In fact, MSEDCL took no steps for 2 years on the EO s Order during the pendency of the WP in the High Court, even though it was not stayed. This matter is a classic example of blatant violation of the principle that a consumer cannot be connected on a DDF feeder laid by another consumer without its consent. That being the case, while MSEDCL has now initiated inquires against the officials concerned, it is not clear why it had approached the High Court in the first place. The Head Office of MSEDCL should review its processes in this regard in the background of this Case. 13. The compensation of Rs. 10,000/- has been credited in the Petitioner s energy bill of March, 2016, but it appears that no interest has been paid for the period of delay. The Commission directs MSEDCL to credit the applicable interest in the bill for the next billing cycle, and to recover it from the concerned officials. 14. The Commission notes that, when the Petitioner took up the matter with the CE, Kalyan, he wrote as follows to the SE, Vasai on 23 August, 2011: MERC Order in Case No. 156 of 2016 Page 8 of 9

9 I am totally disappointed/unconvinced over this issue even after my personal talk to the concerned Assistant Engineer and to you too over cellphone today as from the above it is prima facie found that the method adopted by our staff in sanctioning the power supply of carrying out such work is totally erroneous/unfair and against the provision as well and our staff is bent upon to commit irregularities over irregularities. Please let me have your detailed report in the matter immediately. Inspite of the directives of even the CE, no remedial action was taken or report submitted, which culminated in correspondence, litigation and harassment to the Petitioner. MSEDCL is directed to report to the Commission the outcome of the disciplinary proceedings against the officials concerned within 4 months. 15. Since the EO, Mumbai has already adjudicated on the issue of compensation to the Petitioner, the Commission is not inclined to revisit it. The Petition of M/s. Kisan Mouldings Ltd. in Case No.156 of 2016 stands disposed of accordingly. Sd/- (Deepak Lad) Member Sd/- (Azeez M. Khan) Member MERC Order in Case No. 156 of 2016 Page 9 of 9