CASE No. 149 of Coram. Shri Azeez M. Khan, Member Shri Deepak Lad, Member. Shri. Vinod Sadashiv Bhagwat.

Transcription

1 Before the MAHARASHTRA ELECTRICITY REGULATORY COMMISSION World Trade Centre, Centre No.1, 13th Floor, Cuffe Parade, Mumbai Tel /65/69 Fax Website: CASE No. 149 of 2015 In the matter of Petition of Shri Vinod Sadashiv Bhagwat for payment of interest on the extra Service Line Charges recovered by Maharashtra State Electricity Distribution Co. Ltd., along with expenses incurred Coram Shri Azeez M. Khan, Member Shri Deepak Lad, Member Shri. Vinod Sadashiv Bhagwat. Petitioner V/s Maharashtra State Electricity Distribution Co. Ltd. Respondent Appearance: For the Petitioner: For the Respondent: Shri. Pratap Hogade (Representative) Shri. Ashish Singh (Advocate) ORDER Dated: 2 January, 2017 Shri. Vinod Sadashiv Bhagwat, 3, Sayona Apartment, Shankar Mahadeo Road, Dhongade Mala, Anand Nagar, Nashik Road, Distt. Nashik, has filed a Petition dated 26 November, 2015 under Regulation 92 of the MERC (Conduct of Business) Regulations, 2004 seeking interest on the extra Service Line Charges (SLC) recovered by Maharashtra State Electricity Distribution Co. Ltd. (MSEDCL), along with the expenses incurred by him. The Petitioner has authorized Shri Pratap Hogade, President, Maharashtra Veej Grahak Sanghatana, to represent him. Order in Case No. 149 of 2015 Page 1 of 10

2 2. The Petitioner s prayers are as follows: A) सबब, म हरब न आय ग स नम र व न त क, मल प र ण न य य त ह आत ल कर त ल कर र. 15,000/- य फरक र ल म म ग तल ल व य ज दर आठ ड दर श कड ½ र. प रम र वद प स न मल म झ य प र ण रक कम र (र. 15,000/- र) आजत ग यत ज क ल ध झ ल ल आह, त य क ल ध रच य व य ज सकट म झ खर ण र. 5,000/- सकट ल कर त ल कर वमळ, ह नम र व न त. 3. In his Petition, Shri. Bhagwat has stated as follows: a. The Petitioner is a resident of Nashik and a consumer of MSEDCL. He had applied for a new connection in the year A firm quotation was issued to him, in which the SLC of Rs. 20,000 was charged instead of Rs The Petitioner was constrained to pay the amount demanded. b. The Petitioner filed a complaint before the Nashik District Consumer Dispute Redressal Forum, which was allowed by the District Forum. c. MSEDCL filed an appeal before the State Consumer Dispute Redressal Commission, which allowed the appeal holding that the grievance was not covered under the Consumer Protection Act. d. Hence, the Petitioner filed a Complaint before the Consumer Grievance Redressal Forum (CGRF) of MSEDCL, Nashik Zone. However, the CGRF rejected it vide its Order dated 14 October, Aggrieved by that Order, the Petitioner filed an appeal before the Electricity Ombudsman, which was also rejected on 8 December, e. Thereafter, the Petitioner filed a Petition before the Commission in Case No. 147 of 2008 on 27 January, 2009 for refund of the excess amount of SLC levied by the erstwhile Maharashtra State Electricity Board (MSEB) on consumers from 1 November, 1999 to 4 May, In its Order in Case No. 147 of 2008, the Commission did not mention the interest amount. f. MSEDCL filed an appeal before the Appellate Tribunal for Electricity (ATE) in Appeal No. 197 of 2009, which was dismissed on 11 March, g. Thereafter, MSEDCL filed a Civil Appeal before the Supreme Court in Civil Appeal No of In its Order dated 29 August, 2011, the Supreme Court ruled as follows: the amount involved in the present case is nearly Rs. 14,000 to Rs. 15,000 which will be refunded to Respondent No.2 within six weeks Order in Case No. 149 of 2015 Page 2 of 10

3 from today. However, we make it clear that in the present case the Tribunal and the State Commission have directed the Appellant to refund the amount to similarly situated persons which runs into Rs.30 crores to Rs. 40 crores. Since no other consumer moved the Commission / Tribunal, we are confirming the impugned Order only to the facts of the present case. Liberty is given to the appellant to move this Court in case any other consumers lay his claim in future. This reasoning is also required to be stated because for the last 10 years, no consumer has moved the Commission/Tribunal. h. MSEDCL accordingly made payment of Rs. 15,000 to the Petitioner vide its letter dated 20 September, i. The Petitioner filed an Application on 28 December, 2011 before the Commission for the payment of interest, which was not addressed in its Order in Case No. 147 of However, the Commission did not take cognizance. j. The Petitioner accepted the differential amount from MSEDCL under protest and demanded interest on it, to which MSEDCL has not replied yet. Thereafter, he has filed this Petition. k. In Appeal No of 2011, the Supreme Court nowhere turned down the right of the Petitioner for interest on the differential amount. While granting the relief to the present Petitioner (Respondent in that Case), the Supreme Court ruled out confining the Order of the Commission for the prayers of the present Petitioner and observed that its ruling shall have no general effect with respect to other consumers of MSEDCL. 4. At the hearing on 8 March, 2016, the Representative of the Petitioner stated that the present Case is a generic matter. MSEDCL made payment of Rs. 15,000 in accordance with the Supreme Court Judgment in Appeal No of 2011 dated 29 August, The Petitioner accepted the amount under protest and demanded interest on the amount paid. He cited Section 62 (6) of the Electricity Act (EA), 2003, which stipulates interest on account of delay in payment. The present Petition has been filed for payment of interest on that amount. MSEDCL stated that there is an alternate remedy available to the Petitioner under Section 42 (5) of the EA, 2003, and sought one week to file its Reply on the merits of the matter. The Commission enquired regarding the compliance of the direction given at para. 14 of its Order in Case No. 147 of It directed MSEDCL to submit its Reply within a week. The Petitioner could file his Rejoinder, if any, within a week thereafter. 5. In its Reply dated 14 March, 2016, MSEDCL has stated as follows: a. Preliminary objection is raised on the following issues: Order in Case No. 149 of 2015 Page 3 of 10

4 i. Jurisdiction of the Commission to decide the dispute between a consumer and a Licensee, ii. The claim of the Petitioner for the period as claimed is barred by limitation, iii. Delay and laches on the part of the Petitioner, iv. Vigilantibus, non dormientibus, jura subveniunt, and v. Purported review under the garb of a repeat/ new Petition. b. Jurisdiction of the Commission to decide the dispute between a consumer and a Licensee: The present Petition by a consumer has been on 26 November, 2015 for payment of interest on the refund amount of Rs. 15,000. The alleged dispute raised by the Petitioner is purely a billing dispute which falls under the jurisdiction of the CGRF created under Section 42(5) of the EA, Section 86 (1) (f) gives power to the Commission to adjudicate disputes between a Licensee and a generating company, and not between a Licensee and a consumer. The MERC (Consumer Grievance Redressal Forum (CGRF) and Electricity Ombudsman) Regulations, 2006 specify the scope of the jurisdiction of the CGRF. Regulations 2(c), 6.7 and 6.8 of the Regulations may be referred to. Moreover, in its Judgment dated 14 August, 2007 in Civil Appeal No of 2006 (MSEDCL vs. Lloyds Steel Industries Ltd.), the Supreme Court has held that: Considering that complete machinery has been provided in Section 42(5) and 42(6) of the Electricity Act, 2003 for Redressal of grievances of individual consumers, held, wherever a forum/ ombudsman has been created under the 2003 Act for Redressal of grievances of consumers, the consumers can only resort to the bodies for Redressal of their grievances. Hence, where the State concerned had created a proper forum for Redressal of grievances of consumers, the State Electricity Regulatory Commission had no jurisdiction to adjudicate upon such matter. Even under Section 86 (1) (f) of the Electricity Act, 2003 the said Commission had no power to adjudicate upon disputes relating to grievances of consumers and it could only adjudicate upon the disputes between the Licensees and generating companies. In another Judgment dated 1 September, 2009 in CA No of 2004 (General Manager, Telecom vs. M. Krishnan and another), the Supreme Court has also held as follows: In our opinion where there is a special remedy provided in Section 7-B of the Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred. Hence, in view of the above provisions of law and as per the facts of the Case, the Commission may remand the matter to the CGRF for adjudication. Order in Case No. 149 of 2015 Page 4 of 10

5 c. The claim of the Petitioner for the stated period is barred by limitation: The Petitioner has filed the Petition on 26 November, 2015 seeking relief in terms of payment of interest on the refund of Rs. 15,000 for the period of April, The refund was made by MSEDCL to the Petitioner on 30 September, Hence, without admitting anything to the contrary, any interest, if payable and if ordered by the Commission, would be restricted only up to that date. d. Delay and laches on the part of the Petitioner: The Petition ought to be dismissed on the ground of delay and laches on the part of the Petitioner. The present Petition has been filed in view of an Order dated 17 August, 2009 passed in Case No. 147 of The disputed period in the present Petition is April, 2000 till date. The Petitioner filed the present Petition on 26 November, 2015, with a delay of almost six years for which no explanation or reasons are given. In its Judgment dated 22 February, 1999 in CA No of 1998 (Commissioner of Central Excise, Mumbai vs. Time Pharma), the Supreme Court held that: Delay/ Latches- Delay of 360 days in preferring appeal by revenue, without any explanation therefor whatsoever - Appeal dismissed as barred by time. The Supreme Court of India, in its Judgment dated 14 February, 2000 in Review Petition ( C ) No. 91 of 2000 in CA No of 1997 (Union of India and Others vs. Mohd. Nayyar Khalil and Others) has also held that: Latches and Delay 690 days delay In the absence of satisfactory explanation for, the review petition, held liable to be dismissed. The Present Petition needs to be dismissed in view of the inordinate delay on the part of the Petitioner in addressing his alleged grievance, if any. e. Vigilantibus, non dormientibus, jurasubveniunt : The Petitioner is a consumer in whose favour the Order dated 17 August, 2009 was passed by the Commission. He has preferred the present claim on 26 November, 2015 for the period from April, 2000 till date. The legal maxim which is cited refers to the exercise of legal diligence expected from claimants by the adjudicatory authorities, including Courts of Law. A due degree of vigilance and caution was expected from the Petitioner in this Case. f. Purported review under the garb of a repeat/ new Petition: The present Petition is in effect a review Petition in which averments have been made that interest was also claimed in Case No. 147 of 2008, but that the Commission only decided the issue of refund of SLC and did not mention anything on the issue of interest on that amount. This amounts to a review Petition, which has to be filed within 45 days from the date of the Order as per the Conduct of Business Regulations. The Order in Case No. 149 of 2015 Page 5 of 10

6 Commission s Order was passed on 17 August, 2009 in Case No. 147 of 2008, but the present Petition was filed on 26 November, g. The chronology of the events in the matter since 2009 is as below: Sr. Event Date Outcome No. 1 MERC Case No. Order dated 17 In the circumstances, the affected 147 of 2008 August, 2009 consumers may approach MSEB/MSEDCL individually to seek refund of the extra SLC amount (over and above the amount as per earlier departmental circular (Commercial) No. 486 dated ) collected as per Circular dated In case they have further grievance in the matter, they may approach the concerned Consumer Grievance Redressal Forums to seek remedy. 2 Appeal No. 197 of 2009 before the ATE Order dated 11 March, 2011 ATE upheld the Order passed by the Commission. Order in Case No. 149 of 2015 Page 6 of 10

7 3 Civil Appeal before the Supreme Court of India 4 As claimed by the Petitioner the revised Petition was filed before the Commission. 5 Letter of Petitioner to the High Court 6 Reply from the Public Grievance Cell of the High Court Order dated 29 August, December, 2011 Learned senior Counsel appearing on behalf of the appellant states that the amount involved in the present case is nearly Rs. 14,000 to Rs. 15,000 which will be refunded to Respondent No.2 within six weeks from today. However, we make it clear that in the present case the Tribunal and the State Commission have directed the Appellant to refund the amount to similarly situated persons which runs into Rs.30 crores to Rs. 40 crores. Since no other consumer moved the Commission / Tribunal, we are confirming the impugned Order only to the facts of the present case. Liberty is given to the appellant to move this Court in case any other consumers lay his claim in future. This reasoning is also required to be stated because for the last 10 years, no consumer has moved the Commission/Tribunal. The civil appeal is, accordingly, disposed of. No Order as to costs. Alleged Petition as claimed by the Petitioner was filed before the Commission but no action was taken by the Commission. 20 July 2015 Letter to High Court for adjudication 14 September, You may seek relief from the 2015 appropriate forum by instituting appropriate proceedings, in accordance with Law and if so advised. h. As it is clear from this chronology, the Petitioner has failed to show why he did not act till 26 November, 2015 (the date of the present Petition) Moreover, the Commission had directed the Petitioner to approach the concerned CGRF in case any further grievance is to be addressed in the matter. Order in Case No. 149 of 2015 Page 7 of 10

8 i. During the hearing held on 8 March, 2016, the Commission had raised the following questions. MSEDCL s replies are as follows: i. Whether para. 14 of the Order dated 17 August, 2009 in Case No. 147 of 2008 has been complied with by MSEDCL? The Commission s Order was challenged before the ATE and the Supreme Court, and attained finality only on 29 August, Moreover, vide its Order dated 29 August, 2011, the Supreme Court has categorically restricted the operation of the Order passed by the Commission to the present Petitioner alone: ii. Since no other consumer moved the Commission / Tribunal, we are confirming the impugned Order only to the facts of the present case. Liberty is given to the appellant to move this Court in case any other consumers lay his claim in future. This reasoning is also required to be stated because for the last 10 years, no consumer has moved the Commission/Tribunal. Why MSEDCL has not paid interest on the amount refunded? There is no provision with MSEDCL to pay interest on the SLC refund amount. Interest is paid on amounts as and when the concerned Court of Law issues directions to refund such amounts along with interest. In the present case, when the amount of Rs. 15,000 was directed to be refunded by the Supreme Court, there was no direction on the issue of interest. The ATE and the Apex Court, while deciding the matter in appeal, did not issue any direction for refund of amount along with interest. As the payments have been made in pursuance of and as per the Supreme Court s directions, the Petitioner is not entitled for any interest/ relief. 6. In his Rejoinder dated 29 March, 2016, the Petitioner has stated as follows: i. MSEDCL has not provided a copy of its Reply till date. ii. iii. The demand of the Petitioner is for the payment of interest at the rate of 0.5% per week, i.e. 26% per annum. This demand is based on the then existing rules and regulations of the erstwhile MSEB. The Petitioner has submitted the relevant extracts. The Petitioner has submitted the chart of interest calculations prepared by him and has claimed Rs. 5,72,560 along with the legal charges, postal charges and transportation charges. Order in Case No. 149 of 2015 Page 8 of 10

9 Commission s Analysis and Ruling: 7. In his original Petition before the Commission in Case No.147 of 2008, Shri Bhagwat had made the following prayers: Hon ble Maharashtra Electricity Regulatory Commission is requested that the difference of Rs. 15,000/- in the new and old electricity connection charges and interest at the rate which the Maharashtra State Electricity Board was charging to its then defaulters, which was ½ (half) per cent per week (Xerox copy enclosed- Annexure No.7) be paid to me for the period from , till I actually get the difference. Hon. Commission is requested to pass similar orders for all consumers in the State during this period. Further, it is requested that I may be granted the cost of Rs. 5,000/- for this case. Thus, Shri Bhagwat had sought a refund along with interest in the specifics of his own case, and also sought similar orders for all other consumers. After hearing him, the Commission allowed Shri Bhagwat to amend the Petition stating the statutory provision under which it could be admitted. He accordingly filed a revision Petition with the following generic prayers: i) It may kindly be clarified as to whether the interpretation of the Tariff Order dated in respect of charging of SLC by the Respondent [MSEDCL] and implementation of Circular No. 631 is correct and valid? ii) It may kindly be clarified as to whether the act of respondent in recovering the SLC as per Circular No. 631 instead of Circular No. 486 since 1/11/1991 till 5/05/2000 in spite of order dated of this Hon ble Commission and subsequent Tariff orders dated and is valid? iii) If not suitable directions be given to the Respondent to rectify the wrong along with appropriate compensation to the Petitioner and all other sufferers. iv) All other just and equitable reliefs be granted for the effective adjudication of the subject matter involved in this petition and for it s implementation. In its Order dated 17 August, 2009, the Commission ruled as follows: In the circumstances, the affected consumers may approach MSEB/MSEDCL individually to seek refund of the extra SLC amount (over and above the amount as per earlier departmental circular (Commercial) No. 486 dated ) collected as per Circular dated In case they have further grievance in the matter, they may approach the concerned Consumer Grievance Redressal Forums to seek remedy. 8. After its Appeal against the Commission s Order was dismissed by the ATE, MSEDCL approached the Supreme Court, which concluded as follows vide its Judgment dated 29 August, 2011: Order in Case No. 149 of 2015 Page 9 of 10

10 The amount involved in the present case is nearly Rs. 14,000 to Rs. 15,000 which will be refunded to Respondent No.2 within six weeks from today. However, we make it clear that in the present case the Tribunal and the State Commission have directed the Appellant to refund the amount to similarly situated persons which runs into Rs.30 crores to Rs. 40 crores. Since no other consumer moved the Commission / Tribunal, we are confirming the impugned Order only to the facts of the present case. Liberty is given to the appellant to move this Court in case any other consumers lay his claim in future. This reasoning is also required to be stated because for the last 10 years, no consumer has moved the Commission/Tribunal. 9. In the present Petition, Shri Bhagwat has sought payment of interest on the amount of extra SLC recovered and subsequently refunded to him by MSEDCL. Neither the Supreme Court in its Judgment nor the Commission in its Order in Case No. 147 of 2008 have said anything regarding the liability or otherwise of MSEDCL to pay such interest. The specific relief sought by the Petitioner is entirely in the nature of a grievance for which the remedy lies in the mechanism specified under the MERC (CGRF and Electricity Ombudsman) Regulations, Indeed, in its Order in Case No. 147 of 2008 (quoted at para. 7 above), the Commission had concluded that, for any further grievance in the matter, the aggrieved consumers may approach the concerned CGRF. Hence, it is not for the Commission to go into the merits of the Petitioner s present claim, which is not maintainable before it. 10. Shri Bhagwat has stated that he had filed a Petition on 28 December, 2011, of which no cognizance was taken by the Commission. That Petition (which was filed after revision of a Petition submitted some months earlier) sought that a clarification be issued pursuant to the Order in Case No. 147 of 2008 with regard to interest payable to him from 6 April, 2000 on the refund by MSEDCL, and that the delay may be condoned. The Commission notes from its record that, after some correspondence, Shri Bhagwat was informed vide letter dated 19 December, 2013 that his request for condonation of delay had not been accepted and that his Petition was rejected for not rectifying the deficiency within the prescribed period considering Regulation 47 of the Conduct of Business Regulations. The Petition of Shri. Vinod Sadashiv Bhagwat in Case No. 149 of 2015 stands disposed of accordingly. Sd/- (Deepak Lad) Member Sd/- (Azeez M. Khan) Member Order in Case No. 149 of 2015 Page 10 of 10