1. Heard Counsels for the parties and perused record. Since pleadings are complete, as requested and agreed by learned counsel for the parties, I proceed to decide this matter finally under the Rules of this Court.
2. This writ petition under Article 226 of the Constitution of India has been filed by Dakschinanchal Vidut Vitran Nigam Ltd. (hereinafter referred to as the "DVVNL") through its Executive Engineer, Electricity Urban Distribution Division-II, Jhansi, being aggrieved by order dated 27.06.2008 passed by Electricity Ombudsman in Appeal No. (28/2008) 81 of 2008, Jai Jagdambae Malleable (Pvt.) Ltd. Vs. Executive Engineer, DVVNL Jhansi. It has also sought a writ of certiorari for quashing of Clause 8 of U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007 (hereinafter referred to as the "Redressal Forum and Ombudsman Regulations, 2007") being ultra vires of Section 42 sub-sections (5) and (6) of Electricity Act, 2003 (hereinafter referred to as the "Act, 2003").
3. The facts giving rise to the dispute in present writ petition, in brief, may be stated as under.
4. M/s Jai Jagdambae Malleable, Bijauli Industrial Area, Jhansi (hereinafter referred to as the "Consumer") is an industrial undertaking. It was sanctioned an electrical load of 4000 KVA by the petitioner for the purpose of running its industrial establishment. However, petitioner having only 2000 KVA electrical load available at Bijauli feeder, executed an agreement with Consumer on 24.02.1997 for release of only 2000 KVA electrical load at the first instance. Another agreement was executed on 31.03.1997 for additional load of 2000 KVA with clear stipulation that additional load is not available as yet and shall be released later on. Petitioner claimed to have sent a registered letter dated 31.01.1998 informing Consumer that additional load of 2000 KVA is now available and he should convey his acceptance/consent for releasing of same. It is admitted that no reply was received from Consumer till 14.09.1998 when Consumer informed the petitioner that he is not desirous for releasing/availing of additional load of 2000 KVA.
5. Nothing proceeded thereafter and it does not appear whether petitioner dropped the matter or kept the issue in hibernation but the pleadings and facts on record show that for almost nine years there was no action or reaction on either side in respect to aforesaid additional load of 2000 KVA in any manner. It is only near about nine years that petitioner woke up from slumber and issued an electricity bill dated 13.02.2007 demanding Minimum Consumption Guarantee Charge (hereinafter referred to as the "MCGC") for the period of February, 1998 to 12/14.09.1998. The total amount demanded by petitioner vide the aforesaid bill was Rs. 57,74,164/-.
6. Aggrieved by aforesaid bill dated 13.02.2007 the Consumer made a reference under Clause 5(2) of Redressal Forum and Ombudsman Regulations, 2007. A copy of reference application is on record as Annexure-4 to the writ petition. It was contested by petitioner by filing its reply. The Consumer also filed his rejoinder affidavit before the Forum.
7. The Forum consisted of two, namely, Sri Jagmal Singh, Chairman and Sri Ram Prakash Nigam as Member. Both delivered their separate orders. While Chairman of Forum rejected the reference application of Consumer, the Member, Sri Nigam on the contrary allowed it and held that petitioner had no authority to demand MCGC from Consumer being barred by limitation and even otherwise.
8. Aggrieved by the decision of Chairman of Forum, the Consumer filed a representation before Electricity Ombudsman under Clause 8.1 of Redressal Forum and Ombudsman Regulations, 2007. A cross representation against order of Sri Nigam was filed by petitioner also. The aforesaid representations have been decided by Electricity Ombudsman vide order dated 27.06.2008 holding that demand of MCGC from Consumer was illegal. It is this order of Electricity Ombudsman which is under challenge in the present writ petition.
9. Sri Amarjeet Singh Rakhra, Advocate appearing for the petitioner vehemently contended that under Section 42(6) of Act, 2003 there is no provision authorizing Electricity Ombudsman to entertain an appeal against the order of Redressal Forum and, therefore, Clause 8 of Redressal Forum and Ombudsman Regulations, 2007 is ultra vires of the Act. In the result, the order of Electricity Ombudsman interfering with the order of Redressal Forum is a nullity and liable to be set aside. Coming on merits of the issues he contended that once Consumer was informed that the licensee, i.e., petitioner is in a position to supply additional electrical load to Consumer and informed him about the same, if the Consumer failed to avail additional load of electricity, he cannot absolve himself from the liability of payment of MCGC inasmuch as it was his fault for which the petitioner-licensee cannot be made to suffer. The concept and objective of MCGC justified demand raised by petitioner and Electricity Ombudsman having failed to consider this aspect of the matter has committed a patent error in passing impugned order. He further contended that holding the bill raised by petitioner on 13.02.2007 as barred by limitation, one of the Member of Forum, as also the Electricity Ombudsman, have committed patent error inasmuch as the limitation would commence only when demand is raised, hence, limitation prescribed in Section 56(2) of Act, 2003 would not apply in this case. He further contended that period of dispute being of 1998 merely for the reason that bill was issued in February, 2007, Consumer could not have taken recourse to Act, 2003 inasmuch as at the relevant time, that is the period of which dispute relates, there was no provision prescribing any limitation about demand raised by a supplier of electricity, and, therefore, holding bill dated 13.02.2007 as barred by limitation is incorrect. He lastly contended that decision of Electricity Ombudsman is even otherwise contrary to law.
10. Learned counsel for the respondent-Consumer per contra submitted that a representation under Clause 8 of Redressal Forum and Ombudsman Regulations, 2007 is in fact like a remedy of appeal against the order of Redressal Forum before Ombudsman and except of terminology it has all indicias of an appeal before higher authorities against non-redressal of consumers' grievance at the end of Redressal Forum. The provision is well within authority of Section 42(6) but to the extent it permits a similar representation before Ombudsman by the Distribution Licensee also, it is beyond the scope of Section 42(6) to that extent. As submitted by Sri Rakhra, this provision may be said to be ultra vires only to this extent and may be struck down. However, this would not affect the ultimate order passed by Ombudsman in favour of Consumer which is legally and factually perfectly valid and justified warranting no interference. The Consumer was never released additional load, hence not liable to pay any MCGC. Even otherwise the demand raised by petitioner was wholly unauthorized, without jurisdiction and also barred by limitation. He also supported the impugned order for reasons stated therein.
11. The issues raised in the present writ petition which are to be considered and adjudicated by this Court in the light of submissions advanced, as noticed above, in my view would be:
(a) Whether Clause 8 of Redressal Forum and Ombudsman Regulations, 2007 is ultra vires of Section 42, sub-sections (5) and (6) of Act, 2003;
(b) Whether demand raised by petitioner vide bill dated 13.02.2007 is barred by limitation, whether the demand raised by impugned bill was otherwise impressible in law; and,
(c) Whether Consumer was liable to pay MCGC to the petitioner for the period of February, 1998 to September, 1998 for which demand was raised vide bill dated 13.02.2007.
12. The Redressal Forum and Ombudsman Regulations, 2007 have been framed by U.P. Electricity Regulatory Commission (hereinafter referred to as the "UPERC") in purported exercise of power under Section 42 of sub-sections (5) to (8) read with Section 181 of Act, 2003. The relevant sub-sections of Section 42 referred to for enacting above Regulations read as under:
"42. Duties of distribution licensee and open access:.........
(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-section (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." (emphasis added)
13. Section 181 confers power upon UPERC to make regulations and relevant provisions contained in Section 181 (2)(r) and (s) reads as under:
"181. (2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely:-
(R) guidelines under sub-section (5) of section 42;
(S) the time and manner for settlement of grievances under sub-section (7) of section 42;"
14. It is in this context Redressal Forum and Ombudsman Regulations, 2007 have been promulgated by UPERC vide notification dated 04.10.2007.
15. Sri Rakhra, learned counsel for the petitioner did not dispute that in general the aforesaid Regulations are within the competence of UPERC except to the extent it has couched Clause 8 making representation before Electricity Ombudsman like an appeal against the order passed by Redressal Forum. He contended that the words "non redressal of grievance" under sub-section (6) of Section 42 means where an application is filed before Redressal Forum but it is not decided only then a Consumer shall have a right to make representation before Electricity Ombudsman but where the matter is decided by Redressal Forum, even if such an order is against Consumer, he shall have no right to file a representation before Electricity Ombudsman challenging said order of Redressal Forum since the order of Redressal Forum cannot be treated to be an order against which an appeal would lie to Electricity Ombudsman under Section 42(6) of Act, 2003. He also submitted that Distribution Licensee for this reason is also cannot be forced to avail such remedy of appeal by filing a representation before Electricity Ombudsman by making such a provision in Clause 8.1 and 8.2 of Redressal Forum and Ombudsman Regulations, 2007.
16. To my mind, submission of Sri Rakhra to give a restricted and narrow meaning by interpretation to the words "non redressal of grievance" has no foundation or basis. The Legislature has provided an inbuilt machinery for day to day or occasional dispute or differences which may arise between a Consumer and Distribution Licensee so that such differences and disputes may not engage the parties in Courts of Law involving cumbersome long time taken procedure which may/would otherwise seriously erode the smooth functioning of Distribution Licensee.
17. Any system engaging electricity supplier and consumer in a long drawn legal battle would work against public interest inasmuch as the nature of commodity involve is now a necessity and, therefore, its regular availability with consumers with least litigation is the need and demand of day. With this objective an inbuilt dispute redressal machinery has been contemplated and any attempt to whittle down this intention of legislature would be against all canons of judicial discipline and also against all canons of principle of interpretation of statute. A purposive reading has to be applied which would further the objective and intention of legislature and not which would create hurdles and obstructions and defeat the very objective. With this view and objective the Distribution Licensee has been placed under an obligation by Legislature to constitute a forum for redressal of grievance of Consumer and that too within a prescribed period, i.e., six months from the appointed date or date of grant of licence whichever is earlier. Simultaneously, it also obliges the concerned Regulatory Commission of the State (in this case UPERC) to provide, if any, guidelines with respect to such forum which is to be established by Distribution Licensee. Obviously it is an internal machinery of Distribution Licensee involving his own selected persons or body to look into any likely dispute or difference causing grievance to Consumer(s) of Distribution Licensee.
18. This objective has been well taken care by UPERC while framing Redressal Forum and Ombudsman Regulations, 2007 inasmuch as it has only given broad outlines regarding grievance redressal forum but the actual naming/selection and appointment of persons to constitute such forum left within the authority of Distribution Licensee. Though Clause 3.7 states that Forum shall function independent of licensee but once the power of selection and appointment is conceived to Distribution Licensee, funds expenditure are also in the hands of Distribution Licensee and the power of removal of members of Redressal Forum is also conceded to the Distribution Licensee in practice, the kind of independence expected from such competence is bound to lack complete independence becomes illusory and impractical. It is true that so far as Chairman of Forum is concerned, power of removal has been kept by UPERC in its hands but with respect to Members it remains with Distribution Licensee. The Consumer can approach Redressal Forum if it has any grievance against Distribution Licensee but the subject matter of dispute must not be referable to Sections 126 to 128, 135 to 139, 143, 152 and 161. In other words any dispute which comes within the realm/ambit of Sections 126 to 128, 135 to 139, 143, 152 and 161 the same would not be entertainable by the Forum but all other disputes involving a Consumer and Distribution Licensee can be raised before Redressal Forum under Redressal Forum and Ombudsman Regulations, 2007.
19. There is another exception. A dispute which is already subject matter of adjudication before any Court, Authority or any other Forum or where a decision had already come by way of a decree, award or final order by any Court, Authority or Forum, there also no complaint is permissible nor entertainable nor maintainable before the Forum. In all other matters Consumer can raise his grievance before Redressal Forum by filing a complaint in the format prescribed in Clause 6.2 of Redressal Forum and Ombudsman Regulations, 2007. The above discussion also shows that condition precedent to approach a Forum under Redressal Forum and Ombudsman Regulations, 2007 is the existence of a grievance to a consumer and his intention to seek its redressal. This grievance must be against any action or inaction of the Distribution Licensee.
20. Whenever such a grievance is raised before the Forum there can be two consequences. The Forum may come to a conclusion that the complaint of consumer is correct and thereafter it may give due and effective relief to consumer by issuing appropriate direction to Distribution Licensee to do or not to do something as it finds necessary in particular matter. The another consequence may be that the Forum may find complaint/grievance raised by consumer to be incorrect, misconceived, flimsy, bogus etc. and may reject the same. In whatever manner the Forum takes a decision but the fact remains that it would have to take a decision in a particular manner, either way. When decision is taken in favour of consumer, there is one way to say that his grievance has been redressed. In other words, the redressal to grievance may arrive if a decision is given by Redressal Forum in his favour. Any order/direction otherwise would obviously cause and results in "non redressal of grievance of Consumer". It may be either due to rejection of complaint made by Consumer or due to inaction on the part of Redressal Forum in taking a positive decision on the complaint made by Consumer or may be for any other reason but there can be only two consequences when a complaint is made by Consumer, firstly, redressal of grievance and secondly non redressal of grievance. If a complaint results in first consequence, i.e., redressal of grievance obviously there is no occasion for a Consumer to approach Electricity Ombudsman appointed or designated by Electricity Regulatory Commission under Section 42(6) of Act, 2003 and in such a case Section 42(6) shall have no application at all. However, if the consequence falls in later category, Section 42(6) shall be and would be attracted. I do not admit any ambiguity, confusion or scope of taking any other view or to subscribe the view as suggested by Sri Rakhra, learned counsel for the petitioner. There is no basis for advancing argument in the manner as has been suggested by learned counsel for petitioner. The submission is thoroughly misconceived and shows a total misreading and misinterpretation of an otherwise clear, unambiguous and explicit provision of statute. It is well settled principle of interpretation that a statute which is clear, unambiguous should be given a straight simple interpretation as borne out therefrom without twisting the words and without attributing the legislature of superfluous legislation, i.e., addition of words having no consequences or extra words and also not to conceive a situation of casus omisus. The statute, plain and simple, must be read as it is unless a bare simple reading defeats the very intention of legislature or may result in drastic consequences which could never have been conceived by legislature.
21. The statute hereat is plain, simple and clear, wholly unambiguous and warrants no threadbare scrutiny of words so as to result in misconstruction of words. The kind of argument advanced by Sri Rakhra is a clear attempt to do violence with otherwise plain and simple word of statute and, therefore, this endeavour on his part has to be negatived at the outset. To this extent, therefore, there cannot be any occasion to accept what learned counsel for petitioner has contended and this Court do not find any encroachment in the statutory power conferred by Section 42 sub-sections (5), (6) and (7) of Act, 2003 upon UPERC. The "representation" contemplated under statute maintainable before Electricity Ombudsman, therefore, for all practical purposes has to be a petition against an action of Redressal Forum having the consequence of non-redressal of grievance to the consumer and only the 'Consumer' and none else. Therefore, though such representation is not termed as an appeal but it has all the characteristics and scope of scrutiny and consideration by Electricity Ombudsman as if he is sitting in appeal over the order of Redressal Forum.
22. However, there is another aspect of the matter. Section 42(6) of Act, 2003 confers a remedy of making representation for redressal of grievance to Electricity Ombudsman only upon a "Consumer" and none else. The statutory right in the realm of appeal, review, revision etc. cannot be conceived to exist inherent of a statute. It must be provided in the statute. In the present case against "non redressal of grievance" under sub-section (5), i.e., before Redressal Forum, a remedy of representation before Electricity Ombudsman has been provided to a "Consumer" under sub-section (6) of Section 42. Though it is termed as "representation" but as already said, for all practical purposes, it has all the traits of a remedy like appeal from an action/inaction of Redressal Forum which has resulted in non redressal of grievance to the Consumer. If a grievance is redressed, no representation is contemplated under sub-section (6) of Section 42. The logical corollary and something which is evident and explicit is that Distribution Licensee has not been provided any remedy under sub-section (6). The reason is quite natural. The Redressal Forum contemplated by sub-section (5) of Section 42 of Act, 2003 constitute persons selected and appointed by Distribution Licensee. Once they come to conclusion that complaint of Consumer is justified and pass an order for redressal of his grievance, the machinery being an internal one of the Distribution Licensee, the Legislature has expected a Distribution Licensee to accept and give due honour to such decision of Redressal Forum and not to turn the dispute in a chain of litigation by taking up the matter further. Here the Legislature has intended to give a quietus to the cause, once Redressal Forum has decided the matter redressing grievance of Consumer and giving requisite and due directions to Distribution Licensee who is supposed to honour it and comply it.
23. With this intention, the remedy of representation under sub-section (6) of Section 42 has been conferred only upon the Consumer. When statute has not provided remedy to a particular party, such remedy could not have been conceived and generated by Commission in exercising powers under same statute which specifically does not provide any such remedy to the person concerned. In other words when Section 42 sub-sections (5) to (8) nowhere contemplate and provide a remedy to Distribution Licensee against a decision of Redressal Forum, the UPERC has no authority or jurisdiction under the said provision to make a provision providing remedy of representation to Distribution Licensee also. To this extent Clause 8, i.e., Clause 8.1 and 8.2 of Redressal Forum and Ombudsman Regulations, 2007 are ultra vires being inconsistent to sub-section (6) of Section 42 of Act, 2003. When jurisdiction has been conferred upon UPERC to make provision in a particular manner and to a particular extent, the UPERC has no authority to give an expansion thereto to an otherwise clear, and unambiguous provision. It cannot cover such an aspect which is not provided in the statute at all. When no right of representation has been conferred upon the Distribution Licensee against a decision or order of Redressal Forum, the UPERC has evidently exceeded in its jurisdiction by conceding such remedy to a Distribution Licensee. I have no hesitation in holding that to this extent Regulation 8 is beyond the Regulation framing authority of UPERC. This Court, therefore, holds that Clause 8 of U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007, in so far as it permits a Distribution Licensee to make representation before Electricity Ombudsman against an order of Redressal Forum, constituted under sub-section (5) of Section 42, shall not be given effect to being ultra vires of Section 42 sub-section (6) of Act, 2003 and it is struck down to this extent only.
24. During the course of argument while addressing this Court on the above aspect one more issue has been raised, i.e., with regard to dissenting opinion delivered by the two persons constituting Redressal Forum and against these two individual decisions, corresponding two representations were filed by Consumer as well as the Distribution Licensee. Though faintly but it was suggested that the matter ought to have been referred to another member or another Forum to have a clear verdict. A single opinion would not constitute a final order and, therefore, representations before Electricity Ombudsman were not maintainable.
25. At first flush the argument appears to be quite attractive but on a closer scrutiny I find it wholly untenable and without any substance.
26. The Redressal Forum in the present case consisted of two persons, one Chairman and another Member. The petitioner has also taken a ground that Forum must have consisted of three persons but here it was only two persons and, therefore, it was not properly constituted. On this aspect though there is no specific pleading in writ petition but in representation filed by petitioner before Electricity Ombudsman much has been said.
27. The constitution of Forum is provided in Clause 3 of Redressal Forum and Ombudsman Regulations, 2007. Clause 3.2 says that each Forum shall comprise of a Judicial Member as Chairman and one Technical Member and one Officer of Licensee as Members. However, Clause 3.2(vi) provided that no act or proceeding of Forum shall be invalid merely on the ground of existence of any vacancy or defect in constitution of Forum. Clause 7.1(b) provides for quorum of the Forum and also the manner in which a matter shall be decided. It reads as under:
28. In the present case quorum of Forum was complete. Since it consisted of a Chairman, he possessed power of casting vote. In a case where the matter is decided by Forum having quorum of two, and there is a difference of opinion the casting vote of Chairman would be the deciding factor if he is one of the Member constituting Forum but where Chairman is not there, and, Forum hearing matter consists of one Technical and one Officer of Licensee as Members, it is the Technical Member whose casing vote shall be deciding factor. The logical corollary of aforesaid provision is that in case of a complaint attended and decided by Forum consisting of two, namely, one Chairman and one Member, it is neither illegal for any alleged flaw in the constitution nor there is any want of jurisdiction nor there is any otherwise illegality. Further if there is a difference of opinion amongst Chairman and Member, since the Chairman has casting vote, his view shall be treated to be a majority view resulting in decision of the matter accordingly. In the present case, Chairman having taken a view against Consumer, his decision would constitute majority decision of the Forum and, therefore, Consumer had a case of "non redressal of grievance" under sub-section (6) of Section 42, entitling him to approach Electricity Ombudsman by making representation, availing remedy under sub-section (6) of Section 42.
29. The next question is whether electricity bill dated 13.02.2007 raised by petitioner was barred by limitation as held by Electricity Ombudsman. The basic question would be, whether demand raised by petitioner vide bill dated 13.02.2007, i.e., after about 8 to 9 years of period in dispute, whether barred by limitation or whether no limitation would have attracted in this matter or whether the above demand is otherwise impermissible.
30. Admittedly, the period for which bill was raised to Consumer is February, 1998 to September, 1998. The Electricity Ombudsman has held the aforesaid demand, illegal and unjust. One of the reason is that it is barred by Section 56(2) of Act, 2003.
31. The aforesaid provision reads as under:
"56(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity."
32. A bare reading of aforesaid provision shows that it contemplates, (a) there must be a sum due from any consumer, and (b) it must be under this Section, i.e., Section 56. If these two conditions are satisfied, such sum is not recoverable after a period of two years from the date when such sum became first due. The only exception to this period of limitation where aforesaid ingredients are satisfied otherwise is that such sum must have been shown continuously as "recoverable as arrears of charges for electricity supplied". The statute further provides, if the sum due is not recoverable due to applicability of sub-section (2) of Section 56, in such case the Distribution Licensee also shall not cut off supply of electricity of such Consumer which power otherwise has been conferred upon Distribution Licensee under sub-section (1) of Section 56.
33. Sri Rakhra, learned counsel for the petitioner conceded that the word "under this section" would not only cover the dues which become payable by a Consumer after enforcement of Act, 2003 but shall also include electricity charges relating to a period prior to enforcement of aforesaid period, realizing the fact that any other view would make it very difficult to a Distribution Licensee to exercise power of disconnection against non payment of electricity dues of a period prior to Act, 2003.
34. In the present case entire assets/obligations/liabilities etc. of erstwhile U.P. State Electricity Board (hereinafter referred to as the "UPSEB") firstly stood transferred to U.P. Power Corporation Limited (hereinafter referred to as the "UPPCL") vide transfer Scheme 2000 and thereafter when its subsidiary companies were created which included DVVNL the same stood transferred to such subsidiary companies. This aspect has been dealt in detail in this Court's decision in Rajeev Kumar Jauhari & others Vs. State of U.P. & others, 2007 (4) ESC 2253 and Ashok Kumar and others Vs. State of U.P. and others, 2008(6)ADJ 660 with which I have respectful concurrence and, therefore, do not intend to add anything hereat. Suffice it to say that these licensees are entitled to recover the electricity charges from a Consumer not only of the period after enforcement of Act, 2003 but even prior thereto.
35. To attract Section 56(2) the first condition is that there must be a "sum due" from a Consumer. The term "sum due" has been considered time and again and is no longer res integra.
36. The word "due" in simple dictionary meaning is something which can be demanded, one own to another, something payable to another on occurrence or satisfaction of condition or contingency agreed by two parties.
37. In "Black's Law Dictionary" Fifth Edition meaning of word "due" is:
"Due" - Just; proper; regular; lawful; sufficient; reasonable, as in the phrases "due care", "due process of law",, "due notice."
Owing; payable; justly owed. That which one contracts to pay or perform to another; that which law or justice requires to be paid or done.
Owed, or owing, as distinguished from payable. A debt is often said to be due from a person where he is the party owing it, or primarily bound to pay, whether the time for payment has or has not primarily bound to pay, whether the time for payment has or has not arrived. The same thing is true of the phrase "due and owing".
Payable. A bill or note is commonly said to be due when the time for payment of it has arrived.
The word "due" always imports a fixed and settled obligation or liability, but with reference to the time for its payment there is considerable ambiguity in the use of the term, the precise signification being determined in each case from the context. It may mean that the debt or claim in question is now (presently or immediately) matured and enforceable, or that it matured at some time in the past and yet remains unsatisfied, or that it is fixed and certain but the day appointed for its payment has not yet arrived. But commonly, and in the absence of any qualifying expressions, the word "due" is restricted to the first of these meanings, the second being expressed by the term "overdue" and the third by the word "payable".
38. In Wharton's Law Lexicon, 14th Edn., its meaning is stated to be "anything owing. That which one contracts to pay or perform to another; that which law or justice requires to be paid or done. It should be observed that a debt is said to be 'due' the instant that it has existence as a debt; it may be payable at a future time".
39. In Venkataramiya's Law Lexicon and Legal Maxims Vol, I, the term "due" has been shown to mean payable immediately or a debt contracted but payable at a future time.
40. In "The New Lexicon Webster's Dictionary of the English Language" the meaning of word "due" is, "payable, morally owning, proper, fitting, adequate, expected to arrive, owing, attributable etc."
41. In "Legal Glossary", the meaning of word "due" is, "that which is owning or payable as a debt; that which is due to anyone legally or morally."
42. In Union of India Vs. Air Foam Industries (P) Ltd., AIR 1974 SC 1265 the Court considered the word "recovery of sums due" and said:
"It is true that a heading cannot control the interpretation of a clause if its meaning is otherwise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clause and affording a key to a better understanding of its meaning. . . . . . . . this clause is intended to deal with the subject of recovery of sums due. Now a sum would be due to the purchaser when there is an existing obligation to pay it in present. It would be profitable in this connection to refer to the concept of a 'debt' for a sum due is to be found in Webb v. Stenton, [1883] 11 QBD 518 where Lindley. L. J., "...a debt is a sum of money which is now payable or will become payable in the future by reason of a present obligation". There must be debitum in presenti; solvendum may be in presenti or in future-that is immaterial. There must be an existing obligation to pay a sum of money now or in future. The following passage from the judgment of the Supreme Court of California in People v. Arguello, [1869] 37 Calif 524, which was approved by this Court in Kesoram Industies v. Commr. of Wealth Tax, [1966] 2 SCR 688 (AIR 1966 SC 1370), clearly brings out the essential characteristics of a debt.
"Standing alone, the word `debt' is as applicable to a sum of money which has been promised at a future day as to a sum now due and payable. If we wish to distinguish between the two, we say of the former that it is a debt owing, and of the latter that it is a debt due".
This passage indicates that when there is an obligation to pay a sum of money at a future date, it is a debt owing but when the obligation is to pay a sum of money in praesenti it is a debt due. A sum due would, therefore, mean a sum for which there is an existing obligation to pay in presenti, or in other words, which is presently payable. Recovery of such sums is the subject-matter of Clause 18 according to the heading. That is the dominant idea running through the entire Clause 18."
(emphasis added)
43. In Raymond Synthetics Ltd. and others Vs. Union of India and others, 1992(2) SCC 255 the Court observed that a sum due would mean all sum for which there is an existing obligation to pay in presenti, or in other words, which is presently payable.
44. In M/s Modern Industries Vs. M/s Steel Authority of India and others, 2010 (5) SCC 44 the Apex Court considered the phrase "amount due from a buyer" as exist in Section 6(1) of Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 and formulated a question whether it would mean sum due. The Court in para 34 of the judgment said:
"The word 'due' has variety of meanings, in different context it may have different meanings. In its narrowest meaning, the word `due' may import a fixed and settled obligation or liability. In a wider context the amount can be said to be 'due', which may be recovered by action. The amount that can be claimed as 'due' and recoverable by an action may sometimes be also covered by the expression 'due'."
45. The amount, thus, which is due, if it is sought to be recovered, Section 56(2) would be attracted and not otherwise.
46. Now the question, so as to attract commencement of limitation is the point of time when it can be said that sum fell due. According to Sri Rakhra the electricity charges demanded by petitioner could become due only when demand first time is raised by supplier but not paid by Consumer within the time mentioned in demand. On the contrary the case of Consumer is that electricity charges shall become due when supplier or Distribution Licensee became entitled to raise demand from Consumer inasmuch as a demand could have been raised only in respect to an amount which is due and not otherwise. An amount which is not due, the question of raising demand would not arise. To analyze this aspect it would be appropriate to consider the relevant provisions applicable providing procedure for raising demand to a Consumer at the relevant time, i.e., in 1998. This Court could have considered the provisions of subsequent period also but since in the present case matter relates to the period of 1998, it is relevant to consider the same.
47. In 1998, terms and conditions of supply of electricity including raising of a bill etc. were governed by U.P. Electricity Supply Consumers Regulations, 1984 (hereinafter referred to as the "Regulations, 1984") framed under Section 49 read with Section 79 of Indian Electricity Act, 1947. Regulation 19 deals with procedure for raising a bill and reads as under:
"19. Payment of Bills-(i) Bills should be paid at the supplier's local cash office or at such other places as may be specified by the Supplier, on or before the due date specified in this behalf.
(ii) Rebate if applicable on a bill will be admissible only if payment of the bill alongwith arrear, if any, is made on or before the due date. Where in accordance with the tariff applicable, the consumer is required to pay surcharge in case of default in payment of bill within due date, the consumer will be required to pay such surcharge in addition to the amount of the bill sent to him. If the consumer fails to pay the arrears including surcharge, the same may be added in the subsequent bill of the consumer as arrears.
(iii) The inclusion of arrears in any subsequent bill shall not amount to waival of previous notice of disconnection.
(iv) Bills shall ordinarily be sent by post or by hand delivery as soon as possible after the readings are taken. If it is not received by the consumer within three weeks from the date on which the last reading was taken and recorded on the meter card, he should contact the local office of the Supplier and the Supplier shall deliver a copy of the bill. However, the Supplier shall not be responsible for the non-receipt of the bill by the consumer or delay in transit of the bill or disconnection of supply in default of payment.
(v) In case the consumer disputes the correctness of any bill, he shall notify the supplier in writing of the item or items disputed and the grounds of dispute within the due date and shall contact the local office of the Supplier to get the bills corrected within time. If the said bill even then is stated to be correct, the consumer shall deposit the amount of the bill within the due date and may persue his representation thereafter.
(vi) The Supplier will issue bill-cum-notice to the consumer, If payment is not made within due date, the consumer will be liable for disconnection 7 days after the due date under Section 24 of Electricity Act. This would be without prejudice to the Supplier's right to recover the amount of the bill as arrears of land revenue.
(vii) The due date for the payment of bills will generally be seven days from the date of issue of the bills, but for the office of the State Electricity Board, department of Central and State Government, Local bodies and University, and period will be thirty days.
(viii) If the due date for the payment of a bill falls on a holiday observed by the Supplier, the rebate shall be allowed or no surcharge levied, if the payment is made on the next working day.
(ix) Cheque will be accepted only if it has been drawn on the Bank located at the Head-quarters of the Divisional office. The date of payment by cheque will deemed to be the date on which the cheque is received in the office of the Supplier, provided that the cheque is encashed within 7 days of presentation to the Bank and is not dishonoured, otherwise supplier will forfeit rebate/levy surcharge and have the right to withdraw the payment facility by cheque.
(x) The date of payment by a money-order will be the date on which the money is received by the Supplier.
(xi) The date of payment by a bank draft or a postal order will be the date of its receipt in the office of the Supplier.
(xii) The Supplier may, in its discretion allow a consumer to pay the dues in instalments. This shall, however, be without prejudice to the forfeiture of rebate or payment of late payment surcharge on the unpaid amount of the bill by the consumer as per provision in the respective rate schedule:
Provided if the consumer fails to pay any or all of the instalments in future, his connection shall be liable to be summarily disconnected without notice and without prejudice to Board's right to recover the dues as arrears of land revenue.
(xiii) The consumer hereby accepts to abide by the provisions of the U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958, as modified from time to time in cases of default in payment of bills." (emphasis added)
48. Regulation 19 shows that the supplier of electricity (erstwhile UPSEB) was required to issue a bill raising demand with respect to electricity charges to the Consumer after reading of his meter is taken. Regulation 19(iv) contemplates that bill shall be sent as soon as possible after the reading is taken. It also requires a consumer to contact the local office of supplier if bill is not received within three weeks from the date on which the last reading was taken or recorded on the meter card. Meaning thereby the bill must have been issued so as to reach the consumer within three weeks from the date when reading was recorded. It also lays an obligation upon the consumer to pay the amount of bill on or before the due date specified on the bill, as is evident from Regulation 19(i). Regulation 19(v) also contemplate a situation where a consumer find that bill is not correct and has an intention to dispute the same, providing that he shall notify his ground of dispute and contract the local office before expiry of due date mentioned in the bill so as to get the bill checked or analyzed again and he may be able to pay the entire amount as ultimately found due "within due date". The "due date" mentioned in bill as per Regulation 19 is the ultimate point by which time the consumer must pay bill whether he dispute the same or not and failure to do so by due date would result in further action towards recovery of such amount as contemplated under Regulation 19(vi), (xi) and (xii) of the Regulations, 1984. Where no meter reading is taken and the consumer has to pay minimum charges as per relevant tariff, in my view, in such a case a bill must have been reached to the consumer immediately or within a reasonable time but before completion of another billing cycle, on expiry of outgoing billing cycle, meaning thereby if it is one month, after expiry of one month and if it is for two months, after expiry of two months. Learned counsel for the petitioner admitted as a matter of fact that in the present case of industrial consumer, the billing cycle is one month. The period for which the bill has been raised is February, 1998 to September 1998. For the months of February 1998 and onwards bill must have been raised in March, 1998 and so on. It is not disputed that in respect to electricity consumption by consumer with respect to consumption of electricity utilizing 2000 KVA electrical load already sanctioned and released to him pursuant to agreement dated 24.02.1997 regulation monthly bill were issued regularly every month and paid by Consumer. If that be so, any amount found due to Consumer in respect to alleged additional load of 2000 KVA, the bill could have been raised to Consumer alongwith regular consumption bill(s) but it was never due/issued. The erstwhile UPSEB did not raise any demand/bill to the Consumer in regard to alleged 2000 KVA additional load till it ceased by virtue of enforcement of U.P. Electricity Reforms Act, 1999 (hereinafter referred to as the "Act, 1999") and Transfer Scheme, 2000 issued under Section 23 of Act, 1999. The power of distribution and transmission of electricity as also the consumers and their obligations, entitlements, debts, liabilities etc. all stood transferred to UPPCL which took place in the year 2000. No demand or bill was ever raised even by UPPCL to the Consumer. It is only after further transfer of area of distribution to newly created subsidiary companies and in the present case, the petitioner, bill for the first time was raised on 13.02.2007. No explanation whatsoever is forthcoming as to why for the last 8 to 9 years the electricity supplier did not raise any demand asking Consumer to pay electricity charges towards alleged MCGC for the period of February, 1998 to September, 1998. In my view, the amount fell due when supplier was entitled to raise bill asking Consumer or forcing him to pay electricity charges. The word "due" will have to read to a certain point of time and not something which is uncertain and depend on volition of one of the party to transaction unless shown to be evident from terms of agreement or any applicable statute. It is also not the case of petitioner that aforesaid sum has been continuously shown as recoverable as arrears of charges for electricity supply. There is neither any pleading to this effect nor there is any material to this effect. There is not even a suggestion by learned counsel for the petitioner that it was so shown at any point of time. In the circumstances, I have no hesitation in holding that Electricity Ombudsman was right in holding that demand raised vide bill dated 13.02.2007 in respect to alleged electricity charges for the period February, 1998 to September, 1998 is barred by limitation and, therefore, not recoverable. The period of limitation is also made a matter of dispute, whether limitation under Section 56(2) would attract the bill in dispute or it is the limitation prescribed in Limitation Act, 1963 (hereinafter referred to as the "Act, 1963"). To my mind the matter would be covered by the provisions of Act, 1963 and, therefore, at the best, period of limitation could have been three years. Thereunder also the demand raised was barred by Act, 1963. It is suggested that in respect to erstwhile UPSEB, there were separate provision made under U.P. Government Electrical Undertaking (dues Recovery) Act, 1958 (hereinafter referred to as the "Act, 1958"), wherein period of limitation for filing a suit vide Section 5-A prescribed was six years. Even applying the same, demand raised for the first time on 13.02.2007 is not saved and is clearly barred by limitation. Thus whether we apply Section 56(2) of Act, 2003 or provision of Act, 1963 or Act, 1958, the bill dated 13.02.2007 by application of any of the above provisions is hit limitation. The conclusion drawn by Ombudsman, therefore, cannot be faulted to the extent that the aforesaid demand raised by petitioner is barred by limitation.
49. Now I come to third question, whether petitioner even otherwise was justified in raising demand for MCGC.
50. The concept of MCGC in respect to electricity is no more res integra having been considered in catena of decisions.
51. The concept of a provision in the tariff relating to electricity providing for MCGC is now well known and accepted. Electrical undertaking is a kind of establishment which involves high investment and low returns. It is an establishment which is catering the common need of people constituting one of the basic need of present day society. Today without electricity it is difficult to conceive a civilized society. Whether it is communication, conveyance, agriculture, industrial production or common men life, every walk of life, in one or other manner, is influenced by electricity. In Tinsukhia Electric Supply Co. Ltd. Vs. State of Assam and others, AIR 1990 SC 123 the Apex Court held that generation and transmission of electricity constitute the distribution of natural resources of State to public at large. It is not a luxury but a necessity. Moreover, the very nature of commodity is such that once it is generated, it cannot be stored but has to be used/consumed. It is a regular and continuous process involving generation, transmission and consumption simultaneously. The consumers assess their requirement, execute agreement with electricity supplier disclosing their requirement of electrical load and the Electricity Supplier in furtherance thereof has to make itself capable of supplying electricity to the extent, agreement(s) have been executed. It is also interesting to note that generation and transmission is controlled by Supplier but user is controlled by consumer, who can use or not use electricity by just switching on/off an electrical device installed at consumer's end. The supplier, however, has to maintain adequate quantity of electricity in the system, i.e., in the wires so that whenever a consumer switch on to cater his need, the requisite amount of electricity is there and get used. If consumer does not use electricity, quantum of electricity already generated may get waste. The Supplier, therefore, has to keep and maintain a minimum quantity of electricity always available in grid. It will have to be always kept itself in system sufficient quantum of electricity ready to be used by consumer as and when he intends to do so. This involve a continuous running expenditure, whether electricity generated is actually used or not. This is what is called and recognized for the purpose of demanding MCGC since the supplier always keep it in a "state of readiness" to supply contracted amount of electricity to consumer. If electricity is consumed to the extent of quantity of electricity contracted throughout the period, the supplier would get electricity charges on the basis of actual electricity consumed. But where the consumer does not use electricity to the extent of quantum thereof agreed with supplier, the later would be in a position of disadvantage for keeping itself in the state of readiness incurring regular minimum operational expenditure yet without any return thereof. In order to protect supplier of electricity in such matters, the concept of MCGC has been recognized and a tariff/rate schedule prepared by electricity supplier containing a provision of MCGC has been held valid. (See Eastern U.P. Chamber Of Commerce Vs. U.P. State Electricity Board, AIR 1993 Alld. 309)
52. A simple illustration in this regard may be given. ''A' executes an agreement with ''B' for hiring a Car for a certain period namely two years with further condition that payment of use of Car shall be made on the basis of certain amount per kilometer run by Car. If ''A' uses the Car everyday, running it to a certain distance, covering a substantial part, that may fetch enough amount to ''B' to meet his expenses towards the cost he has incurred for purchase of Car, the wages of driver and other incidental charges including profits also but if ''A' does not use the Car and keep it standing outside his house or run the same for a very small and negligible distance, virtually no amount or a negligible amount would be payable to ''B' if agreement contains cost only for payment of charges for running of vehicle per kilometer and nothing more than that. To cover-up an otherwise situation, ''B' can make a condition that in case the Car is not running to a particular distance or specified number of kilometers, ''A' would have to pay for a lump sum amount everyday, irrespective of the fact, whether he is using Car or not and to what extent. This kind of clause is called a clause relating to minimum charges. This is what in respect to electricity matters is called "Minimum Consumption Guarantee Charge", i.e., MCGC.
53. This case can be looked from one more angle. In the present case petitioner executed the agreement with Consumer for 2000 KVA electrical load and said quantum of electricity connection was released to Consumer. To this extent there is no dispute. The Consumer, therefore, was liable to pay electricity charges vis a vis consumption of electricity to the extent of a contracted load of 2000 KVA vide agreement dated 24.02.1997 which would cover MCGC for said quantum of electrical load. The question up for consideration is in respect to additional load of 2000 KVA, whether there was any occasion rendering Consumer liable to pay MCGC for this additional load. The real question in this regard, whether Consumer at any point of time put itself in a state of binding contract duly executed so as to be obliged for keeping itself in a state of readiness for supply of additional load of 2000 KVA or not.
54. Admittedly, an agreement was executed on 31.03.1997 but it provided that additional load of 2000 KVA is not available but shall be released later on. Therefore, the agreement though executed on 31.03.1997 was for additional load of 2000 KVA but the same was not available with petitioner and, therefore, it did not make it in a state of ready to keep itself in the state of readiness. The agreement stipulated that this quantum of additional load of 2000 KVA shall be released later on whenever it would be available. The agreement also provided that the supplier would arrange for additional load of 2000 KVA within six months. It, however, fails to do so. After almost nine months on 31.01.1998 the petitioner claim to have sent a letter to Consumer that additional load of 2000 KVA is available. The Consumer was required to convey his consent for release of additional load. It is not the case of petitioner that any consent or acceptance was conveyed by Consumer or that additional load of 2000 KVA was released to him. The factum that Consumer did not convey his acceptance or refusal, as the case may be, is admitted by petitioner in para 9 of the writ petition. The further averment that he did not convey his refusal however is of no consequence inasmuch as if Consumer was required to convey his acceptance or consent, a positive act on the part of Consumer was contemplated without which nothing could have moved. Since Consumer did not convey his consent or acceptance, it is evident that petitioner also did not take any further action. Moreover, a mere consent or acceptance did not have resulted in an automatic user of additional load unless the additional load is released to Consumer. The provision prescribing procedure for additional load at the relevant time is contained in Regulation 10(a) of Regulations, 1984 which says that it shall be dealt with in the same manner as an application for a new connection. The procedure for new connection is provided in Regulations 3, 4, 5, 6 and 7 of Regulations, 1984 and it is only when agreed quantum of electricity is released to consumer, the liability of consumer begins and not before that. Despite repeated query from learned counsel appearing for the petitioner, he could not tell the date of release of additional load of 2000 KVA to the Consumer. The very basic premise to attract provision of MCGC, therefore, did not exist in this matter inasmuch as if additional load was never released to Consumer and the supplier in furtherance thereof did not make it obligatory to keep itself in the state of readiness throughout, the provision relating to MCGC would not have attracted at all. The mere execution of agreement on 31.03.1997 can not be held sufficient to attract liability of MCGC. This aspect is admitted to the petitioner since no such bill was raised for additional load of 2000 KVA for the period subsequent to agreement date, i.e., 31.03.1997. After sending letter on 31.01.1998 which was sent by petitioner after expiry of period of six years, within which it was supposed to have made available the additional load to Consumer, no corresponding consent or acceptance was conveyed by him so as to enable the petitioner to give effect to agreement dated 31.03.1997, terms whereof were already flouted by petitioner.
55. The discussion made above leaving no doubt in my mind to hold that in the present case Consumer was not liable for MCGC in respect to additional load of 2000 KVA electrical load which was never released to petitioner in terms of agreement dated 31.03.1997.
56. Learned counsel for the petitioner suggested that once an agreement has been signed by Consumer with open eyes he is bound by terms and conditions laid down therein and cannot wriggle out the liability under relevant tariff/rate schedule and placed reliance on Apex Court's judgment in Bihar State Electricity Board and others Vs. Permeshwar Kumar Agarwala etc., AIR 1996 SC 2214, Bihar State Electricity Board, Patna and others Vs. M/s Green Rubber Industries and others, AIR 1990 SC 699 and a Division Bench judgment of this Court in M/s Modern Steel Industries Vs. State of U.P. and others, Civil Misc. Writ Petition No. 24281 of 1998, decided on 18.12.2009 but I do not find any of these judgments to have any application in the present case. The Consumer is not disputing either the terms and conditions of his agreement or his liability therein but the very basic question herein, whether there is any entitlement of petitioner at all in the facts and circumstances of this case towards MCGC in respect to additional load of 2000 KVA. Therefore, the judgments referred to above have no application to this case.
57. In the result, I find no error in the order of Electricity Ombudsman impugned in this writ petition so as to entitle the petitioner for relief to the extent of any interference therein. With respect to plea regarding validity of Clause 8 of Redressal Forum and Ombudsman Regulations, 2007, I have already found that to the extent it permits representation by Distribution Licensee against an order of Redressal Forum, it is ultra vires of Section 42, sub-sections (5) and (6) of Act, 2003 but even that would not result in granting any relief to the petitioner.
58. In view of above, subject to observations and findings hereinabove, since no relief can be granted to petitioner, the writ petition deserves to be dismissed and is accordingly dismissed.
59. There shall be no orders as to costs.
Order Date :- 6.1.2012 AK