1. Heard Mr.Vaishnav, learned Advocate for petitioner and Mr.Joshi, learned Advocate for respondent company.
2. The petitioner has taken out present petition seeking below mentioned relief/s and directions:
"A) YOUR LORDSHIPS may be pleased to allow this petition and issue a writ of mandamus or any other appropriate writ, order or direction for i) quashing the second order of the Ombudsman of Electricity dated 04.05.2011 at Annexure 'E' qua the non-granting of the refund of the amount of excess recovery made than the actual cost in respect of the cable cost, panel charges and the cost of first 30 meters free length of the service line, ii) refunding the amount of the excess recovery made as mentioned in paragraph 14 and iii) given the interest on the entire amount of the refund from the date of its payment to the date of its refund."
3. The respondent company has contested the petition by filing reply affidavit. It is stated in the reply affidavit that:-
"4. By way of the present petition, the petitioner has challenged the order dated 04.05.2011 passed by the Ombudsman under the Electricity Act, Gujarat State in Case No.14 of 2011 qua not granting of refund of the amount of excess recovery made than the actual cost in respect of the cable cost, panel charges and cost of the first thirty meters free length of service line.
5. I state and submit that, initially, the petitioner approached the Consumer Grievances Redressal Forum, Paschim Gujarat Vij Company Limited, Bhavnagar by way of Case No.10 of 2009. The Consumer Grievances Redressal Forum passed the order on 18.03.2010 and the same was challenged by the petitioner before the Ombudsman by way of filing Case No.16 of 2010. The Ombudsman under the Electricity Act, Gujarat State was pleased to remand the same by order dated 24.06.2010. In pursuance of the same, the Consumer Grievances Redressal Forum passed the order on 19.1.2011 rejecting the application of the petitioner. Against which, the petitioner approached the Ombudsman under the Electricity Act, Gujarat State by way of Case No.14 of 2011. The Ombudsman under the Electricity Act, Gujarat State, after giving an opportunity of hearing, has been pleased to dispose of the same by order dated 04.05.2011. The said order is under challenge in the present petition.
6. I state and submit that, there are concurrent finding of fact recorded by the authorities and, therefore, the Honourable Court may not disturb the finding as prayed for by the petitioner in the present petition.
7. I state and submit that the Ombudsman under the Electricity Act, Gujarat State has dealt with all the submissions of the petitioner after giving an opportunity of hearing and considering the documents. The Ombudsman under the Electricity Act, Gujarat State in paragraph 5 of the impugned order has dealt with each of the submissions of the petitioner. I crave leave of the Honourable Court to rely on the impugned order dated 4.5.2011 at the time of hearing of this petition."
4. The petitioner has, in counter, filed affidavit in rejoinder.
5. Mr.
Vaishnav, learned Advocate has appeared for the petitioner and submitted that the order passed by the ombudsman is bad in law.
6. The relief prayed for in the petition shows that the petitioner claims refund of the amount paid by the petitioner on the ground that actually the cost incurred by the respondent company, while granting connection, is less than the amount which the petitioner was required to pay and therefore the excess amount should be refunded to the petitioner. From the record, it emerges that the petitioner had raised the said grievance before the ombudsman, where the matter was heard at length and has been decided on merits. The contention of the petitioner raised before the ombudsman has been recorded in the order dated 4th May 2011 passed in Case No.14 of 2011. The petitioner had raised below mentioned contention before the ombudsman in the said case No.14 of 2011.
"3.3.The cost of cable shown in Rs.1028/- per meter, while same is charged at Rs.1270/- per meter. That difference amount should be refunded. Though cable purchase price of PGVCL is Rs.750/- in 2008-2009 and panel purchase price of GETCO is Rs.2.62 lac in 2008-2009."
7. The ombudsman, in the said order, appears to have considered all contentions raised by the petitioner including the aforesaid contention. The ombudsman has, in the said order dated 4th May 2011, observed and held that:-
"5.1.Ref to Para 3.1 and 4.3, recovery of Rs.10320.25 as Service Tax is proposed in letter No.BRD/Tech/6265 dated 22.07.2010, copy of letter is endorsed to Appellant.
- General Manager(Finance), PGVCL, Rajkot has submitted clarification vide letter No.PGVCL/Accts/12818 dated 10.12.2010.
- it is true that this is the first case of HT consumer of Rural Division, where Service Tax recovery is proposed.
- There are disparity in accounting final bill of Rural Division and City Division. One is loading service tax on total labour charge, another is loading supervision charge as well as PF contribution and other liabilities on total labour charge. Disparity is to be rectified.
- Service Tax is to be levied on all the taxable services relating to Transmission and Distribution of Electricity after strictly observing Central Excise Act and related Notification of Ministry of Finance (Department of Revenue, Government of India.) 5.2. Ref to Para 3.2, "actual cost" accounted is on the basis of standard cost data, hence method of accounting of final bill is in order.
5.3. Ref to Para 3.3 and 3.4. and 4.4, itdm rates are as per cost data and they are exclusive of supervision charges. There is no double recovery of supervision charges.
5.4. Ref to Para 3.5, as per Chapter 3(vi) and Chapter 7(i) of GERC Notification No.9 of 2005, free length service line up to 30 meters is to be provided in case of HT supply applicant.
5.5. Ref to Para 3.6, the Licensee is empowered to collect service connection charges as per Chapter 3(iii) and Chapter 6 of GERC Notification No.9 of 2005.
5.6. I order accordingly."
8. It emerges from the said order that after considering relevant record the ombudsman found that the rates which the petitioner referred to and relied upon were the rates "exclusive of supervision charges".
9. In that view of the matter the ombudsman found that there was no double recovery of supervision charges. Having come to the said conclusion the ombudsman did not accept the request of the petitioner and the same came to be disallowed.
10. The said observation is a finding of fact by the competent authority constituted under the Act and there is no basis or justification to interfere with the said finding of fact recorded by the first authority which is an independent authority constituted under the Act.
11. Any material, which may lead this Court to hold that the conclusion recorded by the ombudsman is illegal or contrary to evidence on record or arbitrary or perverse, is not brought to the notice of the Court. Any infirmity in the order is not established. In a petition under Article 227 of the Constitution the Court will not embark on the process of reassessing and reevaluating or re-appreciating the evidence. Therefore, it is not possible for the Court to interfere with the impugned order and finding of fact recorded by the statutory authority.
The petition fails and it is rejected.
(K.M.THAKER, J.) jani Top