1. Heard Sri Tripathi for petitioner and perused the record.
2. Writ petition is directed against the order date 21.9.2010 passed by Electricity Ombudsman rejecting appeal/representation of petitioners against order dated 21.10.2009 (wrongly typed as 8.9.2010 since it is the date of reply submitted by petitioner no. 1 before the Consumer Grievance Redressal Forum, Kanpur, respondent no. 3).
3. Fact, in brief, giving rise to the present dispute are as under.
4. It is said that at the premises no. 14/75,Civil Lines, Kanpur Nagar, there existed three electrical connections as under:
(i) Connection No. 7113/017093/15 K.W. load in the name of Kishore Asnani
(ii)Connection No. 7113/017074/10 K.W. load in the name of Devendra Asnani
(iii) Connection no. 7113/017427/15 K.W. load in the name of Hemlata Asnani
5. On 18.5.2009, when the premises was checked, one air conditioner was found connected with connection no. 7113/017074 of Devendra Asnani and two air conditioners each were found connected with connection no. 7113/017427 and 7113/017093. A bill for Rs. 23,4000/- was raised to Hemlata Asnani and 8,100/- was raised against Sri Devendra Asnani. Similarly a bill for Rs. 16,200/- was raised against connection no. 7113/017093 of Kishore Asnani. Sri Deepak Asnani, son of Sri Kishore Asnani filed a complaint in respect to all the three bills stating that bill raised for 12 months are not correct and it can be demanded only for three months. Reply dated 8.9.2009 filed by petitioners admitted that there is no allegation of theft but there is some irregularity on the part of consumers and hence assessment has been made under Section 126 of Electricity Act, 2003 (hereinafter referred to as "Act") and such assessment bill cannot be disputed before Consumer Grievance Redressal Forum (hereinafter referred to as "CGRF"). CGRF considered the matter and passed order dated 21.10.2009 holding that neither any irregularity under Section 126 of the Act was found nor any checking was made as provided under para 6.9 of U.P. Electricity Supply Code, 2005 (hereinafter referred to as "Code") for the reason that all three consumers have the facility of maximum demand indicator in their meters and no separate checking has been made at the premises and there is no reference of Section of 126 in the entire checking. It is not the case of authorities that the load found at the premises was in excess than the contracted load but what they found that air conditioners were installed by the consumer for which additional Fixed Charges are provided in the tariff, leviable for a limited period, i.e. from April to September which was not demanded. Hence Fixed Charge demand for the aforesaid period, i.e. from April to September ought to have been raised. CGRF passed order accordingly permitting petitioner to raise supplementary bills demanding Fixed Charge of Rs. 150/- per ton of the capacity of the air conditioner for the period of April to September, 2009.
6. This order was assailed by petitioners before Ombudsman but appeal/representation has been rejected by Ombudsman.
7. Sri Tripathi, learned counsel for petitioners could not dispute that para 6.9 of the Code 2005 very clearly says that excess load are not covered by Section 126. Moreover, the demand has not been raised on the basis of excess load found at the premises or from MRI report but it is directly referable to installation of Air Conditioners only. Despite repeated query learned counsel for petitioner could not dispute that case of respondent-consumers was not at all covered by provisions of Section 126 of the Act since the use of Air Conditioners is not prohibited but under the tariff an additional Fixed Charge is prescribed, if a consumer has installed Air Conditioner during a particular period. Since installation of Air Conditioners was not known to petitioners, hence the aforesaid demand was not raised which has not been allowed by CGRF as well as Ombudsman in the impugned orders in its entirety. Sri Tripathi very fairly stated that as a matter of fact he is not able to point out any error in the impugned orders. In these circumstances, the present writ petition clearly appears to be a frivolous litigation on the part of petitioners which it ought to have avoided in view of observations made by a Division Bench of this Court (wherein I was also a member) (in regard to frivolous writ petition on behalf of State or its instrumentality) in Writ Petition 506 (S/B) of 2011 (State of U.P. Vs. Suresh Kumar) decided on 22.9.2011, wherein in para 28 the Court observed as under:
"28. Time and again, the Apex Court and this Court have repeatedly said that State should refrain from filing frivolous petitions, wasting precious time of Court so that other substantial matters may be taken up and decided."
8. Earlier also, in Writ Petition No. 474 (SB) of 2011 (State of U.P and another Vs. Brij Bhushan Sharma), the Court has deprecated such practice of State of filing frivolous writ petitions challenging the order of Tribunal as under:
"We deprecate such practice on the part of the State. . .."
9. In view of above, writ petition is dismissed with cost quantified to Rs. 5,000/-.
Dt. 22.11.2011 Kpy/PS