The appellant constructed a Cold Storage in Tehsil Gunnaur, District Budaun. On 4 February 2011, the appellant filed a complaint before the Consumer Grievance Redressal Forum, Bareilly constituted by the Madhyanchal Vidut Vitran Nigam Ltd.1 on the ground that the electricity bills which were prepared and issued to him were not in accordance with the applicable tariff.
The forum was constituted by MVVNL, the Distribution Licensee under the provisions of Section 42(5) of the Electricity Act, 20032. The complaint was allowed by the forum on 4 May 2011. Thereupon, the Executive Engineer of MVVNL filed an appeal/representation before the Ombudsman under Regulation 8.1 of the U.P. Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 20073. The appellant raised an objection to the maintainability of the appeal/representation. On 29 February 2012, the appellant filed a writ petition4 at Allahabad to challenge the provisions of the Regulations of 2007 and more particularly, Regulation 8.1 to the extent that it empowers the Distribution Licensee to move the Electricity Ombudsman on the ground that this was ultra vires the sub-sections (6) and (7) of Section 42 of the Act and beyond the power to frame Regulations under Section 181(2) of the Act. The Division Bench passed an interim order dated 29 February 2012 directing the Ombudsman to decide on the objection. The writ petition is pending.
In the meantime in a judgment of a learned Single Judge of this Court in Dakschinanchal Vidut Vitran Nigam Ltd. vs. Vidut Lokpal and others5, it was held that the Regulations of 2007 insofar as they empowered the Distribution Licensee to move the Electricity Ombudsman are ultra vires sub-sections (5) and (6) of Section 42 of the Act, and to that extent Regulation 8 is contrary to law.
On 18 May 2012, the representation filed by the Executive Engineer of MVVNL was dismissed by the Electricity Ombudsman. Thereupon, a writ petition was filed by the Executive Engineer in order to challenge the order of the Ombudsman. Several objections were raised by the appellant to the maintainability of the writ petition including on grounds of the locus of the Executive Engineer.
The learned Single Judge by a judgment and order dated 27 November 2015 allowed the writ petition and rejected the contention of the appellant to the effect that the Distribution Licensee could not file an appeal/representation before the Ombudsman in view of the specific provisions contained in sub-sections (5) and (6) of Section 42 of the Act which only empower the consumer to do so. The learned Single Judge held that while the provisions of Regulation 8 which empowers the Distribution Licensee also to move the Ombudsman have been declared to be ultra vires in a judgment of a learned Single Judge dated 6 January 2012, in Dakschinanchal Vidut Vitran Nigam Ltd. (supra), a Division Bench of this Court had settled the controversy in a judgment in M/s Jindal Poly Films Ltd. vs. U.P. Electricity Regulatory Commission, Lucknow and others6 on 15 April 2011. The learned Single Judge accordingly while disposing the writ petition overruled the objection of the appellant and set aside the order dated 18 May 2012 passed by the Ombudsman. While restoring the proceedings before the Ombudsman, a direction was issued to the effect that the Ombudsman shall consider and decide the representation submitted by the respondent while at the same time deciding the preliminary objections of the appellant including that to the locus of the respondent or an Executive Engineer to file the appeal or representation.
The learned Single Judge was evidently bound by the judgment of the Division Bench in M/s Jindal Poly Films Ltd. (supra) which was delivered on 15 April 2011. The subsequent decision of the learned Single Judge dated 6 January 2012 in Dakschinanchal Vidut Vitran Nigam Ltd. (supra) did not notice the earlier decision of the Division Bench. The issue before this Court is whether the judgment of the Division Bench does in fact lay down the correct principle of law. We are inclined to refer the matter to a Full Bench having reservations about the principle which has been laid down in the judgment of the Division Bench. We now indicate our reasons for doing so.
Sub-sections (5), (6) and (7) of Section 42 of the Act provide as follows:
"(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."
These provisions indicate that sub-section (5) of Section 42 of the Act casts an obligation on the Distribution Licensee to establish a forum for the redressal of the grievances of consumers in accordance with the guidelines of the State Commission. Under sub-section (6), a right of recourse is made available to the consumer who is aggrieved by the non-redressal of his grievance under sub-section (5) in the form of a remedy before the Ombudsman to be appointed or designated by the State Commission. Under sub-section (7), the Ombudsman is required to settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission. By section 181, the State Commission is empowered to frame Regulations for the purpose of carrying out the provisions of the Act. This power extends to the matters inter alia specified in sub-section (2) which include in clause (r), the framing of guidelines under sub-section (5) of Section 42 and, in clause (s) the time and manner for settlement of grievances under sub-section 7 of Section 42 of the Act. The Regulations which have been framed by the State Commission provide as follows:
"8.1 (i) Any person aggrieved by the order made by the Forum or where the Forum has failed to redress the grievance within the specified period or Distribution Licensee is aggrieved by the order of the Forum, may prefer representation to the 'Electricity Ombudsman'."
Regulation 8.1 confers a remedy both to the Distribution Licensee as well as to a person aggrieved by the order of the forum before the Electricity Ombudsman.
Before the Division Bench in Dakschinanchal Vidut Vitran Nigam Ltd. (supra), it was specifically submitted that since sub-sections (5), (6) and (7) of Section 42 have conferred a right only on the consumer to move the forum in the first instance and thereafter the Ombudsman, Regulation 8.1 is ultra vires the provisions of the parent statute inasmuch as it authorizes the Distribution Licensee also to move the Ombudsman. On this ground, the provisions of Section 8.1 were sought to be impugned before the Division Bench. The Division Bench repelled the contention with the following observations:
"Now, it is settled proposition of law that the statutory provisions should read as a whole and it should be read section by section or word by word. The aim and object of the Electricity Act should not be inferred only by reading sub-section (5) & sub-section (6) of Section 42 of the Act, but, the other provisions of the Act should also be read alongwith the provisions of section 42 of the Act which reveals that ample power has been given to the Regulatory Commission for the purpose provided under Clause 8.1 of the Regulations framed under the Act. Accordingly, we are of the view that Clause 8.1 of the U.P.E.R.C. of the Regulations, does not violate the statutory provisions. It is intra-virus to the Act and does not suffer from any substantial illegality which may call for interference by this court under Article 226 of the Constitution of India.
It is settled law that there shall always be presumption with regard to constitutional validity of the Act, Rules or Regulations. The burden shall always be on the part of the petitioner who assail validity of the statutory provisions. In the present case, learned counsel for the petitioner has referred only sub-section( 5) & sub-section (6) of Section 42 of the Act without giving meaning to other related provisions of the Act. Accordingly, there appears no illegality in the impugned regulations framed under the Act and calls for no interference by this court under Article 226 of the Constitution of India."
We are of the view that the judgment of the Division Bench requires reconsideration particularly having due regard to the fact that the Parliament while enacting the provisions of the Act has specifically conferred a remedy only on the consumer under sub-sections (5), (6) and (7) of Section 42. As sub-section (5) indicates, the Distribution Licensee is obligated to constitute a forum for redressing the grievances of the consumers in accordance with the guidelines of the State Commission. These guidelines are formulated by the State Commission under clause (r) of sub-section (2) of Section 181 of the Act. Under sub-section (6) of Section 42 of the Act, a consumer who is aggrieved by the non-redressal of his grievances has the right to make a representation for the redressal of his grievance to the Ombudsman. Sub-section (7) similarly makes it clear that the Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission. The Regulations have sought to create a remedy for the Distribution Licensee under Regulation 8.1(i). The first part of Regulation 8.1(i) stipulates that any person aggrieved by the order of the forum or where the forum has failed to redress the grievance may prefer a representation to the Ombudsman. The latter part of the Regulation 8.1 (i) however also states that if a Distribution Licensee is aggrieved by the order of the forum it may move the Ombudsman. This was not within the contemplation of Parliament when sub-sections (5), (6) and (7) of Section 42 of the Act were enacted and hence there is a substantial ground to doubt the validity of Regulation 8.1(i). The judgment of the Division Bench in M/s Jindal Poly Films Ltd. (supra) with respect proceeds on a general assertion that statutory provisions should be read as a whole and not "section by section or word by word". While there is no doubt about the general principle of law that a statute shall be read as a whole, the judgment of the Division Bench does not trace a specific source of statutory power for the framing of a Regulation which enlarges the ambit of the jurisdiction which is conferred upon the Electricity Ombudsman by a provision contained in the parent statute which has been enacted by the Parliament. Hence, it is questionable as to whether such an enlargement of jurisdiction could have been effected by the subordinate legislative power of framing Regulations in a manner inconsistent with the provisions of sub-sections (5), (6) and (7) of Section 42 of the Act.
In a recent judgment, the Supreme Court in Petroleum and Natural Gas Regulatory Board vs. Indraprastha Gas Ltd.7 held that it was not open to the Petroleum and Natural Gas Regulatory Board, constituted under a Parliamentary Act of 2006 in the exercise of a designated authority, to frame a Regulation which would not be in accordance with the statutory provisions. The Supreme Court held that the Board cannot frame a Regulation to cover the determination of network tariff for city or local natural gas distribution networks and compression charge for CNG. In that context, it was held as follows:
"53. In the case at hand, the Board has not been conferred such a power as per Section 11 of the Act. That is the legislative intent. Section 61 enables the Board to frame Regulations to carry out the purposes of the Act and certain specific aspects have been mentioned therein. Section 61 has to be read in the context of the statutory scheme. The regulatory provisions, needless to say, are to be read and applied keeping in view the nature and textual context of the enactment as that is the source of power. On a scanning of the entire Act and applying various principles, we find that the Act does not confer any such power on the Board and the expression "subject to" used in Section 22 makes it a conditional one. It has to yield to other provisions of the Act. The power to fix the tariff has not been given to the Board. In view of that the Board cannot frame a Regulation which will cover the area pertaining to determination of network tariff for city or local gas distribution network and compression charge for CNG. As the entire Regulation centres around the said subject, the said Regulation deserves to be declared ultra vires, and we do so."
For the above reasons, we refer the following questions of law for determination by a larger Bench of this Court:
(I) In view of the provisions of sub-sections (5), (6) and (7) of Section 42 of the Electricity Act, 2003, under which a consumer who is aggrieved by non-redressal of his grievance is permitted to make a representation before the Ombudsman and the Ombudsman is required to settle the grievance of the consumer, whether Regulation 8.1(i) of the Uttar Pradesh Electricity Regulatory Commission (Consumer Grievance Redressal Forum & Electricity Ombudsman) Regulations, 2007 is ultra vires the provisions of the Act;
(II) Whether the judgment of the Division Bench in M/s Jindal Poly Films Ltd. vs. U.P. Electricity Regulatory Commission, Lucknow decided on 15 April 2011 can be regarded as laying down the correct principle of law.
The Joint Registrar (Listing) is directed to take necessary administrative directions for constitution of a Full Bench. Pending the disposal of the reference to the Full Bench and since proceedings are now listed before the Ombudsman in pursuance of the directions of the learned Single Judge, we direct that the proceedings shall remain stayed pending further orders of this Court.
Order Date :- 20.1.2016 VMA (Dr. D.Y. Chandrachud, C.J.) (Rajan Roy, J.)