Supplementary affidavit by the petitioners bringing on record the authorization, is taken on record.
Heard learned counsel for the petitioners. Notice on behalf of opposite party no.1 has been accepted by Sri Sanjay Singh. Sri Devak Vardhan holding brief of Sri Shreeprakash Singh for opposite party nos.3 & 4 and the learned standing counsel for opposite party nos.5 & 6.
The petitioner has preferred the instant petition assailing the order dated 04.12.2020 passed in Reference Petition No.122 of 2020 passed by the Electricity Ombudsman, U.P.
In order to put the controversy in a perspective, certain brief facts are being noticed first.
That the petitioner had preferred a Reference before the Electricity Ombudsman which came to be decided by means of order dated 06.04.2018. In pursuance of the order dated 06.04.2018 another order dated 28.07.2020 was passed in terms thereof the outstanding of the petitioner recomputed and a revised bill of Rs.62,45,623/- was raised against the petitioner.
The petitioner being aggrieved had preferred a W.P. No.15343 (MS) of 2020 wherein this Court after considering the submissions of the learned counsel for the respective parties by means of the order dated 24.09.2020 had passed certain directions, a relevant portion thereof is being reproduced hereinunder for relevance :-
"6. In view of above and with the consent of learned counsel for the parties, following order is being passed :
(i) The petitioner shall deposit a sum of Rs.30,00,000/- (Rs. Thirty Lacs) within 30 days from today and Rs.16,00,000/- (Rs. Sixteen Lacs) on the 45th day from today.
(ii) Within two weeks, the petitioner shall move appropriate application under Section 42 Sub Clause 6 of the Electricity Act, 2003 before the Ombudsman raising all his grievance regarding the amount of sur-charge imposed upon him by the respondent-Corporation.
(iii) On receipt of such application, the Electricity Ombudsman is directed to decide the dispute expeditiously, say within a period of two month's from the date of receipt of application made by the petitioner.
(iv) In case petitioner deposits the amount of Rs.46,00,000/- with the respondent Corporation within the period of 45 days as stipulated above from today, no coercive action shall be taken against the petitioner till the matter is decided by the Electricity Ombudsman within the period prescribed herein above.
(v) It is also provided that in case of breach of any of the aforesaid conditions, benefit of this order shall not be available to the petitioner, and respondents will be at liberty to recover the outstanding amount in accordance with law."
In furtherance of the aforesaid directions, the petitioner preferred a Reference before the Electricity Ombudsman which was registered as Reference No.122 of 2020. It is also the case of the petitioner that in compliance of the order dated 24.09.2020, the petitioner deposited a sum of Rs.30 lakhs, however, in so far as remaining Rs.16 lakhs was concerned since the Director of the petitioner company suffered and was infected with Covid-19, hence he remained in quarantine and for the said reasons could not deposit the sum of Rs.16 lakhs within the time provided by the Court. However, subsequently the petitioner deposited the sum of Rs.16 lakhs on 18.12.2020 and it is the case of the petitioner that the entire condition regarding deposit of the sum of Rs.46 lakhs has been complied with.
It is in the aforesaid background it is submitted by the learned counsel for the petitioner that though the condition imposed by this Court was two-fold (I) was regarding the deposit of sum of Rs.46 lakhs within time frame as provided by the Court (II) the other related to the liberty granted to the petitioner for approaching the Electricity Ombudsman and the Ombudsman was directed to decide the controversy expeditiously say within a period of two months from the date of receipt of the application made by the petitioner. The submission is that both the conditions imposed by the Court were independent of each other. In case if the petitioner failed to deposit, the liberty was always available to the Power Corporation to recover the outstanding, however, in so far as the directions to Ombudsman is concerned he was required to decide the reference in accordance with law as per the directions of the High Court. It is submitted that the Ombudsman by means of the order dated 04.12.2020 instead of deciding the reference on merits has rejected the same solely on the ground that the petitioner did not deposit the amount of Rs.16 lakhs in terms of the order dated 24.09.2020. Being aggrieved against the aforesaid, the petitioner has approached this Court by means of the instant petition.
Sri Sanjay Singh, learned counsel for the Electricity Ombudsman has submitted that in terms of the order dated 24.09.2020 condition imposed by the Court at serial no. (V) of the order dated 24.09.2020 clearly stipulated that in case the petitioner breached any of the aforesaid conditions he was not entitled to the benefit of the order. Thus, the submissions of the learned counsel for the opposite party no.1 is since the petitioner did not deposit the sum of Rs.16 lakhs within time frame as fixed by the Court, apparently there was a breach of the condition and thus the Ombudsman was not obliged to consider and the order rejecting the reference solely on the ground of non-compliance was well within the domain and requires no interference.
The Court has considered the rival submissions and also perused the material brought on record. From the perusal of the conditions imposed by Court as already reproduced hereinabove, it indicates that the right of petitioner to approach the Ombudsman was not made independent on the deposit of the aforesaid sum. From the perusal of the condition imposed at serial no. (V) would indicate that in case if the petitioner did not deposit the sum within time frame it was open for the Power Corporation to recover the same, however, the Ombudsman was not right in rejecting the reference merely on the ground that the amount was not deposited specially when it had been informed that the sum of Rs.30 lakhs stood deposited within the requisite period and amount of Rs.16 lakhs could not be deposited on the ground that the Director of the petitioner company had suffered from Covid-19 virus and as such was in quarantine.
This Court has considered the material brought on record and taking a holistic view, is of the opinion that ends of justice can be served by directing the Ombudsman to consider and decide the reference afresh since the amount as provided by this Court in its order dated 24.09.2020 is admittedly deposited hence there does not appear to be any legal impediment before the Ombudsman to decide the reference on merits.
In light of what has been stated above, the reference order dated 04.12.2020 is set aside and the Electricity Ombudsman is directed to consider and decide the Reference No.122 of 2020 afresh on merits by means of a speaking order after providing an opportunity of hearing to the parties concerned most expeditiously preferably within a period of two months from the date a copy of this order is placed before the Ombudsman.
With the aforesaid, the petition stands allowed.
Order Date :- 19.1.2021 Ashok Gupta