1. Since the date on which the petition came to be filed, learned advocate for the petitioner has not attended the hearing either on leave not or sick note.
2. It appears that the petitioner is not interested in prosecuting the petition.
3. On 10.5.2012, learned advocate was not present and had filed sick note. Then on 18.6.2012 also, learned advocate for the petitioner was not present and had filed sick note. Again on 2.7.2012 at the request of learned advocate, hearing was adjourned. On 30.7.2012 also, learned advocate for the petitioner had filed leave note.
4. Today also learned advocate is not present and it is informed that he has filed leave note.
5. Since the hearing of the petition is being ignored and neglected, the Court is inclined to consider the matter on merits.
6. It is informed that the petitioner has brought under challenge order dated 21.2.2012 passed by the Electricity Ombudsman. So far as the factual backdrop is concerned, the petitioner has stated that the petitioner had asked for permission to operate diesel generator (for electricity generation). The request prayed for was granted. However, the petitioner exceeded the contracted demand and therefore, the electricity company levied penalty. The petitioner has claimed that subsequently, the petitioner discontinued the use of generator sets. It is alleged by the petitioner that even though the petitioner had discontinued using generation sets, the respondent company continued to levy electricity duty. Against the order imposing penalty, the petitioner approached the Consumer forum. The Forum rejected the petitioner's application. Thereafter, the petitioner approached the Electricity Ombudsman. The Electricity Ombudsman has also confirmed the action of respondent company and rejected the application preferred by present petitioner.
7. The Electricity Ombudsman has considered the factual aspects which are narrated in paragraphs 2.1 to 2.10 of the order, which read thus:
"2.1 The Appellant is HT consumer of DGVCL, having consumer No. 37392 with the contract demand of 900 KVA. The Appellant is governed by HTP-I tariff.
2.2 The Appellant had installed (2x950 + 1x630) 2530 KVA generator sets. Consent required under Section 44 of the Electricity Act, 1948 was obtained from erstwhile GEB letter dated 17.08.2002. The said letter imposed a condition at Sr.No.2 "In case the generating sets are required to be shifted or diposed, prior approval of GEB shall be obtained."
2.3 The operation of generating sets were started after obtaining approval of the Collector of Electricity Duty under the Bombay Electricity Duty Act, 1958. The Electricity Duty on self generation and on the electricity purchased from Licensee were paid up regularly. There is no dispute about levy and payment of the Electricity Duty.
2.4 On account of the exigency, the Appellant drew more load than contracted demand and accordingly the penalty was being charged at the rate of three times of demand charge applicable to HT tariff per KVA as provided in the Condition No.15 of GEB Circular No.687 dated 21.12.1998.
2.5 The Appellant dismentalled the sets with effect from 19.01.2008 and the Appellant had written a letter to the Collector of Electricity Duty on 16.06.2008 about the dismentalling of the set and a copy of this letter was received by the Executive Engineer (O&M), DGVCL, Vapi, inward No.1227, on 17.06.2008, there was no question of not having been intimated to the Licensee about the dismentalling of sets. The Collector of Electricity Duty has also noted and confirmed it vide his letter dated 27.01.2009. In spite of this, three times penalty was recovered from the Appellant for the period 19.01.2008 to 31.05.2011.
2.6 Being aggrieved by the aforesaid action of the Licensee regarding the illegal levy of three times penalty, the Appellant approached the Consumer Grievances Redressal Committee of Vapi and thereafter at Valsad but both said Committees have dismissed the complaint. The Appellant approached the Consumer Grievances Redressal Forum, DGVCL, Surat but Forum has also dismissed the complaint and upheld the lavy of three times penalty.
2.7 The Electricity Act, 1948 has already been repealed with effect from 10.12.2003 in the State of Gujarat and therefore the penalty imposed upon the Appellant under the repealed Act is bad in law and Condition No.2 (para 2.2) also can not have any legal force thereafter.
2.8 As per Section 7 to 11 of the Electricity Act, 2003, the consent of Licensee is not required to be obtained by the Appellant before the installation of sets and after dismentalling of sets. As per Act, the permission only from the Electrical Inspector is required for installation of sets.
2.9 The tariff order prescribed by the Gujarat Electricity Regulatory Commission also does not provide for the levy of three times penalty.
2.10 In reference to the Collector of Electricity Duty letter No. ELD/ Gen.set/Valsad/29018 dated 10.11.2005, the Appellant replied vide letter dated 22.11.2005 about DG set 63 KVA and 630 KVA (Registration 475 and 475A) which were old purchased from Alang Ship breaking yard. Both sets were totally unserviceable after some time hence both sets were sold out as scrap. The copy of this letter was given to Executive Engineer and Deputy Engineer (GEB), Vapi. The Appellant letter dated 22.11.2005 was confirmed by the Collector of Electricity Duty office vide letter No. ELD/Gen.Set/ Valsad/3673 dated 18.02.2006.
The action of Licensee for leving the penalty is improper, unjust, arbitrary and illeagl.
The Appellant humbly prayed to quash and set aside the order of Forum and quash the lavy of three times penalty for period from 19.01.2008 to 31.05.2011. Appellant requested to direct Licensee to refund amount along with interest and adjust it in the future energy bills."
8. The Electricity Ombudsman has also considered the justification given by the respondent company in support of its action.
9. The respondent company, inter-alia, claimed that the petitioner had not obtained prior approval of the electricity company for dismentalling generation sets and thereby it had committed breach of the consent letter dated 17.8.2012 required under Section 44 of the Electricity Act, 1948. The electricity company also submitted that the petitioner had installed and used diesel 2 generation sets with capacity of 950 KVA and one set with capacity of 630 KVA and 1 set of 950 KVA capacity. However, any approval was not obtained from the concerned authority. The electricity company also claimed before the Electricity Ombudsman that the petitioner had not observed the restriction imposed for power drawal and the petitioner had not taken any action for increasing the contract demand in accordance with the supply code and conditions. Therefore, the actions and conduct of the respondent company in breach of condition No.15 of Circular No.687 dated 21.12.1998.
10. After having taken into account the factual aspects and the explanation and justification by the respondent company, the Electricity Ombudsman rejected the application after recording findings of fact. The findings recorded by the Electricity Ombudsman are thus:
"4.2 The Respondent had issued following warning letters to Appellant to disconnect the power supply if excess power drawn beyond contract demand.
(i) VPID/Tech/Ind/2402 dated 24.04.2008.
(ii) VPID/Tech/Ind/3806 dated 18.06.2010.
The Appellant was also advised to increase contract demand vide letter No. VPID/Tech/EE/2634 dated 12.05.2011. As per Para 3.5, estimate for extension of load from 900 KVA to 1300 KVA was not paid by the Appellant. Appellant's intension is to pay panel rate charges instead of regularising extended load.
The Appellant had drawn excess power beyond contract demand for 37 months out of 41 months for the period January 2008 to May, 2011 and thereby the Appellant had not maintained the grid discipline.
4.3. As per Para 3.4, the prior approval for change of DG sets was not obtained from GEB as provided in Condition No.2 of General Manager (Comm) letter No. 170 dated 17.08.2002.
4.4 Though generator sets were dismentalled on 19.01.2008 and Appellant was paying panel rate for excess drawl but appellant remained silent and after lapse of almost three years the matter for refund of panel rate amount paid is raised by the appellant. As such the Appellant is not entitled to approach the Forum as per Regulation No.2.30 (iii) of GERC Notification No.02 of 2011.
4.5 Neither Appellant nor Respondent observed the Condition No.12 of concern letter No. 170 dated 17.08.2002 about submission of monthly and annual power generation data. The generator sets were dismentalled on 19.01.2008 but the Respondent did not ask power generation data from the Appellant.
4.6 Para 2.8 has no relevance to present case.
4.7 As per Para No. 2.5, letter of dismentalling of sets was acknowledged by EE (O&M), DGVCL, Vapi vide inward No. 1227 dated 17.06.2008. Even the copy of same letter was directly given to various authorities of DGVCL i.e. CE (Surat), SE (Valsad), EE (Vapi), DE (Vapi). But the Respondent did not took notice at relevant time for de-commissioning of generator sets.
4.8 Even after receiving the intimation for removal of generator sets, the Respondent had issued the energy bills as per CPP Policy and as per condition No. 15 of Circular No. 682 for excess drawl of demand for the period 19.01.2008 to 31.05.2011.
4.9 Charing of penalty for excess demand is in accordance with law. In absence of contract also, the Licensee is empowered to collect such charges as per the prevailing condition of specific case.
4.10 There is a clear negligency on part of Appellant as per Para 4.2, 4.3, 4.4 and 4.5 at the same time respondent is also at fault as per Para 4.5, 4.7 and 4.8.
4.11 The Penalty rate recovered from the Appellant for excess drawl for the period 19.01.2008 to May, 2011 is totally justifiable in this particular case and it is recoverable."
11. On perusal of the findings recorded by the Electricity Ombudsman, it cannot be said that findings are arbitrary or contrary to evidence on record. The Electricity Ombudsman has also recorded reasons in support of the conclusion and therefore, it also cannot be said that the impugned order is not speaking and reasoned order. On consideration of the order, it does not appear that the order suffers from any infirmity.
12. In view of the foregoing discussion, as such, the petition does not deserve to be entertained on merits.
13. However, only with a view to ensuring that the petitioner does not suffer difficulties and hardships because of the actions of the advocate, instead of dismissing the petition on merits, the petition is dismissed for non-prosecution on account of absence of petitioner's advocate.
(K.M.
Thaker, J.) Bharat*