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Judgments of Supreme Court of India and High Courts

Limted vs Sudarshan Pahari & Another on 21 August, 2019

IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE

BEFORE:-

THE HON’BLE JUSTICE RAJASEKHAR MANTHA

W.P. No.15755 (W) of 2016

WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY
LIMTED
VERSUS
SUDARSHAN PAHARI ANOTHER

WITH

W.P. No. 18826 (W) OF 2017

WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY
LIMTED
VERSUS
AMIT BATABAYAL OTHERS.

WITH
W.P. No. 28232 (W) of 2014, W.P. No. 8208 (W) of 2013, W.P.No.12093 (W) of 2015,
W.P.No.12090 (W) of 2015. W.P. No. 12091 (W) of 2015, W.P. No. 4315 (W) of 2013
W.P. No. 2685 (W) of 2013, W.P. No. 2689 (W) of 2013, W.P. No. 2691 (W) of 2013
W.P. No. 26139 (W) of 2013, W.P. No. 17816 (W) of 2015, W.P. No.4628 (W) of 2013
W.P. No. 5903 (W) of 2013, W.P. No. 19066 (W) of 2013, W.P. No. 22142 (W) of 2015
W.P. No.22146 (W) of 2015, W.P. No. 22032 (W) of 2013, W.P. No. 21957 (W) of 2013
W.P. No. 22109 (W) of 2015, W.P. No. 21902 (W) of 2015, W.P. No. 22091 (W) of 2015
W.P. No. 22094 (W) of 2015, W.P. No. 22099 (W) of 2015, W.P. No. 22097 (W) of 2015
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W.P. No. 20648 (W) of 2015, W.P. No. 20665 (W) of 2015, W.P. No. 20664 (W) of 2015
W.P. No. 22119 (W) of 2015, W.P. No. 21469 (W) of 2015, W.P. No. 20651 (W) of 2015
W.P. No. 22087 (W) of 2015, W.P. No. 21473 (W) of 2015, W.P. No. 22157 (W) of 2015
W.P. No. 22151 (W) of 2015, W.P. No. 20659 (W) of 2015, W.P. No.20660 (W) of 2015
W.P. No. 20661 (W) of 2015, W.P. No. 20662 (W) of 2015, W.P. No. 20663 (W) of 2015
W.P. No. 20652 (W) of 2015, W.P. No. 8072 (W) of 2015, W.P. No. 8075 (W) of 2015
W.P. No. 22081 (W) of 2015, W.P. No. 22107 (W) of 2015, W.P. No. 22089 (W) of 2015
W.P. No. 8073 (W) of 2015, W.P. No. 8074 (W) of 2015, W.P. No. 8994 (W) of 2015
W.P. No. 17478 (W) of 2015, W.P. No. 17481 (W) of 2015, W.P. No. 17474 (W) of 2015
W.P. No. 17476 (W) of 2015, W.P. No. 16821 (W) of 2015, W.P. No. 16954 (W) of 2015
W.P. No. 17472 (W) of 2015, W.P. No. 8993 (W) of 2015, W.P. No. 22115 (W) of 2015
W.P. No. 24988 (W) of 2015, W.P. No. 23019 (W) of 2015, W.P. No. 26272 (W) of 2015
W.P. No. 24991 (W) of 2015, W.P. No. 30170 (W) of 2015, W.P. No. 23053 (W) of 2015
W.P. No. 23056 (W) of 2015, W.P. No. 23232 (W) of 2015, W.P. No. 24985 (W) of 2015
W.P. No. 28377 (W) of 2015, W.P. No. 29546 (W) of 2015, W.P. No. 25000 (W) of 2015
W.P. No. 28698 (W) of 2015, W.P. No. 29545 (W) of 2015, W.P. No. 26593 (W) of 2015,
W.P. No. 28382 (W) of 2015, W.P. No. 28390 (W) of 2015, W.P. No. 28380 (W) of 2015
W.P. No. 24998 (W) of 2015, W.P. No. 26583 (W) of 2015, W.P. No. 28368 (W) of 2015
W.P. No. 28373 (W) of 2015, W.P. No. 28375 (W) of 2015, W.P. No. 25578 (W) of 2015
W.P. No. 25568 (W) of 2015, W.P. No. 23051 (W) of 2015, W.P. No. 23490 (W) of 2015
W.P. No. 24986 (W) of 2015, W.P. No. 24987 (W) of 2015, W.P. No. 24997 (W) of 2015
W.P. No. 25566 (W) of 2015, W.P. No. 28397 (W) of 2015, W.P. No. 28388 (W) of 2015
W.P. No. 28379 (W) of 2015, W.P. No. 23022 (W) of 2015, W.P. No. 23038 (W) of 2015
W.P. No. 28700 (W) of 2015, W.P. No. 23010 (W) of 2015, W.P. No. 22990 (W) of 2015
W.P. No. 24996 (W) of 2015, W.P. No. 30176 (W) of 2015, W.P. No. 30175 (W) of 2015
W.P. No. 28560 (W) of 2015, W.P. No. 28561 (W) of 2015, W.P. No. 28383 (W) of 2015
W.P. No. 26600 (W) of 2015, W.P. No. 28696 (W) of 2015, W.P. No. 28706 (W) of 2015
W.P. No. 25564 (W) of 2015, W.P. No. 24994 (W) of 2015, W.P. No. 23033 (W) of 2015
W.P. No. 25565 (W) of 2015, W.P. No. 24993 (W) of 2015, W.P. No. 29549 (W) of 2015
W.P. No. 26599 (W) of 2015, W.P. No. 28387 (W) of 2015, W.P. No. 24984 (W) of 2015
W.P. No. 23029 (W) of 2015, W.P. No. 23027 (W) of 2015, W.P. No. 23026 (W) of 2015
W.P. No. 29775 (W) of 2015, W.P. No. 24990 (W) of 2015, W.P. No. 24992 (W) of 2015
W.P. No. 26596 (W) of 2015, W.P. No. 28366 (W) of 2015, W.P. No. 22987 (W) of 2015
W.P. No. 22986 (W) of 2015, W.P. No. 28555 (W) of 2015, W.P. No. 26588 (W) of 2015
W.P. No. 23039 (W) of 2015, W.P. No. 22993 (W) of 2015, W.P. No. 22991 (W) of 2015
W.P. No. 29551 (W) of 2015, W.P. No. 24007 (W) of 2015, W.P. No. 24989 (W) of 2015
W.P. No. 29780 (W) of 2015, W.P. No. 29779 (W) of 2015, W.P. No. 28701 (W) of 2015
W.P. No. 30653 (W) of 2015, W.P. No. 29542 (W) of 2015, W.P. No. 30174 (W) of 2015
W.P. No. 30173 (W) of 2015, W.P. No. 30172 (W) of 2015, W.P. No. 26591 (W) of 2015
W.P. No. 28704 (W) of 2015, W.P. No. 28370 (W) of 2015, W.P. No. 28385 (W) of 2015
W.P. No. 28384 (W) of 2015, W.P. No. 28558 (W) of 2015, W.P. No. 26771 (W) of 2015
W.P. No. 28703 (W) of 2015, W.P. No. 30171 (W) of 2015, W.P. No. 29544 (W) of 2015
W.P. No. 29777 (W) of 2015, W.P. No. 22673 (W) of 2015, W.P. No. 22989 (W) of 2015
W.P. No. 29131 (W) of 2015, W.P. No. 30169 (W) of 2015, W.P. No. 29543 (W) of 2015
W.P. No. 28483 (W) of 2014, W.P. No. 21542 (W) of 2013, W.P. No. 8140 (W) of 2016
W.P. No. 22108 (W) of 2015, W.P. No. 9909 (W) of 2014, W.P. No. 9910 (W) of 2014
W.P. No. 28181 (W) of 2014, W.P. No. 30589 (W) of 2014, W.P. No. 31295 (W) of 2014
W.P. No. 31294 (W) of 2014, W.P. No. 31293 (W) of 2014, W.P. No. 33951 (W) of 2014
W.P. No. 33953 (W) of 2014, W.P. No. 33955 (W) of 2014, W.P. No. 33957 (W) of 2014
W.P. No. 33959 (W) of 2014, W.P. No. 33961 (W) of 2014, W.P. No. 20744 (W) of 2014.
W.P. No. 30867 (W) of 2014, W.P. No. 17592 (W) of 2015, W.P. No. 22103 (W) of 2014
W.P. No. 3465 (W) of 2012, W.P. No. 2687 (W) of 2012, W.P. No. 22129 (W) of 2011
W.P. No. 22013 (W) of 2011, W.P. No. 22014 (W) of 2011, W.P. No. 20383 (W) of 2011
W.P. No. 20385 (W) of 2011, W.P. No. 20386 (W) of 2011, W.P. No. 20384 (W) of 2011
W.P. No. 20388 (W) of 2011, W.P. No. 20387 (W) of 2011, W.P. No. 5074 (W) of 2011
W.P. No. 12928 (W) of 2013, W.P. No. 3303 (W) of 2009, W.P. No. 1591 (W) of 2011
W.P. No. 1595 (W) of 2011, W.P. No. 1598 (W) of 2011, W.P. No. 1601 (W) of 2011
W.P. No. 6954 (W) of 2011, W.P. No. 6955 (W) of 2011, W.P. No. 8071 (W) of 2011
W.P. No. 8074 (W) of 2011, W.P. No. 8077 (W) of 2011, W.P. No. 8642 (W) of 2011
W.P. No. 8643 (W) of 2011, W.P. No. 8731 (W) of 2011, W.P. No. 13519 (W) of 2011
W.P. No. 14501 (W) of 2011, W.P. No. 14506 (W) of 2011, W.P. No. 14991 (W) of 2011
W.P. No. 14992 (W) of 2011, W.P. No. 14993 (W) of 2011, W.P. No. 16677 (W) of 2011
W.P. No. 16678 (W) of 2011, W.P. No. 17925 (W) of 2011, W.P. No. 21920 (W) of 2011
W.P. No. 2686 (W) of 2012, W.P. No. 2688 (W) of 2012, W.P. No. 14947 (W) of 2012
W.P. No. 24853 (W) of 2012, W.P. No. 24854 (W) of 2012, W.P. No. 24855 (W) of 2012
W.P. No. 24856 (W) of 2012, W.P. No. 27477 (W) of 2012, W.P. No. 27657 (W) of 2012
W.P. No. 1057 (W) of 2014, W.P. No. 23161 (W) of 2013. W.P. No. 19412 (W) of 2014,
For the Petitioners/ : Mr. Srijan Nayak, Advocate
WBSEDCL Mrs. Rituparna Maitra, Advocate
Mr. Sujit Sankar Koley, Advocate
Mr. Raj Kumar Basu, Advocate
Mr. Kanak Kiran Badopadhyay, Advocate
Mr. Arindam Mitra, Advocate

For the Respondents : Mr. Pratik Dhar, Ld. Sr. Adv.
(WBERC/OMBUDSMAN) Mr. Rittwik Pattanayak, Adv.
Mr. Samir Haldar, Adv.
Mr. Pappu Adhikary, Adv.
Ms. Cardina Roy, Adv.

For the Consumers/ : Mr. Subhas Chandra Bandopadhyay,
Respondent No. 1 Adv.
Mr. Kartik Kumar Ray, Adv.

Hearing Concluded On : 07.08.2019

Judgment On : 21.08.2019

Rajasekhar Mantha, J.

1. A Common question is raised by the West Bengal Electricity Distribution

Company Limited (WBSEDCL) in these batch of writ petitions challenging

the Constitutional vires of the West Bengal Electricity Regulatory

Commission (Standard of Performance of Licensees Relating to

Consumer Services) Regulation, 2010 (2010 Regulation) introduced by

Notification 46 dated 31st May 2010.

2. The WBSEDCL, a distribution Company under the Electricity Act 2003,

(2003 Act) challenges the legality of Regulation 14(1), 14(2), 14(3), 14(4)

and 14(5) in the aforesaid 2010 Regulations. The said regulations have

been framed by the West Bengal Electricity Regulation Commission
(Commission) in exercise of powers conferred under Section 181 Sub-

Section 2 Clause (za) and (zb) read with Section 57(1) and 59(1) of the

Electricity Act, 2003. The said regulations were published in the Kolkata

Gazette on the 31st May, 2010 vide Notification No. 46. The said

Regulations are set out herein below.

“14.0 Enforcement Mechanism:

14.1 Every licensee shall register every complaint regarding
failure to maintain the standards of performance specified in
these regulations and preferred by the consumers / intending
consumers affected for the said failure. The licensee shall also
communicate a complaint number with date to the consumer/
intending consumer who prefers such complaint as soon as
possible, but not later than 7 working days from the date of
receipt of the complaint. Moreover, the licensee shall inform the
consumers/ intending consumer immediately regarding the
action taken by the licensee to mitigate the problem/ grievance
of the consumers/ intending consumer. For this purpose the
licensees shall maintain all necessary records consisting of all
essential information regarding the consumer/ intending
consumer concerned, the nature of his complaint and the
necessary details of the latter.

14.2 Any consumer/ intending consumer who is affected by any
failure of a licensee to meet the standards of performance,
specified in these regulations, may submit a complaint to the
Grievance Redressal Officer concerned of the licensee in the
matter of the said failure of performance excluding the cases
under sections 126, 127, 135, 136, 137, 138 and 139 of the Act.

A consumer / an intending consumer may also submit an
application to the Grievance Redressal Officer concerned of the
licensee claiming compensation for such failure to perform and
also for delay in reconnection with reference to the time limits
specified in the Supply Code or order of any competent court of
law or competent authority or for wrongful disconnection
including disconnection under section 135 of the Act if it was
wrongful. The Grievance Redressal Officer after receiving such
complaint shall dispose of the same as per Regulations made
under sub-sections (5) and (7) of section 42 of the Act.

14.3 If the affected consumer/ intending consumer is not
satisfied with the order of the Grievance Redressal Officer or
does not receive any order from that Grievance Redressal Officer
whom he has approached within the time specified in
Regulations made under sub-sections (5) and (7) of section 42 of
the Act, he may submit a written representation to the
Ombudsman for settlement / redressal of his grievance and / or
payment of compensation which the licensee is liable to pay to
the affected consumer/ intending consumer for failure to meet
the standards of performance in terms of these regulations. The
working procedure for submitting such representation will be as
per the regulations made under subsections (5) and (7) of
section 42 of the Act.

14.4 The Ombudsman shall accept such representation and
after giving reasonable opportunity to both parties of being
heard pass reasoned and speaking settlement order in the
matter of the grievance of consumer or affected consumer/
intending consumer and / or payment of compensation which
the licensee is to pay to the affected consumer/ intending
consumer in terms of these regulations. The working procedure
for disposal of such representation will be as per Regulations
made under sub-sections (5) and (7) of section 42 of the Act.

14.5 The licensee shall pay the compensation in cash / cheque
/ demand draft in favour of the affected consumer/ intending
consumer as per order of the Grievance Redressal Officer or the
order of the Ombudsman, as the case may be, within a period of
thirty days from the date of such order. When such payment is
made as per order of the Ombudsman the licensee shall send a
report of compliance to the Ombudsman within 15 days from
the date of compliance. In case of possible delay in complying
with the order of Ombudsman, the licensee shall seek
permission of the Ombudsman before expiry of thirty days.”

3. By a Notification No. 56, dated 26th August, 2013, in purported

exercise of powers under Section 181(1) and Section 181(2) Clause (za)

and (zb) read with Section 57 Sub-Section 1 and 2 and Section 59 Sub-

Section 1 and Section 97 of the Electricity Act, 2003, the WBERC framed

and introduced the West Bengal Electricity Regulation Commission

(Guidelines for Establishment of Forum for Redressal of Grievances

of Consumers and Time and manner of Dealing with such Grievances

by the Ombudsman) Regulations 2013. The relevant portions of the

said Regulations are set out herein below :-

“3.5 The grievance redressal offices should be headed by
appropriately high-ranking officers of the distribution licensee
not below the rank of an Executive Engineer, having suitable
supervisory roles in running of the organisation. If in the
organisation of any distribution licensee, there is no equivalence
between the officers it decides to deploy as GRO and the
foregoing general description of such officers as Executive
Engineers, the said distribution licensee may, with the prior
approval of the Commission deploy officers of its choice as GRO
at different levels in its organisation.

4. Functions of the Grievance Redressal Officers:

4.1 The functions of the GRO at the level of sub-

districts/districts/regions/zones consist of receiving petitions
from consumers stating their respective grievances;
acknowledging them in writing; consulting superior technical
experts, if called for, holding spot inspections, if considered
necessary; and hearing the complainants; redressal of such
grievances within specific time limits as laid down in this set of
Regulations, within the framework of the Electricity Act, 2003,
and the Rules of Regulations made thereunder; passing
reasoned and speaking orders towards the aforesaid goal stating
clearly about redressal of the grievance and awarding of
compensation, if any, separately; communicating such orders to
the petitioner; maintaining an account of grievance petitions
received, disposed of, etc.; submission of reports, returns,
statistics as may be asked for by the corporate head quarters;
and any other duty in relation to redressal of consumers’
grievances as may be assigned to them by the higher
authorities.

4.2 The CGRO(s) at the corporate headquarters shall have all
the responsibilities of the GRO at the sub-district/ district
/region/zone levels in redressing the grievances of consumers.
In addition, any one of them specifically identified by the
management of each of the distribution licensees shall work as
the clearing house of all consumers’ grievances pertaining to
that distribution licensee as a whole. In that capacity, he shall
be responsible for maintenance and collection of all statistics,
reports, returns, etc. from all other GRO, including other CGRO,
preparation of all reports, returns, etc. in this behalf for the
distribution licensee as a whole, submission of such reports,
returns, etc. to the Commission and/or any other superior
authority, corresponding with all concerned including the
Ombudsman in the matter of consumers’ grievances, keeping
track of individual consumer’s grievances that might have been
forwarded to the GRO at the sub-

districts/districts/regions/zones etc. from the corporate
headquarters, etc.

4.3 The Ombudsman shall dispose of all the consumers’
grievances on getting representation from the aggrieved
consumers against any order of any GRO/CGRO, irrespective of
whether the latter is functioning at the corporate level or a
district, sub-district, region or zone level.

5. Dissemination of Information about the Forum for
Redressal of Greivances:

5.1 A gist of the grievance redressal procedure and the names as
also the official designations of the GRO, CGRO(s) and of the
Ombudsman, along with their full office addresses, telephone
numbers, FAX numbers, e-mail addresses, working day period,
etc. should be prominently displayed along with format at
Annexure-I:

a) near the main entrance of the office of the distribution
licensee,

b) near the main entrance of the sub-offices of the
distribution licensee,

c) at the bill Payment Halls/Centres of the distribution
licensee,

d) in the website of the distribution licensee.

5.2 In every bill, it shall be notified specifically that grievance
redressal procedure and other details as mentioned in the
regulation 5.1 above, will be available at the locations as
specified in regulation 5.1 (a) to (d) above.

5.3 Any change in the above mentioned particulars relating to
the GRO and/or CGRO(s) and/or Ombudsman should lead
immediately to the necessary corrections/updating of the notice
board/display board and website mentioned above.

5.4 The distribution licensee shall bring to the notice of its
consumers all the above mentioned particulars through an
advertisement in at least three widely circulated newspapers one
of which shall be in Bengali and another in local language, in
January of every year indicating that the information mentioned
in regulation 5.1 are available at the locations as specified in
regulation 5.1.

7.3 If a grievance, in the considered opinion of the GRO needs
either a consultation with a technical expert belonging to the
organisation of the licensee, or a spot inspection, or both, the
GRO, shall after holding the said consultation and/or the spot
inspection and after giving a reasonable opportunity of hearing
to both parties, prepare a draft settlement order with analysis of
the grievance redressed and details of the compensation, if any,
awarded, in writing within a reasonable time, with direction to
submit the view of both the parties on the draft order within a
period of time to be fixed by the GRO. In this context, the views
shall be provided by the licensee through any concerned officer
in relation to the grievance other than GRO or CGRO.

7.3.1 On receiving the views on the draft order as referred to in
regulation 7.3, if submitted within the limit time by the parties
or any of the parties within the time limit, the GRO shall fix up a
date giving opportunity of further hearing to both the parties
following which he shall pass a reasoned and speaking final
order analysing the grievance that has been redressed and
compensation, if any, awarded in details in writing disposing of
the grievance petition within 60 (sixty) working days from the
date of sending the acknowledgement to the petitioner. In case
of receiving no view of the draft order as referred to in the
regulation 7.3, the GRO based on the draft order and without
any further hearing shall pass the reasoned and speaking final
order analyzing the grievance that has been redressed and
compensation, if any, awarded in details in writing disposing of
the grievance petition within 60 (sixty) working days from the
date of sending the acknowledgement to the petitioner.

10.3 The Ombudsman shall call for a report with all the relevant
details from the concerned distribution licensee on sending to
the latter, a copy of the grievance representation/complaint,
under intimation to the aggrieved consumer. The Ombudsman
shall fix a time limit, to be decided upon by the Ombudsman, by
which time, the distribution licensee shall submit the report.
The distribution licensee shall be asked to send a copy of the
report to the aggrieved consumer/complaint.

10.4 After perusal of the available records in the form of the
grievance petition along with its enclosures, if any, and the
report of the distribution licensee with its enclosures, if any, the
Ombudsman shall after giving a reasonable opportunity of
hearing to both parties, prepare a draft settlement order in
details and in writing in connection with only the disputed part
of the grievance, on which the GRO’s and CGRO’s order and/or
award of compensation and/or penalty, if any has been
challenged by the aggrieved consumer, within a reasonable time
with direction to submit the views of both the parties on the
draft order within a period of time to be fixed by the
Ombudsman.”

4. By Notification No. 57 the WBERC amended and called it the WBERC

(Standards of Performance of Licensees Relating to Consumer

Services) (First Amendment) Regulations, 2013. Regulation 13.19 was

introduced delegating the powers of the Commission to award

Compensation and Penalty under Section 57(2) to the Grievance

Redressal Officer (GRO) including Central Grievance Redressal Officer

(CGRO) and to the Ombudsman under Section 42(5) and 42(6) of the

2003 Act. Regulation 14(1) to 14(5) of the 2010 regulations also came to

be amended and substituted. The relevant regulations are set out

hereunder.

“18. After the regulation 13.18 of the principal Regulations the
following regulation shall be inserted:

“13.19 For the purpose of determination of amount to be
paid as compensation based on the regulation 15 of
these Regulations, the Commission grants the power to
the Grievance Redressal Officer(s) (in short ‘GRO’)
including Central Grievance Redressal Officer (in short
‘CGRO’) appointed by the licensee under sub-section (5)
of Section 42 of the Act and to the Ombudsman(s)
appointed under sub-section (6) of section 42 of the Act
and to compensation by the licensee and for such
purpose the Commission delegates its power under sub-
section (2) of Section 57 of the Act to GRO(s) and to the
Ombudsman(s) for determination of compensation.”

19. For the regulation 14 of the principal Regulation the
following regulation shall be substituted:

“14.0 Enforcement Mechanism:

14.1 Every licensee shall register every complaint
regarding failure to maintain the standards of
performance as provided in these Regulations and
preferred by the consumers/intending consumers
affected for the said failure. The complaint shall be made
in writing. The licensee shall also communicate a
complaint number with date to the consumer/intending
consumer who prefers such complaint as soon as
possible, but not later than 7 working days from the date
of receipt of the written complaint. Moreover, the licensee
shall inform the consumers/intending consumer
immediately regarding the action taken by the licensee to
mitigate the problem/grievance of the
consumers/intending consumer. For this purpose the
licensee shall maintain all necessary records consisting
of all essential information regarding the
consumer/intending consumer concerned, the nature of
his complaint and the necessary details of the later.

14.2 Any consumer/intending consumer who is affected
by any failure of a licensee to meet the standards of
performance, specified in these Regulations, may submit
a written complaint to the GRO concerned of the licensee
in the matter of the said failure of performance excluding
the cases under sections 126, 127, 135, 136, 137, 138
and 139 of the Act. A consumer/an intending consumer
may also submit a written application to the GRO
concerned of the licensee claiming compensation for
such failure to perform and also for delay in reconnection
with reference to the time limits specified in the Supply
Code or for wrongful disconnection excluding
disco0nnectoin under section 135 of the Act if it was
wrongful. The working procedure for disposal of such
application will be as per Grievance Redressal
Regulations.

14.3 If the affected consumer/intending consumer is not
satisfied with the order of the GRO or does not receive
any order from the GRO whom he has approached within
the time specified in Grievance Redressal Regulations, he
may submit a written application to the Ombudsman for
redressal of his grievance and/or payment of
compensation which the licensee is liable to pay to the
affected consumer/intending consumer for failure to
meet the standards of performance in terms of these
Regulations. The working procedure for disposal of such
application will be made in accordance with Grievance
Redressal Regulations.

14.4 While disposing of the written application under
regulation 14.2 and 14.3 of these Regulations, the GRO
or the CGRO or the Ombudsman, as the case may be, in
their order of disposal shall specifically deal with each
and every argument and evidence submitted during the
proceedings along with the reasons for acceptance or
rejection of such argument and evidence. During
hearing of the proceedings both the parties shall provide
written submission in support of their hearing. The
order of the GRO and ombudsman shall deal with the
proceedings only on the basis of written application
under regulation 14.2 and 14.3 of these Regulations and
written submission during hearing.

14.5 The licensee shall pay the compensation in
cash/cheque/demand draft in favour of the affected
consumer/intending consumer as per order of the GRO
or the order of the Ombudsman, as the case may be,
within a period as specified in sub-section (3) of section
57 of the Act. The compliance of order of the GRO or
CGRO or Ombudsman will be made in accordance with
Grievance Redressal Regulations.”

5. The said 2010 Regulations came to be amended for the Second time by

Notification 61, published in Kolkata Gazette on 7th of January, 2014 by

the West Bengal Electricity Regulatory Commission(Standard of

Performance of Licensees Relating to Consumer Services) (2nd

amendment) Regulations of 2013. (2nd amendment of 2013).Regulation

13(19) of the 2013 Regulations was further amended in connection with
the power of the CGRO and Ombudsman to award Compensation and

Penalty. Clause 2 of the Notification No.61 is set out hereinbelow.

“2. For the regulation 13.19 of the principal Regulations the
following regulation shall be substituted:-

“13.19 For the purpose of determination of amount to be paid as
compensation/penalty based on the regulation 15.0 of these
Regulations, the Commission grants the power to the Grievance
Redressal officer(s) (in short GRO) including Chief Grievance
Redressal Officer (in short “CGRO”) appointed by the licensee
under sub-section (5) of section 42 of the Act and to the
Ombudsman(s) appointed under sub-section (6) of section 42 of
the Act for payment of compensation /penalty by the licensee
and for such purpose the Commission delegates its own power
under sub-section (2) of section 57 and sub-section (3) of section
43 of the Act to GRO(s) including CGRO(s) and the
Ombudsman(s) for determination of compensation/penalty.”

6. The principal ground for challenge to the legality of the said Regulations

of 2010 is that the GRO, CGRO and Ombudsman who have been given

the power to settle grievances under Section 42(5) and 42(6) of the

Electricity Act of 2003, (2003 Act) have been additionally conferred with

powers to award Compensation and Penalty wholly outside the scope of

and de-hors the said provisions.

7. Section 42 is set out herein below:-

“Section 42. (Duties of distribution licensee and open access): —
(1) It shall be the duty of a distribution licensee to develop and
maintain an efficient, co-ordinated and economical distribution
system in his area of supply and to supply electricity in accordance
with the provisions contained in this Act.

(2) The State Commission shall introduce open access in such phases
and subject to such conditions, (including the cross subsidies, and
other operational constraints) as may be specified within one year of
the appointed date by it and in specifying the extent of open access in
successive phases and in determining the charges for wheeling, it
shall have due regard to all relevant factors including such cross
subsidies, and other operational constraints:

Provided that 1[such open access shall be allowed on payment
of a surcharge] in addition to the charges for wheeling as may
be determined by the State Commission:

Provided further that such surcharge shall be utilised to meet
the requirements of current level of cross subsidy within the
area of supply of the distribution licensee:

Provided also that such surcharge and cross subsidies shall
be progressively reduced 2[***] in the manner as may be
specified by the State Commission:

Provided also that such surcharge shall not be leviable in case
open access is provided to a person who has established a
captive generating plant for carrying the electricity to the
destination of his own use:

3[Provided also that the State Commission shall, not later
than five years from the date of commencement of the
Electricity (Amendment) Act, 2003, by regulations, provide
such open access to all consumers who require a supply of
electricity where the maximum power to be made available at
any time exceeds one megawatt.]
(3) Where any person, whose premises are situated within the area of
supply of a distribution licensee, (not being a local authority engaged
in the business of distribution of electricity before the appointed date)
requires a supply of electricity from a generating company or any
licensee other than such distribution licensee, such person may, by
notice, require the distribution licensee for wheeling such electricity in
accordance with regulations made by the State Commission and the
duties of the distribution licensee with respect to such supply shall be
of a common carrier providing non-discriminatory open access .

(4) Where the State Commission permits a consumer or class of
consumers to receive supply of electricity from a person other than the
distribution licensee of his area of supply, such consumer shall be
liable to pay an additional surcharge on the charges of wheeling, as
may be specified by the State Commission, to meet the fixed cost of
such distribution licensee arising out of his obligation to supply.

(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.

(8) The provisions of sub-sections (5),(6) and (7) shall be without
prejudice to right which the consumer may have apart from the rights
conferred upon him by those sub-sections.”

8. In each of the writ petitions aforesaid the Ombudsman and/or the GRO

and CGRO had awarded Compensation and Penalty after being

purportedly empowered by reason of the aforesaid 2010 regulations and

it is First and Second Amendments. The Distribution Company

complains that the Regulations themselves conferring such powers on

the GRO, CGRO and also the Ombudsman are itself ultra vires the 2003

Act.

9. The alternative argument advanced is that even assuming for the sake of

the argument that the aforesaid 2010 Regulations are intra vires the

procedure prescribed under the said Grievances Redressal Regulations

has neither been followed nor has the procedure prescribed under the

2003 Act itself been adhered to by the Ombudsman, GRO and CGRO in

the said matters. As a consequence whereof, the petitioner would argue

that the orders passed by the Ombudsman, GRO and CGRO are ex facie

legal and or even otherwise not sustainable.

10. The first argument of the petitioner is that Section 57(1) empowers the

Commission to specify the Standards of Performance by Licensees. Sub-

Section 2 of Section 57 empowers the Commission, in addition to

ordering penalty and prosecution against the Licensee/Distribution

Company, to award Compensation and Penalty to the Consumer for any

act or omissions of a Licensee or Distribution Company. Since the award

to Compensation and Penalty involves and adjudicatory process and such
power under Section 143 is only conferred on the Commission, the same

cannot be delegated to GRO, CGRO or Ombudsman under Section 42 of

the 2003 Act.

11. Section 57 of the 2003 Act is set out hereunder:-

“Section 57. (Consumer Protection: Standards of performance of
licensee): (1) The Appropriate Commission may, after consultation
with the licensees and persons likely to be affected, specify standards
of performance of a licensee or a class of licensees.

(2) If a licensee fails to meet the standards specified under sub-section
(1),

initiated, he shall be liable to pay such compensation to the person
affected as may be determined by the Appropriate Commission:
Provided that before determination of compensation, the concerned
licensee shall be given a reasonable opportunity of being heard.

(3) The compensation determined under sub-section (2) shall be paid
by the concerned licensee within ninety days of such determination.”

12. It is further argued that Section 57(2) empowers only the Commission to

adjudicate, award compensation and penalty. The power to frame

regulations under Section 181(2), specifically as per sub-section (za) is

only restricted to Section 57(1) and does not extend to Section 57(2).

Section 181 of the 2003 Act is set out herein below.

“Section 181. (Powers of State Commissions to make regulations):

— (1) The State Commissions may, by notification, make regulations
consistent with this Act and the rules generally to carry out the
provisions of this Act.

(2) In particular and without prejudice to the generality of the power
contained in sub-section (1), such regulations may provide for all or
any of the following matters, namely: –

(a) period to be specified under the first proviso of section 14;

(b) the form and the manner of application under sub-section
(1) of section 15;

(c) the manner and particulars of application for licence to be
published under sub-section (2) of section 15;

(d) the conditions of licence section 16;

(e) the manner and particulars of notice under clause(a) of
subsection (2) of section 18;

(f) publication of the alterations or amendments to be made in
the licence under clause (c) of sub-section (2) of section 18;

(g) levy and collection of fees and charges from generating
companies or licensees under sub-section (3) of section 32;

(h) rates, charges and the term and conditions in respect of
intervening transmission facilities under proviso to section
36;

(i) payment of the transmission charges and a surcharge
under sub-clause (ii) of clause(d) of sub-section (2) of section
39;

(j) reduction 1[***] of surcharge and cross subsidies under
second proviso to sub-clause (ii) of clause (d) of sub-section
(2) of section 39;

(k) manner and utilisation of payment and surcharge under
the fourth proviso to sub-clause(ii) of clause (d) of sub-section
(2) of section 39;

(l) payment of the transmission charges and a surcharge
under subclause(ii) of clause (c) of section 40;

(m) reduction 1[***] of surcharge and cross subsidies under
second proviso to sub-clause (ii) of clause (c) of section 40;

(n) the manner of payment of surcharge under the fourth
proviso to sub-clause (ii) of clause (c) of section 40;

(o) proportion of revenues from other business to be utilised
for reducing the transmission and wheeling charges under
proviso to section 41;

(p) reduction 2[***] of surcharge and cross-subsidies under the
third proviso to sub-section (2) of section 42;

(q) payment of additional charges on charges of wheeling
under subsection (4) of section 42;

(r ) guidelines under sub-section (5) of section 42;

(s) the time and manner for settlement of grievances under
sub-section (7) of section 42;

(t) the period to be specified by the State Commission for the
purposes specified under sub-section (1) of section 43;

(u) methods and principles by which charges for electricity
shall be fixed under sub-section (2) of section 45;

(v) reasonable security payable to the distribution licensee
under sub-section (1) of section 47;

(w) payment of interest on security under sub-section (4) of
section 47;

(x) electricity supply code under section 50;

(y) the proportion of revenues from other business to be
utilised for reducing wheeling charges under proviso to
section 51;

(z) duties of electricity trader under sub-section (2) of section
52;

(za) standards of performance of a licensee or a class of
licensees under sub-section (1) of section 57;

(zb) the period within which information to be furnished by
the licensee under sub-section (1) of section 59;

1[(zc) the manner of reduction of cross-subsidies under clause

(g) of section 61;]

(zd) the terms and conditions for the determination of tariff
under section 61;

(ze) details to be furnished by licensee or generating company
under sub-section (2) of section 62;

(zf) the methodologies and procedures for calculating the
expected revenue from tariff and charges under sub-section
(5) of section 62;

(zg) the manner of making an application before the State
Commission and the fee payable therefor under sub-section
(1) of section 64;

(zh) issue of tariff order with modifications or conditions
under subsection(3) of section 64;

(zi) the manner by which development of market in power
including trading specified under section 66;

(zj) the powers and duties of the Secretary of the State
Commission under sub-section (1) of section 91;

(zk) the terms and conditions of service of the secretary,
officers and other employees of the State Commission under
sub-section (2) of section 91;

(zl) rules of procedure for transaction of business under sub-
section (1) of section 92;

(zm) minimum information to be maintained by a licensee or
the generating company and the manner of such information
to be maintained under sub-section (8) of section 128;

(zn) the m

anner of service and publication of notice under section 130;

(zo) the form of preferring the appeal and the manner in which
such form shall be verified and the fee for preferring the
appeal under sub-section (1) of section 127;

(zp) any other matter which is to be, or may be, specified.

(3) All regulations made by the State Commission under this Act shall be
subject to the condition of previous publication.”

Hence the amendment to the 2010 Regulation under Notification 57, in

terms of Section 57(2) of the Act of 2003 renders the Notification ultra

vires the parent Act.

13. The next argument of the petitioner is that Section 143 confers the power

of adjudication for award of penalty only on the Commission. Such

adjudication is to be done only by a member who is to be appointed as

the Adjudicating Officer. Section 143 of the 2003 Act is set out

hereinbelow:-

“Section 143. (Power to adjudicate): — (1) For the purpose of
adjudging under this Act, the Appropriate Commission shall appoint
any of its Members to be an adjudicating officer for holding an inquiry
in such manner as may be prescribed by the Appropriate Government
,after giving any person concerned a reasonable opportunity of being
heard for the purpose of imposing any penalty.

(2) While holding an inquiry, the adjudicating officer shall have power
to summon and enforce the attendance of any person acquainted with
the facts and circumstances of the case to give evidence or produce
any document which in the opinion of the adjudicating officer, may be
useful for or relevant to the subject-matter of the inquiry, and if, on
such inquiry, he is satisfied that the person has failed to comply with
the provisions of section 29 or section 33 or section 43, he may
impose such penalty as he thinks fit in accordance with the provisions
of any of those sections.”

14. The Adjudicating Officer is required to hold an enquiry for such purpose

of determining penalty and must be a consequence of such enquiry, inter

alia for the aforesaid purpose the members of the Commission are

required to posses qualification prescribed under Section 84 and 85 of

the 2003 Act.

15. Such qualifications are necessary since the Adjudicating Officer/Member of

the Commission exercises powers under Section 94, 95 and 96, equivalent

to the power that of a Civil Court. The proceedings before the adjudicating

officer are Judicial Proceedings within the meaning of Indian Penal Code.

Sections 84, 85, 94, 95 and 96 of the 2003 Act are set out herein below.

“Section 84. (Qualifications for appointment of Chairperson and
Members of State Commission): — (1) The Chairperson and the
Members of the State Commission shall be persons of ability, integrity
and standing who have adequate knowledge of, and have shown
capacity in, dealing with problems relating to engineering, finance,
commerce, economics, law or management. (2) Notwithstanding
anything contained in sub-section (1), the State Government may
appoint any person as the Chairperson from amongst persons who is,
or has been, a Judge of a High Court: Provided that no appointment
under this sub-section shall be made except after consultation with
the Chief Justice of that High Court.

(3) The Chairperson or any other Member of the State Commission
shall not hold any other office.

(4) The Chairperson shall be the Chief Executive of the State
Commission.

Section 85. (Constitution of Selection Committee to select
Members of State Commission): — (1) The State Government shall,
for the purposes of selecting the Members of the State Commission,
constitute a Selection Committee consisting of –

(a) a person who has been a Judge of the High Court….
Chairperson;

(b) the Chief Secretary of the concerned State………….
….Member;

(c) the Chairperson of the Authority or the Chairperson of the
Central Commission ………….. Member:

Provided that nothing contained in this section shall apply to the
appointment of a person as the Chairperson who is or has been a
Judge of the High Court.

(2) The State Government shall, within one month from the date of
occurrence of any vacancy by reason of death, resignation or
removal of the Chairperson or a Member and six months before the
superannuation or end of tenure of the Chairperson or Member,
make a reference to the Selection Committee for filling up of the
vacancy.

(3) The Selection Committee shall finalise the selection of the
Chairperson and Members within three months from the date on
which the reference is made to it.

(4) The Selection Committee shall recommend a panel of two names
for every vacancy referred to it.

(5) Before recommending any person for appointment as the
Chairperson or other Member of the State Commission, the Selection
Committee shall satisfy itself that such person does not have any
financial or other interest which is likely to affect prejudicially his
functions as such Chairperson or Member, as the case may be.

(6) No appointment of Chairperson or other Member shall be invalid
merely by reason of any vacancy in the Selection Committee.

Section 94. (Powers of Appropriate Commission): — (1) The
Appropriate Commission shall, for the purposes of any inquiry or
proceedings under this Act, have the same powers as are vested in a
civil court under the Code of Civil Procedure, 1908 in respect of the
following matters, namely: –

(a) summoning and enforcing the attendance of any person
and examining him on oath;

(b) discovery and production of any document or other
material object producible as evidence;

(c) receiving evidence on affidavits;

(d) requisitioning of any public record;

(e) issuing commission for the examination of witnesses;

(f) reviewing its decisions, directions and orders;

(g) any other matter which may be prescribed.

(2) The Appropriate Commission shall have the powers to pass such
interim order in any proceeding, hearing or matter before the
Appropriate Commission, as that Commission may consider
appropriate.

(3) The Appropriate Commission may authorise any person, as it
deems fit, to represent the interest of the consumers in the
proceedings before it.

Section 95. (Proceedings before Commission): All proceedings
before the Appropriate Commission shall be deemed to be judicial
proceedings within the meaning of sections 193 and 228 of the
Indian Penal Code and the Appropriate Commission shall be deemed
to be a civil court for the purposes of sections 345 and 346 of the
Code of Criminal Procedure, 1973.

Section 96. (Powers of entry and seizure): The Appropriate
Commission or any officer, not below the rank of a Gazetted Officer
specially authorised in this behalf by the Commission, may enter
any building or place where the Commission has reason to believe
that any document relating to the subject matter of the inquiry may
be found, and may seize any such document or take extracts or
copies therefrom subject to the provisions of section 100 of the Code
of Criminal Procedure, 1973, insofar as it may be applicable.”

16. It is argued that given such a responsibility to exercise such powers only a

member of the Commission who has been appointed after satisfying the

qualifications prescribed under Section 84 and 85 can do so. It is however,

admitted that the adjudicatory powers under Section 143 are exercised to

decide disputes inter alia like those between Licensees / Distribution

Companies and transmission and generating Companies

17. It is however, contented that since the award of compensation must involve

a process of adjudication and since GRO and the Ombudsman need not

possess qualifications equivalent to those prescribed under Section 84 and

85 they cannot be allowed to exercise such grave and serious powers. The

said 2010 regulations are, therefore, according to the petitioner illegal and

arbitrary.

18. The next argument of the petitioner is inter alia that the aforesaid 2010

Regulations are ultra vires Section 42(5) and 42(6) of the Parent Act of

2003. It is submitted that Section 42(5) and 42(6) only conferred powers

of the GRO, CGRO and Ombudsman to settle disputes between a

consumer and a Distribution Company/Licensee and nothing more. The

power to settle disputes is more in the nature of Conciliation. Since

Section 42 of the Parent Act itself does not confer anything more than the

power to settle and the power to award Compensation and Penalty

involves the process of adjucation, to confer the power to adjudicate

disputes to award Compensation and Penalty in that regard, under the

2010 Regulations, by itself is illegal and ultra vires Section 42 in

particular and the other provisions of the 2003 Act, in general.

19. It is also argued that by reason of the 2010 Regulations and delegation of

powers of the Commission to the GRO, CGRO and Ombudsman the

Commission had abdicated its statutory responsibility under the 2003

Act and cannot be permitted to do so.

20. The petitioner would also argue that the power to frame regulations has

been conferred on the Commission under Section 181 of the 2003 Act.

Under Clause (za) of Sub-Section 2 of Section 181, the Commission has

only been empowered to frame Regulations for setting standards of

performance under Section 57(1) of the 2003 Act. At Clause (r) of Sub-

Section 2 of Section 181 the Commission has been empowered to frame

guidelines for the functioning of the CGRO and the RGRO (to settle

disputes only) under Section 42(5) of the 2003 Act. Under Clause (s)

Sub-Section 2 of Section 181 the Commission has also been empowered

to frame guidelines for the functioning of the Ombudsman.

21. Section 97 of the said Act of 2003 confers powers on the Commission to

delegate powers except the power of adjudication. Section 97 is set out

herein below.

” Section 97. (Delegation): The Appropriate Commission may, by
general or special order in writing, delegate to any Member, Secretary,
officer of the Appropriate Commission or any other person subject to
such conditions, if any, as may be specified in the order, such of its
powers and functions under this Act (except the powers to adjudicate
disputes under Section 79 and Section 86 and the powers to make
regulations under section 178 or section 181) as it may deem
necessary.”

22. Section 181 read with section 97 therefore cannot confer any power on

the Commission to frame regulations to empower the GRO or the
Ombudsman to adjudicate any disputes leading to payment of

Compensation and Penalty.

23. Since Section 42(5) and 42(6) only conferred the power of settlement of

disputes on the GRO, CGRO and Ombudsman no other adjudicatory

powers can be conferred on the said GRO, CGRO and Ombudsman.

Framing of the Regulations under Notifications 46, 56, 57 and 61

conferring powers on the said GRO, CGRO and Ombudsman is outside

the scope of Section 181 of the 2003 Act. Such Regulations are,

therefore, ex facie illegal and ultra vires the Parent Act of 2003.

24. It is next argued that the power of delegation has been circumscribed

under Section 97 of the 2003 Act. It is specified under the said Section

that the power to adjudicate disputes under Section 86(f) cannot be

delegated. Hence, conferring powers of deciding Compensation and

Penalty on the GRO, CGRO and Ombudsman by reason of the

Regulations would amount to a direct violation of Section 97 of the 2003

Act.

25. The next limb of argument of the writ petitioner is that the 2003 Act

conceived of a 3-tier hierarchy for the purpose of any adjudication of any

disputes under the said Act. The first is to the Commission under

Section 143 of the Act. If any party was aggrieved by an order of the

Commission it was entitled to prefer an appeal under Section 111 to the

Appellate Tribunal constituted to the said Act. Against the order of the
Appellate Tribunal an aggrieved party could approach the Hon’ble

Supreme Court under Section 125.

26. By reason of the said Regulations a 4th tier was sought to be created in

the hierarchy of fora to avail remedies against the Licensee and

Distribution Company. The same according to the petitioner was

contrary the scheme of the 2003 Act itself. The writ petitioner would

submit that such creation of fora by the 2010 Regulations, by a State

Commission is not only contrary to the disputes settlement mechanism

under the 2003 Act but also indirectly has the effect of amendment of

Parent Act by subordinate legislation which is unheard of.

27. It is argued further that a Subordinate Legislation can be made lawfully

only within the scope of the four corners of the permissiveness and the

scheme of the Parent Act. The CGRO, RGRO and Ombudsman under the

Parent Act of 2003 not having any adjudicatory power cannot to be

conferred the same by indirect and backdoor method of subordinate

legislation.

28. For the reasons stated above the writ petitioner would argue that the said

2010 Regulations are ultra vires the 2003 Act and are liable to be

quashed and set aside.

29. The alternative argument advanced by the Distribution Company is that

even if one assumes that the said Regulations are intra vires, the same

are absurd. By reason of Section 14(1) to 14(5) the RGRO, CGRO and
Ombudsman have been conferred with powers which in practice cannot

be exercised. The CGRO and RGRO as it has been found in practice are

all middle order employees of the Distribution Company/Licensee. By

reason of conferment adjudicatory powers they are likely to exercise

jurisdiction under Section 94, 95 and 96 of the 2003 Act. The said

Sections confer the power of a Civil Court on the said three authorities

and the proceedings before them are in the nature of judicial proceedings

in terms of Section 193 and 228 of the Indian Penal Code. The said

CGRO and RGRO are also Courts with the meaning of Section 345 and

346 of the Cr.P.C.

30. A middle order employee of the Licensee, has thus been granted powers

equivalent to that of a Civil Court by reason whereof the said CGRO and

RGRO can summon the Chairman and Directors of the Licensee and

Distribution Company to depose evidence before them they are conferred

with the power of search and seizure of the offices of their superior

authorities. It is argued that conferring such serious and far reaching

powers on middle order and unqualified employees of a Distribution

Company is absurd and it is unlikely that such employees would even

think of passing orders against their employers/bosses.

31. The said regulations according to the petitioner, therefore, conferred

uncanalised powers to unqualified and unequipped middle order
employee of a private company like the Licensee or the Distribution

Company and hence absurd and arbitrary.

32. In terms of Section 96 of the said 2003 Act the Adjudicating Officer

cannot be below the rank of a Gazetted Officer under the State and

Central Government. It is unlikely that any employee or RGRO and

CGRO in the present and operating Licensees and Distribution

Companies within the State of West Bengal are even remotely close to

being Gazetted Officers. The Regulations to this extent are, therefore,

violative of Section 96 of the 2003 Act.

33. An Adjudicating Officer is prohibited under the 2003 Act to hold any

other parallel office of profit. It is found in practice that the RGRO and

CGRO in all cases are themselves employees of the Distribution Company

and/or Licensee thereby creating a clear conflict and context. The CGRO

and RGRO cannot be expected to pass any orders against their parent

employer organisation or act in a unbiased manner.

34. On the facts of each case before this Court certain facts common to all

the writ petitions have been pointed out by the writ petitioner. This

argument was advanced assuming that the regulations are intra vires. In

terms of the amended Regulations of the 2013 at 14(4) it is stipulated

that each and every argument of either of the parties has to be

considered and specifically addressed by the CGRO/RGRO and

Ombudsman. The same was not adhered to in any matters.

35. It is further stipulated in Regulation 15(1) and 15(3) that the consumer

seeking Compensation and Penalty must approach the CGRO and RGRO

within 90 days of the accrual of cause of action in most cases claims

have been entertained after one year in some cases after two years and in

a given case even after eight years and damages have been awarded at

the rate of Rs.500/- per day. There was no enquiry held or spot

inspection made. There was no evidence recorded and hence proceedings

suffered from procedural infirmities and hence the orders are liable to be

set aside.

36. It is further argued that nearly all cases were relating to delay in granting

electricity connection to Shallow Tube-Wells for agricultural purposes.

The Techno Economic Feasibility Reports were not considered and actual

loss was not determined by proper trial and evidence. The aforesaid are

however, arguments on the merits of each claim which this Court cannot

entertain in such a summary fashion and if the validity of the 2010

Regulations are upheld each individual writ petition must be considered

of its own merits.

37. Mr. Pratik Dhar, learned Senior Advocate, in reply to the arguments of the

petitioners firstly submitted that in WP No. 15755 (W) of 2016, the

WBSEDCL has only challenged the constitutional vires of Regulation 14.1-

14.5 of the West Bengal Electricity Regulatory Commission (Standards

of Performance of Licensees Relating to Consumer Services)
Regulations, 2010 the amended Regulation by notification No. 57/WBERC

dated 26th August, 2013 has not been challenged. In addition thereto it is

argued that the WBERC guidelines for establishment and redressal of

grievances of consumers and time and manner of dealing of such grievances

(Ombudsman) Regulation 2013 have not been challenged. It is further

argued that notification No. 61 and Regulation 15 of Notification 46 had not

been challenged. While there is further challenge available in WP No.

18826 (W) of 2017, WBSEDCL Vs. Amit Batabyas and Ors., it is indeed true

that the said notification No. 57 and 61 and Regulation 15 have not been

challenged. This Court is of the view that each of the aforesaid notification

No. 61, 57 and Regulation 15 of Notification 46 has their genesis in

Regulation of 2010 being notification No. 46. It cannot be said that the

WBERC has taken by surprise since they themselves have annexed each of

the aforesaid notifications to their affidavit-in-opposition.

38. In any event, application for amendment being CAN 5950 in WP 15755 has

been filed to incorporate the challenged notification 57. Though not

formally allowed, the parties went on asking as if the amend has in fact

been allowed by the Court. Hence since the nature and character of the

main proceeding is not altered and since CAN 5950 is allowed and the writ

petition is allowed to be amended.

39. The main thrust of Mr. Dhar’s argument on behalf of WBERC is that

argument similar to those advanced by the petitioners in this application
which were upheld by the Learned Single Bench of this Court were carried

in appeal being FMA No. 3291 of 2015, WBERC Vs. WBSEDCL.

40. In view of the aforesaid pronouncement by the Division Bench that has

been followed by two other Single Benches of this Court in cases reported in

2016 SCC Online Cal 3187 WBSEDCL Vs. State of West Bengal and Ors.

and 2018 SCC Online Cal 1307 WBSEDCL Vs. Sudarsan Maity, the

arguments of the petitioner are no longer res integra.

41. Counsel for the Commission next relied upon the decision of the Hon’ble

Supreme Court in the case of Maharashtra Electricity Regulatory

Commission Vs. Reliance Energy reported in (2007) 8 SCC 381. At

Paragraph 33 and 34 of the said judgment has been relied upon. In

addition thereto a series of other judgments of the Hon’ble Supreme Court

have been relied upon by the Commission to argue as to why this Court

should not entertain the challenge to the constitutional vires of the

Regulation from notification 46, 57 and 61 referred to hereinabove. Such

cases are as follows:

“i) (2010) 4 SCC 603 [PTC India Ltd. -Vs- Central Electricity
Regulatory Commission, through Secretary] —-Pr. 92 (VI) on the
point that principle of generality versus enumeration empowers an
authority to make regulation on any residuary item.

ii) (1985) 2 SCC 116—[K. Ramanathan -Vs- State of Tamil Nadu
and Another]–Pr. 19 —– on the point that the word ‘regulate’
includes and carries with its full power over the thing. It would
therefore appear that the word ‘regulation’ cannot have any inflexible
meaning as to exclude ‘prohibition’.

iii) (2011) 3 SCC 363 —[Krishnavdevi Malchand Kamathia And
Others -Vs- Bombay Environmental Action Group and Others.] —-
Pr. 16 19 on the point that the specific regulation is required to be
challenged.

iv) (20060 12 SCC 583 —[Ispat Industries Ltd. -Vs- Commissioner
of Customs, Mumbai] Pr. 29 — The Hon’ble Court may go for such
interpretations which is intra-vires keeping in mind the object of the
statute.

v) (2008) 5 SCC 33…[Hinsa Virodhak Sangh -Vs- Mirzapur Moti
Kuresh Jamat and Others.]………………Pr. 39 ———– on the
point that presumption of constitutionality of the delegate
legislation like any legislation.

vi) (2003) 8 SCC 40 …[V.K., Majotra -Vs- Union of India
Others.]…Pr.8 17 — on the point that without challenging the
specific regulations, relief cannot be granted.

vii) (1981) 1 SCC 397 …..[S.S. Sharma and Others -Vs- Union of
India and Others.] …. —Pr. 6. – on the point new plea/point cannot
be allowed except the well known process of the amendment.

viii) (2019) 4 SCC 332………..[M. Revanna -Vs- Anjanamma (Dead)
by Legal Representative and Others.] ….Pr.7…… on the point of order
6 Rule 17 + once trial has commenced no amendment can be made
unless Court is satisfied with “due diligence”

ix) (2016) 12 SCC 1 [Ajendraprasadji N. Pandy and Another -Vs-
Swami Keshavprakeshdasji. N. and Others]…..Pr. 36 43.. on the
same proposition in serial No.(ix).”

42. Counsel for the award holder Consumer respondents adopted the

arguments of the WBERC and submitted that there have been considerable

delays in the granting connections to them and without any good reason.

They further placed an advertisement published by the WBSEDCL itself

informing the public at large about the Notifications No.47 and had

accepted the same. They argued that the WBSEDCL cannot resile from their

acceptance of such regulations.

43. This Court is of the view that when a question of Constitutional validity of

any law or rule is raised consent by the affected party cannot cure the

illegality in such Rules and Constitutional Courts are not debarred from
entertaining such a plea of illegality even after such Rules have been

accepted upon.

44. Let us consider the judgment of the Hon’ble Supreme Court in the

Maharashtra Commission Case (supra). The facts of the said case were that

licensees under the operative in the State of Maharashtra had unilaterally

issued bills to various consumers alleging outstanding dues of such

consumers passed as also applying a revised rate per unit of electricity.

The Maharashtra ERC issued a notice to the licensees and distribution

companies asking them to participate in an enquiry to indicate the reasons

for issuance of supplementary and amended bills. After hearing the

licensees and distribution companies, the said Commission ordered

withdrawal of the said supplementary bills and refunded of amount

collected from the consumers without interest on certain terms and

conditions. The licensees challenged the order of the Commission before

the Appellate Authority under Section 111.

45. The Appellate Authority directed the individual consumer to approach

Ombudsman under Section 42 (5) of the Electricity Act to see the redressal

of the individual grievances with regard to the bills. The principal argument

before the Hon’ble Supreme Court was whether the Commission had power

to issue general directions to licensees and distribution companies while

upholding the authority. The Hon’ble Supreme Court held that since the
issue arose out of grievances that can be raised primarily by the consumers

before the Commission.

46. The Hon’ble Supreme Court also found the Commission had failed to cause

for investigation under Section 128 (1) and 128 (5) of the 2003 Act and

hence could not give directions to refund the consumers, on the licensee

was inappropriate and that the consumers should have approach the

Ombudsman under Section 42 (5) of the 2003 Act. While the Supreme

Court held that under Section 86 (1) (f) of the 2003 Act, the Commission

has only power to adjudicate the dispute to the licensees and it could not

adjudicate the disputes of grievance. At Paragraph 33 34 of the said

Judgment, the Hon’ble Supreme Court held as follows:-

“33. As per the aforesaid provision, if any grievance is made by a
consumer, then they have a remedy under Section 42(5) of the Act and
according to sub-section (5) every distribution licensee has to appoint
a forum for redressal of grievances of the consumers. In exercise of
this power the State has already framed the Maharashtra Electricity
Regulatory Commission (Consumer Grievance Redressal Forum and
Ombudsman) Regulations, 2003 (hereinafter referred to as “the 2003
Regulations”) and created Consumer Grievance Redressal Forum and
Ombudsman. Under these 2003 Regulations a proper forum for
redressal of the grievances of individual consumers has been created
by the Commission. Therefore, now by virtue of sub-section (5) of
Section 42 of the Act, all the individual grievances of consumers have
to be raised before this forum only. In the face of this statutory
provision we fail to understand how could the Commission acquire
jurisdiction to decide the matter when a forum has been created
under the Act for this purpose. The matter should have been left to
the said forum. This question has already been considered and
decided by a Division Bench of the Delhi High Court in Suresh
Jindal v. BSES Rajdhani Power Ltd. [(2006) 132 DLT 339 (DB)]
and Dheeraj Singh v. BSES Yamuna Power Ltd.[Ed.: (2006) 127 DLT
525 (DB)] and we approve of these decisions. It has been held in these
decisions that the forum and Ombudsman have power to grant
interim orders. Thus a complete machinery has been provided in
Sections 42(5) and 42(6) for redressal of grievances of individual
consumers. Hence wherever a forum/Ombudsman have been created
the consumers can only resort to these bodies for redressal of their
grievances. Therefore, not much is required to be discussed on this
issue. As the aforesaid two decisions correctly lay down the law when
an individual consumer has a grievance he can approach the forum
created under sub-section (5) of Section 42 of the Act.

34. In this connection, we may also refer to Section 86 of the Act
which lays down the functions of the State Commission. Sub-section
(1)(f) of the said section lays down the adjudicatory function of the
State Commission which does not encompass within its domain
complaints of individual consumers. It only provides that the
Commission can adjudicate upon the disputes between the licensees
and generating companies and to refer any such dispute for
arbitration. This does not include in it an individual consumer. The
proper forum for that is Section 42(5) and thereafter Section 42(6)
read with the Regulations of 2003 as referred to hereinabove.”

47. The Hon’ble Supreme court judgment was in the said case related to a

billing dispute raised by the consumers. The dispute raised in the instant

case is that of Compensation and Penalty. The payment of Compensation

and Penalty to the individual consumers, in most cases is for delay in grant

of electricity connection. The said decision, therefore, cannot apply in the
facts of the instant case. The Hon’ble Supreme Court laid down in the case

of Arasmeta Captive Power Co. Ltd. Vs. Lafarge India Pvt. Ltd., reported

in (2013) 15 SCC 414 at Paragraph 32-34 36 that the ratio of any

judgment must be viewed in the facts of the said case and cannot be read

dehors the same. The issue of the constitutional vires of the 2010

Regulations and Regulation under notification 46 and consequently 57 and

notification No. 61 were neither in issue nor addressed by the Hon’ble

Supreme Court. At Paragraph 32-34 36 of the said Judgment, the

Hon’ble Supreme Court held as follows:-

“32. In Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] it has
been stated (SCC p. 221, para 18) that the ratio of any decision must be
understood in the background of the facts of that case. Relying
on Quinn v. Leathem [1901 AC 495 (HL)] it has been held that the case is only
an authority for what it actually decides, and not what logically follows from
it.

33. Lord Halsbury in Quinn [1901 AC 495 (HL)] has ruled thus: (AC p.

506)
“… there are two observations of a general character which I wish to
make, and one is to repeat what I have very often said before, that every
judgment must be read as applicable to the particular facts proved, or
assumed to be proved, since the generality of the expressions which may be
found there are not intended to be expositions of the whole law, but governed
and qualified by the particular facts of the case in which such expressions
are to be found. The other is that a case is only an authority for what it
actually decides. I entirely deny that it can be quoted for a proposition that
may seem to follow logically from it. Such a mode of reasoning assumes that
the law is necessarily a logical code, whereas every lawyer must acknowledge
that the law is not always logical at all.”

(emphasis supplied)

34. In Krishena Kumar v. Union of India [(1990) 4 SCC 207 : 1991 SCC
(LS) 112 : (1990) 14 ATC 846] the Constitution Bench, while dealing with
the concept of ratio decidendi, has referred to Caledonian Railway
Co. v. Walker’s Trustees [(1882) LR 7 AC 259 : (1881-85) All ER Rep 592 : 46
LT 826 (HL)] and Quinn [1901 AC 495 (HL)] and the observations made by Sir
Frederick Pollock and thereafter proceeded to state as follows: (Krishena
Kumar case [(1990) 4 SCC 207 : 1991 SCC (LS) 112 : (1990) 14 ATC 846] ,
SCC pp. 226-27, para 20)
“20. … The ratio decidendi is the underlying principle, namely, the
general reasons or the general grounds upon which the decision is based on
the test or abstract from the specific peculiarities of the particular case which
gives rise to the decision. The ratio decidendi has to be ascertained by an
analysis of the facts of the case and the process of reasoning involving the
major premise consisting of a pre-existing rule of law, either statutory or Judge-

made, and a minor premise consisting of the material facts of the case under
immediate consideration. If it is not clear, it is not the duty of the court to
spell it out with difficulty in order to be bound by it. In the words of Halsbury
(4th Edn., Vol. 26, para 573):

‘The concrete decision alone is binding between the parties to it, but it is
the abstract ratio decidendi, as ascertained on a consideration of the
judgment in relation to the subject-matter of the decision, which alone has
the force of law and which, when it is clear … it is not part of a tribunal’s
duty to spell out with difficulty a ratio decidendi in order to be bound by
it, and it is always dangerous to take one or two observations out of a long
judgment and treat them as if they gave the ratio decidendi of the case. If more
reasons than one are given by a tribunal for its judgment, all are taken as
forming the ratio decidendi.'”

(emphasis supplied)

36. In Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC
697] the Court has made the following observations: (SCC p. 719, para 2)
“2. … The ratio decidendi of a judgment has to be found out only on
reading the entire judgment. In fact, the ratio of the judgment is what is set
out in the judgment itself. The answer to the question would necessarily have
to be read in the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations, reasons and
principles, the other part of the judgment has to be looked into. By reading a
line here and there from the judgment, one cannot find out the entire ratio
decidendi of the judgment.”

(emphasis supplied)”

48. However, one needs to look at the judgment of the Division Bench of this

Court in the case of WBERC Vs. WBSEDCL reported in AIR 2016 Cal 144 at

Paragraph 36 of the said judgment, the Hon’ble Supreme Court held as

follows:-

“36. Apparently, constitutionality of 2010 regulations has not been assailed
in the instant writ petition however, during the oral arguments across the bar
and in the written submissions filed on behalf of the distribution licensee an
attempt has been made to contend that 2010 Regulations are inconsistent
with the provisions of the Act. As discussed earlier the scope of rule making
power under Section 178 of the Act is wide enough to encompass the power
of the Commission to delegate any of its powers by way of Regulations
provided such delegation is not expressly barred by the provisions of the Act.
In the instant situation there is no such embargo on the delegation of power
to award Compensation under Section 57(2) of the Act. Hence, the
authorization of the Ombudsman to award Compensation under Section
57(2) of the Act for breach of standards of performance as laid down by it
under Section 57(1) of the Act thereof cannot be said to be contrary to the
provisions of the Act. That apart, such delegation in the 2010 regulations to
the Ombudsman is not an uncanalised one and sufficient guidelines have
been laid down for exercise of its discretion.”

49. The constitutional vires of the said Regulations under notification 46, 57

and 61 were not addressed. In the pleadings of the case, based on the

notes of arguments filed by the parties the Hon’ble Division Bench of this

Court has upheld the Constitutional Vires of the said Regulations under

notification 46 being WBERC Standards of Performance Regulation of 2010

had not adressed in detail the arguments raised by the petitioners

50. The said Division Bench Judgment was carried in appeal to the Hon’ble

Supreme Court which was dismissed.

51. Counsel for the Commission would argue in extension that the notes of

arguments that had been filed in the said appeal before the Division Bench,

had clearly raised most of the points argued by the petitioner in the instant

case. The arguments are no longer res integra and that this Court is bound

by the order of the Division Bench in the WBERC case reported in AIR 2016

Cal 144.

52. This Court has carefully considered judgment of the Division Bench and

notes that the Constitutional vires of the 2010 Regulations has indeed been

upheld by the Division Bench in a single paragraph. However none of the

issues/arguments as raised by the petitioners hereinabove seem to have

been addressed by such Division Bench. It is true that Hon’ble Division

Bench has upheld that the constitutional vires of Notification 46. It is true

that repeated challenges to vires of a legislation/Rules on other minor

grounds are not entertained at the drop of a hat by Courts, when once there

is a detailed pronunciation by a higher forum.

53. However in the WBERC case reported in AIR 2016 Cal 144 it is seen that

the vires and delegation of powers to WBERC has been addressed to a very

limited extent and only in the context of Section 57 (1) and 57 (2) of 2003

Act. The detailed arguments raised by the petitioners have not been

addressed by any Court till date. This Court is also conscious of the

arguments raised by the WBERC.

54. This Court in course of arguments being advanced by the petitioner has

considered the following decisions rendered by the Hon’ble Supreme Court

on the question of ultra vires subordinate legislation. The list of the cases

are as follows:

i. Kunj Behari Butail Vs. State of Himachal Pradesh, reported
in (2000) 3 SCC 40, Para 14, 13 and 8

ii. A. Manoharan Vs. Union of India, reported in (2008) 3 SCC
641, Para 20, 21 and 22.

iii. Subhash Chandra Vs. Delhi Subordinate Services Selection
Board, reported in (2009) 15 SCC 458, Para 69, 70 and 73.

iv. Cellular Operators Association of India Ltd. Vs. TRAI,
reported in (2016) 7 SCC 703, Para 34, 36, 37, 78, 79, 42 to
44, 48, 54 to 57, 61, 62 and 97.

v. Kerala State Electricity Board Vs. Indian Aluminium Co.,
reported in (1976) 1 SCC 476, Para 25.

vi. J. K. Industries Vs. Union of India, reported in (2007) 13
SCC 673, Para 127-133.

vii. Kurmanchal Institute of Degree and Diploma Vs.
Chancellor, M.J.P. Rohilkhand University, reported in (2007)
6 SCC 35, Para 20.

viii. Shree Bhagwati Steel Rolling Mills Vs. CCE, reported in
(2016) 3 SCC 643, Para 29.

ix. NOVVA ADS Vs. Deptt. of Municipal Administration and
Water Supply and Anr., reported in (2008) 8 SCC 42, Para 40.

x. Global Energy Ltd. Vs. Central Electricity Regulatory
Commission, reported in (2009) 15 SCC 570, Para 40 and 5.

xi. Union of India Vs. S. Srinivasan, reported in (2012) 7 SCC
683, Para 21 and 32.

55. This Court deems it necessary that the arguments raised by the writ

petitioner need to be suitably addressed and hence the following questions

are formulated so that the matter can be placed before the Hon’ble Chief

Justice to constitute an appropriate larger Bench to address the same.

56. The points of reference are as follows:-

a) Does not the process of award of Compensation and Penalty” involve

adjudication. Section 42, of the Electricity Act, 2003 allows the CGRO

and the Ombudsman only to settle disputes albeit between consumers

and Licensees/ Distribution Companies. Conferring a power to award

Compensation and Penalty under Notification 46, 56, 57 and 61 would

tantamount to conferring the power of adjudication. Such power of

adjudication, in clear terms, is bestowed only upon the Commission at

Central and State level under Section 79 (1) (f) and Section 86 (1) (f) of

the Act of 2003 respectively. Hence do the Regulations under the

aforesaid notifications survive the doctrine of Ultra Vires the Parent

Act of 2003.

b) The power to frame regulation by the State Commission is conferred

under Section 181 of the Act of 2003. Clause (za) of Sub-section (2) of

Section 181 of the Act of 2003 permits the SERC to frame regulation

for setting “standards of performance of a licensee “under section 57(1)

of the 2003 Act. It is only Section 57 sub-section 2 which prescribes

payment of Compensation and Penalty to the person affected. Such
Compensation and Penaltycan be awarded only by the Commission.

Sub-section (2), Clause (za) of Section 181 does not empower the

Commission to frame regulation towards payment of Compensation

and Penalty or adjudication thereof. For that matter no other sub-

section of Section 181 empowers the Commission to frame any

regulation either for adjudication by a licensee or anybody else or even

regulation to award Compensation and Penalty. Therefore, can the

Regulations framed under Notification 46, 56, 57 and 61 of 2010,

prescribing mode of adjudication by the CGRO/RGRO and/or

Ombudsman come within the authority of delegation conferred by the

Parent Act, 2003.

c) The power to frame Regulations under Sub Section (za) of Section 181

has been restricted to matters covered under Section 57(1) of the Act of

2003. By the Ombudsman Regulations, regulations were framed by the

Commission under Section 57 (2) by invoking purported powers under

Section 181(za). Admittedly Sub Section (za) of Section181 does not

empower any regulations to be framed under Section 57 (2). Has the

Commission therefore acted outside the scope of the authority

delegated under parent Act of 2003, while framing the regulations

under Notification 56 (The Ombudsman Regulations) and the first

amendment to the Standards of performance Regulations of 2010) on

26th August 2013 by Notification 57 and the Second Amendment to the

2010 Regulations under Notification 61 dated 7th January 2014.

d) In terms of the Notification 46 and particularly Regulation 2010 in

respect of some orders passed by the Ombudsman an appeal would lie

to the Commission. The 2003 Act only conceives of a three-tier

hierarchy of appeal under the Section 111 and 125. From the order of

the Commission an appeal lies to the Appellate Tribunal under Section

111 and from the order of the Appellate Tribunal appeals lie to the

Supreme Court under Section 125 of the Act of 2003. By reason of

permitting some orders of the Ombudsman (adjudicating

Compensation and Penalty/penalty claimed by the consumer against

the licensee), a fourth-tier therefore, has now been created by reason of

regulations framed under the aforesaid regulations, i.e. from the orders

of the Ombudsman an appeal may be preferred to the Commission the

rest of the appeal process remaining as it is. Is such a fourth tier in

accordance with the scheme of the 2003 Act and can the enabling

parent Act be amended by way of subordinate legislation ?

e) Assuming for the sake of argument that the regulations are intra-vires,

by reason of permitting only some orders of the Ombudsman to be

appealable to the Commission and not permitting others orders to be

so appealable, there being no difference otherwise in the nature of

such orders, are the Regulations not discriminatory creating a special

class within the general class of consumers?

f) The process of “Adjudication” involves calling for evidence, examination

and cross examination of witnesses. The adjudicator’s proceedings are
deemed as judicial proceedings under the Act of 2003 which has

conferred powers under Section 193 and 228 of I. P. C and Section 345

and 346 of Cr. P. C to the adjudicator under the Act. Given such

serious and wide powers the adjudicator under the Act is required to

have certain qualification as specified in Section 77 of the Act of

2003.No such qualification is prescribed for appointment of an

Ombudsman under the Act. Does the 2003 Act intend conferring of

such grave and serious powers on an Ombudsman or a GRO.

g) Grievance Redressal Officers under Section 47 (5) of the Act of 2003

are appointed out of the employees of the Licensee /Distribution

Company. Can such employee be expected to be free from bias and

pass orders against his employer? Can this possibly be in harmony

with the purpose and object sought to be achieved by the Act of 2003?

h) Section 79 (i) empowers only the Commission to specify and

‘ENFORCE’ the Standards of performance by licensee. Under Section

86 (i) only the Commission is empowered to specify and ENFORCE

standards of performance by licensees. The Enforcement of Standards

is done only in terms of Section 57(2) of the Act by prosecution and

imposition of penalty. Only the Commission is empowered to order

prosecution and also Compensation and Penalty. If this be the object

and purpose of the Parent Act then can this power be at all be

delegated to an Ombudsman /GRO under Section 42 (5) (6) (7) of the

Act. Has the Commission abdicated its responsibility by reason of
passing on and delegating the power to enforce standards and award

Compensation and Penalty to the CGRO/Ombudsman?

i) Would the prescribing of procedure to be followed by the Commission

Cure the defect of excessive delegation in the first place. While a large

number of above questions were raised by the licensee in the SLP

which challenging the order of the DB in the case reported in AIR 2016

Pg 144. Can it be said that the rejection of the SLP without any of the

questions being addressed and specifically dealt with, the same would

prevent High Court from considering the same.

j) Has the Hon’ble Supreme Court in the case of MERC vs. Reliance

Energy reported in (2007) 8 SCC 381 decided the above questions and

the Constitutional vires of the Regulations framed under Notification

46,56,57 and 61 to prevent High Court from entertaining the questions

raised by the WBSEDCL.

k) Can the volume of cases filed by the consumers be a determining

factor in allowing WBERC to abdicate its responsibility and pass on the

duty to CGRO/Ombudsman and confer powers on WBACRC the power

to adjudicate matter

57. Hence, let the matter be placed before the Hon’ble Chief Justice to

constitute an appropriate Bench to address the questions set out as above.

58. Urgent Photostat Certified server copy of this judgment, if applied for, be

supplied to the parties on urgent basis.

(Rajasekhar Mantha, J.)

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