Before the
13th Floor, Centre No.1, World Trade Centre, Cuffe Parade, Mumbai 400 005.
Tel. 22163964 / 22163965, Fax No. 22163976

CASE No. 32 of 2005

In the matter of
Application of M/s Thermo Touch Enterprises, Pune for seeking redressal
under Section 142 and Section 146 of EA 2003

Dr Pramod Deo, Chairman
Shri A. Velayutham, Member
Shri S B Kulkarni, Member

Dated: 1st February, 2006
  M/s Thermo Touch Enterprises, through their Petition dated 6th December 2004 and subsequent letter dated 24th September 2005 have made following main prayers, in the context of actions taken by the erstwhile MSEB:
To award penalties u/s 142 of EA, 2003 for contravening provision of law and regulations framed by the Board under E(S) Act, 1948 and effecting disconnection on 30.3.2004 illegally before final Order of the appellate Authority.
To award penalty to respondents u/s 142adding arrears in current bills in direct contravention of Condition 31(C) of Condition of Supply framed by the Board, under E(S), 1948
To initiate prosecution against the Respondent u/s 146 read with Section 151 of EA, 2003
To declare undated bill for Rs.1,65,300/- issued in response of HC Order … null and void and the respondent be ordered to refund.
To award compensation to the Petitioner for Rs.10.00 lakhs u/s 57 of EA, 2003.
Not to disconnect power supply to the Petitioner until further order.
2. Earlier, the Petitioner has endorsed copy of their representations made to MSEB, Pune, to the Commission, which the Commission has forwarded to MSEB for appropriate action, vide its letters addressed to CE (TRC) dated 11.2.2004, 22.3.2004, 5.8.2004, 23.9.2004, 4.10.2004 and 1.12.2004 in the matter.
3. The Commission directed the Petitioner vide its letter dated 16th December 2004 to clarify the maintainability of the Application in the light of its Order dated 24th November 2004 in Case No. 14 of 2004 - M/s Jai Bamleshwari Rice Mills regarding non-compliance of Section 126 of the Electricity Act 2003 (EA 2003) by MSEB.
4. The Petitioner, through its letter dated 21st February 2005 and subsequently through its letter dated 24th September 2005, submitted that:
It is seeking relief under Sections 142, 146 and 57 of EA 2003 and the crux of this case, as far as maintainability is concerned, would be to see whether their case, prima-facie, falls within the ambit of the said Sections.
It has taken due cognizance of the decision contained in the Order dated 24th November 2004 of Commission in Case No. 14 of 2004, and acting upon the relevant portion of the said Order, the Petitioner has made further submission that its prayer contained at item No. (d) of the Prayers made in the original application dated 6th December 2004, is given up, and that rest of the prayers be considered.
The Petitioner has highlighted the predetermined and arbitrary performance of MSEB in carrying out spot inspection, as also disconnecting the consumer's electricity supply illegally and issuing provisional assessment arbitrarily, not caring for law and regulations, particularly the then existing Condition No. 31(e) of the Board's Conditions of Supply.
The Petitioner has also brought out in its original Petition dated 6.12.2004 (para 12) that the powers of Appellate Authority vested earlier in the Chief Engineer, MSEB had became inoperative after the issue of the State Government Notification dated 16.7.2004. The failure on the part of the Chief Engineer (P), MSEB (Appellate Authority) to act in time and according to law is clearly established. The Petitioner further submitted that MSEB however, till this day, exhibited indifference in discharging their lawful liabilities and have clearly invited action under Sections 142 and 146 of the Electricity Act, 2003.
5. The Respondent, Maharashtra State Electricity Distribution Company Ltd (MSEDCL, and erstwhile MSEB) filed its response on affidavit on 7th January 2006. The key objections filed by MSEDCL are as under -
The present disputes, being theft detected on 31st January 2003 falls under Indian Electricity Act 1910, Electricity Supply Act 1948, and Conditions & Miscellaneous charges for Supply of Electrical Energy Rules framed thereunder. The Electricity Act 2003 has come into effect on June 2003, therefore, the present case is governed by Rule 31(e) of Supply Rules only.
The Hon'ble High Court, Bombay on 5.7.2005 disposed off the 'Review Petition' No. 77 of 2005 (Writ Petition No. 1486 of 2005), with the directions that the Superintending Engineer is an Appellate Authority. Hereto Annexed and marked as Exhibit-3 is the true copy of the said Order passed by the Hon'ble High Court, Bombay in Review Petition No. 77 of 2005. I state that in view of the aforesaid Order, the Petitioner is estopped from contending that the Appellate Authority under the Rules have no power to decide the dispute. I state that in view of the non co-operation of the Petitioner, though the directions were given from time to time by the Hon'ble High Court, Bombay, the dispute is pending in appeal.
  In addition, MSEDCL also contested various claims made by the Petitioner in its application, and desired that the Petitioner should strictly prove the statements and contentions made in its application under various paragraphs.
6. The Commission conducted a hearing in the matter on 24th January 2006. During the hearing, Mr. S.C. Karandikar, Advocate represented the Petitioner and Mr. V.M. Basawante, SE (MSEDCL-Pune) represented the Respondent. Further, during the hearing, the Commission observed that the matter pertains to dispute between consumer and the licensee as regards assessment carried out for un-authorized use of electricity and whether appropriate procedures for assessment, dispensation and rules thereof, have been adhered to by the licensee, which are matters to be dealt with by the appropriate forum, i.e., 'Appellate Authority', in the instant case.
7. During the hearing, the Petitioner reiterated its major grievance that MSEDCL has not been adopting procedures as laid down under Section 126 of EA 2003 and hence, denying the remedies available to the Petitioner under the EA 2003, thereby breaching the provisions of the EA 2003.
8. In this context, the Commission observes that MSEDCL, through its letter No. SE/RPUC/Legal/ 01347 dated 25th August, 2005 has claimed, that "the Superintending Engineer, RUPC, Pune-11, will be the appellate authority to examine the matter." Incidentally, it is noted that the SE (RPUC), Pune was also the "Assessing Officer" in the instant case against which Order, such appeal has been made in the first place.
9. The matter was also heard by the Hon'ble High Court of Bombay. The relevant extract of the Hon'ble High Court's Order dated 7th April 2005 is as under -
  "2.……….We would like the appellate authority to examine the matter in appeal, after affording hearing to the petitioner, and pass a detailed reasoned order. This order would, of course, be subjected to the petitioner paying sum of Rs 3 lakhs out of the outstanding amount of arrears within ten days from today. On payment of this amount, the Superintending Engineer, Pune - 11, is directed to hear the petitioner and decide its case by a reasoned order."

"4. The appellate authority is directed to ensure that the appeal is decided, as expeditiously as possible, and, in any case, within six weeks from the date the parties appear before him" (Order dated. 7th April 2005 of Hon'ble High Court, Bombay).
10. Further, the Hon'ble High Court issued a further Order on the Review Petition filed by the Petitioner, dated 5th July 2005. The relevant extract of this Order is as under:
  "1. In our Order dated 7th April 2005, the words "Superintending Engineer" should be read as 'the Appellate Authority"
11. MSEDCL, in its Reply dated 7th January 2006, citing the Hon'ble High Court's Order dated 5th July 2005, claimed that the Hon'ble High Court has ruled that the 'Superintending Engineer' is the 'Appellate Authority'. However, upon perusal of the said Order, relevant extract of which has been reproduced above, the Commission notes that above claim of MSEDCL is misplaced and MSEDCL has wrongly interpreted the said Order of the Hon'ble High Court, Bombay to its advantage. Both the Orders of the Hon'ble High Court have to be read in conjunction, whereupon it is clear that the Hon'ble High Court has not intended to suggest that the 'Superintending Engineer' shall be the 'Appellate Authority' in the instant case, as has been claimed by the MSEDCL in its reply dated 7th January 2006.
12. Further, in this context, the Commission would like to highlight and bring to the attention of all concerned that, the Commission has already notified the MERC (Procedure for filing appeal before the Appellate Authority) Regulations, 2004, on 10th June, 2004. As per said Regulations, "Appellate Authority is defined as "an Authority prescribed by the Central Government under Sub-Section (1) of Section 27 read with Clause (u) of Sub-section (2) of Section 176 of the Act". Further, the Central Government has notified "Appeal to the Appellate Authority Rules, 2004" on 16th April, 2004 vide GSR 265(E) dated 16th April, 2004. As per the said Rules -
    "Appellate Authority" means for purposes of appeal under Section 127, the State Government may designate by notification published in official Gazette, a person who is a Gazetted Officer of the said Government or has been a "District Judge" or Officer of equivalent rank, as Appellate Authority (emphasis added).
13. The Commission notes that the Government of Maharashtra (GoM) has issued a Notification No. IEA 1004/CR608/NRG-4 dated 16th July 2004 designating the 'Appellate Authority' as under -
    "In pursuance to Rule 3 of the Appeal to the Appellate Authority Rules, 2004 made by Government of India in exercise of the powers conferred under the Electricity Act, 2003 (36 of 2003), the Government of Maharashtra hereby designates Shri B.G. Jadhav, Chief Engineer (Electrical), in the Public Works Department of the State of Maharashtra, as the Appellate Authority for the purpose of Appeal under Section 127 of the said Act."
14. During the hearing on 24th January 2006, the Petitioner and MSEDCL agreed to refer the matter to the designated 'Appellate Authority' under the EA, 2003. Further, in response to a specific query from the Commission during the hearing, the Petitioner confirmed that it is receiving power supply from MSEDCL as on date and the same has not been disconnected. In view of the foregoing, the Commission hereby directs the parties to plead their case before 'Appellate Authority' under EA, 2003.
15. The Petition is accordingly disposed of.

(S.B. Kulkarni)
(A. Velayutham)
(Dr Pramod Deo)
Chairman, MERC
(Ms. Malini Shankar),
Secretary, MERC