G.S. Godbole, J.@mdashRULE. Rule made returnable forthwith and heard by consent of the parties. The learned Advocate for Respondent Nos. 1 & 3 to 5 waives service.
2. Heard Mr. Bhalwal, for the Petitioner and Mr. Rahul Sinha, for Respondent Nos.1 & 3 to 5. Respondent No.2 is the Electricity Ombudsman. Hence, it is not necessary to serve Rule on the Respondent No. 2.
3. I have heard Mr. Bhalwal and Mr. Sinha for sub stantial time.
BRIEF RESUME OF FACTS
4. Maharashtra Electricity Regulatory Commission issued tariff order dated 31st May, 2008 in Case No.72 of 2007 and according to this tariff order, which became applicable from 1st June, 2008 till 31st March, 2009. A new category was created by the MERC namely HTII Commercial to cater to all commercial category consumers availing supply at HT voltages and currently classified under the existing HTI Industrial or LTIX (multiplexes and shopping malls). This category was to include Hospitals getting supply at HT voltages, irrespective of whether they are charitable, trust, Government owned and operated etc.
5. The dispute in the present Petition is in respect of the categorization of the LPG Gas Bottling Plant of the Petitioner situated at Sangli. According to the Petitioner, the activity of LPG Gas Bottling Plant is a manufacturing activity and, therefore, the Petitioner should be charged under category HTI Industrial. According to the Respondent, however, the aforesaid activity of the Petitioner is not a manufacturing activity and, hence, they are entitled to levy and charge electricity at HTII i..e commercial category. Since, the bill for HTII Commercial Category was received by the Petitioner, a representation was made on 26th August, 2009 (Exhibit B). It appears that the Superintending Engineer, MSEDC Limited, Sangli Circle sought guidance from the Chief Engineer (Commercial) which was given by the letter of Chief Engineer (Commercial) dated 24th September, 2008. The relevant portion of the said letter reads thus:
Similarly, Indian Oil Corporation, Bharat Petroleum Corporation and Hindustan Petroleum Corporation Depot where, petroleum products like HSD (Diesel), SKO(Kerosene) and MS (Petrol) through tank wagons are received and further supplied to various retail/ industrial consumers does not involve any industrial/ production activity. Also as per the guidelines of MERC, the consumers category is determined based on the purpose of usage of supply. Hence the HTII (Commercial) tariff is appropriate tariff for such depots as per recent tariff order.
It is therefore requested to take necessary action and inform the consumer at your end.
6. The Section Engineer, Sangli thereafter, sent reply dated 22nd October, 2008 to the Petitioner contending that HTII was the appropriate tariff for the Petitioner. But the Petitioner did not immediately approach the Consumer Grievance Redressal Forum created by the MSEDCL u/s 42(5) of the Electricity Act, 2003 at the relevant time but filed a complaint before the Consumer Disputes Redressal Forum at Sangli. By Judgment and Order dated 28th July, 2010, the said complaint was dismissed as not maintainable. Immediately thereafter on 14th October, 2010, the Petitioner submitted a complaint before the Internal Consumer Grievance Forum Cell, Circle Office, Sangli. The Executive Engineer (Adm.) and MSEDCL Internal Consumer Grievance Cell, Circle Office, Sangli sent a reply to the Petitioner on 27th October, 2010 that the grievance of the Petitioner cannot be considered in view of the Judgment dated 18th March, 2009 delivered by Kerala State Electricity Regulatory Commission and the Judgment reported in AIR 1992 Guj 237 between State of Gujarat v/s. Kosan Gas Company dated 17th June, 1991. Both these Judgments are at pages 43 and 55 respectively.
7. Thereafter, the Petitioner filed its grievance before the Consumer Grievance Redressal Forum, Kolhapur on 14th December, 2010. The Consumer Grievance Redressal Forum, Kolahapur framed three issues. It held that under Rule 6.6. of the MERC (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations 2006, the Forum has no power and jurisdiction to admit any grievance unless it is filed within two years from the date on which the cause of action has arisen. The terms cause of action has not been defined in the said Regulations. The Consumer Grievance Redressal Forum held that the cause of action has arisen on 1st July, 2008 whereas grievance has been filed before the said Forum on 14th October, 2010 beyond the period of two years. The said Forum further held that the principles of Indian Limitation Act, 1963 which provided for the exclusion of the period of limitation spent in prosecuting the wrong remedy before the wrong forum (Consumer Court at Sangli) cannot be applied. On the other issue, as to whether the Petitioner is entitled to claim HTI, Tariff, the CGRF held that the activity of bottling plant of LPG was not a manufacturing activity.
8. Aggrieved by the aforesaid order of the CGRF, the Petitioner filed Representation No.82 of 2011 u/s 42(6) of the Electricity Act, 2003, before the Electricity Ombudsman. Various Judgments were cited before the Electricity Ombudsman. By the impugned order dated 17th August, 2011, Representation No.82 of 2011 is dismissed. The Ombudsman has concurred with the view of the CGRF that the grievance was filed beyond two years from the date of accrual of cause of action. On the other issue regarding manufacturing activity, the Ombudsman has concluded thus:
...The documents and reasons given by the Appellant are not sufficient to conclude that refilling of cylinder is a packing activity, the last stage of manufacture. There is no material on record that tariff orders passed by the Commission are similar to tariff orders passed by Madhya Pradesh State Electricity Regulatory Commission. The Appellant cannot take much help by citing judgments on tariffs applicable to other states. The Forum rejected Appellant''s prayer in this regard. The Appellant has not pointed out any reason or jurisdiction to interfere in the Forum''s order. The Forum''s reasoned order does not apparently suffer from any error or infirmity.
9 Thus, the case of the Petitioner has been rejected on two grounds. Firstly, Limitation provided by Regulation No.6.6 and second on the ground that the activity is not a manufacture activity.
CONSIDERATION OF SUBMISSIONS
10. In so far as the first ground is concerned, I propose to decide the question of limitation by this Order and in my opinion, the grievance made by the Petitioner was well within limitation. Regulation No.2(c) of the MERC (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2006 ( herein after referred to as the 2006 Regulations), defines the term grievance. Regulation Nos.2 (d), (e) and (f) reads thus:
2(d) Internal Grievance Redressal Cell" or IGR Cell" means such first authority to be contacted by the consumer for redressal of his/her Grievance as notified by the Distribution Licensee;
2(e) "Forum means the forum for redressal of grievances of consumers required to be established by Distribution Licensees pursuant to sub section (5) of section 42 of the Act and these Regulations;
2(f) "Electricity Ombudsman" means an authority appointed or designated by the Commission, in pursuance of sub section (6) of section 42 of the Act and these Regulations, to whom any consumer, who is aggrieved by non redressal of his grievances by the Forum, may make a representation
11. Regulation No.4 provides for Constitution of a Forum for Redressal of Consumer Grievances consisting of three members. Regulation No.6 provides for Procedure for Grievance Redressal which reads thus:-
6.1 The Distribution Licensee shall have an Internal Grievance Redressal Cell to record and redress Grievances in a timely manner. The IGR Cell of the Distribution Licensee shall have office(s) in each revenue district in the area of supply.
Provided that where the area of supply is the city of Greater Mumbai and adjoining areas, the IGR Cell of the Distribution Licensee shall have at least one (1) office for the area of supply. The Distribution Licensee shall endeavour to redress Grievances through its IGR Cell.
6.2 A consumer with a Grievance may intimate the IGR Cell of such Grievance in the form and manner and within the time frame as stipulated by the Distribution Licensee in its rules and procedures for redressal of Grievances.
Provided that where such Grievance cannot be made in writing, the IGR Cell shall render all reasonable assistance to the person making the Grievance orally to reduce the same in writing.
Provided also that the intimation given to officials (who are not part of the IGR Cell) to whom consumers approach due to lack of general awareness of the IGR Cell established by the Distribution Licensee or the procedure for approaching it, shall be deemed to be the intimation for the purposes of these Regulations unless such officials forthwith direct the consumer to the IGR Cell.
6.3 (a) The office of the IGR Cell shall issue acknowledgment of the receipt of the Grievance to the consumer within five (5) working days from the date of receipt of a Grievance. Where the Grievance has been submitted in person, the acknowledgment shall be provided at the time of submission.
Provided that where the Grievance is submitted by email to the IGR Cell acknowledgment of the receipt of the Grievance to the consumer shall be provided by return email as promptly as possible.
Provided further that the IGR Cells shall keep such electronic records in hard form for ease of retrieval.
Provided further that where the Grievance is submitted by email hard copies of the same shall be submitted forthwith separately to the IGR Cell.
(b) Notwithstanding sub clause (a), the written acknowledgment of receipt of grievance provided by officials (who are not part of the IGR Cell) shall be deemed to be the acknowledgment for the purposes of these Regulations.
6.4 Unless a shorter period is provided in the Act, in the event that a consumer is not satisfied with the remedy provided by the IGR Cell to his Grievance within a period of two (2) months from the date of intimation or where no remedy has been provided within such period, the consumer may submit the Grievance to the Forum. The Distribution Licensee shall, within the said period of two (2) months, send a written reply to the consumer stating the action it has taken or proposes to take for redressing the Grievance.
6.5 Notwithstanding Regulation 6.4, a Grievance maybe entertained before the expiry of the period specified therein, if the consumer satisfies the Forum that prima facie the Distribution Licensee has threatened or is likely to remove or disconnect the electricity connection, and has or is likely to contravene any of the provisions of the Act or any rules and regulations made there under or any order of the Commission, provided that, the Forum or Electricity Ombudsman, as the case may be, has jurisdiction on such matters.
Provided further that no such Grievance shall be entertained, before the expiry of the period specified in Regulation 6.4, unless the Forum records its reasons for the same.
6.6 The Forum shall not admit any Grievance unless it is filed within two (2) years from the date on which the cause of action has arisen.
12 Regulation No.6.7 reads thus:-
6.7 The Forum shall not entertain a Grievance:
(a) unless the consumer has complied with the procedure under Regulation 6.2 and has submitted his Grievance in the specified form, to the Forum;
(b) unless the consumer is aggrieved on account of his Grievance being not redressed by the IGR Cell within the period set out in these Regulations;
(c) unless the Forum is satisfied that the Grievance is not in respect of the same subject matter that has been settled by the Forum in any previous proceedings; and
(d) where a representation by the consumer, in respect of the same Grievance, is pending in any proceedings before any court, tribunal or arbitrator or any other authority, or a decree or award or a final order has already been passed by any such court, tribunal, arbitrator or authority.
13. It is thus clear that the Consumer cannot directly approach CGRF but as to first approach the Internal Grievance Redressal Cell (IGR Cell) to record and redress grievance in timely manner.
14. Regulation No.6.4 makes it clear that unless a shorter period has been provided in the Act, in the event that the consumer is not satisfied with the remedy provided by the IGR Cell to his Grievance within a period of two months from the date of intimation or wherever no remedy has been provided within such period, the consumer may submit a grievance to the forum. Thus, cause of action for submitting a Grievance to the CGRF arises when the IGR Cell does not redress the grievances.
15. A perusal of the impugned order shows that the CGRF and the Ombudsman have proceeded on an erroneous assumption that cause of action has arisen on 1st July, 2008 and, hence, the grievance filed before the Forum at Sangli on 14th October, 2010 is beyond two years. Thus reasoning clearly over looks the definition of the word "Grievance" as provided under Regulation 2 (c) of the 2006 Regulations. Though time spent by the Petitioner before the Consumer Court cannot be excluded, one cannot lose sight of the fact that the Petitioner approached the Internal Consumer Grievances Cell for the first time on 14th October, 2010 and that grievance was rejected by the Internal Consumer Grievances Cell on 27th October, 2010. This, according to me is the date on which the cause of action for filing a complaint or Grievance before the Forum as defined under Regulation 2(c) really arose. It is necessary to quote sub sections 5 and 6 of Section 42 of the Electricity Act, 2003 which reads thus:
Sub Section 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.
Sub Section 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 grievances to an authority to be known as Ombudsman to be appointed or designated by the State Government.
16. Internal Consumer Grievances Cell is not the Forum for Redressal of the Grievances of the Consumer as contemplated by Section 42(5) of the Act but the CGRF is the said Forum established under Sub Section 5 of Section 42. The Regulation 6.6 uses the word "Forum" which obviously means CGRF and not the IGR Cell of the Distribution Licensee.
17. In view of the aforesaid discussion, I hold that the Grievance made by the Petitioner was within limitation and could not have been dismissed on that ground.
18. In so far as the other aspect whether the activity of running a gas bottling plant is a Commercial activity or a manufacture activity, prima facie, I find that neither the CGRF nor the Ombudsman have considered the relevant provisions of the Explosives Act, 1884 and the Gas Cylinder Rules 2004. The Petitioner has elaborately explained before the Authority below that the process of the industry is not simple refilling LPG Cylinder. It is explained that the activity comprises of LPG suction, vapour distribution, degasification ,compression of LPG vapour, external and internal cleaning, hydro pressure test, refilling, sealing, quality control etc. Prima facie, the aforesaid activity will contribute a "Manufacturing Activity".
19. Section 4(h) of the Explosives Act, 1884 defines the word "manufacture" and the same reads thus:-
(h) "manufacture" in relation to an explosives includes the process of
(1) dividing the explosive into its component parts or otherwise breaking up or unmaking the explosives, or making fit for use any damaged explosive; and
(2) remaking, altering or repairing the explosive
20. In exercise of the power conferred by Sections 5 and 7 of the Explosives Act, 1884, the Central Government has framed the Gas Cylinder Rules, 2004. Rule 2(33) defines the word "manufacture of gas" which reads thus:"
(xxxiii) "manufacture of gas" means filling of a cylinder with any compressed gas and also includes transfer of compressed gas from one cylinder to any other cylinder.
21. The Petitioner had relied upon various Judgments before the Electricity Ombudsman, but unfortunately those Judgments have not been discussed and considered. The Petitioner had relied upon the Judgment in the case of Bharat Petroleum Corporation Ltd v/s. State of Gujarat & Others wherein Hindustan Petroleum Corporation Limited was also a party and the said Judgment is in respect of the Gas Bottling Plant. Special Civil Application No.6220 of 2001 was filed by the Hindustan Petroleum Corporation Limited. In the said Judgment, the question whether the activity of a Gas Bottling Plant is the manufacturing activity or not, was specifically raised. There the High Court had considered the provisions of The Indian Explosives Act, 1884 and the Gas Cylinder Rules 1981 (Rules which were in force prior to the making of Gas Cylinder Rules, 2004). The High Court has clearly held that the activity of a Gas Bottling Plant is a manufacturing activity. I respectfully agree with the aforesaid Judgment of the Gujarat High Court.
22. Unfortunately, the learned Ombudsman has not considered all these Judgments and has dismissed the representation of the Petitioner. Hence, on the second point, as to whether the Petitioner carries on a manufacturing activity when it is running its Gas Bottling Plant, the matter deserves to be remanded to the Electricity Ombudsman.
23. On remand only, the limited issue as to whether the Petitioner is conducting manufacturing activity or not, will have to be considered and gone into by the Electricity Ombudsman. I have already held that the grievances made by the Petitioner is within limitation.
24. Hence, I pass the following order:-
Rule is made partly absolute by setting aside the impugned Judgment and Order dated 17th August, 2011 passed by the Electricity Ombudsman in Representation No.82 of 2011 and the matter is remanded back to the Electricity Ombudsman for a de novo hearing of the issue as to whether the activity of Gas Bottling Plant is a manufacturing activity or not. In the light of the observation made in paragraphs 17 and 20, the Ombudsman shall apply his mind to the Provisions of the definition of the word "manufacture" under the Explosives Act, 1884 and the term "manufacture of Gas" under the Gas Cylinder Rules, 2004 as also the various Judgments of the different High Courts who have occasion to decide the similar issues. Rule made partly absolute with no order as to costs.
