Judgment : Sahidullah Munshi, J. Mr. Nayak submitted that he made an attempt to serve copies of this Writ Petition upon both respondent Nos. 1 and 2 under his forwarding letter dated 10th September, 2013 and in support thereof he filed an affidavit of service before this Court when the matter was taken up. From the said affidavit of service it appears that the respondent No.2, the Ombudsman, received a copy by hand on 25th September, 2013. So far the respondent No.1 Sri Gopal Chandra Maity is concerned, copy of the Writ Petition was sent to him under registered cover on 11th September, 2013 but no acknowledgment due card was received back by the petitioner’s learned advocate as has been submitted before this Court. At the time of hearing, the learned advocate for the petitioner undertook to file fresh affidavit of service either annexing a postal acknowledgment due card or annexing the track report from the website of the postal department. The learned advocate filed another affidavit-of-service on February 21, 2014 which shows that respondent No.2 has been served. Despite service no one appears for the respondents. The Writ Petition has been filed by the West Bengal State Electricity Distribution Company Limited challenging an Order passed on March 1, 2013 by the respondent No.2 in G.R. Case No. W-1087 AG of 2012. By the impugned Order dated March 1, 2013 respondent No.2, on the complaint of the respondent No.1, directed the petitioner to refund to the complainant the alleged excess realized amount of Rs.14,270/- (fourteen thousand two hundred seventy) together with an interest at the rate stated in Regulation 3.5.4 of the West Bengal Electricity Regulation Commission (Electricity Supply Code) Regulations, 2007, for the period from January 18, 2012 till the date of refund. Aggrieved by the said Order dated March 1, 2013 as aforesaid, the writ petitioner has filed the present petition praying for a writ in the nature of mandamus commanding the respondents, particularly the respondent No.2 not to give any effect and/or further effect to the Order dated March 1, 2013 passed by the respondent No.2 in G.R. Case No. W-1087 AG of 2012. In support of the said Writ Petition, the learned advocate submits as follows: i) That the respondent No.1 was a consumer of the petitioner Company and respondent No.2 is the statutory body constituted under Electricity Act, 2003. In support of the said Writ Petition, the learned advocate submits as follows: i) That the respondent No.1 was a consumer of the petitioner Company and respondent No.2 is the statutory body constituted under Electricity Act, 2003. ii) That the private respondent No.1/consumer applied for temporary SMP connection on December13, 2011 for short-term irrigation scheme. As required, the petitioner company provided for temporary connection for 105 days on 19th January, 2012 and such connection continued till 30th May, 2012 (that is, from 19th January, 2012 to 30th May, 2012), in excess of the said 105 days a bill was raised for a sum of Rs.43,032/- (forty three thousand thirty two) for payment by the consumer, but without paying such arrear bill the consumer moved the matter before RGRO (Regional Grievance Redressal Officer) on 1st August, 2012, inter alia, alleging that instead of 3-phase, meter connection was effected through a single phase meter and, accordingly, the consumer claimed refund of excess amount since connection was effected through single phase meter. iii) That the said RGRO (Regional Grievance Redressal Officer) passed an Order directing the company to solve the problem within a period of 15 days and since no refund could be obtained by the consumer, he filed a complaint on November 20, 2012 before the respondent No.2, Ombudsman, alleging that the company gave him single phase meter for his temporary SMP connection instead of 3-phase meter and raised bills. A reply was submitted on behalf of the company before the respondent No.2 stating the entire fact and also prayed for rejection of the complaint of the consumer but without adhering to the submissions of the petitioner company the Ombudsman passed the Order impugned on March 1, 2013. The writ petitioner submits that the Order impugned is beyond the scope of the contract. The contract was for supplying electricity for agricultural purpose for a period of 105 days and, accordingly, connection was given. It is submitted that a sum of Rs.43,032/- (forty three thousand thirty two) only was outstanding on account of consumption of electricity by the said consumer respondent No.1 and he was liable to pay the same. He is not entitled to refund any part of the outstanding bill. It is submitted that a sum of Rs.43,032/- (forty three thousand thirty two) only was outstanding on account of consumption of electricity by the said consumer respondent No.1 and he was liable to pay the same. He is not entitled to refund any part of the outstanding bill. It has been further submitted on behalf of the petitioner that the consumer did not come before the Ombudsman with clean hands; he consumed the electricity for the entire period and even after that he continued to consume till May 30, 2012. So long he consumed he never raised the question of grant of electricity through 3-phase or 1 phase but only when the bill was raised he sought to raise his grievance and tried to take advantage of the same in order to avoid payment of the outstanding bills. On the materials-on-record, the submissions made by the learned advocate for the petitioner as also the Order impugned, it appears that the respondent No.1 had no authority to consume any electricity beyond the time period which was for a fixed agreed term. In view of the said agreed terms, the respondent No.1 was responsible for making payment for the fixed consumption. Since it is the case made out by the petitioner that the consumer consumed electricity in excess of the scheduled consumption as pre-scheduled an agreement reached by the parties, there is no reason to hold the company having acted without jurisdiction in raising bill for extra consumption of electricity. It is also apparent from the record of this case that the petitioner never raised any objection earlier to the demand of the Distribution Company and never declined to obtain electricity on ground of the Company not supplying through 3-phase meter. The respondent No.1, although, made an application before the respondent No.2 on 20th November, 2012, but it does not show that he made any objection to the alleged act of the company in giving single phase meter instead of 3-phase single meter and he has not ventilated his grievance as to how by such act of the company he was affected and if so affected, why he kept quiet during the contractual period of 105 days. Rather, it appears that he approached the RGRO (Regional Grievance Redressal Officer) on August 1, 2012 only. Rather, it appears that he approached the RGRO (Regional Grievance Redressal Officer) on August 1, 2012 only. On the said application dated November 20, 2012 made by the respondent No.1 before the respondent No.2 the abovementioned case being G.R. Case No.W-1087 AG of 2012 was initiated by the respondent No.2. The petitioner herein also contested the matter before the Ombudsman, the respondent No.2 by filing a written objection dated February 28, 2013. The said objection was filed by the writ petitioner in the form of a reply/report through the Chief Engineer, CRM Cell and Principal Grievance Redressal Officer on behalf of West Bengal State Electricity Distribution Company Limited. It was pointed out in the said reply by the writ petitioner company that the respondent No.1, Shri Gopal Chandra Maity, applied for a temporary SMP connection on December 13, 2011 for short-term irrigation supply and demanded 5 HP load for 105 days. After inspection, a quotation for the required amount was raised and sent to the petitioner which the petitioner deposited on January 18, 2012 against service Connection No. STIS45 and, accordingly, service connection was effected on January 19, 2012 with one number single phase meter; the bills were raised as per meter reading consumption and the connection, however, continued up to June, 2012. Total outstanding dues was assessed at Rs.43,032/- (forty three thousand thirty two) only for the billing period of June ,2012. The respondent No.2, after having considered the said complaint of the respondent No.1 dated November 20, 2012 and the reply of the petitioner company dated February 28, 2013, passed a final Order on March 1, 2013 after hearing both the parties. The respondent No.2, while disposing of the said complaint of the respondent No.1, held that as per tariff orders of West Bengal Electricity Regulatory Commission in respect of W.B.S.E.D.C.L. 2007-08 onwards, the licensee was required to effect short-term irrigation supply to the complainant by installing prepaid Time Off Date (TOD) meter but the Opposite Party effected the supply in the present case with a single phase meter and realized and/or raised aforesaid energy charges arbitrarily. It has been held that the use of the short-term irrigation connection in the present case has become the fait accompli and there is no scope of applying tariff rate applicable against TOD meter readings. It has been held that the use of the short-term irrigation connection in the present case has become the fait accompli and there is no scope of applying tariff rate applicable against TOD meter readings. The respondent No.2 held further that there is no other way than to apply annual tariff rate for the respective year for unmetered permanent SMP connection for determination of the energy charges for the short-term irrigation supply in this case and it has been pointed out that as per tariff order for 2010-11 the unmetered annual tariff for permanent SMP connection was Rs.13,176/- (thirteen thousand one hundred seventy six) only for districts in areas other than North Bengal and since no separate tariff order was issued for the year 2011-12 by the West Bengal Electricity Regulatory Commission, the rate for 2010-11 was to be considered for the year 2011-12 too. The respondent No. 2 has further held that the complainant’s short-term irrigation supply was only for 105 days in 2011-12 and, accordingly, the petitioner company was entitled to realize prorated tariff for 105 days applying annual tariff of Rs.13,176/- (thirteen thousand one hundred seventy six) only which comes to Rs.3,790/- (three thousand seven hundred ninety) only and that the complainant was entitled to get refund of the excess amount of Rs.14,270/- (fourteen thousand two hundred seventy) only that is to say Rs.17,431+ Rs.629- Rs.3790/- realized from him with interest. Accordingly, the respondent No.2 directed the petitioner company to refund to the complainant/respondent No.1 the excess realized amount of Rs.14,270/- (fourteen thousand two hundred seventy) only together with interest at the rate stated in Regulation 3.5.4 of West Bengal Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2007 for the period starting from January 18, 2012 till the date of refund. After hearing the parties and after considering the materials disclosed in the Writ Petition and the documents annexed thereto it appears that firstly, the respondent No.1 has approached the authority only on 1st August, 2012 alleging that although, the Distribution Company was to supply through a 3-phase single meter it installed one single-phase meter which, according to the petitioner, was contrary to the terms earlier agreed. The customer/respondent No.1 was granted connection on January 19, 2012 which he was to continue only for a period of 105 days, but the said connection continued up to 30th May, 2012, that is, much after the fixed date as mentioned in the said agreement. As a result, the company raised the bill for the billing period of June 2012 and demanded the extra charges for consumption of extra electricity. The respondent No.1, as it appears from the Writ Petition that he approached the Ombudsman on 20th November, 2012 when the said application was made he had, by that time, consumed electricity beyond the prescribed period. In this case, admittedly, the connection was permitted for a period of 105 days which was supposed to expire on or about 6th May, 2012. Even his first complaint before the RGRO (Regional Grievance Redressal Officer) was made beyond the said prescribed period as the same was made on 1st August, 2012. Having regard to such conduct of the petitioner it appears to this Court that the petitioner has made the application before the Ombudsman to take advantage of the situation and has pleaded to find fault with the Distribution Company so as to evade the liability of payment for the period after 6th May, 2012. It is worth mentioning that the petitioner, on the one hand, approached the RGRO (Regional Grievance Redressal Officer) raising allegation against the issuing of bill and in reply to the said letter dated 1st August, 2012, the RGRO (Regional Grievance Redressal Officer) and Additional Engineer (COM) passed a reasoned Order being G.R. No.158 dated 1st October, 2012 wherein the respondent No.1 was directed to apply before the concerned Station Manager for Redressal of his grievance and the Station Manager was also directed to solve the complaint raised by the respondent No.1. It is not understood as to what led the respondent No.1 to avail the opportunity from the Station Manager and without taking recourse to the direction contained in the said reasoned Order dated 1st October, 2012, the respondent No.1 filed a complaint before the Ombudsman on 20th November, 2012. It is not understood as to what led the respondent No.1 to avail the opportunity from the Station Manager and without taking recourse to the direction contained in the said reasoned Order dated 1st October, 2012, the respondent No.1 filed a complaint before the Ombudsman on 20th November, 2012. The above noted facts have not been considered by the Ombudsman while passing an award against the writ petitioner and the respondent No.2 has illegally passed the Order directing refund of a sum of Rs.14,270/- (fourteen thousand two hundred seventy) only considering it to be in excess of the original payment although, it is undisputed that the respondent No.1 consumed electricity more than what he was permitted to consume. Having regard to the facts and circumstances of the case, I hold that the Order passed by the respondent No.2 is not sustainable in law and hence, the same is quashed and set aside. The writ petition is allowed. There will be no order as to costs.