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Allahabad High Court · body

2016 DIGILAW 1235 (ALL)

K. N. KAPOOR v. ELECTRICITY OMBUDSMAN

2016-04-06

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT By the Court.—The claim of the petitioner for refund of additional electricity surcharge which was levied and recovered during the period starting from 1992 to 2008 came to be dismissed by the Consumer Grievance Redressal Forum Kanpur. The said order of the Forum was subjected to a challenge before the first respondent, the Electricity Ombudsman, who rejected the appeal in light of the provisions of Section 3 of the Limitation Act, 1963 (Act). This petition lays challenge to the aforesaid two orders. 2. In exercise of the powers conferred by Sections 42 and 181 of the Electricity Act, 2003, the U.P. Electricity Regulatory Commission has framed the U.P.E.R.C (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2007 (Regulations). The Regulations under Clause 3 require every Distribution Licensee to constitute a Grievance Redressal Forum comprising of a judicial member, a technical member and an officer of the licensee. The Forum is an adjudicatory authority, which is enjoined to entertain and adjudicate upon complaints which may be instituted before it by a consumer. Clause 6.9 of the Regulations requires the Forum to adjudicate upon a complaint by means of a speaking order. In terms of Clause 8 any consumer aggrieved by an order passed by the Forum or in a situation where the Forum, in his opinion, has failed to redress the grievance, is entitled to prefer a representation to the Electricity Ombudsman. Such a representation is liable to be made by the consumer within 30 days of the order of the Forum. 3. The Ombudsman has proceeded to reject the claim of the petitioner noting that he had willingly deposited the additional surcharge during 1992 to 2008. It however accepted the submission advanced on behalf of the distribution licensee that the claim was barred by Section 3 of the Act. It is this view taken by the Ombudsman which is assailed before us. 4. Now it must be borne in mind that an issue of limitation primarily raises the question of the right of a person to institute proceedings or lodge a claim before a Court and seek relief in respect thereof. The Schedule to the Act sets out the “Periods of Limitation” prescribing the time within which the proceedings may be instituted or lodged. The Schedule to the Act sets out the “Periods of Limitation” prescribing the time within which the proceedings may be instituted or lodged. The ancillary issue which the Act addresses is the circumstances in which the period of limitation may be extended or the delay in institution be condoned. Both the above, however stand on an independent pedestal. The issue of extension of the period of limitation or the condonation of delay comes into play only upon it being found that the period of limitation prescribed has expired or run its course. The other fundamental aspect which will have to be borne in mind is that the Act itself applies to suits, appeals and applications instituted in Courts. The Act does not have a general or all pervading application to proceedings before statutory authorities or adjudicatory forums. 5. Now admittedly, neither the Forum nor the Electricity Ombudsman is a Court. The proceeding instituted before it is neither a suit nor an appeal or application as understood and envisaged under the Act. The Act, strictly speaking, therefore, has no application. The issue which then arises is whether in the absence of the Limitation Act applying stricto sensu, principles analogous thereto would apply to adjudicatory forums which are not Courts. This issue directly fell for consideration before a Division Bench of the Court in Pradeshik Cooperative Dairy Federation Ltd. v. Authority Under Minimum Wages Act and others, Special Appeal No. 898 of 2015, 2016(2) ADJ 229 . Dealing with the aforesaid issue the Division Bench held as follows: “The learned Single Judge seems to have proceeded on the basis that there was no provision under Rule 29(4) under which the period of limitation of one month that is prescribed could be extended or a delay could be condoned. Dealing with the aforesaid issue the Division Bench held as follows: “The learned Single Judge seems to have proceeded on the basis that there was no provision under Rule 29(4) under which the period of limitation of one month that is prescribed could be extended or a delay could be condoned. Section 29(2) of the Limitation Act, 1963 provides as follows: “(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” We are conscious of the position that the provisions of the Limitation Act, 1963 may not ipso facto apply because the Prescribed Authority under the Minimum Wages Act is not a “Court”. However, we are of the view that the principles underlying the various provisions contained in the limitation statute would clearly be applicable and in any view of the matter do not stand excluded either explicitly or by implication. The Supreme Court in J. Kumaradasan Nair v. Iric Sohan, enunciated the law on the subject in the following terms: “16. The provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief where a person has committed mistake. The provisions of Sections 5 to 14 of the Limitation Act alike should, thus, be applied in a broad-based manner. When sub-section (2) of Section 14 of the Limitation Act per se is not applicable, the same would not mean that the principles akin thereto would not be applied. Otherwise the provisions of Section 5 of the Limitation Act would apply. 17. There cannot furthermore be any doubt whatsoever that having regard to the definition of “suit” as contained in Section 2(1) of the Limitation Act, a revision application will not answer the said description. Otherwise the provisions of Section 5 of the Limitation Act would apply. 17. There cannot furthermore be any doubt whatsoever that having regard to the definition of “suit” as contained in Section 2(1) of the Limitation Act, a revision application will not answer the said description. But, although the provisions of Section 14 of the Limitation Act per se are not applicable, in our opinion, the principles thereof would be applicable for the purpose of condonation of delay in filing an appeal or revision application in terms of Section 5 thereof.” The principle laid down in J. Kumaradasan Nair (supra) was again reiterated by the Supreme Court while dealing with the issue of applicability of the provisions of the Limitation Act to an appeal preferred under Section 128 of the Customs Act in M.P. Steel Corporation v. Commissioner of Central Excise” 6. In light of the law laid down in Pradeshik Cooperative it is apparent that principles analogous to the beneficial provisions of the Act may be applied even to proceedings which may not have been instituted in or be pending before a Court. As the Division Bench held, in such a situation principles underlying Sections 5 and 14 and other like provisions of the Act may be invoked and applied to proceedings before a forum other than a Court. We may note that the Regulations do not prescribe a special period of limitation, which may tend to indicate a legislative intent of excluding the applicability of the principles underlying the provisions of the Act. 7. This however still leaves us to answer the basic issue of whether the claim of the petitioner was preferred within the period of limitation generally prescribed for recovery of moneys. The petitioner, in our opinion, would be entitled to succeed only if it could be established that the claim for refund was made within the time generally prescribed for money claims. The claim, put differently, would have to be in respect of a debt which is realizable in law. As noticed above, the claim was for a refund of additional surcharge paid by the petitioner during period 1992 to 2008. The claim for refund of the said amount was lodged for the first time on 30 September 2014. A claim for money must in accordance with the provisions of the Act be brought within three years. As noticed above, the claim was for a refund of additional surcharge paid by the petitioner during period 1992 to 2008. The claim for refund of the said amount was lodged for the first time on 30 September 2014. A claim for money must in accordance with the provisions of the Act be brought within three years. Upon the expiry of three years the right to sue for recovery is lost. Viewed in light of the above, it is apparent that the claim for refund instituted in 2014 was beyond the period of three years even when computed from 2008. Neither the Forum nor the Ombudsman has been conferred with the power to allow claims which may be otherwise time barred or which have otherwise become unrealizable. The authorities cannot be said to be conferred with powers to allow claims which may have otherwise and under the general statutory regime become legally unenforceable. 8. The Supreme Court in a recent judgment rendered in Andhra Pradesh Power Coordination Committee and others v. Lanco Kondapalli Power Limited and others, (2016) 3 SCC 468 , had an occasion to consider a similar issue. While reiterating its judgment in MP Steel, the Supreme Court held : 30. In such a situation it falls for consideration whether the principle of law enunciated in State of Kerala v. V.R. Kalliyanikutty (supra) and in New Delhi Municipal Committee v. Kalu Ram (supra) is attracted so as to bar entertainment of claims which are legally not recoverable in a suit or other legal proceeding on account of bar created by the Limitation Act. On behalf of respondents those judgments were explained by pointing out that in the first case the peculiar words in the statute - “amount due” and in the second case “arrears of rent payable” fell for interpretation in the context of powers of tribunal and on account of aforesaid particular words of the statute this Court held that the duty cast upon the authority to determine what is recoverable or payable implies a duty to determine such claims in accordance with law. In our considered view a statutory authority like the Commission is also required to determine or decide a claim or dispute either by itself or by referring it to arbitration only in accordance with law and thus Section 174 and 175 of the Electricity Act assume relevance. In our considered view a statutory authority like the Commission is also required to determine or decide a claim or dispute either by itself or by referring it to arbitration only in accordance with law and thus Section 174 and 175 of the Electricity Act assume relevance. Since no separate limitation has been prescribed for exercise of power under Section 86(1)f) nor this adjudicatory power of the Commission has been enlarged to entertain even the time barred claims, there is no conflict between the provisions of the Electricity Act and Limitation Act to attract the provisions of Section 174 of the Electricity Act. In such a situation on account of provisions in Section 175 of the Electricity Act or even otherwise the power of adjudication and determination or even the power of deciding whether a case requires reference to arbitration must be exercised in a fair manner and in accordance with law. In the absence of any provision in the Electricity Act creating a new right upon a claimant to claim even monies barred by law of limitation, or taking away a right of the other side to take a lawful defence of limitation, we are persuaded to hold that in the light of nature of judicial power conferred on the Commission, claims coming for adjudication before it cannot be entertained or allowed if it is found legally not recoverable in a regular suit or any other regular proceeding such as arbitration, on account of law of limitation. We have taken this view not only because it appears to be more just but also because unlike Labour laws and Industrial Disputes Act, the Electricity Act has no peculiar philosophy or inherent underlying reasons requiring adherence to a contrary view.” 9. The above extract from the judgment clearly establishes that in order for a claim to be entertained it must be found that it is in respect of a legally enforceable and recoverable debt. If the debt be of a nature which is unrecoverable in a regular suit or other like proceedings, no action can be taken in respect thereof by a forum. The claim for refund was not recoverable by way of a regular suit on account of the law of limitation. It was rightly, but for the reasons indicated by us above, turned down by the Forum and the Ombudsman. 10. The claim for refund was not recoverable by way of a regular suit on account of the law of limitation. It was rightly, but for the reasons indicated by us above, turned down by the Forum and the Ombudsman. 10. We accordingly find no ground warranting interference with the orders impugned in the instant writ petition. We find no merit in the claim of the petitioner for the reasons indicated hereinabove. The writ petition shall consequently stand dismissed.