JUDGMENT : Affidavit of service filed in Court be kept on record. By this writ petition the petitioner seeks to set aside the order dated 24.11.2015 passed by the Ombudsman in G.R. Case No. W–884 NG of 2014 and the power of Ombudsman for deciding compensation and cost, be declared contrary to the provisions of the Electricity Act being bad in law. Regulations 14.2 to 14.5 of the Notification No. 46 dated 31st May, 2010 is also under challenge. The prayers sought by the writ petitioner cannot be sustained for the reasons set out hereinbelow. Regulation 14 of Notification No. 46/WBERC dated Kolkata the 31st May 2010 deals with enforcement mechanism and Regulation 14.2 reads as follows :- “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. 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.” Notification No. 46 dated 31st May, 2010 was considered in F.M.A. 3291 of 2015 (West Bengal Electricity Regulation Commission – vs. – West Bengal State Electricity Distribution Company Limited & Ors.) and paragraph 36 is set out hereinbelow :- “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. 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.” The said finding was based on the notes of argument or submission submitted on behalf of the W.B.S.E.D.C.L. before the Appeal Court in FMA 3291 of 2015. The same argument was made before me too, it is only for this reason that the entire notes of submissions of the W.B.S.E.D.C.L. is set out hereinbelow :- Notes of submission on behalf of the respondent, West Bengal State Electricity Distribution Company Ltd. Submission : 3. The Act of 2003 has expressly specified the person who would decide the cases of failure to supply electricity under section 43 (3) of Act of 2003. The Act of 2003 has expressly provided that appropriate Commission (WBERC) shall appoint any of its members to be an adjudicating officer for holding an enquiry and if satisfied that there has been failure to comply with the provisions of section 43, to impose such penalty as he thinks fit in accordance with the provisions of such section. The factors to be taken into account by such adjudicating officer while adjudicating the quantum of penalty under section 43 of the Act of 2003 are given in the Act and guiding factors have been laid down under section 144 (a) and (b) of the Act of 2003. For deciding the case of alleged failure under section 43 of the Act of 2003, the member of WBERC, who is appointed as adjudicating officer, has been empowered to summon and enforce the attendance of any person acquainted with the facts to give evidence or produce documents under section 143 (2) of the Act of 2003. Punishments for non-compliance of order/direction are provided under section 146 of the Act. 4. An appeal would lie from such adjudicating order of the Adjudicating officer, who will be a Member of WBERC. Punishments for non-compliance of order/direction are provided under section 146 of the Act. 4. An appeal would lie from such adjudicating order of the Adjudicating officer, who will be a Member of WBERC. The appeal would lie under section 111 of the Act of 2003. 5. WBERC is a creature of statute, namely, the Act of 2003. When the statute has specified the person who is to adjudicate upon a case of failure to supply electricity in terms of section 43 (1) of the Act of 2003, there is no scope for appointing Ombudsman or anybody else to adjudicate upon such cases of alleged failure to provide electricity within time. WBERC is to appoint one of its members as Adjudicating Officer for deciding upon such disputes [see section 143(1)]. Nobody else can be appointed as adjudicating officer in this regard by WBERC. 6. WBERC has therefore no competence or power or authority to appoint ombudsman as the adjudicating officer by framing regulations or otherwise. 7. The Regulations framed by WBERC cannot override nor can it be inconsistent with the statute, namely, the Act of 2003. The Regulation No. 208 vide notification dated 31st May, 2010 in so far as it purports to appoint ombudsman as the adjudicating officer and also empowers payment of compensation are null and void being inconsistent with Statute. Regulations 14 and 15 are null and void. 8. The statute empowers imposition of penalty on the distribution licensee in case of failure to supply electricity within time. The statute does not empower or in any way provides for payment of compensation by the distribution licensee. The provision for compensation provided in the Regulations is void. Ceiling limit of penalty has been fixed under the statute. The quantum of penalty under section 43 will be fixed after giving due regard to factors mentioned under section 144(a) & (b) of the Act of 2003 examined. Guidelines have been laid down and no unfettered right or discretion has been to the adjudicating officer. 9. Difference between Ombudsman and Adjudicating Officer appointed under section 143 of the Act of 2003. (i) Adjudicating Officer will be a member of the WBERC, members of the State WBERC is to be appointed by the State Government through a selection committee, comprising of the persons mentioned in section 85 of the Act of 2003. 9. Difference between Ombudsman and Adjudicating Officer appointed under section 143 of the Act of 2003. (i) Adjudicating Officer will be a member of the WBERC, members of the State WBERC is to be appointed by the State Government through a selection committee, comprising of the persons mentioned in section 85 of the Act of 2003. The qualification of the member of the State Commission have also been specified under section 84 (1) of the Act of 2003, in short, he would be a person of adequate knowledge and have capacity to deal with the problems relating to engineering, finance, commerce, economy etc. and will be appointed from amongst the persons specified under sub-section (2) of section 84 of the Act of 2003. It will be a whole-time job. [see sec. 84(3)] Anybody can be appointed as ombudsman. No qualification for ombudsman has been prescribed by the statute. [see section 42(6)]. It is better that this quasi-judicial function is discharged by a qualified person. (ii) Appeal lie from an order of adjudicating officer appointed under section 143(2) to Appellate Tribunal under section 111 of the Act of 2003. No provision for appeal has been provided from the order of an ombudsman. (iii) No guiding factors have been provided for ombudsman whereas guidelines have been given to the adjudicating officer appointed under section 143(1). (iv) Civil Court’s jurisdiction has been excluded in respect of matters within the competence of the adjudicating officer (see sec. 145). No such express exclusion in case of ombudsman has been given. (v) No power has been given to ombudsman to summon witness to give evidence or to produce documents. Such power has been given to the member of the WBERC who is appointed as the adjudicating officer and discharge the quasijudicial functions. Procedure for determination of the claims under section 43 by adjudicating officer being a member of the WBERC is much more desirable and in the interest of justice and on view point of fairness. 10. Jurisdiction of ombudsman is fixed under section 42(6) of the Act of 2003. No procedure has been prescribed for ombudsman. Ombudsman can only settle the grievances of consumers [(see. Sec. 42(7)] “Consumer” is defined under section 2(15) of the Act of 2003 and does not include the applicant for new connection. The applicant for new connection is not a consumer under the said Act. No procedure has been prescribed for ombudsman. Ombudsman can only settle the grievances of consumers [(see. Sec. 42(7)] “Consumer” is defined under section 2(15) of the Act of 2003 and does not include the applicant for new connection. The applicant for new connection is not a consumer under the said Act. The applicant may not at all be given any power connection. The applicant becomes a consumer only upon getting electric connection. The purported power sought to be given by the purported Regulation is contrary to section 42(7) of the said Act and is void. 11. The Hon’ble Single Bench have held that there is no valid delegation of power to adjudicate the cases under section 43 by the ombudsman because of the following reasons:- (i) WBERC had no power to decide a case under section 43(3) of the Act of 2003. Section 143 of the Act of 2003 specified the officer to do it. (ii) No delegation is in fact made by WBERC. Regulation is not a general or special order. (iii) Payment of compensation is inconsistent with the Act. (iv) Regulation is not under section 97 of the Act. Delegation can be made by WBERC only under Section 97 and in compliance of the provisions thereof. 12. It is submitted that the reasons assigned by the Learned Single Judge are cogent and should be accepted. In particular paragraph 7 be addressed and for repetition is set out herein below:- “7. The Regulations framed by WBERC cannot override nor can it be inconsistent with the statute, namely, the Act of 2003. The Regulation No. 208 vide notification dated 31st May, 2010 in so far as it purports to appoint ombudsman as the adjudicating officer and also empowers payment of compensation are null and void being inconsistent with Statute. Regulations 14 and 15 are null and void.” On a perusal of the notes submitted in FMA 3291 of 2015 and the reliefs sought in the instant case is similar and in no way different. Therefore, prayers (c) and (d) cannot be allowed in view of AIR 2016 Cal 144 . The SLP filed from the said reported decision was also rejected. Adverting the facts of the case too the same cannot be considered. The facts of the instant case does not support the writ petitioner. Therefore, prayers (c) and (d) cannot be allowed in view of AIR 2016 Cal 144 . The SLP filed from the said reported decision was also rejected. Adverting the facts of the case too the same cannot be considered. The facts of the instant case does not support the writ petitioner. A connector was stolen on 4th July, 2014 and although a representation was made, ultimately on 16th September, 2014 a complaint was filed by the consumer before the R.G.R.O. which was received by him. An order was passed on 17th October, 2014 and just before the order of 17th October, 2014 was passed a G.D. Entry was filed on 16.10.2014 by W.B.S.E.D.C.L. It is unbelievable that the property of the Distribution Company was removed and it took it so long to file an FIR or G.D. Entry. Thereafter, the matter went before the Ombudsman and he considered the issue raised before him. He gave an opportunity to all parties and non-compliance with the principles of natural justice was not disputed. Therefore, the principles of natural justice has been complied with and the Ombudsman rightfully passed the order dated 24th November, 2015. Therefore, in view of the aforesaid, this application is not maintainable and is accordingly rejected. Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertakings.