Kerala High Court
The Assistant Engineer, Electrical … vs M/S.Pooja Milk Food Private Ltd on 31 July, 2025
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W.P.(C).No.25898 of 2015
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
WP(C) NO. 25898 OF 2015
PETITIONER:
THE ASSISTANT ENGINEER,
O/o THE ASSISTANT ENGINEER,
ELECTRICAL SECTION, K.S.E.B.,
PALARIVATTOM.
BY ADVS.SRI.P.SANTHALINGAM (SR.)
SRI.S.SHARAN SC K.S.E.BOARD
SRI.P.A.AHAMED, SC, KERALA STATE ELECTRICITY
BOARD LIMITED
SRI.G.KEERTHIVAS
SRI.RIJI RAJENDRAN
RESPONDENT:
M/S.POOJA MILK FOODS PRIVATE LTD.
PONOTH TEMPLE ROAD, KADAVANTHARA, KOCHI-20,
HAVING ITS REGISTERED OFFICE AT 33/283 D1,
AMBEDKAR ROAD, VENNALA P.O., KOCHI-28,
REPRESENTED BY ITS MANAGING DIRECTOR,
MOHAN JOSEPH VARGHESE, S/O.LATE T.O.VARGHESE,
PRASANTHI NAGAR, EDAPPALLY, KOCHI-24.
BY ADVS.SRI.C.K.KARUNAKARAN
SRI.K.V.KRISHNAKUMAR
SMT.LEKSHMI P. NAIR
SMT.SHIFNA MUHAMMED SHUKKUR
SMT.KRISHNA SURESH
SMT.MEKHA MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 31.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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[CR]
S.MANU, J.
--------------------------------------------
W.P.(C).No.25898 of 2015
---------------------------------------------
Dated this the 31st day of July, 2025
JUDGMENT
Assistant Engineer of Kerala State Electricity Board (KSEB)
has filed this writ petition challenging an order passed in favour
of the respondent by the Consumer Grievance Redressal Forum
of the Board.
2. The respondent is a LT consumer bearing consumer
No.14360 under Electrical Section, Palarivattom. Anti-Power
Theft Squad (APTS) conducted an inspection in the premises of
the respondent on 25.9.2008. It was detected that the industrial
unit was using more than 20% of the total connected load. A
short assessment bill for Rs.10,09,331/- was served on the
respondent on 27.9.2008. Tariff was changed to LT-VIIA and
fixed charges and consumption charges from 1.12.2007 was
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also included. The respondent company approached this Court
in W.P.(C)No.29352/2008 aggrieved by the short assessment.
This Court disposed of the writ petition on 7.10.2008 directing
the respondent to approach the Consumer Grievance Redressal
Forum (CGRF). Respondent was directed to pay a sum of
Rs.2,00,000/- and impugned bill was directed to be kept in
abeyance till the CGRF took a decision. Respondent complied
with the direction to pay the amount. CGRF by order dated
6.1.2009 upheld the assessment made by the Board. The
respondent filed appeal before the State Electricity Ombudsman.
While the appeal was pending respondent informed that
connected load was reduced. The Ombudsman disposed of the
appeal by changing the Tariff from LT-VIIA to LT-IV. Respondent
approached this Court again, aggrieved by the order of the
Ombudsman. This Court by judgment dated 2.2.2015 in W.P.
(C)No.27130/2009 directed the CGRF to reconsider the
complaint of the respondent in the light of the judgment in
Kerala State Electricity Board and Others v. M/s.KSE
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Limited, Dairy Division and another [2012 (1) KLJ 584:2012
SCC OnLine Ker 31551 ].
3. CGRF thereafter passed its order on 12.05.2015. The
Forum cancelled the short assessment bill dated 27.9.2008. The
Board was directed to re-assess the subsequent bills in
commercial tariff in LT-IV. Excess amounts collected and the
additional amounts remitted by the respondent including
Rs.2,00,000/- paid as directed by this Court were directed to be
refunded with interest at bank rate. The said order is under
challenge in the instant writ petition.
4. Contentions of the petitioner are as follows:-
The power to decide tariff is vested in the State
Regulatory Commission under the Electricity Act, 2003. At the
time of the inspection in the premises of the respondent, the
tariff order applicable then provided that if more than 20% of
the load was used for chilling operation, tariff required
reclassification as commercial from industrial. In the case of the
respondent 43.35kW out of 118.87kW was used for chilling
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5operation. Therefore, the re-classification and short assessment
was perfectly correct. The petitioner’s unit was not a production
industry. The 2007 Schedule of Tariff and Terms and Conditions
for Retail Supply by KSEB provided in Clause (e) under LT-IV
tariff that dairy farms and milk chilling plants, with or without
chilling/freezing/cold storage activity, shall be charged under the
industrial category, provided the chilling/freezing/cold storage
load is limited to 20% of the total connected load. If the said
limit was exceeded, LT-VII(A) tariff would be applicable. Clause
(e) remained applicable till it was deleted in 2010. The deletion
was made effective prospectively from 21.6.2010 and it has no
retrospective effect. This Court remitted the matter for
reconsideration by the CGRF in W.P.(C)No.27130/2019, in the
light of the judgment in Kerala State Electricity Board and
Others v. M/s.KSE Limited, Dairy Division and another.
However, according to the petitioner, the judgment established
that the Regulatory Commission is the competent authority to
fix the tariff which the Board complies with. Therefore, the
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conclusions of the CGRF in Ext.P5 order was incorrect and the
CGRF ought to have upheld the short assessment bill.
5. Respondent in its counter affidavit contended as
follows:-
The writ petition is not maintainable as the CGRF is a
body having majority of the members who are serving officers
of the Board. It is a first level domestic grievance redressal
mechanism not performing any public duty. Therefore, the
Board cannot maintain a writ petition challenging the order of
the CGRF. Contention of the Board that note ‘(e)’ appended to
LT-IV in the notification dated 26.11.2007 was applicable to the
respondent is incorrect. It was applicable only in the case of
dairy farms or chilling plants. The respondent company is not a
dairy farm nor a chilling plant. Its activity is of receiving raw
chilled milk, pasteurizing/processing, packing, storing and
distribution of milk and milk products. Its activity is completely
different from that of dairy farms and milk chilling plants.
Deletion of clause (e) appended with LT-IV and the changes
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7made effective from 21.6.2010, as clarified by circular issued is
to be noted. However the respondent does not come under the
categories of dairy farms and chilling plants and even the
unamended provision had no application in its case. In
M/s.Pooja Milk Foods Pvt. Ltd. v. State of Kerala [2003
KHC 1237:2003 SCC OnLine Ker 247] this Court had explained
that pasteurization only preserves milk and does not amount to
manufacturing activity. Process undertaken by the respondent
was explained in the said judgment. Though cooling of milk is
an integral activity of pasteurization process, the cooling facility
of the respondent cannot be compared with a chilling plant. The
CGRF arrived at the conclusions on the basis of judgment of this
Court binding on the petitioner. There is proper consideration of
the matter by the CGRF and hence no reasons are available for
the interference by this Court.
6. The Board filed reply affidavit. It denied the
contentions of the respondent and reiterated the contentions in
the writ petition. Heard Sri.Riji Rajendran, the learned Standing
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Counsel for the KSEB and Sri.C.K.Karunakaran, learned counsel
appearing for the respondent.
7. The learned Standing Counsel contended that the
short assessment made by the Board was proper and correct. It
was argued that the CGRF erred in setting aside the short
assessment bill and in directing a refund to the respondent.
Although the CGRF is a quasi-judicial body, its findings are
subject to judicial review. There is no bar on the distribution
licensees challenging the orders of the CGRF. The learned
counsel relied on the judgment of the Gujarat High Court in
Executive Engineer(O and M) v. ShantiKrupa Estate Pvt.
Ltd. [2015 SCC OnLine Gujarat 275] in support of his
contention that the licensee is entitled to maintain the writ
petition. The CGRF applied the 2010 Tariff Amendment
retrospectively to set aside the valid assessment under the 2007
tariff order. The tariff applicable at the time of the inspection
required re-classification as commercial if more than 20% of the
load was used for chilling. As the respondent was using more
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than 20% of the load for chilling, the classification under LT-VIIA
and short assessment was perfectly in tune with the tariff in
vogue at the time of inspection. Respondent’s claim that they
performed only pasteurization is incorrect and chilling units were
also there at the time of inspection. Hence, the order passed by
the CGRF is illegal and perverse. Approach of the Forum was
patently erroneous. He denied all contentions of the respondent
and submitted that the order of the CGRF, against which no
other remedy was available to the petitioner Board, has been
rightly challenged by approaching this Court invoking the writ
jurisdiction. The impugned order being perverse and illegal, is
liable to be set aside by this Court.
8. Sri.C.K.Karunakaran, the learned counsel appearing
for the respondent submitted that the petitioner Board is not
entitled to maintain a writ petition against an order passed by
the CGRF. The Forum is an internal grievance redressal
mechanism. Its members are serving officials of the KSEB. No
appeal is provided under the Regulations enabling the licensee
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to challenge the orders passed by the CGRF, for the reason that
the Forum is an internal mechanism maintained by the licensee
to deal with the grievances of the consumers. He relied on
judgment of the Orissa High Court in Executive Engineer,
Electrical (TPNODL), Balasore Electrical Division-II v. Raj
Complex [2023 SCC OnLine Ori 2312] in support of the
contention that the practice of licensees challenging the orders
of CGRF and Ombudsman is improper and writ petitions at the
instance of the licensees are not maintainable. The learned
counsel made reference to the report of the Standing
Committee to which Electricity Bill, 2001 was referred to. The
Committee recommended that there was a need to formulate
some kind of Ombudsman Scheme to safe-guard the interest of
the consumers. The learned counsel also submitted that
concerns of the Committee was recognized when the Bill was
presented in Lok Sabha during 2003 as discernible from the
speech of the Hon’ble Minister. The learned counsel submitted
that the CGRF manned by the employees of the licensee, funded
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by the licensee and controlled by the licensee has no
independent existence. The learned counsel also pointed out
that other than the State Electricity Board there are several
other licensees also who do not satisfy the criteria for being
treated as state under Article 12. Such licensees also maintain
CGRF. If the petitioner Board is permitted to challenge the
decisions of CGRF, other licensees who do not satisfy the test of
being a state may also resort to writ jurisdiction to challenge the
decisions of CGRFs maintained by them and the same will be an
absurd situation. He therefore submitted that the writ petition is
liable to be rejected as not maintainable without entering into
merits. The learned counsel, apart from challenging the
maintainability for the above said reasons, further contended
that the principles of constructive res judicata would apply in
the instant case as the issue raised was actually concluded with
the judgment of this Court in W.P.(C)No.27130/2009 wherein
the Standing Counsel for the Board conceded that the issue was
covered by the judgment in Kerala State Electricity Board
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and Others v. M/s.KSE Limited, Dairy Division and
another [2012 (1) KLJ 584:2012 SCC OnLine Ker 31551]. This
Court therefore directed the CGRF to decide the complaint of the
respondent in the light of the principle laid down in the said
judgment. He hence contended that it is not open to the
licensee to make an attempt to wriggle out by contending in the
instant writ petition that the judgment of the Division Bench in
Kerala State Electricity Board and Others v. M/s.KSE
Limited, Dairy Division and another was not helpful to the
respondent. He relied on the judgments of the Hon’ble Supreme
Court in Hope Plantations Ltd. v. Taluk Land Board,
Peermade and others [(1999) 5 SCC 590] and Securities
and Exchange Board of India v. Ram Kishori Gupta and
others [2025 SCC OnLine SC 748]. He hence submitted that
the writ petition is misconceived.
9. Apart from fervidly arguing for rejecting the writ
petition as not maintainable learned counsel
Sri.C.K.Karunakaran further contended that the Board issued
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the short assessment bill on the basis of note (e) appended to
LT-IV (industrial) in the notification issued in 2007. The learned
counsel contended that the said note was applicable only in the
case of dairy farms and milk chilling plants. A dairy farm is
engaged in the rearing of cattle, whereas a milk chilling plant is
a facility where the collected milk is chilled and stored. The
note was applicable only in the case of those activities.
Respondent is engaged in processing of milk. It cannot be
therefore considered as falling under note (e). The learned
counsel submitted that by its decision on 21.6.2010 in the
matter of tariff applicable to milk processing unit, the Electricity
Regulatory Commission analysed the activity of chilling plants
and processing units. The Commission found that once it is
established that a unit is undertaking a manufacturing process
and is assigned with industrial tariff, it is illogical to assign it
commercial tariff if chilling/freezing/cold storage load exceeds
20% of the total connected load as there is no change in the
process involved even if the load is changed. The Commission
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therefore directed to delete note (e) to LT-IV (industrial) tariff.
He hence submitted that the contention of the Board lacks logic.
The learned counsel made reference to judgment of a Division
Bench in M/s.Pooja Milk Foods Pvt. Ltd. v. State of Kerala
[2003 KHC 1237:2003 SCC OnLine Ker 247] in which this Court
explained that pasteurization only preserves milk and does not
amount to manufacturing activity so as to convert it into a
commodity commercially different from fresh milk. Though the
said case was decided in the context of levy of sales tax on
pasteurized milk, the process undertaken by the respondent is
explained in the judgment. Cooling of milk carried out by the
respondent is an activity integral to pasteurization process and
that by itself will not make the unit a chilling plant.
Sri.C.K.Karunakaran further contended on the basis of a
decision dated 1.9.2008 of the Kerala State Electricity
Regulatory Commission that the Commission had clarified that
the limit of 20% of freezing load is applicable only to dairy
farms and milk chilling units and need not be made applicable
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universally to consumers other than milk chilling plants and
dairy farms. He, with reference to the judgment in KSE Ltd.’s
case (supra) pointed out that this Court categorically held in the
said judgment with respect to a similar industry that production
and stocking of milk, ice-cream and other products will squarely
fall under industrial tariff and only sales outlet will go under
commercial tariff. The Court was considering the case of
another similar industrial unit engaged in pasteurization of the
fresh milk, packing and storing of the same for distribution
which was having a separate ice-cream manufacturing unit also.
He pointed out that the Board in the previous litigation
conceded that the said judgment would apply to the case of the
respondent too. The CGRF followed the said judgment in the
impugned order and hence the CGRF cannot be held to have
committed any error.
10. Since the learned counsel for the respondent
vehemently contended that the writ petition is not maintainable,
it is essential to decide the said issue first. Section 42(5) and
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42(6) of the Electricity Act reads as under:-
“42. Duties of distribution licensee and open
access: …….
(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.
(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
grievance to an authority to be known as
Ombudsman to be appointed or designated by the
State Commission.”
Therefore, it is the statutory obligation of every licensee to
establish a forum for redressal of grievances of consumers. It is
the responsibility of the State Commission to specify the
guidelines in this regard. Any consumer aggrieved by the non-
redressal of of his grievances by the Forum may make a
representation to the Ombudsman to be appointed or
designated by the State Regulatory Commission. The Kerala
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State Electricity Regulatory Commission framed ‘The Kerala
State Electricity Regulatory Commission (Consumer Grievance
Redressal Forum and Electricity Ombudsman) Regulations,
2005’, (hereafter mentioned as the Regulations for brevity).
Composition of the CGRF is provided under Regulation 3. The
Forum shall consist of 3 members including the Chairperson.
The Chairperson and one member are to be appointed by the
licensee from among its employees. The remaining member
shall be nominated by the Commission. Jurisdiction of the
Forum is provided under Regulation 6. It shall have jurisdiction
to entertain the complaints within the area of the distribution
licensee. Regulation 8 speaks about the obligations of the
licensees. It shows that maintaining the Forum, meeting its
expenses and ensuring effective functioning is the sole
responsibility of the licensee. Complaint is defined under
Regulation 2(f). It means any grievance made by a complainant
in writing with respect to matters specified thereunder.
‘Complainant’ is defined under Regulation 2(e). The said
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provision reads as under:-
“(e) ‘Complainant’ means-
(i) any consumer of electricity supplied by the
licensee including applicants for new
connections;
(ii) a voluntary electricity consumer
association/forum or other body corporate or
group of electricity consumers;
(iii) the Central Government or State
Government - who or which makes the
complaint;
(iv) in case of death of a consumer, his legal
heirs or representatives.”
11. Hence, the CGRF is contemplated as a Forum for
addressing the grievances of the ‘complainants’ as defined
under Regulation 2(e). Regulation 11 deals with proceedings of
the Forum and 12 deals with findings of the Forum. Regulation
12 reads as under:-
“12. Findings of the Forum.-(1) On
completion of the proceedings, if the Forum is
satisfied that any of the allegations contained
in the complaint is true, it shall issue an order
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19to the licensee directing it:
(a) to redress the grievance of the
complainant; and
(b) to pay such amount as may be awarded
as costs to the consumer.
(2) A certified copy of every order rendered by
the Forum shall be delivered to the parties.
(3) Any Complainant aggrieved by the order
made by the Forum may make a
representation against such order to the
‘Ombudsman’, within a period of thirty days
from the date of receipt of the order.”
12. Regulation 12(3), in tune with S.42(6) of the
Electricity Act provides a further remedy of making a
representation against the order of the Forum to the
Ombudsman within a period of 30 days from the date of receipt
of the order. The said remedy is available only to ‘any
complainant’. Hence, the remedy of approaching the
Ombudsman is not available to the distribution licensee.
Regulation 12A was inserted by the Fifth Amendment
Regulations, 2011. The said provision reads as under:-
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20“12A. Review :- (1) The Forum may, either on its own
motion or an application of any person aggrieved by an
order, review its order on the following grounds,
namely:-
(i) on the Discovery of a new and important matter of
evidence which, after the exercise of due diligence, was
not with his knowledge or could not be produced by
him.
(ii) mistake or error apparent on the face of the record.
(2) An application under clause (1) shall be filed within
a period of fifteen days from the date of receipt of the
order:
Provided that the Forum may entertain an application
after the expiry of the said period of fifteen days, if it is
satisfied that the applicant had sufficient cause for not
preferring the review within such period.
(3) If on a preliminary examination of the application, if
the Forum found that there is no sufficient ground for
review, it shall reject the application after affording an
opportunity of being heard to the applicant.
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(4) In cases where the review petition is admitted, the
Forum shall dispose of it within a period of 30 days from
the date of admission after affording sufficient
opportunity to the parties to the application.”
13. It is to be noted that the Forum has been vested with
jurisdiction to review its orders either on its own motion or an
application of any person aggrieved by an order. Hence, the
review is manifestly contemplated as a remedy available to any
person aggrieved which may include the distribution licensee
also. However, the scope of review is limited as it can be only on
the grounds mentioned under Regulation 12A(1)(i).
14. Regulation 27(5) reads as under:-
“27. Award :-……..
(5) The distribution licensee or concerned
official named in the representation of the
complainant/award of the Ombudsman shall submit
a report on compliance of the order award to the
Ombudsman within three months or within the
time specified in the order/award whichever is
earlier.
Provided that the Ombudsman shall have the
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power to extend the period of 3 months or the time
specified as above on being satisfied that such
extension of time is reasonable and in the interest
of justice.
Non-compliance of awards/orders/directions
of the Consumer Grievance Redressal Forum and
Ombudsman by Distribution Licensee shall be
considered as non-compliance of the provisions of
Electricity Act, 2003 and the regulations made
there under and Kerala State Electricity Regulatory
Commission shall proceed accordingly.”
Hence, non-compliance of awards/orders/directions of CGRF and
Ombudsman by the licensee shall be considered as non-
compliance of the provisions of the Electricity Act and the
Regulations made thereunder. Thus, the decisions of the CGRF
and Ombudsman are made binding on the distribution licensee.
15. The petitioner Board contended that the CGRF is a
quasi-judicial body and its decisions can be subjected to judicial
review. The Board is a corporate entity and hence if it is
aggrieved by a decision of the CGRF for which no remedy is
provided under the Regulation, it cannot be precluded from
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invoking the writ remedy. As evident from the analysis of the
provisions of the Regulations remedy of approaching the
Ombudsman against a decision taken by the CGRF is available
only to a ‘complainant’ as defined under the Regulations.
S.42(6) of the Electricity Act provides the remedy of
approaching the Ombudsman to ‘any consumer’. The said
remedy is not available to the licensee. Though the licensee also
can seek review under Regulation 12A, scope of review is too
narrow. Hence, the contention of the Board may prima facie
appear to be correct.
16. Provisions of Chapter II of the Regulations deals with
CGRF and those of Chapter III deals with Ombudsman.
Comparative reading of the provisions of these chapters brings
to light sharp contrasts in the nature of these two grievance
redressal mechanisms and strengthens the opinion indicated
above regarding the nature of the CGRF. Regulation 3 in
Chapter II deals with establishment and composition of the
CGRF. Regulation 3(3)(a) lays down broad criteria for appointing
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the Chairperson and one member from among the employees of
the licensee. No specific technical qualifications are prescribed.
No basic educational qualification is also prescribed. Regulation
3(3)(b) provides that the member nominated by the
Commission shall be from among persons having a degree in
any discipline with proven ability, integrity, standing and
familiarity with consumer affairs. The said person shall not be
an employee or former employee of any licensee. Regulation 5
provides that all costs and expenses of the Forum including
remuneration and fees to the members, salaries and allowances
of members of the staff, establishment charges and office
expenses shall be borne by the licensee. Further obligations of
the licensee regarding maintaining the Forum are provided
under Regulation 8. Regulation 13 deals with monitoring by the
Forum. Under Regulation 13(2) the Forum shall furnish a
quarterly report on the number of complaints received,
redressed and pending to the licensee within one month at the
end of the quarter. It is pertinent to note that specific
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25
qualifications are not prescribed for choosing the Chairman and
one member and therefore wide discretion is available to the
licensee to nominate them from among its employees. Those
nominated are already on the payrolls of the licensee. Most
relevant aspect to note is that the Forum, under Regulation
13(2) is bound to furnish quarterly report to the licensee
regarding its functioning. Hence, under the scheme of the
Regulations, the CGRF is a forum integrated with the licensee.
The responsibility of maintaining the Forum, including meeting
all expenses, is wholly of the licensee.
17. Among the grievance redressal mechanisms under the
Act and relevant Regulation, CGRF is the primary forum and
constituting and maintaining the Forum is the obligation of the
licensee. The only external interference is nomination of one of
the members by the Regulatory Commission. Nomination of a
member by the Commission is obviously to ensure fairness to
some extent, as the other two members, including the Chairman
are employees of the licensee. Thus viewed, the CGRF is
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26
virtually an internal mechanism of the licensee to address the
complaints at the primary level. If the intention while framing
the Regulation and establishing the CGRF and Ombudsman was
to maintain CGRF also as an independent adjudicatory forum,
the licensee would not have been empowered to nominate the
Chairman and a member.
18. Regulation 14 in Chapter III deals with establishment
of the office of Ombudsman. Appointing authority of the
Electricity Ombudsman is the Electricity Regulatory Commission.
The licensees have no role in the appointment. Qualification of
the Ombudsman is provided under Regulation 15(1). The
Ombudsman shall be an Electrical Engineer. The person
appointed as Electricity Ombudsman shall not hold any other
office during the tenure of his appointment. A detailed selection
process is provided under Regulation 15A for selection of the
Ombudsman. Regulation 17(4) provides that the pay and
allowances of the Ombudsman shall be met from the Kerala
State Electricity Regulation Fund constituted under Section 103
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of the Electricity Act. Regulation 20 deals with removal of
Ombudsman on account of conditions mentioned thereunder.
Procedure for functioning of the Ombudsman is delineated under
Regulations 21 to 27. Thus the Ombudsman has been evidently
envisaged as a truly independent adjudicatory mechanism.
19. The above analysis shows the substantial difference
between the CGRF and the Ombudsman. Establishment of the
Forum, appointment of majority of the members including the
Chairman and maintenance of the Forum is the sole
responsibility of the licensee under S. 42(5) of the Electricity Act
read with the provisions of the Regulations. Selection of the
Chairman and a member is left to the choice of the licensee and
no procedure for selection and definite qualifications for the
Chairman and members are prescribed under the Regulations.
Forum is bound to submit periodical reports to the licensee.
Undoubtedly, with its composition and nature, the CGRF cannot
be considered as an independent adjudicatory forum like the
Electricity Ombudsman. It is not a distinct and autonomous
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grievance redressal mechanism. Merely for the reason that it
has also been established as mandated under S.42 of the
Electricity Act and broad guidelines in the form of Regulations to
ensure its proper functioning have been framed by the
Commission, it cannot be compared with the Ombudsman. The
latter has all trappings of an independent adjudicatory forum
and it stands on a higher pedestal. To the contrary, CGRF is only
a mechanism maintained by the licensee. As per Regulation
27(5), orders of the CGRF are binding on the licensee like orders
of the Ombudsman. But that is not a reason to infer that both
are placed on the same pedestal. Obvious objective is to ensure
that the grievance resolution by the CGRF shall also be
efficacious and meaningful as far as the consumers are
concerned. Hence it can be concluded that under the Kerala
State Electricity Regulatory Commission (Consumer Grievance
Redressal Forum and Electricity Ombudsman) Regulations, the
CGRF has been envisioned as an institutional grievance
redressal mechanism maintained by the licensee. Mandate of
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W.P.(C).No.25898 of 2015
29
S.42(5) of the Electricity Act also appears to be the same.
20. Under S.42(6) of the Act, right to approach the
Ombudsman, if not satisfied with the decision of CGRF, is
provided to consumers. The Regulatory Commission, while
framing the Regulation, provided the remedy of approaching the
Ombudsman only to the ‘complainants’ as defined under the
Regulations. The said opportunity was not made available to the
licensee. Therefore, under the Act and the Regulations, no
provision is incorporated to enable the licensee to challenge the
decisions of the CGRF. It cannot be considered as a mere
omission. The said feature of the Act and Regulations shows
that the true intention and purpose for providing the grievance
redressal mechanism of CGRF and Ombudsman is for the
purpose of addressing the grievances of the complainants
against the licensee.
21. As noticed above, provisions of the Act and
Regulation do not contemplate any challenge by the licensee
against a decision or order of the CGRF. The Rule making
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W.P.(C).No.25898 of 2015
30
authority however laid down that the orders and decisions of
the CGRF shall be binding on the licensee, as evident from
Regulation 27(5). It is true that when statutory remedies are
not available writ petitions can be entertained. However, the
said general proposition cannot have any application in a case
like this wherein the licensee attempts to challenge an order of
an institutional grievance redressal forum maintained by it. The
rule making authority did not extend the remedy of approaching
the Ombudsman to the licensee manifestly for the reason that
under the scheme of the Regulations the CGRF is an institutional
mechanism maintained by the licensee. Therefore filing of writ
petitions by the licensee and its officers against the decisions of
the CGRF will be in violation of the object and scheme of the
Regulations. It will be irrational to permit the licensee to invoke
writ jurisdiction and challenge decisions of its own institutional
forum. Moreover, permitting such litigation will be against the
very objective of providing grievance redressal mechanisms
under the Act, as the purpose is to ensure speedy redressal of
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W.P.(C).No.25898 of 2015
31
grievances of consumers and to avoid unnecessary litigation.
22. The learned Standing Counsel had placed heavy
reliance on a judgment of the Gujarat High Court in
Shantikrupa Estate‘s case (supra). A learned Single Judge of
the Gujarat High Court held that the CGRF is a statutory forum
and when its decisions have legal and financial implications, the
licensee cannot be rendered remediless. A similar contention
regarding maintainability was rejected by the Gujarat High
Court. However, no detailed analysis of the scheme of the
relevant Regulation was undertaken by the Gujarat High Court
in the said judgment. It is also not discernible as to whether the
regulatory regime involved in the said case is comparable to
that under the Kerala State Electricity Regulatory Commission
(Consumer Grievance Redressal Forum and Electricity
Ombudsman) Regulations, 2005. I therefore respectfully refuse
to follow the conclusion of the Gujarat High Court in the above
judgment regarding maintainability of writ petition filed by
licensee against the decision of the CGRF. The learned counsel
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W.P.(C).No.25898 of 2015
32
also placed reliance on the judgment in Village Panchayat,
Calangute v. Additional Director of Panchayat II [2012 (7)
SCC 550]. However, the said judgment cannot be of any help to
the petitioner. In the said judgment the Hon’ble Supreme Court
held that a Village Panchayat had locus to file a writ petition for
setting aside an order passed by the designated officer
exercising the power of an appellate authority qua the
action/decision/resolution of Village Panchayat. In the case at
hand, the petitioner licensee is however challenging a decision
of the CGRF which is an institutional grievance redressal forum
maintained by the licensee. Position in the case at hand is
therefore altogether different. CGRF is not an appellate
authority, but an appendage of the licensee entrusted with the
task of addressing grievances of the complainants as defined
under the Regulations.
23. In Kisan Cold Storage and Ice Factory v.
Paschimanchal Vidyut Vitran Nigam Limited [2019 SCC On
Line All 1810] a Full Bench of the Allahabad High Court declared
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W.P.(C).No.25898 of 2015
33
a provision of the Uttar Pradesh Electricity Regulatory
Commission (Consumer Grievance Redressal Forum & Electricity
Ombudsman) Regulations, 2007 which provided remedy of
approaching Electricity Ombudsman against the decision of the
CGRF to the distribution licensee also. The Court held that the
same was in conflict with the provisions of Section 42 of the
Electricity Act which provides remedies of approaching the CGRF
and the Ombudsman only to the consumer. In the said case a
contention was raised that the CGRF under Section 42(5) was
an independent Forum. The said contention was disapproved by
the Allahabad High Court after referring to various provisions of
the Uttar Pradesh Electricity Regulatory Commission (Consumer
Grievance Redressal Forum & Electricity Ombudsman)
Regulations, 2007 though no finding was given. Paragraph 53 of
the judgment of the Allahabad High Court reads as under:-
“53. The argument of Sri.Mathur that the State
Commission has created an independent Forum
under Section 42(5) of the Act, 2003, which is
neither an extension of the Distribution Licensee
nor under its control and it being an independent
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W.P.(C).No.25898 of 2015
34Forum, the Distribution Licensee must be given an
opportunity to approach the Electricity Ombudsman
is also patently misconceived inasmuch as, as
already discussed above, the Act 2003 only gives a
remedy to a consumer to approach the Electricity
Ombudsman. The said remedy provided to the
Consumer being a creation of statute, as such, the
Distribution Licensee cannot be expected to have a
remedy in this regard of approaching the Electricity
Ombudsman. So far as the independence of the
Forum is concerned, though Regulation 3.5 of the
Regulations, 2007 indicates that the Forum shall
function independent of the Licensee yet
Regulation 3.3 of the Regulations, 2007 itself
provides that the Distribution Licensee shall invite
applications for appointment on the post of a
Technical Member of the Forum. The Officer of the
Licensee is also to be a Member of the Forum in
terms of Regulation 3.2 of the Regulations, 2007.
As such, once the power of selection and
appointment is given to the Distribution Licensee,
the funds and expenditure are also in the hands of
the Distribution Licensee and the power of removal
of members of the Forum in practice is also with
the Distribution Licensee. Consequently, the kind of
independence expected from such Forum cannot be
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35said to be complete independence of the Forum.
This would also be apparent from perusal of
Regulation 3.12 of the Regulations, 2007, which
categorically provides that the salary, allowances,
secretarial support, office accommodation and
infrastructure facilities for establishing the office
and other facilities required for efficient functioning
of the Forum shall be provided by the concerned
Distribution Licensee. The power of removal of any
Member has also been given to the Distribution
Licensee which, suffice to state, makes it apparent
that the independence of the Forum is illusory.
However, as we have not been called upon to give
any finding regarding independence of the Forum,
we refrain from doing so.”
24. In the judgment in Executive Engineer, Electrical
(TPNODL), Balasore Electrical Division-II v. Raj Complex
and others [2023 SCC On Line Ori 2312], the Orissa High
Court came down heavily on the distribution licensee for
challenging decisions of Grievance Redressal Forum and
Ombudsman.
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W.P.(C).No.25898 of 2015
36
25. It is reiterated that under the scheme of the Kerala
State Electricity Regulatory Commission (Consumer Grievance
Redressal Forum and Electricity Ombudsman) Regulations,
2005, the CGRF is an institutional grievance redressal forum
maintained by the licensee, but not having independent
existence like the Ombudsman. The licensee, as provided under
Regulation 27(5) shall be bound by the awards/orders/directions
of the CGRF. It is not open to the licensee to challenge the
awards/orders/directions of the CGRF by invoking writ remedies.
In view of the foregoing discussion, the inevitable
conclusion is that the writ petition is not maintainable. It is
accordingly dismissed. All other contentions are kept open .
Sd/-
S.MANU
JUDGE
skj
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W.P.(C).No.25898 of 2015
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APPENDIX OF WP(C) 25898/2015
PETITIONER’S EXHIBITS :-
Ext.P1 A COPY OF THE SITE MAHAZAR DTD.25.9.2008
PREPARED BY THE SUB ENGINEER, KSEB,
ELECTRICAL SECTION, PALARIVATTOM.
Ext.P2(a) A COPY OF THE NOTICE DTD.27.9.2008 ISSUED BY
THE PETITIONER TO THE RESPONDENT.
Ext.P2(b) A COPY OF THE SHORT ASSESSMENT BILL
DTD.27.9.2008 ISSUED BY THE PETITIONER TO THE
RESPONDENT.
Ext.P3 A COPY OF THE CIRCULAR
NO.KSEB/TRAC/COMP(R)/23/05 DTD.26.7.2010 OF
THE KSE BOARD.
Ext.P4 A COPY OF THE JUDGMENT DTD.2.2.2015 IN WPC
NO.27130/2009 OF THE HIGH COURT OF KERALA.
Ext.P5 A COPY OF THE ORDER DTD.12.5.2015 OF THE
CONSUMER GRIEVANCE REDRESSAL FORUM (CGRF),
ERNAKULAM.