Maharashtra State Electricity Distribution Company Limited vs M/S RSR Mohota Spinning and Weaving Mills Limited

PETITIONER : Maharashtra State Electricity Distribution (Ori.Respondent) Company Limited - (MSEDCL) - Through its

Superintending Engineer, O & M Circle,

"VIDYUT BHAVAN", Boregaon Naka,

Wardha -1.

...VERSUS...

RESPONDENTS : 1. M/s. RSR Mohota Spinning & Weaving (Ori.Complainant) Mills Limited - Through its Director,

Post Hinganghat, District Wardha - 442 301.

2. The Electricity Ombudsman,

Plot No.12 "SHRIKRUPA", Vijay Nagar,

Chhaoni, Nagpur - 440 013.

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Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders or directions and Registrar's orders --------------------------------------------------------------------------------

Mr. Shridhar V. Purohit, Advocate with Ms. Gauri Purohit,

Advocate for the petitioner

Mr. Shekhar Dhengale, Advocate for the respondent no.1

Mr. Ajay D. Mohgaokar, Mr. Arun S. Agrawal, and Mr. Tushar

Mandlekar, Advocates have also addressed the Court

CORAM : SUNIL B. SHUKRE AND

AVINASH G. GHAROTE, JJ.

Order reserved on : 22/01/2021 Order pronounced on : 08/06/2021

O R D E R (PER : AVINASH G. GHAROTE, J.)

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1. This reference arises out of the judgment dated 13/10/2020 by the learned Single Judge of this Court (Shri Rohit B.

Deo, J.) in W.P. No.7900/2017, who noticing the decision in Writ Petition No.6859 of 2017 (The Maharashtra State Electricity Distribution Company Ltd. and another Vs. Jawahar Shetkari Soot Girni Ltd. - 2019 (1) Mh.L.J. 342 ) in which it has been held that the cause of action to approach the Forum, as constituted under Section 42 (5) of the Electricity Act, 2003 shall be the sufferance of the legal injury and the consumer has to complete his litigation journey within two years, and noting that the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2006 [For short, "the Regulations, 2006" hereinafter], do not provide for limitation to approach the Internal Grievance Redressal Cell ("the IGR-Cell" for short hereinafter) as constituted under Regulation 6.1 of the Regulations, 2006 came to the conclusion, that if the consumer lodges his grievance with the IGR-Cell within a reasonable time and if the grievance is not satisfactorily redressed within a period of two months prescribed, he cannot be non-suited on the premise that the entire litigation journey was not complete in two years, meaning ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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thereby that in such a scenario it would not be open for the distribution licensee to contend that the application before the Forum was not lodged within two years from the sufferance of the legal injury. The learned Single Judge reiterated, that the cause of action to approach the Forum would be the date on which the period within which the IGR-Cell was expected to decide the grievance expires and the consumer becomes entitled to move the Forum.

2. A contrary view has been taken in Writ Petition No.1650 of 2012 (Maharashtra State Electricity Distribution Company Limited through its Executive Engineer and another Vs. Electricity Ombudsman, Nagpur and another) holding that since there is no time limit provided for approaching the IGR-Cell it was expected of the consumer to lodge his complaint with the IGR-Cell within reasonable time from the establishment of the IGR-Cell. In M/s.

Hindustan Petroleum Corporation Limited Vs. Maharashtra State Electricity Distribution Co. Ltd. and others (W.P. No. 9455 of 2011)

2012 SCC OnLine Bom 66 it has been held that the cause of action to approach the Forum arises only when the IGR-Cell does not redress the grievances and that the Forum and the Ombudsman ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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erred in assuming that the cause of action arises when the legal injury was suffered.

3. Thus, according to the learned Single Judge, Jawahar Shetkari Soot Girni Ltd. (supra); Maharashtra State Electricity Distribution Company Limited through its Executive Engineer and another Vs. Electricity Ombudsman, Nagpur and another and M/s.

Hindustan Petroleum Corporation Limited Vs. Maharashtra State Electricity Distribution Co. Ltd. and others, strike a discordant note and have to be reconciled. The learned Single Judge therefore framed the following three questions :-

(I) The question involved would be when is the

limitation to approach the Forum triggered ?

(II) Certain ancillary questions may call for

answers including the question whether in the absence of

limitation to approach the Grievance Cell whether a

Consumer would be justified in approaching the Grievance

Cell within a reasonable period ?

(III) The expression "cause of action" employed

in Regulation 6.6 shall have to be authoritatively

interpreted ?

and requested the Registrar (Judicial) to place the matter before the Hon'ble the Chief Justice to constitute a larger bench to ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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answer the above questions. This is how the matter has been placed before us. After hearing the matter for some time, on 25/11/2020 we felt that the questions referred to us in the present matter for their appropriate resolution could not be effectively dealt with unless an issue which was inherently and implicitly included in the questions referred to us was also answered, which question was not specifically framed. We therefore framed question no.4. The questions therefore to be answered are as under :-

"1. When is the limitation to approach the

Consumer Grievance Redressal Forum (CGRF)

triggered ?

2. Whether in the absence of limitation to

approach the Internal Grievance Redressal Cell (IGR

Cell), whether a consumer would be justified in

approaching the IGR Cell within a reasonable period ?

3. The expression "cause of action" employed

in Regulation 6.6 of the Maharashtra Electricity

Regulatory Commission (Consumer Grievance Redressal

Forum and Electricity Ombudsman) Regulations, 2006

shall have to be authoritatively interpreted ?

4. What is the nature of the limitation of "two

(2) years" in Regulation 6.6 of the Maharashtra

Electricity Regulatory Commission (Consumer Grievance

Redressal Forum and Electricity Ombudsman)

Regulations, 2006 for admitting grievance of a consumer, ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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whether it is directory, made for facilitating the

convenience of the parties or mandatory having force of

law ?"

4. To appreciate the controversy in a proper manner, it is necessary, to consider the factual background in light of which the above questions are framed :-

Sr. Date Event No.

1 13/11/2009 The Maharashtra State Electricity Distribution Company Limited (MSEDCL hereinafter),

submitted a petition under Regulations 14 and

15 of the Maharashtra Electricity Regulatory

Commission (Standards of Performance of

Distribution Licensees, Period for Giving Supply

and Determination of Compensation)

Regulations, 2005, seeking approval for levy of

voltage surcharge to consumers who are supplied

power at voltages lower than that prescribed as

per SOP Regulations.

2 05/03/2010 The Maharashtra Electricity Regulatory

Commission (for short, "the MERC" hereinafter)

by an order, pending a detailed study and

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approval by the Commission of the levy of

voltage surcharge, as an interim relief permitted

levy of voltage surcharge of 2 % of additional

units to be billed for supply to the consumers at

voltages lower than that specified in the SOP

Regulations, till further orders.

3 09/11/2010 The MERC issued a clarificatory order stating

that the additional 2% voltage surcharge on

consumers on non-express feeder had not been

permitted for any period prior to 5/3/2010 and

thus levy with retrospective effect was not

permissible.

4 The respondent herein was charged with the

voltage surcharge of 2% additional units billed to

it for the period April, 2010 to November, 2012,

which it paid.

5 11/11/2013 Respondent approached the Superintending

Engineer, MSEDCL, Wardha and objected to the

levy of surcharge and seeking a waiver.

6 01/06/2015 MSEDCL replied rejecting the plea of waiver of

surcharge as raised by the respondent.

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7 07/10/2016 A grievance was raised by the respondent

regarding the voltage surcharge as paid by it, for

the above period before the IGR-Cell disputing its

liability to pay the same.

8 06/01/2017 The IGR-Cell, rejected the grievance.

9 16/01/2017 Challenge to the above rejection by the IGR-Cell,

was raised before the Consumer Grievance

Redressal Forum (for short "the Forum",

hereinafter), as constituted under Section 42 (5)

of the Electricity Act, 2003.

10 21/03/2017 The Forum by a majority, dismissed the challenge

on the ground of limitation, as the respondent

had not approached before the expiry of 2 years,

from the cause of action, which according to the

Forum was 9/11/2010, the date of the

clarificatory order by the MERC.

11 26/08/2017 The Electricity Ombudsman set aside the order of

the Forum holding that the cause of action, had

arisen on 1/6/2015 the rejection of waiver of

surcharge by the MSEDCL and therefore, the

respondent having approached the Forum on

30/1/2017 (in fact on 16/1/2017 as per the date

on the application), the application was well

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within time and therefore, set aside the order of

the Forum and directed refund of the full amount

of 2% surcharge paid by the respondent with

interest thereon at the Bank rate.

12 17/11/2017 The MSEDCL, filed Writ Petition No.7900 of 2017 challenging the decision of the Electricity

Ombudsman, whereupon noticing the discord as

indicated above, the present reference has been

made.

5. Mr. Shridhar Purohit, learned Counsel for the petitioner invites our attention to Section 42 of the Electricity Act, 2003 which postulates duties of distribution licensee. He further invites our attention to sub-sections 5 to 8 of Section 42 of the Electricity Act, 2003. He further invites our attention to Section 181 of the Electricity Act, 2003 under which powers have been conferred upon the State Commissions to make regulations and specifically to Section 181 (2) (r), under which the State Commissions have power to frame guidelines for the Forum established under Section 42 (5) and to Section 181 (2) (s) under which the State Commission has power to frame regulations to provide for the time and manner for ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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settlement of grievance by the Ombudsman under Section 42 (7) of the Electricity Act, 2003. He submits, that in exercise of the powers conferred under Section 181 (2) (r) of the Electricity Act, the State Commissions have framed guidelines for the Forum established under Section 42 (5) of the Electricity Act, 2003, and it is under these guidelines, that the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2006, have been framed under which the IGR-Cell, has been created. Mr. Shridhar Purohit, learned Counsel for the petitioner invites our attention to Regulations 2 (c), (d), (e) and (f) which respectively define "grievance", "IGR-Cell" "Forum"

"Electricity Ombudsman". He further invites our attention to Regulation 4 dealing with constitution of the Forum comprising of a Chairperson and Two Members; Regulation 6 prescribing the procedure for grievance redressal and specifically to Regulation 6.1- establishing the IGR-Cell; Regulation 6.2, 6.4 to 6.9 & 8.3 and contends that the limitation to approach the Forum would be triggered upon the arising of the cause of action, which according to him is the clarificatory order passed by the MERC dated 9/11/2010.

He further submits that without prejudice to the above, the cause of ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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action can also be said to be the date of issuance of the first bill, in which the 2% voltage surcharge as per the MERC order has been levied. He submits that the period of two years of limitation, provided in Regulation 6.6 shall have to be counted, from the above two dates and any application filed beyond this period would be barred by limitation. Reliance is placed upon Jawahar Shetkari Soot Girni Ltd. (supra).

6. Mr. Shridhar Purohit, learned Counsel for the petitioner, submits that the position as stated in (a) Maharashtra State Electricity Distribution Company Limited, Nagpur Vs. Shilpa Steel and Power Limited, Nagpur and others, 2018 (1) Mh.L.J. 740, holding the date of rejection by the IGR-Cell is the date of cause of action for approaching the Forum (b) Maharashtra State Electricity Distribution Company Limited and another Vs. Electricity Ombudsman, Nagpur and another Writ Petition No.1650 of 2012, decided on 10/7/2013, holding that there is no time limit prescribed for approaching the IGR-Cell and therefore it has to be done within reasonable time, (c) M/s. Hindustan Petroleum Corporation Limited Vs. Maharashtra State Electricity Distribution Co. Ltd., 2012 SCC ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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OnLine Bom 66, which holding that the cause of action for submitting a grievance to the Forum arises when the IGR-Cell does not redress the grievance, and the limitation of two years would start from this date, do not lay down the correct law as the non-redressal of the grievance by the IGR-Cell cannot be said to be a cause of action within the meaning of the term as occurring in Regulation 6.6. He submits that the term 'cause of action' is directly relatable to a legal injury, which could only mean the imposition of the voltage surcharge upon the consumer, which would be found in the monthly electric bill, which would contain such an entry and not otherwise. He further submits that now new Regulations have been framed in 2020, in which the IGR-Cell has been done away with. He therefore submits, that the limitation to approach the Forum, would be two years from the date of the voltage surcharge being billed, which would be the cause of action. He further submits that the IGR-

Cell, being an internal grievance redressal mechanism, any decision rendered by it, or non-redressal of a grievance by it, would not fall within the expression "cause of action". He therefore submits that the questions raised have to be answered accordingly.

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6.1. Mr. Shridhar Purohit, learned Counsel for the petitioner, in the matter of how statutes are to be read and interpreted, places reliance upon Chief Justice of A.P. and another Vs. L.V.A. Dikshitulu and others etc., AIR 1979 SC 193 ; Bhatia International Vs. Bulk Trading S.A. and another, AIR 2002 SC 1432 ; State of Tamil Nadu Vs. Kodaikanal Motor Union (P) Ltd., (1986) 3 SCC 91 ; Collector of Customs, Baroda Vs. Digvijaysinhji Spinning and Weaving Mills Ltd. Jamnagar, AIR 1961 SC 1549 ; Chief Inspector of Mines & Anr.

Vs. Karam Chand Thapar etc., AIR 1961 SC 838 ; Commissioner of Income Tax, Central Calcutta Vs. National Taj Traders, (1980) 1 SCC 370. He submits that even if there may be some discord in the Regulations between the time period to approach the IGR-Cell and the Forum (CGRF) the same has to be reconciled as best as possible, considering the intention for creating the IGR-Cell. He further submits that the conferment of power and authority upon the MERC to frame guidelines in view of Section 181(2)(r) of the Electricity Act, would include the power and authority to create the IGR-Cell or for that matter any Forum which may result in speedy redressal of the grievance of the consumer. He therefore submits that the creation of the IGR-Cell cannot be faulted with.

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7. Mr. Ajay Mohgaonkar, learned Counsel supporting learned Counsel Mr. Shridhar Purohit, submits that the IGR-Cell, is a mechanism for settlement to facilitate early resolution of dispute, without approaching the Forum. He submits that if there is no resolution before the IGR-Cell, within the period of two months, then the consumer has a right to approach the Forum. Even otherwise, according to him, it is the liability of the IGR-Cell to notify whether the grievance has been resolved or not, to the Forum.

He further submits that the decision of the IGR-Cell for the purpose of the limitation for approaching the Forum is immaterial, as the consumer, has to approach the Forum within a period of two years from the cause of action. He further contends that the cause of action remains the same and does not change, which according to him is the date on which the 2% voltage surcharge is billed. He further submits that the order of the IGR-Cell cannot be treated as a grievance under Regulation 2 (c) and therefore would not give rise to a cause of action. He cites the analogy of the dispute resolution mechanism under the Industrial Disputes Act, whereunder, a dispute has first to be referred to the Conciliation Officer and in case of its non-resolution, goes to the Government. He submits that the ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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limitation prescribed under Regulation 6.6 is mandatory in nature, looking to the language of the Regulation which prohibits the entertaining of any grievance filed beyond the period of two years from the date of cause of action.

8. Mr. Shekhar Dhengale, learned Counsel for the respondent no.1 submits that a cause of action would mean a legal injury. He submits, that no limitation is provided to approach the IGR-Cell. Regulation 6.7 makes it necessary to first approach the IGR-Cell before approaching the Forum and therefore the time consumed to approach the IGR-Cell and spent there for decision by the IGR-Cell, which is not fixed would indicate, that the period of two years, indicated for approaching the Forum, is not a fixed period, but is variable, depending upon the time spent for the IGR-

Cell to decide the matter. The effect of creating the IGR-Cell, is change in the period of limitation to approach the Forum. Therefore, if the Forum is approached within a reasonable time, the party cannot be non-suited.

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8.1. Learned Counsel Mr. Shekhar Dhengale, has placed on record a compilation of judgments, in support of his submissions which is as under : a) Maharashtra State Electricity Distribution Company

Limited and another Vs. Electricity Ombudsman,

Nagpur and another (W.P. No.1650/2012, dated

10/7/2013),

b) M/s. Hindustan Petroleum Corporation Limited Vs.

Maharashtra State Electricity Distribution Co. Ltd. and

others, 2012 SCC OnLine Bom 66,

c) The Maharashtra State Electricity Distribution

Company Ltd., and another Vs. Jawahar Shetkari Soot

Girni Ltd. (W.P. No.6859/2017 decided on 21/8/2018),

d) Maharashtra State Electricity Distribution Company

Limited Vs. Electricity Ombudsman, Nagpur and

another (W.P. No.1588/2019, decided on 8/1/2020),

e) Maharashtra State Electricity Distribution Company

Limited Vs. Shilpa Steel & Power Limited and others

(W.P. No. 3997/2016, decided on 18/7/2017),

f) Maharashtra State Electricity Distribution Company

Ltd. Vs. Electricity Ombudsman and another (W.P.

No.422/2013, decided on 9/7/2013: 2014 (1) Mh.L.J.

930,

g) Maharashtra State Electricity Distribution Company

Ltd. Vs. Maharashtra State Electricity Regulatory

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Commission (W.P. No.197/2009, decided on

11/3/2011),

h) Madras Port Trust Vs. Hymanshu International,

(1979) 4 SCC 176,

i) Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)

(D) Thr. Lrs. and others, 2020 (4) BCR 232,

j) Sushila Devi Vs. Ramanandan Prasad, (1976) 1 SCC

361,

k) Central Board of Dawoodi Bohra Community and

another Vs. State of Maharashtra and another, (2005) 2

SCC 673,

l) Shakti Bhog Food Industries Ltd. Vs. Central Bank of

India and another, 2020 SCC OnLine SC 482,

m) Union of India Vs. Sri Sarada Mills Ltd., AIR 1973

SC 281.

9. Mr. Arun Agrawal, learned Counsel, has also addressed the Court on the question under reference and supports the stand taken by Learned Counsel Mr. Shekhar Dhengale. He submits, that Regulation 6.7 (a), by making it mandatory to approach the IGR-Cell before approaching the Forum and Regulation 6.2, by not prescribing any time limit within which the Forum should be approached, creates a contradictory position, which cannot be reconciled. He submits that the Legislature consciously avoided ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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framing of limitation under Section 42 (5) (7) of the Electricity Act and therefore, the same cannot be prescribed by the Rules. He submits that the expression "legal injury", would mean actual injury, which would be the starting point of limitation, for which he places reliance upon Shakti Bhog Food Industries Ltd. Vs. Central Bank of India and another, 2020 SCC OnLine SC 482. He also relies upon Regulations 6.5 & 6.6. and indicating the sequence of Regulations 6.2, 6.7 & 6.6 submits that in any case the IGR-Cell has to be approached first before approaching the Forum, which makes the time limit in Regulation 6.6, unworkable. By inviting our attention to a document titled as "Rule and Procedure in MSEDCL for Redressal of Grievances", as downloaded from the website, he submits that the Rules of procedure, as indicated in Regulation 6.2, have been framed, which again indicate, that there is no limitation for approaching the Forum, and the limitation as contained in Regulation 6.6, is not mandatory.

10. Mr. Tushar Mandlekar, learned Counsel has also addressed upon the questions referred. He contends that Section 42 (5) (6) (7) (8) read with Section 181 (r) (s) read with Section 86 ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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read with Section 97 of the Electricity Act does not give any power to MERC to frame Rules or Regulations on the point of limitation to restrict the right of consumer to redress his grievance against illegal or arbitrary actions of distribution licensee in any manner and the MERC being a delegate has exceeded its jurisdiction in creating the IGR-Cell. He submits that the Rules created by distribution licensee under Regulation 3.3 (c) (ii) (iii) and (iv) illegally restrict the right of the consumer and compels him to approach IGR-Cell within two years, without any authority of law. Though he raised contentions about the unreasonableness and invalidity of some of the Regulations, we are not here concerned with these challenges, while answering the reference, and even otherwise all these challenges including to the validity of the Regulations on account of excessive sub-delegation or being violative of Article 19 of the Constitution are already the subject matter of another petition filed by him and can be dealt with therein. It is therefore not necessary for us to deal with the contentions or the judgments relied upon by him, relating to the invalidity or excessive delegation.

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11. Mr. Tushar Mandlekar, learned Counsel places reliance upon the following judgments : a) Kishan Prakash Sharma and others Vs. Union of

India and others, (2001) 5 SCC 212.

b) State of U.P. and others Vs. Renusagar Power Co.

and others, AIR 1988 SC 1737.

c) State of T. N. and another Vs. P. Krishnamurthy and

others (2006) 4 SCC 517.

d) Babaji Kondaji Garad and others Vs. Nasik

Merchants Co-operative Bank Ltd., Nasik and others,

AIR 1984 SC 192.

e) State of Uttar Pradesh Vs. Singhara Singh and

others,1963 AIR 358.

f) Smt. Sushila Devi Vs. Ramanandan Prasad and

others, AIR 1976 SC 177.

g) Sakuru Vs. Tanaji, AIR 1985 SC 1279. h) Dalchand Vs. Municipal Corporation, Bhopal and

another AIR 1983 SC 303.

12. For considering the questions referred, certain provisions of the Electricity Act, 2003 and the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2006 being relevant and material are reproduced as under :-

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"Section 42. Duties of distribution licensee and open

access. -

(1) --------.

(2) -------.

(3) -------.

(4) ------------

(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) ----------

(7) ----------

(8) The provisions of sub-sections (5), (6) and (7) shall

be without prejudice to right which the consumer may

have apart from the rights conferred upon him by those

sub-sections."

Section 181. Powers of State Commissions to make

regulations. - (1) The State Commissions may, by

notification, make regulations consistent with this Act

and the rules generally to carry out the provisions of this

Act.

(2) In particular and without prejudice to the generality

of the power contained in sub-section (1), such

regulations may provide for all or any of the following

matters, namely:

(a) ----------- ;

(r ) guidelines under sub-section (5) of section 42;

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(s) the time and manner for settlement of grievance

under sub-section (7) of section 42;

(t) ------------------ ;

(u) -----------------;

(za) ----------------; "

"The Maharashtra Electricity Regulatory Commission

(Consumer Grievance Redressal Forum and Electricity

Ombudsman) Regulations, 2006 -

2. Definitions. - 2.1 In these Regulations, unless the

context otherwise requires -

(a) "Act" means the Electricity Act, 2003 (36 of 2003);

(b) "Commission" means the Maharashtra Electricity

Regulatory Commission;

(c) "Grievance" means any fault, imperfection,

shortcoming or inadequacy in the quality, nature and

manner of performance which has been undertaken to

be performed by a Distribution Licensee in pursuance of

a licence, contract, agreement or under the Electricity

Supply Code or in relation to standards of performance

of Distribution Licensees as specified by the Commission and includes inter alia (a) safety of distribution system having potential of endangering of life or property, and (b) grievances in respect of non-compliance of any order

of the Commission or any action to be taken in

pursuance thereof which are within the jurisdiction of

the Forum or Ombudsman, as the case may be.

(d) "Internal Grievance Redressal Cell" or "IGR Cell"

means such first authority to be contacted by the

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consumer for redressal of his/her Grievance as notified

by the Distribution Licensee;

(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.

(f) "Electricity Ombudsman" means -------------.

6. Procedure for Grievance Redressal. - 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.

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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.

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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 has or is likely to contravene any of the provisions of the Act or

any rules and regulations made thereunder 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.

6.7 The Forum shall not entertain a Grievance. -

(a) unless the consumer has complied with the

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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.

6.8 If the Forum is prima facie of the view that any

Grievance referred to it falls within the purview of any of the following provisions of the Act the same shall be

excluded from the jurisdiction of the Forum:

(a) -----------;

(b) -----------;

(c) -----------; and

(d) ----------.

6.9 The Forum may reject the Grievance at any stage if it

appears to it that the Grievance is:

(a) frivolous, vexatious, mala fide;

(b) without any sufficient cause;

(c) there is no prima facie loss or damage or

inconvenience caused to the consumer."

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13. As the answer to question nos.1 and 3 are interlinked, these are taken together for consideration.

Question No.3.

The expression "cause of action" employed in Regulation

6.6 of the Maharashtra Electricity Regulatory

Commission (Consumer Grievance Redressal Forum and

Electricity Ombudsman) Regulations, 2006 shall have to

be authoritatively interpreted ?

And

Question No.1.

When is the limitation to approach the Consumer

Grievance Redressal Forum (CGRF) triggered ?

Regulation 6.6. states that 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.

13.1. The Regulations do not define "cause of action". The same therefore has to be understood in the normal parlance as used in civil proceedings.

13.2. In Halsbury's laws of England (4th edition) it has been stated as follows :

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" 'cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle Plaintiff to succeed, and every fact which a defendant would have a right to traverse. "cause of action" has also been taken to mean that particular act on the part of the defendant which gives the Plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action'' as quoted in Sundeep Polymers Private Limited versus Bajaj Auto Ltd, 2007 (7) SCC 148."

13.3. Osborne's Concise Law Dictionary defines 'cause of action' as the fact or combination of facts which gives rise to a right or action. Black's law dictionary (9th edition) states it as a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person. Stroud's Judicial Dictionary states it to be the entire set of facts that give rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment.

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13.4. A cause of action thus means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which is taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. [see Chand Kaur / Partab Singh 15 IA 156 : 1888 SCC OnLine PC 14 ; Gurdit Singh and others Vs. Munsha Singh and others, (1977) 1 SCC 791 ; A. B.

C. Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem (1989) 2 SCC 163;

Swamy Atmananda and others Vs. Sri Ramakrishna Tapovanam and others, (2005) 10 SCC 51 ; South East Asia Shipping Co. Ltd. Vs.

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Nav Bharat Enterprises Pvt. Ltd. and others (1996) 3 SCC 443;

Navinchandra N. Majithia Vs. State of Maharashtra, (2000) 7 SCC 640; Rajasthan High Court Advocates' Association Vs. Union of India and others, (2001) 2 SCC 294 ; Prem Chand Vijay Kumar Vs.

Yashpal Singh and another (2005) 4 SCC 417 ; A.V.M. Sales Corporation Vs. Anuradha Chemicals Private Limited, (2012) 2 SCC 315 ; Indian Performing Rights Society Limited Vs. Sanjay Dalia and another, (2015) 10 SCC 161 ; Shakti Bhog Food Industries Ltd.

(supra) ]. It is thus apparent that the expression 'cause of action', takes its color from the factual background, in which it is invoked and the law applicable. The 'cause of action', would also arise when a 'legal injury' is caused.

13.5. The expression 'legal injury', is one of the greatest and widest import and is incapable of any precise definition. Generally speaking a 'legal injury', is a combination of 'legal right' and 'injury' and would mean the violation of every legal right which a person has, not only on account of any Statutory provision, Rule or Regulation but also under the common law principles. In Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York (1974) 2 ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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SCC 387 a legal right is said to be an averment of entitlement arising out of legal rules and has been defined as an advantage or benefit conferred upon a person by a rule of law.

13.6. In Daniel Hailey Walcott and another Vs. State, 1967 SCC OnLine Madras 163 : AIR 1968 Madras 349 the concept of a 'legal right' has been explained as under :

"26. From the statements made by the jurists noted above,

the following principles can be deduced broadly to

understand what a 'legal right' is: (1) Legal right in its strict sense is one which a an assertable claim, enforceable before Courts and administrative agencies; (2) In its wider sense,

a legal right has to be understood as any advantage or

benefit conferred upon a person by a rule of law; (3) There

are legal rights which are not enforceable, though

recognised by the law; (4) There are rights recognised by the International Court, granted by international law; but

not enforceable; and (5) A legal right is a capacity of

asserting a secured interest rather than a claim that could

be asserted in the Courts.

13.7. In Mr 'X' Vs. Hospital 'Z', (1998) 8 SCC 296 a legal right has been defined as under :

"15. "Right" is an interest recognised and protected by

moral or legal rules. It is an interest the violation of which

would be a legal wrong. Respect for such interest would

be a legal duty. That is how Salmond has defined "right".

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but also legal recognition. The elements of a "legal right" are that the "right" is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a person who is bound by a corresponding duty not to violate that

right."

13.8. The word 'Injury', is a general word and is of an inclusive nature encompassing in itself all manner of wrongs, be it to the person, body or mind and includes physical, mental, financial or the violation of a legal right available to any person.

13.9. In Halsbury's Laws of England, 4th Edn, Vol-12 - the word 'Injuria' has been defined to mean a term which refers to the damage which gives rise to a legal right to recompense. Black's Law Dictionary 7th Edn., 1999- defines it as the violation of another's legal right, for which the law provides a remedy; a wrong or injustice. Wharton's Law Lexicon, Reprint 14 th Edn.- defines it as any damage done to another, either in his person, rights, reputation, or property, for which an action lies at law. It would be thus apparent ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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that any violation of a 'legal right', which gives rise to an 'injury' would mean a 'legal injury' and every legal injury would give rise to a 'cause of action'.

13.10. The expression 'cause of action', in the present matter is intrinsically linked to the definition of the word 'Grievance', as defined in Regulation 2(c) and includes a grievance in respect of non-compliance of any order of the Commission or any action to be taken in pursuance thereof, which is within the jurisdiction of the Forum (CGRF), occurring in a given case.

13.11. The word 'Grievance', has been defined in Regulation 2 (c) in an expansive and inclusive manner :

It contemplates : a) a Distribution Licensee having been appointed under a licence, contract or agreement; b) the duties, obligations and responsibilities to be performed by such Distribution Licensee under :

(i) the licence, contract or agreement; or (ii) under the Electricity Supply Code or (iii) in relation to standards of performance of Distribution Licensees as specified by the Commission and ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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where such Distribution Licensee commits any : c) fault, imperfection, shortcoming or inadequacy in ----

(i) the quality, nature and manner of performance; or (ii) safety of distribution system having potential of endangering of life or property, and d) grievances in respect of non-compliance of any order of the Commission or any action to be taken in pursuance thereof ; which are within the jurisdiction of the Forum,

Thus each and every fault, imperfection, shortcoming or

inadequacy in the performance of the duties, responsibilities and obligations as well as in the safety of distribution system by the Distribution Licensee and so also each and every grievance in respect of non-compliance of any order of the Commission or any action to be taken in pursuance thereof, if within the jurisdiction of the Forum, would constitute a 'cause of action', to the consumer to approach the Forum under Regulation 6.6, which is the answer to Question no.3.

That takes us to the consideration of Question no.1.

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13.12. In the instant matter, by the order dated 5/3/2010, the MERC, pending a detailed study and approval by the Commission, as an interim relief, ordered the levy of Voltage Surcharge of 2% additional units to be billed for supply to the consumers at Voltages lower than the specified SOP regulations. By the clarificatory order dated 9/11/2010, the MERC clarified that the Voltage Surcharge would not be permitted for a period prior to 5/3/2010. It is in pursuance to these orders that Voltage Surcharge of 2% additional units was billed. Thus the cause of action for challenging the orders dated 5/3/2010 and 9/11/2010, would accrue to the consumers, on the date on which they were passed, however this is not a grievance which can be raised before the Forum, as is apparent from the definition of 'Grievance', in Section 2(c) of the Regulations of 2006. Thus in normal parlance, as contended by Mr. Shridhar Purohit, learned Counsel for the petitioner, had the position as discussed hereinafter not been extant, the cause of action for the consumers would have arisen on the date when the bill containing the inclusion of 2% additional units on account of Voltage Surcharge, was received by the consumers, from which date they had to approach the Forum within the time of 2 ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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years as stipulated in Regulation 6.6.

13.13. The question however has to be considered in light of the embargo upon the Forum, put by the language of Regulations 6.2, 6.4, proviso to 6.5 and 6.7 (a) & (b) and the limitation as prescribed by Regulation 6.6.

13.14. The scheme of the Regulations 2006, as indicated from a perusal of the above stated Regulations makes it mandatory for a consumer to approach the IGR-Cell before it approaches the Forum.

The definition clause 2.1 (d), which defines the IGR-Cell, states that the IGR-Cell is the first authority to be contacted by the consumer for redressal of his/her grievance. Regulation 6.2 requires a consumer with a grievance to 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 for grievances. The second proviso to Regulation 6.2 grants a deeming fiction to any intimation given by the consumer of any grievance, even to authorities who are not part of IGR-Cell, to be an intimation for the purposes of the Regulations, unless such ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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officials forthwith direct the consumer to the IGR-Cell.

Regulation 6.4 requires the IGR-Cell to provide a remedy within two months of the date of intimation of the grievance and if no such remedy is provided within such period, entitles the consumer to submit the grievance to the Forum. Regulation 6.4 further requires the Distributor Licensee, within the period of two months to send a written reply to the consumer stating the action it has taken or proposes to take for redressal of the grievance. The proviso to Regulation 6.5, though empowers a consumer to directly approach the Forum with the grievance, before expiry of the period specified in Regulation 6.4, it however requires the Forum to record reasons for the same. Regulations 6.7 (a)(b) enjoins upon the Forum not to entertain a grievance unless the consumer has approached the IGR-Cell or having so approached is aggrieved on account of his grievance not being addressed by the IGR-Cell. All this clearly indicates that the approach by a consumer with his grievance to the IGR-Cell is considered necessary, though not mandatory, before he approaches the Forum.

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13.15. The import and effect of these Regulations, 2006 has also to be considered in light of the Rules and procedure framed under Regulation 6.2. The Rules of procedure framed under Regulation 6.2 relating to the IGR-Cell, as brought to our notice by learned Counsel Mr. Arun Agrawal, which have not been disputed by Mr. Shridhar Purohit, learned Counsel for the petitioner, read as under:

"1) Internal Grievances Redressal Cell (IGRC)

The Applicant may approach to the appropriate office of the Distribution Licensee or IGRC and file the grievance as per the prescribed Format 'Form X' which is available on website & IGRC. The IGRC shall not admit any grievance unless it is filed within two (2) years from the date on which the cause of action has arisen. Where such grievance cannot be made in writing, the IGRC shall render all reasonable assistance to the person making the grievance orally to reduce the same in writing. The office of the IGRC 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 acknowledgement shall be provided at the time of submission. The address & contact nos. of IGRC are available on following link of website;"

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Thus the period of limitation for admitting a grievance

by the IGR-Cell is two years from the date on which the cause of action has arisen, as per the Rules of procedure framed under Regulation 6.2, as against which the limitation for approaching the Forum, under Regulation 6.6 is also two years from the date on which the cause of action has arisen, prior to which it is mandatory for a consumer to approach the IGR-Cell as indicated above. Thus though Regulation 6.4 provides for the grievance to be redressed by the IGR-Cell within two months of the intimation, the procedure laid down under Regulation 6.2 prescribes an outer limit of two years from the date of cause of action, to approach the IGR-Cell itself.

Thus the dichotomy created by the Regulations regarding the limitation for approach to the IGR-Cell and Forum, cannot be resolved, unless a meaningful, purposive and harmonious construction is placed upon the Regulations.

13.16. In light of the admitted position that the Regulations have been created for the purpose of resolving the grievances of the consumers, the purpose clearly appears to be, to benefit the consumers. So also if there is an embargo upon the Forum ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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entertaining a grievance unless the IGR-Cell has first been approached as is reflected from Regulation 6.7 (a) and (b), then for the purpose of approaching the Forum, the cause of action would become the action of the IGR-Cell in either having inadequately addressed the grievance or not having addressed the same at all, within the time frame as stipulated in Regulation 6.4, subject to the limitation as prescribed in the Rules of procedure framed under Regulation 6.2 of approaching the IGR-Cell.

13.17. Thus considering the above position as spelt out by a conjoint reading of the language of Regulations 6.2, 6.4, proviso to 6.5, 6.7 (a) and (b) and the limitation as prescribed by Regulation 6.6, in conjunction with the Rules of procedure as framed under Regulation 6.2 and the requirement of approaching the IGR-Cell before approaching the Forum and harmonizing them in a meaningful manner, the cause of action as contemplated by Regulation 6.6 for approaching the Forum will have to be held to arise when the IGR-Cell inadequately redresses the grievance as brought to its notice or fails to redress the same. Any other construction or meaning would result in creating a situation, where ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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the above provisions cannot be reconciled with each other.

Considered in a different light, the Forum, in view of the necessity to approach the IGR-Cell first, has been rendered as if it is an Appellate Authority over the action or inaction taken by the IGR-Cell and it is because of this reason also, that the cause of action for approaching the Forum can only be said to be the inaction, or inadequate action of the IGR-Cell. The answer to question no.1 therefore has to be that the cause of action to approach the Forum, would be the inadequate action or inaction of the IGR-Cell, as to the grievance referred to it under Regulation 6.1 and the limitation shall begin from such date.

14. That takes us to the consideration of Question no.2.

Question No.2

Whether in the absence of limitation to approach the

Internal Grievance Redressal Cell (IGR Cell),

whether a consumer would be justified in

approaching the IGR Cell within a reasonable

period ?

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of two years from the date of the cause of action. Since the field is already governed by the Rules of procedure as framed under Regulation 6.2, the time frame as enumerated therein, will have to be adhered to. This would indicate that a consumer would be liable to approach the IGR-Cell within two years from the date of the cause of action, and not within an undefined period of time. This would be the answer to question no.2.

15. The question whether a particular provision is mandatory or directory depends upon the language used and the purpose for which it is used. Question no.4, will therefore have to be considered, in view of the purpose for which the relevant Regulation 6.6 was framed.

Question No.4

"What is the nature of the limitation of "two (2) years" in Regulation 6.6. of the Maharashtra Electricity Regulatory

Commission (Consumer Grievance Redressal Forum and

Electricity Ombudsman) Regulations, 2006 for admitting

grievance of a consumer, whether it is directory, made for facilitating the convenience of the parties or mandatory

having force of law ?"

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15.1. In Dalchand Vs. Municipal Corporation, Bhopal and another, AIR 1983 SC 303 , while considering the question whether a particular provision is mandatory or directory, in light of the provisions of Rule 9 (j) of the Prevention of Food Adulteration Act, as it then stood, it was held that :-

" There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad

purpose of the statute is important. The object of the

particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and,

more often than not, determinative of the very question

whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public

mischief, but the enforcement of a particular provision

literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to

remember that quite often many rules, though couched in

language which appears to be imperative, are no more than

mere instructions to those entrusted with the task of

discharging statutory duties for public benefit. The negligence

of those to whom public duties are entrusted cannot by

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the statute. It is as well to realise that every prescription of a

period within which an act must be done, is not the

prescription of a period of limitation with painful consequences if the act is not done within that period."

(emphasis supplied)

15.2. In normal parlance, all provisions providing for a limitation, have to be construed strictly and proceedings have to be initiated within the time frame stated, thereby meaning that such provisions are to be construed as mandatory. The present case, is singled out to be an exception due to the peculiarity of the Regulations, 2006, as already discussed while answering question no.3, on account of the creation of the IGR-Cell and providing a time frame to approach it with the grievance, which is not in consonance with the time frame as provided in Regulation 6.6 to approach the Forum, with the same grievance. While the Rules of Procedure framed under Regulation 6.2 provide that the IGR-Cell, ought to be approached within 2 years of the cause of action, Regulation 6.6 on the other hand, provides that the Forum has to be approached within the same time of 2 years, from the cause of action, thus making it impossible for a consumer to follow both, for if a consumer ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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approaches the IGR-Cell, let us say in the 18th month after the cause of action, which is within the time of 2 years as per the Rules of Procedure under Regulation 6.2 and the IGR-Cell is to address the grievance within 2 months thereafter, the consumer then cannot approach the Forum within the period of 2 years from the cause of action, as required by Regulation 6.6, as the same would be impossible, the time having already elapsed due to his adhering to the requirement of the Rules of Procedure under Regulation 6.2 and the necessity to approach the IGR-Cell before approaching the Forum. It is trite that the law does not require of the litigant to do that which is impossible, which is clearly enunciated by the maxim "Lex non cogit ad impossibilia ". As discussed above while answering question no.3, this position can only be reconciled if the cause of action for approaching the Forum, is considered to be the inaction or inadequate action of the IGR-Cell to/in addressing the grievance as presented to it.

15.3. It is an admitted position on record that the creation of the Forum and so also the IGR-Cell, were for the benefit of the consumer, to create a Forum to redress the grievances of the ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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consumers. In that sense of the matter, the creation of the Forum as well as the IGR-Cell, are pieces of beneficial legislation. That being the object and purpose of the creation of the Forum as well as the IGR-Cell and further considering, the contrary limitations as provided for approaching the Forum under Regulation 6.6 and the IGR-Cell under the Rules of procedure as framed under Regulation 6.2, it will have to held that the nature of limitation of two years in Regulation 6.6, of approaching the Forum, is not mandatory but is directory, as considering the law as laid down in Dalchand (supra), the consequence of holding Regulation 6.6 mandatory, would result, in the consumer being left without any remedy, though he may have approached the IGR-Cell, within the time frame, as required for in the Rules of procedure framed under Regulation 6.2. Such a consequence is not contemplated by the Regulations, 2006 nor by the provisions of Section 42 (5) of the Electricity Act, and a literal interpretation, of Regulation 6.6, would result in not only causing inconvenience to the consumer, but also defeating the object of Section 42 (5) of the Electricity Act, whereby a right is created in the consumer to approach the Forum for redressal of his grievance.

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15.4. There is one more reason for holding so. The majority of the consumers, are not aware of the proceedings or the orders passed by the MERC from time to time and become aware of the same, only as a result of these orders being implemented by translating them into imposition of charges in the bills issued to the consumers. It is a salutary principle of law that the State or any of its instrumentality cannot benefit and be unduly or unjustly enriched by any action of the State or its instrumentality, more so, due to delay in approaching the authorities empowered to take cognizance of any grievance in this regard. Permitting it to be done, would render the remedy provided therefor illusory, which is impermissible in law. If a consumer, feels that the imposition of any charges upon the consumer, are contrary to the provisions of any Statute or the Rules and Regulations framed thereunder, he cannot be deprived of a remedy to recover such charges.

15.5. The situation has developed only due to the creation of the IGR-Cell and making it mandatory to approach it, before approaching the Forum by the Regulations, 2006. The situation therefore, is of the own making of the petitioner, and could have ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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been avoided, had the Regulations, 2006, not contained any provision for creation of the IGR-Cell and approaching it necessarily, prior to approaching the Forum. It appears that realizing this contradictory position as emanating from the Regulations, 2006, that new Regulations have been framed in 2020, in which the IGR-Cell has been done away with.

15.6. In these circumstances, in order to render the remedy of approaching the Forum by the consumer for redressal of his grievance, meaningful, effective and not illusory, it has to be held that the provisions of Regulation 6.6 of the Regulations, 2006, are not mandatory, but are directory in nature.

15.7. It is material to note that the petitioner, realizing the controversy emanating due to the creation of the IGR-Cell in the Regulations, 2006, these have since been superseded by the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman)

Regulations, 2020, in which the IGR-Cell has been done away with and now the Regulations enjoin a consumer to directly submit his ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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grievance to the Forum and thus the controversy created due to the formation of the IGR-Cell, thus stands adequately addressed, now, however for matters filed and pending prior to the Regulations, 2020, the earlier Regulations, 2006 would govern the field, which was the reason for determining the reference.

16. M/s. Hindustan Petroleum Corporation Limited and Shilpa Steel and Power Limited (supra) holding that the cause of action for submitting a Grievance to the Forum (CGRF) arises when the IGR-Cell does not redress the grievance, in our considered opinion, are in consonance with what we have expressed above.

16.1. Maharashtra State Electricity Distribution Company Limited through its Executive Engineer and another Vs. Electricity Ombudsman, Nagpur and another [W.P. 1650/2012] (supra), which holds that the IGR-Cell is an internal arrangement and that the cause of action arose when the electric supply was disrupted and therefore the consumer ought to have approached the Forum within 2 years from date of cause of action, in our considered view, does not consider the near embargo in Regulations, 2006, to first approach ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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the IGR-Cell before approaching the Forum nor does it attempt to reconcile the position and thus does not lay down the correct position, which reasoning also applies for Jawahar Shetkari Soot Girni Limited (supra) which though noticed that the consumer could not approach the Forum without first approaching the IGR-Cell, in view of the requirement to approach the IGR-Cell, in view of the language of Regulation 6.7 (a), did not go into it.

16.2. Electricity Ombudsman (supra) [W.P. No.1588 of 2019-

MANU/MH/0107/2020], though it noticed the contrary views in M/s. Hindustan Petroleum Corporation Limited (supra) and Jawahar Shetkari Soot Girni Limited (supra), was decided on a different footing altogether, in as much as in para 21 it was found by the Court that the petitioner had not raised an issue as to whether the claim of the consumer for reimbursement would amount to a 'Grievance', under Regulation 2 (c) of the Regulations, 2006 and therefore the matter was decided on the facts before it.

16.3. In Electricity Ombudsman (supra) [W.P. 422/2013]

2014 (1) Mh.L.J. 930, the questions in reference were not under ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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consideration and therefore the same is of no assistance.

16.4. The judgments in Sushila Devi and Sakuru (supra) as cited by learned Counsel Mr. Tushar Mandlekar, are of no assistance to the questions in hand as the question of applicability of the provisions of the Limitation Act, 1963 to proceedings under the Regulations, 2006, is not an issue referred to us for an answer.

16.5. In none of the judgments cited before us, by learned Counsel Mr. Shekhar Dhengale, the issue of creation of the IGR-Cell, nor was the issue as to whether the time limit of 2 years as per Regulation 6.6. was mandatory or directory fell for consideration and these judgments were rendered on the basis of a presumption of the legality of the IGR-Cell.

16.6. In Madras Port Trust (supra) the Hon'ble Apex Court, held that the authorities should not adopt the practice of relying upon technical pleas for the purpose of defeating legitimate claims of citizens and should do what is fair and just to the citizens.

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16.7. In Dahiben (supra) the question which fell for consideration, was whether the suit instituted on 15/12/2014, for cancellation of the sale-deed executed on 2/7/2009, was barred by limitation, which was so held, as the cause of action, accrued on the date on which the sale-deed was executed and the suit ought to have been filed within three years from its execution and does not assist learned Counsel Mr. Shekhar Dhengale in his submission.

16.8. In Sushila Devi (supra), it was held that successive applications, would not give rise to a fresh cause of action on each application, as the same would have arisen on the first application itself, and does not support the plea raised by learned Counsel Mr. Shekhar Dhengale.

16.9. In Central Board of Dawoodi Bohra Community (supra) principles have been laid down summing of the legal position as to the binding nature of a decision delivered by a Bench of larger strength, or equal strength has to be construed in respect of which there cannot be any two opinions, however, the same are not applicable in the present matter as the questions referred to have to ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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be answered.

16.10. Sarada Mills Ltd. (supra) was a case of subrogation of an insurance claim, in spite of which the assignee, sued in its own name, which was upheld, and thus has no application to the questions in hand.

16.11. In the Judgment in Appeal No.197/2009, Maharashtra State Electricity Distribution Company Ltd. Vs. Maharashtra State Electricity Regulatory Commission, relied upon by learned Counsel Mr. Shridhar Purohit, the finding that the Electricity Act is a complete Code in itself and the provisions of the Limitation Act, 1963 are not applicable to proceedings under it, cannot be disputed.

It also holds that when the Regulations as framed under the Electricity Act, themselves provide for a limitation, then such a limitation would clearly be mandatory and will have to be adhered to. The finding in para 21 thereof that there is no bar with regard to limitation in the Electricity Act, clearly appears to have been rendered, in ignorance of the provisions of the Regulations, 2006 and specifically Regulation 6.6., whereby the limitation of 2 years ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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has been prescribed, as can be seen from para 10 thereof and thus cannot be said to be a good law.

16.12. In so far as the plea by Mr. Shridhar Purohit, learned Counsel for the petitioner, as to how statutes are to be read and interpreted, and the reliances thereupon, it is material to note that in Chief Justice of A.P. (supra) it was held that a provision should be construed according to the intent and purpose for which it is made and if the language is precise the same must be given effect to regardless of the consequences that may follow. In Bhatia International (supra) it was held that if the language used is capable of bearing more than one construction, in selecting the true meaning, regard must be had to the consequences, resulting from adopting the alternative construction and a construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results. In Kodaikanal Motor Union (P) Ltd., (supra), it was held that the Courts must always seek to find out the intention of the ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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legislature from the language used. In Digvijaysinhji Spinning and Weaving Mills Ltd. Jamnagar, (supra) it was held that when the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense. In Karam Chand Thapar (supra) it was held that even if there might be some conflict between a rule and a provision, they have to be reconciled as best as possible. In National Taj Traders (supra) it was laid down that omissions are not to be inferred and nothing is to be added to or taken away from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.

16.13. There cannot be any two opinions about the principles of statutory interpretation as laid down in the aforementioned decisions, as cited by Mr. Shridhar Purohit, learned Counsel for the petitioner. However, in our considered opinion, what has been referred is not the validity of the creation of the IGR-Cell, and therefore for the same reason as we have stated in respect of the submissions as canvassed by learned Counsel Mr. Tushar Madlekar, raising the plea of the creation of the IGR-Cell suffering from the ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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vice of excessive delegation, which falls for consideration in the petition challenging its validity as filed by Mr. Tushar Mandlekar, learned Counsel, we do not think that the same can be determined in this reference and the same is left open to be determined in the petition wherein such a challenge has been raised.

17. To sum up, our answers to the questions as framed and referred are as under :-

Sr. Question Answer No.

1. When is the limitation to The limitation to approach the approach the Consumer Consumer Grievance Redressal Grievance Redressal Forum (CGRF) shall be triggered on Forum (CGRF) the inadequate action or inaction triggered ? of the IGR-Cell, as to the grievance

referred to it by the Consumer,

under Regulation 6.1 of the

Regulations, 2006 .

2. Whether in the absence A consumer would be liable to of limitation to approach the IGR-Cell within two approach the Internal years from the date of the cause of ::: Uploaded on - 08/06/2021 ::: Downloaded on - 08/06/2021 23:50:52 :::

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Grievance Redressal Cell action, and not within an (IGR Cell), whether a undefined period of time. consumer would be justified in approaching the IGR Cell within a reasonable period ?

3. The expression "cause Each and every fault, imperfection, of action" employed in shortcoming or inadequacy in the Regulation 6.6 of the performance of the duties, Maharashtra Electricity responsibilities and obligations as Regulatory Commission well as, in the safety of distribution (Consumer Grievance system by the Distribution Licensee Redressal Forum and and so also each and every Electricity Ombudsman) grievance in respect of non-

Regulations, 2006 shall compliance of any order of the have to be Commission or any action to be authoritatively taken in pursuance thereof, if interpreted ? within the jurisdiction of the

Forum, would constitute a 'cause of

action', to the consumer to

approach the Forum under

Regulation 6.6 of the Regulations,

2006.

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4. What is the nature of Regulation 6.6 of the Regulations, the limitation of "two 2006 for admitting grievance of a (2) years" in consumer is directory.

Regulation 6.6 of the Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman)

Regulations, 2006 for admitting grievance of a consumer, whether it is directory, made for facilitating the convenience of the parties or mandatory having force of law ?"

18. Before parting with the matter, we hereby record our appreciation of the efforts by all the learned Counsels who have addressed us on the questions referred to and rendered their valuable assistance in deciding the same.

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19. The matter may now be placed before the respective Benches, for decision on their merits, in light of the answers to the questions as given above.

(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)

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