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Judgment
Sharad Kumar Sharma, J
The respondent M/S Shri Vedmata Gayatri Trust, Gayatri Teerth, Shantikunj, Haridwar, Uttarakhand, were the applicant before the respondent for the grant of rebate in the light of the provisions contained under Rule 8, which contemplates a grant of rebate of `100/- per month for each 100 litre capacity of solar heating system, which the consumer has installed and used for water hearing purpose. On an overall reading of Rule 8, it could be said that it was introduced under the rules by the tariff order for the year 2014-15, it spirited so as to augment the use of solar water heating system, and consequent thereto, resulting into saving the consumption of electricity used in the heating system, which is to be used by the consumer and would only be operational by use of electricity. Rule 8 is quoted hereunder:
"8. Solar Water Heater rebate If consumer installs and uses solar water heating system, rebate of Rs. 100/- p.m. for each 100 litre capacity of the system or actual bill for that month whichever is lower shall be given subject to the condition that consumer gives an affidavit to the licensee to the effect that he has installed such system, which the licensee shall be free to verify from time to time. If any such claim is found to be false, in addition to punitive legal action that may be taken against such consumer, the licensee will recover the total rebate allowed to the consumer with 100% penalty and debar him from availing such rebate for the next 12 months."
In the case at hand the challenge which has been given by the Uttarakhand Power Corporation is to the judgment and order rendered on the Representation No. 01 of 2015 by the Electricity Ombudsman as constituted under Section 46(2). By virtue of the decision impugned dated 28.05.2015 the respondent/applicant too for the grant of rebate under Rule 8, has been granted the rebate from the date of installation of the water heating system, which according to the respondent claims to have been installed w.e.f. 07.05.2010. On the other hand the argument of learned counsel for the petitioner is that the said rebate cannot be made effective with a retrospective effect, and in particular, if at all the petitioner was entitled for any rebate it could only be from the date when the respondent had submitted his application for availing the benefit of rebate under Rule 8 of the Rules framed under the Act.
In the instant case the respondent admittedly had moved an application before the petitioner for grant of rebate for the first time on 31.03.2014 for the grant of rebate under Rule 8. The objection, which has been raised by the learned counsel for the petitioner, is that so far as the respondent is concerned, they will not fall to be within the ambit of grant of rebate under Rule 8 on the ground that according to their own application and the certification which has been issued in their favour the utilization of the water heating system is for the purposes of "solar steam cooking system" and not for the "solar water heating" as provided under the rules.
What he intends by his argument is to draw a distinction to the effect that if the language of Rule 8 is read in its strict sense the rebate is exclusively available to be granted only when the "solar water heating system", is installed and utilized in the said manner. However, the same benefit cannot be extended where the "solar steam cooking system" is being installed as it will not fall to be within the purview and ambit of the provisions contained under Rule 8 of the Rules quoted above. In response to it the learned counsel for the respondent submits that the reason for denial as expressed by the learned counsel for the petitioner is absolutely untenable for the reason that the installation and use of the water heating system as contemplated under Rule 8, it has not at any stage carved out any distinction, as regards to the manner in which the said water heating system installed is being used or for the purposes for which it is put to use.
The another argument of the learned counsel for the respondent is further that the water heating system thus installed by them was after getting the benefit under the scheme as floated by UREDA in case if it is contended by the petitioner that it has been largely used in the steam cooking system, it rather augments the very purpose of installation of water heating system and it further facilitates the purpose and object in achieving the purpose for which the rebate has been granted under Rule 8, which basically this Court is of the view that the rebate under Rule 8 has been incorporated under the regulation so as to attract the consumers towards the utilization of solar water heating system, which may resultantly effect into reduction in the consumption of the electricity or any other mode of use for heating the water.
If the regulations are read in precision and in particular the provisions contained under regulation 8, though it apparently only confines itself that the rebate would be admissible on the use of solar water heating system, the word 'use' used over here would mean use of the system itself and not use of the water thus heated by the installation of the said system in various other modes for example in cooking food or in washrooms or in washing clothes, or in providing medical services and various other such allied use. If this was the distinction to be carved out that the respondent would not be entitled for any rebate because according to the application of the petitioner, the "solar water heating system" which was being used by the respondent was for solar steam cooking system, if it is to be taken in its strict sense, it would rather defeat the very purpose for which the regulation 8 has been framed under the Act.
In fact, when the application of the petitioner was being considered and when the matter was represented by the respondent before the Ombudsman. The Ombudsman has considered the import of regulation 8 and has rightly held that the entitlement for the rebate under regulation 8 would be on the installation and the use of the solar water heating system, but since the regulation itself has not carved out any distinction with regards to the purpose for which the water thus heated is being utilized, this in itself would not disentitle the respondent from the rebate contemplated under Rule 8 because admittedly the installation of the solar water heating system, which has been installed by the respondent, the water thus heated therein and the steam which is generated thereafter as a resultant consequence of only due to the heating of water, irrespective of the fact that if it is being utilized for cooking purposes since the same is not being restrained under the Act the respondent would be entitled for the benefit of the rebate provided under regulation 8 of the regulations framed under the Act.
After having gone through the rationale which has been adopted by the Ombudsman, in particular, as contained in paragraph 12, 13 & 14 of the judgment impugned, which are quoted hereunder:
"12. From the above it is seen that the Solar Energy Corporation has merely defined what a solar water heating system is. They have nowhere defined the purpose for which this system is to be used. Similarly the Tariff order only mentions that a rebate is to be allowed for installation and use of solar water heating system but does not mention the purpose for which this heated water is to be used. Hence the contention of the respondent that the tariff provides for rebate for solar water heaters which are exclusively meant for heating water and are not to be used for cooking, is incorrect.
In the present case, the petitioner was asked to provide a detailed schematic drawing of the system installed by them. As per this system, large parabolas have been installed to trap the heat energy of the sun which is then transferred to solar heater collectors mounted on a pipeline through which water is passing. This water gets heated and is collected in a storage tank. From this storage tank it is diverted for use as heated water for various purposes and some part of it is further heated for creating steam for using the same for cooking purposes. From the diagram it is clear that the system consists of two stages. The first stage is the solar water heating system whereby water is heated by solar energy and is collected in a storage tank. The second stage of the system is the utilization of this hot water. As per the provisions of the tariff, it is only the first stage with which we are concerned i.e. the solar water heating system.
The system installed by the petitioner fulfills the parameters laid down by the Solar Energy Corporation in describing a solar water heater i.e. a collector to trap the heat, heat transferred by pipes so that water in the pipes gets heated and is delivered to a storage tank. As per the certificate given by the Agency which provided the system, Taylormade Solar Solutions an Ahmedabad company, each parabola has a capacity to generate 875 liters of hot water at 60 degrees or 35 KGs of steam. The petitioner has got installed 10 parabolas which together have a total capacity for generating 8750 litres of hot water."
It cannot be said that it suffers from any legal infirmity in determining the extension of benefit of rebate under regulation 8 to the respondent. However, the learned counsel for the respondent submits that if the rules thus framed are interpreted in the fashion as referred above and if at all the respondent is brought within the ambit of regulation for the extension of benefit of rebate contemplated therein, which ought not to have been made effective retrospectively which is claimed from the date of installation of the system of water heating.
The logic behind the argument of the learned counsel for the petitioner is that if the language of Rule 8 is read in precision for the purposes of entitlement of the rebate there are two aspects, i.e. "installation" and the ultimate "use", it has to go simultaneously for the extension of benefit under regulation 8, which would entitle them for the rebate from the date of installation of system, i.e. w.e.f. 2010 i.e. to be precise w.e.f. 07.05.2010.
In the case at hand admittedly there is an intervening four years period from the date of installation till the date when the respondent had applied for the first time for the grant of the benefit of rebate from the date of the application. Since the enforcement of benefit of rebate under the rules has been sought to be determined and claimed by the respondent by filing an application for the first time on 31.03.2014 and also considering the fact that the use of the water heating system and the purpose for which it is being put to use by the consumer will have no bearing in determining the rebate contemplated under regulation 8, but the fact remains that the learned Ombudsman in the impugned judgment dated 28.05.2015 while extending the benefit of rebate under regulation 8, of the regulation framed under the Act had nowhere considered or has laid down any rationale with regards to the extension of benefit of rebate from the date of installation and its simultaneous use from the date of the installation.
At times there can be circumstances which cannot be ruled out that the installation might have take place earlier and its actual utilization of the water heating system may be put to at a later stage, and that is why under regulation 8 for getting the rebate it was incumbent on the respondent to have established by evidence on record before the Court below that the use of the water heating system thus installed on 07.05.2010 also simultaneously took place w.e.f. the date of its installation. Neither there is any such case pleaded by the petitioner nor even the Ombudsman had dealt with the said aspect with regards to the "installation" and the "use" of the water heating system, which as per the regulations has to go together. In the absence of there being any pleading and finding to the said effect the respondent would not be entitled for the grant of any rebate under regulation 8 merely because of assertion or a pleading raised in the representation that the water heating system since was installed on 7.05.2010 they would be entitled for the rebate since then. In fact, to bring himself within the ambit of entitlement of rebate under regulation 8, it was the responsibility of the respondent to have established and pleaded either before the Ombudsman or even before this Court that the two aspects contained under regulation 8 had been carried by them simultaneously from the date of installation, i.e. "installation" and "use".
The very fact that the respondent had moved his application for the grant of rebate under regulation 8 on 31.03.2014, shows that in fact the claim which was raised by him for the grant of rebate was for the first time agitated in 2014 and, hence, if at all the water heating system installed by the respondent is entitled to receive the rebate it would be at the most only w.e.f. the date when he actually applied before the respondent.
In view of the above, the writ petition is being disposed of with the direction that while upholding the order of the Ombudsman dated 28.05.2015 the only distinction, which is being carved out by this Court is that the petitioner is entitled for the rebate it would be from the date when he has applied, i.e. 31.03.2014, before the petitioner and not from the date which he has claimed to have installed the water heating system.
In view of the above, the writ petition only partially succeeds to the effect that the rebate if at all would be paid it would be payable w.e.f. 31.03.2014 and not w.e.f. 07.05.2010 as directed by the impugned judgment dated 28.05.2015.
Subject to the above observation, the writ petition particularly the impugned order is dismissed and is modified to the extent that the respondent would be entitled for the rebate under Rule 8 only w.e.f. 31.03.2014 when they had applied for rebate for the first time.
The writ petition is dismissed, subject to above modification of extension of benefit of rebate only w.e.f. 31.03.2014.
However, there would be no order as to cost.