• High Court interpreted me as apartment owner

I am the son of the registered allottees of a flat in a group housing society. My parents are elderly and ailing. I hold a Power of Attorney from them and manage all property affairs including the electricity connection and related legal disputes.

The society's Apartment Owners Association, which stands dissolved and sub-judice, took over electricity distribution from the Builder and blocked my prepaid meter recharge, conditioning restoration upon payment of unrelated non-electricity charges in violation of the Electricity Act, 2003.

I filed a complaint before the CGRF. The Forum accepted my standing without objection, heard all parties, and passed its final order in my name dismissing the complaint on maintainability grounds. Being aggrieved, I appealed before the Electricity Ombudsman. The Ombudsman directed addition of my parents as Co-Appellants; I complied. The Ombudsman now insists I remove myself entirely as a party and function only as a POA holder, with my parents as sole Appellants.

This is untenable. The Allahabad High Court in the Designarch judgment (Civil Misc. Writ Petition No. 33826 of 2012, Neutral Citation No. 2013:AHC:156175-DB, Division Bench, 14.11.2013) interpreted Section 3(d) of the U.P. Apartment Act, 2010 to hold that "apartment owner" extends to children of the allottee. I independently qualify as an apartment owner under this binding precedent. The Ombudsman, a creature of subordinate delegated legislation, cannot override a Division Bench ruling.

The impugned order was passed in my name. An appeal is a continuation of the same lis. The right to appeal vests in the aggrieved person. Removing me from the appeal against an order passed against me is a legal impossibility. I also independently qualify as a "consumer" under Section 2(15) of the Electricity Act, which does not require registered ownership.

https://www.uperc.org/App_File/CGRF/FinalOrderdated[deleted]-pdf[deleted]PM.pdf

Addition of Co-Appellants supplements parties; it cannot substitute the Primary Appellant. The Ombudsman acts suo motu on an undisputed point, Ultra Vires the scope of the Regulations. Reducing me to a POA holder extinguishes all independent rights including further remedies, and given my parents' condition, renders the litigation unenforceable.

https://drive.google.com/file/d/1M7CObmSXsLoUJHJjzWmJ-w1HvfpC_0PO/view?usp=drive_link

I seek opinion on whether the Ombudsman can remove a Complainant-turned-Appellant when the impugned order was passed in his name; whether the Designarch Division Bench judgment binds the Ombudsman on the scope of "apartment owner"; whether consumer status under Section 2(15) gives self-sufficient party rights; whether this direction Ultra Vires the Regulations; and what remedies exist including a writ under Article 226.
Asked 12 hours ago in Property Law
Religion: Hindu

First answer received in 30 minutes.

Lawyers are available now to answer your questions.

9 Answers

1) the Ombudsman can require parents as primary appellants, it is legally untenable to force you to remove yourself entirely, especially if you have a material interest or are authorized by a PoA to manage the property.

 

2) you are a "necessary party" and that your presence is crucial for the effective adjudication of the dispute, particularly as the order was against you 

 

3)If you are the child of the allottee, you fall within the definition of "apartment owner," and therefore, the "consumer" under the U.P. Apartment Act.

 

4) Division bench judgment is binding on the Ombudsman 

 

5) As the manager of the property and user of electricity (via PoA), you have a direct interest and qualify as a consumer/occupier. The insistence on removing you is, therefore, contrary to the broad definition of "consumer." 


 

6) the Ombudsman passes a final order removing you or dismisses the appeal because you refused to remove yourself, you can file a Writ Petition under Article 226 of the Constitution of India before the Allahabad High Court.

Ajay Sethi
Advocate, Mumbai
100160 Answers
8180 Consultations

No he can’t remove in such case

Prashant Nayak
Advocate, Mumbai
34807 Answers
254 Consultations

You should make payment under protest if the builder is holding the NOC hostage to force you to make payment 

 

2) if builder still does not give NOC issue legal notice to builder to give NOC as all dues have been paid 

 

3) you can file complaint against builder before consumer forum for deficiency in service 

 

4) you and your parents can be listed as Appellants 

 

5) Section 145 of the Electricity Act, 2003, acts as a jurisdictional bar, meaning civil courts cannot interfere in matters handled by authorized officers

 

6) in your written submissions argue that if the dispute is related to unauthorized use/theft (Section 126), the Ombudsman must strictly adhere to statutory provisions and cannot act mechanically.

Ajay Sethi
Advocate, Mumbai
100160 Answers
8180 Consultations

 

Dear client

If you haven't notified or shared your prior PSU (Public Sector Unit) job with your new employer and are starting out as a fresher in a public sector unit, there are some potential risks for you. The biggest risk will not become apparent until your background check is complete by your new employer or the new employer reviews your pm records.

 

Your UAN (Universal Account Number) that is issued by the EPFO (Employees' Provident Fund Organisation) is tracked against your previous public sector employment history. When you join the new employer and contribute to your existing UAN, if you have a prior public sector employer with a UAN with whom you worked and they contributed PF to the same UAN, your new employer will also be able to see any prior employer on that UAN.

 

Whether your new employer will look closely at PF contribution records or not will depend on their verification process. There are PSUs that complete a thorough verification prior to hiring whereas some PSUs only verify educational credentials and identity.

 

Because your previous employment with the PSU was training and not permanent, there may be entries (i.e., your employment with the PSU is recorded against you with the EPFO) as permanent employment even if your employment with the PSU was not permanent.

 

If your new employer discovers your misrepresentation during their background verification, they could penalise you as it relates to your interview or hiring process. The best course of action would be to prepare yourself with a valid and reasonable explanation; specifically, you were employed on a training basis (for a very short period) and were not a permanent employee of the PSU.

Anik Miu
Advocate, Bangalore
11155 Answers
125 Consultations

Firstly, if the complaint before the consumer forum was dismissed then you can approach for remedy to the state commission and not the Ombudsman.

You are not forbidden to approach Electricity ombudsman, but that will not be  pursuant to the consumer case or seeking relief against the dismissal of the consumer forum complaint. 

Well, since you have already approached the electricity ombudsman and they have recognized your representation as POA on behalf of your father without any objection, then the ombudsman cannot object  your representation, especially when this is a continuation of the lis. But, it is not understood that how come the complaint before the consumer forum and a complaint before the electricity ombudsman is a continuous lis? They both are separate entities. 

The other issues like ownership of apartment and the owner only has to file the complaint is untenable in law. As the POA agent as well as part of the household of the apartment under the society, you have all the rights to represent the case/complaint before the authorities concerned.

The ombudsman is incorrect in directing you to implead your father as an appellant and forcibly removing you, as you rightly observed it is ultra vires and can be challenged by filing a writ petition before high court. 

You can discuss with your lawyer and proceed to file a writ petition before high court seeking direction to ombudsman or to pas the relief directly on the basis of merits in your side.

T Kalaiselvan
Advocate, Vellore
90363 Answers
2518 Consultations

1. You can make the payment with objection to avoid disconnection of the supply and then look for legal remedies.

2. You can take the assistance of your advocate to draft the proposed memo because it is practical situation.

3. It is not that you cannot find a legal solution at all even if it is barred by the civil court's interference. 

The writ court can come to your rescue provided you present your case properly and convince the high court accordingly about the reliefs sought.

T Kalaiselvan
Advocate, Vellore
90363 Answers
2518 Consultations

1) Paying disputed electricity amounts under protest is a recognized method to avoid disconnection while the dispute is pending

2) If you pay under protest, you should formally submit the payment receipt, along with a copy of the Builder’s notice and evidence of the pending Civil Court case, to the Ombudsman. The Ombudsman can direct the "illegal entity" (AOA) to update their software and stop the fraudulent demand, provided they have jurisdiction over the entity.

 

3) Since the CGRF order was passed against you (likely because you were the acting consumer at the time of the complaint), you should remain the Primary Petitioner, with your parents listed as Co-Petitioners/Appellants. This ensures continuity from the CGRF order to the Ombudsman appeal.

Ajay Sethi
Advocate, Mumbai
100160 Answers
8180 Consultations

You will be the primary petitioner and you can have parents as co petitioner

Prashant Nayak
Advocate, Mumbai
34807 Answers
254 Consultations

If you pay the disputed electricity amount under protest, it does NOT automatically mean the dispute is settled.
Under the regulatory framework governing electricity grievance systems (for example under the rules framed by the Uttar Pradesh Electricity Regulatory Commission), the **Consumer Grievance Redressal Forum and the Electricity Ombudsman normally treat such payments as interim payment or payment without admission of liability.
Courts and electricity authorities routinely recognize “payment under protest” as preserving your right to dispute.
If you write clearly that the payment is:
"paid under protest and subject to outcome of proceedings before the Electricity Ombudsman / Civil Court"
then it  cannot legally be treated as final settlement
you retain the right to recover the amount if you win
the Ombudsman can still adjudicate the dispute.
If the AOA is not elected, did not maintain the records at that time, does not hold the connection then raising recovery for a past period is legally questionable because the creditor must be the person to whom the amount is legally payable.
If the builder himself says payment to AOA will not discharge liability, that strengthens your argument.
You can better pay the amount in court as court deposit so that the amount can be adjusted accordingly after the court verdict.
If the CGRF order named you as the complainant, the safest structure is you will be the Primary Petitioner and your parents will be co-petitioners.
Thus you should be Petitioner No.1 since the CGRF order names you so.

T Kalaiselvan
Advocate, Vellore
90363 Answers
2518 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer