Orissa High Court
Executive Engineer vs Grievance Redressal Forum on 29 September, 2014
Author: B.K. Patel
Bench: B.K. Patel
HIGH COURT OF ORISSA : CUTTACK.
W.P.(C) NO.28024 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
-------
Executive Engineer,
Rourkela Electrical Division, WESCO,
Rourkela, Dist. Sundargarh ...... Petitioner
- Versus-
Grievance Redressal Forum,
Rourkela, Plot No.UU/9 Civil Township,
Rourkela, Dist. Sundargarh and another ...... Opposite Parties
For Petitioner : M/s. B.K. Nayak-1 and
D.K. Mohanty
For Opp. Parties : M/s. Sreejit Mohanty,
Debraj Mohanty and
A.K. Nath (O.P.2)
PRESENT:
THE HONOURABLE SHRI JUSTICE B.K. PATEL
Date of Hearing: 01.07.2014 :: Date of Judgment - 29.09.2014
B.K. PATEL,J. In this writ petition, the petitioner representing distribution
licensee WESCO, has assailed the legality of order dated 11.11.2013 passed
by Grievance Redressal Forum, Rourkela (for short 'the GRF') in Case No.57
of 2013 in which it was held that claim of the petitioner of reliability
surcharge in the energy bills for the months of May and June, 2013 from
opposite party no.2 was unjust and the petitioner was directed to revise the
energy bills of opposite party no.2 for the months of May and June, 2013
waiving out the reliability surcharge from the bills.
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2. Opposite party no. 2, situated at Kalunga Industrial Estate, is
a mini steel plant, having contract demand of 2600 KVA, availing power
supply from the industrial feeder which emanates from 132/33 KV grid
substation on the strength of agreement dated 20.6.2012 at Annexure-1
entered into with WESCO. Clauses-6 and 7 of the agreement at
Annexure-1 read as follows:
"(6) Charges to be paid by the Consumer: The
Consumer shall pay to the Engineer for power demanded
and electrical energy supplied under this agreement
minimum monthly charges, 'demand charges', 'energy
charges' and 'other charges' in accordance with the
provisions of OERC Distribution (Conditions of Supply)
Code, 2004 and as notified in the Tariff Notifications from
time to time:
In Large Industry category.
Provided that annual sum payable by any individual
consumer under the provision to Section 45 of the Indian
Electricity Act, 2003, shall not be deemed to be part of the
minimum monthly charges or demand charges, if any,
payable by the consumer or the particular class of
consumers under Regulations 84 and 85 of the OERC
Distribution (Conditions of Supply) Code, 2004.
Provided further that the consumer shall pay
electricity duty or such other levy, tax or duty as may be
prescribed under any other law in addition to the charges,
fuel surcharge and transformer loss payable under the
OERC Distribution (Conditions of Supply) Code, 2004.
(7) The tariff and conditions of supply mentioned in
this Agreement shall be subject to any revision that may
be made by the Licensee from time to time."
Thus, Clause-6 of the agreement specifically provides that opposite party
no.2 is liable to pay, apart from minimum monthly charges, demand
charges and energy charges, 'other charges' in accordance with provisions
of the Orissa Electricity Regulatory Commission Distribution (Conditions
of Supply) Code, 2004 (for short 'the OERC Code) and as notified in the
Tariff Notifications from time to time in Large Industry category. Orissa
Electricity Regulatory Commission (for short 'the OERC) Tariff Orders or
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Notifications did not provide for 'reliability surcharge' earlier. However,
reliability surcharge was made leviable on high end consumers under
certain conditions as provided under paragraph 196 in the OERC Tariff
Order for the financial year 2013-14 (for short 'the Tariff Order') which
came into effect from 1.4.2013. Paragraph 196 of the Tariff Order read as
follows:
"196. Reliability Surcharge
Many concerns, basically HT/ EHT Industries
brought to the notice of the Commission regarding
uninterrupted quality power supply to their units. Many
process industries particularly connected with the
dedicated feeders from the Grid of OPTCL and Primary
sub-station of DISCOMs objected to the restrictions being
imposed on their units by the DISCOMs in case of exigency
with or without the express intimation of SLDC. While
there is a need to supply uninterrupted power to high end
HT/EHT consumers this has to be viewed in the overall
perspective of a situation of system unavailability / power
deficit where a large number of ordinary consumers suffer
power cut during peak hours and also sometimes during
the summer months. The Commission is, therefore, of the
view that for getting uninterrupted power supply in this
adverse scenario the high end consumer must compensate
the DISCOMs who may otherwise would have imposed
power cuts on those consumers. Therefore, we introduce a
concept of reliability surcharge in this tariff order for FY
2013-14. The reliability surcharge shall be payable to
start with such HT and EHT consumers who get power
supply through dedicated feeders from OPTCL Grid sub-
station or from the primary 33/11 KV sub-station of
DISCOMs. The reliability surcharge shall be 20 paise per
unit for all the units consumed by such HT and EHT
consumers in the billing month. This surcharge is leviable
over and above the bill amount based on normal tariff for
that category of consumers after the rebate and penalty if
any. The reliability surcharge is leviable provided following
two conditions are satisfied.
(a) If Reliability Index formula which is given below is at
or more than 99 % in a month.
Reliability Index for dedicated feeder for the month
[1 SAIDI for the dedicated Feeder ] x 100
24 x 60 x nos. of days in the month
and
(b) The voltage variation at the consumer premises is as
per Section 2.1 (Schedule 1) of OERC (Standard of
Performance) Regulation, 2004. (underline supplied)
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DISCOMs shall also attach the reliability index calculation
and voltage variation report with the bill in case of levy of
reliability surcharge. They are not required to pay any
charges for this report to be attached with the bill. We also
direct M/s. OPTCL to co-operate for ensuring
uninterrupted power supply without restriction to such
consumers." (underline supplied)
3. In purported exercise of authority to impose reliability
surcharge under paragraph 196 of the Tariff Order, WESCO levied
reliability surcharge on opposite party no.2 in its energy bills for the
months of May and June, 2013. Opposite party no.2 filed complaint
bearing Case No.57 of 2013 challenging imposition of reliability surcharge
on the ground that pre-conditions for levy of reliability surcharge as
provided at paragraph 196 of the Tariff Order do not exist inasmuch as
opposite party no.2 does not get power supply through dedicated feeder
from OPTCL grid sub-station or from the primary 33/11 KV sub-station of
the WESCO. WESCO filed objection against the complaint. On
consideration of rival contentions and materials on record the GRF passed
the order impugned in this writ petition on the basis of following findings:
"Tariff order of OERC for the FY 2013-14 at Para-
196 speaks about reliability surcharge for HT and EHT
consumer. Para-196 speculates that, the reliability
surcharge shall be payable to start with such HT and EHT
consumer who get power supply through dedicated feeder
from OPTCL Grid substation or from the primary 33/11
KV substation of DISCOMs. The reliability surcharge shall
be 20 paisa per unit for all the units consumed by such HT
and EHT consumers in the billing month. This such as is
leviable or all above the bill amount based on normal tariff
for that category of consumers after the rebate and penalty
if any.
From the above tariff order this forum
understands that, getting power supply through
dedicated feeder is a prerequisite for the purpose of
claiming reliability surcharge. In the instant case the
petitioner is getting power supply from 33 KV, Kalunga
feeder emanating from 132/33 KV Grid substation,
Rourkela which is not a dedicated feeder from OPTCL Grid
to the petitioner's industry. Around 15 Large Industries
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consumers are also getting power supply from the said
feeder as per the documents submitted by the Distribution
Licensee."
Thus, the GRF recorded the finding that opposite party no.2 is getting
power supply from 33 KV, Kalunga feeder emanating from 132/33 KV grid
substation which is not a dedicated feeder from OPTCL grid to the
petitioner's industry inasmuch as around 15 Large Industries consumers
are also getting power supply from the said feeder as per the documents
submitted by the WESCO. In such circumstances, opposite party no.2
does not satisfy the first prerequisite under paragraph 196 of the Tariff
Order for getting power supply through dedicated feeder so as to be liable
for payment of reliability surcharge.
4. It is not disputed that opposite party no.2 is getting power
supply through feeder emanating from 132/33 KV grid substation,
Rourkela through which feeder other Large Industries consumers are also
getting power supply. Opposite party no.2 does not dispute that reliability
index was more than 99 per cent and voltage variation was as per Section
2.1 (Schedule I) of the OERC (Standard of Performance) Regulation, 2004
(for short 'the OERC Regulation') during the months of May and June,
2013.
5. It was contended by the learned counsel for the petitioner
that the GRF has committed illegality in holding that opposite party no.2
does not get power supply through dedicated feeder. Placing reliance on
the decision of the Madhya Pradesh High Court in K.S. Oils Ltd. -vrs.-
Madhya Pradesh Kschetra Vidut Vitran Company Ltd., Bhopal &
others: AIR 2013 Madhya Pradesh 167 it was argued that a dedicated
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feeder does not mean that it can be used only by a single consumer to run
its unit. It was further argued that in the present case power supply has
been given through the same feeder to the opposite party no.2 and other
similar industrial units only. No supply of power is given through the
feeder to any general consumer. There being no dispute that power supply
to opposite party no.2 industry fulfills the criteria of reliability index as
well as the standard of voltage variation as provided under sub-
paragraphs (a) and (b) of paragraph 196 of the Tariff Order, reliability
surcharge was rightly levied.
6. Per contra, it was contended by the learned counsel for
opposite party no.2 that the first and foremost prerequisite for levy of
reliability surcharge is supply of power through a dedicated feeder as is
evident from paragraph 196 of the Tariff Order. The provision for levy of
tariff is essentially a fiscal provision for which it is to be construed
strictly. Paragraph 196 of the Tariff Order presupposes fulfillment of three
conditions for levy of reliability surcharge. The very first condition is that
reliability surcharge shall be payable by such HT and EHT consumers
who get power supply through dedicated feeder from OPTCL grid
substation or from the primary 33/11 KV substation of DISCOMs.
Secondly, the reliability index must be more than 99 per cent. Third
condition is that the voltage variation on the consumers' premises must
be as per Section 2.1 (Schedule I) of the OERC Regulation. Distribution
licensee cannot levy reliability surcharge in the absence of any of the
three conditions. It was submitted that the term 'dedicated feeder' has
not been defined either in the Electricity Act, 2003, or any of the Rules,
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Regulations or Code applicable to Odisha including the OERC Code. In
the Tariff Order also the term 'dedicated feeder' has not been defined. In
ordinary parlance 'dedicated feeder' means a feeder which is connected to
a single consumer. Even the OERC Code envisages supply of electricity
through a feeder to a single consumer. Regulation 27 of the OERC Code
provides for arrangement agreed to in writing for providing service line for
exclusive use of a consumer. Admittedly, the feeder through which
opposite party no.2 gets electricity supply has not been agreed upon to be
used exclusively by opposite party no.2. It was further submitted that
Regulation 2(f) of the Andhra Pradesh Electricity Regulatory Commission
provides that 'dedicated feeder' means feeder emanating from substation
where transformation to the required voltage takes place and feeds power
to a single consumer having contracted capacity of minimum fifty percent
of line capacity or more. Similarly, Regulation 5.3 of the Meghalaya State
Electricity Regulatory Commission provides that the licensee shall not
extend electric supply to any other consumer from the dedicated feeder.
Clause 24 of Kerala Electricity Supply Code, 2014 provides that the
service line and other equipment of a consumer with a dedicated feeder
shall not be used to supply power to another consumer. Referring to
paragraphs-6 and 11 of the judgment of the Appellate Tribunal For
Electricity, New Delhi passed in Appeal No.109 of 2011 in the case of
Maharashtra State Electricity Distribution Co. Ltd. -vrs.-
Maharashtra Electricity Regulatory Commission and R.L. Steels Ltd.
(MANU/ET/0132/2011) it was argued that dedicated feeder has been
specifically referred to by the Appellate Tribunal for Electricity to be a
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feeder where only one consumer is connected. It was further argued that
all licensees under the Electricity Act are obliged to ensure uninterrupted
quality power supply without voltage fluctuation or variation to the
consumers. The consumer is not liable to pay any surcharge for availing
services which licensees are obliged to provide. Reliability surcharge is
envisaged by the OERC to be levied only on such HT and EHT consumers
who get such quality supply through dedicated feeders. It cannot be levied
on a consumer whenever in a particular month reliability index and
voltage variation are in accordance with the standard prescribed in sub-
paragraphs (a) and (b) of paragraph 196 of the Tariff Order, irrespective of
the manner of use of the feeder.
7. From the admitted facts as well as averments and rival
contentions made by the parties, it is evident that the petitioner
distribution licensee also does not dispute that supply of electricity
through a dedicated feeder is an essential prerequisite for levy of
reliability surcharge. However, in spite of the fact that as many as about
fifteen other Large Industries consumers are getting power supply
through the same feeder, learned counsel for the petitioner contended
that such feeder is a dedicated feeder. On the other hand, case of opposite
party no.2 is that electricity supply is not given through a dedicated
feeder. Therefore, the only issue which requires to be decided in this case
is as to whether the feeder through which opposite party no.2 is getting
electricity supply is a dedicated feeder or not.
8. None of the statutory provisions or Rules and Regulations
applicable to the State of Odisha including the OERC Code provide for the
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definition of the term 'dedicated feeder'. As has been stated at paragraph
196 of the Tariff Order, the fiscal concept of levy of reliability surcharge
was introduced to start with such HT/EHT consumers who get power
supply through dedicated feeders from OPTCL grid substation or from the
primary 33/11 KV substation of DISCOMs. Learned counsel for the
petitioner vehemently argued that the term 'dedicated feeder' has to be
assigned the meaning as assigned by the Madhya Pradesh High Court in
K.S. Oils Ltd. -vrs.- Madhya Pradesh Kschetra Vidut Vitran Company
Ltd., Bhopal & others (supra) in which the sole question before the Court
was as to whether distribution licensee can be allowed to provide power
supply to any other consumer from the dedicated feeder provided to the
appellant at appellant's cost. Upon reference to Clause 5.3 and placing
reliance upon clause 4.9 of the M.P. Electricity Supply Code, 2004 (for
short 'the M.P. Code'), the question was answered in the affirmative.
Clause 5.3 of the M.P. Code reads as follows:
"5.3 Consumers desirous of getting power supply from
dedicated feeders may request for such facility to the
licensee. The dedicated feeder shall be extended from the
Power Sub-station to the consumer's point of supply. In
such cases the consumers shall be liable to pay the cost of
Bay and all protection Switchgears and its accessories
provided at the power sub-station for this feeder in
addition to the cost of the feeder. On receipt of such
request, the licensee will check the feasibility based on
merits of providing a dedicated feeder to the consumer's
premises. It found feasible, the consumer will be provided
with a dedicated feeder and the consumer will be liable to
pay additional charges as indicated in the Schedule of
Miscellaneous Charges."
Thus, it is evident that Clause 5.3 of the M.P. Code simply provides for
modalities for providing dedicated feeder to a consumer. It is not a fiscal
provision. Clause 4.9 of the M.P. Code reads as follows:
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"4.9 The service connection/extension of distribution
mains, notwithstanding that it has been paid for by the
consumer, shall be the property of the licensee. The
licensee shall maintain it at its cost and shall also have the
right to use the same service connection/ extension for
supply of energy to any other person but such extension or
service connection should not adversely affect the supply
to the consumer who paid for the extension of the
distribution supply network."
Thus, Clause 4.9 of the M.P. Code explicitly provides that service
connection/ extension, cost of which has been paid by the consumer, can
be permitted by the licensee to be used for supply of energy to any other
person. In such circumstances, it was held that the licensee may provide
connection to any other consumer from the feeder installed in accordance
with Clause 5.3 of the M.P. Code.
9. In absence of any definition, the term 'dedicated feeder',
understood in ordinary parlance, means a feeder provided for the
exclusive use of a consumer. In the present case, admittedly, the feeder
through which opposite party no.2 is getting power supply is used for
power supply to other industries also. Provision for levy of reliability
surcharge introduced for the first time during the financial year 2013-14
is a fiscal provision intended to levy the surcharge as one of the 'other
charges' in terms of Clauses 6 and 7 of the agreement dated 20.6.2012 at
Annexure-1 entered into between the parties. Therefore, the term
'dedicated feeder' has to be given a strict interpretation.
10. Learned counsel for opposite party no.2 has brought to the
notice of the Court definition of the term 'dedicated feeder' assigned by the
Electricity Regulatory Commissions of some other States.
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11. Regulation 2(f) of the Andhra Pradesh Electricity Regulatory
Commission provides as follows:
"(f) "Dedicated Feeder" means feeder emanating from
substation where transformation to the required voltage
takes place and feeds power to a single consumer having
contracted capacity of minimum fifty percent of line
capacity or more. The Consumer shall bear the full line
cost, including take off arrangements at Substation end of
the Licensee. In such cases the billing meter shall be
provided at the Licensee's sub-station." ( underline
supplied)
12. Regulation 5.3 of the Meghalaya State Electricity Regulatory
Commission provides as follows:
"5.3 Dedicated Feeder
Consumers other than 3 MVA & above including
steel and other similar industries desirous of getting power
supply from dedicated feeder may make a request for such
facility to the licensee. The dedicated feeder shall be
extended from the power substation to the consumer's
point of supply. In such cases the consumers shall be
liable to pay the cost of Bay and all protection switchgears
and its accessories provided at the power substation for
this feeder in addition to the cost of the feeder. On receipt
of such request, the licensee will check the feasibility,
based on merit, of providing a dedicated feeder to the
consumer's premises. If found feasible, the consumer will
be provided with a dedicated feeder and the consumer will
be liable to pay additional charges such as supervision
charges, etc. as approved by the Commission from time to
time. The Licensee shall not extend electric supply to any
other consumer from the dedicated feeder." (underline
supplied)
13. Similarly, Clause 24 of the Kerala Electricity Supply Code,
2014 provides as follows:
"24. The service line, meter and associated equipment
deemed to be the property of the licensee.- (1) The
whole of service line, meter and other associated
equipment shall be deemed to be the property of the
licensee and shall remain under his control so long as they
are connected to the distribution system of the licensee.
(2) The licensee may use the service line and other
apparatus to give supply to other consumers, if the supply
to the consumer who has paid for such line and apparatus
is not affected adversely:
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Provided that the service line and other equipment
of a consumer with a dedicated feeder shall not be used to
supply power to another consumer.
(3) Even if the supply to the consumer who has paid for
the line or equipment is disconnected, for whatsoever
reason, the consumer shall permit the licensee, continued
access to the service line and other equipment if they are
required to give supply to other consumers, until alternate
arrangements are made by the licensee:
Provided that no payment shall be due to the
consumer for such access or facility.
(4) The licensee shall make all possible efforts to
provide alternate arrangement or mutually acceptable
arrangement for continuation of the installation at the
existing place, as early as possible." (underline supplied)
14. Appellate Tribunal for Electricity, New Delhi, constituted
under Section 110 of the Electricity Act, 2003 at paragraphs 6 and 11 of
the order passed in Maharashtra State Electricity Distribution Co.
Ltd. -vrs.- Maharashtra Electricity Regulatory Commission and R.L.
Steels Ltd. (supra) has observed as follows:
"6. On 13.11.2009, the Appellant submitted a petition
being Case No.71 of 2009 before State Commission praying
for allowing the Appellant to levy of low voltage surcharge to
consumers connected on non-express feeders (more than
one connection on the said feeder) at voltages lower than
that specified in Standard of Performance Regulations. The
Appellant also prayed that in case of dedicated feeders
(where only one consumer is connected), the Appellant may
be allowed to charge on the basis of consumption recorded
by meters installed at sending end and receiving end
whichever is higher.
Xx xx xx xx xx
Xx xx xx xx xx
11. The State Commission disposed of this petition in
Case No.52 of 2010 through a Clarificatory order dated
9.11.2010. In this order, the State Commission clarified that under its Order dated 5.3.2010 the levy of 2 % extra units cannot be made if the power supplied was connected on dedicated feeder (only one connection on the said feeder). Levy of 2 % extra units was applicable only if consumer is connected on non-dedicated feeder (more than one connection on the said feeder)." (underline supplied) 13 Thus, the Appellate Tribunal For Electricity has clearly assigned the meaning of 'dedicated feeder' to be a feeder to which only one consumer is connected.
15. It is not disputed that the feeder through which opposite party no.2 gets power supply has never been agreed upon by the parties either in the agreement at Annexure-1 or in any subsequent instrument to be used exclusively by opposite party no.2. That goes to indicate that it was never meant to be a dedicated feeder. A close reading of paragraph 196 of the Tariff Order would reveal that the concept of reliability surcharge was introduced in view of objection raised by industries particularly connected with "dedicated feeders" from the Grid of OPTCL substation and primary substation of DISCOMs. Considering objections and the scenario of the system of availability/power deficit the OERC introduced the concept of levy of reliability surcharge to be payable, to start with, such HT and EHT consumers who get power supply through dedicated feeders. Thus, reliability surcharge was levied on the basis of objections raised by a class of consumers availing power supply through dedicated feeders to be payable by such HT and EHT consumers who get power supply through dedicated feeders. The expression "dedicated feeders" occurs twice in paragraph 196 of the Tariff Order. In the absence of any definition of the expression "dedicated feeder" provided under the Statues, Rules, Regulations or the OERC Code, the OERC ought to have provided for a precise definition or meaning of the term "dedicated feeder"
in the Tariff Order itself. That having not been done, no fault can be found with the meaning of the expression "dedicated feeder' assigned by 14 the GRF in the impugned order, such meaning being in consonance with the meaning and definition of "dedicated feeder" assigned by Electricity Regulation Commissions of other States as well as the Appellate Tribunal for Electricity which are essentially expert technical bodies. The meaning sought to be assigned by the petitioner to the term "dedicated feeders"
would render the use of expression "dedicated feeders" by the OERC in paragraph 196 of the Tariff Order redundant. In the facts and circumstances of the case, the GRF has rightly held that the petitioner is not entitled to claim reliability surcharge from the opposite party no.2.
16. In view of the above, there is no merit in the writ petition. Accordingly, the writ petition is dismissed.
.......................
B.K. Patel, J.
Orissa High Court, Cuttack, Dated 29th September, 2014/B. Jhankar