Orissa High Court
The Executive Engineer Elect Talcher ... vs Ms. Rana Sponge Limited And Another on 16 February, 2016
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 22225 of 2010
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
----------
The Executive Engineer, (Elect), ......... Petitioner
Talcher Electrical Division,
Chainpal, Dist-Dhenkanal
-versus-
M/s. Rana Sponge Limited & ......... Opp. Parties
Another
For Petitioner : M/s. N.C. Panigrahi (Sr. Adv.),
N.K.Tripathy & D. Dhall
For O.P. No.1 : M/s. K. Jena & D. Mohanty
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 08.02.2016 | Date of judgment: 16.02.2016
Dr. B.R.Sarangi, J.The petitioner, who is the Executive Engineer, (Electrical), Talcher Electrical Division, Chainpal in the district of Dhenkanal has filed this application to quash the judgment dated 09.07.2010 passed by the Grievance Redressal Forum in Consumer Complaint Case No.65/2010 in Annexure-3 directing him to refund/adjust the amount already invested by opposite party no.1 for augmentation of 9 kms. Of 2 the 33 KV line from Chainpal Structure to Saranga Sub-Station amounting to Rs.43,34,651/- as per O.E.R.C. Rules in 24 months equal installments in the future energy bills.
2. The short facts of the case in hand is that opposite party no.1 as a complainant filed Consumer Complaint case before opposite party no.2 stating inter alia that it is a large Industrial consumer coming under the jurisdiction of the O.P. bearing consumer No. LRI-0037 with contract demand of 4.5MVA load. The opposite party no.1 is a regular payer of energy bills and availing 33 KV power supply from Saranga 33/11KV sub-station. The opposite party no.1 constructed the line as per the estimate vide estimate No. 420/04-05 which was communicated to the O.P. by D.G.M.(Elect.) (Technical), CESCO, vide his letter No. -33883 Dt. 02.12.04. Such estimate was in two parts i.e. part „A‟ and part „B‟. As per part A of the estimate, augmentation of existing 33 KV line conductor size 34/55 mm 2, 9KMs i.e. from Chainpal to Saranga 33/11 KV substation. This part of the estimate amounts to Rs. 43,34,651/- and 6% supervision charge was Rs. 2,45,358/-. This was purely a system improvement work of the licensee and for such work a single consumer should not be burdened. As per part „B‟ of the estimate, construction of 33 KV line of about 9kms from Saranga to Kulei plant site amounts to Rs. 50,63,354/- and supervision charges of 6% i.e. Rs.2,86,605/-. The total estimated amount was Rs. 93,98,006/- out of which the total supervision charge was Rs.5,31,963/-. The complainant had paid supervision charges and 3 executed the work. In the letter of the D.G.M. (Elect.), CESCO, Bhubaneswar one direction was that the 33 KV line to be maintained by the licensee but the complainant shall arrange watch and ward of the 33 KV line to avoid theft, which meant that the line was also to be maintained by the complainant which is contrary to law and vague direction to a honest consumer. The sprit of such letter was, a prospective consumer like the complainant will, construct the line with 6% supervision charge, the same line though belongs to the licensee, was to be maintained by the complainant. Only part of the licensee‟s job was to collect revenue from such consumer without any responsibility. It was not as per rules and regulations in force. As per Code „13‟ 1, Appendix-1 of Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004, "In case the scheme of supply is not remunerative, as above, the applicant shall be required to bear the portion of charge to make the scheme remunerative. In the instant case no such remunerative calculation was made by the petitioner but simply direction was given to the complainant-opposite party to pay 6% supervision charges. In every Annual Revenue Requirement (ARR) and Retain Supply Tariff (RST) order, the licensee inform that remunerative calculation was being attached to the estimate where the deposit was taken from the consumer or consumer‟s undertaking the works for extending new service connection." But in reality no such remunerative calculation was made for this opposite party no.1 and in this regard it has 4 requested for such remunerative calculation vide letter dt.18.07.05, dt. 24.08.05, dt. 04.07.06 and dt.02.05.09. Consequently, it sought for following reliefs:
(1) to prepare remunerative calculation for such work as per OERC Regulation in force and intimate the amount to be paid by CESU and such amount to be adjusted in bill with interest and (2) work for augmentation of existing 33 KV line from Chainpal to Saranga 33/11 KV Sub-station should be on system improvement scheme of CESU.
After due adjudication, learned Grievance Redressal Forum (in short GRF) has come to a definite finding that when everything was completed and few months after power supply was availed at 33 KV line, the claim made by opposite party no.1 for reimbursement of the expenses appears to be an after-thought issue and hence is devoid of merits for consideration and held that opposite party no.1 is not entitled to any claim for the construction of the new 33 KV line from Saranga Sub-station to his plant site and the matter of bearing the entire expenses by opposite party no.1 for the augmentation work and restoration of power supply in the already existing 33 KV line (maintained by the petitioner) between Chainpal structure and Saranga Sub-station for a distance of 9 Kms and for availing 33 KV supply to his plant is a debatable question based on various records available on this issue. It is further held that so far as refund of fees deposited by opposite party no.1 towards electrical inspection is concerned, there being no such provision in the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) 5 Code, 2004, the said prayer merits no consideration and rejected accordingly. Therefore, the learned Grievance Redressal Forum has passed the following order:
" i) The complainant is not eligible for any refund/adjust of the cost towards execution of the 9kms new 33KV line from Saranga Substation to his plant site.
(ii) Based on the principles as indicated above the complainant is eligible for refund/adjust of the amount arrived at towards execution works meant for renovation/augmentation of 9Kms of the 33 KV line from Chainpal Structure to Saranga Sub-Station. The O.P. is directed to adjust the amount already invested by the complainant for augmentation of the work amounting to Rs. 43,34,651/- as per the estimate. Such amount will be adjusted as per O.E.R.C. Rules in 24 months equal installments in the future energy bills.
(iii) The O.P. is directed to prepare one remunerative calculation on this scheme, for the expenditure incurred for construction of new lines from Saranga Sub-Station to the plant site of the complainant and a copy of the calculation sheet should be submitted to the complainant within 2 months from the date of this order and further directed to act accordingly as per the above direction within 2 months from the date of this order."
Being aggrieved by the order passed by the learned Grievance Redressal Forum, the petitioner has filed this application.
3. Mr. S.R. Panigrahi, learned counsel for the petitioner raises preliminary question with regard to the jurisdiction of the GRF to pass such judgment since the dispute before the forum is of a civil nature involving monetary claim. The OERC (Grievance Redressal Forum and Ombudsman) Regulation, 2004 does not authorize the GRF to adjudicate monetary disputes thereby consequential direction given for refund or adjustment of amount cannot sustain in the eye of law. It is further urged that after expiry of 5 (five) years from the date of 6 supply of power for remunerative calculation and adjustment of excess amount if any as claimed by opposite party no.1 is barred by limitation.
4. Mr. K.K. Jena, learned counsel for opposite party no.1 submits that in view of the provisions contained in Clause-13 (i) of OERC Distribution (Conditions of Supply) Code, 2004 read with Para 287 of ARR & RST Order for FY 2008-09, the learned GRF has jurisdiction to pass such order. Therefore, the claim so made by opposite party no.1 is not barred by limitation as per Regulation-94(2) of OERC Distribution (Conditions of Supply) Code 2004 read with Section-56(2) of the Electricity Act 2003 thereby opposite party no.1 is entitled to get refund of amount as claimed.
5. On the basis of the facts pleaded above, it is to be considered whether the learned GRF has jurisdiction to entertain the Consumer Complaint case lodged by opposite party no.1 for adjudication of the monetary dispute and issuance of direction for refund/adjustment of the amount.
6. Since both the issues are inter-linked they have been taken together.
Para 2.3 of Circular No.GRF-1/2004 dated 19.10.2004 envisages the various nature of complaints to be decided by the GRF as provided which reads as follows:
7
"2.3. Subject to the provisions of the Electricity Act, 2003, Rules, Regulations, Notifications made thereunder, the Forum shall generally dispose of the complaints relating to defects or deficiencies in Electrical services as defined in relevant Regulations".
Few examples of the nature of the complaint are illustrated below :
i) New connections
ii) Disconnection/Reconnection of supply
iii) Voltage fluctuation
iv) Contract demand/connected load
v) Billing disputes (except penal bill U/s. 12 of the
Electricity Act, 2003)
vi) Interruptions
vii) Metering (except dispute regarding accuracy of the
meter)
viii) Classification/Re-classification of consumer
ix) Shifting of service connection/Diversion of lines and shifting of equipment.
x) Transfer of consumer ownership
xi) Agreement/Termination of agreement
xii) Security deposit
xiii) Installation of equipment and apparatus of the consumer
xiv) System of supply including guaranteed standards of performance. The above list is only indicative and not exhaustive.
Taking into consideration the few examples of nature of complaint as mentioned in 2.3 of the Circular, the money claim and refund of any such amount have not been spelt out specifically. 8
7. Mr. K.K. Jena, learned counsel for opposite party no.1 submits that the claim of opposite party no.1 is based on Clause-ix and Clause-xiv of para-2.3 of the circular dated 19.10.2004, but as it appears from the relief sought for before the learned GRF, neither Clause-ix nor Clause-xiv of para-2.3 of the said Circular is attracted, rather the relief sought is completely based on surmises and conjectures. In any case, on the basis of the power vested on the GRF as per para-2.3 of the Circular dated 19.10.2004 mentioned above, it can be stated that the GRF has no jurisdiction to entertain such claim.
8. Apart from the same, on perusal of the impugned order dated 09.07.2010, it appears that opposite party no.1 had voluntarily executed the work at his own cost and when everything was completed and after power supply was availed at 33 KV, such claim was made after lapse of five years from the date of supply of power for reimbursement of the expenses by filing the complaint case which appears to be an afterthought. Hence, the direction issued by the learned GRF for refund/adjustment of the amount arrived at towards execution works meant for renovation/augmentation of 9 Kms of 33 KV line from Chainpal Structure to Saranga Sub-station thereof cannot sustain. Moreover, the claim being purely a money claim for refund/realization of money which has to be made within three years from the due date, the same is barred by limitation. In order to avoid such situation, opposite party no.1 lodged the complaint before the 9 learned GRF, who has no jurisdiction to entertain the same after five years and pass the order impugned.
9. In view of the aforesaid facts and circumstances of the case, this Court is of the considered view that with regard to the nature of relief sought for by opposite party no.1 in Consumer Complaint Case No.65/2010 under Annexure-3, the learned Grievance Redressal Forum has no jurisdiction to entertain the said case as per para-2.3 of Circular No.1/2004 dated 19.10.2004. Accordingly, the order dated 09.07.2010 passed by the learned Grievance Redressal Forum in Consumer Complaint Case No.65/2010 under Annexure-3 is hereby quashed.
10. The writ petition is allowed.
....................................
Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 16th February, 2016/Alok