Orissa High Court
M/S. Satguru Metals & Power vs Executive Engineer (Electrical) on 11 September, 2012
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) Nos. 176 and 763 of 2011.
W.P.(C) No. 176 of 2011
In the matter of application under Articles 226 & 227 of the
Constitution of India.
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M/s. Satguru Metals & Power ............ Petitioner
Pvt. Ltd. represented by its
Managing Director.
-Versus-
Executive Engineer (Electrical), ............ Opp. Parties
WESCO & others.
For Petitioner : Mr. Laxmidhar Pangari,
S.R.Pani,A.K.Das,
S.K.Mishra,B.R.Paramguru
For Opp. Parties : Mr. Pradipta Ku. Mohanty,
D.N.Mohapatra,Smt.S.Mohanty,
P.K.Nayak and S.N.Dash.
(For Opp. Party No.1)
And
W.P.(C) No. 763 of 2011
M/s. Satguru Metals & Power ............ Petitioner
Pvt. Ltd. represented by its
Managing Director.
-Versus-
Executive Engineer (Electrical), ............ Opp. Party
WESCO.
2
For Petitioner : Mr. Laxmidhar Pangari,
S.R.Pani,A.K.Das,
S.K.Mishra,B.R.Paramguru
For Opp. Party : Mr. Pradipta Ku. Mohanty,
D.N.Mohapatra,Smt.S.Mohanty,
P.K.Nayak and S.N.Dash.
P R E S E N T:
THE HON'BLE MR. JUSTICE B.K.MISRA
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Date of Judgment: 11.09.2012
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B.K.MISRA, J Both these writ petitions are being disposed of by
this common judgment as they relate to disruption of power
supply to the petitioner Company pursuant to the surprise
check made by the opposite party no.1 and his staff on the
night of 11.12.2010 when it was detected that the Petitioner
Company was abstracting power illegally and thereafter final
order of assessment towards the electricity charges to be paid
by the petitioner Company was passed on 29.12.2010 under
Section 126 of the Electricity Act, 2003.
2. The petitioner Company in W.P.(C ) No.176 of 2011
has prayed for quashing of the inventory report dated
3
11.12.2010(Annexure-7) as well as the provisional assessment order (Annexure-6) with a further prayer to direct the opposite party no.1 to continue power supply to the petitioner's premises till it is disconnected in accordance with law. In W.P. (C) No.763 of 2011 a prayer has been made to declare the impugned order dated 29.12.2010 under Annexure-6 void and nonest in the eye of law as well as for quashing of the same. A further prayer has also been made for quashing of the electricity bill for the month of December, 2010, Annexure-7.
3. The case of the petitioner Company as revealed in the Writ Petition Nos.176 and 763 of 2011 is that the petitioner Company entered into an agreement with the Executive Engineer (Electrical), Western Electricity Supply Company of Orissa Limited, Rajgangpur Electrical Division, namely opposite party no.1 on 5.6.2009 and availed power supply to its factory with a contract demand of 2700 KVA at a normal pressure of 33000 volts. The petitioner establishment was categorized as a Power Intensive Industry and was allotted a consumer No.358(PII) RRKL/3-0191. According to the petitioner, the petitioner Company was regularly paying the electricity charges pursuant to the bills raised by the opposite 4 party, the Executive Engineer till November and December, 2010. It is alleged that the plant of the petitioner was working in two shifts a day and all production activities used to be stopped in the plant around 8.00 to 8.30 P.M. According to the petitioner on 11.12.2010 the production work stopped in their plant around 8.30 P.M. and suddenly at 10.30 P.M. the power supply to the plant premises was snapped when nobody was present in the plant except the watch and ward staff. The next day morning when there was no resumption of power supply the petitioner's staff enquired from the office of the opposite party no.1 about the reason of such snapping of power supply and they were told that such power supply has been disconnected by the higher authorities of WESCO, but no specific reason was assigned by the opposite party, the Executive Engineer. On the contrary, on 21.12.2010 the petitioner received a letter dated 13.12.2010 of the opposite party no.1 that the power supply has been disconnected to the petitioner's premises as it was found on checking on the night of 11.12.2010 around 11.00 P.M. that the petitioner was abstracting electricity unauthorizedly and accordingly action under Section 135 of the Electricity Act, 2003 and Regulation- 5 46 of the O.E.R.C. Distribution (Conditions of Supply) Code, 2004 was resorted to (Annexure-1). On receipt of Annexure-1, the petitioner lodged a protest before the opposite party no.1 on 23.12.2010 (Annexure-2) contending therein that there was no production activity in the premises of the petitioner Factory after 8.30 P.M. on 11.12.2010 and when the main gate of the factory had been closed, the question of inspection of the petitioner's premises at 11.00 P.M. on 11.12.2010 is a hug wash and there was no basis for declaring the electrical installations of the petitioner unsafe. Since there was no restoration of power supply, the petitioner lodged an appeal under Rule-52 of the Indian Electricity Rules, 1956 before the Electrical Inspector, Rourkela (opposite party no.2), but there was no enquiry into the matter and power supply was not resumed. In the meanwhile, the opposite party no.1, the Executive Engineer served a notice on the petitioner along with provisional assessment order dated 21.12.2010 i.e. action under Section 126 of the Electricity Act, 2003 asking the petitioner to file objection if any by 27.12.2010 and directed to deposit Rs.2,13,02,241/-. Though the petitioner filed his objection but to his utter surprise the final order of 6 assessment was passed on 29.12.2010 and served on the petitioner under Section 126(3) of the Electricity Act, 2003 which according to the petitioner is patently illegal, arbitrary as the same was in violation of the principles of natural justice. The final order of assessment was challenged on the ground that there was no personal hearing of the petitioner and it was passed in a most cavalier manner and against the basic principles of natural justice and rule of law. Accordingly, the petitioner approached this Court under Articles 226 and 227 of the Constitution of India for the reliefs as has been indicated above.
4. The opposite party no.1, the Executive Engineer (Electrical), Rajgangpur Electrical Division, WESCO entered appearance and filed his counter affidavit wherein it is his case that in course of a surprise check made to the industrial premises of the petitioner on 11.12.2010 around 11.00 P.M. by his staff and officers along with experts of the Meter Relay Testing (MRT) squad it was detected that the petitioner has resorted to unauthorized method and in violation of the Rules and procedure was illegally consuming electricity by abstracting power through taping (hooking). The inspection 7 report i.e. inventory report was prepared at the spot on 11.12.2010 and since the main gate of the petitioner's premises had been closed, a copy of the inventory report was affixed on the wall of the petitioner's premises and to avoid and prevent any further inevitable danger, supply to the petitioner's premises was disconnected and the same was communicated to the petitioner under Annexure-1. It is the specific case of the opposite party No.1, the Executive Engineer that the petitioner was abstracting power by means of taping (hooking), the 3-Phase-33 K.V. over head line of the double pole near the consumer premises besides other illegal means as enumerated in the Inventory Report (Annexure-7) to the writ petition. It is also the case of the opposite party No.1 that under Section 126 of the Electricity Act, if on inspection any consumer is found to have indulged in unauthorized consumption of electricity causing thereby theft of electricity, the consumer is liable for provisional assessment whereafter on consideration of objection the final assessment order is to be passed and would be served on the consumer as per Section 126 (3) of the Electricity Act. It is the further case of the opposite party No.1 that liberty was afforded to the 8 petitioner for filing objection and in fact such objection was filed as admitted to by the petitioner vide Annexure-8 to the writ petition and the opposite party No.1 duly considered that objection and passed the final assessment order on 29.12.2010 which was duly communicated to the petitioner. The opposite party No.1 has questioned the filing of the writ petition by the present petitioner on the ground that if the petitioner was aggrieved with the final order of assessment he was to approach the appellate authority under the statute under Section 127 of the Electricity Act, than approaching this Court. According to opposite party No.1 with an oblique motive to avoid the rigors of the provisions of sub-section (2) of Section 127 of the Electricity Act, the petitioner has directly approached this Court under the writ jurisdiction without exhausting the alternate and efficacious inbuilt mechanism prescribed in the special statute, namely, the Electricity Act, 2003. It is also the case of the opposite party No.1 that since all procedures have been followed and when power supply was disconnected under Section 135 of the Electricity Act and Regulation 46 of the O.E.R.C., Distribution (Conditions of Supply) Code, 2004 was also followed, the filing of the appeal 9 under Rule, 52 of the Indian Electricity Rules, 1956 is without jurisdiction. While praying for dismissal of the writ petition, it is the specific stand of the opposite party No.1 that fair and reasonable procedure has been adopted in the case at hand and the final assessment order when was based upon the subjective satisfaction of the assessing officer by taking into consideration of the overall assessment of the fact and materials and when the assessment has been made for unauthorized use of electricity which included theft of electricity by hooking, effective steps were initiated against the petitioner's company under Sections 126 and 135 of the Electricity Act, 2003 and one F.I.R. was lodged against the petitioner's company, it calls for no interference by this Court in exercise of power under the extra-ordinary jurisdiction. In the premises, it is prayed that the writ petitions being devoid of merit be dismissed with costs.
5. Before going to the detail discussion as to the merits of the case I may mention here that in W.P.(C) No. 763 of 2011 a prayer has been made for quashing of the impugned order dated 29.12.2010 as at Annexure-6 i.e. the final order of assessment passed under Section 126(3) of the Electricity Act, 10 2003 for unauthorized use of the electricity by the petitioner company. Therefore, in view of such prayer made in W.P.(C) No. 763 of 2011 the learned counsel appearing for the petitioner submitted that the petitioner does not press the prayer as has been made in W.P.(C) No. 176 of 2011 i.e. with regard to quashing of the provisional assessment order passed by the opposite party No.1, the Executive Engineer dated 21.12.2010 under Annexure-6. Mr.L.D.Pangari, learned counsel appearing for the petitioner argued with vehemence that the so called final assessment order dated 29.12.2010 under Annexure-6 is very cryptic and non-speaking. The said order does not disclose as to on what basis the opposite party No.1 arrived at the conclusion that there was unauthorized use of electricity by abstracting power from 33 K.V. line i.e. by means of hooking. There is also no material on record to show as to on what basis the Executive Engineer, WESCO, Rajgangpur arrived at the conclusion which was to the best of his judgment. Mr.Pangari while assailing the final assessment order (Annexure-6) raised a contention that the provisions of Section 126 of the Electricity Act, 2003 is not at all attracted besides it was contended that there was absolutely no 11 checking of the premises of the petitioner as alleged on the night of 11.12.2010 and procedural safeguards have not at all been followed by the opposite party No.1.
6. Learned counsel appearing for opposite parties contested the claim of the petitioner and according to Mr.P.K.Mohanty, learned counsel for the opposite parties that for unauthorized use of electricity as defined under explanation to Clause 6(b) of Section 126 of the Electricity Act opportunity was offered to the petitioner before the provisional assessment was made so also before passing of the final order of assessment on 29.12.2010. The learned counsel appearing for the opposite party also raised a contention with regard to the maintainability of the writ petition because of the statutory alternative remedy available to the petitioner under Section 127 of the Electricity Act, 2003, when he is aggrieved with the final assessment order was passed by the opposite party on 29.12.2010 (Annexure-6).
7. There is no dispute about the settled position that fiscal and penal laws are normally construed strictly but this rule is not free from of exceptions in given situations. Law would have to be interpreted having regard to the subject 12 matter and the object that the law seeks to achieve. The provisions of Section 126 read with Section 127 of the Electricity Act, 2003 become code in themselves as right from the initiation of the proceedings by conducting and inspection, to the right to file an appeal before the appellate authority. It specifically provides the method of computation of the amount that a consumer is liable to pay for excessive consumption of electricity and for the manner of conducting assessment proceedings. Thus, Section 126 of the Electricity Act, 2003 has a purpose to achieve i.e. to put an implied restriction on such unauthorized consumption of electricity (2012) 2 S.C.C. 108, Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another V. Sri Seetaram Rice Mill. What is unauthorized use of electricity has been defined in the explanation to Section 126 of the Electricity Act:-
"126. Assessment xxxxxxx xxxxxx xxxxx xxxxx Explanation- For the purpose of this section-
(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;13
(b) "unauthorized use of electricity" means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorized by the concerned person or authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity was authorized;
(v) for the premises or areas other than those for which the supply of electricity was authorized."
8. Thus, the unauthorized use of electricity as defined above in Section 126 of the Electricity Act would mean what is stated in sub-clauses-(i) to (v) of clause-(b) of the Explanation to Section 126 of the Electricity Act, 2003. In the words of the Apex Court the illustrative stated circumstances in the section cannot be construed as exhaustive. The Hon'ble Apex Court in SOUTHCO Electricity Supply case (supra) has observed as follows:-
"Unauthorised use of electricity cannot be restricted to the stated clauses under the Explanation but has to be given a wider meaning so as to cover cases of violation of the terms and conditions of supply and the Regulations and provisions of the 2003 Act governing such supply. "Unauthorised use of electricity" itself is an expression which would, on its plain reading, take within its scope all the misuse of the electricity or 14 even malpractices adopted while using electricity. It is difficult to restrict this expression and limit its application by the categories stated in the Explanation. It is indisputable that the electricity supply to a consumer is restricted and controlled by the terms and conditions of supply, the Regulations framed and the provisions of the 2003 Act."
9. There is no dispute that the electricity is a control commodity and is to be regulated by the Regulatory Authorities. If a person consumes electricity other than stipulated in accordance with law penalty may be imposed upon him as contemplated under the contractual regulatory and statutory regime. In the instant case, admittedly the petitioner entered into an agreement with the opposite party no.1 on 5.6.2009 for its factory with a contract demand of 2700 KVA at normal pressure and the petitioner was categorised as a Power Intensive Industry. It is the case of the opposite parties that the petitioner's premises was checked on 11.12.2010 at about 11 P.M. and it was detected that the petitioner was abstracting electricity unauthorizedly by hooking system from the 33 K.V. overhead line of the double pole and accordingly an inventory report was prepared and the copy of the inventory report was pasted on the wall as the 15 main gate of the petitioner's premises was closed and there was none to receive the said inventory report Annexure-4. The power supply was disconnected immediately to the petitioner premises as the installation was unsafe and dangerous to the working personnel. The petitioner has admitted that he was served with Annexure-1 dated 13.12.2010 and when power supply to his premises was disconnected, he made a representation to opposite party No.1 vide Annexure-2 and also filed an appeal under Rule, 52 of the Electricity Rules, 1956 but he was served with the provisional assessment order dated 21.12.2010. The petitioner raises a serious question about the alleged search of his premises on the night of 11.12.2010 by the opposite party No.1. Many disputed questions of fact have been raised with regard to inspection and the procedures adopted by the opposite parties and non- compliance of the statutory provisions with regard to the final order of assessment.
10. Learned counsel appearing for the opposite parties contended that when the Electricity Act is a special statute and has in built mechanization to deal with the final order passed under Section 126 of the Electricity Act, 2003, the 16 petitioner should have first resorted to that provision than to approach the Court under the writ jurisdiction. It was very strenuously contended by Mr.Mohanty that once the order of assessment has been finally passed and it is served upon the consumer he was expected to pay the said charges unless being aggrieved by that order should have preferred an appeal under Section 127 of the Electricity Act.
11. Learned counsel appearing for the petitioner contended that it is true that the factual disputes cannot be gone into in a proceeding under Article 226 of the Constitution of India but in the instant case when basing upon the inventory report, the provisional assessment order and final assessment order has been passed that can be decided on examination of the document and since no disputed questions of fact are involved, the writ petitions are not liable to be rejected on the ground of availability of alternative remedy. Mr. Pangari, learned counsel appearing for the petitioner very strenuously contended that existence of alternative remedy is not an absolute bar to entertain the writ petition and when it would appear that an order ex-facie is a nullity or when an error is apparent on the face of the proceedings, such as when 17 it is based on clear ignorance or utter disregard of the provisions of law or gross failure of justice has occasioned thereby, the power to issue writ of certiorari under the supervisory jurisdiction may be exercised to undo grave injustice caused to the petitioner. In support of such contentions reliance was placed on several decisions of the Apex Court namely, AIR 1958 S.C. 86, State of Madhya Pradesh V. Mohammad Nooh, AIR 2003 S.C. 2120, Harbanslal Sahnia V. Indian Oil Corporation Ltd., AIR 2010 Orissa 104, Kukumina Construction Private Limited V. Sub-Registrar-cum-Stamp Collector and others and AIR 2004 S.C. 561, Guruvayoor Devaswom Managing Committee and another V. C.K. Rajan.
12. Mr. Pangari, learned counsel for the petitioner while assailing the final assessment order drew my attention to the glaring defects and bolstered his contentions with regard to malicious and illegal action of the opposite party, Executive Engineer, WESCO, Rajgangpur, that no opportunity was afforded to the petitioner to present his case and produce the materials pursuant to Annexure-6. It was contended that the petitioner was intimated under Annexure-6 to file the objection 18 against the provisional assessment order and to appear before the opposite party no.1 i.e. Executive Engineer, Rajgangpur Electrical Division, Rajgangpur on or before 27.12.2010 during working hours i.e. in between 10 A.M. to 5 P.M. But even though the petitioner filed the written objection on 27.12.2010 and prayed for fixing another date for submission of the document and hearing of the case as per Annexure-5, but without considering such prayer and without affording any opportunity of hearing in person the final order of assessment was passed on 29.12.2010 (Annexure-6) of the Writ Petition No.763 of 2011. According to Mr. Pangari, learned counsel there has been no fair play in the matter in passing the final assessment order on 29.12.2010 and therefore this is sufficient for this Court in exercise of the extra-ordinary jurisdiction to quash the same. It was further contended that no fruitful purpose would be served by preferring an appeal under Section 127 of the Electricity Act, 2003 as the person manning the post of appellate authority is a person of the Electric Department and the petitioner apprehends that he will not get a fair deal from the said appellate authority. 19
13. Mr. Mohanty, learned counsel appearing for the opposite parties dispelled the contentions of Mr. Pangari on the ground that the final assessment order was passed after taking into consideration the detail objection filed by the petitioner before the opposite party, the Executive Engineer on 27.12.2010 and the petitioner with an oblique intention of avoiding the statutory requirement within the meaning of Section 127 of the Electricity Act, 2003 of depositing half of the assessed amount, filed the writ petition before this Court by way of subterfuge. It was also contended by Mr. Mohanty, learned counsel that the appellate authority is a very Senior Electrical Engineer designated as Electrical Inspector, who functions independently and has no nexus with Electricity Distribution Company and therefore, the apprehension of the petitioner about his impartiality and neutrality is a misnomer and the petitioner should repose faith and trust on the inbuilt mechanism provided in the statute by way of filing an appeal when he is aggrieved by the final order of assessment dated 29.12.2010. In support of such contention of Mr. Mohanty, learned counsel that in the given case the petitioner should exhaust the alternative forum as prescribed under Section 127 20 of the Electricity Act, 2003 placed reliance on several decisions of the Apex Court as reported in (2011) 2 SCC 782, Kanaiyalal Lalchand Sachdev and others -v- State of Maharashtra and others, AIR 2010 Supreme Court 3413, United Bank of India -v- Satyawati Tondon and others and (2010) 4 SCC 772, Raj Kumar Shivhare -v- Assistant Director, Directorate of Enforcement and another and Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) case (supra).
14. I have gone through the materials placed before me and also heard learned counsel for the respective parties at length. On perusing the several citations place at the Bar on the point I find that the case decided by the Hon'ble Apex Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another (supra) clinches the issue which this Court is called upon to decide as the facts of that case is directly similar to the facts giving rise to filing of the present two writ petitions. The points raised are similar and therefore, this Court is bound by the "ratio decidendi" of the decided case i.e., Executive Engineer, Southern Electricity Supply Company of Orissa Limited 21 (SOUTHCO) and another (supra). Thus once the order of assessment has been finally passed and is served upon the consumer he is expected to pay the said charges unless being aggrieved by such an order prefers an appeal under Section 127 of the Electricity Act, 2003 that too within 30 days of the said order. If such an appeal would be filed the same would be dealt with in accordance with the procedure specified under Section 127 of the Electricity Act, 2003. Any order passed i.e. provisional order of assessment by the Assessing Officer in terms of Sub-Section-1 of Section 126 of the Electricity Act, 2003, is an appealable one. Admittedly, the petitioner filed the Writ Petition No. 176 of 2011 against the provisional assessment order dated 21.12.2010 which was issued under Sub-Section 2 and 3 of Section 126 of the Electricity Act, 2003 and later on W.P(C) No. 763 of 2011 filed for quashing of the final assessment order dated 29.12.2010 (Annexure-6).
15. At the cost of repetition, it is reiterated here the settled position of law that this Court would not normally interfere in exercise of its jurisdiction under Article-226 of the Constitution of India where statutory alternative remedy is available. In the words of their Lordships of the Apex Court in 22 Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another (supra).
"Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority ? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case".
Their Lordships are also of the view that:-
"In the facts of the present case, the High Court should have answered the question of law relating to lack of jurisdiction and exercise of jurisdiction in futility without travelling into and determining the validity of the demand which squarely fell within the domain of the specialised authority".
16 Thus I am of the humble view that the Assessing Officer has the exclusive domain of passing of an order of assessment and determining the factual controversy of the case and it would not be proper to interfere with the final order 23 of assessment passed by the officer in terms of Section 126(3) of the Electricity Act, 2003, in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution. It is to be remembered the trite law that where a right or liability is created by statute which gives a special remedy fpr enforcing it, the remedy provided by that statute only must be availed of.
17. Article 226 is never meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extra- ordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. AIR 2010 Supreme Court 3413, United Bank of India -v- Satyawati Tondon and others.
18. In the instant case, admittedly many disputed questions of facts relating to alleged surprise check of the petitioner's premises on 11.12.2010 night, non- communication of the inventory report and affording 24 reasonable opportunities before passing the final assessment order have been raised by the petitioner in the present two writ petitions, which cannot be decided by the writ Court more particularly when there is an efficacious alternative remedy available to the petitioner for redressal of his grievances by filing an appeal under Section 127 of the Electricity Act, 2003.
19. For the reasons discussed above, this Court is of the view that the writ petitions are not maintainable to challenge the order of final assessment order (Annexure-6) as passed by the opposite party, the Executive Engineer (Electrical), WESCO, Rajgangpur Electrical Division. While holding that the writ petitions are not maintainable, opportunity is given to the petitioner to file an appeal before the appropriate authority under Section 127 of the Electricity Act, 2003 if so advised, within a period of 30 days from the date of this order and on such event the appellate forum will consider the question of limitation sympathetically having regard to the fact that the petitioner was bonafidely pursuing his case under Article 226 of the Constitution of India. The appellate authority is expected to deal with the appeal if so filed by the petitioner without being influenced by any of the observations made in 25 this order and he must pass a reasoned as well as speaking order in a free and fair manner by affording opportunity to the petitioner of being heard in the matter.
With the aforesaid directions, the two writ petitions stand disposed of. The parties are left to bear their own costs.
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B.K.Misra, J.
Orissa High Court, Cuttack The 11th September, 2012/RNS