Orissa High Court
The Executive Engineer Salepur Elect ... vs Grievance Redressal Forum Cesu Colony on 5 January, 2018
Equivalent citations: AIR 2018 (NOC) 653 (ORI.)
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.7083 of 2016
In the matter of an application under Articles 226 and 227 of the Constitution of India.
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The Executive Engineer,
Salepur Electrical Division,
Central Electricity Supply Utility (CESU),
Salepur, Cuttack. ...... Petitioner
- Versus -
Grievance Redressal Forum,
Central Electricity Supply Utility,
CESU Colony, Badambadi, Cuttack
and another. ...... Opposite Parties
For Petitioner : M/s. B.K. Nayak-1 & A. Dash.
For Opp. Parties : Mr. Falguni Rajguru Mohapatra
Mr. Dayananda Mohapatra
(For opposite party no.2)
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PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 05.01.2018
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S. N. Prasad, J.This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the order dated 18.12.2015 passed by the Grievance Redressal Forum, CESU, Cuttack in C.C. Case No.SED/734/2015 is under challenge.
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2. The case of the petitioner, in brief, is that M/s. Sri Jagannath Cold Storage, At/P.O.-Nichintakoili, Distict- Cuttack (opposite party no.2), is a consumer under the Executive Engineer, Salepur Electrical Division vide A/c. No. MI-12/LI-1 and has taken power supply for a contract demand of 57 KW for the purpose of cold storage by executing agreement on 21.04.1997. Subsequently, the consumer has enhanced its load to 124.44 KVA and has been categorized under the Large Industry Tariff Category and the billing has been made under the said category.
3. The Orissa Electricity Regulatory Commission has formulated a regulation known as Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 [in short "OERC Distribution (Conditions of Supply) Code, 2004"] to govern distribution and supply of electricity and the procedures thereof such as the system of billing, modality of payment of bills, the powers, functions and obligations of the distribution licensees and/or suppliers and the rights and obligations of consumers.
Chapter-VII of the OERC Distribution (Conditions of Supply) Code, 2004 deals with classification of consumer.
Regulation-80 of the OERC Distribution (Conditions of Supply) Code, 2004 provides licensee may classify or reclassify the consumer into various categories from time to time as may be approved by the Commission and fix different tariffs and conditions of supply for different class of consumers.
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4. OERC has introduced a new category of consumer known as "Agro Industries Consumer" by way of amendment to Regulation-80(5) of OERC Distribution (Conditions of Supply) Code, 2004, as per which, this category relates to supply of power for Pisciculture, Horticulture, Floriculture, Sericulture and other allied agricultural activity including Animal Husbandry, Poultry and cold storages and a new tariff for the said category was fixed by the commission w.e.f. 1.4.2008.
5. O.E.R.C. has issued a notification dated 19th October, 2009 in terms of the order dated 26.8.2009 passed by this Court in W.P.(C) No.6516 of 2009 (M/s. Prithwiraj Diary Product -Vrs.- State of Odisha and others) whereby and whereunder the following three new categories have been introduced substituting Regulation-80(5) of the OERC Distribution (Conditions of Supply) Code, 2004:-
80(5)(i) Irrigation Pumping and Agriculture : This category relates to supply of power for pumping of water in lift irrigation, flow irrigation and for lifting of water from wells/borewells, dug-wells, nallahs, streams, rivulets, rivers, exclusively for agricultural purposes.
(ii) Allied Agricultural Activities: This category relates to supply of power for Aquaculture (which includes Pisciculture/ Prawn culture), Horticulture, Floriculture, Sericulture, Animal Husbandry and Poultry. Activities such as ice factories, chilling plants, cold storages, cattle/poultry/fish feed units and food /agri products processing units are excluded.4
(iii) Allied Agro-industrial Activities : This category relates to supply of power to "Cold Storages (i.e. a temperature controlled storage where flowers, fruits, vegetables, meat and fish can be kept fresh or frozen until it is needed) and includes chilling plant for milk and only the cold storages attached to processing units for meat, fish, prawns, flowers, fruits and vegetables."
6. The opposite party no.2 had made a representation to the Executive Engineer on 20.01.2012 bringing to his notice that utilizing the cold storage for two purposes i.e. for cold storage and for cultivation of mushrooms and requested to verify the installations and install two meters and bill the consumer as per O.E.R.C. Tariff Order accordingly from February, 2012 onwards. It was further submitted that the total contract demand of the unit is 100 KW, out of the said 100 KW, the connected load for the cold storage is 60 KW and for mushroom cultivation 40 KW.
7. The opposite party no.2 has filed a complaint on 21.5.2012 before the Grievance Redressal Forum, CESU, Cuttack with the allegation that the unit of the complaint is a cold storage and the premises is being utilized for the purpose of cultivation of mushroom and the electricity is being utilized for both the purposes, which has been bifurcated 60 KW for cold storage and 40 KW for mushroom cultivation, out of the total load of 100 KW. The said mushroom cultivation is coming under Agro Industries Consumer Category as per O.E.R.C. Notification. Accordingly, the consumer applied for segregating the powers consumed by the cold storage and 5 mushroom cultivation and issuance of bills accordingly as per the O.E.R.C. Tariff Order. After receipt of notice, objection was filed by the petitioner that the complainant is a regular defaulter in payment of the energy bills and huge arrear is outstanding against the consumer. The consumer made agreement for use of electricity for cold storage purpose, using power supply for purpose other than the agreed purpose is unauthorized and as per Section-126 of the Electricity Act, 2003, the S.D.O. (Elect.) verified the premises on 26.5.2012 and during verification, he found cultivation of mushroom inside the cold storage, the separate metering for consumption inside the same cold storage for cold store purpose and mushroom cultivation is not possible and there is no provision under Regulation for determination of tariff for the purpose of temperature control cultivation.
8. The Forum, after hearing the parties, has disposed of the case vide order dated 26.6.2012 observing therein that since there is no separation of the installation, separation of load and categorization of appropriate categorizing of horticulture work i.e. Allied Agricultural Activities Category is not practicable and dismissed the compliant.
9. The opposite party no.2 has challenged the said order before the OMBUDSMAN NO.I, Bhubaneswar, but there is also the order passed by the Forum has been confirmed vide order dated 23.08.2012.
10. The Superintending Engineer, on the basis of the order passed by the OMBUDSMAN NO.I, Bhubaneswar, has categorized the consumer under Allied Agro Industries Activities Tariff Category and accordingly, he 6 was informed to execute fresh agreement for billing under Allied Agro Industrial Category so that the petitioner can able to take opportunity to revise the bill accordingly and serve the energy bill under the said category.
11. A show cause notice was issued as per Regulation-82 of the Distribution Code-2004 referring to communication dated 5.2.2013 that the opposite party no.2 has been directed to reclassify from LI Category to Allied Agro Industrial Category and to execute fresh agreement on AIC category, but the opposite party no.2 did not take step to execute the fresh agreement. Subsequently, the opposite party no.2 has agreed to execute an agreement under the Allied Agro Industrial Activities Category vide communication dated 3.9.2013 and accordingly, fresh agreement was entered in between the opposite party no.2 and the petitioner.
12. The opposite party no.2, at this juncture, has again approached before the Forum by making a prayer for reclassification of his unit from 1.4.2008 to 10.09.2009 on Agro Industries Category (in short 'AIC') and from 11.09.2009 on Allied Agro Industrial Activities Category (in short 'AAIA').
13. The Forum, after hearing the parties, has passed the order allowing the complaint petition directing the authority to reclassify the complainant unit on AIC Category from 1.4.2008 to 8.11.2009 and from 09.11.2009 on AAIA Category by executing of a fresh agreement by giving effect retrospectively from 01.04.2008 and 09.11.2009 respectively.
14. The opposite party no.2 has challenged the said order on the ground that the he on earlier occasion has approached to the Forum seeking 7 relief for issuance of direction that is using the service of cold storage purpose, central diary which he has started cultivation of mushroom in the said premises and bifurcation the load of 60 KW for cold storage and 40 KW for mushroom cultivation and as per the OERC Notification, the said mushroom cultivation is coming under Agro Consumer Tariff, complainant has applied on 20.1.2012 to segregate power consumed in cold storage and for mushroom cultivation and issue bill accordingly. The Forum, while disposing of the complaint vide order dated 26.6.2012, has passed an order to the effect that the complainant is using the load for cold storage, but the unit bill as L.I. category for which the complainant has not prayed to come over to the appropriate category. Accordingly, the complainant was directed to take steps for proper categorization of complainant and solve the billing dispute. The said order has been affirmed by the OMBUDSMAN NO.I, Bhubaneswar and thereafter, the opposite party no.2 has submitted his application. Thereafter, the unit of the consumer was scrutinized for its reclassification and in view thereof, he has entered into an agreement on 15.12.2014 for utilizing the electricity under Allied Agro Industrial Activities.
15. According to the petitioner, these two orders have never been challenged by the opposite party no.2 and it has attained its finality and as such, the opposite party no.2 raised the grievance that he be given on the basis of Allied Agro Industrial Activities w.e.f 1.4.2008 under AIC category and from 9.11.2009 on AAIA category. It has further been submitted that the reclassification has been done only in the year 2012 and as such, the 8 opposite party no.2 cannot be allowed to take advantage of the amended provision from the date when it has been amended, since it was incumbent on the part of the opposite party no.2 to make an application for getting the relief, as the same has already been raised before the Forum in the earlier round of litigation, but that has declined to be granted and while disposing of the said complaint, liberty was accorded to the opposite party no.2 to take appropriate steps and only thereafter the steps have been taken by the opposite party no.2 by making an application on 20.1.2012 and as such, he cannot claim any relaxation prior to the date of application. Moreover, he has entered into an agreement on 15.12.2014 knowing all the facts and as such, the terms and conditions of the said agreement is binding upon him.
16. Mr. Dayananda Mohapatra, learned counsel appearing for the opposite party no.2 has contesting the case by vehemently arguing while refuting the arguments advanced on behalf of the petitioner.
He has submitted that when the amendment has brought on under the statute, the opposite party no.2 will be entitled to get the benefit of the said statute from the date when it has been incorporated and promulgated for public information in general.
He has further submitted that there is no requirement to make any application in this regard to get the benefit of the statute and as such, the authority, suo motu, has extended the benefit by putting the opposite party no.2 under the category of provision of Regulation-80(5) by putting the 9 opposite party no.2 under the Agro Industries category a consumer which has been notified vide Notification dated 11.09.2007 for reclassification of his unit from 1.4.2008 to 10.9.2009 and from 11.09.2009 as per AAIA category. According to him, merely he has not made any application, the opposite party no.2 cannot deprive from benefit of the statutory provision being paid as per legislation which has to be given its effect upon all the units coming under the fold of Ago Industries Consumer Category or Allied Agro Industrial Activities Category. When the grievance of the consumer has not been redressed, the same has been raised before the Forum by filing a complaint which has been taken into consideration by the Forum and after considering the submission, the same has been allowed. Hence, there is no infirmity in the same and as such, it has been submitted that the impugned order cannot be interfered with.
17. Heard the learned counsel for the parties and on appreciation of their rival submissions, it is evident that the opposite party no.2 has entered into an agreement on 21.4.1997 with the Grid Corporation of Orissa Limited for getting supply of electricity for a contract demand of 57 KW. The charges to be paid by the consumer are of commercial in nature containing therein an arbitration clause in case of any dispute or difference for which there is no provision. The consumer was utilized the electricity on the basis of said agreement.
18. It is important to note here that under the provision of Section181(2)(v)w)(x) of the Electricity Act, 2003 (Act 36 of 2003), Orissa 10 Electricity Reform Act, 1995 (Orissa Act 2 of 1995) and all other powers enabling it on their behalf, the Orissa Electricity Regulatory Commission has made regulation to govern distribution and supply of electricity and the procedures thereof such as the system of billing, modality of payment of bills, the powers, functions and obligations of the distribution licensees and/or suppliers and the rights and obligations of consumers known as Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004.
19. The provision of OERC Distribution (Conditions of Supply) Code, 2004 provides the definition of high tension consumer which means a consumer who obtains supply from the licensee at High Voltage and the definition of low tension consumer means a consumer who obtains supply from the licensee at low or medium voltage.
It has been provided that the application is to be submitted for initial supply of subsequent additional supply of power shall be made in the format in duplicate as provided in Form Nos.1 and 2 as the case may be. After making the application, the authority will consider it and power supply will be provided subject to fulfillment of the conditions.
Section-15 provides for an agreement to be entered in between the licensee and the consumer for initial supply in the standard format as per Form No.3 of the Code which can be terminated subject to the condition mentioned under provision 16 of the OERC Distribution (Conditions of Supply) Code, 2004.
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It is evident from the Regulation-64 of the OERC Distribution (Conditions of Supply) Code, 2004 that relates to connected load and contract demand.
Regulation-66 of the OERC Distribution (Conditions of Supply) Code, 2004 provides for provision to make application for reduction of contract demand which shall be made by the consumer before the designated authority of the licensee.
Like that for enhancement of contract demand the application is to be filed by the consumer.
Chapter-VII of the OERC Distribution (Conditions of Supply) Code, 2004 contains the classification of consumer under which as per Regulation-80, the categorization has been made under the category of domestic, general purpose, public lighting and railway traction while sub- clause (5) of Regulation-80 which has been incorporated vide O.E.R.C. Notification dated 6.3.2013 which relates to (i) Irrigation Pumping and Agriculture, (ii) relates to Allied Agricultural Activities which relates to supply of power for Aquaculture (which includes Pisciculture/ Prawn culture), Horticulture, Floriculture, Sericulture, Animal Husbandry and Poultry. Activities such as ice factories, chilling 43 plants, cold storages, cattle/poultry/fish feed units and food /agri products processing units are excluded and (iii) Allied Agro-industrial Activities which relates to supply of power to "Cold Storages (i.e. a temperature controlled storage where flowers, fruits, vegetables, meat and fish can be kept fresh or frozen until it is 12 needed) and includes chilling plant for milk and only the cold storages attached to processing units for meat, fish, prawns, flowers, fruits and vegetables.
20. The admitted position in this case is that the opposite party no.2, who has got supply of energy by virtue of the agreement dated 21st April, 1997 for the purpose of cold storage with initial CD of 57 KW in M.I. Category which has subsequently been enhanced to 112 KW L.I. Category.
It is also admitted position that the opposite party no.2 had approached GRF, Cuttack vide C.C. No.226/2012 which has been disposed of with the direction to reclassify the unit of the complainant on appropriate category and accordingly, the complainant was asked to execute fresh agreement for effecting reclassification of tariff category by entering into a fresh agreement on 15.12.2014 in AAIA tariff which has been given effective from the date of execution of agreement.
The opposite party no.2 claims that the reclassification of his unit was to be done under AIC Category from 1.4.2008 to 10.09.2009 and from 11.9.2009 as per AAIA Category.
It is also admitted position that Agro Industrial Consumer has given effect by Notification dated 11.9.2007 by way of amendment, the Regulation-80(5) of OERC Distribution (Condition of Supply) Code, 2004 and thereafter, the Allied Agro Industries Activities has came into force and also it is admitted position that the Commission vide Notification dated 19.10.2009 substituted Regulation(80)(5) by introducing 13 Regulation-80(5)(i), 80(5)(ii) and 80(5)(iii) that pertains to irrigation pumping and agriculture, allied agricultural activities and allied agro industrial activities respectively. The said provision is quoted hereinbelow:-
80(5)(i) Irrigation Pumping and Agriculture : This category relates to supply of power for pumping of water in lift irrigation, flow irrigation and for lifting of water from wells/borewells, dug-wells, nallahs, streams, rivulets, rivers, exclusively for agricultural purposes.
(ii) Allied Agricultural Activities: This category relates to supply of power for Aquaculture (which includes Pisciculture/ Prawn culture), Horticulture, Floriculture, Sericulture, Animal Husbandry and Poultry. Activities such as ice factories, chilling plants, cold storages, cattle/poultry/fish feed units and food /agri products processing units are excluded.
(iii) Allied Agro-industrial Activities : This category relates to supply of power to "Cold Storages (i.e. a temperature controlled storage where flowers, fruits, vegetables, meat and fish can be kept fresh or frozen until it is needed) and includes chilling plant for milk and only the cold storages attached to processing units for meat, fish, prawns, flowers, fruits and vegetables."
21. The opposite party no.2 has not made any application in order to come under the Agro Industrial Category or under Allied Agro Industrial Activities Category after the amendment has been brought under the statute and he has also not made any application for its reclassification. He has approached to the Forum on earlier occasion for redressal of his grievance, but the Forum, while declining to extend the relief, has directed to take step 14 for reclassifying the category. The said order has been affirmed by the OMBUDSMAN NO.I, Bhubaneswar. The opposite party no.2 thereafter has taken appropriate steps by conducting inspection of the premises and option has been given to the opposite party no.2 to enter into an agreement under the Allied Agro Industrial Activities. The opposite party no.2, while accepting it, has entered into an agreement w.e.f. 15.12.2014.
22. The opposite party no.2 thereafter has approached the Forum for reclassifying his unit to the AIC Category from 1.4.2008 to 10.9.2009 and from 11.9.2009 as per the AAIA Category which has been allowed, but the said order is not justified and proper for the reasons-
(i) the opposite party no.2 being a consumer had entered into an agreement in the month of April, 1997 accepting the terms and conditions of the agreement by making payment of the tariff which has been notified from time to time by the Commission.
(ii) The opposite party no.2 was knowing the fact very well regarding the activities which its unit is doing and it is also known to them that it will come under the Allied Agro Industrial Activities, but no such steps have been taken by the opposite party no.2 for reclassification of its industry by asking the licensee to enter into a fresh agreement by changing the said agreement because under the provision of OERC 15 Distribution (Conditions of Supply) Code, 2004, it is the requirement that before supply of the energy an agreement is to be entered by the consumer, as would be evident from provision of Section-15 of the OERC Distribution (Conditions of Supply) Code, 2004.
(iii) If the opposite party no.2 has entered into agreement way back in the year 1997 under a category when there was no concept of Allied Agro Industries Activities, then it was the duty of the opposite party no.2 to make appropriate application before the competent authority of the licensee to request them to bring the unit under the Allied Agro Industrial Activities to take advantage of the beneficial legislation, but he has chosen not to do so.
(iv) The opposite party no.2 has approached to the Forum, but the Forum has refused to extend any relief to the opposite party no.2 for revising the bill on the basis of Regulation-80(5)(iii) as under Allied Agro Industrial Activities on the ground that no steps have been taken for proper categorization of the unit and as such, complaint case was rejected against which the opposite party no.2 has preferred an appeal before the OMBUDSMAN NO.I, Bhubaneswar which has been 16 dismissed vide order dated 28.3.2012 by observing to take a step to reclassify the opposite party no.2's unit in accordance with the Regulation-80(5)(iii) of the Code, 2004, if found eligible.
(v) The opposite party no.2 has chosen not to challenge the order passed by the OMBUDSMAN NO.I, Bhubaneswar before any higher forum, rather he has accepted the same.
(vi) It is evident from the order passed by the Forum while entertaining the complaint case No.226 of 2012 that the issue of reclassifying the unit automatically has been refused with an observation to take appropriate steps to reclassify it and the said order have not been challenged and as such, the opposite party no.2 cannot claim any relief with effect from the date when no steps have been taken in pursuant to the order passed by the Forum. Moreover, the said order has not been assailed by the opposite party no.2.
(vii) The case of the opposite party no.2 was taken up by the Committee for which was done on the basis of request made by the opposite party no.2, the Committee has decided to reclassify of tariff from which Allied Industries Category to Allied Agro Industries Activities 17 Category in accordance with the Regulation-80(5)(iii) of Code, 2004 and accordingly, the opposite party no.2 has executed an agreement, as would be evident from covering letter dated 5.2.2013 and when the opposite party no.2 has not come forward, a show cause notice was issued on 29.8.2013 (Annexure-8) to come an execute a fresh agreement within seven days, failing which the power supply will be disconnected and it is only thereafter, fresh agreement was executed on 15.12.2014 under the Allied Agro Industrial Activities Category.
(viii) The opposite party no.2 consciously has entered into the agreement accepting the order passed by the Forum of the OMBUDSMAN NO.I, Bhubaneswar and simultaneously he has also filed a complaint case again before the Forum being C.C. No.734 of 2015 seeking relief in tariff on the basis of reclassifying the unit under the Allied Agro Industrial Activities Category or Agro Industrial Activities Category, the Forum even after taking cognizance of the order passed by the Forum, the order has been passed giving benefit of the amendment in the Code by brining the unit under the fold of the provision of Allied Agro Industrial Activities which is 18 nothing but amounts to review of the earlier order passed by the Forum which admittedly has been affirmed by the OMBUDSMAN NO.I, Bhubaneswar and as such, on this ground alone, the order of the Forum can be held to be illegal.
(ix) Learned counsel for the opposite party no.2 submits that when there is amendment in the provision, the conversion is automatic, but the said argument is not acceptable to this Court for the reason that if there is any change in the provision, it is incumbent upon the consumer to make an appropriate application before the authority to take advantage of the amendment provision so that the licensee may entered into a fresh agreement by rescinding the earlier agreement, but that has not been done by the opposite party no.2 on the garb of the plea that it should automatically have been done by the licensee.
Moreover, the opposite party no.2 himself has approached to the Forum even the Forum has said to take steps for reclassification of the category of the unit and the said order has been affirmed and as such, after passing of the said order, this plea is not available with the opposite party no.2.
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23. In view of the entirety of the facts and circumstances of the case and it is in the considered view of this Court, the order dated 18.12.2015 passed by the Grievance Redressal Forum, CESU, Cuttack in C.C. Case No.SED/734/2015 under Annexure-1 is not sustainable in the eye of law and as such, the same is quashed.
In the result, the writ petition is allowed.
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S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 5th January, 2018/D. Aech