Orissa High Court
Epari Madhab Rao vs Central Electricity Supply Company Of ... on 16 October, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C). No.5088 of 2002
In the matter of applications under Article 226 and 227 of the Constitution
of India.
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Epari Madhab Rao ...... Petitioner
- Versus-
Central Electricity Supply Company
of Orissa Limited and Others ...... Opposite Parties
Counsel for Petitioner : M/s. Bikash Jena and M. R. Samantray.
Counsel for Opp.Parties : M/s. D. R. Ray and B. K. Jena.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment: 16.10.2017
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S. N. Prasad, J.The instant writ petition is under Article 226 and 227 of the Constitution of India wherein in the demand notice as contained in letter dtd.06.3.2002 along with penal bill under Annexure-6 series and the order dtd.08.11.2002 passed by the Designated authority in exercise of power conferred under Regulation 52 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code, 1998 are under challenge.
2. The fact of the case as has been pleaded by the writ petitioner in this writ petition in brief is that he is the owner of the premises in question to which 2 power supply has been given by the opposite parties wherein the petitioner is carrying on business and running a shop in the name and style of M/s. Epari Jewellers. The petitioner has been allotted a consumer number bearing No.MCO- 08-45008 and power supply has been given to the petitioner with a connected load / contract demand of 13 KV.
The CESCO of Orissa Limited is one of the four distribution companies engaged in distribution of electricity within the State of Odisha. The entire distribution activities of such distribution companies are governed under the Indian Electricity (Supply) Act, 1948, Orissa Electricity Reforms Act, 1995 and the O.E.R.C. Distribution (Conditions of Supply) Code, 1998 and the guidelines issued by the Orissa Electricity Regulatory Commission from time to time. The officers of CESCO had come to take meter checking of the premises of the petitioner in question on 28.2.2002 and the meter was found OK as on that date, accordingly Bill for the month of February, 2002 was issued.
One day after, i.e. 2.3.2002 the Assistant Engineer (MRT), CESCO visited the premises at around 11.30 A.M. and served copy of the authorization letter dtd.2.3.2002 in which one MRT officer was authorized to enter into the premises for inspecting the electrical installations. The inspecting officer opened the T.P. Box seal and other seals of the meter to check the meter and carrying out the inspection for quite some time.
According to the petitioner at the time of conducting inspection nothing has been communicated to him but when the shop was opened at 4 P.M. it was found that there is no power supply and on enquiry from opposite parties, 3 he was informed that since the MRT officers have reported tampering of meter, as such, as per their instructions, power supply has been disconnected, the same was objected by the petitioner and on his much insistence a written report as contained in letter No.66 dtd.2.3.2002 was served upon him wherein it was stated that the power supply has been disconnected on safety grounds as per clause-46 of the Supply Code, 1998 as per instruction of the Squad party and S.D.O. No.3. He has also been informed that the penal Bill is being prepared and power supply to the petitioner will be given only after payment of such penalty, but no report of the inspecting squad was supplied to him.
The petitioner, on much insistence, has received a letter dtd.6.3.2002 issued by the opposite party no.2 demanding Rs.2,52,693/- towards penalty purportedly levied as per Regulation 105(2) of the Supply Code, 1998 for payment by the petitioner by 15.3.2002 along with copy of the inspection report dtd.2.3.2002. The petitioner has made an objection to that and only in order to run his business, he has deposited Rs.80,000/- for immediate power supply. He has also stated that the inspection report has been prepared behind his back and in violation of the Regulation 52 of Supply Code, 1998.
The petitioner when made an objection and it was pending since the opposite party No.2 insisted for payment of balance amount of penalty, the petitioner, finding no option, approached this Court in O.J.C. No.3049 of 2002 and this court vide order dtd.26.4.2002 has passed an order to the effect that since the petitioner, by way of protest, has deposited Rs.80,000/- and power supply has already been restored, the Designated Authority has been called upon to dispose of the complaint dtd.11.3.2002 filed by the petitioner after giving him an opportunity 4 of hearing and till final decision is taken by the Designated Authority, power supply will not be disconnected to the petitioner on the ground that the balance penalty has not been paid. Thereafter the Designated Authority has passed an order on 8.11.2002 upholding tampering in the meter and also the penal Bill which has been assailed in this writ petition.
3. The contention raised by the petitioner is that there is no tampering with the meter and whatever report has been prepared and handed over to him are behind his back since no signature on the inspection report is there of the consumer, i.e. the petitioner.
He submits that even accepting for the sake of argument that seal of the meter was broken, then also the penalty imposed cannot be said to be in consonance with law.
He submits that the meter was running and it was not corroborated from a re-checked meter and thereafter reading is being shown by the said meter, the Bill has already been fetched, hence merely on the ground of broken seal, the amount shown as penalty is nothing but an arbitrary exercise of power.
He further submits that he has not paid Rs.80,000/- against the default, rather he has paid the said amount by way of protest against the demand raised so that immediate power supply be provided to his premises to run the business.
He submits that the Designated Authority has not applied its quasi- judicial mind in upholding the inspection report as also has arbitrarily came to 5 conclusion by showing the consumption pattern from January, 2001 to January, 2002 which is the basis of inflicting penalty upon him.
4. Learned counsel appearing for opposite parties has vehemently opposed the submission, stand and the plea taken by the petitioner by filing detail counter affidavit. The learned counsel representing them has submitted that the writ petition is not maintainable for the reason that the prayer sought for by the writ petitioner is regarding questioning the jurisdiction of the authority who have passed the order under Annexure-12. According to him the Sr. General manager is having its authority in the capacity of Designated Authority to pass an order, as would be evident from the notification dtd.29.5.2002 wherein it has been stated that the power of Designated Authority has been conferred upon the Superintending Engineer of the concerned circle but the matters which are pending on the date before the Sr. General manager (Technical) shall be heard and be finally disposed of by the Sr. General Manager (Technical), as such the Sr. General manager (Technical) before whom the matter in question was pending, has been decided by him on 8.11.2002, hence it is well within his jurisdiction, as such on this ground alone the writ petition is fit to be dismissed.
The further ground taken by him is that there is alternative forum available under the Code under Code 110(2) and 110(3) but instead of availing the same, the present writ petition has been filed directly invoking extraordinary jurisdiction conferred to this court under Article 226 of the constitution of India, as such on the ground of availability of alternative remedy the writ petition is not fit to be entertained by this court.
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So far as merit of the case is concerned, it has been submitted that the premises of the petitioner was inspected in the light of the authorization dtd.2.3.2002 and on the date when the premises was inspected, the consumer's representative has also put his signature and thereafter the premises has been inspected wherein it was found that in the T.P. Box there was no seal, in the meter terminal cover there was no seal, meter body seal was tampered, i.e. broken and refixed with gum.
He submits that the meter was tampered and thereafter it was refixed with gum which suggests that there is ulterior motive of the consumer i.e. petitioner only in order to cause pecuniary loss to the licensee and for that reason the penal Bill has been raised by way of demand which is impugned in this writ petition.
He further submits that the reasons contained in the inspection report is for tampering of the meter which amounts that the consumer has interfered with the meter by breaking the meter body seal, hence the consumer is dishonest by stealing energy. The petitioner has raised an objection to that effect and thereafter his objection has been entertained by the Designated Authority, i.e. Sr. General Manager (Technical) who after taking into consideration the inspection report, the breaking open of meter seal and tampering of the meter to sustain pecuniary loss to the licensee, has passed an order upholding the inspection report. The Designated Authority has also assessed the penalty in the light of the provision made under Regulation 105(2) of the Code, 1998, the details of which has been given under Annexure-9.
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He further submits that the petitioner is now seriously disputing the breaking of the seal of the meter and has also stealing of electricity while the inspection report suggests that there is tampering of the meter, as such there is serious dispute about the factual aspect in the instant case, as such it cannot be decided by this court sitting under Article 226 of the Constitution of India. More so, the petitioner has directly approached this court without availing the two other alternative fact finding forum as provided in the Code, 1998.
On the strength of these submissions, argument has been advanced on behalf of licensee for dismissal of the writ petition.
5. Heard the learned counsels for the parties and on appreciation of rival submission of the parties, it is evident that there is enactment of a regulation in the name of Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 1998 which has been enacted in exercise of power conferred on it by Section 54 of the Orissa Electricity Reforms Act, 1995 and all other powers enabling it in that behalf wherein under the provision of Code 51 it has been provided that with a view to check unauthorized addition and alteration of equipment, theft and misappropriation of energy, diversion of power, by-passing of meter for consumption of electricity and for carrying out general inspection and testing, the engineer or his staff authorized by him shall be entitled to enter the premises of a consumer after informing the consumer. If the consumer refuses to allow access or obstructs the engineer or his staff from entering into his premises, the engineer shall, without prejudice to other modes of action available in law, disconnect the supply of power of the premises in accordance with Section 20 of the Indian Electricity Act, 1910.
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Code 52 provides that during checking and verification of the electrical installation in the premises of the consumer, including the supply line and meter, a complete inventory shall be prepared for all connected equipment, apparatus, machineries, forming integral part of the installation in the premises of the consumer. The consumer or his representative shall be requested to sign the inventory or inspection report. If the consumer or his representative refuses to sign the inventory or the inspection report an endorsement to that effect shall be made by the engineer on the body of the report. A copy of the said report shall be affixed at the consumer's premises. In such cases, the consumer shall be deemed to have been served with a copy of the report. Within one month of service of the report as aforesaid, the consumer shall be entitled to complain against the correctness of the inventory or the result of the inspection to the designated authority of the licensee, who shall enquire into the matter of the complaint and decide on the correctness or otherwise of the report.
The provision of penal charges has been provided under Code 105 wherein it has been provided that;
(1) On detection of unauthorized use in any manner by a consumer, the load connected in excess of the authorized load shall be treated as unauthorized load. The quantum of unauthorized consumption shall be determined in the same ratio as the unauthorized load stands to the authorized load. (2) The period of unauthorized use shall be determined by the engineer as one year prior to the date of detection or from the date of initial supply if the initial date of supply is less than one year from the date of detection. If the 9 consumer provides evidence to the contrary, the period may be varied according to such evidence. The engineer may levy penal charges in addition to the normal charges for aforesaid period of unauthorized use. Where addition of the unauthorized installation or sale or diversion would result in a reclassification according to this code, the whole of the power drawn shall be deemed to have been drawn in the reclassified category. The consumer shall also be required to execute a fresh agreement under the reclassified category.
(3) The penal energy charges for unauthorized use of power shall be two times the charges applicable to the particular category of consumer.
The provision of Code 110 provides that;
(1) A consumer aggrieved by any action or lack of action by the engineer under this Code may file a representation within one year of such action or lack of action to the designated authority of the licensee above the rank of engineer who shall pass final orders on such a representation within thirty days of receipt of the representation.
(2) A consumer aggrieved by the decision or lack of decision of the designated authority of the licensee may file a representation within forty-five days to the chief executive officer of the licensee who shall pass final order on such representation within forty-five days of receipt of the representation. (3) In respect of orders or lack of orders of the chief executive officer of the licensee on matters provided under Section 33 of the Act, the consumer may make a reference to the Commission under Section 37(1) of the Act. 10
It is thus evident from the statutory provision as referred herein above that the power to inspect the consumer's premises is there and in the light of the same the petitioner's premises has been inspected vide authorization letter dtd.2.3.2002 which has been endorsed by the consumer's representative by putting his signature on the same date. The inspection was conducted and it was found that there is tampering, i.e. breaking of the seal and re-fixed with gum. Meter status has been shown as tampered with the remarks that the same has been interfered with the meter by breaking body seal of the meter, as such there is theft of electricity. The consumer's representative has refused to sign on the report and also refused to accept it. The authorities have disconnected the electricity connection of the premises in question, which has been objected by the petitioner by contending that it is an arbitrary exercise of power conferred and on payment of Rs.80,000/- against the demand notice of Rs.2,52,693/- the electricity connection has been restored. The petitioner has made an application before the designated authority in exercise of power conferred under Code 52 of the Code 1998 and when it was pending having not been decided by the designated authority, a writ petition was filed wherein the direction has been given by this court while disposing of the writ petition vide order dtd.24.06.2002 to dispose of the complaint with a restrainment order not to disconnect the electricity line. The Designated Authority has disposed of the complaint by upholding the inspection report with a direction to clear up the panel in whole in four equal installments after deduction of Rs.80000/- which has already been deposited by him. The inspection report, the demand notices as also the order passed by the Designated Authority are under challenge in this writ petition.
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This court, while appreciating the rival submissions of the parties, arrived at a conclusion that the inspection which has been conducted by the Licensee has seriously been objected by the petitioner by taking a ground that there was no inspection at all and to substantiate this it has been submitted by the learned counsel for the petitioner that there is no signature in the inspection report and if, as per the stipulation made in the inspection report that the consumer's representative has refused to sign or accept the inspection report, then, as per the provision of Code 52 of the Code 1998, the same ought to have been fixed in the residential premises and since it has not been done, as such the inspection report itself is very doubtful.
While rebutting this argument, learned counsel appearing for the Licensee has submitted that under the authority dtd.2.3.2002 it was inspected which has been endorsed by the consumer's representative and there is clear cut stipulation that the inspection is being conducted to check unauthorized alteration of the equipment, theft and misappropriation of engerty, divergent of power, etc. and in the light of the said authority the inspection was conducted and when the MRT team has asked the consumer's representative to accept the inspection report which has been refused to be accepted by them.
Although it has been stated in the complaint that it ought to have been pasted in the premises on refusal of the consumer to accept the same, but this aspect has seriously been disputed by the opposite party - licensee and this court, sitting under Article 226 of the constitution of India cannot go into these disputed questions of fact. But the fact which is not in dispute is that there was disconnection of electric line and in lieu thereof the petitioner has paid 12 Rs.80,000/- by way of part payment for restoration of electric supply and thereafter he has made a complaint before the Designated Authority regarding the demand by challenging the calculation on the basis of the unit consumed.
It is evident from the pleading made on behalf of the parties that serious dispute has been raised by the rival parties on the factual aspect and the petitioner has availed the extraordinary jurisdiction conferred to this court under Article 226 of the constitution of India directly without availing the alternative remedy available under Code 110(2) and 110(3) of the Code 1998, however submission has been advanced on behalf of the petitioner that the alternative remedy provided under Code 110(2) and 110(3) will not be applicable since he has approached before the Designated Authority in exercise of power conferred under Code 52 of the Code 1998 but this submission is not acceptable to this court for the reason that the inspection report is to be prepared and it is to be objected before the Designated Authority while provision under Code 110(1) provides that the right to a consumer who is aggrieved by any action or lack of action by the Engineer under this Code may file a representation within one year of the action or lack of action to the Designated Authority if the Code 52 will be read together along with Code 110, it would be evident that the Code 52 confers right upon the consumer entitling him to complain against the correctness of the inventory or the result of the inspection before the Designated Authority of the licensee who will enquire into the matter of the complaint and decide the correctness and otherwise of the report, while Code 110(1) provides the period of limitation for filing representation within one year of such action or lack of action if the consumer is 13 aggrieved while Code 110(2) provides power to assail the order passed by the Designated Authority before the Chief Executive Officer and Code 110(3) provides regarding power of reference to the Commission under Section 37(1) of the Act.
Upon joint reading of Code 52 as well as Code 110 it is evident that two other forum of fact finding is available under the Code, hence the contention raised by the petitioner that against the decision taken by the Designated Authority under Code 52 writ petition is maintainable is not correct as such the same is rejected.
Learned counsel for the petitioner has relied upon the judgments rendered by Hon'ble Apex Court in the cases of Modern Terry Towels Ltd. Vrs. Gujarat Electricity Board and Ors. (Spl. Civil Appeal No.5348 of 2002), Jagarnath Singh Vrs. B. S. Ramaswamy (Criminal Appeal nos.76 and 130 of 1963), Sub-Divisional Officer (P), UHBVNL Vrs. Dharam Pal Reported in (2006) 12 SCC 222 and State of W.B. and Others Vrs. Rupa Ice Factory (P) Ltd. and Others reported in (2004) 10 SCC 635 but that are not applicable as per the facts and circumstances of this case for the reason that in those cases there was initiation of criminal cases on account of theft of electricity and there it has been held that in absence of any cogent proof the allegation cannot be proved, but here in the instant case no F.I.R. has been instituted rather on the basis of the inspection report and its comparison with the previous consumption as per the provision laid down under Code 105(2) and 105(3) the penal bill has been prepared and accordingly demand notice has been issued, hence the judgments relied upon 14 by the petitioner are not applicable in the facts and circumstances of the present case.
In view of the factual aspects as pleaded in the pleadings made by the rival parties and taking into consideration the disputed question of fact as also the fact of availability of alternative forum, this court is not inclined to interfere with the action of the authority in issuance of the impugned order especially for the reason of disputed question of fact and if the extraordinary jurisdiction conferred to this court will be exercised, it will amounts to giving go-bye to the alternative forum under the Code 1998.
Accordingly the writ petition fails and it is dismissed.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 16th October, 2017 / Manas.