Orissa High Court
Executive Engineer (Electrical) Aska vs Grievance Redressal Forum on 10 May, 2023
Author: Biswanath Rath
Bench: Biswanath Rath
A.F.R. IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.14498 of 2019
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Executive Engineer (Electrical) Aska
Electrical Division No.1,TPSODL,
Aska ........ Petitioner
-Versus-
Grievance Redressal Forum,
Berhampur and another ........ Opp.Parties
For Petitioner : Mr. P.K. Tripathy, Advocate
For Opp.Parties : Mr. F.R. Mohapatra,
Advocate for O.P. No.2
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE BISWANATH RATH
AND
THE HONOURABLE SHRI JUSTICE M.S. SAHOO
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Date of hearing: 05.05.2023 Date of judgment: 10.05.2023
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M.S.SAHOO, J
Introduction
The writ petition was filed by the earlier distribution
licensee, represented through the Executive Engineer,
SOUTHCO Utility, Aska, Ganjam challenging the order
dated 12.06.2018 passed by the Grievance Redressal
Forum (hereinafter in short, 'GRF') established in terms
of the Section 42(5) of the Electricity Act, 2003, in GRF
Case No.150 of 2018. The said consumer complaint
before the GRF was filed by the opposite party no.2-
consumer, M/s. Maa Bana Devi Poultry Pvt. Ltd.
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represented through its Managing Director challenging
the electricity bill raised by the distribution licensee for
the month of June, 2011, amounting to Rs.26,675/- and
July, 2011 amounting to Rs.67,219/-, purportedly
raised based on revised rate of "tariff" for the category :
general purpose (LT) on commercial basis.
Subsequently another entity, Tata Power Southern
Odisha Distribution Limited (TPSODL) stepped into the
shoes of the SOUTHCO Utility as distribution licensee
by virtue of vesting order of the Odisha Electricity
Regulatory Commission (hereinafter in short, 'OERC')
dated 28.12.2020 passed in Case No.82 of 2020.
2. By order dated 27.03.2023 passed in I.A. No.3823
of 2023, TPSODL has been impleaded as petitioner in
place of the petitioner. Accordingly, the learned counsel
for the TPSODL has also filed Vakalatanama.
Brief Facts
3. The opposite party no.2-consumer for the purpose
of poultry Unit and production of a poultry feed, required
electricity, submitted an application to the Executive
Engineer (Electrical), Aska Electrical Division-1 of the
erstwhile SOUTHCO Utility for providing power supply.
After due verification of the facility of the consumer by
the licensee, the agreement was executed on 14.03.2007
for a contract demand of 50 Kilo Watt (50 KW) supplied
through 55.55 Kilo Volt Ampere (KVA) transformer at
11000 volt (11KV) and the same was categorized and
billed for consumption of electricity under the
commercial tariff category. The consumer started his
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poultry business of production of eggs, grew live birds by
taking financial assistance from different banks.
The Government of Orissa in the Department of
Agriculture came up with a resolution dated 10.08.2005
wherein to encourage small entrepreneurs for
establishment of poultry units, different benefits were
extended and poultry units were classified as
agriculture. Some incentives towards supply of electricity
were also extended.
After introduction of Agro Industry Tariff by way of
amendment to the Regulation of OERC Distribution
(Conditions of Supply) Code, 2004 (hereinafter in short,
'OERC Code, 2004'), a fresh agreement was executed
between the consumer and the distribution licensee on
25.11.2008 for the purpose of poultry farm, the
consumer was categorized as "agro industries tariff
category" @ Rs.1.10 paisa per unit of electricity
consumed. On the basis of the said agreement, the
consumer was billed by the distribution licensee and
there was no default at any point of time as the
consumer went on paying the dues billed till March,
2011.
4. In a related development, on 19.10.2009, the
Odisha Electricity Regulatory Commission (OERC) made
amendment to Regulation 80(5) of Chapter VIII and
introduced three new categories as follows which are
reproduced herein for convenience reference. :
(i) irrigation pumping and agriculture;
(ii) Allied Agricultural Activities; and
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(iii) Allied Agro Industrial Activities.
5. At this juncture, when the consumer farm was
utilizing power supply as per the agreement dated
25.11.2008, the Executive Engineer of the distribution
licensee raised an energy bill in the month of June, 2011
to pay an amount of Rs.26,675/- and for the month of
July, 2011 raised a bill of Rs.51,219/-; both the bills
having been raised on the basis of treating the category
of the petitioner to be general purpose (Low Tension
Commercial basis) [GPLT category] and not charged @
Rs.1.10 paisa that was billed by the utility and paid by
the consumer till June, 2011.
6. Such billing, raised which became bone of
contention between the parties, was purportedly as per
the amendment notification of OERC dated 19.10.2009
introducing new rates of tariff.
7. The consumer filed a writ petition, i.e., W.P.(C)
No.25765 of 2011 before this Court with a direction to
clear the energy bills, those were raised at the revised
rate reclassifying the consumer as indicated above. By
the judgment rendered on 18.08.2015, the writ petition
was decided on contest, after hearing the consumer and
the distribution licensee and taking note of the
notification dated 19.10.2009 issued by the OERC
which brought about the changes in the categories. The
operative portion of the order passed by the learned
Single Judge is quoted herein :
"In view of the forgoing reasons, this court is of
the considered view that captive feed unit
attached to the "poultry farm' can be considered
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to be its integral part and as such poultry should
be charged on the basis of the 'Agro industrial
Category and subsequent by virtue of the
amendment made 'Allied Agriculture Activities'
not on the basis of GP (LT) Tariff."
8. In a related development on 30.04.2011 on
verification of the load of feeding unit (feed for
consumption of poultry) by the distribution licensee in
the presence of the representatives of the consumer-
opposite party no.2, it was found that the feeding unit
has an electricity consumption load of 14.5 KW which is
29% of the entire load of the consumer. As per the
Regulation 80(5)(III) of the OERC Code, 2004 as the
consumption by the feeding unit exceeded 20%, the
energy bill was revised, in obedience of the order of the
High Court dated 18.08.2015, by withdrawing a sum of
Rs.9,32,040/- from the energy bill of the consumer that
was calculated on the basis of LTGP category and the
consumer was issued revised bill as Allied Agro
Industries.
The verification report along with bill was
submitted before the GRF by the consumer-complainant
in the Consumer Complaint No.76 of 2017, which was
disposed of by the order dated 05.05.2017 with the
following direction :
"The complainant is directed to pay the above said
revised bill within 15 days from the date of receipt
of this order. Failing which the opposite party has
got liberty to disconnect the power supply for non-
payment of dues."
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9. The order dated 05.05.2017 was challenged by the
consumer in Consumer Representation Case before the
Ombudsman alleging that the verification was made in
the absence of the consumer.
As it was decided by the learned Single Bench of
this Court that in view of captive feed unit attached to
the poultry farm for feeding of the birds, the captive feed
units are to be considered as an integral part of the
farm which is an agricultural activity, the Ombudsman-
II by its order no.150(4) dated 13.11.2017 passed order
following the judgment rendered by this Court dated
18.08.2015 in W.P.(C) No.25765 of 2011. In terms of the
order of Ombudsman, the unit of the consumer was
declared as Allied Agro Industrial Activities (AAIA).
10. After the order passed by the Ombudsman, the
consumer separated the electricity load of the feed
preparation unit and with some additional extra load,
availed a new connection in the feed preparation unit in
the name of "Maa Bana Devi Poultry Pvt. Ltd. Feed
Processing Unit". Separate agreement was executed for
such unit, dated 13.10.2017.
Even after such separation of the load and entering
into fresh agreement on 13.10.2017, the petitioner-
consumer poultry unit was billed neither on AAIA as
ordered by the Ombudsman nor on AAA as per the tariff
order of the OERC. It is at this stage, Distribution
Licensee insisted for payment of demand raised instead
of revision of bills under Allied Agricultural Activities.
The licensee issued a disconnection notice vide his Bill
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No.284(4) dated 27.02.2017 resulting consumer filed
GRF Case No.150 of 2018.
11. The distribution licensee filed their detailed counter
before the GRF (at paragraph-14 page 23 to the writ
petition). It was further stated by the licensee that even
after challenge to the order passed by the Ombudsman
by filing W.P.(C) No. 7657 of 2018 and it was stated on
the date of filing of the reply, the writ petition was
pending adjudication before this Court.
Order of GRF
12. After considering the pleadings of the parties, the
GRF gave the following observations in its order :
"The forum has gone through the papers filed by
both the parties and found that although he
complainant has lodged complaint before the
respondent, but he has not complied as per the
regulation 91 and 92 of the OERC distribution
(conditions of supply) Code 2004.
1. The consumer has taken another power supply
exclusively for fee processing unit with CD 47 KW vide
consumer number AAIA 1856 w.e.f. dated 01.12.2017
by separating industrial load from consumer number
CP 1505 (subsequently converted to MIND 1615) and
agreement has been made as per allied agro
industrial processing unit activity tariff. The rest
meant for poultry farming exclusive load remains in
the consumer "Maa Banadevi Poultry Pvt. Ltd." vide
consumer number MIND 1615. Therefore, why the
tariff of the existing consumer (1615) could not be
changed from AAIA to AAA w.e.f. the date of
separation of feeding unit load to another new
consumer.
2. As per regulation 64 of the OERC distribution
(conditions of supply) Code 2004, the maximum
demand recorded in static meter rounded to nearer
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0.5 kw shall be considered as contract demand. The
billing demand in respect of consumer with contract
demand of less than 110 KVA should be the highest
demand recorded in the meter during the financial
year irrespective of the connected load, which shall
require no verification. The recorded demand as per
the dump report submitted by opposite party is as
follows :-
For the month June-17 Dec-15
of
Recorded 69,66/71.34 69,66/80.16
demand in
KWI/KVA
From the above, it is ascertained that the less
claimed demand charges should be claimed & revision
from retrospective effect, based on the available dump
report.
The opposite party is directed:
1. To change the category of "Maa Banadevi
Poultry Pvt. Ltd." (having consumer no-MIND 1615)
from Agro Industrial activities to allied agriculture
tariff w.e.f. dated 01.12.2017 after proper physical
verification.
2. To revise the demand charges as per monthly
recorded maximum demand by considering the
available dump report and based on tariff orders. The
claimed demand charges is to be revised as per the
clause 64 of the OERC distribution (conditions of
supply) Code 2004 retrospectively based on available
dump report and the tariff orders for respective
periods.
3. To revise the bill of the above complainant and
serve the same within 30 days of receipt of this order
and reflect the same in billing fold through LTD.
4. A copy of the revised bill, presented to the
complainant, as per the final order, should be
furnished to this office for compliance.
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The complainant is directed to:
1. Pay the revised bill within 15 days of receipt of
the revised bill from the opposite party, failing which
the opposite party has got liberty to disconnect the
power supply for non-payment of the dues.
The case is disposed of accordingly."
13. To challenge the order of the GRF in the writ
petition, following grounds have been raised :
that as per regulation 15 of the OERC, GRF &
Ombudsman Regulation, 2004, circulars have been
issued by the OERC on the GRF-I/2004 indicating the
nature of disputes to be adjudicated by the GRF and the
circulars do not deal with recovery of money as sought
for by the consumer;
that a plain reading of the clauses 2(l), 2(n) and
2(cc) of OERC Distribution Code, 2004 would go to show
that a consumer is to be charged with demand charges
as per the demand and the demand charges cannot be
different from the contact demand;
that Regulation 64 is not applicable to the
particular consumer, who had approached the GRF.
Submissions
14. Heard Mr. P.K.Tipathy, learned counsel for the
petitioner-distribution licensee and Mr.F.R.Mohapatra,
learned counsel for the opposite party no.2- consumer.
Learned counsel for the petitioner made his
submissions on the basis of the averments made in the
writ petition as noted above.
Learned counsel for the consumer-opposite party
no.2 submitted that the order passed by the GRF is just
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and proper based on the earlier decision rendered by the
learned Single Bench dated 18.8.2018 in W.P.(C) No.
25765 of 2011. The said judgment and order passed by
this Court having not been challenged by either of the
parties is binding. Therefore, the issue which has been
settled by the judgment of this Court, cannot be
reopened in a separate proceeding as is being tried in the
present writ petition by the licensee.
The learned counsel for consumer relied on the
decision of this Court, rendered by Single Judge in
W.P.(C) No. 22202 of 2011 and batch of cases decided on
18.08.2015 holding that "captive feed unit attached to
the 'poultry farm' can be considered to be its integral
part and as such 'poultry' should be charged on the
basis of 'Agro Industrial Category' and subsequent by
virtue of the amendment made 'Allied Agriculture
Activities' not on the basis of GP (LT) basis."
Analysis & Conclusion
15. The stand of the Distribution Licensee before GRF
that the order passed by the Ombudsman is not
sustainable and is liable to be set aside is thoroughly
misconceived inasmuch as the GRF is subordinate to the
Ombudsman as per the statute and Ombudsman's order
was binding on the GRF.
16. Having heard learned counsel for the parties at
length and considering the pleadings available on record
on behalf of the parties which was presented before the
GRF, we are of the considered opinion that the petitioner
has not pointed any error apparent on the face of record
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in the order passed by the GRF which can be interfered
with by this Court. This Court is not an appellate
authority to reopen the finding of fact by the GRF as per
statutory provision that is the Electricity Act, 2003 and
OERC Code, 2004. This Court is of the further opinion
that the judgment and order dated 18.08.2015 passed by
this Court in earlier writ petition, W.P.(C) No. 25765 of
2011 cannot be reopened at the instance of the parties to
the litigation as the order passed by the learned Single
Bench has not been challenged by the Distribution
Licensee. Therefore, it has to be held that captive feed
unit has to be charged for energy consumption as Allied
Agricultural Activity.
Judicial review of Findings of Expert Bodies
17. The Hon'ble Supreme Court in the case of MSEDCL v.
APML & Ors.a after considering the statutory provisions in
the Electricity Act, 2003, held that the CERC, SERCs and the
learned APTEL are bodies consisting of experts in the field.
In the said case, the Hon'ble Supreme Court observed
thus :
"120. It could thus be seen that two expert bodies i.e.
the CERC and the learned APTEL have concurrently
held, after examining the material on record, that the
factors of SHR and GCV should be considered as per
the Regulations or actuals, whichever is lower. The
CERC as well as the State Regulatory bodies, after
extensive consultation with the stakeholders, had
specified the SHR norms in respective Tariff
Regulations. In addition, insofar as GCV is concerned,
the CEA has opined that the margin of 85-100 kcal/kg
for a non-pit head station may be considered as a loss
of GCV measured at wagon top till the point of firing of
coal in boiler.
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18. Regarding scope of judicial review of the findings of
expert body like that of Electricity Regulatory Commission
(e.g. Maharastra ERC) this Court refers to the decision of the
Hon'ble Supreme Court in the case of Reliance
Infrastructure Limited v. State of Maharashtra [(2019) 3
SCC 352].
"38. MERC is an expert body which is entrusted with
the duty and function to frame regulations, including
the terms and conditions for the determination of
tariff. The Court, while exercising its power of judicial
review, can step in where a case of manifest
unreasonableness or arbitrariness is made out.
Similarly, where the delegate of the legislature
has failed to follow statutory procedures or to take
into account factors which it is mandated by the
statute to consider or has founded its determination of
tariffs on extraneous considerations, the Court in the
exercise of its power of judicial review will ensure that
the statute is not breached. However, it is no part of
the function of the Court to substitute its own
determination for a determination which was made by
an expert body after due consideration of material
circumstances.
39. In Assn. of Industrial Electricity Users v. State of
A.P. [Assn. of Industrial Electricity Users v. State
of A.P., (2002) 3 SCC 711] three-Judge Bench of
this Court dealt with the fixation of tariffs and held
thus : (SCC p. 717, para 11) "11. We also agree with
the High Court [S. Bharat Kumar v. State of A.P., 2000
SCC OnLine AP 565 : (2000) 6 ALD 217] that the
judicial review in a matter with regard to fixation of
tariff has not to be as that of an appellate authority in
exercise of its jurisdiction under Article 226 of the
Constitution.
All that the High Court has to be satisfied with is that
the Commission has followed the proper procedure
and unless it can be demonstrated that its decision is
________________
aMSEDCL v. APML & Ors. : 2023 SCC OnLine 233
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on the face of it arbitrary or illegal or contrary to the
Act, the court will not interfere. Fixing a tariff and
providing for cross-subsidy is essentially a matter
of policy and normally a court would refrain from
interfering with a policy decision unless the power
exercised is arbitrary or ex facie bad in law."
[Emphasis supplied]
19. In a recent decision rendered by the Constitution
Bench of the Hon'ble Supreme Court in the case of Vivek
Narayan Sharma v. Union of India [2023 SCC OnLine
SC 1] : it has been held that the Courts should be slow in
interfering with the decisions taken by the experts in the
field and unless it is found that the expert bodies have
failed to take into consideration the mandatory statutory
provisions or the decisions taken are based on extraneous
considerations or they are ex facie arbitrary and illegal, it
will not be appropriate for this Court to substitute its
views with that of the expert bodies.
20. In applying the principles as discussed above, laid
down by the Hon'ble Supreme Court in the judgments
referred to, we are of the considered opinion that the
concurrent finding of fact by the GRF, that the consumer
can be billed based on Allied Agricultural tariff.
21. The petitioner-licensee any material before this
Court to show that the order passed by the GRF which is
impugned in the present writ petition, suffers from any
manifest unreasonsableness or arbitrariness or otherwise
is in breach of any statute. The petitioner has not shown
that the order by the authority which is impugned, is
based on any extraneous consideration or that it is
ex-facie arbitrary and illegal. Lastly, assuming that
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another view can possibly be taken, as argued by the
petitioner that would be different from that of the
authority, the said view cannot be substituted by this
Court replacing the view already taken by the authority,
i.e. the GRF.
22. In view of the above discussion, the writ petition is
dismissed being devoid of any merit. The order passed
by the GRF dated 12.06.2018 in GRF Case No. 150 of
2018 be complied forthwith. In the circumstances of the
case there shall be no order as to costs.
.......................... .......................
Biswanath Rath, J. M.S.Sahoo, J.
Orissa High Court, Cuttack The 10th May, 2023/dutta Digitally signed by AJIT KUMAR AJIT KUMAR DUTTA DUTTA Date: 2023.05.11 22:13:20 +05'30' Page 14 of 14