Shree Lingaraj Feeds Ltd v. State of Orissa and another
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 19015 of 2009 W.P.(C) No. 9763 of 2022 An application under Articles 226 and 227 of the Constitution of India W.P.(C) No. 19015 of 2009 Shree Lingaraj Feeds Ltd. ..…. Petitioner -versus- State of Odisha and others …… Opposite Parties ------------------------------------------------------------------------- For Petitioner : Mr. M.K. Mishra, Senior Advocate For Opposite Party No.1 : Mr. D. Nayak, AGA For Opposite Party No.2 :Mr. B. Mohapatra, Advocate For Opposite Parties No.3 & 4 : Mr. A. Panigrahi, Advocate ------------------------------------------------------------------------- W.P.(C) No. 9763 of 2022 Shree Lingaraj Feeds Ltd. ..…. Petitioner -versus- State of Odisha and others …… Opposite Parties ------------------------------------------------------------------------- For Petitioner : Mr. M.K. Mishra, Senior Advocate Mr. T. Mishra, Advocate For Opposite Party No.1 : Mr. D. Nayak, AGA For Opposite Party No.2 :Mr. Abhishek Dash, Advocate For Opposite Party No.3 & 4 : Mr. A. Panigrahi, Advocate ------------------------------------------------------------------------- 2 CORAM: HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 10th July, 2023 S. Talapatra, J Both the writ petitions being W.P.(C) No.19015 of 2009 [Shree Lingaraj Feeds Ltd. v. State of Orissa and another] and W.P.(C) No.9763 of 2022 [Shree Lingaraj Feeds Ltd. v. State of Orissa and another] are combined for disposal by a common judgment. 2. According to us, the main controversy has been projected in W.P.(C) No.19015 of 2009 where the validity of the amended Regulation 80(5) of Odisha Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 as published by the notification dated 19.10.2009, Annexure-4 to the writ petition has been challenged. By the said notification, the Regulation called Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) (5th Amendment), Code, 2009 was published, with declaration that the said amendment Regulation will come into effect from Page 2 of 29 3 the date of publication in the Official Gazette. By the said amendment, the old Regulation 80(5) was substituted by the following regulation: “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/bore-wells, dug-wells, nallahs, streams, rivulets, rivers, exclusively for agricultural purpose. 80 (5)(ii): Allied Agricultural Activities: This category relates to supply of power for activities such as Pisciculture/Prawnculture, Horticulture, Floriculture, Sericulture and other allied agricultural activities including animal husbandry and poultry, but does not include ice factories, cold storages, chilling plants, fish/prawn processing units, poultry feed, cattle feed and fish feed units. 80(5)(iii): Allied Agro-industrial Activities: This category relates to supply of power to cold storage (i.e. a temperature controlled storage where flowers, fruits, vegetables, meat, fish and food etc. can be kept fresh or frozen until it is needed) and also includes chilling plants for milk and only the cold storages attached to the meat, fish/prawn processing units.” Page 3 of 29 4 3. The Petitioners’ grievance is that in the amended Regulation 80(5) (ii) Allied Agricultural Activities has been redefined. It has been provided by the amended regulation that the said category (Allied Agricultural Activities) relates to supply of power for aqua-culture (which includes pisci culture prawn/culture), horticulture, flora culture, seri-culture, animal husbandry but the poultry activities, such as, ice factory, chilling plants, cold storage, cattle/poultry/fish feed units and agro-products processing units are excluded. The Petitioners
Legal Reasoning
having challenged the said amended provision have urged this Court to direct the Odisha Electricity Regulatory Commission (OERC in short) to include the words- “poultry feed, cattle feed and fish feed unit” appearing after the word ‘poultry’ in the 4th line of the Regulation 80(5) (ii) in the draft notification
Decision
dated 01.09.2009, Annexure-2 to the writ petition. By the said notification, the Odisha Electricity Regulatory Commission Distribution (Conditions of Supply) (5th Amendment), Code, 2009 was published with a declaration that the said amended Regulation will come to effect from the date of its publication Page 4 of 29 5 in the Official Gazette. In the said notification, the old Regulation 80(5) was first substituted and the following was inserted: “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/bore-wells, dug-wells, nallahs, streams, rivulets, rivers, exclusively for agricultural purpose. 80 (5)(ii): Allied Agricultural Activities: This category relates to supply of power for activities such as Pisciculture/Prawnculture, Horticulture, Floriculture, Sericulture and other allied agricultural activities including animal husbandry and poultry, but does not include ice factories, cold storages, chilling plants, fish/prawn processing units, poultry feed, cattle feed and fish feed units. 80(5)(iii): Allied Agro-industrial Activities: This category relates to supply of power to cold storage (i.e. a temperature controlled storage where flowers, fruits, vegetables, meat, fish and food etc. can be kept fresh or frozen until it is needed) and also includes chilling plants for milk and only the cold storages attached to the meat, fish/prawn processing units.” Page 5 of 29 6 4. It may be noted that in the Regulation 80(5) (ii) as substituted by the draft notification dated 01.09.2009, Annexure-2 to the writ petition, the allied agricultural activities has been redrawn for purpose of supply of power for activities, such as, pisci culture, prawn culture, horticulture flora culture, seri culture and other allied agriculture activities including animal husbandry and poultry, but does not include ice factory, cold storage, chilling plants, fish/prawn processing unit, poultry feed, cattle feed and fish feed units. The amendment, as circulated by the Notification dated 19.10.2009 has rephrased the Allied Agricultural Activities under Regulation 80(5) (ii) of the said Code. The purpose of the Petitioners’ challenge is obvious from the nature of the prayer as made in the writ petition. The Petitioners do want further amendment in Regulation 80 (5) (ii) of the Odisha Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2009 for incorporation of poultry feed, cattle feed and fish feed unit before the exclusionary clause, as provided by the Notification dated 19.10.02009, Anneuxre-4 to the writ Page 6 of 29 7 petition. The Petitioners have also challenged the demand notice/disconnection letter dated 30.03.2022 and 13.04.2022 respectively under Annexures-21 and 25 of the writ petition. 5. In the subsequent writ petition being W.P.(C) No.9763 of 2022, the challenge is confined to the legality of the demand notice and the disconnection notice dated 30.03.2022 and 13.04.2022 respectively (Annexures-21 and 25) to the said writ petition. The challenge in the said writ petition is based on the contravention of the notification dated 09.10.2009. It has been clearly indicated that in the notice dated 30.03.2022, the Opposite Party No.4-Executive Engineer (Electrical) RED TPWODL, Rajgangpur has raised the demand for outstanding arrear of electricity dues. The said Opposite Party has also issued the notice of disconnection under Section 56(1) of the Electricity Act, 2003, read with Regulation 172(1) of the OERC Supply Code, 2019. It has been stated in the said notice/letter that the Petitioner has failed to make payment of electricity dues to the extent of Rs.6,11,28,185.33 which is the differential electricity charges Page 7 of 29 8 between the Large Industries tariff category and Allied Agricultural Activities tariff. It has been stated that the interim order dated 18.12.2009 and by the order dated 26.08.2021 as passed in W.P.(C) No.19015 of 2009 had expired in the meantime. Hence, it has been contended that the Petitioner is liable to pay the aforesaid amount, else, the Opposite Party No.4 will be constrained to take the appropriate recourse under Section 56(1) of the Electricity Act, 2003. It has been claimed by the Petitioner that it does not belong to Large Agricultural Industries and hence, there is no question of “differential tariff” between Large Industries and Allied Agricultural Activities. Therefore, the so called demand to the extent of Rs.6,11,28,185.33 is entirely baseless. The Petitioner has further contended in Paragraph-20 of the said writ petition being W.P.(C) No.9763 of 2022 as follows: “20.That it is most pertinent to state here that when the interim order is/was operating in the connected Writ Petition vide W.P (C) No. 19015 of 2009, most cunningly and mischievously the opp.party/TPWODL vide letter dtd.02.04.2022 have enclosed the energy bill for the month of March 2022. In the said letter it Page 8 of 29 9 has been clearly stated that, since the petitioner has challenged the amendment of OERC with respect to the exclusion of feeding units from the scope of “Allied Agricultural Activities” tariff as well as ‘Allied Agro Industrial Activities’ tariff, issuance of present bill is subject to outcome of the said writ application. Thus, when the authorities themselves admit that the issuance of the bill is subject to outcome of the writ application, such raising of bill is nothing but foul play by the authorities only to harass the petitioner.” 6. According to the Petitioner, that can be the sole basis to quash the demand letter dated 30.03.2022, Annexure-21 to the writ petition. It has been further contended that during currency of the interim order, the said demand was raised. 7. Since this file is a reconstructed file, copies of all the orders are not available. It appears from the order dated 27.04.2022 as delivered in I.A. No.5051 of 2022 arising from W.P.(C) No.9763 of 2022 that Mr. M.K. Mishra, learned Senior Counsel was requested by this Court to file all the materials for reconstruction of the file of W.P.(C) No.19015 of 2009. In Paragraph-7 of the said order, it has been, observed as follows: Page 9 of 29 10 “As the electricity has been disconnected in the meantime, without prejudice to the interest of the either parties, we direct reconnection of electricity to the unit of the petitioner on deposit of requisite statutory dues for reconnection, within a period of fifteen (15) days from today, subject to the caveat that the petitioner shall deposit a sum of Rs.1,00,000,00.00 (Rupees one crore) in a Nationalised Bank of his choice in an interest bearing Fixed Deposit account of his name not to be operated without leave of this Court until farther orders.” 8. Thereafter, by the order dated 06.05.2022, delivered in W.P.(C) No.9763 of 2022, it has been observed that the counsel for the Opposite Party No.3 had requested this Court to credit the deposit Rs.1,00,000,00/- in the account of Opposite Party No.3. But the said request was not accepted by the Court. After the order dated 27.04.2022 as passed in I.A. No.5051 of 2022, no interim order was passed either in W.P.(C) No.19015 of 2009 or in W.P.(C) No.9763 of 2022. Therefore, the order relating to continuation of interim order is misnomer and it cannot have any effect, so far as the validity of notice/disconnection letter dated 30.03.2022 and Page 10 of 29 11 13.04.2022 respectively are concerned. By virtue of the order dated 27.04.2022, the Petitioner has been enjoying the electricity connection and the Opposite Party No.3 has not complained of any further arrear outstanding. It may be also noticed that the writ petition was amended. The relief as sought in the writ petition being W.P.(C) No.19015 of 2009 has been amended and the relief of the writ petition being W.P.(C) No.9763 of 2022 has been incorporated in the said writ petition being W.P.(C) No.19015 of 2009 and hence, the challenge as made in the writ petition being W.P.(C) No.9763 of 2022 has been embedded in the writ petition being W.P.(C) No.19015 of 2009. As such, the necessity of deciding the W.P.(C) No.9763 of 2022 separately has been met. Having observed thus, we dispose of the writ petition being W.P.(C) No.9763 of 2022 with observation that relief as sought in this writ petition will be considered in W.P.(C) No.19015 of 2009. 9. Mr. M.K. Mishra, learned Senior Counsel appearing for the Petitioner has submitted that the OERC issued the notification on 11.09.2007 for amending the Regulation 80(5) Page 11 of 29 12 of the OERC Distribution (Conditions of Supply) Code, 2004. The Regulation 80 (unamended) provided the classification of consumers. The licensee may classify or reclassify the consumers into various categories subject to approval by the OERC and may fix different tariffs and conditions of supply for different class of consumers. The pre-amended Regulation 80 contained as many as 15 categories of consumers. Regulation 5, as its stood before amendment reads as follows: “(5) 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, nallahs, streams, rivulets, rivers, ponds, dug wells exclusively for agricultural purposes.” The said regulation has been sought to be amended and for that purpose the notification dated 31.10.2007, Annexure-1 to the writ petition had been issued. The said notification was issued for the information to the general public. By the said notification a new category of consumers namely Agro-Industrial Consumers were created. The OERC had decided that energy charges for Agro-Industrial Page 12 of 29 13 consumers will be 110 paise per unit at LT and 100 paise per unit at HT level. Thus, the electricity charges for the Agro- Industrial Consumers for the year 2008-2009 stood reduced by 73%, compared to the level approved for the previous year 2007-2008. 10. It has been stated by Mr. Mishra, learned Senior Counsel that in the year 2009 another writ petition being W.P.(C) No.6516 of 2009 was filed to include the Petitioner’s unit in the category of Agro-Industrial Consumers. By the order dated 26.08.2009, the OERC was directed to consider the representation if any, in that regard and to consider whether an additional tariff category for agro-based industries can be created for the non-agriculturist consumers and fix the appropriate tariff for that category. Mr. Mishra, learned Senior Counsel has pointed out that the notification dated 19.10.2009, Anneuxre-4 to the writ petition, was issued containing the OERC Distribution (Conditions of Supply) (5th Amendment) Code, 2009. In terms of the direction contained in the order dated 26.08.2009, passed in the said writ petition being Page 13 of 29 14 W.P.(C) No.6516 of 2009 titled as M/s. Prithwiraj Diary Products v. State of Orissa & Others, the necessary amendment was proposed in the regulation. The said amendment has been carried out by the notification dated 19.10.2009. It has been contended by Mr. Mishra, learned Senior Counsel that the large section of villagers engaged in agriculture, diary and poultry are depending upon cattle feed and poultry feed. Cattle feed and poultry feed are inputs for animal husbandry and poultry. Hence, exclusion of poultry feed and cattle feed from agricultural activities will have adverse consequences. That will affect the agro economy of the State. According to Mr. Mishra, learned Senior Counsel, such exclusion in the amended Regulation 80(5) is violation of the direction of this Court contained in order dated 26.08.2009. According to him, the licensee was directed to provide a new tariff category for agro based industries. Mr. Mishra, learned Senor Counsel has reiterated in the course of his submission that the poultry and cattle feed units are Allied Agricultural Activities for poultry and cattle. The feed is the Page 14 of 29 15 captive consumption and without any feed, the poultry and cattle cannot survive. To nourish his submission, he has referred to the entomological aspect of the word ‘Allied’. Allied means similar and related or existing together or connected with, as per Oxford Dictionary and the Chamber’s Dictionary. Hence, the process of poultry feed and cattle feed is an integral part of growth of live birds in a poultry and cattle, for which the cattle/poultry feed units are integral and cannot be segregated, and hence the consumption of electricity in the cattle feed and poultry feed units cannot be excluded from agricultural activities. According to Mr. Mishra, learned Senior Counsel, those are agro-based industries. 11. Mr. Mishra, learned Senior Counsel has also stated that the amended Regulation 80(5)(ii) contravenes the espoused agricultural policy of the Government of Odisha. Therefore, the exclusion of cattle feed and poultry feed, from the Allied Agricultural Activities is unsustainable. That apart, Mr. Mishra, learned Senior Counsel has advanced an unique proposition that the said notification containing the amended Page 15 of 29 16 regulation dated 01.09.2009, Annexure-2 to the writ petition and the notification dated 19.10.2009, Annexure-4 respectively are arbitrary, illegal and not consistent with the provision of Section 181(3) and 62(4) of the Electricity Act, 2003. 12. Before we proceed further, let us read Section 62(4) of the Electricity Act, 2003 first. Section 64 deals with procedure for tariff order. Sub-Section (4) of Section 64 of the Electricity Act provides that Appropriate Commission shall, within seven days of making the order, send a copy of the order to the Appropriate Government, the Authority and the concerned licensees and to the person concerned. 13. The case in hand is not related to determination of tariff. It is relating to classification and reclassification. Hence, the said provision of Section 64 (4) of the Electricity Act does not have any relevance in the present context. For the similar reason, provision of Section 181 of the Electricity Act is also not relevant since the controversy is not related to framing of regulation or as regards competence of framing Page 16 of 29 17 such regulation etc. The controversy is related to framing a new regulation by the OERC. 14. We have come across the public notice that was published subsequent to the notification dated 01.09.2009, Annexure-2 to this writ petition. The said public notice for inviting suggestions on the proposed amendment was via www.orierc.org. It was made known that the copies of the proposed amendment may also be obtained from the Commission’s Office on request and on payment of necessary fees. Thereafter, it has been provided in the said public notice, Aneexure-2 to the writ petition, that before finalization of the said amendment, the Commission will duly consider the opinion or suggestions. Interested persons/institutions/ associations may furnish their suggestions/opinions on the said amendments within 15 days of publication of the notice. On receipt of the responses from different quarters, the Commission may, in appropriate cases, bring in modifications, if any, to the proposed amendments and approve the same for publication in the official gazette. It appears that the Petitioner Page 17 of 29 18 filed objection and suggestion for modification of the proposed category and suggested to include cattle feed and poultry feed by taking them out from the exclusionary clause and to incorporate them within the category which will entitle them to the reduced electricity tariff. Even the Petitioner has suggested for rephrasing of the said amendment regulation in the following manner: “Allied Agricultural Activities: This category relates to supply of power for activities such as Pisciculture/Prawnculture, Horticulture, Floriculture, Sericulture and other allied agricultural activities including animal husbandry and poultry, but does not include ice factories, cold storages, chilling plants, fish/prawn processing units, poultry feed, cattle feed and fish feed units.” 15. Mr. Mishra, learned Senior Counsel has submitted that the Petitioner’s representation was not at all considered, else, such illogical and unreasonable amendment would not have been carried out Regulation 80(5) of the said regulations. Mr. Mishra, learned Senior has urged for interference and to take out cattle feed and poultry feed units from the Page 18 of 29 19 exclusionary clause and include them under the Allied Agricultural Activities in the final notification dated 19.10.2009, Annexure-4 to the writ petition. So far as the demand notice is concerned, Mr. Mishra, learned Senior Counsel has submitted that the enhanced rate is highly disputed. The Petitioner has raised serious objection against the account of the outstanding bill. Moreover, when a process was on for amending the category of Allied Agricultural Activities in terms of the order of this Court. 16. Mr. Mishra, learned Senior Counsel has reiterated that the notification dated 19.10.2009 is arbitrary, illegal and not in consonance with Sections 193 and 64 (3) of the Electricity Act, 2003. Mr. Mishra, learned Senior Counsel in order to nourish his submission further has placed his reliance on a decision of this Court in Basudev Mahakud v. National Seeds Corporation Ltd.: 2013 (2) ILR-CUT 832. It has been held in Basudev Mahakud (supra) that creation of classification/re-classification, fixation and determination of tariff is one thing and classification as to which particuiar Page 19 of 29 20 consumer comes under which category is another thing and both are of two different and distinct aspects. While the former is within the exclusive domain of Commission, the latter is within the jurisdiction of GRF. This decision does not in any way help the case of the Petitioner. Another decision has been referred by Mr. Mishra, learned Senior Counsel. In The Executive Engineer (Electrical) NESCO, Baripada Electrical Division v. Ombudsman-II, (Electricity) and others: 115 (2013) CLT 601 this court held as follows: “6 .Claim of Opp. Party No. 2 is that it is coming under 80(5)(ii) i.e. Allied Agricultural Activities. This category relates to supply of power for aquaculture (which includes pisciculture/prawn culture). Horticulture, floriculture, sericulture, animal husbandry & poultry. Activities such as Ice Factories, Chilling Plants, Cold Plants, cattle/poultry/fish feed units & food agri-products processing units are excluded. Therefore, poultry is covered under the Regulation 80(5)(ii) i.e. allied agricultural activities.” 17. The said decision also does not support the case of the Petitioner. In M/s. Krishna Poultry Farm v. State of Orissa [judgment dated 18.08.2015 in W.P.(C) No.22202 of Page 20 of 29 21 2010] it had been held that poultry is different from production of cattle feed and similarly, poultry feed are different from poultry. Poultry farms are included in the Allied Agriculture Activities. This decision also does not support the case of the Petitioner in any manner. 18. On the aspect of arbitrariness, Mr. Mishra, learned Senior Counsel has relied on a decision of the apex Court in East Coast Railway and Anr. v. Mahadev Appa Rao and others: (2010) 7 SCC 678 where it has been held that “Non- application of mind by the authority making an order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained, is clearly Page 21 of 29 22 suggestive of the order being arbitrary hence legally unsustainable.” On the same point of law, Mr. Mishra, learned Senior Counsel has referred to Tata Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission: 2022 Live law SC 987 and Shayara Bano v. Union of India: (2017) 9 SCC 1. In those decisions, the apex Court held that in order to frame regulation, the mandate of Section 181 of the Electricity Act has to be followed for determining tariff or classification involving the change in tariff. The classification as made if is found unreasonable or manifestly arbitrary and contrary to Article 14 of the Constitution of India interference of the constitutional Court will be imminent. Reference has been made to Dipak Babaria v. State of Gujurat: (2014) 3 SCC 502, where the law has been restated that if a statute requires a certain act to be done in a particular manner, it has to be done in that manner or not at all. Page 22 of 29 23 19. It has been further stated that even if alternative remedy is available, that will not create a complete bar in approaching the High Court for redressal of grievances. 20. In the counter affidavit filed by the OERC, it has been categorically contended that OERC has considered the proposal for exclusion of “cattle/poultry, fish feed units” in Regulation 80(5) (ii) of OERC Distribution (Conditions of Supply) Code, 2004. It has been asserted as follows: “The objection of the Petitioner was received in time by OERC and was duly considered. The Commission after considering the views not only of the Petitioner but also the views of all stakeholders and has framed the Regulation. So it is not possible only to consider views of the Petitioner only.” It has been further asserted that poultry/cattle/fish feed industries cannot enjoy the benefit given to the agricultural activities as those are basically industrial consumers, similar to manufacturers of fertilizers, pesticides and other agricultural implements etc. Merely because such farm or other individuals possess poultry feed or cattle feed units for supply to their own poultry farms or cattle farms and Page 23 of 29 24 to other farmers, engaged in such activities, the unit cannot be treated as part of animal husbandry and poultry activities. These are separate industrial activities. Hence, no modification was made while the notification dated 19.10.2009 was published. Thus, the cattle feed/poultry feed/fish feed units continue to be excluded from the subsidised or reduced electricity tariff. 21. By filing the rejoinder, the Petitioner has restated the grounds. But no new materials have been placed for consideration. 22. Having scrutinized the records and appreciated the submission advanced by the counsel for the parties, the following pertinent questions emerge for consideration of this Court: (i) Whether the Regulation 80(5) (ii), in view of procedure as laid down by Section 181 (3) was valid? (ii) Whether by implication Allied Agricultural Activities include production of poultry feed/cattle feed/fish feed and whether they can be classified as Page 24 of 29 25 eligible for subsidised or reduced tariff for consumption of electricity ? (iii) Whether this Court by exercising its power of judicial review can mandate the Opposite Parties No.2 and 3 to include the poultry feed, cattle feed and fish feed units within the classification, which is entitled to subsidised or reduced electricity tariff ? 23. In response to the question no.(i) above, it is to be noted that the following the procedure of Section 181(3) of the Electricity Act, 2003, due public notice was issued by publishing the proposed amendment in Section 80(5)(ii) of the OERC Distribution (Conditions of Supply) Code, 2004. It was clearly mentioned in the said public notice dated 01.09.2009, Annexure-3 to the writ petition, that the Regulation 80 (5) (ii) will be substituted by the amended provision which causes exclusion of poultry feed, cattle feed and fish feed units from the Allied Agricultural Activities. The Petitioner has also submitted his objection and suggestion on 14.09.2009 (part of Annexure-3) and the said suggestion and objection have been duly considered by OERC, as is evident from their counter affidavit dated 02.04.2010. It has been mentioned there that on Page 25 of 29 26 due consideration, the Petitioner’s suggestion was regretted. As such, we do not find any infirmity in the process of amendment of Regulation 80(5)(ii) of the OERC Distribution (Conditions of Supply) Code, 2004. 24. In response to the question no.(ii) as formulated by us, we would clearly state that so far as granting of subsidy or reduced tariff for electricity is concerned, it falls within the domain of policy making. The High Court cannot exercise their power of judicial review under Article 226 of the Constitution of India, to determine the policy where to provide the subsidy or to extend reduce tariff. The policy can only be determined by the appropriate authority viz. State Electricity Regulatory Commission or the distribution licensee observing the procedure as prescribed. Therefore, we discard the contention of the Petitioner in this regard. 25. In response to the question no.(iii), we observe that in view of the above observation, we cannot direct or mandate the Opposite Parties No.2 and 3 to include the poultry feed/cattle feed/fish feed within the Allied Agricultural Page 26 of 29 27 Activities. In this regard, we also observe that by interpreting the word ‘Allied’, the express provision by which the cattle feed, poultry feed and fish feed units have been excluded cannot be made otiose. 26. Finally, as regards the challenge against the demand notice dated 30.03.2022 or the letter dated 13.04.2022 for disconnection of the electricity line, Annexures-21 and 25 respectively, this Court is of the view that the bills raised by the distribution licensee under Regulation 89 of the OERC Distribution (Conditions of Supply) Code, 2004 has to be paid within the due date of payment vide Section 93 (2) of the said Code, 2004. If the consumer fails to pay any consumption charge or any other sum due and payable by him to the licensee by the due date mentioned in the bill, the licensee may after giving not less than 15 clear days’ notice in writing to such person and without prejudice to his right to recover such charge or cut off supply of electricity, and for purpose of disconnecting the electricity supply line or other works being the property of such licensee or generating company through Page 27 of 29 28 whom electricity is supplied, transmitted, distributed or built, the licensee, according to Regulation 100 of the said Code, 2004, may not commence the supply until such charge or other sum together with any expenses incurred by him in cutting off and re-connecting the supply are paid. 27. In exercise of our jurisdiction of judicial review, we cannot decide a dispute regarding the correctness of the electricity consumption bill and consequential action taken by the authority. 28. By the interim order dated 27.04.2022 as passed in I.A. No.5051 of 2022 arising from W.P.(C) No.9763 of 2022, the Petitioner was directed to lock a sum of Rs.1.,00,000,00/- in any Nationalize Bank for re-connection of the electricity line. In view of the above opinion, as expressed by us, we vacate the said interim order. The Opposite Party No.3 shall be at liberty to take appropriate action for recovery of the arrear electricity bill and also to take the punitive action in accordance with the Regulation. We also observe that, the Page 28 of 29 29 Petitioner will not be precluded from challenging the correctness of the bill in the appropriate forum, if permitted by law. 29. Having observed thus, the writ petition being W.P.(C) No.19015 of 2009 is dismissed. The writ petition being W.P.(C) No.9763 of 2022 has already been disposed of in view of the amendment carried out in the writ petition being W.P.(C) No.19015 of 2009. 30. There shall be no order as to costs. [ Savitri Ratho, J. I agree. …………………………. (S. Talapatra, J) …………………………. (Savitri Ratho, J) Orissa High Court, Cuttack. The 10th day of July, 2023. L. Murmu, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 27-Sep-2023 17:54:10 Page 29 of 29