The High Court
Case Details
1 AFR AFR IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.2338 of 2015 An application under Articles 226 and 227 of the Constitution of India The Executive Engineer (Electrical), ..…... CESU, Puri Petitioner -versus- Sri Fagubhusan Parida & Anr. ..….. Opposite Parties --------------------------------------------------------------------------- For Petitioner : Mr. S.C. Dash, Advocate For Opposite Parties : Mr. Bikash Jena, Advocate For the Opposite Party No.1 ---------------------------------------------------------------------------- WP(C) No.21792 of 2015 An application under Articles 226 and 227 of the Constitution of India The Executive Engineer (Electrical), ..…... CESU, Cuttack Electrical Division , Cuttack & Anr. Petitioners -versus- M/s. Pasupati Feeds & Anr. …… Opposite Parties --------------------------------------------------------------------------- For Petitioner : Mr. S.C. Dash, Advocate For Opposite Parties : Mr. Bikash Jena, Advocate For the Opposite Party No.1 2 WP(C) No.23927 of 2015 An application under Articles 226 and 227 of the Constitution of India The Executive Engineer (Electrical), ..…... CESU, City Distribution Division No.II , Cuttack. Petitioner -versus- Ombuds Man No.1, …..…… Opposite Parties Bhubaneswar & Anr. --------------------------------------------------------------------------- For Petitioner : Mr. S.C. Dash, Advocate For Opposite Parties ---------------------------------------------------------------------------- : CORAM: THE HONOURABLE MR. JUSTICE S. TALAPATRA THE HONOURABLE MR. JUSTICE M.S. SAHOO JUDGEMENT 31st March, 2023 S. Talapatra, J. The foundation of the challenge in all these writ petitions is identical. The common question that wades through all the writ petitions is that whether by applying the multiplying factor (MF) the distribution licensee can modify the bill and demand payment from the consumer against the electricity consumption. Before we deal with 3 the said question, we would like to briefly note the relevant facts in each of the writ petitions. 2. WP(C) No.2338 of 2015 The petitioner represents the Distribution Licensee (CESU). The Opposite Party No.1 is the consumer of electricity under HT Industrial (M) supply category for a contract demand of 27 K.W. of load under CESU. The power supply was effected from 01.07.2012 with installation of a Low Tension Current Transformer,(LTCT) meter bearing SL. No.CESU-0350, IR-01 & having Multiplying Factor of (M.F.) 20. Details of the metering installation, load details, transformer details & meter details etc. were made known to the consumer when the consumer had signed the test certificate. It has been clearly mentioned that MF will be 20, but due to oversight & mistake, the bill continued with M.F-1 and the said metering was continued till the day of filing of the writ petition with the same Current Transformer (CT) & Potential Transformer (PT) ratio. After detection of the aforesaid omission in respect of the multiplying factor (MF), the modified bills were raised with M.F-20 w.e.f. May, 2014. 4 3. Since the consumer was under-billed for the period from 01.07.2012 to April, 2014, not being billed with the correct M.F, the differential on the basis of the actual units consumed were calculated with M.F.-20 in lieu of M.F.1 and thus, under-billed amount was worked out at Rs.5,09,415/-. The consumer was accordingly asked for payment of the said differential amount by the letter No.9027 dated
Decision
22.09.2014, Annexure-1 to the writ petition. 4. Being aggrieved by the said demand, the consumer had filed a Consumer Complaint Case No.108 of 2014 in the Grievance Redressal Forum (GRF) against the Distribution Licensee (CESU) invoking the power under Section 42(5) of the Electricity Act. 5. The consumer claimed in the complaint that the meter was malfunctioning and as such Regulations 97 & 98 of the OERC Distribution (Condition of Supply) Code, 2004 would apply. Further it has been contended that Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 speaks about the non-availability of meter-reading due to fault in the metering equipments or due to absence of the multiplying factor of the meter, billing in such cases shall be done as per proceeding as laid down in Regulation-97. The 5 GRF by waiving the objection of the petitioner has passed the order dated 10.11.2014, Annexure-4 to the writ petition, observing as follows: “We perused the available documents including the billing statement from July’ 2012 and revised statement from July’ 2012 to March’2014 towards M.F. change from 01 to 20. Regulation-98 of OERC Distribution Supply Code, clearly mentioned as “if the readings of meter working in association with Current Transformer (CT) and Potential Transformer (PT) and other auxiliary equipment if any, are found to be incorrect on account of wrong connection or disconnection of such CTs, PTs and other equipment or on account of omissions of commissions in regard to multiplying factor, erroneous adoption of CT ratio, PT ratio, the billing in such cases shall be done as laid down in Regulation-97. As per Regulation-97 of OERC Distribution (Condition of Supply) Code, 2004 for the period the meter remained defective or was lost, the billing shall be done on the basis of average meter reading for the consecutive three billing periods succeeding the billing period in which the defect or loss was noticed. It shall be presumed that use of electricity through defective meter was continuing for a period of three months immediately preceding the date of inspection in case of Domestic and Agricultural consumers and for a period of six months immediately preceding the date of inspection for all other categories of consumers, unless the onus is rebutted by the person, occupier of possessor of such premises of place. In the present case since the date of power supply i.e. from July’2012 the respondent prepared the energy bill with MF-1 upto April’ 2014 despite in test report the MF is written as 20 in which both the complainant and respondent have signed. Erroneously the billing was continued with MF-1 by the respondent upto April-2014. In May’ 2014 the bill was 6 prepared with MF-20. As per Regulation, the billing should be done with MF-20 for past six month only.” Having observed thus, the GRF has directed for revision of bill for change of MF from 1 to 20 from July, 2012 i.e. the date of the initial power supply. The GRF was of the opinion that the revised bill with MF-20 shall be issued to the complainant from November, 2013 to April, 2014 i.e. only for 6 month as per the Regulation. But the word “Regulation” as used in the order dated 10.11.2014, Annexure-4 to the writ petition, the GRF meant Regulation-97 of the OERC Distribution (Condition of Supply) Code, 2004. 6. The petitioner has challenged the said order by contending that Regulations 98 and 97 of the OERC Distribution (Condition of Supply) Code, 2004 are not applicable in view of the nature of the dispute. Even the GRF has observed that the dispute is not on the defective meter reading but on account of omission and commission in regard to the multiplying factor. Hence, Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004 will apply. The petitioner has asserted in the writ petition that the order of the GRF suffers from serious illegality as the GRF has perversely interpreted 7 Regulations 97 and 98 of the OERC Distribution (Condition of Supply) Code, 2004 in order to apply the same in the present dispute. Hence, the GRF’s order is not sustainable. According to the petitioner, Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 would only apply in the event of non-availability of the meter-reading due to fault in the metering equipments or due to absence of the multiplying factor of the meter. In such cases, Regulation-97 of the OERC Distribution (Condition of Supply) Code, 2004 would also apply. In short, the case of the petitioner is that the correct multiplying factor of the meter being not available, the meter cannot be deemed as defective for purpose of billing. So the applicability of Regulations 97 and 98 of the OERC Distribution (Condition of Supply) Code, 2004 are totally unwarranted. The observation of the GRF by the impugned order, Annexure-4 to the writ petition, that change of MF-1 to MF-20 will only apply for the immediate preceding 6 month from the date of the billing in the changed MF i.e. from November, 2013 to April, 2014. The remaining period cannot be accounted for purpose of billing. 8 7. The consumer (the Opposite Party No.1) has filed the counter affidavit in order to defend the GRF’s order dated 10.11.2014 and raised the question relating to maintainability of the writ petition, stating inter alia that judicial review from the order of GRF cannot be sustained in as much as GRF is the petitioner’s own establishment. It is the consumer who can only challenge the order passed by the GRF under Section 42 (6) of the Electricity Act, 2003. It has been further asserted by the consumer that there is not a single instance that during the period from 01.01.1999 to 27.05.2004 the Distribution Licensee had challenged the order passed by the designated authority by filing a writ petition. Since the GRF is constituted by the technical experts, no action for the judicial review at the instance of the Distribution Licensee is maintainable. It has been contended that by the letter dated 24.04.2014, suddenly CESU had claimed an amount of Rs.5,09,15.32/-, to be paid by the consumers. The said amount has been settled by way of revision of the bill on the basis of the changed MF 20. According to the consumer, the GRF has correctly held that Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 is applicable and as such, Regulation 97 of the OERC 9 Distribution (Condition of Supply) Code, 2004 shall apply and the demand shall be restricted only for 6 months preceding the date of demand and not for entire period during which such omission or commission continued. 8. In the case at hand, the petitioner has revised the bill for past 22 months, from July, 2012 to April, 2014 and the petitioner claimed a sum of Rs. 5,09,415.32/- as the differential amount due to erroneous billing by applying the multiplying factor 01, instead of 20. The petitioner has claimed that they are entitled to raise the differential bill for the entire period of 22 months, but by the impugned order, the same has been restricted only to preceding 6 months, in the manner as noted above. Therefore, the solitary question, which is pertinent is that whether the revised bill can be raised for the entire period when the bills were erroneously made by applying a wrong multiplying factor or such bill shall be restricted to for a period of immediate preceding 6 month from the date of the revised billing. The petitioner by filing a rejoinder has seriously resisted the question of maintainability by stating that GRF is not an intra-departmental mechanism but it is a statutory body, as constituted under Section 42 10 (5) of the Electricity Act, 2003 and as such, the petitioner does not have any control or authority over the GRF. The petitioner is not in a position to influence the process in any manner. Hence, against the order of the GRF, the petitioner has right to invoke the jurisdiction of this court under Articles 226 and 227 of the Constitution of India. 9. To such claim of the petitioner, the consumer by filing an additional affidavit, has stated that it is the responsibility of the Distribution Licensee to record the meter data, maintain data bills and all information associated with the consumer’s meter. The petitioner is under obligation to verify the correctness of the meter data. According to the consumer, it is a case of omission within the plain dictionary meaning and as such Regulation 98 of the said code would apply and hence, Regulation 97 will come into play so far the revised billing is concerned. It shall be restricted to preceding 6 months from the date of the revised billing. Hence, no illegality has been committed by the GRF while passing impugned order dated 10.11.2014. 11 10. WP(C) No.21792 of 2015 In this case also the petitioners have challenged the order dated 05.11.2015 passed in Consumer Representation (C.R.) Case No.47/2015 by the Ombudsman-I of the Electricity, Bhubaneswar. The Opposite Party No.1 (M/s Pasupati Feeds) is a consumer of CESU under large industrial category. The consumer had executed the agreement on 12.12.2012 for a contract-demand of 400 KVA. In terms of the said agreement, the power supply was effected after installation of an energy meter having multiplying factor of 200. On 29.10.2013, the said metering unit was replaced with a new 11KV/110 metering unit of 30/5 ampere containing the meter multiplying factor of 600, in place of 200 within the knowledge of the consumer (the Opposite Party No.1). Report to that effect was prepared and the same was acknowledged by the consumer. Though the multiplying factor was changed from 200 to 600 with effect from 29.10.2013, but due to oversight, the consumer was under-billed on account of clerical mistake. The consumer was billed under MF-200 by mistake. The consumer was not billed on actual MF-600. The said mistake came to the notice of the petitioners in the month of February 12 2015 when the demand notice No.AM-265, dated 12.03.2015 was issued to the consumer (the Opposite Party No.1) demanding Rs.16,74,512/- from the consumer. The differential bill was raised on MF-600 from October, 2013 till January, 2015. But from the month of February, 2015 the bill was correctly raised and the bill amount was paid by the consumer. The consumer has filed a Complaint Case No.337/2015 before the Grievance Redressal Forum (GRF) at Cuttack invoking the provisions of Section 42 (5) of the Electricity Act, 2003. But the said complaint was dismissed by the GRF by the order dated 29.06.2015, Annexure-4 to the writ petition. While dismissing the complaint, the GRF has inter alia observed as follows: from immediately/proceeding “From the above, it is clear that the Regulation-97 of OERC Distribution Code 2004 makes provision for billing in case of defective meter where it has been held that the use of electricity was continuing for a period of maximum the date of six months inspection. But in instant case the meter of the complainant is not defective so far filed testing report dt.29.10.2013 Sl. No.6 Book No.160 is concerned. Only the Multiplying Factor has been changed from 200 to 600 which is on record of the O.P. since 29.10.2013 as well as the a copy of the testing report dt.29.10.2013 has also been handed over to the complainant on the stay of testing for his reference. The said MF of 600 has been escaped to be reflected in the energy charge bills of the complainant causing less claim of energy charge from dt.29.10.2013. field testing report dt.29.10.2013 has been signed by the consumer as token of 13 acceptance of the report which construes that the fact regarding changed Multiplying Factor of 600 is in the knowledge of the complainant since dt.29.10.2013. Hence the provision made under Regulation-98/97 of OERC Distribution Code, 2004 should not be misinterpreted. As such the contention of the complainant to consider his matter as per Regulation-98/97 of OERC Distribution Code, 2004 is misconceived as the fact of MF 600 is on record of O.P. since dt.29.10.2013 with the knowledge of the complainant. In view of the above, the Forum feels that there is nothing illegality made by O.P. in raising additional demand of Rs.16,74,512/- in his letter no.265 dt.12.03.2015. Subsequently reduced to Rs.15,79,539/- by letter dt.02.05.2015. Hence the case is dismissed as there is no merit in the petition of the complainant.” 11. The consumer, being aggrieved by that order dated 29.06.2015, has filed a Consumer Representation Case No. OM (I)-47 of 2015 before the Ombudsman-I, Odisha Electricity Regulatory Commission, Bhubaneswar. By the order dated 05.11.2015, the Ombudsman had reversed the said finding of the GRF and held as follows: “It is a fact that, the appellant has consumed the energy demanded by the licensee, but billed on less unit on account of “omission” due to failure on the part of the Respondent in taking prompt and vigilant action. Due to the defect and deficiencies on the part of Respondent such omission was detected after a period 16 months from the date of omission. This Forum feels that GRF have misconceived the very meaning of omission read under the provision of Regulation-98. 14 There should not be any doubt that adoption of wrong Multiplying Factor (MF) is an “Omission” or “Commission” in regard to Multiplying Factor (MF) as mentioned in Regulation-98 and the same attracts billing under Regulation-97 i.e. for a maximum period of six months from the date of detection of such omission by the respondent. Therefore unless the Respondent is empowered by law and regulation, they are not empowered to recover the escaped unit beyond six months from the complaint. In view of the above finding and argument this Forum set aside the order of GRF arised in CC No.337 of 2015 dated 29.06.2015 and restrict the claim of the Respondent on account of omission of correct Multiplying Factor for maximum period of six months from the date of detection of such omission. The licensee is free to recover the balance amount from the erring officer, instead of burdening to the consumer/power sector through ARR.” 12. The said order of the Ombudsman has been challenged in this writ petition by the Distribution Licensee. The petitioners have categorically stated that the finding of the Ombudsman is based on erroneous interpretation of Regulation-98 of the OERC Distribution Code, 2004 and hence, adoption of the mechanism as provided by Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004 is unsustainable. It is necessary for doing justice that the order of the Ombudsman be interfered with, by directing the consumer to pay the revised differential bill without abridging the bill, restricting the same to the preceding 6 months, as stated. In this regard, the 15 petitioners have referred to a decision of the apex court in Swastic Industries –Vrs.- Maharashtra State Electricity Board; (1997) 9 SCC 465 to contend that in absence of any omission or commission in the meter or in the meter/metering unit/ equipment etc., but not for raising the correct bill as per the actual and correct M.F. of the meter due to oversight, Regulation 97 qua Regulation 98 of the OERC Distribution (Condition of Supply Code), 2004 cannot be applied. The petitioners have contended that there is no application of Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 in the case of so called clerical mistake. That apart, it has been contended by the petitioner that the Ombudsman’s order as challenged in this writ petition, is based on perverse interpretation of Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004. The word omission or commission as appearing in Regulation 98 would only mean omission or commission in regard to multiplying factor of the meter, metering unit or equipment etc., not committed by a human being. The consumer (the Opposite Party No.1) did not file any counter affidavit, but filed their written note of submission in order to resist the pleas raised in the writ petition. We will deal with the 16 written note while recording the submission of the learned counsel appearing for the rival parties. 13. It is apparent from the above facts that the identical issue has raised in WP(C) No.2338 of 2015. 14. WP(C) No.23927 of 2015 The petitioner represents the Distribution Licensee, City Distribution Division No.II, Badambadi, CESU, Cuttack. By this writ petition, the petitioner has challenged the Judgment dated 05.12.2015 by the Ombudsman-I, Odisha Electricity Regulatory Commission, Bhubaneswar by which the finding of the GRF, returned by the Judgment dated 06.06.2015 delivered in C.C. Case No.263 of 2015, Annexure-7 to the writ petition has been reversed. The consumer (the Opposite Party No.2) is a large industrial consumer with a contract demand of 125 KVA. A meter with multiplying factor 20 was installed in the premises of the said industry to record the consumption. At the instance of the consumer, a new SEMS Meter was installed in his premises with the multiplying factor 40. During verification by the authorized M.R.T. Personnel on 13.11.2013 it was found that consumer had enhanced his production capacity. The 17 contract demand was enhanced from 88 KW to 117.8 KW by unauthorized means and without giving prior intimation to the Distribution Licensee. On further scrutiny, it appeared from the M.R.T. report (SL. No.172) dated 13.11.2013 that due to such excess load C.T. of the metering arrangement were overloaded and it needed to be replaced with higher capacity C.T. of 200/5Amp. The said meter was installed by the M.R.T. personnel in presence of the consumer on 07.02.2014. After installation of the meter, the concerned officer, M.R.T., along with the consumer signed the said meter installation report. Copies of the meter installation reports dated 13.11.2013 and 07.02.2014 are under Annexure-2 series to the writ petition. Subsequently, the consumer was supplied with a new meter along with C.T. with M.F.40. The modification of metering arrangement was carried out on 07.02.2014. 15. As per the meter installation report, the consumer was to be billed with the multiplying factor 40, but inadvertently, the consumer was billed as per the earlier multiplying factor 20. The said inadvertence came to the notice when the meter was further verified on 07.02.2015. In the said verification report, Annexure-3 to the writ 18 petition, it was noted that the multiplying factor of the meter is MF 40. The verification report was duly signed by the consumer. Error in the bills in terms of the new meter MF, installed on 07.02.2014, came to the notice of the billing authority. Accordingly, during the month of February, 2015, a revised bill of the escaped amount was served on the consumer by the letter dated 10.02.2015. The consumer received the differential bill to the extent of Rs.11,42,415/-, along with details, Annexure-4 to the writ petition. The consumer was being billed thereafter in every month with M.F. 40 and the consumer has been regularly paying such bill with M.F.40 without any reservation. 16. Being aggrieved by the differential bill, the consumer had filed the complaint before the GRF, CESU, Cuttack being Complaint Case No.263 of 2004. It has been contended that the petitioner cannot raise bill beyond the provisions of Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004. If the reading of a meter functioning in association of C.T. and P.T. and other auxiliary equipments, is found to be incorrect on account of omission or commission in regard to M.F., billing shall be done following the procedure as laid down in Regulation-97 of the OERC Distribution 19 (Condition of Supply) Code, 2004. Therefore, it had been contended before the GRF that the Distribution Licensee shall be directed to revise the bill, limiting the period in terms of Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004. It has been also mentioned that the consumer had requested the Supply Engineer to revise the additional bill according to the provision of Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004 but that was not acceded to. Hence, there had been no other alternative but to approach the GRF. The consumer is saddled with liability of payment of a sum of Rs.11,42,415/-. The Complaint Case of the consumer had been dismissed by the GRF by their Judgment dated 06.06.2015, Annexure-7 to the writ petition, by observing as follows: that from is clear immediately/preceding “It the Regulation-97 of OERC Distribution Code 2004 makes provision for billing in case of defective meter where it has been held that the use of electricity was continuing for a period of six months the date of inspection. But in instant case the meter of the complainant is not defective so far MRT Testing Report No.II dt.07.02.2014 & Sl. No.40 dt. 07.02.2015 are concerned only the Multiplying Factor has been changed from 20 to 40 which is on record of the O.P. since date 07.02.2014 and subsequently report to be 40 also on dt. 07.02.2015 by MRT, Cuttack. The said MF of 40 has been escaped to be reflected in the energy charge bills of the complaint causing less claim of 20 energy charge. Both the MRT Report dt. 07.02.2014 & dt. 07.02.2015 have been signed by the consumer as token of acceptance of the report which construes that the Multiplying Factor of 40 is in the knowledge of the complainant. Hence the provision under Regulation-98 & 97 of the OERC Distribution (Condition of Supply) Code, 2004 should not be misinterpreted. As such the contention of the complainant to consider his matter as per Regulation- 98/97 of OERC Distribution Code 2004 is misconceived as the fact of MF 40 is reported and on record since dt.07.02.2014 with the knowledge of the complainant. In view of the above the Forum Feels that there is nothing illegality made by O.P. in raising the additional demand of Rs.11,42,415/- on account of differential amount towards (MF) of 40 which is recoverable from the complainant. Hence, the case is dismissed as there is no merit in the petition of the complainant.” 17. Being aggrieved by the said Judgment dated 06.06.2015 Annexure-7 to the writ petition, the consumer filed the Consumer Representation Case No.OM(I)- 42 OF 2015. The said case was disposed of, by the Judgment dated 05.12.2015, Annexure-1 to the writ petition. It has been observed by the Ombudsman-I while reversing the finding of the GRF as follows: “Omission: 1. A failure to do something; esp. a neglect of duty. 2. The act of leaving something out. 3. The State of having left out or of not having been done. 4. Something that is left out, left undone or otherwise neglected. 21 This Forum is of the opinion that, the Respondent is not entitle to claim the lost unit for more than six months, intention and introduction of the Regulation-97 and 98 in the OERC Distribution Code, 2004 read with earlier instruction of Hon’ble OERC on dated 03.03.2023 clearly evident and supporting the stand of the Petitioner to enforce Regulation-97 to the present case. The instruction of Hon’ble OERC in their letter dated 03.03.2003 mainly reads as below: “Such instructions/guidelines was issued by the OERC as it came to the notice of the OERC that some of the consumers are being served with large arrear bills for a period exceeding six months for having defective meters in their premises. So, the Commission directed that in case of defective meter, “the licensee is entitled to raise an arrear bill for a maximum period of six months or the period for which it remained defective (whichever is less) as per Section 26(6) of the Indian Electricity Act, 1910. Arrear billing due to adoption of wrong multiplying factor (MF) would also be dealt under the above mentioned section. The consumer should not be penalized beyond this period since it is duty and obligation of licensee to keep the meter in good condition and ensure routine testing/checks.” Also if we minutely read Regulation-98 “if the reading of meter if any, are found to be incorrect on account of (wrong connection or disconnection of such CTs, PTs and other equipment) or on account of omission or commission in regard to multiplying factor, erroneous adoption of CT ratio, PT Ratio, the billing in such cases shall be done as laid down in Regulation-97.” [Emphasis Added] 18. Having observed thus, the Ombudsman-I has set aside the order of the GRF delivered in CC No.263 of 2015 and restricted the claim of the petitioners on account of omission of correct multiplying 22 factor for a maximum period of 6 preceding months from the date of detection of such omission. The licensee has been given liberty to recover the balance amount from the concerned officer, instead of burdening the consumer. The said Judgment dated 06.12.2015, Annexure-1 to the writ petition, has been challenged by this writ petition. 19. According to the petitioners, Regulation 97 qua Regulation 98 cannot have any application in the perspective-fact as noted above. It has been contended by the petitioners that the Regulation-98 of the OERC Distribution (Condition of Supply) Code, 2004 provides unequivocally that if the meter working in association with CT and PT and other auxiliary equipments is found malfunctioning on account of wrong connection or disconnection of CT and PT and other equipments, only then Regulation 97 and Regulation 98 can be applied. But the case in hand does not fall within the said category. Hence, the impugned Judgment dated 05.12.2015, Annexure-1 to the writ petition, needs to be set aside. As nobody has appeared for the Opposite Party No.2, despite due notice from this court, no counter affidavit has been filed. But having the resemblance of the issue, the 23 issue raised in the writ petition will be decided on merit with the other analogous writ petitions. 20. In this case also, the identical question has been raised whether erroneous billing will debar the Distribution Licensee to recover the whole escaped amount from the consumer or that amount shall be restricted to the amount as provided under Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004. 21. It is apparent that the common question that emerges for determination is whether the escaped billing owing to mistake or omission in applying the appropriate multiplying factor would come within the meaning of “Omission” or “Commission” under Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004. Mr. S.C. Dash, learned counsel appearing for the petitioner, in all these three writ petitions, has quite succinctly submitted that the regular bill had been raised by not applying the multiplying factor of the meter. As such, those bills cannot be stated to have raised for omission/commission/errors/defect/fault in the meter or its auxiliary parts. Hence, Regulations-97 and 98 of the OERC Distribution (Condition of Supply) Code, 2004 will not apply for escaped billing. 24 22. The way Regulations 98 and 97 has been interpreted by the GRF is unacceptable and hence, it is liable to be interfered with. Revised bills have been raised for recovering of the charge for the “escaped period”. The consumer is bound to pay the said differential amount. In Swastic Industries (supra): (1997) 9 SCC 465, in which case, the supplementary bill demanding payment was raised and the consumer had objected to that bill. In the face of threat of disconnection of the electricity supply for non-payment of the supplementary demand, the complainant had approached the State Consumers Dispute Redressal Commission which observed that the claim was barred by limitation. The Maharashtra Electricity Board filed an appeal to the National Consumer Redressal Commission. 23. Bombay High Court in M/s. Bharat Barrel & Drum Manufacturing Co. Pvt. Ltd. Vs. Municipal Corporation of Greater Bombay & Anr.: AIR 1978 Bom. 369 held that there is no limitation for making the demand by way of supplementary bill. Section 24 of the Indian Electricity Act, 1910 gives power to the Board to issue such demand and to discontinue the supply to a consumer who neglects to pay the charges. 25 24. Thereafter, in the said perspective-fact, the apex court has observed as follows: “It would, thus, be clear that the right to recover the charges is one part of it and right to discontinue supply of electrical energy to the consumer who neglects to pay charges is another part of its. The right to file a suit is a matter of option given to the licensee, the Electricity Board. Therefore, the mere fact that there is a right given to the Board to file the suit and the limitation has been prescribed to file the suit, it does not take away the right conferred on the Board under Section 24 to make demand for payment of the charges and on neglecting to pay the same. They have the power to discontinue the supply or cut-off the supply, as the case may be, when the consumer neglects to pay the charges. The intendment appears to be that the obligations are actual. The board would supply electrical energy and the consumer is under corresponding duty to pay the sum due toward the electricity consumed. Thus the Electricity Board, having exercised that power, since admittedly the petitioner had neglected to pay the bill for additional sum, was right in disconnecting the supply without recourse to filling of the suit to recover the same. The National Commission, therefore, was right in following the judgment of the Bombay High Court and allowing the appeal setting aside the order of the State Commission. Moreover, there is no deficiency of service in making supplementary demand for escaped billing.” 25. Mr. Das, learned counsel appearing for the petitioners has placed his reliance on two decisions in support of his contention. 26 26. In M/S Prem Cottex vs Uttar Haryana Bijli Vitran Nigam Ltd & Ors. (Judgment dated 05.10.2021, delivered in Civil Appeal No.7235 of 2009), the apex court has observed as follows: “The period of limitation of two years would commence from the date on which the electricity charges became first due under Section 56(2)”. This Court also held that Section 56(2) does not preclude the licensee from raising an additional or supplementary demand after the expiry of the period of limitation in the case of a mistake or bona fide error. To come to such a conclusion, this Court also referred to Section 17(1) (c) of the Limitation Act, 1963 and the decision of the apex court in Mahabir Kishore & Ors. vs. State of Madhya Pradesh: 1989 4 SCC 1. [Emphasis Added] 27. In Prem Cottex (supra), the dispute emerged from the memorandum dated 11.09.2009 which is a short assessment notice. It has been claimed that though the multiplying factor (MF) was 10, it was wrongly recorded in the bills for the period from 3.08.2006 to August, 2009 as 5 and as a consequence of that mistake, there was short billing to the tune of Rs.1,35,06,585/-. By the said short assessment notice, the said amount was sought to be recovered. The said notice and the demand were challenged. In Prem Cottex (supra) the apex court has observed further as follows: “Sub−section (2) uses the words “no sum due from any consumer under this Section”. Therefore, the bar under Sub−section (2) is relatable to the sum due under Section 56. This naturally takes us to Sub−section (1) which deals 27 specifically with the negligence on the part of a person to pay any charge for electricity or any sum other than a charge for electricity. What is covered by section 56, under sub−section (1), is the negligence on the part of a person to pay for electricity and not anything else nor any negligence on the part of the licensee. The matter can be examined from another angle as well. Sub− section (1) of Section 56 as discussed above, deals with the disconnection of electric supply if any person “neglects to pay any charge for electricity”. The question of neglect to pay would arise only after a demand is raised by the licensee. If the demand is not raised, there is no occasion for a consumer to neglect to pay any charge for electricity. Sub−section (2) of Section 56 has a non−obstante clause with respect to what is contained in any other law, regarding the right to recover including the right to disconnect. Therefore, if the licensee has not raised any bill, there can be no negligence on the part of the consumer to pay the bill and consequently the period of limitation prescribed under Sub−section (2) will not start running. So long as limitation has not started running, the bar for recovery and disconnection will not come into effect. Hence the decision in Rahamatullah Khan and Section 56(2) will not go to the rescue of the appellant.” [Emphasis Added] 28. Mr. Dash, learned counsel appearing for the petitioner has submitted that the escaped billing was for realising the cost of electricity as supplied to the Opposite Party No.1 and as such, the Distribution Licensee is entitled to recover the said cost. In Jingle Bell Amusement Park P. Ltd. vs, North Delhi Power Ltd. (Judgment dated 19.04.2011 delivered in WP(C) No.8647 of 2007) the multiplying factor of the concerned meter was 12, but inadvertently the bills were raised with the multiplying factor 1 only. The counsel for the respondent in this regard during the course of hearing had 28 handed over a copy of the Meter Installation Protocol Sheet bearing the signatures of the petitioner and showing the multiplying factor of the meter to be 12. The counsel for the petitioner had controverted the same. It is also not in dispute that the petitioner had in February, 2003 applied for additional load of 60 KW, but had drawn the total load of 140 KW. The additional load was energized in March, 2004. It is the case of the petitioner that while sanctioning the enhanced load to the respondent-consumer, it came to light that the respondent-consumer was being billed with multiplying factor 1 instead of 12 and hence, the multiplying factor 12 had been applied with effect from August, 2003 and the impugned demand was raised for the escaped period i.e. 30th November, 2002 to July, 2003. 29. It has been in the identical facts by the Bombay High Court that in case, the consumer is under-billed on account of clerical mistake, such as where in the bill, the multiplication factor had changed, but due to oversight the department issued bills with 500 as the multiplication factor instead of 1000, the bar of limitation cannot be raised by the consumer. It was held that the revised bill amount would become due when the revised bill is raised and Section 56(2) of 29 the Electricity Act would not come in the way of recovery of the amount under the revised bills. 30. In our considered view, in this case, no objection has been raised on the ground of limitation. Moreover, it is seen that in view of the settled position of law as declared by the apex court, the demand had been raised within the period of limitation of 2 years following Section 56(2) of the Electricity Act. While summarizing his contention, Mr. Das, learned counsel has contended that there is no omission/commission/error/defect/fault in the meter or in its auxiliary parts and hence, Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 will not apply. 31. Mr. B. Jena, learned counsel appearing for the Opposite Party No.1 in WP(C) No.2338 of 2015 and WP(C) No.21792 of 2015 has contended that failure to raise the bill on applying the appropriate multiplying factor falls within the category of omission and hence, Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 will apply without any amount of doubt. For purpose of reference, Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 is reproduced below: 30 “if the readings of meter working in association with Current Transformer (CT) and Potential Transformer (PT) and other auxiliary equipment, if any, are found to be incorrect on account of wrong connection or disconnection of such CTs, PTs and other equipment or on account of omissions or commissions in regard to multiplying factor, erroneous adoption of CT ratio, PT ratio, the billing in such cases shall be done as laid down in Regulation 97.” 32. For purpose of further reference, Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004 is also reproduced hereunder: for the consecutive “For the period the meter remained defective or was lost, the billing shall be done on the basis of average meter three billing periods reading succeeding the billing period in which the defect or loss was noticed. It shall be presumed that use of electricity through defective meter was continuing for a period of three months immediately preceding the date of inspection in case of Domestic and Agricultural consumers and for a period of six months immediately preceding the date of inspection for all other categories of consumers, unless the onus is rebutted by the person, occupier or possessor of such premises or place.” 33. Mr. Jena, learned counsel has contended that the meaning of omission and commission according to Black’s Law Dictionary-9th Edition.2009 [Page-1197] is as follows: “Omission- 1. A failure to do something; esp., a neglect of duty, 2. The act of leaving something out, 3. The state of having been left out or of not having been done, 4. Something that is left out, left undone, or otherwise neglected. 31 34. Mr. Jena, learned counsel has further submitted that Regulations 97 and 98 of the OERC Distribution (Condition of Supply) Code, 2004 have been placed in the Chapter - X of the OERC Distribution (Conditions of Supply) Code, 2004-under the heading RECOVERY OF ELECTRICITY CHARGES AND INTERVAL OF BILLING. Provisions of the said Chapter-X cast a duty on the licensee to raise and serve the bill towards the charges payable by a consumer for supply and consumption of electricity. Thus, the consumer remains under obligation for payment of the bills so raised. 35. According to Mr. Jena, learned counsel, from a bare reading of the said Regulations 97 and 98 of the OERC Distribution (Condition of Supply) Code, 2004, it would transpire that in case of defective meter, the procedure that is to be followed for billing has been provided under Regulation 97. Billing in the case like the present one is covered under Regulation 98. A joint reading of both the Regulations makes it further clear that the billing procedure as prescribed under Regulation 97 is to be followed by the licensee in a case of defective meter. Regulation 97 is not restrictive to defective 32 meters only. It can also be followed for the cases which fall under Regulation 98. Provisions under Regulation 98 are plain and no further interpretation is required to understand that purport. 36. Having referred to the instructions/guidelines under No.Engg-80/2000/452 dated 03/03/2003 vide Annexure-A/1 of the additional affidavit filed by the Opp. Party No.1, Mr. Jena, learned counsel has submitted that from the said circular it is clear that the cases like the present ones are covered by Regulation 98 read with Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004. Mr. Jena, learned counsel has further submitted that in the O.S.E.B. (General Conditions of Supply) Regulations, 1981 a provision was incorporated under Regulation - 32 (g) authorizing the Engineer to revise or rectify any mistake on detection at any time and present a fresh bill to the consumer. But by the subsequent legislation i.e. O.S.E.B. (General Conditions of Supply) Regulations, 1995, the said power had been taken away from the engineers. But after introduction of the Electricity Act, 2003 the legal regime has taken a determinative turn. In case of an issue on which the statute is silent, it would amount to prohibition. To buttress the said statement, a 33 decision of the apex court in Ajay Kumar Agrawal Vrs. O.S.F.C: AIR 2007 Orissa 37 has been relied on. For purpose of reference, the relevant passage is extracted hereunder: “27. Therefore, the submission of the learned counsel of WESCO that the transaction is absolutely commercial is not entirely correct. If may be noted that the Opp. Party No. 1 is asking tor supply of electricity for commercial purposes. But electricity, being a public property, its supply is controlled by the statute. Therefore elements of public law govern the situation at the stage of supply. Under such circumstances, WESCO as a distribution licensee is clothed with the status of a State under Art. 12 of the Constitution of India since it is to discharge preliminarily governmental function, namely, supply of power to industries. In such a situation, the WESCO cannot act like a "public giver". It cannot act at its caprice, whims or fancy nor can it, taking advantage of its monopoly status, exact an amount which it cannot do under the provision of law. If the court, ignoring the provision of the said Act, permits WESCO to realize the amount which is contemplated under Clause 9 of its purported agreement dated 28- 11-2001 then the court would be permitting WESCO, a State under Art. 12, to flout the provisions of the said Act and to enrich itself by virtue of its superior bargaining position through a method, not contemplated under law and therefore prohibited by law. Here, the silence of the statute would amount to a prohibition, otherwise it amounts to an exaction of a sum from a consumer who is under no legal obligation to pay the same. That would amount to 34 deprivation of one’s property without authority of law.” [Emphasis Added] 37. In our considered view, the said decision has no relevance in the present context in as much as there no dispute that the consumers had admitted the mistake incidences and that they had paid less electricity charge. As such, there is no question of unjust enrichment by the Distribution Licensee. 38. A reference has been made to Punjab State Electricity Board Ltd. Vs. Zora Singh & Others: 2005 (4) SCC 223. In Zora Singh (supra) the various other aspects were examined, but not the subject which we are presently dealing with. Mr. Jena, learned counsel has placed his reliance on a decision of the apex court in Ramchandra Keshav Adke Vrs. Govind Joti Chavare & Ors: (1975) 1 SCC 559 to contend that the power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. 39. For a limited purpose, this decision has its impact on the present controversy. If we find that the escaped bills should be 35 restricted to the preceding 6 months from the date of giving the notice or placing the demand, then of course the petitioners cannot demand the payment for the remaining period. 40. Further, a decision of the apex court in Tamil Nadu State Electricity Board Vs. Central Electricity Regulatory Commission and Ors.: (2007) 7 SCC636 has been referred to. In that decision, the apex court has recorded their opinion following the rule of literal interpretation. When the language is plain and explicit, admits a legislative intent that cannot be assumed to expand the meaning of the expression employed by the legislature. As long as, there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent is impermissible. If the intendment is not clear from the words used in the statute and it can be found nowhere else, the need for interpretation may arise. When the words used in the statute are ambivalent and do not manifest any intention, the said circumstances may call for interpretation. 41. According to Mr. Jena, learned counsel, Swastic Industries (supra) does not have any relevance, as the question that has been answered therein is completely different from the question we are 36 concerned with. In Swastic Industries (supra), the central issue was whether the bar of limitation will apply against the claim of the Maharashtra State Electricity Board. The apex court has categorically observed that the law of limitation will not apply, as the mistake has been discovered subsequently and from the day of discovering the mistake, the limitation would be relevant. 42. Mr. Jena, learned counsel has submitted that it is the primary duty of the Distribution Licensee to maintain the data and to raise the correct bill. If they had raised the bill with incorrect multiplying factor, the Distribution Licensee has to take their responsibility. They can claim the amount to that extent as has been provided by the law, but not beyond that. Any demand not authorized under law would amount to unjust and undue enrichment. 43. Having appreciated the submissions as advanced by the counsel for the parties, except the Opposite Party No.2 in whose behalf there is no representation, we would observe that the word omission as used in Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 would embrace the cases of the 37 escaped bill based on which the petitioners have placed their demand as aforenoted. 44. It has been provided under Regulation 93 (7) of the O.E.R.C. (Condition of Supply) Code, 1994 as follows: “(vii) Payment of Energy Charges: Consumers are expected to make payment for the energy used by them every month/by-monthly. The licensee/supplier must ensure that a bill is delivered to the consumer by hand or by post every month/by monthly.” [Emphasis Added] 45. Hence, whatever the obligation relating to payment of the energy bill is concerned, the consumer’s liability of payment, arises when he receives the bill from the licensee. There is no allegation against the consumers that they had not paid the regular bills as raised by the distribution licensee. As the bill was raised erroneously by not applying the correct multiplying factor, there had been less payment. When the escaped bills were raised and payment was demanded from the consumers, they raised their objections and it led finally to the filing of the complaint in the GRF. This is not a case of the defective meter. The billing of the defective meter falls under Regulation 97 38 and as such, the case of the consumers in these writ petitions do not come within the purview of Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004 directly. 46. That was not the case as projected by Mr. Jena, learned counsel appearing for the consumer-Opposite Parties. According to him, the cases of the consumers are squarely covered by Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004. 47. It has been contended by the consumers that by the circular dated 03.03.2003, the issue of arrear billing due to adoption of wrong multiplying or multiplication factor has been dealt with. The said circular dated 03.03.2003 is available at Annexure-A1 to the additional affidavit filed by the Opposite Party No.1 on 30.09.2015 in WP(C) No.2338 of 2015. The said circular dated 03.03.2003, issued by the Odisha Electricty Regulatory Commission (OERC) was communicted to the Chief Executive Officers/Managing Directors of the Distribution Licensees. 48. Having considered its relevance we would like to reproduce the entire text of the circular hereunder: 39 ORISSA ELCTRICITY REGULATORY COMMISSION BIDYUT NIYAMAK BHAVAN UNIT-VIII BHUBANESWAR-751012. PH-414117/413097[PBX] FAX.419781/413306 e-mail:[email protected] Date-03/03/2003 No Engg-80/2000 To The Chief Executive Officer CESCO, 2nd Floor, IDCO Tower Bhubaneswar-7 ------------------------ The Managing Director NESCO, Januganj, Balasore ------------------------- The Managing Director WESCO, Burla, Samabalpur ------------------------- The Managing Director SOUTHCO, Courtpeta, Berhampur. Sir, It has come to the notice of the Commission that some of the consumers are being served with large arrear bills for a period exceeding six months for having defective meters in their premises. In case a meter is defective for which it does not register the actual consumption and is detected at later stage by the licensee is entitled to raise an arrear bill for a maximum period of six months or the period for which it remained defective (whichever is less) as per Section 26(6) of the I.E. Act, 1910. Arrear billing due to adoption of wrong multiplication factor (MF) would also be dealt under the above mentioned section. The consumer should not be penalized beyond this period since it is duty and obligation of licensee to keep the meter in good condition and ensure routine testing checks. However, meters for not registering actual consumption, 40 due to fraudulent actions of consumer like illegal extraction through tampering or bypassing of meter or its accessories like PT & CT would not attract the provision of Section 26(6) of I E Act and has to be dealt through relevant regulation of the Commission. All the supply Engineers may be informed accordingly under intimation to this office. Yours Faithfully Secretary. It is apparent from the said circular that arrear due to adoption of wrong multiplication factor (MF) would also be dealt under the above mentioned section i.e. Section 26(6) of the Electricity Act. 49. It cannot be said that the said circular is unambiguous, in as much as the said circular has been issued in reference to Sub-section 6 of Section 26 of the Indian Electricity Act, 1910. Section 26 deals generally with the meters. Section 26 (6) of the Electricity Act 1910 provides that where any difference or dispute arises as to whether any meter referred to in sub-section (1) is or is not correct, the matter shall be decided, upon the application of the either party, by an Electrical Inspector; and where the meter is in the opinion of the Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply. During such time, not exceeding six months, as the meter 41 shall not, in the opinion of such Inspector, have been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity. As stated, either a licensee or a consumer applies to the Electrical Inspector under the said sub-section, giving the other party not less than seven days’ notice of his intention so to do. 50. The said circular cannot, therefore, be of any avail for the present controversy. Moreover, the law has been overhauled. It is not in dispute that bills were raised by applying wrong multiplication/multiplying factor (MF). Even the consumers have been paying the current bills raised on applying the correct multiplication factor (MF) without raising any objection.Their objection before the Grievance Redressal Forum (GRF) was that the entire arrear cannot be realized from them and only the arrears of 6 months preceding the date of the inspection report based on which the demand has been raised against them can be realized and not beyond that. The claim of the consumers is based on Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004, as reproduced. 42 51. Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004 provides that if the reading of meter working in association with the Current Transformer (CT) and Potential Transformer (PT) and other auxiliary equipments is found to be incorrect on account of wrong connection or disconnection of such CTs, PTs and other equipment or on account of omissions or commissions in regard to multiplying factor and erroneous adoption of CT and PT ratio, the additional billing shall be done in accordance with procedure as laid down in Regulation 97. 52. According to Mr. Dash, learned counsel, if the reading of the meter working in association with Current Transformer (CT) and Potential Transformer (PT) and other auxiliary equipments, if any, is found to be incorrect on account of wrong connection or disconnection of such CTs, PTs and other equipments, the above mode of additional billing can be adopted. Such interpretation, as provided by Mr. Dash, leaned counsel for the petitioners, can be accepted. The rule of Ejusdem Generis vis-(cid:224)-vis the defective meters cannot be applied for legislative definiteness. It is well known principle that the rule of Ejusdem Generis applies when the statute 43 contends an enumeration of specific words, the subject of enumeration constitutes a class or category and that class or category is not exhausted by enumeration. The general items follows the enumeration when there is no indication of a different legislative intent. 53. In Foster Vs. Diphwys Casson: (1887) 18 QBD 428 it has been observed that the case involved a statute which stated that explosives taken into a mine must be in a "case or canister". There, the defendant used a cloth bag. The courts had to consider whether a cloth bag was within the definition as provided. Under noscitur a sociis, it was held that the bag could not have been within the statutory definition, because the parliament’s intention in using ‘case or container’ was to something of the same strength as a canister. 54. In this case, the clause on account of omission or commission in regard to multiplying/multiplication factor has been used disjunctively in Regulation 98 of the OERC Distribution (Condition of Supply) Code, 2004. Therefore, the words “or on account of omission or commissions in regard to multiplying factor cannot be associated with the incorrect reading of the meter. 44 55. Hence, we would like to hold that this is a case of incorrect reading of the meter on account of omission or commission in regard to multiplying factor. Billing, in the event of omission in regard to multiplying or multiplication factor, shall be done following the Regulation 97 of the OERC Distribution (Condition of Supply) Code, 2004 which provides inter alia that the period of additional billing would be 6 months immediately preceding the date of inspection or notice. 56. Regulation 98 deals clearly with three situations viz. (1) if the reading of the meter working in association with the current CT and PT and other auxiliary equipments which is found to be incorrect on account of wrong connection or disconnection of CT and PT and other equipments; (2) if the reading of the meter is found to be incorrect on account of omission or commission in applying the multiplying factor and (3) the reading of the meter are found to be incorrect for erroneous adoption of CT or PT ratio. 57. In all those situations the billing shall be done following the procedure as laid down in Regulation 97. 45 58. Having observed thus, we find no merit in these writ petitions and accordingly, all these writ petitions are dismissed. 59. In the circumstances of these cases, there shall be no order as to costs. …………………………. (S. Talapatra, J) …………………………. (M.S. Sahoo) [ . M.S. Sahoo, J. I agree. Orissa High Court, Cuttack. The 31st day of March, 2023. Rati Ranjan Nayak, Junior Stenographer. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 30-Sep-2023 13:24:43