The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12423 of 2014 In the matter of an application under Articles-226 & 227 of the Constitution of India. ----------- The Executive Engineer (Electrical) Jeypore Electrical Division, Jeypore District – Koraput. ……. Petitioner -Versus- President, Grievance Redressal Forum, (SOUTHCO), At- Power House Colony, P.O./P.S.- Jeypore, District- Koraput & another……. Opp. Parties ___________________________________________________________ For the Petitioner : Mr. S.C. Dash, Advocate For the Opp. Parties: None ___________________________________________________________ CORAM: THE HONOURABLE SHRI JUSTICE S. TALAPATRA THE HONOURABLE SHRI JUSTICE M.S. SAHOO JUDGMENT 16th March, 2023 S. Talapatra, J. By means of this writ petition, the petitioner, the Executive Engineer, Electrical (SOUTHCO), Jeypore Electrical
Legal Reasoning
Division has challenged the order dated 25.03.2014 delivered in C.C. No.191/2013-14 by the Grievances Redressal Forum (GRF), Jeypore. 2 2. By the said order, the GRF had declared that the tariff for the industrial unit under the name and style of M/s. Padmabati Poultry shall fall under the Industrial category, not under the Allied Agricultural tariff. 3. There is no dispute that the opposite party No.2 is a consumer of electricity under the petitioner’s company (SOUTHCO) for a contract demand of 15.00 K.W. vide the Consumer No.CP377-K41. After execution of the agreement with the petitioner on 31.03.2010, the power supply to the opposite party No.2 for the poultry farm commenced on 02.05.2010. So long the opposite party No.2 was being billed under the Allied Agricultural Activities Tatiff and that continued till February, 2011. During the physical verification, carried out in the month of January, 2011, it was found that in the poultry farm premises of the opposite party No.2, a Feed Processing unit has been set up in the said farm which, according to the petitioner is excluded from the tariff of Allied Agricultural Activities in terms of Regulation-80 (5)(ii) of the OERC Distribution (Conditions of Supply) (5th Amendment) Code, 2009 for which the unit is required to be re-classified under L.T. General Purpose Category, instead of Allied Agro Industrial Category. The opposite party No.2, for the change of the category as afore-stated, was asked to enter into a fresh agreement for the re-classified category. 3 A revised differential bill for the period from 05/2010 to 01/2011 amounting to Rs.39,573.45 was raised by the petitioner. Such bill was served on the opposite party No.2 on 28.03.2011, Annexure-1 in series to the writ petition. The opposite party No.2 paid the said amount without raising any objection and continued to pay the monthly bills for the consumption of the electricity. 4. After lapse of two years and nine months, the opposite party No.2 filed a complaint in the GRF against the petitioner. In the said complaint, the opposite party No.2 urged the GRF to change the category for the purpose of tariff against the electricity consumed. In order to oppose such prayer, the petitioner herein filed his counter statement stating that the Feed unit attached to the poultry farm for a load of 10.23 K.W. is not covered under Regulaton-80 (5) (ii) (5th Amendment) Code, 2009 and hence, cannot be billed under the Allied Agricultural Activity. It has been stated by the petitioner that the opposite party No.2 had been asked to execute a fresh agreement with the petitioner for billing the unit of the opposite party No.2 by the same under the General Purpose Tariff category as classified by the Odishal Electricity Regulatory Commission (OERC in short) in its tariff order for the year 2010-2011. It has also been clarified that as per the Load Census Report dated 10.01.2014, Annexure-4 in series, the exact load of the Feed unit attached to the poultry farm was 10.23 K.W., which load 4 is not within the permissible limit of 20% of the approved load of the poultry farm as per Regulation-80 of the OERC Supply Code, 2004. Hence, the load of the premises is to be brought under the General Purpose Tariff category. 5. The GRF, having appreciated the rival contentions, has refused to recognize the complainant as a consumer of electricity under Regulation-8 (5) (ii) of the above referred Code, but held as a consumer under the Industrial Category by the order dated 25.03.2014 delivered in C.C. No.191/2013-14. The petitioner made a futile attempt to get the said order reviewed and their review petition was dismissed by the order
Decision
dated 07.05.2014, Annexure-7 to the writ petition. 6. According to Mr. S.C. Dash, learned counsel appearing for the petitioner, the order dated 25.03.2014 is grossly illegal and contrary to law and hence, is liable to be interfered with and quashed. According to Mr. Dash, the GRF has appreciated the provisions of Regulation- 80(5)(ii) (5th Amendment) Code, 2009 as applicable to the poultry farm, but not to the Feed Processing Unit of the opposite party No.2. The complainant’s [the opposite party No.2] prayer was rejected by the GRF, but the GRF has wrongly observed in its order that the tariff for the opposite party No.2’s unit will come under the Industrial Category, such observation is uncalled for, which is absolutely illegal and arbitrary. 5 7. It has been asserted that in view of Regulation-80 (1) of the OERC Distribution (Conditions of Supply) Code, 2004, the consumer is permitted to utilize the power supply for a particular purpose and for any other purpose, the consumer may utilise to the extent of 20% of the total contract load. In the case, the said load exceeds 20% of the total connected load that shall be instrumental to bill the unit under the General Purpose Category. To hold the opposite party No.2 as the consumer under the industrial tariff is contrary to Regulation-80 of the OERC Distribution (Conditions of Supply) Code, 2004. Hence, the GRF ought to have rejected the whole complaint. 8. Mr. Dash, learned counsel appearing for the petitioner has further submitted that the unit of the opposite party No.2 is liable to be billed under the General Purpose Tariff category. 9. There is no representation from the opposite party No.2 despite due notice from this Court. 10. Regulation-80 of the Odisha Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 provides several categories including Allied Agro Industrial Activities- Regulation-80 (5) (iii), Allied Agricultural Activities-Regulation-80 (5) (ii) and General Purpose Category. The categories viz. Allied Agricultural Activities and Allied Agro Industrial Activities have been 6 incorporated by way of the amendment published by the Notification dated 19.10.2009. The General Purpose Category relates to supply of power to the premises which are used for the Office, business, general purpose or other purpose not covered under any other category where the non-domestic load exceeds 20% of the total connected load. 11. The new categories, as referred above, have been defined under Regulation-80 (5) (ii) and Regulation-80 (5) (iii), which are as under: 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 storages, cattle/poultry/fish feed units and food/agri products processing units are excluded. [Emphasis added] Allied Agro Industrial Activities: This category relates to supply of power to cold storages i.e. a temperature controlled storage where flowers, fruits, vegetables, meat and fish can be kept fresh or frozen until it is needed) and includes chilling plant for milk and only the cold storages attached to processing units for meat, fish, prawns, flowers, fruits and vegetables. 7 12. It is evident that the opposite party No.2 has not claimed the category under Regulation-80 (5) (iii) of the OERC Distribution (Conditions of Supply) Code, 2004 as amended. 13. It is further apparent from the records that initially, the petitioner’s unit was a poultry farm, but when the feed unit has been set up to cater the poultry farm for remaining load of 10.23 KW, the said unit was not eligible to continue under Regulation-80 (5) (ii) (as amended). For setting up of the Feed Unit alongside the poultry farm, the classification was required to be changed. The GRF has agreed to such change, but the GRF has proposed a category, which, according to the petitioner, is not the appropriate category. Hence, this writ petition. The said unit could not have been continued under the category of Allied Agricultural Activity under Regulation-80 (5) (ii) of the said Code, 2004. For additional consumption of the electricity exceeding 20% of the total connected load, the unit of the opposite party No.2 falls under the General Purpose Category, as defined under Regulation- 80(2) of the OERC Distribution (Conditions of Supply) Code, 2004. 14. Even the petitioner has paid under the said category without any objection. All on a sudden, the opposite party No.2 filed a complaint before the GRF in order to continue under the Allied Agricultural Activities even after setting up of the Feed Unit. 8 15. The GRF has declined to allow the opposite party No.2 to continue under the said category called Allied Agricultural Activities under Regulaton-80 (5) (ii) of the said Code, 2004. The opposite party No.2, in our considered view, cannot be brought under any other category except the General Purpose Category. 16. Thus, we do not have any hesitation to hold that the GRF had no tangible reason to declare that the petitioner’s unit is to be brought under the Industrial category. 17. Various categories of the industrial supply have been provided in the OERC Distribution (Conditions of Supply) Code, 2004. None of those categories are relevant for the petitioner’s Unit. As such, the impugned order dated 25.03.2014 as delivered in C.C. No.191/ 2013-14, Annexure-5 to the writ petition, is set-aside and quashed. 18. We declare that the petitioner’s unit combined of the Feed Unit will come under the General Purpose Category, as classified under Regulation- 80 (2) of the OERC Distribution (Conditions of Supply) Code, 2004, which provides that this category relates to supply of power to the premises, which are used for office, business, general purpose or other purposes not covered under any other category where the non- domestic load exceeds 20% of the total connected load. 9 In the result, the writ petition stands allowed and disposed However, there shall be no order as to cost. 19. of. 20. (S. Talapatra) Judge M.S. Sahoo, J. I agree (M.S. Sahoo) Judge Orissa High Court, Cuttack. The 16thMarch, 2023/Subhasis Mohanty, P.A. 10 11