The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 10674 OF 2014 Sub-Divisional Officer, Electrical Jajpur Road Electrical Sub-Division, Jajpur, NESCO …. Petitioner Mr. Prasanta Kumar Tripathy, Advocate -versus- Appellate Authority-cum-Dy. Electrical Inspector (T&D), Govt. of Odisha, Jajpur Road and another …. Opp. Parties None CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 03.04.2023 8. 1. This matter is taken up through hybrid mode. 2. Order dated 28th April, 2014 (Annexure-11) passed by the Appellate Authority-cum-DEI (T&D), Jajpur Road, Jajpur- Opposite Party No.1 in AAC No.14 of 2014 is under challenge in this writ petition, whereby the appellate authority disposed of the appeal directing the Petitioner-Company to revise the electricity bill of the Petitioner along with other directions. 3. Mr. Tripathy, learned counsel for the Petitioner submits that Opposite Party No.2, namely, Manguli Ch. Sahoo is a consumer in Domestic category under the erstwhile NESCO (now TPNODL) having a contract demand 2 KW. On 24th May, 2012, premises of Opposite Party No.2 was inspected and it was detected that he was consuming 13 KW load as against the approved contract demand of 2 KW. Though the power supply was for domestic purpose, but the premises was let out to M/s. Jindal Stainless Steel Ltd. for its guest house, which comes under Page 1 of 6 // 2 // the commercial category. Since the Petitioner was consuming electricity unauthorizedly in violation of Clauses-103 and 106 of the OERC Distribution (Conditions of supply) Code, 2004, a provisional assessment of Rs.4,48,545/- was made on 25th May, 2012 under Annexure-3. Assailing such provisional assessment, the Petitioner preferred W.P(C) No.9938 of 2012. Vide order dated 29th May, 2012, the Hon’ble Vacation Judge directed restoration of supply power to the premises of the Petitioner within 24 hours from the date of production of certified copy of the said order, subject to the condition that Opposite Party No.2 shall furnish an undertaking before the authority that he will abide by the decision of final assessment and until a decision is taken, he will not draw power beyond his contractual load of 2 KW. Accordingly, he submitted an undertaking under Annexure-4. Opposite Party No.2 also filed objection to the provisional assessment in terms of Section 126(3) of the Electricity Act, 2003 (for brevity ‘the Act’). Considering his objection, final assessment of Rs.4,48,545/- was made vide order dated 23rd June, 2012 under Annexure-6. In view of the final assessment order passed, this Court disposed of W.P.(C) No.9938 of 2012 vide order dated 24th July, 2013 directing that if the Opposite Party No.2 prefers an appeal by depositing a sum of Rs.75,000/-, the appellate authority shall dispose of the appeal on merit. As the appeal was filed in a defective form, it was rejected by the appellate authority. Assailing the same, the Petitioner preferred W.P.(C) No.22713 of 2013, which was disposed of on 11th February, 2014 with a liberty to Opposite Party No.2 to prefer appeal in the form specified and to dispose of the same in accordance with law. The appeal was Page 2 of 6 // 3 // disposed of vide order dated 28th April, 2014 under Annexure-11 by the appellate authority directing as under: “In the light of the above observations and from the entire sequence, it appears to me that the assessment is pre-motivated to frame the Appellant and all actions have taken with malafied intention without following legal procedures mandated in the Regulation and as well as in the Act. Hence it is ordered that: 1. quashed. 2. Direct the Respondent to: The final assessment of the Assessing Officer is a. b. c. to 2KW from 1 KW the Appellant, Revise the bill under Section-126 of the Electricity Act, 2003 treating the load of the Appellant as 10KW domestic and pattern of consumption for such billing period per month will be treated as average of consecutive three billing period (3 months) consumption after installation of the meter. Such billing period will be treated for 02/2012 to May, 2012 (up to 24.05.2012), as the load of the consumer enhanced from 02/2012. If such revised bill is within the amount paid by then balance amount will be adjusted in the monthly bills. But if the revised bill is above the amount paid by the Appellant, then such amount is to be paid by the Appellant within 30 days on receipt of such bill. If the Appellant appeals for enhanced load more than 5KW, he should be allowed for the same with 3 phase connection. The Appellant will pay the service connection estimate only with additional security deposit. But such service connection estimate cannot be based on system improvement charges as the Respondent has already allowed the Appellant to avail power from their system with necessary security deposit for a load of 13 KW (as per provisional bill). Other formalities as mandated in law, is to be followed for such enhancement. is further directed to The Respondent file compliance within 30 days from the date of issue of this Page 3 of 6 // 4 // order, otherwise the Appellant will be at liberty to appeal before OERC under Section 142 of the Electricity Act, 2003.” 4. Mr. Tripathy, learned counsel for the Petitioner submits that since the appellate authority observed that Opposite Party No.2 had enhanced the load to 10KW without express permission from the Petitioner (Respondent in the appeal), it should not have directed to revise the bill only. Use of electricity by Opposite Party No.2 being unauthorized, he is liable to pay the final assessment amount, which is made in terms of Section 126(5) of the Act. He further relied upon the decision in the case of the Executive engineer Southern Electricity Supply Co. of Orissa Ltd. (Southco) and another –v- Sri Seetaram Rice Mill, reported in (2012) 2 SCC 108, wherein at Paragraphs-67 and 69, it is held as under: the contract and “67. On the cumulative reading of the terms and conditions of supply, the contract executed between the parties and the provisions of the 2003 Act, we have no hesitation in holding that consumption of electricity in excess of the sanctioned/connected load shall be an “unauthorised use of electricity” in terms of Section 126 of the 2003 Act. This, we also say for the reason that overdrawal of electricity amounts to breach of the terms and conditions of the statutory conditions, besides such overdrawal being prejudicial to the public at large, as it is likely to throw out of gear the entire supply system, undermining its efficiency, efficacy and even increasing voltage fluctuations. xxx 69. It will also be useful to notice that certain malpractices adopted by the consumer for consuming electricity in excess of the contracted load could squarely fall within the ambit and scope of Section 126 of the 2003 Act as it is intended to provide safeguards against pilferage of energy and malpractices by the consumer. The Regulations in exercise of power of subordinate legislation or the terms and conditions imposed in furtherance of statutory provisions have been framed xxx xxx xxx Page 4 of 6 // 5 // the Thus, pronouncements. held to be valid and enforceable. They do not offend the provisions of the 2003 Act. In fact, the power to impose penal charges or disconnect electricity has been held not violative even of Article 14 of the Constitution of India. The expression “malpractices” does not find mention in the provisions under the 2003 Act but as a term coined by expression judicial “malpractices” has to be construed in its proper perspective and normally may not amount to theft of electricity as contemplated under Section 135 of the 2003 Act. Such acts/malpractices would fall within the mischief of unauthorised use of electricity as stipulated under Section 126 of the 2003 Act. Cases of pilferage of electricity by adopting malpractices which patently may not be a theft would be the cases that would fall within the jurisdiction of the Board in furtherance to the terms and conditions of supply. Reference in this regard can be made to the judgment of this Court in Hyderabad Vanaspathi Ltd. v. A.P. SEB [(1998) 4 SCC 470].” 5. Thus, Opposite Party No.2 is undoubtedly using electricity unauthorizedly and is liable to pay the final assessment amount. The appellate authority has directed to revise the bill only on the observation that the Assessing Officer has not acted as per the Rules and Regulation in force. If that be so, the outcome of the appeal would have been otherwise. Mr. Tripathy, learned counsel for the Petitioner, therefore, prays for setting aside the impugned order under Annexure-11 and to remit the matter to the appellate authority for fresh adjudication in accordance with law. 6. Although notice on the Opposite Party No.2 has been validly served, but none appears on his behalf at the time of call. 7. Taking into consideration the submission made by Mr. Tripathy, learned counsel for the Petitioner and on perusal of the record, it appears that the appellate authority has categorically held that “the Appellant has enhanced his load to 10KW without express permission from the Respondent.” In view of the above, Page 5 of 6 // 6 // the Appellant-Opposite Party No.2 was an unauthorized user of the electricity. Admittedly, the contract demand was 2 KW and Opposite Party No.2 has enhanced the load to 10 KW without prior permission or intimation to the supplier (NESCO). 8. In view of the observation made above, if it is held that the Opposite Party No.2 was using electricity unauthorizedly in view of the ratio decided in the case of Executive engineer Southern Electricity Supply Co. of Orissa Ltd. (Southco) and another (supra), then Section 126(5) of the Act may be applicable. This aspect was not taken into consideration by the appellate authority while adjudicating the appeal. Accordingly, the impugned order under Annexure-11 is set aside and the matter is remitted back to the Appellate Authority-cum-DEI (T&D), Jajpur Road, Jajpur- Opposite Party No.1 to consider the appeal i.e., ACC No.14 of 2014 afresh giving opportunity of hearing to the parties concerned. 9. With the aforesaid observation and direction, this writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 6 of 6