Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.20783 OF 2011 An application under Articles 226 & 227 of the Constitution of India. The Executive Engineer (Electrical), Keonjhar Electrical Division, Keonjhar : Petitioner -Versus- Sanjib Kumar Panigrahi & Ors. : Opposite Parties For Petitioner : Mr.S.C.Dash, Adv. For O.Ps.
Legal Reasoning
: Mr.F.R.Mohapatra, Mr.M.K.Panda, Mr.R.K.Nayak & Mr.A.K.Maharana, Adv. (For O.P.No.1) J U D G M E N T CORAM : JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO Date of Hearing & Judgment : 11.04.2023 1. This Writ Petition involves the following prayer:- <It is, therefore, humbly prayed that this Hon9ble Court may graciously be pleased to issue Rule Nisi calling upon the Opp. Party to show cause as to why a writ in the nature of certiorari shall not be issued quashing the order dt.09.03.2011 passed by the Ombudsman-II in consumer Representation Case No.Omb (II)N-70 as at annexure-6 and further be pleased to command the Opp. Party to accept the categorisation of his unit and the bills as per the amendment and clear up the dues within a stipulated time and on perusal of causes shown, if any, or upon insufficient causes shown be pleased to make the said rule absolute and may pass such other order/orders as deemed just and proper. Page 1 of 7 // 2 // And for this act of kindness, the petitioner-company shall as in duty bound, ever pray.= 2.
Decision
The writ petition basically involves a challenge to the order dated 09.03.2011 passed by the Ombudsman-II in Consumer Representation Case No.Omb(II)N-70 of 2010 as at Annexure-6. Factual background as pointed out by Mr.Dash, learned counsel appearing for the licensee appears to be the opposite party, the consumer has been offered power supply with a contract demand of 85 K.W. by executing an agreement with the effect from 17.02.2004 for the purpose of running a cold storage and was classified under the commercial category as appearing at Annexure-1. Pursuant to bringing in an amendment to Regulation 80 (5) of the Supply Code, 2007 in the year 2007 treating the reclassifying Cold Storage in the category of Agro Industrial Consumer. It is furtherance to the above amendment, the agreement was executed between the parties on 11.06.2008 and as a consequence Corrigendum Agreement dated 22.08.2008 entered into between the parties appearing herein as Annexure-2. It is pleaded that erroneously energy bill of opposite party from April, 2008 to June, 2008 were revised under Agro Industrial Tariff and the payment already realized in excess to the tune of Rs.1,54,117/- was set off in subsequent energy bill. While the matter stood thus, tariff for the financial year 2009-10, OERC Page 2 of 7 // 3 // notified the classifications for categorization of Agro Industrial Consumer with effect from 01.04.2009 and directed to include only those activities as an adjunct to farming before the produce gets into the market and gets out of the farm thereby excluding the commercial activities or trade or manufacturer or any kind of post harvest processing of farm produce or even as frozen produce. The different classification indicated hereinabove is appended as Annexure-3. It appears, in view of the above bills for April, 2009 to July, 2009 were revised under general purpose tariff and the opposite party herein was directed for payment of differential amount of Rs.2,06,528/- vide office letter dated 27.08.2009. 3. Being aggrieved by such reclassification, the consumer moved the Grievances Redressal Forum (for short <the G.R.F.=), Jajpur Road in Consumer Complaint No.278 of 2010. The G.R.F. in its final order dated 31.08.2010 directed the opposite party herein to accept the bill and tariff classification vide Annexure-5. Being aggrieved by the G,R.F. order the opposite party moved the Ombudsman-II in Consumer Representation Case No.Omb(II) N-70 of 2010. The Ombudsman-II vide its order dated 09.03.2011 vide Annexure-6 held opposite party unit as a Agro Industrial Consumer Category for the period 01.04.2008 to 08.11.2009 and thereafter Page 3 of 7 // 4 // became Allied Agro Industrial Activities Category with effect from 09.11.2009 and thus directed accordingly. 4. Being aggrieved by the order of the Ombudsman vide Annexure-6, the licensee approached this Court on the following grounds: <7.1 For that the Ombudsman-II has committed illegality and manifest irregularities in misconstruing the amendment brought in by OERC in the gazette notification in as much as it9s effective date. In that view of the matter the impugned order is liable to be quashed; 7.2. For that the Ombudsman-II has been grossly erred in law as it has failed to supply valid/cogent/adequate reasons and therefore, the impugned order is nonest in the eye of law.; 7.3. For that the Ombudsman-II by its decision vide Annexure-6 has grossly erred in law in not taking into consideration the materials available on record; 7.4. For that the Ombudsman-II in its decision vide Annexure-6 having considered extraneous materials arbitrarily in exclusion of relevant materials, has not discharged its duty and obligation in accordance with law and therefore, it violates Article 14 of the Constitution of India; 7.5. For that the impugned order is otherwise bad in law, perverse as being contrary to the materials on record and probabilities of the case and therefore, it is liable to be set aside. 7.6. For that when both the parties have agreed to be governed by provisions of the Supply Code, 2004 and amendment brought in, being essentially a policy decision of the Orissa Electricity Regulatory Commission by virtue of the powers conferred on it by the law governing in the field, the Ombudsman- II has no jurisdiction to entertain the prayer of the Opp. Party at the threshold and ought to have rejected the same in limine. 7.7. For that the Ombudsman-II was not justified in acceding to the prayer of the Opp. Party, when such prayer is in breach of the terms and condition of the agreement i.e. with regard to condition of supply and the undertaking to abide by the terms and conditions.= 5. Mr.Dash, learned counsel appearing for the petitioner/the licensee on reiteration of his aforesaid grounds in his attack to its impugned order of the Ombudsman-II requests this Court for allowing the writ petition thereby maintaining the bills involved therein. Page 4 of 7 // 5 // 6. Mr.F,R.Mohapatra, learned counsel appearing for the contesting opposite parties taking this Court to its plea before the G.R.F. and the Ombudsman further reading through the two agreements entered into in the meanwhile and on reiteration of the same attempts to justify the order of the Ombudsman. In addition to the above, both the parties also undisputedly relied on a decision of the Single Bench of this Court in W.P.(C).No. 27046 of 2011 decided on 28.06.2013 being affirmed by Writ Appeal Court in W.A.No.491 of 2013 by order dated 24.08.2012. 7. Considering the rival contentions of the parties, this Court finds the issue involved herein was the very same issue in the proceeding before the Single Bench and taking up the similar issue, a Single Bench of this Court in deciding W.P.(C).No. 27046 of 2011 keeping in view the amendment in Regulation 80(5)(iii) of the OERC Code , on reproduction of the amended provision came to observe as follows:- <Regulation 80(5)(iii) as has been amended by the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) (5th Amendment) Code, 2009 reads as under:- controlled <80(5)(iii) : Allied Agro-Industrial Activities : This category relates to supply of power to 8Cold Storages (i.e. a fruits, temperature 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=.= storage where flowers, A reading on the above amended Regulation does not show that cold storages meant for only keeping harvested products until they are needed have been excluded, rather they are covered under the category of <Allied Agro-Industrial Activities= and in addition to Page 5 of 7 // 6 // that cold storages attached to the processing units for fish, meat, flowers, vegetables etc. have also been included in the said category. In such view of the matter, the tariff as applicable to <Allied Agro-Industrial Activities= is to be charged to the unit of O.P.1, as has been directed by the G.R.F. in the impugned order. I, therefore, find no infirmity in the impugned order to be interfered with.= This order was assailed by the licensee in Division Bench by way of W.A.No.491 of 2013 and the Division Bench through paragraphs-3, 4 and 5 while affirming the order of the Single bench came to observe as follows: <3. The above order was based on the several similar orders of the Ombudsman directing the change in the tariff category of cold storages from 8GPC9 to Allied Agro Industrial Category9. Referring to Clause-80(5)(iii) of the OERC Code 5th amendment, the learned Single Judge has noted that the amended regulation was not meant to be confined to cold storages of only fish, meat etc., but to include followers, vegetables etc. 4. Having heard learned counsel for the Appellants, this Court is not able to be persuaded that Respondent No.1 ought to be categorized as GP Consumer when clearly its activities fall within the description of <Allied Agro Industrial Activities=. The fact remains that the cold storage upgraded by Respondent No.1 is used for only storing vegetables and that is within the purview of Allied Agro Industrial Activity9. 5. Consequently, the Court is not persuaded that any error has been committed by the learned Single Judge in dismissing the Appellant9s writ petition.= 8. Keeping in view the rival contentions of the parties in the case at hand, this Court finds similar issue having already been decided in disposal of W.P.(C).No. 27046 of 2011 , we find no scope for deviating from the decision of the Single Bench, further the decision of the Single Bench being affirmed by the Division Bench of this Court in W.A.No.491 of 2013. This Court here records the statement of Mr.Dash, learned counsel for the petitioner Page 6 of 7 // 7 // that the orders of this Court were not further challenged. It is on the other hand the order of the Ombudsman on same position has been worked out. 9. It is in the above circumstance and for the position settled through the above judgment, this Court finds there is no scope for interfering in the order of the Ombudsman. 10. In the result, the writ petition fails. (M.S.Sahoo) Judge (Biswanath Rath) Judge Orissa High Court, Cuttack. The 11th day of April, 2023/sks Page 7 of 7