The High Court
Case Details
A.F.R. IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.14498 of 2019 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------------- Executive Engineer (Electrical) Aska Electrical Division No.1,TPSODL, Aska …..… Petitioner Grievance Redressal Forum, Berhampur and another …..… Opp.Parties -Versus- For Petitioner : Mr. P.K. Tripathy, Advocate For Opp.Parties : Mr. F.R. Mohapatra, Advocate for O.P. No.2 ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE BISWANATH RATH A N D THE HONOURABLE SHRI JUSTICE M.S. SAHOO ------------------------------------------------------------------------------------------ Date of hearing: 05.05.2023 Date of judgment: 10.05.2023 ------------------------------------------------------------------------------------------ M.S.SAHOO, J Introduction The writ petition was filed by the earlier distribution licensee, represented through the Executive Engineer, SOUTHCO Utility, Aska, Ganjam challenging the order dated 12.06.2018 passed by the Grievance Redressal Forum (hereinafter in short, ‘GRF’) established in terms of the Section 42(5) of the Electricity Act, 2003, in GRF Case No.150 of 2018. The said consumer complaint before the GRF was filed by the opposite party no.2- consumer, M/s. Maa Bana Devi Poultry Pvt. Ltd. // 2 // represented through its Managing Director challenging the electricity bill raised by the distribution licensee for the month of June, 2011, amounting to Rs.26,675/- and July, 2011 amounting to Rs.67,219/-, purportedly raised based on revised rate of “tariff” for the category : general purpose (LT) on commercial basis. Subsequently another entity, Tata Power Southern Odisha Distribution Limited (TPSODL) stepped into the shoes of the SOUTHCO Utility as distribution licensee by virtue of vesting order of the Odisha Electricity Regulatory Commission (hereinafter in short, ‘OERC’) dated 28.12.2020 passed in Case No.82 of 2020. 2. By order dated 27.03.2023 passed in I.A. No.3823 of 2023, TPSODL has been impleaded as petitioner in place of the petitioner. Accordingly, the learned counsel for the TPSODL has also filed Vakalatanama.
Legal Reasoning
Brief Facts 3. The opposite party no.2-consumer for the purpose of poultry Unit and production of a poultry feed, required electricity, submitted an application to the Executive Engineer (Electrical), Aska Electrical Division-1 of the erstwhile SOUTHCO Utility for providing power supply. After due verification of the facility of the consumer by the licensee, the agreement was executed on 14.03.2007 for a contract demand of 50 Kilo Watt (50 KW) supplied through 55.55 Kilo Volt Ampere (KVA) transformer at 11000 volt (11KV) and the same was categorized and billed for consumption of electricity under the commercial tariff category. The consumer started his Page 2 of 14 // 3 // poultry business of production of eggs, grew live birds by taking financial assistance from different banks. The Government of Orissa in the Department of Agriculture came up with a resolution dated 10.08.2005 wherein to encourage small entrepreneurs for establishment of poultry units, different benefits were extended and poultry units were classified as agriculture. Some incentives towards supply of electricity were also extended. After introduction of Agro Industry Tariff by way of amendment to the Regulation of OERC Distribution (Conditions of Supply) Code, 2004 (hereinafter in short, ‘OERC Code, 2004’), a fresh agreement was executed between the consumer and the distribution licensee on 25.11.2008 for the purpose of poultry farm, the consumer was categorized as “agro industries tariff category” @ Rs.1.10 paisa per unit of electricity consumed. On the basis of the said agreement, the consumer was billed by the distribution licensee and there was no default at any point of time as the consumer went on paying the dues billed till March, 2011. 4. In a related development, on 19.10.2009, the Odisha Electricity Regulatory Commission (OERC) made amendment to Regulation 80(5) of Chapter VIII and introduced three new categories as follows which are reproduced herein for convenience reference. : (i) irrigation pumping and agriculture; (ii) Allied Agricultural Activities; and Page 3 of 14 // 4 // (iii) Allied Agro Industrial Activities. 5. At this juncture, when the consumer farm was utilizing power supply as per the agreement dated 25.11.2008, the Executive Engineer of the distribution licensee raised an energy bill in the month of June, 2011 to pay an amount of Rs.26,675/- and for the month of July, 2011 raised a bill of Rs.51,219/-; both the bills having been raised on the basis of treating the category of the petitioner to be general purpose (Low Tension Commercial basis) [GPLT category] and not charged @ Rs.1.10 paisa that was billed by the utility and paid by the consumer till June, 2011. 6. Such billing, raised which became bone of contention between the parties, was purportedly as per the amendment notification of OERC dated 19.10.2009 introducing new rates of tariff. 7. The consumer filed a writ petition, i.e., W.P.(C) No.25765 of 2011 before this Court with a direction to clear the energy bills, those were raised at the revised rate reclassifying the consumer as indicated above. By the judgment rendered on 18.08.2015, the writ petition was decided on contest, after hearing the consumer and the distribution licensee and taking note of the notification dated 19.10.2009 issued by the OERC which brought about the changes in the categories. The operative portion of the order passed by the learned Single Judge is quoted herein : “In view of the forgoing reasons, this court is of the considered view that captive feed unit attached to the “poultry farm’ can be considered Page 4 of 14 // 5 // to be its integral part and as such poultry should be charged on the basis of the ‘Agro industrial Category and subsequent by virtue of the amendment made ‘Allied Agriculture Activities’ not on the basis of GP (LT) Tariff.” 8. In a related development on 30.04.2011 on verification of the load of feeding unit (feed for consumption of poultry) by the distribution licensee in the presence of the representatives of the consumer- opposite party no.2, it was found that the feeding unit has an electricity consumption load of 14.5 KW which is 29% of the entire load of the consumer. As per the Regulation 80(5)(III) of the OERC Code, 2004 as the consumption by the feeding unit exceeded 20%, the energy bill was revised, in obedience of the order of the High Court dated 18.08.2015, by withdrawing a sum of Rs.9,32,040/- from the energy bill of the consumer that was calculated on the basis of LTGP category and the consumer was issued revised bill as Allied Agro Industries. The verification report along with bill was submitted before the GRF by the consumer-complainant in the Consumer Complaint No.76 of 2017, which was disposed of by the order dated 05.05.2017 with the following direction : “The complainant is directed to pay the above said revised bill within 15 days from the date of receipt of this order. Failing which the opposite party has got liberty to disconnect the power supply for non- payment of dues.” Page 5 of 14 // 6 // 9. The order dated 05.05.2017 was challenged by the consumer in Consumer Representation Case before the Ombudsman alleging that the verification was made in the absence of the consumer. As it was decided by the learned Single Bench of this Court that in view of captive feed unit attached to the poultry farm for feeding of the birds, the captive feed units are to be considered as an integral part of the farm which is an agricultural activity, the Ombudsman- II by its order no.150(4) dated 13.11.2017 passed order following the judgment rendered by this Court dated 18.08.2015 in W.P.(C) No.25765 of 2011. In terms of the order of Ombudsman, the unit of the consumer was declared as Allied Agro Industrial Activities (AAIA). 10. After the order passed by the Ombudsman, the consumer separated the electricity load of the feed preparation unit and with some additional extra load, availed a new connection in the feed preparation unit in the name of “Maa Bana Devi Poultry Pvt. Ltd. Feed Processing Unit”. Separate agreement was executed for such unit, dated 13.10.2017. Even after such separation of the load and entering into fresh agreement on 13.10.2017, the petitioner- consumer poultry unit was billed neither on AAIA as ordered by the Ombudsman nor on AAA as per the tariff order of the OERC. It is at this stage, Distribution Licensee insisted for payment of demand raised instead of revision of bills under Allied Agricultural Activities. The licensee issued a disconnection notice vide his Bill Page 6 of 14 // 7 // No.284(4) dated 27.02.2017 resulting consumer filed GRF Case No.150 of 2018. 11. The distribution licensee filed their detailed counter before the GRF (at paragraph-14 page 23 to the writ petition). It was further stated by the licensee that even after challenge to the order passed by the Ombudsman by filing W.P.(C) No. 7657 of 2018 and it was stated on the date of filing of the reply, the writ petition was pending adjudication before this Court. Order of GRF 12. After considering the pleadings of the parties, the GRF gave the following observations in its order : the parties and “The forum has gone through the papers filed by both that although he found the complainant has respondent, but he has not complied as per the regulation 91 and 92 of the OERC distribution (conditions of supply) Code 2004. lodged complaint before 1. The consumer has taken another power supply exclusively for fee processing unit with CD 47 KW vide consumer number AAIA 1856 w.e.f. dated 01.12.2017 by separating industrial load from consumer number CP 1505 (subsequently converted to MIND 1615) and agreement has been made as per allied agro industrial processing unit activity tariff. The rest meant for poultry farming exclusive load remains in the consumer “Maa Banadevi Poultry Pvt. Ltd.” vide consumer number MIND 1615. Therefore, why the tariff of the existing consumer (1615) could not be changed from AAIA to AAA w.e.f. the date of separation of feeding unit load to another new consumer. 2. As per regulation 64 of the OERC distribution (conditions of supply) Code 2004, the maximum demand recorded in static meter rounded to nearer Page 7 of 14 // 8 // 0.5 kw shall be considered as contract demand. The billing demand in respect of consumer with contract demand of less than 110 KVA should be the highest demand recorded in the meter during the financial year irrespective of the connected load, which shall require no verification. The recorded demand as per the dump report submitted by opposite party is as follows :- For the month of Recorded demand KWI/KVA 69,66/80.16 69,66/71.34 Dec-15 June-17 in From the above, it is ascertained that the less claimed demand charges should be claimed & revision from retrospective effect, based on the available dump report. The opposite party is directed: 1. To change the category of “Maa Banadevi Poultry Pvt. Ltd.” (having consumer no-MIND 1615) from Agro Industrial activities to allied agriculture tariff w.e.f. dated 01.12.2017 after proper physical verification. 2. To revise the demand charges as per monthly recorded maximum demand by considering the available dump report and based on tariff orders. The claimed demand charges is to be revised as per the clause 64 of the OERC distribution (conditions of supply) Code 2004 retrospectively based on available dump report and the tariff orders for respective periods. 3. To revise the bill of the above complainant and serve the same within 30 days of receipt of this order and reflect the same in billing fold through LTD. 4. A copy of the revised bill, presented to the complainant, as per the final order, should be furnished to this office for compliance. Page 8 of 14 // 9 //
Decision
The complainant is directed to: 1. Pay the revised bill within 15 days of receipt of the revised bill from the opposite party, failing which the opposite party has got liberty to disconnect the power supply for non-payment of the dues. The case is disposed of accordingly.” 13. To challenge the order of the GRF in the writ petition, following grounds have been raised : that as per regulation 15 of the OERC, GRF & Ombudsman Regulation, 2004, circulars have been issued by the OERC on the GRF-I/2004 indicating the nature of disputes to be adjudicated by the GRF and the circulars do not deal with recovery of money as sought for by the consumer; that a plain reading of the clauses 2(l), 2(n) and 2(cc) of OERC Distribution Code, 2004 would go to show that a consumer is to be charged with demand charges as per the demand and the demand charges cannot be different from the contact demand; that Regulation 64 is not applicable to the particular consumer, who had approached the GRF. Submissions 14. Heard Mr. P.K.Tipathy, learned counsel for the petitioner-distribution licensee and Mr.F.R.Mohapatra, learned counsel for the opposite party no.2- consumer. Learned counsel for the petitioner made his submissions on the basis of the averments made in the writ petition as noted above. Learned counsel for the consumer-opposite party no.2 submitted that the order passed by the GRF is just Page 9 of 14 // 10 // and proper based on the earlier decision rendered by the learned Single Bench dated 18.8.2018 in W.P.(C) No. 25765 of 2011. The said judgment and order passed by this Court having not been challenged by either of the parties is binding. Therefore, the issue which has been settled by the judgment of this Court, cannot be reopened in a separate proceeding as is being tried in the present writ petition by the licensee. The learned counsel for consumer relied on the decision of this Court, rendered by Single Judge in W.P.(C) No. 22202 of 2011 and batch of cases decided on 18.08.2015 holding that “captive feed unit attached to the ‘poultry farm’ can be considered to be its integral part and as such ‘poultry’ should be charged on the basis of ‘Agro Industrial Category’ and subsequent by virtue of the amendment made ‘Allied Agriculture Activities’ not on the basis of GP (LT) basis.” Analysis & Conclusion 15. The stand of the Distribution Licensee before GRF that the order passed by the Ombudsman is not sustainable and is liable to be set aside is thoroughly misconceived inasmuch as the GRF is subordinate to the Ombudsman as per the statute and Ombudsman’s order was binding on the GRF. 16. Having heard learned counsel for the parties at length and considering the pleadings available on record on behalf of the parties which was presented before the GRF, we are of the considered opinion that the petitioner has not pointed any error apparent on the face of record Page 10 of 14 // 11 // in the order passed by the GRF which can be interfered with by this Court. This Court is not an appellate authority to reopen the finding of fact by the GRF as per statutory provision that is the Electricity Act, 2003 and OERC Code, 2004. This Court is of the further opinion that the judgment and order dated 18.08.2015 passed by this Court in earlier writ petition, W.P.(C) No. 25765 of 2011 cannot be reopened at the instance of the parties to the litigation as the order passed by the learned Single Bench has not been challenged by the Distribution Licensee. Therefore, it has to be held that captive feed unit has to be charged for energy consumption as Allied Agricultural Activity. Judicial review of Findings of Expert Bodies 17. The Hon’ble Supreme Court in the case of MSEDCL v. APML & Ors.a after considering the statutory provisions in the Electricity Act, 2003, held that the CERC, SERCs and the learned APTEL are bodies consisting of experts in the field. In the said case, the Hon’ble Supreme Court observed thus : “120. It could thus be seen that two expert bodies i.e. the CERC and the learned APTEL have concurrently held, after examining the material on record, that the factors of SHR and GCV should be considered as per the Regulations or actuals, whichever is lower. The CERC as well as the State Regulatory bodies, after extensive consultation with the stakeholders, had specified respective Tariff Regulations. In addition, insofar as GCV is concerned, the CEA has opined that the margin of 85-100 kcal/kg for a non-pit head station may be considered as a loss of GCV measured at wagon top till the point of firing of coal in boiler. the SHR norms in Page 11 of 14 // 12 // 18. Regarding scope of judicial review of the findings of expert body like that of Electricity Regulatory Commission (e.g. Maharastra ERC) this Court refers to the decision of the Hon’ble Supreme Court in the case of Reliance Infrastructure Limited v. State of Maharashtra [(2019) 3 SCC 352]. “38. MERC is an expert body which is entrusted with the duty and function to frame regulations, including the terms and conditions for the determination of tariff. The Court, while exercising its power of judicial in where a case of manifest review, can step is made out. unreasonableness or arbitrariness Similarly, where the delegate of the legislature has failed to follow statutory procedures or to take into account factors which it is mandated by the statute to consider or has founded its determination of tariffs on extraneous considerations, the Court in the exercise of its power of judicial review will ensure that the statute is not breached. However, it is no part of the function of the Court to substitute its own determination for a determination which was made by an expert body after due consideration of material circumstances. 39. In Assn. of Industrial Electricity Users v. State of A.P. [Assn. of Industrial Electricity Users v. State of A.P., (2002) 3 SCC 711] three-Judge Bench of this Court dealt with the fixation of tariffs and held thus : (SCC p. 717, para 11) “11. We also agree with the High Court [S. Bharat Kumar v. State of A.P., 2000 SCC OnLine AP 565 : (2000) 6 ALD 217] that the judicial review in a matter with regard to fixation of tariff has not to be as that of an appellate authority in exercise of its jurisdiction under Article 226 of the Constitution. All that the High Court has to be satisfied with is that the Commission has followed the proper procedure and unless it can be demonstrated that its decision is ________________ aMSEDCL v. APML & Ors. : 2023 SCC OnLine 233 Page 12 of 14 // 13 // on the face of it arbitrary or illegal or contrary to the Act, the court will not interfere. Fixing a tariff and providing for cross-subsidy is essentially a matter of policy and normally a court would refrain from interfering with a policy decision unless the power exercised is arbitrary or ex facie bad in law.” [Emphasis supplied] 19. In a recent decision rendered by the Constitution Bench of the Hon’ble Supreme Court in the case of Vivek Narayan Sharma v. Union of India [2023 SCC OnLine SC 1] : it has been held that the Courts should be slow in interfering with the decisions taken by the experts in the field and unless it is found that the expert bodies have failed to take into consideration the mandatory statutory provisions or the decisions taken are based on extraneous considerations or they are ex facie arbitrary and illegal, it will not be appropriate for this Court to substitute its views with that of the expert bodies. 20. In applying the principles as discussed above, laid down by the Hon’ble Supreme Court in the judgments referred to, we are of the considered opinion that the concurrent finding of fact by the GRF, that the consumer can be billed based on Allied Agricultural tariff. 21. The petitioner-licensee any material before this Court to show that the order passed by the GRF which is impugned in the present writ petition, suffers from any manifest unreasonsableness or arbitrariness or otherwise is in breach of any statute. The petitioner has not shown that the order by the authority which is impugned, is based on any extraneous consideration or that it is ex-facie arbitrary and illegal. Lastly, assuming that Page 13 of 14 // 14 // another view can possibly be taken, as argued by the petitioner that would be different from that of the authority, the said view cannot be substituted by this Court replacing the view already taken by the authority, i.e. the GRF. 22. In view of the above discussion, the writ petition is dismissed being devoid of any merit. The order passed by the GRF dated 12.06.2018 in GRF Case No. 150 of 2018 be complied forthwith. In the circumstances of the case there shall be no order as to costs. …………………….. ………………….. Biswanath Rath, J. M.S.Sahoo, J. Orissa High Court, Cuttack The 10th May, 2023/dutta AJIT KUMAR DUTTA Digitally signed by AJIT KUMAR DUTTA Date: 2023.05.11 22:13:20 +05'30' Page 14 of 14