The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No. 37135 of 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------------- The Executive Engineer, Electrical Bhubaneswar Electrical Division & another …..… Petitioners -Versus- The Grievance Redressal Forum, TPCODL, BBSR & another For Petitioner : Mr. P.K. Sahoo, Advocate …..… Opp. Parties For Opp. Parties : None ------------------ 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: 03.05.2023 Date of Judgment : 03.05.2023 ------------------------------------------------------------------------------------------ This matter was entertained by order of this Court dated 13.01.2023 thereby directing notice on the contesting opposite parties. From the office note, this Court finds there has been already service of notice on the contesting opposite party no.2. Despite service of notice, nobody is appearing on behalf of the Opposite Party No.2, therefore, this Court is // 2 // constrained to decide the matter in absence of Opposite Party No.2. 2. The writ application involves challenge to the order dated 07.4.2021 passed by the Grievance Redressal Forum (in short, ‘GRF’), Bhubaneswar in Consumer Complaint (C.C.) No.168 of 2021 (Annexure-1). The consumer-opposite party no.2 being the complainant, complained before the GRF, specifically alleging that on 18.02.2021 at 2.00 P.M. the petitioner-distribution licensee TPCODL verified meter affixed in the premises involved and broke the seal of the meter for checking of status of the meter. After doing so petitioner submitted a physical verification report of the meter to the consumer-opposite party no.2. The said report was signed by both the parties. The complainant-opposite party no.2 alleged he being illiterate signed the copy of report without understanding the contents, however, with a bonafide impression he will be getting justice from the staff of the licensee before the GRF consumer claimed that the meter though installed in December, 2020 was defective and shall be replaced by them. In the meantime consumer received provisional bill followed by final bill which he was unable to pay and bringing the proceeding before the GRF a request is made before GRF for appropriate order. Page 2 of 10 // 3 // 3. The petitioner-licensee–respondent no.2 on their appearance before GRF indicated that during routine visit to the premises on 18.02.2021 they found that the consumer has availed power supply through a tampered meter, i.e., the back side of meter body was cut and the actual metering was obstructed. 4. During hearing the learned counsel for petitioner, this Court records the licensee has not shown any material to indicate the consent of the staff before the licensee broke the seal of the meter. 5. It is in the above context of the matter, the GRF has raised doubt regarding the claim of the licensee. However, to find an appropriate resolution of the issue involved, the GRF finally passed the order vide Annexure-1 directing the complainant-opposite party no.2 to pay 30% of the final assessment bill amount raised by the petitioner-respondent- licensee herein and thereby also allowed the respondent- licensee to install a digital meter in place of old meter having provision of recording demands for assessment of actual connected load. In the process, the GRF also authorized the licensee to raise a further bill for payment by the consumer- opposite party no.2 basing on the maximum demand recorded during the said financial year with proper Page 3 of 10 // 4 // intimation to the consumer and further based on the applicable Rules and Regulation.
Decision
6. The writ petition has been brought by the licensee being aggrieved by above order of GRF. Mr. Sahoo, learned counsel for the petitioner referring to the pleadings in the writ petition and reiterating their stand before the GRF, firstly contends GRF has no jurisdiction to entertain the issue involving penal bills for there is specific provision contained in Section 126 of the Electricity Act, 2003, which provides the actual recourse to the consumer and the remedy lies elsewhere. The second limb of argument of the learned counsel for the licensee is that even assuming the GRF has jurisdiction, there has been no proper consideration of the allegations by the licensee regarding tampering of meter. In the above scenario, the learned counsel seeks interference with the order vide Annexure-1 in setting aside of the same. 7. It is unfortunate to note that even though the licensee challenged the impugned order Annexure-1 passed by the GRF, the provisional bill or the final bill has been filed nor even the complaint of the consumer or the response of the licensee before GRF have been filed. However on reading the recordings of the stand of the parties made by the GRF, appearing at page-12 of this Court’s brief, this Court finds Page 4 of 10 // 5 // complainant has made clear allegation of breaking of seal of meter in his premises by the staff of licensee/departmental people and there is also complaint of poor understanding on the part of the consumer of the contents in the verification report which he has signed. Consumer also claims he signed the report under bonafide impression that he will be given justice. 8. This Court here finds GRF has recorded response of the licensee that there was tampering of meter as a consequence, the report was prepared but as the consumer has signed such report, he is estopped from taking such plea. 9. The GRF appears has taken a decision finding the rival contentions before it to be a question of fact and has come to observe after hearing the parties and on going through the documents, the respondent, Team Leader, Enforcement Cell verified the complainants premises on 18.2.2021 and found that the connected load has been enhanced from 3KW to 16 KW with meter being found tampered. It is not disputed that the meter was installed on 09.12.2020 hardly two months before verification by the staff of licensee. The GRF, taking aid from the provision Section 126 of the Act, 2003 and clause 117 of the OERC Regulation, 2019 providing in case Page 5 of 10 // 6 // of dispute regarding actual consumption and metered consumption, the procedure to determine consumption to raise bill. This Court takes note of S.126 of the Electricity Act, 2003 and the provision contained in Clause 117 of the OERC Regulation 2019 which read as follows : “S.126 Assessment-(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in such charge manner as may be prescribed. or premises the place in of the any, against [(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional electricity assessment of the charges payable by such person.] provisional (4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the licensee amount with within seven days of service of such provisional assessment order upon him: assessed the [(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during Page 6 of 10 // 7 // which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection. (6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant specified of in sub-section (5). Explanation.- For the purposes of this section,- category services (a) “assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) “unauthorised use of electricity” means the usage of electricity – (i) by any artificial means; or (ii) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised; or (v) for the premises or areas other than those for which the supply of electricity was authorized.” Para 117 of the OERC Regulation, 2019 provides: 117.Contract Demand for loads of 110 KVA and above shall be stipulated in the agreement and may be different from the connected load. Contract demand for a connected load below 110 KVA shall be same as the connected load. In case of installation of meters with provision of recording demand for the consumers with contract demand less than 110 KVA the highest recorded demand during the billing period shall be utilized for billing of the demand charges. The highest demand recorded in the meter shall continue to be utilized for billing purposes from the month it occurs till the end of the financial year unless the demand recorded in the recorded higest subsequent month exceeds demand. In the next financial year, the above process shall be repeated afresh for billing demand charges. last Page 7 of 10 // 8 // Regarding the billing of demand charges for contract demand more than 110 KVA the billing methodology for demand charges shall be stipulated by the commission in the tariff order of the relevant year.” 10. Though a question of jurisdiction has been raised by the petitioner-licensee before this Court in the writ petition, apparently the licensee has participated in the proceeding before the GRF by filing its written submissions. It can safely be said that the licensee abandoned its plea on the part of jurisdiction of the GRF by contesting the claim of the opposite party-consumer before the GRF. Jurisdiction aspect if at all involved should have contested the same at the theshhold and is presented as challenge the same a contested decision is passed. 11. Reading the order of GRF this Court finds it is no way prejudicial to the interest of the distribution licensee as the GRF taking note of the clause 117 of the OERC Regulation, 2019 as well as section 126 of the Electricity Act, 2003 came to hold that the complainant-consumer shall pay 30% of the final assessment and also shall allow licensee to install digital meter. In any view of the matter, installation of correct meter to assess the actual consumption is in the best interest of the distribution licensee. It has been further directed by the GRF that the licensee shall make the assessment of the disputed period of billing by resorting to Page 8 of 10 // 9 // average billing based on the calculations provided under relevant statutes like OERC Regulation, 2019 as well as Electricity Act, 2003. 12. In our considered opinion, such final assessment would be appropriate in terms of clause 117 of the OERC Regulation, 2019. 13. Learned counsel for the petitioner-licensee has no up- to-date instruction regarding the manner of reconnection/fresh connection of electricity given to the consumer. There is also no instruction regarding deposit of 30% of the demand as directed by the GRF. However, there is no denial that Opposite Party No.2 presently in enjoyment of power and goes on paying current dues. 14. In these circumstances, it is directed let there by final assessment of the electricity dues by adopting the method as directed by the GRF. This Court also observes that no citizen can run without power supply for such a long period and in the event there has been installation of a new meter as directed by the GRF, the final bill raised by the licensee in terms of Regulation 117 of the OERC Regulation, 2019 read with Section 126 of the Electricity Act, 2003 shall have to be cleared by the Consumer. Page 9 of 10 // 10 // 15. The writ petition is dismissed, however, with the observation as indicated above. …………………….. ………………….. M.S.Sahoo, J. Biswanath Rath, J JJ. Orissa High Court, Cuttack The 3rd April, 2023/dutta e AJIT KUMAR DUTTA Digitally signed by AJIT KUMAR DUTTA Date: 2023.05.08 18:38:12 +05'30' Page 10 of 10