The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.37196 OF 2022 The Executive Engineer (Electrical), TPNODL, Balasore Elect. Div. …. Petitioner(s) Mr.S.C.Dash,Adv. -versus- Prem Kumar Das and others …. Opp.Party(s) Mr.D.Panda,Adv. CORAM: JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO Order No. 06. 1. 2.
Decision
ORDER 09.05.2023 Heard learned counsel for the Parties. This Writ Petition involves the following prayer:- <It is therefore humbly prayed that the Hon9ble Court may be pleased to Admit the Writ Petition, issue a rule-nisi calling upon the O.Ps specifically O.P. No.1 to <Show-Cause= as to why the impugned order vide Annexure-6 shall not be quashed as illegal, arbitrary, contrary to law, without jurisdiction & in the event, the said O.P. fails to show-cause or shows insufficient cause, Your Lordship(s) may be pleased to make the 8rule9 absolute & issue a Writ in nature of Mandamus/ Certiorari or any other appropriate Writ/Order quashing the impugned Order dt.23.09.2022 passed in C.R. Case No.57 of 20221 by the Ombudsman-II of electricity, Bhubaneswar under Annexure-6 to this writ petition; And for which act of kindness, the Petitioner shall as in duty bound ever pray.= 3. At the threshold, Mr.Dash, learned counsel for the Petitioner challenges the impugned order passed by the Ombudsman dated 23.09.2022 in C.R. Case No.57 of 2021 brought the Licensee9s Page 1 of 10 // 2 // challenge on three folds. The first ground appears to be the order of the Ombudsman remain perverse and remain contrary to the plea and prayer of the Petitioner. The second ground appears to be the Ombudsman acted without jurisdiction and third ground appears to be a decision of the Ombudsman remains contrary to the claim. 4. Advancing his submission to establish all the above three grounds, Mr.Dash, learned counsel for the Petitioner attempted to take this Court to satisfy ground Nos.2 & 3. Reading through the documents available in the Writ Petition at page-11 of the brief claiming to be a legible copy of the grievance of the consumer. It is unfortunate to note here that there is in fact no filing of actual copy of the complaint however there is filing of typed copy of the complaint filed by the consumer before the G.R.F. However later on Petitioner herein brings the copy of application of the consumer by way of memo. Learned counsel on behalf of the consumers though undertakes filing of copy of complain did not bring the same on record even by the time of signing of this order. This Court is unable to appreciate as to what prevented the Licensee in bringing the copy of complain along with notice served on the Licensee on entertainment of the complaint of the consumer in the filing of the Writ Petition. Reading the consumer complaint produced before us, this Court finds, the consumer application before the G.R.F. runs as follows:- To The President, Grievances Redressal Forum, TPNODL (then NESCO Utility) Balasore. Sub:- Complain against the illegal collection of 6% Supervision Charge on S/S which is maintained by the Consumer and forcible installation of HTTV metering Unit at the Cost of the Consumer. Ref:- Consumer Name:- Prem Kumar Das; Consumer No.B-43700 (321106330064). Page 2 of 10 // 3 // Sir, I have applied for 48 K.W. G.P. load Power Supply to my Prawn Culture Cultivation purpose on 16.04.2019. Subsequently, the Permission was granted vide letter No.2000 (7) dt.27.08.2019 with Permission letter No.3777 dt.27.08.2019 of G.M (E), E.C., Balasore. Un ware of the facts of Rules and Regulations. I have deposited the 6% Supervision Charge vide receipt No.93805/0470 dt.06.08.2019 After Construction of Sub-Station & line, the System was energized vide Charging Order letter No.20642064 dt.05.09.2019. After getting information from other DICOM, I came to know the fact of law that no 6% Supervision Charges are levied on party maintained Sub-Stations. Another Objection, my energy billing was done as per L.T side metering. Then why I was forced to install & deposit money for HTTV Metering Unit. The Department on the basis of which Act of Indian Electricity Act or Regulations of OERC is forcibly ordering the CONSUMERS TO BEAR THE COST of installations 11 KV HTTV Unit. Here, I sincerely request you to considering my prayer, take necessary and appropriate steps. Enclosures: 1)Copy of permission letter 2)Copy of Deposit Receipt 3)Copy of 11 KV Metering Unit Sanction letter 4) Copy of deposit for 11 KV Metering Unit Yours faithfully Prem Kumar Das Dt.28.06.2021 Mob:9437055248 5. It is taking down the objection of the Licensee before the G.R.F. vide Annexure-2, the Licensee has taken stand as herein below:- BEFORE THE PRESIDENT G.R.F. TPNODL, BALASORE GRF C.C. No.243 of 2021 In the matter of:- PREM KUMAR DAS S/o BIJAY KUMAR DAS AT/PO: HIDIGAON Dist: Balasore………………….Petitioner. (Vs.) The Executive Engineer (Electrical) Page 3 of 10 // 4 // BALASORE ELECTRICL DIVISION At-Balia, Po-Balasore, Dist-Balasore………………….O.Ps. Reply-Objection filed by the O.P.(TPNODL) Most respectfully begs to submit as follows:- That the petitioner in his application has prayed before the Hon9ble GRF towards illegal collection of 6% supervision charges on S/S/ which is maintained by the consumer and forcible installation of HTTV Metering unit. That before going to reply the averments made in the application in seriatim it would be just and proper to bring before the forum factual background of the case for better appreciation. 1. That the consumer is a GP category having CD of 48 KV and availing power supply with HT Metering unit from 11KV supply. 2. That the petitioner has undertaken to deposit 6% supervision charges for 63 KVA S/S at his own cost and accordingly the estimate was provided to the consumer and consumer has deposited 6% supervision charges. (Annexure-1). The Hon9ble GRF is requested to refer APPENDIX-1 (See regulation 27 and 29) PROCEDURE FOR DETERMINATION OF REMUNERATIVE NORMS. As per point No.4. Calculation of capital cost Cost date complied by DISTCOs shall be submitted to the Commission for approval from time to time. Pending submission of Cost Data to the Commission for approval, Capital cost shall be determined based on the escalation factor approved by the Commission from year to year (financial year wise). licensee to collect is entitled When a consumer is asked to bear the capital work, the estimated cost shall be calculated on the aforesaid basis. The the requisite supervision charge for checking and ensuring that the capital works have been done as per the standards and in addition, the inspection fees for inspection pertaining to safety and security as notified by the Govt. of Orissa from time to time. The licensee should ensure inspection of works by the Electrical Inspector. Hence from above it is clear that the 6% supervision charges was taken on the capital work executed by the petitioner and sub-station is also included in the capital work. Page 4 of 10 // 5 // furnish the Licensee Further Clause-84 of the OERC Regulation-2019 clearly pronounces that, <Before any wiring or apparatus of the applicants, including transformers, switch gear etc. are connected to the licensee9s distribution system, the same shall be subject to the inspection and approval of the engineer and no connection shall be made without such approval. Accordingly, the Junior Engineer and the Assistant Engineers of the completion certificate of the work before every charging. In this regard Management has filed before Hon9ble High Court vide W.P.(C) No.11396 of 2019 challenging the order dt. 28.09.2018 passed in case No.165/2018 by GRF as well as order dt. 05.01.2019 passed in consumer representation case No.41/2018 by the Ombudsman-II. (Annexure-2) 3. The bill of the petitioner is being prepared on the basis of HT meter installed in the consumer9s premises in every month. As per the representation of consumer in annexure-I, the metering arrangement has been done but consumer9s representation to take the amount forcibly is totally wrong. As per regulation 29 in case the consumer opts for construction of the distribution system for his own use, he shall not claim any refund for such investment in future. The above facts and figures are submitted before the Hon,ble GRF for appraisal with a request that TPNODL reserves its right to add, alter, modify and submit further the written submission/documents etc. during the course of hearing. Yours faithfully Amareswar Satpathy Executive Engineer Balasore Electrical Division.= Keeping in view the allegation of the Licensee and the claim of the consumer, this Court proceed to find if issue of classification comes within the domain of the G.R.F and finds the consumer in his complain before the G.R.F. only on issue of collection of 6% supervision charge and forcible installation of HTTV meter at the cost of the consumer. This Court here also taking into account the notification on Grievance Redressal Forum and Ombudsman Page 5 of 10 // 6 // brought under the provision of Section 42(5) of the Electricity Act, 2003 and the notification under heading filing a complaint and the G.R.F. meaning thereby power of the G.R.F. No.1 of 2004 dated 19.10.2004 at Sl. No.iv, v, vii, viii & xiii runs as follows:- <2.3. Subject to the provisions of the Electricity Act, 2003, Rules, Regulations, Notifications made thereunder, the Forum shall generally dispose of the complaint relating to defects or deficiencies in Electrical services as defined in relevant Regulations. Few examples of the nature of the complaint are illustrated below: (iv) Contract demand/Connected load (v) Billing disputes (except penal bill u/s. 126 of the Electricity Act, 2003) (vii) Metering (except dispute regarding accuracy of the meter) (viii) Classification/Re-classification of consumer) (xiii) Installation of equipment and apparatus of the consumer.= Reading the aforesaid, this Court finds, the issue involves herein is in clear domain of G.R.F. so also thereafter in the Ombudsman. 6. This Court though here finds, the complain of the Petitioner was miserly worded but with nature of functioning of the consumer, there involves a classification issue and the G.R.F. very intelligently diverted such issue and came to reject the claim of the consumer resulting consumer bringing a complaint before the Ombudsman registered as C.R. Case No.57 of 2021. In the C.R. Case No.57 of 2021, the consumer has the following prayer:- <Directions may be given to the Respondent on the following in the interest of justice: 1) To adhere the regulation and sanction the estimate as per regulation in true spirit ensuing the duties Page 6 of 10 // 7 // codified the supplier and consumers in the regulation. the rights of the 2) To reimburse the capital cost of Rs 4,15,551/- as the total scheme is remunerative and supply is reckoned to be given at LT. 3) The cost of metering unit and accessories amount to Rs 1,16,199/- is to be returned as the petitioner qualify for LT supply but not for 11 kv supply. 4) The Respondent may be directed to give his defence if any para wise for our record.= In its opposition the Licensee brought therein its objection vide Annexure-5 responding as follows:- BEFORE THE OMBUDSMAN-II, BHUBANESWAR CASE NO.OM-II (n)- 57 OF 2021 In the matter of:- PREM KUMAR DAS S/o BIJAY KUMAR DAS AT/PO: HIDIGAON Dist: Balasore………………….Petitioner. (Vs.) The Executive Engineer (Electrical) BALASORE ELECTRICL DIVISION At-Balia, Po-Balasore, Dist-Balasore………………….O.Ps. Counter-Reply/Objection filed by the O.P.(TPNODL) Most respectfully begs to submit as follows:- That the petitioner in his application has prayed before the Hon9ble GRF towards illegal collection of 6% supervision charges on S/S/ which is maintained by the consumer and forcible installation of HTTV Metering unit. That before going to reply the averments made in the application in seriatim it would be just and proper to bring before the forum factual background of the case for better appreciation. 1. That the consumer is a GP category having CD of 48 KV and availing power supply with HT Metering unit from 11KV supply. 2. That the petitioner has undertaken to deposit 6% supervision charges for 63 KVA S/S at his own cost and accordingly the estimate was provided to the consumer and consumer has deposited 6% supervision charges. (Annexure- 1). Page 7 of 10 // 8 // is to requested The Hon9ble OMBUDSMAN refer APPENDIX-1(See regulation 27 and 29) PROCEDURE FOR DETERMINATION OF REMUNERATIVE NORMS. As per point No.4. Calculation of capital cost Cost date complied by DISTCOs shall be submitted to the Commission for approval from time to time. Pending submission of Cost Data to the Commission for approval, Capital cost shall be determined based on the escalation factor approved by the Commission from year to year (financial year wise). When a consumer is asked to bear the capital work, the estimated cost shall be calculated on the aforesaid basis. The licensee is entitled to collect the requisite supervision charge for checking and ensuring that the capital works have been done as per the standards and in addition, the inspection fees for inspection pertaining to safety and security as notified by the Govt. of Orissa from time to time. The licensee should ensure inspection of works by the Electrical Inspector. Hence from above it is clear that the 6% supervision charges was taken on the capital work executed by the petitioner and sub-station is also included in the capital work. the work before every charging. In Further Clause-84 of the OERC Regulation- 2019 clearly pronounces that, <Before any wiring or apparatus of the applicants, including transformers, switch gear etc. are connected to the licensee9s distribution system, the same shall be subject to the inspection and approval of the engineer and no connection shall be made without such approval. Accordingly, the Junior Engineer and the Assistant Engineers of the Licensee furnish the completion certificate of this regard Management has filed before Hon9ble High Court vide W.P.(C) No.11396 of 2019 challenging the order dt. 28.09.2018 passed in case No.165/2018 by GRF as well as order dt. 05.01.2019 passed in consumer representation case No.41/2018 by the Ombudsman-II. (Annexure-2) 3. The bill of the petitioner is being prepared on the basis of HT meter installed in the consumer9s premises in every month. As per the representation of consumer in annexure-I, the metering arrangement has been done but consumer9s representation to take the amount forcibly is totally wrong. As per regulation 29 in case the consumer opts for construction of the distribution system for his own use, he shall not claim any refund for such investment in future. Page 8 of 10 // 9 // 4. General purpose consumers with contract demand (CD) < 70KVA shall be treated as LT consumers for tariff purposes irrespective of level of supply voltage. As per regulation 134(1) of OERC distribution code 2019 the supply for load above 5 kW up to and including 70KVA shall be 3 phase, 3 or 4 wire at 400 volts between phases. The meter installed at LT side of the transformer as main meter and the consumer vide the bill of OMBUDSMAN order No 11/2020 has been challenged and stayed vide W.P.C No 1103/2021. (Annexure-3) The above facts and figures are submitted before the Hon,ble Ombudsman for appraisal with a request that TPNODL reserves its right to add, alter, modify and submit further the written submission/documents etc. during the course of hearing. revise Yours faithfully Amareswar Satpathy Executive Engineer Balasore Electrical Division.= 7. In the circumstance this Court finds, the challenge of the Licensee on the ground that there has been exercise without jurisdiction and contrary to agreement remain unsustainable. Coming to the other grounds taken by the Licensee that the order of the Ombudsman remains perverse, learned counsel for the Petitioner failed in bringing any material to satisfy its such contention and abandoned such contention . 8. Coming to the allegation of the Petitioner that there has been deciding of non-existing issue reading the contentions of the parties involving the Ombudsman, there appears, there is clearly appearance of issue on classification. It is only after threadbare discussion on contentions of the parties, the Ombudsman being supported with highly technical personnel came to give its findings. This Court reading the entire judgment passed by the Ombudsman vide Annexure-6 impugned herein finds, there is reproduction of claim of both parties, there has been also observation of the plea of the parties Page 9 of 10 // 10 // strictly in terms of the claim of the parties. Further there has been also taking into account the required provisions under the Regulation particularly Regulation-138(f) of OERC Distribution (Conditions of Supply) Code, 2019 and the ultimate direction arrived strictly in terms of the claim of the parties involved therein as well as following the provision of law. Further also taking into serious note of the condition in the agreement as well as the plea of respective parties, this Court finds, there is no perversity in the finding or going away from the case by the Ombudsman. The Writ Petition fails on all three counts raised herein by the Licensee and leaving no scope to interfere with the order of the Ombudsman. 9. With this observation, the Writ Petition stands dismissed. (Biswanath Rath) Judge (M.S.Sahoo) Judge S.Dash SWARNAPRAVA DASH Digitally signed by SWARNAPRAVA DASH Date: 2023.05.17 11:32:43 +05'30' Page 10 of 10