Partly allowed

Executive Engineerelectricalnesco v. Raju Gopal Sahu@Sahoo

Orissa HC3 Apr 2023WP(C)/12732/2015

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition by a consumer seeking load enhancement and compensation, holding that the licensee was not liable where technical constraints prevented supply at the existing transformer and the consumer had drawn excess power in violation of statutory regulations.

What did the court decide?

Ombudsman's judgment dated 10.02.2015 set aside; writ petition allowed against the consumer; consumer dismissed; licensee directed to enhance load only if consumer complies with supply conditions.

Executive Engineerelectricalnesco Vs Raju Gopal… — Service and Employment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 12732 of 2015

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An application under Articles 226 and 227 of the Constitution of India

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The Executive Engineer (Electrical) NESCO Central Electrical Division, Balasore ..…. Petitioner

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-versus-

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Raju Gopal Sahu @ Sahoo …… Opposite Party
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For the Petitioner : Mr. S.C. Dash, Advocate
For the Opposite Party : Mr. F.R. Mohapatra, Advocate
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W.P.(C) No. 6033 of 2015
Raju Gopal Sahoo ..…. Petitioner
-versus-
The Executive Engineer (Electrical)
NESCO Central Electrical
Division, Balasore …… Opposite Party
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For the Petitioner : Mr. F.R. Mohapatra, Advocate
For the Opposite Party : Mr. S.C. Dash, Advocate
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CORAM:

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HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 3^rd April, 2023

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S. Talapatra, J. These writ petitions being W.P.(C) No.6033 of 2015

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[Raju Gopal Sahoo v. The Executive Engineer (Electrical),

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NESCO, Central Electrical Division, Balasore] and W.P.(C)

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No.12732 of 2015 [The Executive Engineer (Electrical) NESCO, Central Electrical Division, Balasore v. Raju Gopal Sahu @ Sahoo] are combined for disposal by a common judgment, in as much as in both the writ petitions, the judgment dated 10.02.2015 as passed in Consumer Representation Case No.OMB (II) N-54 of 2014 has been challenged, but on different grounds.

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The writ petition being W.P.(C) No.6033 of 2015 has

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been filed by the consumer, whereas the writ petition being W.P.(C) No.12732 of 2015 has been filed by the NESCO, the distributing licensee supplying electricity to the premises of the said consumer. There is no dispute that, the consumer has

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been running a Crusher Unit in the name and style of M/s. Raja Stone Product at Somanathpur Industrial Estate, Balasore. According to the consumer, his unit falls within the category of Medium Industrial Category. His Contract Demand was 38 KW since August, 2010. During the year 2012, the maximum demand had increased, for which the consumer had requested for enhancement of load in the year 2013. But, the Opposite Party No.2 in W.P.(C) No.6033 of 2015 did not take any action on the said request, the consumer filed a complaint case in the Grievance Redressal Forum (GRF in short), Balasore being the Complaint Case No.86 of 2014. The said complaint case was disposed of by the order dated 23.05.2014. Challenging the said order dated 23.05.2014, the consumer filed a Consumer Representation Case. Having heard the parties, OMBUDSMAN-II Odisha

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Electricity Regulatory Commission, Bhubaneswar by the judgment dated 17.09.2014, has disposed of the said Consumer Representation case with the following directions:

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“ 1. The Respondent is to calculate the meter rent recovered so far and refund the excess recovery over the landed cost of the meter to the petitioner.

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2. The Respondent is to take immediate steps to enhance the contract demand of the petitioner as applied by him.

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3. Regarding the matter under Section 126 of the Act, the petitioner is to approach the Appellate Authority within 30 days from the date of issue of this order.”

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NESCO had been directed to act accordingly within 30 days from the date of receipt of the letter of acceptances

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from the petitioner and to report compliance to the Forum

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within 45 days.

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It appears that in pursuance to the Regulation 10(6) of the OERC (GRF & Ombudsman) Regulation 2004, the consumer has submitted the letter of acceptance of the award dated 17.09.2014 (Annexure-9 to the writ petition being W.P.(C) No.12732 of 2015) by stating that, he has accepted

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the said award/order as full and final settlement of his claim. It further appears that by the communication dated 10.02.2015 (Annexure-8 to the writ petition being W.P.(C) No.12732 of 2015), the Deputy Manager (Electrical) informed the consumer that, he had not submitted the requisite documents for processing the proposal. The consumer had submitted the

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load enhancement proposal along with the following

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documents:

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i. Load details

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ii. Willingness of the enlisted contractor

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iii. Application form iv. Processing fees

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v. Copy of the last payment receipt

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The consumer had challenged that order dated 17.09.2014 by filing a writ petition being W.P.(C) No.24566 of 2014, as the OMBUDSMAN-II did not direct the Opposite Party No.2 the Executive Engineer (Electrical), NESCO as contemplated under Regulation 5 of the Orissa Electricity Regulatory Commission (Licensees’ Standards of Performance) Regulations, 2004. It had been alleged in the said writ petition that the said Executive Engineer, NESCO

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did not take any step to enhance the Contract Demand of the consumer. The said writ petition was disposed of by the order

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dated 18.12.2014 by observing inter alia as follows:

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“Considering the nature of grievance, the writ petition is disposed of directing that in case the petitioner files an application along with certified copy of this order and a copy of the writ petition before opp. party no.1-

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OMBUDSMAN, OERC in the above said consumer representation ventilating his grievance as made out in this writ petition, opp. party no.1-OMBUDSMAN, OERC shall proceed to pass order on the application in accordance with Regulation 5 of the above said Regulations after giving opportunities of being heard to the parties within a period of six weeks from the date of filing of the application.”

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The matter was accordingly, remanded to the

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OMBUDSMAN-II. On remand, the matter was taken up for

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fresh hearing.

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According to the consumer, he had applied for the enhancement of the Contract Demand from 42 KVA to 71 KVA with all requisite documents to the distributor licensee, in compliance of Regulation 72 of the OERC Distribution (Conditions of Supply) Code 2004. But no intimation, in respect of the enhancement proposal, was received by the consumer. The core grievance of the consumer is that, the distribution licensee was not taking notice of the request for enhancement of the load and continued to regularly impose penalty under Section 126 of the Electricity Act 2003 towards overdrawal of power. Per contra, the distribution licensee, the writ petitioner of W.P.(C) No.12732 of 2015 has contended

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that, as per the Regulation-53 of OERC Distribution (Conditions of Supply) Code 2004, prior approval of the licensee has to be taken for increase in the connected load, but

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the consumer has not availed prior approval of the licensee. Thus, the consumer has violated Regulation 53 of OERC Distribution (Conditions of Supply) Code 2004. The licensee has further contended that as per the Regulation 106 of the OERC Code 2004, no consumer shall make use of power in excess of the approved contract demand . Against the contract demand of 38KW, the consumer was drawing power more than 64 KW. Hence, according to the licensee, he had violated the Regulation 106 of the OERC Distribution (Conditions of Supply) Code 2004. The overdrawal of power above the contract demand is treated as unauthorized use of power and

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penalty is imposed under Section 126 of the Electricity Act 2003. The licensee has further contended that the consumer has been given power supply from the existing NESCO 500KVA, 33/4KV transformer. The said transformer is overloaded and the enhanced load cannot be supplied from the existing transformer. The Somnathpur structure has been

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handed over to NESCO. 11KV line has been extended to all industries from the Somnathpur structure. Hence, it has been contended further that the consumer can avail power from 11 KV line by constructing his own sub-station and observing the departmental formalities through the dedicated transformer as an industrial consumer.

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The OMBUDSMAN-II has observed in the judgment dated 10.02.2015 that the consumer’s application for enhancement of load had been pending since February, 2013. The distribution licensee has stated before the GRF that from the existing transformer, the enhanced load cannot be supplied. That can only be supplied from the 11KV structure. The OMBUDSMAN-II has not accepted that clarification, as there had been no formal order or communication on the application filed for the enhancing the load. The licensee was silent over that issue for two years. Regulation 73 of the OERC Code 2004 provides as follows:

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An application for the enhancement of the contract demand may be rejected if –

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(1) the additional power cannot be supplied at the existing voltage of supply of the licensee and the consumer is not willing to avail the power at higher voltage at which licensee is able to supply in accordance with Regulation 76 of this Code or

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(2) the consumer is not agreeable to bear that part of the estimated cost of necessary additions or alterations in the system as is required to make it remunerative according to the norms fixed by the licensee with the approval of the Commission, or

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(3) the consumer is in arrears of payment of licensee’s dues

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The OMBUDSMAN-II has, by his order dated 17.09.2014, directed the licensee to take immediate steps to enhance the contract demand of the consumer. But, no action has been taken on that direction as yet. In this perspective fact, the OMBUDSMAN-II has directed the licensee to take immediate steps to enhance the contract demand of the consumer. Further, the distribution licensee had been directed

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to pay compensation at the rate of Rs.100/- per day to the Petitioner within 30 days from the date of issue of that order. The said compensation was directed to be paid by the

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concerned officer, who is responsible for the said delay. The said order of the OMBUDSMAN-II is under challenge in both the writ petitions, as aforementioned. The reason of challenge by the consumer can be gathered from the very prayer made in the writ petitions. The consumer has urged this Court to set aside the award and judgment dated 10.02.2015 partly (Annexure-3 to the writ petition being W.P.(C) No.6033 of 2015) and to direct the licensee to pay the consumer, statutory compensation, as provided in the OERC Code, 2004 for delaying the enhancement of load. The licensee has been further directed to provide the enhanced load from the existing transformer by quashing the letter dated 31.01.2015 and 10.02.2015, Annexures 4 and 5 to the writ petition being W.P.(C) No.6033 of 2015.

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The ground of challenge by the licensee in the writ petition being W.P.(C) No.12732 of 2015 is that the judgment dated 10.02.2015 has been passed illegally, arbitrarily and contrary to the provision of law viz , Orissa Electricity Regulatory Commission (Licensees’ Standards of

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Performance) Regulations 2004. According to the licensee, the

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said judgment dated 10.02.2015 is liable to be interfered with and set aside.

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Mr. S.C. Dash, learned counsel appearing for the licensee (NESCO) has contended that the allegation of the consumer is without any foundation. According to Mr. Dash, learned counsel, without approval as regards the change of the contract demand, the consumer, the Petitioner in the writ petition being W.P.(C) No.6033 of 2015, had started drawing the excess electricity beyond the contract demand. The consumer has admitted his enhancement demand and referred to the earlier letter dated 15.09.2012 for enhancing the contract demand from 38 KW to 64 KW, Annexure 2 to the writ petition being W.P.(C) No.12732 of 2015. The consumer has placed his demand again for enhancement of the existing Contract Demand (Load) and for execution of the agreement to that effect following the norms and conditions of NESCO (Licensee).

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According to the licensee, a due inspection was carried out by the Asst. Electrical Inspector, Government of

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Orissa, T & D, Balasore on 31.01.2013. It is found that from the existing network of the licensee, it will not be feasible to enhance the contract demand, for overloading of the transformer. It has been asserted by the licensee that the consumer had drawn excess load beyond the agreed contract demand of 38KW. By suppressing the non-feasibility, the complaint case was filed in the GRF. By the order dated 23.05.2014, the GRF has observed inter alia that, the forum has no jurisdiction to adjudicate the present case. As the complainant (the Consumer) had not been intimated about the status of the enhancement of the Contract Demand, the application for enhancement of the Contract Demand will remain in force, unless and until the status is communicated to the consumer officially, by the licensee. The licensee has been directed to assess the excess load consumption over and above

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the proposed Contract Demand proportionately from October, 2013 to February, 2014 and serve the final assessment order under Section 126 of the Electricity Act, 2003 to the complainant, the consumer. However, if the consumer is not satisfied with the final order of the licensee, he may appeal

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before the Appellate Authority under Section 126 of the Electricity Act, 2003. Having observed thus, the licensee had been directed to assess the excess load consumption over and above the proposed Contract Demand, proportionately from October, 2013 to February, 2014 and serve the final assessment order under Section 126 of the Electricity Act, 2003 to the consumer. As stated earlier, the said order of the GRF was challenged before the OMBUDSMAN, but the first order of the OMBUDSMAN had been set aside and remanded for reconsideration. According to the licensee, the writ petitioner in W.P.(C) No.12732 of 2015, the OMBUDSMAN cannot passed such order, in as much as in absence of any finding with regard to the licensee’s failure to meet the guaranteed standard of the performance specified in Schedule-1, imposition of compensation is bad and illegal. It

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is submitted for the licensee that Schedule-2 of the above Regulation contains the standards of the performance and Schedule-3 provides the levels of compensation. Those provisions have been completely ignored by the OMBUDSMAN. While opposing the writ petition being

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W.P.(C) No.6033 of 2015, the licensee in the reply has raised the similar objection.

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Having appreciated the submission of the learned counsel for the parties, according to us, the following pertinent questions emerge for our consideration:

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(i) Whether the licensee can be settled with any liability for not extending the proposed Contract Demand when such extension is not feasible? and;

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(ii) Unless the Contract Demand settled by way of an agreement whether the Consumer can unilaterally draw the excess electricity beyond the Contract Demand.

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(iii) Whether the licensee can assess the charges and loss for realizing from the consumer, if the consumer had drawn the excess electricity beyond the Contract Demand?

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But it is evident that on 30.01.2015, the Deputy

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Manager, Electricity, NESCO had asked the consumers to file the application along with documents as catalogued therein. It does not appear from any writ petition that the consumer had complied that requisition, even though it has been stated that the consumer had earlier submitted all the necessary

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documents along with processing fees. But the licensee kept silent over that issue for two years. They have processed that requisition only after the OMBUDSMAN had directed them to enhance the load.

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In Paragraph-9 of the writ petition being W.P.(C) No.6033 of 2015, the consumer has stated that the consumer had ultimately shut down the Unit, as he was unable to instal his own transformer, due to financial constraint. The consumer, has in response to the allegation, stated that, he had drawn the electricity from the existing transformer without any hindrance. The licensee was therefore under obligation to provide the requisite supply from their own transformer by virtue of different RST order.

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According to us, the observation of the

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OMBUDSMAN-II in the judgment dated 17.09.2014, in view

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of the order dated 18.12.2014 as delivered in W.P.(C) No.24566 of 2014 has lost all its imperatives, notwithstanding that the said judgment was challenged for not granting compensation to the consumer.

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So far as the contention of the consumer that the licensee is bound to supply the enhanced demand is not acceptable, in as much as Regulation 73 of the OERC Code, 2004, clearly postulates that the request for enhancement of the Contract Demand may be rejected on three grounds viz , (i) the additional power cannot be supplied at the existing voltage of supply and the consumer is not willing to avail the power at higher voltage. (ii) the consumer is not agreeable to bear the part of the estimated cost of necessary additions or alterations in the system, as is required to make it remunerative according to the norms fixed by the licensee with the approval of the Commission and (iii) the consumer is defaulter in payment of arrears of licensee’s due.

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However, the licensee has not claimed any arrears of payment from the consumer except the drawal of excess electricity beyond the Contract Demand. For that purpose, the assessment has been done and according to the assessment,

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the consumer has been advised to pay the cost of the electricity. It has been brought to our notice by the licensee

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that the consumer is not ready to bear the expenses for supplying according to the enhanced Contract Demand. Hence, the licensee cannot be made squarely liable for not supplying the enhanced Contract Demand. If from the existing transformer, the enhanced Contract Demand cannot be supplied, the licensee cannot be made liable by any means. It

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is further noticeable that the consumer has been drawing power more than 60KW (much higher than the Contract Demand i.e. 38KV) in violation of Regulation 106 of the OERC Distribution (Conditions of Supply) Code 2004. A defaulter cannot get the benefit of equity. Hence, we are of the considered view that the judgment of the OMBUDSMAN-II dated 10.02.2015 is unsustainable and consequently, it is set aside. Hence, prayer for compensation has become irrelevant.

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The direction of the OMBUDSMAN-II in this regard is also set aside.

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In the result, the writ petition being W.P.(C) No.6033 of 2015 is dismissed, whereas the writ petition being W.P.(C) No.12732 of 2015 is allowed.

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Before parting with the records, we do like to record

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our observation that, if the consumer comes forward to comply the conditions of supply, as reflected in the communication dated 31.01.2015, the licensee shall enhance the Contract Demand.

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