The Executive Engineer ... vs Grievances Redressal Forum (Grf) ...
2023 Latest Caselaw 3757 Ori

         A.F.R
                   ORISSA HIGH COURT : C U T T A C K
                                W.P.(C) No.25586 of 2014
                          An application under Articles 226 & 227 of
                                   the Constitution of India


         The Executive Engineer (Electrical)                : Petitioner
         NESCO

                                          -Versus-

         Grievances Redressal Forum (GRF) & Anr.            : Opposite Parties



         For Petitioner                               : M/s. S.C. Dash,
                                                             S.P. Panda
         For Opposite Party No.1                      : None

         For Opposite Party No.2                      : Mr. F.R. Mohapatra

                                          JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S. SAHOO Date of hearing & Date of Judgment : 19.04.2023

Per Biswanath Rath, J.

1. Heard the submission of Mr. Dash, learned counsel for Petitioner and Mr. Mohapatra, learned counsel for Opposite Party No.2.

2. This Writ Petition involves a challenge to the order of the G.R.F., Jajpur Road dated 25.06.2014 in C.C. No.26 of 2014.

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3. Limiting his challenge to the extent to the direction part (iii) in the ordering portion of the impugned order Mr. Dash, learned counsel for Petitioner taking this Court to the plea of the licensee in the authority below and further taking support of the agreement claimed to be at the instance of the consumer undertaking sharing of the transformer loss to be made by both consumers attempted to contend that once there is agreement between the parties to avail the H.T. power supply and for the availability of sharing agreement at the instance of the Petitioner, the licensee is bound to pay the licensee the transformer loss.

4. This Court finds, there is no filing of original agreement between the licensee and the consumer, however, both the parties admitted, even though there is agreement to provide the consumer on H.T. metering side but there has been providing of L.T. metering side. Learned counsel for Opposite Party even brings to the notice of this Court that the tariff at L.T. metering side not only includes the transformer loss but at a higher side but the tariff at the H.T. metering is at much lower side.

5. Considering the challenge of the licensee to that part of the order at paragraph (iii) of the impugned order, this Court finds, the consumer has the following claim on transformer loss aspect taken note by the GRF in the impugned order at Annexure-3.

<1. Sri Harshabardhan Jena vide Cons. No.-1592M at Aruha was taken power supply of CD 69 KW with HT supply and own 100 KVA/11 KV transformer which was reduced to 42 KW later. Agreement was made in June 1994. Accordingly, transformer loss of 730 unit was added in his bill due to HT supply and LT metering. His bill was correct upto January 2002 and after that wrongly his transformer loss was added 365 unit per month and debited a sum of Rs.275370.00.=

6. In the GRF the consumer had also the following plea:-

<2. That initially the contract demand was 35 KW which was enhanced to 42 KW.

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3. That from one 100 KVA 11/0.4 KV transformer of the Respondent, the Petitioner along with another consumer Sri Ramesh Chandra Jena is availing power supply whose contract demand is 37KW. For such reasons bills up to 10/2012 was on LT (MI) tariff against the Petitioner.

4. That without any notice to the Petitioner bills served on him on HT (MI) tariff with transformer loss of 365 units per month with effect from 11/2012.=

7. In response the licensee-Opposite Party therein in his counter affidavit stated as follows:-

<1. Sri Harshabardhan Jena vide Cons. No.-1592M at Aruha was taken power supply of CD 69 KW with HT supply and own 100 KVA/11 KV transformer which was reduced to 42 KW later. Agreement was made in June 1994. Accordingly, transformer loss of 730 unit was added in his bill due to HT supply and LT metering. His bill was correct upto January 2002 and after that wrongly his transformer loss was added 365 unit per month and debited a sum of Rs.275370.00.

2. On December 1999 his own brother Sri Ramesh Chandra Jena (Cons.No.-1851 M) taken power supply from the existing 100 KVA 11/0.4 KV transformer with a CD of 37 KW, for this reason original owner Sri Harshabardhan Jena given a affidavit regarding his no objection to power supply. Both parties also agrees to bear the transformer loss equally @365 units per month for this regard a undertaking was given by them on dt.20.09.1999.=

3. That the brief fact leading to filing of this Petition are stated herein below for kind appreciation of his Learned Forum:-

(i) Transformer Loss:- The Petitioner Sri Harshabardhan Jena entered in to an agreement on 6th June 1994 to avail HT power supply of CD 69 KW through his owned 100KVA/11 KV transformer, which was subsequently reduced to 42 KW in 11th October, 1999 after observance of due formalities, and avail the HT power supply through LT metering. Accordingly transformer loss of 365 units was clubbed in each month due to HT supply and LT metering till January 2002 and thereafter, this transformer loss of 365 units has not been levied, inadvertently, Upto October 2012.=

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From the above plea this Court again finds, there was undisputedly bill at L.T. meter side from 1994 till 2002.

8. Mr. Dash, learned counsel for Petitioner taking this Court to the plea of the licensee all through in the GRF proceeding and on reiteration of the response taken note hereinabove, while not disputing that the consumer was provided with L.T. metering as they were not in a position to provide H.T. metering, however, taking cue of the agreement between the parties involving asking of the consumer to get H.T. metering connection and since the H.T. metering connection includes a claim of transformer loss, Mr. Dash, learned counsel for Petitioner attempted to justify the claim of the licensee and thereby submitted that the findings arrived at on this issue by the GRF becomes erroneous and thus prays this Court for interfering in this part of the order.

9. Mr. Mohaptra, learned counsel for Opposite Party No.2 on reiteration of the stand of the consumer before the authority attempted to justify the impugned order. Mr. Mohapatra, learned counsel took us to the pleadings of consumer in the Forum below and attempted to satisfy that there is illegal discharge of responsibility by the licensee, which has been rightly brought in order by the GRF.

10. It appears, taking into account the rival contentions of the parties the GRF on the aspect of transformer loss has made the following observation:-

<2. That in reply to Para-2 of the objection, it is to state that the Respondent has filed his objection without any application of mind. He should go through the Regulation-93(9) of OERC Distribution (Conditions of Supply) Code, 2004 again. Such a provision i.e. HT consumer with LT meter is a temporary arrangement where a HT metering cannot be readily provided.

Moreover 730 units as transformer loss per month is against a 100 KVA 11/0.4KV transformer is based with power supply to such transformer for 24 hours & 365 days a year. Such a situation is just impossible in any system of any Distribution licensee of the

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state. For change of such metering system, there is also a provision under Regulation-54(3) of OERC Code 2004 which reads as below:

<54(3). In the case of all new high-tension supplies, HT metering units shall be provided and installed. In case where LT metering unit is provided at LT side, all LT metering units shall be converted to HT metering units.= Perhaps there is no reply by the Respondent as to why during such long spell of time i.e. 19 year, why metering set was not changed to HT metering set in contravention to such provisions of law. Such a matter was discussed at Para-2 dt.15.04.2004 of Petitioner's rejoinder to objection dt.18.02.2014 of the Respondent. The applicability of a mandated provision of law is automatic in nature for which the consumer need not apply. Hence the objection denied.

3. That in reply to Para-3 of the objection, it is to state that the question of brother or any relation doesn't arises if power supply is separate. Sri Ramesh Chandra Jena, Consumer No. 1951(M) is having his own identity as a LT consumer when he is availing power supply from a sub-station which is not of his own. So billing from a transformer where more than one consumer are there, transformer loss cannot be charged. Thelicensee was not in a position to render such power to Sri Ramesh Ch. Jena, Consumer No. 1857(M) from their own LT system. The load of Sri Ramesh Ch. Jena is 37KW. Such consumer is entitled for LT supply of the licensee's LT system as per Regulation-76(1)(c). When a consumer's transformer is being loaded by the licensee with a load of another consumer, then transformer loss cannot be imposed that too for an indefinite period. As per Affidavit of Sri Ramesh Ch. Jena is concerned, it is without any confirmatory to rules and regulations in force.

It is well settled fact that any contract /agreement contrary to law is void no-nest in the eye of law. This is as per Section-56 of the Indian Contract Act, 1972, which reads as below:

<56. Agreement to do impossible act-An agreement to do an act impossible in itself is void.

Contract to do act afterwards becoming impossible or unlawful- A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.= As per Regulation-93(9) & 54(3) of Code, 2004, the Petitioner is liable to avail power supply through a HT metering set. Under the present circumstances the Respondent cannot provide a HT meter to the Petitioner which contravene the Regulations in force. Hence agreement for HT supply with the Petitioner is impossible to act under such provision of Act. Here such an agreement becomes impossible hence void. Such an agreement on

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HT voltage is to be treated as LT voltage agreement to make it possible. So the question of transformer loss does not arise. Hence the objection denied.=

11. It is on the above clear background, this Court finds, even though there has been agreement between the parties to provide H.T. metering to the consumer, however, the consumer was provided with L.T. metering; may be by way of temporary arrangement on the footing that the H.T. metering cannot be readily provided. It is for the undisputed fact that the consumer was provided with L.T. metering and for there is difficulty on the part of the licensee to provide H.T. metering, the claim of the licensee involving the transformer loss, being an independent attachment with the H.T. metering, has been rightly denied. It is strange to observe here that though vide agreement licensee consented to provide H.T. metering since 1994, the consumer is provided with power at L.T. metering side and there is no replacement of such meter nearly two and half decades.

12. It is, in the above background, this Court finds, there was L.T. metering arrangement to the Petitioner's premises and as there has been charge of tariff undisputedly at higher side in the L.T. metering and as such tariff also includes the transformer loss, in the event we accept the plea of Mr. Dash, learned counsel for Petitioner-the licensee, we are of the opinion that there will be double collection on account of transformer loss. Besides this on the perusal of the impugned order this Court again finds, in considering the above aspect there not only involves two of the technical experts from the licensee side in the three members body of the GRF in the consideration process, but the authority has also taken into account the provision at Section 56(2) of the Electricity Act, 2003 and further also at Section 56 of the Indian Contract Act, 1972 before coming to its logical conclusion.

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13. It is, in the whole background of the matter, this Court finds, the order of the GRF is justified requiring no interference in the same. This Court again here taking into account the order/judgment of this Court dated 26.08.2022 passed in W.P.(C) No.12735 of 2019 involving NESCO the erstwhile Petitioner establishment finds, the observation of the Division Bench through paragraph nos.22, 23 & 24 reads as follows:-

<22. The observation, as referred above, is grossly erroneous as there is no controversy that the consumer has been drawing the electricity from HT line through their own dedicated transformer. When there was no HT meter, admittedly, before the transformer but only the LT meters was installed in the premises of the consumer after the transformer, the transformer loss is sought to be gathered by the formula provided under Regulation 93 (9) of the said Code, 2004 and only after acceptance of the said formula as the Condition of Supply, the supply commenced.

23. In this regard, we may refer to Regulation 54 (3) of the Code, 2004 which provides that in the case of all new high-tension supplies, HT metering units shall be provided and installed. In case where LT metering unit is provided at L.T. side, all L.T. metering units shall be converted to H.T. metering units. For existing L.T. metering units connected on the L.T side of the consumer's transformers, the reading of such metering units, shall be added with the average loss in the transformers calculated in terms of the formula given thereunder. As such, the opinion that no transformer loss can be charged on the consumer if it is below 70 KVA is without any tangible basis. Even it has not been demonstrated that the consumer had asked for reassessment on terminating the conditions of supply.

24. The petitioner as the Distribution Licensee started supplying Electricity confirming to the conditions of supply. Such finding of the GRF is therefore, interfered and struck down.=

14. This Court again from the submissions of both the parties finds, the L.T. metering continues for nearly fifteen years by the time the impugned order was passed and in the meantime another nine years have passed and the licensee is unable to put the H.T. meter in place. Further looking to the observation in sub-para-I of paragraph-3, this Court finds surprise to the fact that even after providing of opportunity to the licensee to provide the consumer with H.T. metering, unfortunately as on date there is no

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installation of H.T. metering inside the consumer's premises. This Court finds, there is no bona fide challenge involved herein at least to demonstrate that there exists loss to the licensee

15. This Court, in the above circumstances and as the above judgment wholly supports the claim of Opposite Party No.2, finds no scope to interfere in the impugned order herein.

16. Writ Petition stands dismissed. There is, however, no order as to costs.

           (M.S. Sahoo)                                  (Biswanath Rath)
              Judge                                          Judge

Orissa High Court, Cuttack.
The 19th day of April, 2023//
Ayaskanta Jena, Senior Stenographer