Orissa High Court

The Executive Engineer ... vs Raghunath Sahoo & Another on 20 January, 2023

                   IN THE HIGH COURT OF ORISSA AT CUTTACK



                                   RVWPET No.358 of 2022

         The Executive Engineer (Electrical) .........                   Petitioners
         TPCODL & Another.                                      Mr. S.C. Dash, Adv.


                                           -Versus-




         Raghunath Sahoo & Another                 ........             Opp. Parties
                                                                Mr. K.C. Dash, Adv.
                                         CORAM:
                                         JUSTICE S. TALAPATRA
                                         JUSTICE B.P. ROUTRAY
                                              ORDER

20.01.2023 Order No.

01. 1. This matter is taken up through Hybrid Arrangement

(Virtual/Physical Mode).

2. Heard Mr. S.C. Dash, learned counsel appearing for the

Review Petitioner.

3. Mr. K.C. Dash, learned counsel has appeared for the Opposite

Parties by filing the power.

4. This Review Petition has been filed challenging our common

Judgment and order dated 30.06.2022 delivered in WP(C) No.3568 of

2022 and WP(C) No.4260 of 2022.

5. In the writ petition No.4260 of 2022 which was filed by the

Review Petitioner, the following prayers were made:

"It is therefore humbly prayed that the Hon'ble Court may be pleased to Admit the Writ Petition, issue a rule-nisi calling upon the O.Ps specifically O.P. No.l to "show- cause" as to why the impugned orders vide Annexures-7 & 9 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 'rule' absolute & issue a Writ in nature of Mandamus / Certiorari or any other appropriate Writ/ Order quashing the

of 2021 by the G.R.F, Bhubaneswar vide Annexures-7 & 9 to this Writ Petition."

No other reliefs were sought by the Review Petitioner in the said writ

petition.

6. We have heard Mr. Dash, learned counsel and also scrutinized

the grounds as taken in the Review Petition. What transpires

therefrom is that according to the Review Petitioner, the GRF did not

have any authority to exercise the jurisdiction on an issue relating to

the penal bill, as imposed, as that is not covered by the minutes of

Odisha Electricity Regulatory Commission (OERC) [the practice-

direction] reflected in the Circular No. GRF-1/2004 dated 19th

October, 2004. The relevant part of which has been reproduced in the

impugned Judgment.

In Clause 2.3. the said circular, it has been provided that subject to the provisions of Electricity Act, 2003, Rules, Regulations, Notifications made thereunder, the Forum shall generally dispose of the complaints relating to defects or deficiencies in Electrical services as defined in relevant Regulations.

Few examples of the nature of the complaints are illustrated in the said circular.

Out of those illustrations, one illustration (v) reads as follows: "(v) Billing disputes (except penal bill u/s.l26 of the Electricity Act, 2003)"

7. According to Mr. Dash, learned counsel, the challenge of the

Opposite Party-Consumer was entirely against the penal bill as raised

under Section 126 of the Electricity Act. But that aspect was not

dwelled upon, by the impugned Judgment. Otherwise, the writ

petition ought to have been allowed by setting aside the orders of the

GRF (Annexures-6 & 7 to the writ petition).

8. Mr. Das, learned counsel in the course of submission has

stated that minutes are nothing better than the executive instructions

and further, it has been contended that what has been stipulated in the

said minutes comes in conflict to the principal Section in the

Electricity Act, viz. Section 126. Therefore, in the eye of law, the said

stipulation can have any force.

9. To buttress his submission, Mr. Das, learned counsel has referred a decision of the apex court in Kerala State Electricity Board Vs. Thomas Joseph Alias Thomas @ Thomas M. J. & Ors.: (Judgment dated 16.12.2022 delivered in Civil Appeal Nos.9252- 9253 of 2022. In that Judgment it has been held thus:

"That the Regulation 153(15) of the Code 2014 framed by the Commission is inconsistent with Section 126 of the Act 2003. If the Regulation 153(15) is to be given effect, then the same would frustrate the very object of Section 126 of the Act 2003. The High Court in its impugned judgment says that Regulation 153(15) does not lead to any loss of revenue. The stance of the Commission also is that there is no loss of revenue if the Regulation 153(15) is permitted to be operated. However, we are of the view that it is not just the question of loss of revenue. At the cost of repetition, we emphasis on the fact that overdrawal of electricity is prejudicial to the public at large as it may throw out of gear the entire supply system, undermining its efficiency, efficacy and even-increasing voltage fluctuations."

[Extracted from 2022 Livelaw (SC) 1034]

10. We would for our convenience take up the second objection

first. We have reproduced the relief as prayed in the writ petition at

the outset. It is apparent therefrom that no such challenge was at all

thrown in the writ petition, questioning the validity or vires of the

executive instructions as circulated for purpose of determining the

areas of jurisdiction of GRFs etc. As such, we cannot permit the

Review Petitioner to expand the scope of the writ petition by filing a

Review Petition. However, it has been clearly provided in the circular

dated 19.10.2004 that all those instructions are subject to the

provisions of the Electricity Act, 2003, Rules, Regulations and

Notifications made thereunder. Hence, the decision of the apex court

cannot have any ramification in the context of this case. The said

challenge, therefore, stands rejected.

11. So far the first objection, as taken in the Review Petition is

that GRF did not have any jurisdiction to adjudicate a dispute relating

to the penal. As it falls squarely within the ambit of Section 126 of the

Electricity Act. In this regard, the Review Petitioner raised his

objection before GRF also. GRF has given clear observation in

respect of that objection. For purpose of reference only, we reproduce

the said observation:

"But on observation it is found that the assessing officer SDO (Comm) has served the penal bill amount of Rs.2,27,908/-

under 126 of the Act violating the Clauses from 159 to 160,162 and OERC Regulation, 2019. The Physical

verification report submitted by the enforcement squad is itself an ambiguous one lacking truth for registration of the case under Clause-126 and not legal, tenable and not at all an authentic repot as per the observation made by this Hon'ble forum. mentioned in the order copy of this forum vide CC No.193/2021, The report of such verifying Officer itself sufficient testament to reveal & establish the fact that the old meter is running OK and is out of any suspicion for tampering. Therefore, as the respondent could not submit the concrete evidence during the hearing against the complainant on tampering of the meter in line with the relevant Clauses of OERC Regulation, 2019. The final assessment bill of Rs.2,27,908/- served by the assessing officer is found to be illegal & unacceptable to this Hon'ble Forum.

Therefore, this Hon'ble Forum observes that, the concerned SDO (Commerce) as Respondent No.(IV) is liable to rectify his overlook made on the facts cited in the verification report of the concerned verifying officer, to serve the complainant a revised bill on the basis of correct information's furnished in the said PVR as there is no proof to establish the nature of tampering in the report, which is wrongly remarked by the said verifying officer & accordingly a correct revised bill be served to the complainant for full & final clearance of his dues if any & adjust the excess amount if any paid by the

complainant in his subsequent monthly electricity bills.

The assessing officer is also free to visit the complainant's premises to make a re-

verification of the complainant's commercial premises by serving due notice to that effect or by taking the maximum demand (MD) derived from the new static meter already installed to make a final assessment of the bill, if the said new meter is found to have any trace or tampering or bypassing there."

[Emphasis Added]

12. GRF has clearly observe that this is a composite dispute and

accordingly, the assessing officer is also free to visit the

complainant's premises to make a re-verification of the complainant's

commercial premises by serving the due notice to that effect or by

taking the maximum demand (MD) derived from the new static meter

already installed to make a final assessment of the bill, if the said new

meter is found to have been tampered.

13. In no uncertain terms, it has been observed that the

verification report is visited by certain undue observation. Hence, the

dispute is not confined to the penal bill only. The penal bill falls

squarely within the ambit of Section 126 of the Electricity Act, 2003.