Tabrej Khan vs Deputy Manager-Cum-S.D.O.
2023 Latest Caselaw 2406 Ori

        ORISSA HIGH COURT : C U T T A C K
                      W.P.(C) NO.1376 OF 2014
                  An application under Articles 226 & 227 of
                       the Constitution of India.


Tabrej Khan                                       : Petitioner

                               -Versus-

Deputy Manager-cum-S.D.O., Electrical,
TATA Power Northern Odisha Distribution Ltd.
(TPNODL), Bhadrak                            : Opposite Party



     For Petitioner                  : Mr.J.K.Khuntia, Adv.

     For O.P.                        : Mr.S.C.Dash, Adv.

                               JUDGMENT

CORAM :

JUSTICE BISWANATH RATH JUSTICE M.S.SAHOO

Date of Hearing & Judgment : 24.03.2023

1. The Writ Petition involves the following prayer :-

"In view of above facts and circumstances, the Hon'ble Court be pleased to admit the writ application, issue a rule NISI calling upon the Opp.Party to show cause as to why the writ application shall not be admitted and why the order/judgment dated 9.12.2013 passed by the Ombudsman-II in Consumer Representation Case No.OMB (II) (W) 63 of 2013 vide Annexure-5 and the communication of the Opp.Party and revised energy bill dated 19.12.2013 vide Annexure-6 series shall not be quashed.

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If the Opp.Party fails to show cause or show insufficient cause, Your Lordships' be pleased to issue a writ of certiorari in quashing the order/Judgment dated 9.12.2013 passed by the Ombudsman-II in Consumer Representation Case No.OMB(II) (W) 63 of 2013 vide Annexure-5 and the communication of the Opp.Party and revised energy bill dated 19.12.2013 vide Annexure-6 series.

AND further be pleased to issue a writ of mandamus directing the Opp.Party to revise the energy bill @ 627 units per month from February, 2008 to November, 2012 as per Regulation 97 of the O.E.R.C.(Distribution & Conditions of Supply) Code, 2004.

And further be pleased to direct the Opp.Party to pay the arrear outstanding dues forthwith.

And further be pleased to pass any other order(s) as would be deemed fit and proper by this Hon'ble Court in the interest of justice."

2. Factual background involved in this case is, the Petitioner's

mother being a Consumer provided with electricity, vide Consumer

No.BC-4197, A/c.No.421105160168 and was categorized under the

commercial tariff category. It is claimed, while the Consumer was

making payment for the energy bills regularly by obtaining money

receipts, after the death of the Consumer, Asmatun Bibi on 18.5.2008,

Petitioner being the son of her successor continued to enjoy the electricity

under the same consumer code. While continuing as such, it was found,

the meter installed in the premises of the Consumer went defective. As a

consequence, the Petitioner made written complain to the O.P. for

correction of energy bills while also requesting for replacement of the

defective meter. The Petitioner alleges, instead of replacing the meter,

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there was raising of arbitrary energy bill and bill was issued on 24.1.2012

amounting to Rs.2,59,180/-. The Petitioner on receipt of the revised bill

requested for revision in the bill and also for adjustment of the payment

already made on 30.6.2011, 13.12.2012 and 31.12.2011. It is alleged,

instead of revising the energy bill, the O.P. remained silent rather went on

threatening to disconnect the power supply in absence of clearing of the

bill pending. Finding no way out, the Petitioner approached the District

Consumer Redressal Forum, Bhadrak. It is averred, notwithstanding the

order passed by the District Forum not to disconnect the power supply,

the O.P. disconnected the power supply from the premises of the

Petitioner.

3. Being aggrieved by the above action of the O.P., the Petitioner

approached this Court in W.P.(C) No.14034/2012 challenging the energy

bill. This Court in disposal of the Writ Petition directed the Petitioner to

approach the G.R.F. On 14.9.2012, the O.P. issued another bill

demanding Rs.4,56,498/-. Petitioner challenged the earlier demand as

well as the demand herein above by approaching the G.R.F. requesting

the G.R.F. to set aside the energy bill and for directing the O.P. for

providing revised energy bill while also directing re-connection of power

supply. The Petitioner approached the G.R.F. in C.C. No.237 of 2011,

vide Annexure-1. Upon a detailed reply being filed and completion of

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hearing by order dated 21.11.2012, the G.R.F. disposed of the matter

directing revision of the disputed bill from February, 2008 to August,

2011 and from December, 2011 to November, 2012 in terms of

Regulation 97 of the O.E.R.C. (Distribution & Conditions of Supply)

Code, 2004. It is after receipt of the order of the G.R.F. dated 21.11.2012,

the O.P. communicated on 5.6.2013 to revise the energy bill withdrawing

a sum of Rs.2,40,442/- and directed for payment of Rs.1,99,169/- with

further caveat, unless the demand is met, there shall be disconnection of

power supply within fifteen days appearing at Annexure-2. Challenging

the revised energy bill and disconnection threatening dated 5.6.2013, the

Petitioner approached the Ombudsman-II. The Ombudsman-II being

convinced remanded the matter to the G.R.F. with direction to issue

notice to both parties regarding correctness of the revised bill prepared by

the O.P. as per the order dated 21.11.2012 passed in Consumer Complaint

Case No.237 of 2012 with further direction to resolve the dispute within a

period of one month, copy of which is available at Annexure-3. It is in the

remand of the proceeding, the G.R.F. disposed of the matter afresh on

15.8.2013 with plethora of directions, as quoted at Paragraph-7 of the

Writ Petition. It is here claimed by the Petitioner that during pendency of

the matter before the G.R.F., a further revised bill was submitted revising

the energy bill for the period from February, 2008 onwards @ 780 units

per month up to November, 2012 and from December, 2012 on the basis

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of actual meter reading on installation of a new meter on 20.11.2012

demanding the bill to the tune of Rs.2,13,584.71 finds place at Annexure-

4. The Petitioner again approached the G.R.F. against the revised bill at

Anexure-4, vide Consumer Representation Case No.OMB(II)(W) 63 of

2013. This matter being argued was disposed of directing issuing plethora

of directions but however the revised bill was directed to be issued taking

into account the meter reading from 11.10.2012 to 3.6.2013 holding it to

be more reasonable. The Petitioner being aggrieved by the above order

approached the Ombudsman-II, which passed order directing to revise the

energy bill from February, 2008 to 10.10.2012. Copy of the judgment

dated 9.12.2013 is at Annexure-5 giving rise to filing of the present Writ

Petition.

4. In course of hearing, Mr.Khuntia, learned counsel for the

Petitioner bringing to the notice of this Court the provision of Regulation

97 of the O.E.R.C. (Distribution & Conditions of Supply) Code, 2004

submits, as per the aforesaid provision, the billing pattern should be

taking into account at least three months average of installation of a new

meter. Mr.Khuntia in reference to the provision of Regulation 97 of the

O.E.R.C. (Distribution & Conditions of Supply) Code, 2004 alleges, for

there is clear provision preparing revised bill taking three months

average, the impugned order directing revision of bill on the basis of

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meter reading from 11.10.2012 to 3.6.2013 appears to be contrary to the

provision and thus claims demands on such erroneous basis out to go. It is

in the circumstance, Mr.Khuntia, learned counsel for the Petitioner prays

for interference in the impugned order.

5. Mr.Dash, learned counsel for the O.P. (Licensee) taking this

Court to the plea of the Licensee before the Forums already deciding the

matter contends, there is no dispute that the defect period remaining from

February, 2008 to 10.10.2012. Even though the Authority had a decision

at some point of time to revise the bill @ 780 units per month but

however looking to the reasoning of the Competent Authority taking a

decision taking into account long period, the defective bill involved has a

reasonable assessment in giving opportunity to the Licensee to adopt

average bill taking into account at least six months meter reading.

Mr.Dash, therefore attempted to support the impugned order.

6. Considering the rival contentions of the Parties, this Court

finds, the case has a checkered career. Undisputedly, the defect bill

remaining from February, 2008 to November, 2012 almost more than

four and half years. The Petitioner also in the meantime has undertaken

number of legal proceedings. At the initial stage, there have been some

decisions went up to the Ombudsman-II and the Ombudsman-II being

satisfied with the grievance of the Petitioner remitted the matter to the

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original stage. Then there has been again disposal of a G.R.F. proceeding

again undertaking an exercise of the Ombudsman-II. This Court finds, the

Petitioner is in the habit of holding over the pending bills in some way or

other by getting the matter pending at the dispute stage. It is here taking

into consideration the period of bill remaining for more than four and half

years, this Court taking into account the totality finds, the Competent

Authority has come to observe as follows :-

"d) Although Regulation-97 of OERC Supply Code 2004 provides to revise disputed bills by putting monthly average consumption of three billing cycles of the new meter, but in the present se as the matter relates to many years and if the Regulation-97 will apply then it will limit the consumption considering a period within the winter season only, without taking into consideration of consumptions for summer season. The average consumption of 780 units so arrived by the Respondent for revision of bills by taking meter readings from 11.10.2012 with IR-01 unit to 03.06.2013 with FR-6081 units, appears to be more reasonable to this Forum than the Petitioner's demand to strictly follow Regulation-97 of OERC Supply Code 2004 to extend benefit of average consumption restricted to the winter season only."

7. Even taking into consideration the statutory provision through

Regulation 97 of the O.E.R.C. (Distribution & Conditions of Supply)

Code, 2004, while keeping in view the period of defective bill stretching

over four and half years, the claim of the Petitioner to take assessment on

the basis of three months that too in winter season alone does not sound

well, as defective period is inclusive of billing in summer, rainy and

winter season and comes through all the seasons available. Undisputedly

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there is different quantum of consumption but dependent on season. The

impugned order appears to have been passed in winter season on

9.12.2013, may be the intention of the Petitioner is to take the meter

reading in winter season, which will be undisputedly going extremely at

lower side. In the circumstance, for the Competent Authority taking at

least six months average including one pick season, this Court finds, basis

of assessment remaining fair and not to the prejudice of either the

Licensee or the Consumer, Petitioner will still get some benefit and such

manner of assessment will be the rightest approach in assessment of the

meter reading.

8. In the circumstance and for direction involving a reasonable

and fair assessment, this Court while observing that there is no wrong in

such assessment, also observes, there cannot be any prejudice to the

Petitioner looking to the period of defective bill involved stretching over

four and half years.

9. This Court here finds from the revised bill at Annexure-6 that

while withdrawing the energy bill of Rs.2,77,182.41, there has been fresh

bill amounting to Rs.1,46,524/-. By virtue of the interim order dated

28.1.2014, the Petitioner was directed to deposit a sum of Rs.60,000/- to

avail continuing of power supply. There is no material forthcoming as to

whether the Petitioner has deposited as per the interim direction of this

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Court but Mr.Khuntia, learned counsel for the Petitioner submits, there is

uninterrupted power supply to the Petitioner-Establishment. This Court

makes it clear that in the event the Petitioner has already deposited the

amount as directed, as an interim measure, the Petitioner is directed to

deposit the balance amount of Rs.86,524/- (rupees eighty six thousand

five hundred twenty four). Considering the balance amount is kept

suspended from 28.1.2014, the Petitioner is also to deposit the balance

amount along with interest @ 5% per annum all through. Le the balance

amount along with interest be deposited within fifteen days from the date

of communication of this judgment. Provided the Petitioner has not made

the deposit as per the interim direction herein, he is to deposit the whole

bill amount along with interest @ 5% per annum for the period raising of

bill and till deposit is made within fifteen days hereafter.

10. With the aforesaid direction, the Writ Petition stands disposed

of. In the circumstance, there is no order as to costs.

(Biswanath Rath) Judge

(M.S.Sahoo) Judge

Orissa High Court, Cuttack.

The 24th March, 2023/M.K.Rout, A.R.-cum-Sr.Secy.