The Executive Engineer vs The Grievance Redressal
2023 Latest Caselaw 4991 Ori

        IN THE HIGH COURT OF ORISSA, CUTTACK

                        W.P.(C) No. 37135 of 2022

In the matter of an application under Articles 226 and 227 of the
Constitution of India.
                          ---------------------

The Executive Engineer, Electrical Bhubaneswar Electrical Division & another ........ Petitioners

-Versus-

The Grievance Redressal
Forum, TPCODL, BBSR
& another
                                             ........                        Opp. Parties

        For Petitioner                :     Mr. P.K. Sahoo, Advocate

        For Opp. Parties              :      None

                                            ------------------
P R E S E N T:

THE HONOURABLE SHRI JUSTICE BISWANATH RATH AND THE HONOURABLE SHRI JUSTICE M.S. SAHOO

----------------------------------------------------------------------------------------- Date of hearing: 03.05.2023 Date of Judgment : 03.05.2023

------------------------------------------------------------------------------------------

This matter was entertained by order of this Court

dated 13.01.2023 thereby directing notice on the contesting

opposite parties. From the office note, this Court finds there

has been already service of notice on the contesting opposite

party no.2. Despite service of notice, nobody is appearing on

behalf of the Opposite Party No.2, therefore, this Court is // 2 //

constrained to decide the matter in absence of Opposite Party

No.2.

2. The writ application involves challenge to the order

dated 07.4.2021 passed by the Grievance Redressal Forum

(in short, 'GRF'), Bhubaneswar in Consumer Complaint

(C.C.) No.168 of 2021 (Annexure-1). The consumer-opposite

party no.2 being the complainant, complained before the

GRF, specifically alleging that on 18.02.2021 at 2.00 P.M.

the petitioner-distribution licensee TPCODL verified meter

affixed in the premises involved and broke the seal of the

meter for checking of status of the meter. After doing so

petitioner submitted a physical verification report of the

meter to the consumer-opposite party no.2. The said report

was signed by both the parties. The complainant-opposite

party no.2 alleged he being illiterate signed the copy of report

without understanding the contents, however, with a

bonafide impression he will be getting justice from the staff

of the licensee before the GRF consumer claimed that the

meter though installed in December, 2020 was defective and

shall be replaced by them. In the meantime consumer

received provisional bill followed by final bill which he was

unable to pay and bringing the proceeding before the GRF a

request is made before GRF for appropriate order.

// 3 //

3. The petitioner-licensee-respondent no.2 on their

appearance before GRF indicated that during routine visit to

the premises on 18.02.2021 they found that the consumer

has availed power supply through a tampered meter, i.e., the

back side of meter body was cut and the actual metering was

obstructed.

4. During hearing the learned counsel for petitioner, this

Court records the licensee has not shown any material to

indicate the consent of the staff before the licensee broke the

seal of the meter.

5. It is in the above context of the matter, the GRF has

raised doubt regarding the claim of the licensee. However, to

find an appropriate resolution of the issue involved, the GRF

finally passed the order vide Annexure-1 directing the

complainant-opposite party no.2 to pay 30% of the final

assessment bill amount raised by the petitioner-respondent-

licensee herein and thereby also allowed the respondent-

licensee to install a digital meter in place of old meter having

provision of recording demands for assessment of actual

connected load. In the process, the GRF also authorized the

licensee to raise a further bill for payment by the consumer-

opposite party no.2 basing on the maximum demand

recorded during the said financial year with proper

// 4 //

intimation to the consumer and further based on the

applicable Rules and Regulation.

6. The writ petition has been brought by the licensee being

aggrieved by above order of GRF. Mr. Sahoo, learned counsel

for the petitioner referring to the pleadings in the writ

petition and reiterating their stand before the GRF, firstly

contends GRF has no jurisdiction to entertain the issue

involving penal bills for there is specific provision contained

in Section 126 of the Electricity Act, 2003, which provides

the actual recourse to the consumer and the remedy lies

elsewhere. The second limb of argument of the learned

counsel for the licensee is that even assuming the GRF has

jurisdiction, there has been no proper consideration of the

allegations by the licensee regarding tampering of meter. In

the above scenario, the learned counsel seeks interference

with the order vide Annexure-1 in setting aside of the same.

7. It is unfortunate to note that even though the licensee

challenged the impugned order Annexure-1 passed by the

GRF, the provisional bill or the final bill has been filed nor

even the complaint of the consumer or the response of the

licensee before GRF have been filed. However on reading the

recordings of the stand of the parties made by the GRF,

appearing at page-12 of this Court's brief, this Court finds

// 5 //

complainant has made clear allegation of breaking of seal of

meter in his premises by the staff of licensee/departmental

people and there is also complaint of poor understanding on

the part of the consumer of the contents in the verification

report which he has signed. Consumer also claims he signed

the report under bonafide impression that he will be given

justice.

8. This Court here finds GRF has recorded response of the

licensee that there was tampering of meter as a

consequence, the report was prepared but as the consumer

has signed such report, he is estopped from taking such

plea.

9. The GRF appears has taken a decision finding the rival

contentions before it to be a question of fact and has come to

observe after hearing the parties and on going through the

documents, the respondent, Team Leader, Enforcement Cell

verified the complainants premises on 18.2.2021 and found

that the connected load has been enhanced from 3KW to 16

KW with meter being found tampered. It is not disputed that

the meter was installed on 09.12.2020 hardly two months

before verification by the staff of licensee. The GRF, taking

aid from the provision Section 126 of the Act, 2003 and

clause 117 of the OERC Regulation, 2019 providing in case

// 6 //

of dispute regarding actual consumption and metered

consumption, the procedure to determine consumption to

raise bill.

This Court takes note of S.126 of the Electricity Act,

2003 and the provision contained in Clause 117 of the OERC

Regulation 2019 which read as follows :

"S.126 Assessment-(1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgement the electricity charges payable by such person or by any other person benefited by such use.

(2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.

[(3) The person, on whom an order has been served under sub- section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment within thirty days from the date of service of such order of provisional assessment of the electricity charges payable by such person.]

(4) Any person served with the order of provisional assessment, may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:

[(5) If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during

// 7 //

which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorised use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.

(6) The assessment under this section shall be made at a rate equal to twice the tariff rates applicable for the relevant category of services specified in sub-section (5).

Explanation.- For the purposes of this section,-

(a) "assessing officer" means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;

(b) "unauthorised use of electricity" means the usage of electricity -

(i) by any artificial means; or

(ii) by a means not authorised by the concerned person or authority or licensee; or

(iii) through a tampered meter; or

(iv) for the purpose other than for which the usage of electricity was authorised; or

(v) for the premises or areas other than those for which the supply of electricity was authorized."

Para 117 of the OERC Regulation, 2019 provides:

117.Contract Demand for loads of 110 KVA and above shall be stipulated in the agreement and may be different from the connected load. Contract demand for a connected load below 110 KVA shall be same as the connected load.

In case of installation of meters with provision of recording demand for the consumers with contract demand less than 110 KVA the highest recorded demand during the billing period shall be utilized for billing of the demand charges. The highest demand recorded in the meter shall continue to be utilized for billing purposes from the month it occurs till the end of the financial year unless the demand recorded in the subsequent month exceeds last recorded higest demand. In the next financial year, the above process shall be repeated afresh for billing demand charges.

// 8 //

Regarding the billing of demand charges for contract demand more than 110 KVA the billing methodology for demand charges shall be stipulated by the commission in the tariff order of the relevant year."

10. Though a question of jurisdiction has been raised by the

petitioner-licensee before this Court in the writ petition,

apparently the licensee has participated in the proceeding

before the GRF by filing its written submissions. It can

safely be said that the licensee abandoned its plea on the

part of jurisdiction of the GRF by contesting the claim of the

opposite party-consumer before the GRF. Jurisdiction

aspect if at all involved should have contested the same at

the theshhold and is presented as challenge the same a

contested decision is passed.

11. Reading the order of GRF this Court finds it is no way

prejudicial to the interest of the distribution licensee as the

GRF taking note of the clause 117 of the OERC Regulation,

2019 as well as section 126 of the Electricity Act, 2003 came

to hold that the complainant-consumer shall pay 30% of the

final assessment and also shall allow licensee to install

digital meter. In any view of the matter, installation of correct

meter to assess the actual consumption is in the best

interest of the distribution licensee. It has been further

directed by the GRF that the licensee shall make the

assessment of the disputed period of billing by resorting to

// 9 //

average billing based on the calculations provided under

relevant statutes like OERC Regulation, 2019 as well as

Electricity Act, 2003.

12. In our considered opinion, such final assessment would

be appropriate in terms of clause 117 of the OERC

Regulation, 2019.

13. Learned counsel for the petitioner-licensee has no up-

to-date instruction regarding the manner of

reconnection/fresh connection of electricity given to the

consumer. There is also no instruction regarding deposit of

30% of the demand as directed by the GRF. However, there

is no denial that Opposite Party No.2 presently in enjoyment

of power and goes on paying current dues.

14. In these circumstances, it is directed let there by final

assessment of the electricity dues by adopting the method as

directed by the GRF. This Court also observes that no

citizen can run without power supply for such a long period

and in the event there has been installation of a new meter

as directed by the GRF, the final bill raised by the licensee in

terms of Regulation 117 of the OERC Regulation, 2019 read

with Section 126 of the Electricity Act, 2003 shall have to be

cleared by the Consumer.

// 10 //

15. The writ petition is dismissed, however, with the

observation as indicated above.

.......................... .......................

    M.S.Sahoo, J.                          Biswanath Rath, J       JJ.


Orissa High Court, Cuttack
The 3rd April, 2023/dutta
           e




                Digitally signed by
AJIT KUMAR AJIT KUMAR DUTTA
DUTTA      Date: 2023.05.08
           18:38:12 +05'30'