Orissa High Court
Niladri Udyog (Blue Lily Beach ... vs The Ombudsman-1(Electricity) on 10 May, 2023
A.F.R. IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.7590 of 2017
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Niladri Udyog (Blue Lily Beach Resort) ........ Petitioner
-Versus-
The Ombudsman-1(Electricity)
and others ........ Opp.Parties
For Petitioner : Mr. F. R. Mohapatra,
Advocate
For Opp.Parties : Mr. S.C. Panda, Advocate
for O.P.No.2
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE BISWANATH RATH
AND
THE HONOURABLE SHRI JUSTICE M.S. SAHOO
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Date of hearing: 05.05.2023 Date of judgment: 10.05.2023
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M.S.SAHOO, J Introduction
The Consumer of Electricity as stated is a Beach
Resort at Puri, namely, M/s. Niladri Udyog, represented
through its Managing Director has filed the present writ
petition challenging the order dated 15.03.2017
(Annexure-4) passed by the Ombudsman-I, Odisha
Electricity Regulatory Commission (hereinafter the
'OERC' in short), Bhubaneswar in Consumer
Representation Case No.OM (I) 38 of 2017. In the said
// 2 //
Consumer Representation Case (hereinafter 'C.R. Case'
in short), on a review being filed by the petitioner, the
order dated 15.03.2017 was passed. In the review
petition, the consumer had sought for review of order
dated 14.02.2017 passed by the Ombudsman in C.R.
Case No. OM (I)-133 of 2016.
Facts and brief and the summary of the proceedings
preceding the writ petition
Before GRF
2. The dispute between the consumer and the
distribution licensee was regarding the electricity bill
from 01.04.2016 to 31.05.2016. The Consumer
Complaint Case was filed by the consumer-petitioner
before the Grievance Redressal Forum (hereinafter GRF
for short), Bhubaneswar in Consumer Complaint No.236
of 2016. Earlier the consumer-Beach Resort had entered
into an agreement for getting supply of electricity with
the distribution licensee for Contract Demand (C.D.) 322
KVA under the General Purpose (GPS) category.
2.1 The facts stated in the consumer complaint before
the GRF, as has been reproduced by the GRF is indicated
herein :
"... ... During the month of January, February, March
& April, 2016 the bill raised by the OP were
Rs.3,73,035, Rs.3,89,699.79, Rs.7,26,207.55 and
Rs.6,97,797.55 respectively. But in the month of May
the OPs issued a letter of complaint on dated
14.05.2016, where an additional claim of
Rs.2,39,539 was charged towards loss of energy
was being recorded of 40% less in energy meter and
// 3 //
meter was not getting B-phase current supply and
also current not available at CT Secondary due to CT
saturation thus due to over current so meter is not
recording actual consumption. So he approached the
Forum to waive out the said demand on the ground
that for the bill for the month of March, 2016 current
bill amount of Rs.7.26 lakhs, so additional demand
allegation of meter slow is not at all correct and said
amount is to be waive out and not payable by the
complainant."
3. Before the GRF the then distribution fanchisee of
the licensee, CESU : FEDCO filed their counter, CESU
being the predecessors of the present licensee. Counter
has been referred to by the GRF in its order and is
indicated herein :
"The respondent on his counter has submitted
that as per Central MRT Report the meter of the
complainant was recording slow consumption by
40.11% of the actual consumption due to Bph CT
saturation. Again as per the Dump Report
analysis the loss of occurrence was found
started from 16.04.2016 to 10.05.2016. The
rectification work was also made on dated
11.05.2016. Thus additional assessment was
charged to the complainant of Rs.2,39,539.00
from 16.4.2016 to 10.05.2016 towards the
escaped units accrued due to meter slowness
and also intimated to the complainant vide letter
No.FED/KCG/100 dated 14.05.2016. There was
no penal charges imposed to the complainant &
only the assessment were made in favour of the
loss of units towards the slowness of the meter.
4. The GRF disposed of the consumer complaint
rejecting the claim of the consumer with the following
observation :
// 4 //
"Basing on the available documents and
observing the Regulation 97 & 98 of OERC
Distribution & Supply & Condition Code 2004
the Forum hereby order that:
"As actual period & quantity of escape
units is available from the Dump Report
which shows 40.11% les of actual energy
consumption, the petitioner has to pay the
additional energy charge for the escaped
unbilled units. So the Respondent no.2 is
directed to raise a bill to the petitioner for
the escape units, i.e. (from 16.04.2016 to
10.05.2016)"
Before Ombudsman
5. Being dissatisfied with the order of the GRF, the
consumer moved the Ombudsman in Consumer
Representation Case No.OM (I)-133 of 2016 and the
Ombudsman by order dated 14.02.2017 (Annexure-3)
directed the following :
"1. The advance reading from 11.05.2016 after
rectification of the metering unit up to 31.05.2016
shall be taken as consumption for 20 days and
the reading from 1st May, 2005 to 10.05.2016
shall be arrived on pro-rata basis on the
consumption for 20 days.
2. Similarly since the meter became defective on
16.04.2016 and the reading is available up to
15th April, the consumption from 16.04.2016 to
30.04.2016 shall be arrived on pro-rata basis on
the reading advanced up to 15th April, 2016.
3. The DPS claimed is to be withdrawn.
4. As requested by the authorized representative
of the petitioner, the opposite party is to provide
installment facilities to clear the dues in two
instalments."
// 5 //
6. It is stated while the matter was adjudicated in the
C.R. Case No. OM (I)-133 of 2016, as per the provision
of law, the consumer and the opposite party-licensee
mutually settled the electricity bill for an amount of
Rs.1,79.261/- and presented such fact of settlement
before the Ombudsman though not recorded. After
conclusion of the C.R. Case No. OM (I)-133 of 2016, the
order was pronounced. In the revision filed before the
Ombudsman, it was stated by the consumer that the
consumer did not get the relief as per the mutual
settlement and the electricity bill was recasted by the
licensee putting financial burden on the consumer.
7. Thereafter, the consumer sought for review of the
order passed by the Ombudsman by filing the consumer
Representation Case No. OM (I)-38 of 2017, which was
disposed by order of the Ombudsman dated 15.03.2017
with the directions as follows :
"1. The advance reading from 11.05.2016 after
rectification of the metering unit up to 31.05.2016
shall be obtained by taking the reading from dump
data at 12.00 hours of 11.05.2016 to 12.00 hours of
31.05.2016 to arrive the consumption for 20 days
and the consumption from 1st May 2015 to
10.05.2016 shall be arrived on pro-rata basis on the
consumption of 20 days.
2. Similarly the meter became defective on
16.04.2016 and the reading is available up to 15th
April. The consumption shall be arrived by taking
the meter reading of 01.04.2016 at 12.00 hours to
15.04.2016 to 12.00 hours to arrive the
consumption of 16.4.2016 to 30.05.2016 on
prorate basis.
// 6 //
3. The DPS claimed against amount of
Rs.2,39,339/- is to be withdrawn.
4. The billing if made on the Kwh consumption
of the defective meter from 16.04.2015 to
10.05.2016 is to be withdrawn.
5. The revised bill is to be served to the
petitioner within 15 days from the date of issue of
the order.
6. The petitioner is to clear the dues within 15
days form the issue of the order. Failing action
shall be taken as per provision of the Regulation
and Act."
8. When the matter was taken up by a Division Bench
of this Court, by order no.7 dated 26.07.2022, the
following order was passed :
"4. Meanwhile, the opp.party no.2 shall file a
short affidavit showing the amount that has been
credited in the account of the writ petitioner after
the Ombudsman's order dated 15.03.2017. At
the same time, the petitioner is permitted to file
any affidavit as regards the compliance of
Regulation 10(6) of OERC (GRF & Ombudsman)
Regulation 2004. The petitioner was expressly
directed to submit a letter of acceptance within
15 days from 15.03.2017. The purpose is to be
clarified whether the petitioner had conceded to
the said award or not."
9. In purported compliance of the above order dated
26.07.2022, the licensee has filed affidavit dated
10.08.2022 stating the following :
"3. That this Opp.party has complied the order of
learned OMBUSMAN by way of revision of
petitioner's Electricity Bill resulting Rs.52,190.58
was credited to petitioner's Account in February,
2017.
// 7 //
4. That, in the month of 02/2017, the previous
balance of the petitioner's Electricity dues was
Rs.11,72,667.69 paisa + current bill
Rs.2,95,697.99 paisa =Rs.14,68,365.6 paisa.
The petitioner paid Rs.2,36,513.00 on
28.02.2017 and after this payment the balance
is Rs.12,31,852.68 paisa. On the same month
Rs.52,190.58 paisa was credited in the
petitioner's account in compliance of the order of
learned OMBUSMAN-1. After the said credit in
favour of the petitioner, the total bill within due
date came to Rs.11,76,983/- and after due date
the total bill came to Rs.11,79,662/-. The copy of
the Revise Billing Statement (Consumer Billing
ledger) with regard to petitioner has already
been annexed as Annexure-B/4 of the counter
affidavit filed by this opp.party previously.
10. On going through the affidavit dated 10.08.2022
filed by opposite party no.2-distribution licensee, it is
found that there is no reference to the period from
01.04.2016 to 31.05.2016 and the licensee has indicated
the previous balance in the month of February, 2017,
which is much after the said period. Therefore, in
considered opinion of this Court such affidavit of
opposite party no.2 not being in terms of the order dated
26.07.2022 passed by this Court has to be ignored.
11. Heard the learned counsel for the petitioner and the
learned counsel for the distribution licensee that has
stepped into the position of the earlier distribution
licensee.
Submissions on behalf of the parties
12. Learned counsel for the petitioner-consumer relying
on the averments made in the petition, inter alia
// 8 //
contended that as per Rule 98 of the OERC Distribution
(Conditions of Supply) Code, 2004 (hereinafter for short
'Code, 2004'), when the meter became defective, the
billing for the defective period should be done in
accordance to Rule 97 of the Code, 2004, whereas the
learned Ombudsman (opp.party no.1) without taking
considering the law passed the order.
13. Learned counsel for opposite party no.2 relying on
the counter filed by opposite party no.2 submits that the
order passed by the Ombudsman in Consumer
Representation Case is just and proper there being no
illegality or infirmity in the order, the same need not be
interfered with by this Court in exercise of the writ
jurisdiction. It is further submitted there is no error
apparent on the face of the order and that the findings of
facts, which have been determined by both statutory
forums, may not be interfered with as there can not be
reappraisal of the evidence/records before this Court in a
petition under Article 226 of the Constitution of India.
14. Essentially, it is contended by learned counsel for
opposite party no.2 that the meter of the petitioner was
recording slow consumption by 40.11% of the actual
consumption, due to a phenomenon described as "BPH
CT saturation". Again as per the Dump Analysis Report
that indicates consumption of electricity by the
consumer, the occurrence of loss in recording of
consumption was found starting from dated 16.04.2016
to 10.05.2016, the rectification work was made on
// 9 //
11.05.2016. Accordingly, additional assessment was
prepared by the distribution franchisee, M/s. FEDCO of
Rs.2,39,539/- from 16.04.2016 to 10.05.2016 towards
the escaped units, accrued due to meter slowness and
also intimated to the petitioner vide FEDCO letter
No.FED/Kcg/100 dated 14.05.2016 (Annexure-2 of writ
Application).
15. It is contended by the licenseeds that the meter was
working properly but BPH CT saturation (full form has
not been elaborated by the learned counsel for the
parties) was regarding the meter showing less reading
than the actual consumption of electricity. It is further
clarified no penal bill has been imposed on the petitioner
and the only assessment was regarding the loss of units
of energy consumed towards slowness of the meter. It is
further contended that the Rule 97 of the Code, 2004 is
not applicable to the case at hand because it is not a
case of defective meter, but a claim by the licensee of
difference of amount towards units of electricity
consumed due to slowness of the meter which has been
arrived at with help of ACCUCHECK as per the procedure
established. It is further stated in the counter as well as
argued that in view of rejection of the contentions of the
petitioner on three occasions; once by the Grievance
Redressal Forum; then by the Ombudsman, OERC in the
Consumer Representation Case and lastly by the
Ombudsman, OERC in the review petition, this Court
may not interfere in the concurrent finding of facts given
// 10 //
by the forums below there being no substantial question
of law involved in the present writ petition.
16. Learned counsel for the petitioner-consumer has
relied on the decision rendered by this Court, by a
Division Bench by order dated 29.04.2019 passed in
W.P.(C) No. 9935 of 2008 to contend that the directions
contained in the order passed by the Ombudsman in the
review petition particularly paragraphs 1 & 2, are
contrary to the Rules 97 & 98 of the Code, 2004.
Learned counsel for the petitioner further relies on
the decision rendered by the Hon'ble Supreme Court
dated 25.07.2022 in Civil Appeal No. 4807 of 2022
(Union of India and others v. Mahendra Singh) to
contend that where a power is given to an authority to do
a certain thing in a certain way the thing must be done
in that way or not at all. Other methods of performance
are necessarily forbidden.
Analysis & Conclusion
17. Rules 97 & 98 of the Code, 2004 are reproduced
herein :
"Billing with Defective Meter
97. For the period the meter remained defective or
was lost, the billing shall be done on the basis of
average meter reading for the consecutive three
billing periods succeeding the billing period in
which the defect or loss was noticed. It shall be
presumed that use of electricity through defective
meter was continuing for a period of three months
immediately preceding the date of inspection in
// 11 //
case of Domestic and Agricultural consumers and
for a 51 period of six months immediately
preceding the date of inspection for all other
categories of consumers, unless the onus is
rebutted by the person, occupier or possessor of
such premises or place.
98. If the readings of meter working in association
with Current Transformer (CT) and Potential
Transformer (PT) and other auxiliary equipment, if
any, are found to be incorrect on account of wrong
connection or disconnection of such CTs, PTs and
other equipment or on account of omissions or
commissions in regard to multiplying factor,
erroneous adoption of CT ratio, PT ratio, the billing
in such cases shall be done as laid down in
Regulation 97."
Regarding applicability of Rule 97 of the Code, 2004
in our considered opinion, present case is not that of a
defective meter but a case of slowness of the electricity
meter due to technical phenomenon BPH CT saturation,
resulting in recording of units less than consumed. We
uphold the findings of GRF and Ombudsman that in the
obtaining fact situation Rule 97 would not be applicable.
18. Considering the rival submissions and the
pleadings available before this Court on record, pleadings
before the Ombudsman and pleadings before GRF, this
Court is of the opinion that after the contentions of the
petitioner-consumer has been rejected by the GRF as
well as the Ombudsman, there is no scope for this Court
to enter into the factual aspects of the dispute as there is
no error apparent. Further, it is also noticed the
Ombudsman's order contains certain directions in favour
of the consumer which have been implemented by the
// 12 //
distribution licensee as submitted by learned counsel for
the licensee.
19. The petitioner essentially has not disputed the fact
that the establishment being a Beach Resort, as stated,
had entered into an agreement with the distribution
licensee/franchisee for contract demand of 322 KVA
under the GPS tariff category and in the considered
opinion of this Court, for such a contract demand for
high consumption of electricity, slowness of the meter
would make a major difference in the electricity bill that
is raised as actual consumption is escaped and non-
payment of the differential amount would be against
equity and good conscience.
20. In our considered view, the direction of
Ombudsman "....for reading from 11.05.2016 after
rectification of metering unit upto 31.05/2016 shall be
taken as consumption for 20 days...," is just and proper
not being prejudicial either to the consumer or the
distribution licensee. Therefore, further direction of
Ombudsman to arrive at amount of consumption of
electricity on pro-rata basis from 01.05.2016 to
10.05.2016 is also just and proper in the facts and
circumstances of the case considering the contract
demand admitted by the consumer to be 322 KVA. The
further direction to arrive at a figure of the meter reading
on pro-rata basis from 16.04.2016 to 30.04.2016 for 15
days, is also just and proper in the obtaining fact
situation.
// 13 //
21. Rule 97 of the Code deals with billing with defective
meter. Strict adherence to Rule 97 in every fact situation
would result unjust benefit for the consumer and cause
loss to the distribution licensee when they are supplying
a high contract demand of 322 KVA to a Beach Resort. It
has further to be noted that the petitioner-consumer
before the GRF or the Ombudsman, did not come up
with a positive case that his consumption of electricity
was on actual basis, rather in fact admitted that the
meter installed for determining the power supply was
running slow due to "BPH CT saturation." The consumer
also agreed to the determination of actual consumption
by the method "ACCUCHECK". In such view of the
matter also, it cannot be said that there is a better
method to determine the consumption of electricity from
01.05. 2015 to 10.05.2016, to substitute the view taken
by the Ombudsman.
22. In our considered opinion, the principles of law as
enunciated in the decision Mahendra Singh (supra)
following earlier decision in Nazir Ahmad v. King Emperor
AIR 1936 PC 253, relied on by the learned counsel for the
petitioner-consumer is well accepted, but the said
principle does not apply to the facts of the present case
and is of no avail to the case of the petitioner. In
Mahendra Singh (supra), the Hon'ble Supreme Court
was dealing with a matter of recruitment, where it was
advertised to write the optical mark reader (OMR) answer
book in the manner prescribed for recruitment to the
// 14 //
post of constable in Railway Protection Force. Neither
Nazir Ahmad nor Mahendra Singh were dealing with a
matter relating to determination of actual consumption of
electricity by a consumer based on the technical aspect
of consumption to be recorded by a electricity meter
which due to its slowness, recorded less units and the
supplier of electricity uses appropriate technical method
to determine actual consumption.
Judicial review of Findings of Expert Bodies
23. The Hon'ble Supreme Court in the case of MSEDCL v.
APML & Ors.a after considering the statutory provisions in
the Electricity Act, 2003, held that the CERC, SERCs and the
learned APTEL are bodies consisting of experts in the field.
In the said case, the Hon'ble Supreme Court observed
thus :
"120. It could thus be seen that two expert bodies i.e.
the CERC and the learned APTEL have concurrently
held, after examining the material on record, that the
factors of SHR and GCV should be considered as per
the Regulations or actuals, whichever is lower. The
CERC as well as the State Regulatory bodies, after
extensive consultation with the stakeholders, had
specified the SHR norms in respective Tariff
Regulations. In addition, insofar as GCV is concerned,
the CEA has opined that the margin of 85-100 kcal/kg
for a non-pit head station may be considered as a loss
of GCV measured at wagon top till the point of firing of
coal in boiler.
24. Regarding scope of judicial review of the findings of
expert body like that of Electricity Regulatory Commission
(e.g. Maharastra ERC) this Court refers to the decision of the
Hon'ble Supreme Court in the case of Reliance
// 15 //
Infrastructure Limited v. State of Maharashtra [(2019) 3
SCC 352].
"38. MERC is an expert body which is entrusted with
the duty and function to frame regulations, including
the terms and conditions for the determination of
tariff. The Court, while exercising its power of judicial
review, can step in where a case of manifest
unreasonableness or arbitrariness is made out.
Similarly, where the delegate of the legislature
has failed to follow statutory procedures or to take
into account factors which it is mandated by the
statute to consider or has founded its determination of
tariffs on extraneous considerations, the Court in the
exercise of its power of judicial review will ensure that
the statute is not breached. However, it is no part of
the function of the Court to substitute its own
determination for a determination which was made by
an expert body after due consideration of material
circumstances.
39. In Assn. of Industrial Electricity Users v. State of
A.P. [Assn. of Industrial Electricity Users v. State
of A.P., (2002) 3 SCC 711] three-Judge Bench of
this Court dealt with the fixation of tariffs and held
thus : (SCC p. 717, para 11) "11. We also agree with
the High Court [S. Bharat Kumar v. State of A.P., 2000
SCC OnLine AP 565 : (2000) 6 ALD 217] that the
judicial review in a matter with regard to fixation of
tariff has not to be as that of an appellate authority in
exercise of its jurisdiction under Article 226 of the
Constitution.
All that the High Court has to be satisfied with is that
the Commission has followed the proper procedure
and unless it can be demonstrated that its decision is
on the face of it arbitrary or illegal or contrary to the
Act, the court will not interfere. Fixing a tariff and
providing for cross-subsidy is essentially a matter
of policy and normally a court would refrain from
________________
aMSEDCL v. APML & Ors. : 2023 SCC OnLine 233
// 16 //
interfering with a policy decision unless the power
exercised is arbitrary or ex facie bad in law."
[Emphasis supplied]
25. In a recent decision rendered by the Constitution
Bench of the Hon'ble Supreme Court in the case of Vivek
Narayan Sharma v. Union of India [2023 SCC OnLine
SC 1] : it has been held that the Courts should be slow in
interfering with the decisions taken by the experts in the
field and unless it is found that the expert bodies have
failed to take into consideration the mandatory statutory
provisions or the decisions taken are based on extraneous
considerations or they are ex facie arbitrary and illegal, it
will not be appropriate for this Court to substitute its
views with that of the expert bodies.
26. In applying the principles as discussed above, laid
down by the Hon'ble Supreme Court in the judgments
referred to, we are of the considered opinion that the
concurrent finding of fact by the GRF, by the
Ombudsman of OERC and also the Ombudsman of
OERC in review that the consumer's meter was not
defective but was running slow due to "BPH CT
saturation." and the actual consumption was determined
correctly by "ACCUCHECK", is not to be interfered with
by this Court. Further observations of the GRF as well as
the Ombudsman regarding the method of calculation and
determination of the consumption of electricity on
prorata basis, by employing a formula acceptable under
Code, 2004 and other OERC notifications, cannot be
interfered with/substituted and is upheld by this Court.
// 17 //
27. The petitioner-consumer has not brought any
material before this Court to show that the orders passed
by the authorities which are impugned in the present
writ petition, suffer from any manifest
unreasonsableness or arbitrariness or otherwise are in
breach of any statute. The petitioner has not shown that
the order/award by the authorities which are impugned,
are based on any extraneous consideration or that they
are ex-facie arbitrary and illegal. Lastly, assuming that
another view can possibly be taken as argued by the
consumer that would be different from that of the
authorities, the said view cannot be substituted replacing
the views already taken by both the authorities, i.e. the
GRF and the Ombudsman of OERC.
28. In view of the discussions above, the writ petition is
dismissed on contest. The order/award passed by the
Ombudsman-I dated 15.03.2017 is upheld by this Court
and directed to be implemented forthwith, if not
implemented till date. In the facts and circumstances of
the case, there shall be no order as to costs.
e
.......................... .......................
Biswanath Rath, J. M.S.Sahoo, J.
Orissa High Court, Cuttack
The 10th of May, 2023/dutta
Digitally signed by
AJIT KUMAR AJIT KUMAR DUTTA
DUTTA Date: 2023.05.11
22:14:55 +05'30'
