The Executive Engineer vs Consumer Grievance Redressal ...
2023 Latest Caselaw 6404 Ori

             IN THE HIGH COURT OF ORISSA, CUTTACK

                               W.P.(C) No. 13585 of 2020

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

The Executive Engineer, (Electrical) Rayagada Electrical Division, Rayagada TPSODL ........ Petitioner

-Versus-

Consumer Grievance Redressal Forum, TPSODL, Jeypore, Koraput & another ........ Opp. Parties

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

For Opp. Parties : Mr. F.R. Mohapatra, 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 : 18.05.2023

------------------------------------------------------------------------------------------ M.S. Sahoo, J

Brief Facts

The petitioner-distribution licensee has stepped into the shoes of the erstwhile distribution licensee represented through Executive Engineer (Electrical), Rayagada Electrical Division, Rayagada Tata Power Southern Odisha Distribution Limited (in short, 'TPSODL').

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The writ petition has been filed by the distribution licensee challenging the order dated 30.12.2019 by the Consumer Grievance Redressal Forum at Jeypore, Koraput in Consumer Complaint Case No. 151 of 2019. The earlier licensee had entered into agreement dated 20.05.2015 with the opposite party no.2-Consumer, a Petroleum Filling Outlet. The agreement was for supply of power for a contract demand of 25 KW, at 11 KV supply under General Purpose Low Tension (GPLT). The said agreement has been annexed to the writ petition marked as Annexure-2.

Proceeding before the GRF

2. The consumer complaint, i.e., C.C.No.151 of 2019 was filed before the Grievance Redressal Forum (GRF) by the consumer on 31.10.2019 pertaining to the billing disputes that arose between the licensee and the consumer. As mentioned in the consumer complaint, the following provisions were referred to be interpreted, i.e., clauses 54(3), 93(9), 86 of Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code 2004 (hereinafter, in short, Code 2004) and paragraphs 97(vii), 151(ix) of OERC Tariff Order, 2019, para-247 of Tariff order 2012-13 and para-328 of Tariff order 2018-

19. The complaint before the Grievance Redressal Forum was filed stating that the amount of Rs.1,65,320/-, claimed by the distribution licensee towards "transformer loss" for the period from 24.06.2015 to 30.06.2019 was not liable to be paid by the consumer.

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The relevant copy of the Agreement between the parties and test report of the electricity meter etcs were submitted by the respondent-licensee in support of the demand of transformer loss. The respondent before the GRF stated that the claim of "transformer loss" is correct whereas on the other hand the complainant stated that the claim is not valid as bills are being paid on the basis of "metered consumption on LT Tariff."

3. The licensee-respondent before the GRF, filed their written response that has been noted and discussed by the GRF. In brief, the response of the petitioner- distribution licensee is that "the petitioner- distribution licensee verified the records, field verification report and found the connection for electricity is GP LT, having 25 KW Contract Demand (CD). The respondent had stated that consumer is a petrol Filling Station availing supply at 11 KV. The supply was given on 24.06.2015, at High Tension (HT) and the consumer had provided 63 KVA transformer which is being maintained by him. Metering was done at LT side of the transformer due to non- availability of HT metering unit. The licensee has intimated that an amount of Rs.92,819/- has been estimated towards metering unit cost vide estimate no.17/15-16 dated 24/04/15 and paid by the complainant-opp. party-petitioner vide money receipt (MR) No.75146/779130 dated 07.07.2015 before power supply was effected.

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As per the version of the licensee-respondent before the GRF, the billing was inadvertently made from the beginning i.e. from date of supply, without reckoning transformer losses which should have been added to the metered consumption as metering is being done at LT for a HT consumer.

Submissions

4. Heard Shri Tripathy, learned counsel for the petitioner and Shri Rajguru Mohapatra, learned counsel for the opposite party no.2 at length. The learned counsel reiterated their submissions before the GRF as noted above. It is submitted by Mr. Tripathy, learned counsel for licensee that the licensee is entitled to collect an amount towards the transformer loss though the consumer is billed at Low Tension (LT) tariff. It is submitted that the order passed by the GRF is without jurisdiction and the complaint was entertained beyond purview of the Electricity Act, 2003 and the OERC (GRF & Ombudsman) Regulations, 2004. It is further submitted that order has been passed ignoring the provisions such as Regulations 54(3) & 93(9) of the OERC Distribution (Conditions of Supply) Code, 2004. It is further submitted that the tariff order relied on by the GRF and the Ombudsman of OERC have no applicability to the case of the consumer.

Learned counsel for the consumer Mr. Mohapatra supporting the order of the GRF submitted that the order passed by the GRF in C.C. Case, is just

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and proper there being no illegality or infirmity in the order. There being no error apparent on the face of record, this Court need not interfere with the order.

It is submitted that the finding of fact which have been determined and arrived at by the statutory forum, i.e., GRF is not to be interfered with as there cannot be any reappraisal of the evidence/records before this Court in the present petition under Article 226 of the Constitution of India.

Analysis and Conclusion

6. This Court finds that while dealing with the complaint of the opposite party no.2-Consumer, in its order, the GRF has referred to the guidelines given by the OERC for billing G.P.(HT) Consumer having load of less than 70 KVA in the tariff order for the Year 2012-13. As per the agreement, the opposite party no.2-Consumer is a petrol filling station availing supply of power at 11 KV given on 24.06.2015. The consumer provided the 63 KVA transformer which is being maintained by the consumer. As HT metering unit was not available that was to be provided by the distribution licensee, the billing is done at LT tariff on the LT side of the transformer. It is not disputed by the petitioner-distribution licensee that in the period from 24.06.2015 till October, 2019 they did not provide HT meter. It is also not disputed that the OERC has categorized HT General Purpose consumers having less than 70 KVA to LT GP category for the

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purpose of billing, i.e., for raising bill for consumption of electricity in the LT tariff category.

7. Having gone through the pleadings of the parties it is observed that the finding of fact remains uncontroverted that LT GP consumer had to pay Rs.7.10 as against Rs.5.35 per unit of electricity (KWH) consumed for HT consumers for consumption above 300 units in a month. Hence, a HT consumer when billed at LT GP rate, has to pay Rs.1.75 more per unit of electricity. It is also observed by the GRF that consumers are preferring to pay a higher tariff at LT rate for small loads for factors such as stability in supply and voltage, less frequent interruption in power as they are fed through LT system. It has been a pattern that though the consumers have executed agreement under GP tariff and availing HT supply, they are categorized as LT GP for tariff and billing.

It is not disputed by the licensee-petitioner that the opposite party no.2-Consumer is a general purpose consumer availing supply of high tension and accordingly is to be metered and billed but the metering is done at LT (Low Tension).

8. In the case at hand, the consumer entered into an agreement for supply of 11 KV and both the parties have agreed to abide by the provisions of Code, 2004. The distribution licensee has furnished the field verification report that the consumer is billed at GP LT having 25 KW contract demand. This Court is of the considered view

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that the finding of the GRF that if the opposite party no.2-Consumer is billed at LT GP tariff which is at a higher rate of Rs.1.75 per unit more than the HT tariff and if further transformer loss is added it would be violative of the tariff order of the OERC is correct, there being no error apparent. Further the GRF is competent technically to decide such matters as provided under the Code, 2004.

9. The observation of the GRF, that the transformer loss are to be billed at HT rate as the concept of losses due to LT metering arises only, if point of supply is reckoned at HT, but since the consumer-opposite party no.2 is being billed at higher LT rate, the concept of delivery of power at 11 KV and adding to that the transformer losses are not available to be urged by the licensee, has to be upheld by this Court.

[underlined to supply emphasis]

10. Further it is observed that since the loss if any, due to transformer loss has been factored in the LT tariff fixed for the consumers billed at the LT rate on LT metering, by the OERC, Tariff order, which is Rs.1.75 more per unit (Kilowatt Hour, KWH), than that is charged for HT tariff. Therefore, the additional claim of transformer loss made by the petitioner-licensee from 6/2015 to December, 2019 is held to be not sustainable and the order of the GRF is upheld.

11. Though it is submitted by the petitioner- distribution licensee in support of their contentions that

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the provisions of Code, 2004 and the tariff orders of the OERC relied upon by the GRF, are not applicable, in our considered opinion, such contentions raised by the distribution licensee before this Court for the first time, is an afterthought in view of the fact that they in their written submissions/reply before the GRF have stated that the opposite party no.2-Consumer has a contract demand of 25 KW which is less than 70 KVA. The billing is done by them as general purpose low tension consumer (GPLT) at the rate Rs.7.10 paise per unit which is more than Rs.5.35 per unit for HT.

Scope of judicial review of the findings given by statutory, expert bodies like GRF/Ombudsman of OERC

12. It would be apt to refer to the decision rendered by the Hon'ble Supreme Court in the case of Maharashtra State Electricity Distribution Company Ltd v. Adani Power Maharashtra Limied and others (for short MSEDCL v. APML & Ors.a, after considering the statutory provisions in the Electricity Act, 2003, the Hon'ble Supreme Court held that the CERC (Central Electricity Regulatory Commission), SERCs (State Electiricity Regulatory Commissions) and the learned APTEL (Appellate Tribunal for Electricity) are bodies consisting of experts in the field.

Hon'ble Supreme Court, in the said case, observed thus:

"120. It could thus be seen that two expert bodies i.e. the CERC and the learned APTEL have concurrently

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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.

13. As regards scope of interference in finding of fact by expert body like GRF we may refer to the observations of Hon'ble Supreme Court in the case of Reliance 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., (2002)3SCC711 b 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 ________________ a MSEDCL v. APML & Ors : 2023 SCC OnLine 233

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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 interfering with a policy decision unless the power exercised is arbitrary or ex facie bad in law."

xxx xxx xxx

[Underlined to Supply Emphasis by us]

14. Recently, 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] has held that the Courts should be slow in interfering with the decisions taken by the experts in the field. 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.

15. It is reiterated by us that as is indicated in the aforesaid judgments, this Court should be slow in interfering with the findings of fact unless they are found to be perverse, arbitrary and either in ignorance of or contrary to the statutory provisions.

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16. By applying the principles laid down in MSEDCLa (supra), it is held that this Court has to be slow in interfering with the findings given by an expert body like GRF under the Regulation, 2004. As has been held in Association of Industrial Electricity users v. State of A.P.b (2002)3SCC711. All that this Court has to be satisfied is that the GRF has followed the proper procedure and unless it can be demonstrated that the decision is on the face of it arbitrary or illegal or contrary to the Act, this Court would not interfere.

In our considered view the petitioner in its challenge has failed to show that the decision of GRF on its face is illegal or contrary to Act.

17. Following the principle laid down in the decision rendered by the Constitution Bench of the Hon'ble Supreme Court in Vivek Narayan Sharma v. Union of India; 2023 SCC Online SC 1, it is held that this Court should be slow in interfering with the decision taken by expert in the field, i.e., GRF, under the OERC Code, 2004 as it is found that the expert body has not failed to take into consideration the mandatory statutory provisions and the decisions taken is not based on extraneous considerations nor is ex-facie arbitrary and illegal. Thus, it would not be appropriate for this Court to substitute its views with that of the expert body.

As discussed above it is held that the petitioner distribution licensee has failed in its efforts to make out

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any case before this Court to interfere with the order passed by the GRF.

18. In view of the above discussions, the writ petition is dismissed being devoid of any merit. The order dated 30.12.2019 by the Consumer Grievance Redressal Forum at Jeypore, Koraput in Consumer Complaint Case No. 151 of 2019 is upheld and shall be implemented forthwith.

In the facts and circumstances of the case, there shall be no order as to costs.

e

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




                          Orissa High Court, Cuttack
                          The 18th May, 2023/dutta




Signature Not Verified
Digitally Signed
Signed by: AJIT KUMAR DUTTA
Designation: Secretary
Reason: Authentication
Location: ohc
Date: 23-May-2023 14:07:51