Bibekananda Dash vs State Of Orissa & Ors. .... Opposite ...
2024 Latest Caselaw 100 Ori

Orissa High Court

Bibekananda Dash vs State Of Orissa & Ors. .... Opposite ... on 3 January, 2024

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                   W.P.(C) No.22217 of 2023

                                  Bibekananda Dash                      ....        Petitioner(s)
                                                           Mr. Laxmi Narayan Rayatsingh, Adv.
                                                             -versus-
                                  State of Orissa & Ors.                 .... Opposite Party(s)
                                                                        Ch. Satyajit Misra, AGA

                                           CORAM:
                                           DR. JUSTICE S.K. PANIGRAHI

             Order                                         ORDER
             No.                                          03.01.2024

03. 1. This matter is taken up through hybrid arrangement.

2. In filing this Writ Petition, the Petitioner has challenged the

order dated 22.02.2023 passed by the learned State Consumer

Disputes Redressal Commission, Odisha in F.A. No.92 of

2021/Annexure-8.

3. Fact of the case in brevity remains:-

(i) The Petitioner has availed power supply vide Consumer

A/c.No.03263291 under 'Domestic' category for a contract

demand of 1 K.W under the Dhenkanal Electricity Division. A

new meter was installed in the house of the Petitioner for

reading the actual consumption of energy and accordingly,

the Petitioner used to pay dues as per the readings recorded

by the said meter regularly till Sptember-2018. Though a sum

of Rs.360/- was due on the Petitioner, he cleared the same.

(ii) Thereafter, suddenly he noticed that his connected load Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa has been enhanced to 3K.W. and accordingly, the bill was also Date: 08-Jan-2024 18:28:56

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raised to a sum of Rs.2,241/- on the basis of peace of load

factor. At this juncture, learned counsel for the Petitioner

submits that the Petitioner is not residing in the house and

only one bulb is being used.

(iii) It is pertinent to mention here that the authority

concerned enhanced the connected load without following

due process of law w.e.f. October, 2018. Accordingly, while

declaring the meter being a defective one, the Opposite

Parties went on issuing bills on load factor basis @ 3 K.W. per

month. According to the reading of the meter the present

actual consumption as on 14.12.2018 is 9412 units.

(iv) He also submits that upon receipt of the said bill, though

the Petitioner approached the Opposite Party No.3 for

correction of the said bill and issuance of a corrected bill, he

did not pay any attention to the same.

(v) Therefore, finding no alternative the Petitioner approached

the District Consumer Forum through complaint case vide

C.C. Case No.75/2018 with a prayer not only to disconnect the

power supply from his house but also to reduce the load from

3.K.W. to 1 K.W. Apart from this prayer, the Petitioner therein

also sought for a direction for award of compensation to the

tune of Rs.20,000/-.

(vi) After hearing the parties the District Consumer Forum

framed the following issues:-

Designation: Personal Assistant Reason: Authentication (i) Whether the complainant is a consumer? Location: High Court of Orissa Date: 08-Jan-2024 18:28:56

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(ii) Whether the case is maintainable before this Forum?

(iii) Is there any deficiency on the part of the Opposite

Party and whether the Opposite Party has resorted to

unfair trade practice?

(iv) To what relief, if any, parties are entitled?

(vii) Accordingly, after hearing both the parties and giving

elaborate discussion on the above issues, the learned District

Consumer Forum by its judgment/order dated 19.03.2020

directed the Opposite Party No.3 to revise the energy bills of

the Petitioner from October, 2018 till August-2019 on the basis

of average of three months' reading recorded by the new

meter installed in the premises of the Petitioner. The Opposite

Party No.3 was also directed to reduce the corrected load

from 3 K.W. to 1 K.W. Compensation to the tune of Rs.5,000/-

was also awarded in favour of the Petitioner.

(viii) Thereafter, challenging the above order of the learned

District Consumer Forum passed in C.C. Case No.75/2018, the

Opposite Party No.3 on 16.04.2021 preferred an appeal vide

First Appeal No.92 of 2021 with an application for

condonation of delay and also an application for stay, before

the State Consumer Dispute Redressal Commission, Cuttack.

(ix) At this juncture, learned counsel for the Petitioner submits

that though there was 350 days of delay in preferring the

appeal, such delay has been condoned without even service of

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 08-Jan-2024 18:28:56

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notice on the Petitioner, whereas the order-sheet reflects that

notice has been sent to the Petitioner on limitation.

(x) Thereafter, on 22.02.2023 without verifying the documents

and also without hearing the Petitioner, the learned State

Consumer Dispute Redressal Commission, Cuttack allowed

the above noted appeal and set aside the impugned judgment

/ order dated 19.03.2020 passed in C.C. Case No.75/2018 on

the premises that the above noted Complaint Case is not

maintainable before the District Forum.

(xi) He further submits that despite adjournment of the matter

on several occasions i.e. on 19.04.2021, 07.05.2021, 16.06.2021,

06.07.2021, 19.08.2021, 30.09.2021, 24.11.2021, 09.12.2021,

22.12.2021, 03.01.2022, 07.02.2022, 18.04.2022, 25.04.2022,

05.05.2022, 21.07.2022, 27.10.2022, 12.05.2022, 21.12.2022,

service of notice on the Petitioner was not made sufficient. He,

accordingly, submits that the appeal has been heard and

disposed of ex parte.

4. At this juncture, by showing a judgment of the Supreme

Court in the case of Harbanslal Sahnia and Anr. Vrs. Indian

Oil Corpn. Ltd. and Ors. learned counsel for the Petitioner

submits that since the case of the present Petitioner stands on

similar footing, this Writ Petition deserves to be allowed.

5. Relevant portion of the above noted judgment is extracted

herein below:-

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa Date: 08-Jan-2024 18:28:56

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"7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at atleast three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 11. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-

existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."

6. In such view of the matter, it is true that the Electricity

dispute cannot be brought before the Consumer Forum since

there is a separate forum available for such purpose.

However, this Court is of the view that since the interest of

the Petitioner has been hampered, it is also a fact that

alternate remedy should have been explored by the Petitioner.

7. Be that as it may, since the appeal vide F.A. No.92 of 2021

has been decided ex parte and without hearing the present

Petitioner, this Court while setting aside the impugned order

Digitally Signed dated 22.02.2023 passed in F.A. No.92 of 2021 remits the

Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa matter back to the State Consumer Disputes Redressal Date: 08-Jan-2024 18:28:56

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Commission, Odisha, Cuttack for disposal of the same afresh

by passing a reasoned order, but after providing opportunity

of hearing to the Petitioner.

8. This Writ Petition is, accordingly, disposed of.

(Dr. S.K. Panigrahi) Judge Ayaskanta

Designation: Personal Assistant

Location: High Court of Orissa Date: 08-Jan-2024 18:28:56