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2004 DIGILAW 150 (ORI)

Sushila Cement v. Executive Engineer, WESCO

2004-03-15

A.K.PATNAIK, M.M.DAS

body2004
JUDGMENT A. K. PATNAIK, J. — Petitioner carries on business of manufac¬turing Cement and avails power supplied by WESCO. For the purpose of electricity tariff the petitioner has been categorised as a Large Scale Industry and the petitioner pays tariff in two parts—demand charges and energy charges. For the month of October, 2003 the meter on the basis of which billing for supply of electricity is made was found to be defective. The Executive Engineer, R.E.D. Rajgangpur, WESCO of Orissa worked out the bill for demand charges and energy charges for the month of October, 2003 on the basis of average meter reading for the months of June, July and September, 2003 and raised a bill on the petitioner for the month of October, 2003. Since the petitioner did not pay the bill for October, 2003 power supply was disconnected. Aggrieved, the petitioner filed the present writ petition on 20.1.2004 and on 3.2.2004 this Court while issuing notice in the writ petition passed orders that in the meanwhile the agreement of the peti¬tioner with WESCO for supply of electricity will not be terminat¬ed. On 4.2.2004 the agreement between the petitioner and WESCO for supply of electricity was terminated invoking Clause 17 of the Orissa Electricity Regulatory Commission Distribution (Condi¬tions of Supply) Code, 1998 to the effect that if the power supply remains disconnected for a period of two months for non-payment of charges or dues and no effective steps are taken by the consumer for removing the cause of disconnection and for restoration of power supply, the agreement of the licensee with the consumer for power supply shall be deemed to have been termi¬nated on expiry of the said period of two months. The petitioner by way of amendment to the writ petition has also challenged the said termination of agreement of the petitioner. 2. It appears on a reading of the impugned bill and the calculations in Annexure-2 to the writ petition that the Execu¬tive Engineer, R.E.D. Rajgangpur, WESCO of Orissa has worked out the bill for October, 2003 on the basis of the average meter reading for the months of September, July and June, 2003. Mr. Patnaik, learned counsel for the opposite parties submitted that this has been done in accordance with Clause 60(1) of the OERC Distribution (Conditions of Supply) Code, 1998. Mr. Mr. Patnaik, learned counsel for the opposite parties submitted that this has been done in accordance with Clause 60(1) of the OERC Distribution (Conditions of Supply) Code, 1998. Mr. Patnaik further explained that under the said Clause 60(1) the average meter reading for the consecutive three billing periods preceding the billing in which the defective meter was noticed has to be taken into consideration and in this case since the power supply to the industry of the petitioner was disconnected during Octo¬ber, 2003, the average meter reading for the billing period of three months, i.e. September, July and June of 2003 preceding the billing for the month of October, 2003 in which the defect was noticed has been taken into consideration in the impugned disput¬ed bill for the month of October, 2003. 3. Mr. Paikray, learned counsel for the petitioner, on the other hand, vehemently submitted that the production of Cement in the industry of the petitioner during October, 2003 was very low as would be clear from the clearance of finished products on payment of excise duty as reflected in the returns and documents filed before the Excise Department. 4. We are unable to accept the submission of Mr. Paikray that the bill for the month of October, 2003 has to be worked out on the basis of figures of the production in the industry of the petitioner as revealed in the records available in the Excise Department. Those records may be relevant for deciding the quan¬tum of excise duty that is payable by the petitioner under the Central Excise Act, 1944, but so far as the bill for the month of October, 2003 for electricity charges is concerned, the same has to be calculated in accordance with the provisions of the OERC Distribution (Conditions of Supply) Code, 1998. 5. Clause 60(1) of the said Code on which reliance was placed by Mr. 5. Clause 60(1) of the said Code on which reliance was placed by Mr. Patnaik is quoted herein below : “60(1) For the period the meters other than that of domes¬tic, commercial, small industry, irrigation pumping and agricul¬tural consumers remained defective or was lost, the billing shall be done on the basis of average meter reading for the consecutive three billing periods preceding the billing in which the defect or loss was noticed : Provided that if the meter becomes defective or is lost before expiry of three billing periods from the date of commencement of supply, the bill shall be prepared on the basis of average of readings of three consecutive billing periods after the meter is rectified or replaced.” It will be clear from the aforesaid provision that for the period the meter remains defective the billing has to be done on the basis of average meter reading for the consecutive three billing periods preceding the billing period in which the defect was noticed. In the present case the billing period in which the meter was defective was October, 2003. Hence the consecutive three billing periods preceding October, 2003 would be September, August and July of 2003. For the month of August, 2003 power supply to the industry of the petitioner stood disconnected. Hence the average meter reading for the month of August, 2003 is not available to be taken into consideration in accordance with Clause 60(1) of the OERC Distribution (Conditions of Supply) Code, 1998 quoted above. In such an event the billing for Octo¬ber, 2003 will have to be worked out on the basis of the average meter reading for the months of September and July of 2003 which were the only other two periods coming within “three consecutive billing periods” preceding the billing period of October, 2003. Merely because power supply was disconnected from August, 2003 the Executive Engineer, R. E. D., Rajgangpur, WESCO of Orissa could not have gone back to the billing period of June, 2003 in taking the average of three billing periods preceding October, 2003. This is because the expression “consecutive” has been used before the expression “three billing periods” in Clause 60(1) of the OERC Distribution (Conditions of Supply) Code, 1998 and the billing period of June, 2003 does not come within the consecutive three billing periods preceding October, 2003. This is because the expression “consecutive” has been used before the expression “three billing periods” in Clause 60(1) of the OERC Distribution (Conditions of Supply) Code, 1998 and the billing period of June, 2003 does not come within the consecutive three billing periods preceding October, 2003. The object behind the aforesaid provision in Clause 60(1) is that the consumer is charged on the basis of the average meter reading for the three billing periods nearest to the billing period during which the meter was defective. 6. Coming now to the impugned decision taken by the Execu¬tive Engineer on 4.2.2003 to terminate the agreement for supply of power, it is true that under Clause 17 of the aforesaid Code, 1998 if a consumer remains disconnected for a period of two months for non-payment of charges or dues and no effective steps are taken by the consumer for removing the cause of disconnection and for restoration of power supply, the agreement of the licen¬see with the consumer for power supply shall be deemed to have been terminated on expiry of the said period of two months, without notice if the initial period of agreement is already over. But in the present case the petitioner had already filed the writ petition on 20.1.2004 and this Court had passed orders on the said writ petition on 3.2.2004 directing that in the mean¬while the agreement of the petitioner with WESCO for supply of electricity will not be terminated. Hence it is difficult to say that the petitioner had not taken any effective step for removing the case of disconnection and for restoration of power supply. More over once the Court had passed orders on 3.2.2004, the petitioner was entitled to the benefit of the said order unless the said order dated 3.2.2004 was modified or recalled by the Court. 7. Mr. Patnaik, learned counsel for the opp.parties, submitted that the opp.parties had no information on 4.2.2004 about the orders passed by this Court on 3.2.2004 when the order for terminating the agreement of the petitioner was passed. This fact may save the opp.parties from any contempt proceedings to be initiated against them, but this fact does not alter the position of law that the order dated 3.2.2004 directing that the agreement of the petitioner with WESCO will not be terminated will remain operative unless the same is modified or recalled by the Court. 8. This fact may save the opp.parties from any contempt proceedings to be initiated against them, but this fact does not alter the position of law that the order dated 3.2.2004 directing that the agreement of the petitioner with WESCO will not be terminated will remain operative unless the same is modified or recalled by the Court. 8. For the aforesaid reasons, we quash the impugned bill for October, 2003 and direct the opp.parties to revise the said bill in accordance with our observations in this judgment and accordingly revise the bills for the subsequent periods relating to arrears. We also direct the opp.parties to treat the agreement for supply of electricity to be continuing and to continue to supply electricity to the industry of the petitioner. The peti¬tioner will continue to pay the electricity charges to the opp.parties as billed from time to time. The revised bill as directed above will be served on the petitioner within 10 days from to-day and if the petitioner pays the revised bill, the power supply will be restored to the industry of the petitioner forthwith. 9. The writ petition is accordingly disposed of. M. M. DAS, J. I agree. Petition disposed of.