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2006 DIGILAW 373 (ORI)

EXECUTIVE ENGINEER KENDRAPARA ELECTRICAL Division, CESCO, KENDRAPARA v. BIBHU Ranjan PARIDA

2006-05-12

L.MOHAPATRA

body2006
L. MOHAPATRA, J. ( 1 ) THE petitioner in this writ application challenges the order dated 2-11-2005 passed by the learned additional District Judge, Kendrapara in F. A. O. No. 75 of 2005 directing stay of operation of the order passed by the learned Civil judge (Junior Division), Kendrapara in an application for injunction excepting the order of temporary injunction restraining the petitioner from disconnecting the power supply to the ground and first floor of the suit premises pending disposal of the suit. ( 2 ) FROM the record, it appears that the opposite parties have filed Title Suit No. 549 of 2001 against the petitioner for permanent injunction restraining him from disconnecting the power supply to the house in question. In the said suit, an application vide misc. Case No. 274 of 2001 was filed for interim protection and another application vide Misc. Case No. 280 of 2001 was filed for restoration of the power supply. Both the misc. Cases were heard by the learned Civil judge (Junior Division), Kendrapra and were disposed of together by a common order restraining the petitioner from disconnecting the power supply to the ground and first floors of the suit premises till disposal of the suit or Consumer Dispute Case No. 17 of 2000 whichever is earlier subject to compliance of the order passed on 5-2-2001 by the State Consumer Disputes Redressal commission within a period of two months, failing which, the order of injunction shall be treated as inoperative. Challenging the said order, the opposite parties preferred f. A. O. No. 75 of 2005 before the learned additional District Judge, Kendrapara and prayed for interim direction. The learned additional District Judge in the impugned order stayed operation of the order dated 3-9-2005 passed by the learned Civil Judge (Junior Division), Kendrapara excepting the order of temporary injunction restraining the present petitioner from disconnecting the power supply to the ground and first floor of the suit premises till disposal of the appeal. ( 3 ) SHRI B. K. Nayak, the learned counsel appearing for the petitioner drew attention of the Court to the order passed by the District Consumer Disputes Redressal Forum, kendrapara in C. D. Case No. 17 of 2000 as well as the order passed by the State Consumer Disputes Redressal Commission in c. D. Appeal No. 476 of 2000. ( 3 ) SHRI B. K. Nayak, the learned counsel appearing for the petitioner drew attention of the Court to the order passed by the District Consumer Disputes Redressal Forum, kendrapara in C. D. Case No. 17 of 2000 as well as the order passed by the State Consumer Disputes Redressal Commission in c. D. Appeal No. 476 of 2000. Referring to the aforesaid two orders, it was contended by Shri Nayak that the opposite parties for the self-same relief had approached the district Consumer Forum in C. D. Case No. 17 of 2000 and on 31-8-2000 the District Forum directed the present petitioner to revise the bills under challenge for the period from November, 1997 till date of order in respect of consumer No. C-2-B/72 corresponding to old No. D-2-B/72 as per terms and conditions of the agreement made between the parties at the time of power supply. The opposite parties were also directed to deposit the entire bill amount with the petitioner in 12 (twelve) equal monthly instalments in respect of consumer No. D-2-B/72 after revision is made by the petitioner in the manner directed in the order and that the opposite parties shall replace a new meter with T. P. Box at their own cost against the connection having consumer No. D-2-B/72 and submit the test report duly signed by the Electrical Contractor with the petitioner. This should be done in respect of the first floor within one month. The petitioner was also directed to adjust the bill amount, if already paid by the opposite parties for the month of November onwards calculating on the basis of the domestic tariff with the unpaid bills of the subsequent months. The petitioner was also directed to provide power supply within three days. Challenging the said order passed by the district Forum, the petitioner had approached the State Consumer Forum vide c. D. Appeal No. 476 of 2000. During pendency of the said C. D. Appeal, an interim order was passed on 28-9-2000 by the appellate authority directing the opposite parties to deposit Rs. 25,000/- for the purpose of restoration of power supply and there was also a direction for payment of current dues from time to time regularly. During pendency of the said C. D. Appeal, an interim order was passed on 28-9-2000 by the appellate authority directing the opposite parties to deposit Rs. 25,000/- for the purpose of restoration of power supply and there was also a direction for payment of current dues from time to time regularly. On the basis of the above orders, Shri Nayak, the learned counsel appearing for the petitioner contended that the opposite parties in order to avoid compliance of the direction of the State consumer Forum filed the suit for permanent injunction. When the aforesaid two orders were brought to the notice of the learned Civil Judge (Junior Division) in course of hearing of the interim applications, the learned Civil Judge while disposing of the said Misc. Cases for interim protection directed that the petitioner shall not disconnect the power supply to the suit premises both in first and ground floors till disposal of the suit or till disposal of the C. D. Case no. 17 of 2000 whichever is earlier and also subject to compliance of the direction of the state Consumer Forum for payment of Rs. 25,000/- towards arrear dues and payment of current dues regularly. According to Shri nayak, the order passed by the State consumer Forum cannot be directly or indirectly touched by the civil Court and in the impugned order the learned Additional District judge practically stayed the direction of the state Consumer Forum and, therefore, such order is not sustainable. Shri Manoj Mishra, the learned counsel appearing for the opposite parties, on the other hand, contended that the suit premises consists of two floors having two separate connections. The consumer number so far as first floor is concerned, is S/c Est-370 under domestic category. The ground floor connection bears consumer No. D-2-B-72 with contract demand of 1 K. W. under domestic category. The suit was filed because of the reason that so far as ground floor is concerned, though the same relates to a domestic category, in contravention of the agreement, bills were submitted in respect of the said consumer number by changing the number from D-2-B-72 to C-2-B-72 under commercial category with enhanced contract demand of 3. 5 K. W. According to Shri Mishra, the same having been done illegally, the opposite parties are not liable to pay the bills on the commercial tariff when the meter is used for the domestic purpose. 5 K. W. According to Shri Mishra, the same having been done illegally, the opposite parties are not liable to pay the bills on the commercial tariff when the meter is used for the domestic purpose. Shri B. K. Nayak, the learned counsel appearing for the petitioner on the other hand, objected to the said submission stating that the ground floor had been given on rent and on the request of the tenant as well as the opposite parties, a new meter was installed enhancing the load from 1 K. W. to 3. 5 K. W. and the category was changed from domestic to commercial as commercial activities were being carried on by the tenants of the opposite parties on the ground floor. ( 4 ) FROM the submissions made by the learned counsel for the parties, it is clear that the suit premises consist of two floors having two separate electric connections. Initially both the floors had two separate meters bearing different consumer numbers and the bills were being prepared taking into consideration the domestic tariff. After the ground floor was rented out, the power supply to the said floor was changed considering the demand of the tenant and the load factor was enhanced from 1 K. W. to 3. 5 K. W. and the category was changed from domestic to commercial. Therefore, the dispute relates to the ground floor and not the first floor. There is no dispute that the petitioner had approached the District Consumer Forum and the District Consumer Forum passed the order as indicated earlier and the matter is lying before the State Consumer forum. There is also no dispute that the state Consumer Forum directed the opposite parties to deposit Rs. 25,000/- towards arrear electrical dues and also directed them to go on paying the current dues. Shri Mishra, the learned counsel appearing for the opposite parties contended that the bills are being submitted in respect of the ground floor, treating it as commercial supply and since the tenant is no more there, they are not liable to pay as per the rate prescribed for the commercial category. Shri nayak, the learned counsel appearing for the petitioner, on the other hand, submitted that till today the opposite parties have not applied to the office of the petitioner for changing the nature of supply and, therefore, the supply continues to be commercial one. Shri nayak, the learned counsel appearing for the petitioner, on the other hand, submitted that till today the opposite parties have not applied to the office of the petitioner for changing the nature of supply and, therefore, the supply continues to be commercial one. In my view, if the dispute relates to supply of electricity to the ground floor, there is no reason why supply of electricity to the first floor shall be stopped when admittedly there are no arrear dues in respect of the first floor. The learned counsel Shri Nayak appearing for the petitioner submitted that if the power supply is restored to the first floor, the opposite parties may divert the connection to the ground floor and may not be affected at all, even if power supply is disconnected to the ground floor. It is difficult to accept such a contention since the petitioner is at liberty to check the premises time and again and if any such act is done by the opposite parties, they can be penalized for the same. Shri Nayak, the learned counsel for the petitioner could not place any provision, which provides for disconnection of power supply to one meter for default in payment in respect of another meter installed in the same premises. In absence of any such provision, i am of the view that for non-compliance of the order of the State Consumer Forum, the power supply to the ground floor be disconnected but under no circumstance, the power supply to the first floor can be disconnected, if there is no default in payment of the bill amount in respect of the said floor. ( 5 ) I, accordingly dispose of the writ application with the following directions : i) Electricity supply to the first floor shall be restored subject to payment of bill amount every month. ii) For non-compliance of the order of the state Consumer Forum, electricity supply to the ground floor shall not be restored. iii) If the opposite parties diverted the power supply made to the first floor to the ground floor, action against the said opposite parties as provided under law be taken for such conduct. iv) The appeal pending before the learned additional District Judge, Kendrapara be disposed of as early as possible preferably by the mid of September, 2006, if not disposed of in the meantime. The impugned order is modified accordingly. iv) The appeal pending before the learned additional District Judge, Kendrapara be disposed of as early as possible preferably by the mid of September, 2006, if not disposed of in the meantime. The impugned order is modified accordingly. Order accordingly.