JUDGMENT : B. Mohanty, J. The petitioners have filed the present writ application challenging the judgment and order/award dated 13.7.2018 passed by the learned Ombudsman-I of Electricity, Bhubaneswar (opp. party No.2) in Consumer Representation Case No.OM (I) 57 of 2018 under Annexure-9. They have prayed for quashing of said Annexure-9. 2. The case of the petitioners is that opp. party No.1 which is a builder and developer mainly engaged in construction of apartments for residential and commercial use applied for permission on 20.9.2016 in order to avail power supply of 851 K.W. to its project "Metro Satellite City Phase-III" consisting of 172 flats with details of load break-up. Thereafter, it offered the willingness of the contractor for execution of electrical works. Since the required supply of power was/is not available with its supply system, the petitioners wanted to upgrade the existing 5 M.V.A, 33/11 K.V. Power Transformer to 8 MVA, 33/11 K.V. at Naharkanta Primary Sub-statiion. For this purpose, estimate was made and necessary sanction was granted vide Annexure-2 series. Pursuant to this, permission letter dated 19.1.2018 was issued to the opp. party No.1 delineating the terms and conditions therein. The permission letter dated 19.1.2018 has also been filed as a part of Annexure-2 series. In terms of the said letter, the opp. party No.1 completed the work assigned at Serial Nos.3 to 8 but with regard to work covered under Serial Nos.1 and 2, which required 100% deposit of Rs.65,31,637/-, the opp. party No.1 instead of depositing the said amount, approached the Grievance Redressal Forum, for short, "GRF" on 6.4.2018 by filing Complaint Case No.156 of 2018 making the following prayers: "1. Direct the O.P.1 to extend immediate line connections/power supply to the Phase-III of Metro Satellite City for 172 number of flats consisting of six blocks for their immediate living and non-harassment. 2. Directing the opposite parties 1 to 3 to consider the additional cost for upgradation of 5 MVA transfermor to 8 MVA transfermor installed by it at Grid Sub-station at Naharkanata to be remunerative. 3. Direct the Opposite Parties 1 to 3 (CESU) not to demand the entire cost of Rs.65,31,637/- (rupees sixty five lakhs thirty one thousand six hundred thirty seven) only (Gross) as made in (Annexure-X). 4. And any other relief/s as the Hon'ble Court deems fit and proper in the interest of equity and justice. 5. 3. Direct the Opposite Parties 1 to 3 (CESU) not to demand the entire cost of Rs.65,31,637/- (rupees sixty five lakhs thirty one thousand six hundred thirty seven) only (Gross) as made in (Annexure-X). 4. And any other relief/s as the Hon'ble Court deems fit and proper in the interest of equity and justice. 5. And for which act of your kindness the petitioner shall remain grateful and everpray and enquire as to how if the petitioner makes the entire payment of Rs.65,31,637/- for upgradation charges to CESU, will get back the said amount through remunerative scheme, when the flat owners cum prospective consumers will pay the amount directly to CESU." 3. The present petitioners as opp. parties filed their objection under Annexure-4. Upon hearing the parties, Complaint Case No.156 of 2018 was disposed of vide Annexure-5 dated 28.4.2018 by passing the following order: "If power supply is to be provided individually as per estimate, then Letter No.24881, dated 08.11.2017 of Sr. GM (Tech), CESU to be strictly followed. Otherwise if complainant agrees, the complainant may be given opportunity to avail power supply at one point at HT & in remunerative calculation capital cost will be only for power transformer upgradation cost & 11 KV line upgradation cost. Secondly, revenue return at HT tariff may be calculated. Power supply may be effected confirming to the Regulation i.e. procedure for determination of remunerative norms in Appendix-1 where basis will be 1 or 2 above. Remunerative calculation regarding HT point power supply on the basis of Point No.2 will be submitted by the Licensee to the petitioner within 3 days from the issues of this order so as to enable his willingness to execute the works if agrees. xxx xxx xxx xxx" 4. Accordingly, vide Annexure-6, the remunerative calculation was given to opp. party No.1 further reiterating how the issue involved was non-remunerative in nature. The opp. party No.1 did not agree to take single point power supply and being aggrieved by the order of learned "GRF", filed Consumer Representation Case No.57 of 2018 before the learned Ombudsman-I (opp. Accordingly, vide Annexure-6, the remunerative calculation was given to opp. party No.1 further reiterating how the issue involved was non-remunerative in nature. The opp. party No.1 did not agree to take single point power supply and being aggrieved by the order of learned "GRF", filed Consumer Representation Case No.57 of 2018 before the learned Ombudsman-I (opp. party No.2) with the following prayers: "That, in view of the above submissions, it is prayed that the Hon'ble Ombudsman (I) be pleased to set aside the Order dated 28.04.2018 of the GRF, CESU, Bhubaneswar and pass Orders as follows: (i) Direct the Respondents to meet the expenses towards augmentation of capacity, if required, of Naharakanta 33/11 KV sub-station. (ii) Direct the Respondents to immediately extend power supply to the individual owners of the flats in Metro Satellite City, Phase-III, who are undergoing severe stress being unable to take possession despite the petitioner having already executed the works under Part-II of Letter dated 08.11.2017 of the Respondent No.1, vide Annexure-2." There, the petitioners filed their objection and additional objection under Annexure-8 wherein they took the plea that opp. party No.1 is not a 'consumer' and also took the plea as to how opp. party No.1 has changed its prayer before opp. party No.2 vis-a-vis the prayer made by it in Complaint Case No.156 of 2018 before the "GRF". Ultimately on 13.7.2018 the impugned judgment and order/award were passed by the opp. party No.2 under Annexure-9 allowing the prayer of opp. party No.1 and directing the present petitioners to extend the new power supply to 172 number of individual owners of Metro Satellite City Phase-III after receiving the necessary deposits, charges and fees as applicable to individual consumers. 5. Mr. Dash, learned counsel for the petitioners submitted that though in the impugned judgment under Annexure-9, opp. party No.2 has noted the contentions of the petitioners that opp. party No.1 is only a developer and not a consumer as defined under the Electricity Act, 2003, for short, "the Act", however, the opp. party No.2 without discussing the said objection and without answering the said issue, has gone ahead with deciding the matter for which the impugned judgment is vitiated in law. party No.1 is only a developer and not a consumer as defined under the Electricity Act, 2003, for short, "the Act", however, the opp. party No.2 without discussing the said objection and without answering the said issue, has gone ahead with deciding the matter for which the impugned judgment is vitiated in law. In this context, he relied on Sub-section (6) of Section 42 of "the Act" which makes it clear that a consumer who is aggrieved by non-redressal of his grievance under subsection (5) may move the Ombudsman and accordingly contended that unless the opp. party No.1 is a consumer, the opp. party No.2 cannot assume jurisdiction to decide the matter under sub-section (6) of Section 42 of "the Act". He submitted that the opp. party No.2 has gone wrong in ignoring the provisions of a Parliamentary Enactment. He also argued that though it was pointed out in their objection that the prayer made by opp. party No.1 before opp. party No.2 is totally different from the prayer made by it before the "GRF", however, the learned Ombudsman has also not applied its mind to that aspect of the matter and has illegally directed to extend the power supply to individual owners/individual consumers, who were not parties before it and who have never moved it. In such background, he submitted that the learned Ombudsman (opp. party No.2) has acted with material irregularity and in excess of jurisdiction vested in it. He further submitted that from a perusal of prayer No.3 made before "GRF", it cannot be said that opp. party No.1 was not willing to make any payment rather its grievance was it should not be saddled with the entire cost. With regard to finding of the learned Ombudsman on availability of surplus power supply by making various adjustment of tap positions of two transformers, he submitted that such conclusion is not backed by any expert opinion. In fact with regard to possible parallel operation of transformers, no plea was ever raised by opp. party No.1 in its petitions either before "GRF" or before the opp. party No.2 in order to enable the petitioners to meet such technical points. He also attacked the various findings of the opp. party No.2 found under the heading "Observation" of the impugned judgment by stating that without deciding the objection of the petitioners with regard to status of the opp. party No.2 in order to enable the petitioners to meet such technical points. He also attacked the various findings of the opp. party No.2 found under the heading "Observation" of the impugned judgment by stating that without deciding the objection of the petitioners with regard to status of the opp. party No.1 as consumer, opp. party No.2 illegally directed supply of energy to individual consumers, who were not before it. He also took serious exceptions to the acceptance by the opp. party No.2 of two alternative modes of calculation of remunerative norms as submitted by opp. party No.1 by stating that a reading of such alternative calculations made at internal pages 12 to 13 of the impugned judgment reveal serious arithmetical errors and further such calculation has not been done in tune with the mode of calculation as provided in Appendix-I referred to in Regulation 13 of O.E.R.C. Distribution (Conditions of Supply) Code, 2004. He particularly pointed out that there two values have been assigned to "X" component without any reason. At one place while value of "X" has been indicated as Rs.86,22,799/- at another place, it has been shown to be Rs.98,86,904/-. He also pointed out the calculation relating to operating surplus (Y-X) is totally faulty. Further while calculating "Y" component, "O" and "R" components as indicated under Appendix-I have not been taken into account. Further, he submitted that while the learned Ombudsman has quoted parts of Section 42 and Section 43 of "the Act", he has completely forgotten Section 46 of "the Act", which speaks of legal permissibility of a licensee to recover the expenses in providing any electric line/electric plant for giving power supply. With regard to observation of learned Ombudsman on Regulation 13 (5) (c) of O.E.R.C. Distribution (Condition of Supply) Code, 2004, he submitted that application of the same will arise only when opp. party No.1 is a consumer not otherwise. But here, despite dispute being raised on the said issue, the opp. party No.2 has remained silent. For all these reasons, he reiterated that the judgment and order of the learned Ombudsman is vitiated and thus liable to be set aside. 6. Mr. Agarwal, learned counsel appearing for opp. party No.1 is a consumer not otherwise. But here, despite dispute being raised on the said issue, the opp. party No.2 has remained silent. For all these reasons, he reiterated that the judgment and order of the learned Ombudsman is vitiated and thus liable to be set aside. 6. Mr. Agarwal, learned counsel appearing for opp. party No.1 vehemently defended the impugned judgment and order/award under Annexure-9 and submitted that no exception can be taken to the order passed by the learned Ombudsman as under Section 42 of "the Act", a licensee is under a duty to develop and maintain an efficient distribution system and under Section 43 of "the Act", a licensee is bound to give electricity supply when asked. Secondly, he submitted that there exists two transformers at Naharakanta Primary sub-station, one is of 8 M.V.A. capacity and other is of 5 M.V.A. capacity and as per the load data supplied by the petitioners, the peak load in summer is 10 M.V.A., therefore, balance 3 M.V.A. load is available for supply by load sharing between 2 transformers. Therefore, opp. party No.2 has rightly observed that no upgradation of transformer is required. Thirdly, without prejudice to the above, he submitted that when according to the petitioners 5 MVA transformer at Naharkanta Primary substation is over-loaded and requires to be up-graded to 8 MVA, why entire cost of upgradation should be saddled on opp. party No.1 when the demand of opp. party No.1 is only to the tune of 847 K.W. Lastly, he submitted that the remunerative norms apply only in case of single beneficiary or a group of beneficiaries and not in the present case where there are thousands of consumers and proposed upgradation is not for exclusive use of opp. party No.1. Further, he submitted that the petitioners have not moved any application before Odisha Electricity Reforms Commission, "for short, "the O.E.R.C." for getting permission under Regulation 13 (5) (c) of O.E.R.C. Distribution (Condition of Supply) Code, 2004 and hence it cannot demand the charges. Therefore, he submitted that the directions given by the learned Ombudsman for extending new power supply to 172 new individual owners/consumers vide Annexure-9 is legal and justified and should not be intereferred with. 7. Heard Mr. Dash, learned counsel for the petitioners and Mr. Mohit Agarwal, learned counsel for opp. party No.1. 8. Perused the L.C.Rs. Therefore, he submitted that the directions given by the learned Ombudsman for extending new power supply to 172 new individual owners/consumers vide Annexure-9 is legal and justified and should not be intereferred with. 7. Heard Mr. Dash, learned counsel for the petitioners and Mr. Mohit Agarwal, learned counsel for opp. party No.1. 8. Perused the L.C.Rs. and date charts filed by both the petitioners and opp. party No.1. 9. A perusal of records, more particularly the objections of the petitioners under Annexure-8 clearly show that they have raised the plea that opp. party No.1 is not a consumer as has been defined under "the Act" and though this has been noted by learned Ombudsman in its judgment under Annexure-9, however, it has not rendered any finding on the same either by accepting such contention or rejecting it keeping in mind the relevant provisions under sub-section (15) of Section 2 and sub-section (6) of Section 42 of "the Act". This clearly is an error apparent on the face of the record. The learned Ombudsman ought to have given a finding on the same keeping in mind the grievance of opp. party No.1 relating to extending power supply to 172 flats. Unless the learned Ombudsman comes to a conclusion that the aggrieved party before it is a consumer as defined under "the Act", he cannot assume jurisdiction to proceed in the matter. Secondly, it is not disputed that the individual flat owners/individual consumers have neither approached the learned "GRF" nor approached the learned Ombudsman (opp. party No.2). The grievance of the opp. party No.1 as can be gathered was/is pertaining to non-supply of electricity to the flats, which are to be finally delivered to the allottees after supply of electricity as indicated at para-4 of the grievance petition filed before the "GRF" under Annexure-3. In such background, direction by the learned Ombudsman to extend new power supply to 172 individual owners/consumers on payment of necessary charges defies all logic and is clearly an error apparent on the face of record. 10. Now to various submissions of Mr. Agarwal, learned counsel representing the opp. party No.1. In such background, direction by the learned Ombudsman to extend new power supply to 172 individual owners/consumers on payment of necessary charges defies all logic and is clearly an error apparent on the face of record. 10. Now to various submissions of Mr. Agarwal, learned counsel representing the opp. party No.1. While defending the impugned judgment and order, his first submission was that the learned Ombudsman has committed no error in passing the impugned judgment and order under Annexure-9 as under sub-section (1) of Section 42 and sub-section (1) of Section 43 of "the Act", a licensee is bound to develop and maintain an efficient distribution system and bound to supply electricity on demand. However, a perusal of sub-section (1) of Section 42 of "the Act" makes it clear that the licensee has also to maintain an economical distribution system. Thus, a licensee has to maintain balance and is not expected to suffer economically while supplying electricity and go out of business. For this purpose, Section 46 of "the Act" authorises a licensee to recover expenses incurred in providing any electric line or electric plant used for the purpose of supplying energy. Further as indicated earlier, since the opp. party No.2 has passed the judgment without determining the status of opp. party No.1 as consumer, he had no jurisdiction to proceed in the matter. So far as the 2nd submission of Mr. Agarwal defending the finding of the learned Ombudsman for supply of energy without upgrading the transformer by load sharing between the two transformers by doing various adjustments of tap position of both transformers is concerned, a perusal of records shows such things including possible parallel operation of two transformers to get electricity supply were never pleaded by the opp. party No.1 either before the "GRF" or before opp. party No.2. The written submission dated 4.7.2018 filed on behalf of opp. party No.1 shows conflicting stands taken by the parties on the said issue during hearing. The opp. party No.2 has accepted the version of opp. party No.1 without obtaining any expert opinion in the matter. This also makes the finding of opp. party No.2 on the said issue perverse. With regard to 3rd submission of Mr. Agarwal as to why opp. party No.1 should be saddled with entire cost as it is going to avail supply of only 847 K.W., it seems opp. party No.1 without obtaining any expert opinion in the matter. This also makes the finding of opp. party No.2 on the said issue perverse. With regard to 3rd submission of Mr. Agarwal as to why opp. party No.1 should be saddled with entire cost as it is going to avail supply of only 847 K.W., it seems opp. party No.2 has not applied his mind to that aspect of the matter as he has rejected the remunerative calculation given by petitioners while accepting remunerative calculations given by opp. party No.1 without assigning any reason though those contained wrong arithmetical calculation. Further, as rightly contended by Mr. Dash, even the two alternative calculations do not reflect the same being done keeping in mind requirements of Appendix-1 as referred to in Regulation 13 of O.E.R.C. Distribution (Conditions of Supply) Code, 2004. This again shows non-application of mind by the learned Ombudsman. With regard to last submission of Mr. Agarwal regarding requirement of petitioners to get permission under Regulation 13 (5) (c) before demanding charges, it can be said that such submission is without any merit as the said Regulation again clearly requires involvement of the consumer in the entire process. Therefore, unless the status of opp. party No.1 as a consumer under "the Act" is decided, the said opp. party cannot advance any plea based on the said provision. 11. For all these reasons, the impugned judgment dated 13.7.2018 passed by the learned Ombudsman-I of Electricity, Bhubaneswar in Consumer Representation Case No.OM (I) 57 of 2018 under Annexure-9 is set aside and the matter is remitted back to the opp. party No.2 with a direction to take a fresh decision in the matter within a period of six weeks from the date of production of the certified copy of the judgment by giving reasonable opportunity of hearing to both the parties. With the aforesaid observations and directions, the writ application is disposed of. L.C.Rs be sent back forthwith.