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2014 Supreme(Ori) 553
HIGH COURT OF ORISSA : CUTTACK
B.K. PATEL, J.
Dwaraka Resorts Pvt. Ltd. - Petitioner
Versus
State of Orissa and others - Opposite Parties
W.P.(C) NO.10928 of 2007
Decided On : 23.12.2014
Advocate Appeared:
For Petitioner: M/s. Milan Kanungo, D.Pradhan, Y.Mohanty, S.K. Mishra and S.N. Das
For Opp. Parties : Mr. S.K.Patnaik (Special Counsel), U.C. Mohanty, P.K. Patnaik, N. Satpathy, D.P.Das ( for O.P.No.1), Shri B.K.Nayak ( for O.P.Nos.2 to 4)
M/s Biswajit Mohapatra and S.K. Sahoo ( for O.P.No.5)
Headnote:1. ELECTRICITY (SUPPLY) ACT, 1948 - Sec.78-A - State is entitled to change or alter economic policies - Beneficiaries do not have any vested right to enjoy the concessions granted to them forever, particularly when the Electricity Board is constituted and incorporated under the provisions of the Electricity (Supply) Act, 1948 - Board being an independent entity, the duty and functions of the Board vis-a-vis the State are enumerated in the said Act - Board would be bound by any direction issued by the State Government on the questions of policy - With regard to the dispute which may arise as to whether a question is or is not a question of policy, involving public interest, the Central Government is the final arbiter - Policy decision adopted by the State on the basis whereof the Board felt obligated to supply electricity in favour of the consumer at industrial tariff rate must, therefore be understood in the context of Sec.78-A of the 1948 Act - What is binding on the Board is the policy of the State - Director of the State was to apply a particular category of tariff to the consumer - Such directions could have been withdrawn while making another tariff - State indisputably has the power to grant subsidy from its own coffers instead of directing the Board to grant concession. (Para-16)
2. ELECTRICITY ACT, 2003 - Sec.108 - Electricity Regulatory Commission is bound to be guided by directions in matters of policy involving public interest as the State Government may give and in case of dispute decision of the State Government shall be final - The Section does not contain any provision with regard to grant of subsidy.
Section 108 of the Electricity Act, 2003 not only mandates that in the discharge of its functions, the State Electricity Commission is to be guided by directions issued by the State in matters of policy involving public interest, but also recognizes the dominant position of the State Government in deciding as to whether any direction issued by the State Government relates to a matter of policy involving public interest. In other words, in the matter of policy involving public interest, decision of the State Government is final. All the instrumentalities of the State are required to speak with one voice. (Para-21 to 24)
JUDGMENT :
B.K. PATEL,J.
The petitioner has filed this writ petition praying to :-
(i) quash disconnection notice No.8332 dated 7/8/2007 issued by the Manager(Electrical) City Dist. Division No.I Ranihat, Cuttack/opposite party no.4 under Annexure-1;
(ii) direct the opposite parties to bill the petitioner hotel at Medium Industrial Tariff as per the Industrial Policy 2001;
(iii) quash the order of the O.E.R.C. dated 22.3.2005 (Annexure-7) and direct opposite party no.2(CESU) to supply power to the petitioner-hotel under Industrial Tariff.”
2. Petitioner is a hotel and registered under the Companies Act, 1956.
3. Petitioner’s case is that dispute between the petitioner and electricity distribution licensee CESU represented by opposite party nos. 2 to 4 with regard to consumption of electricity by the petitioner exceeding contract demand compelled the petitioner to institute O.J.C.No.6772 of 1999 which was disposed of by this Court by order dated 18.5.2006 directing opposite party no.4-Executive Engineer-cum-Manager(Electrical), CESU to look into the petitioner’s grievances upon filing of representation. Pursuant to such direction, an enquiry committee was constituted by opposite party no.4. Upon enquiry the committee passed resolution at Annexure-2 containing the following order:-
“Hence, it is ordered that:
1. A domestic connection of 22KW will immediately be provided to the consumer by upgrading existing single-phase consumer.
2. The consumer is also directed to execute a fresh agreement for 95KW of load, with retrospective effect from Jan’99 if not executed earlier observing the Departmental formalities with the Executive Engineer(El.), City Distribution Division No.1 Cuttack within 15(fifteen) days of issue of the Order.
3. The billed amount up to 12/96 may be paid by the consumer for which there is no dispute. After 01/99 the bill may be re-casted basing on the Maximum Demand recorded taking 95KW to be the CD.
4. The consumer may clear any electricity dues pending on single-phase connection before availing the new service connection. This may be given effect from 15 days of issue of this order.
5. The penalty charges for the months, the MD exceeded than the CD may be billed in the appropriate tariff. Overdrawal penalty (beyond 95KW) may be re-casted with retrospective effect from 01/99.
6. The total amount due after revision of the bill may be paid by the party within one month from receipt of the revised bill.
7. The Executive Engineer may observe other Departmental formalities as per Rule.”
In accordance with the above directions, opposite party no.3-Superintending Engineer issued to the opposite party no.4 letter dated 21.8.2006, copies of which are at Annexure-3 to the writ petition and Annexure-B/4 to the counter affidavit filed on behalf of opposite party nos.2 to 4, to impress upon the petitioner to execute fresh agreement for 95 KW of load with retrospective effect from the month of January, 1999 and for recasting the bills accordingly. It was also mentioned in the letter that tariff of Medium Industries category would be applicable and continue after execution of fresh agreement with retrospective effect from January,1999. In accordance with the directions contained in the letter at Annexure-3 the petitioner sent standard agreement duly signed by the petitioner with a request to the Executive Engineer to execute agreement and to send the duplicate copy to the petitioner. It is further averred that opposite party no.4-Executive Engineer-cum-Manager (Electrical) having insisted the petitioner to execute fresh agreement for contract load of 100 KW contrary to the specific direction in the resolution at Annexure-2 as well as letter of the opposite party no.3 at Annexure-3, petitioner preferred W.P.(C) No.16467 of 2006 before this Court with a prayer to quash the order passed by opposite party no.4-Executive Engineer-cum-Manager(Electrical). The writ petition was disposed of by order dated 11.5.2007 allowing the praye
