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2015 Supreme(Ori) 451
IN THE HIGH COURT OF ORISSA
B.R. SARANGI, J.
Executive Engineer (Electrical) WESCO, Sambalpur – Petitioner
Versus
M/s. Maa Tara Rice Industries Pvt. Ltd. – Opposite Party
W.P. (C) No. 8922 of 2015
Decided On : 01-12-2015
For the Petitioners:P.K. Tripathy, S. Patnaik, B.P. Dhal, Advocates.
For the Opposite Parties :F.R. Mohapatra, M.K. Panda, R.K. Nayak, Advocates.
The main legal point established in the judgment is that an auction purchaser cannot be made to pay the liability of the previous consumer for electricity supply, as per the provisions of the Code-2004 and relevant case law.
Headnote:
Electricity - Liability of Auction Purchaser - Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code-2004 - Regulation 13(10)(b), Section 29 of State Financial Corporations Act, 1951 - The court discussed the liability of the auction purchaser under the Code-2004 and the implications of the amendment to Regulation 13(10)(b) on the supplier's ability to recover arrears from the previous consumer. The court also considered the provisions of the Indian Electricity Act, 2003 and relevant case law, including Isha Marbles v. Bihar State Electricity Board, 1995 (2) SCC 648, to determine the auction purchaser's liability.
Fact of the Case:
The petitioner, a supplier of electricity, sought to quash an order directing the grant of load enhancement to the consumer-opposite party, an auction purchaser, and to recover arrears from the previous consumer. The consumer-opposite party contended that the statutory provisions and the agreement with the supplier exempted them from the liability of the previous owner.
Finding of the Court:
The court found that the consumer-opposite party, as an auction purchaser, was not liable to clear the arrears of the previous consumer, based on the provisions of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code-2004 and the amendment to Regulation 13(10)(b). The court also noted that the incorporation of Clause-9 in the agreement raised doubts about the petitioner's conduct, but refrained from expressing an opinion on the matter.
Issues: The issues revolved around the liability of the auction purchaser for arrears of the previous consumer, the interpretation of the agreement between the parties, and the applicability of statutory provisions, including Regulation 13(10)(b) of the Code-2004 and Section 29 of the State Financial Corporations Act, 1951.
Ratio Decidendi: The court held that the auction purchaser was not liable to clear the arrears of the previous consumer, as per the provisions of the Code-2004 and the amendment to Regulation 13(10)(b). The court also refrained from expressing an opinion on the incorporation of Clause-9 in the agreement, leaving it to be considered by an appropriate forum.
Final Decision: The court dismissed the writ petition filed by the supplier, ruling that the Grievance Redressal Forum had not committed any illegality or irregularities in holding that the consumer-opposite party was not liable to clear the arrears of the previous consumer.
JUDGMENT :
B.R. SARANGI, J.
1. The petitioner, who is the supplier of electricity has filed this application to quash the order dated 05.02.2015 passed by the Grievance Redressal Forum, Burla in GRF Case No. 169/2014 under Annexure-10 on the ground that the same is contrary to the conditions stipulated in the agreement and Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code-2004 (in short hereinafter referred to as Code-2004) which has been amended by notification dated 18.08.2010 vide Annexure-1. He further seeks for a declaration that the consumer-opposite party is liable to pay the arrears and liability of erstwhile owner/consumer/occupier of the premises which are recoverable from him in view of amended provision of Code-2004.
2. The factual matrix of the case in hand is that initially the power supply was provided to erstwhile consumer M/s. Jagannath Rice Industries which was under the medium category having consumer No. MI/BRL/080. On the basis of the inventory report dated 16.12.1997 provisional assessment was made on 06.10.1998 imposing penalty of Rs.5,05,816/- against the said consumer. Besides the said provisional penal amount, an arrear monthly electricity bill of Rs.3,94,816/- was also pending against the said unit. Challenging the order of provisional assessment dated 06.10.1998, the erstwhile Rice Mill filed a Consumer Dispute Case No. 219 of 1998 before the learned District Consumer Dispute Redressal Forum, Sambalpur who vide order dated 03.05.1999 disposed of the same stating that there was no deficiency of service on the part of the supplier and observed that the consumer will pay the outstanding dues on instalment basis. Against the said order, the consumer preferred appeal before the State Consumer Dispute Redressal Commission, Cuttack in C.D. Appeal No. 402/1999. During pendency of the appeal, the unit was seized under Section 29 of State. Financial Corporations Act, 1951 and the same was put to auction for sale and sale was confirmed against M/s. Maa Tara Rice Industries Pvt. Ltd. the present opposite party herein. Accordingly, the consumer-opposite party took over possession of the unit on 01.12.2000. On the basis of the application submitted by the consumer-opposite party, the Executive Engineer (Electrical) sought for permission from the Superintending Engineer on 04.12.2000 for restoration of power supply and accordingly permission was granted on the very same date for supply of power of 92 KW (MI) with a further request to the opposite party to deposit an amount of Rs. 1.75 lakh towards arrear energy charges and Rs.71,539/- towards fresh security and execute an agreement. It is further intimated to the consumer-opposite party to clear up all the liabilities of the erstwhile consumer. In compliance with the same, opposite party acted upon the communication made in letter No. 7783 (5) dated 04.12.2000 and paid an amount of Rs. 1,75,000/- out of total monthly arrear dues of erstwhile consumer of Rs.3,94,816/- without any objection and the penal bill of Rs.5,05,816/- was left open awaiting the decision of learned State Consumer Disputes Redressal Commission, Cuttack in C.D. Appeal No. 402/1999. The consumer-opposite party also executed the agreement on 05.12.2000. The arrear which was lying outstanding against the previous consumer was indicated in the bill of opposite party. C.D. Appeal No. 402/1999 filed by the erstwhile consumer was heard on 01.12.2011 and the learned State Consumer Disputes Redressal Commission, Cuttack confirmed the order passed by the District Consumer Disputes Redressal Forum, Sambalpur. The consumer-opposite party applied for enhancement of load from 112.16 KVA to 140 KVA and accordingly, permission was accorded to that effect on 26.05.2014, but before execution of agreement for the said enhanced load, since the appeal preferred by the erstwhile consumer was dismissed, a demand cum-disconnection notice was issued on 12.08.2014. Against the said demand, th
