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IN THE HIGH COURT OF ORISSA, CUTTACK
K.R.Mohapatra, J.
M/s. Sadguru Metalliks - Appellant
Versus
Tata Power Western Odisha Distribution Limited (tpwodl), Rajgangpur. - Respondent
W. P. (C) No. 6458 of 2020
Decided On : 27-08-2021
Companies Act, 1956 - Reduction in Contract Demand - OERC Code - [Clause-70, Clause-71] - The court quashed the letter dated 17th December, 2019 issued by the Licensee and directed the Licensee to give effect to the Reduction in Contract Demand (RCD) from 1st December, 2015 and communicate the same to the Consumer within a period of one month from the date of production of certified copy of the order.
Fact of the Case:
The Consumer, a Company incorporated under the Companies Act, 1956, sought Reduction in Contract Demand (RCD) from 5700 KVA to 3900 KVA. The Licensee initially allowed the application but later cancelled the permission for reduction. The Consumer approached the OERC and the Ombudsman directed the Licensee to allow RCD from December 2015. The Licensee moved the Court assailing the order, and the Court directed the Consumer to appear before the Licensee to fix a date for execution of the agreement. The agreement was executed on 19th May, 2017, but the Licensee did not adhere to the direction of the Ombudsman and the Court.
Finding of the Court:
The court found that the RCD should have been made effective from 1st December, 2015 as per the OERC Code, and the terms and conditions of the agreement mutually agreed upon cannot override the law. The court also held that there is no estoppel against law and the Consumer is not estopped to challenge the agreement. The court further found that the writ petition is maintainable despite the availability of an alternate remedy under Section 146 of the Electricity Act, 2003.
Issues: The issues considered by the court were: (i) Whether the Consumer is entitled to the benefit of RCD from 1st December, 2015? (ii) Whether the Consumer is estopped to claim benefit of RCD from a retrospective date, when the agreement was executed on 19th May, 2017 on the terms and conditions mutually agreed upon? (iii) Whether the writ petition is maintainable in view of availability of the alternate remedy?
Ratio Decidendi: The court held that the RCD should have been made effective from 1st December, 2015 as per the OERC Code, and the terms and conditions of the agreement mutually agreed upon cannot override the law. The court also found that there is no estoppel against law and the Consumer is not estopped to challenge the agreement. The court further held that the writ petition is maintainable despite the availability of an alternate remedy under Section 146 of the Electricity Act, 2003.
Final Decision: The court quashed and set aside the letter dated 17th December, 2019 issued by the Licensee and directed the Licensee to give effect to the RCD from 1st December, 2015 and communicate the same to the Consumer within a period of one month from the date of production of certified copy of the order.
JUDGMENT
K.R. Mohapatra, J. - The Petitioner, a Company incorporated under the Companies Act, 1956 (for convenience referred as 'the Consumer'), calls in question the legality and propriety of Letter No. WESCO 563 dated 17th December, 2019 (Annexure-1) issued by the Chief Operating Manager (Opposite Party No.2), WESCO Utility (now Tata Power Western Odisha Distribution Limited and for convenience referred as 'the Licensee'), inter alia refusing to accept the request of the Consumer to give benefit of Reduction in Contract Demand (for convenience referred as 'RCD') with effect from 1st December, 2015 and consequently rejecting the representation filed by the Consumer.
2. Short narration of facts relevant for proper adjudication of this case are stated thus:
2.1 The Consumer made an application to the Licensee on 26th November, 2015 for RCD from 5700 KVA to 3900 KVA (Annexure-2). The Superintending Engineer, Electrical Circle, Rourkela of the Licensee, vide its letter dated 22nd January, 2016 recommended RCD as requested. Though the contract demand was reduced but the said letter reducing the contract demand was communicated to the Consumer by ordinary post vide letter dated 19th May, 2016 (Annexure-3) in which along with other conditions, it was specifically mentioned that the Consumer has to execute an agreement with the Authorized Officer of the Licensee for RCD within a period of thirty days, failing which the permission granted will be cancelled. The said letter under Annexure-3 was not received by the Consumer. Consequently, the Licensee, vide its letter dated 18th July, 2016 (Annexure-4) conveyed the Consumer about cancellation of permission for reduction of the contract demand. Upon receipt of the said letter, the Consumer, vide its letter dated 25th July, 2016 (Annexure-5) conveyed the Licensee about non-receipt of the said letter and requested to execute the agreement. Said request was turned down by the Licensee, vide letter dated 2nd August, 2016 (Annexure-6) and the Consumer was requested to apply afresh for RCD. Subsequent request of the Consumer, vide letter dated 25th August, 2016 (Annexure-7) was also turned down by the Licensee in their letter dated 31st August, 2016 (Annexure-8) informing the Consumer to make fresh application for RCD.
2.2 Thus, the Consumer approached the Odisha Electricity Regulatory Commission (for convenience referred as 'OERC') and the Consumer has been advised to move the President of Grievance Redressal Forum (for short, 'GRF) under the provisions of OERC (Grievance Redressal Forum- Ombudsman) Regulations, 2004 (for convenience referred as 'Regulations, 2004'). On being moved, the GRF, vide its order dated 20th January, 2017 (Annexure-9) directed the Consumer to make fresh application for RCD before the competent authority of the Licensee. The Consumer being aggrieved moved the Ombudsman under the provisions of Regulations, 2004 in Consumer Representation Case No.OM (II) (W)-04 of 2017. Upon hearing the Consumer and the Licensee and on consideration of the materials on record, the Ombudsman by its order dated 27th February, 2017 (Annexure-10) passed the following order:-
'ORDER / AWARD
From the above findings and records submitted by both the parties, this Forum pronounces the following order:
1. The Respondent is directed to allow reduction of contract demand from 5700KV to 3900KVA w.e.f. December 2015 and execute necessary agreement for the same.
The Respondent is directed to implement the above order within 15 days from the date of receipt of letter of acceptance from the Petitioner and file compliance to this Forum within 30 days.
The case is disposed of and closed.'
2.3 Being not satisfied, the Licensee moved this Court in W.P.(C) No.4550 of 2017 assailing the order under Annexure- 10. Upon consideration of the submissions of learned counsel for the parties, the writ petition was disposed of vide order dated 15th May, 2017 (Annexure-11) with the following direction:-
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