Unauthorized use of electricity for a purpose other than authorized and in premises other than those for which the supply was authorized constitutes a violation of Section 126 of the Electricity Act and Regulation 106 of the OERC Code.

JUDGMENT

Dr. S. Muralidhar, CJ. - The challenge in this writ appeal is to the judgment dated 17th May, 2013 passed by the learned Single Judge allowing W.P.(C) No.972 of 2012 filed by the Executive Engineer (Electrical), Central Electrical Division, NESCO, Balasore (Respondent No.1), which in turn sought the quashing of an order dated 20th September, 2011 passed by the Appellate Authority-cum-Deputy Electrical Inspector (T & D), Balasore (Respondent No.2) setting aside an assessment order 10th June, 2011.

2. The learned Single Judge held that the order of the Appellate Authority (AA) had been passed in gross violation of the statutory provisions contained in the Electricity Act, 2003 ('the Act') and the Orissa Electricity Regulatory Commission (OERC) Distribution (Conditions of Supply) Code, 2004 (OERC Code).

3. While directing notice to issue in the present Appeal on 16th July 2013, it was directed by this Court that any action taken pursuant to the impugned order of the learned Single Judge would be subject to the result of the writ appeal.

4. The background facts are that the Appellant executed an agreement with Respondent No.1 on 7th April, 1999 for availing power supply with a contract demand (CD) of 83 KW for setting up a rice mill. The CD was enhanced to 160 KVA in August, 2001, to 260 KVA with effect from November, 2003 and to 600 KVA on 30th May, 2012.

5. It is stated that on 5th April 2011, the NESCO intimated the Appellant that as per the records of NESCO, the consumption of electricity by the Appellant was 522 KVA in January, 2011, 498 KVA in February, 2011 and 348 KVA in March, 2011, which exceeded the CD of 340 KVA. NESCO accordingly requested enhancement of CD with reference to Clause 72 of the OERC Code within 15 days of execution of fresh agreement by depositing additional security.

6. According to the Appellant, it deposited the additional security amount on 7th April, 2011 and requested the NESCO for early execution of the agreement. The Appellant stated that it also submitted the details of premises at which the power was proposed to be used by it i.e. private resident, factory, home industry, irrigation pump, domestic, cinema, workshop, restaurant or mill and processing of paddy extraction and refining of oil with its allied and ancillary activities.

7. According to the Appellant, it paid the electricity bills as per the previous meter reading for the period from January to April, 2011. The officials of NESCO undertook a surprise check at the premises of Appellant on 10th May, 2011 at around 10.10 am and found that the Appellant had given an extended load to an under- construction oil refinery unit adjacent to it, for which it used a black colour 35 mm. sq. 31/2 core cable; it had availed power supply from a Distribution Panel Board existing at the premises of the Appellant at a distance of 200 meters. This was found to be in violation of Clauses 34, 104, 105 and 106 of the OERC Code.

8. A provisional assessment order was passed by the Executive Engineer, CED, Balasore, NESCO on 13th May, 2011 under Sections 126 (1) and 126 (2) of the Act alleging unauthorized use of electricity and directing the Appellant to file its objection within 7 days. The provisional assessment was for Rs.15,48,370.88.

9. On 30th May 2011, the Appellant filed its objection and claimed that the allegations raised by NESCO was misconstrued factually as well as legally.

10. The above objection was disposed of by Respondent No.1 on 10th June, 2011 excluding the cost of cubical meter from the provisional assessment and directing an amount of Rs.11,98,934.88 to be paid as final assessment within 15 days.

11. Aggrieved by the above assessment order, the Appellant filed an appeal under Section 127 of the Act before Respondent No.2 AA. On 27th September 2011, the said appeal was allowed, setting aside the final assessment order and directing NESCO to refund 50% of the penal assessment amount deposited with the NESCO by the Appellant or to adjust the s