EXECUTIVE ENGINEER Vs. OMBUDSMAN-II, (ELECTRICITY),BHUBANESWAR

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to quash the order dated 12.03.2012 passed under Annexure-8 in C.R. Case No.70 of 2011 by the OMBUDSMAN-II holding that the "Hatchery" Unit "M/s Bharasa Hatchery" is coming under Allied Agricultural Activities under Regulation 80(5)(ii) of OERC Supply Code and directing the petitioner- licensee to revise the agreement and bills from February, 2011 till the date on the basis of the applicable tariff and not in General Purpose Tariff (in short, 'G.P. Tariff') within 30 days from the date of issue of the order, with further direction to the opposite party-consumer to resolve the dispute in complaint handling procedure under the licensee to avail benefits under Own Your Transformer (OYT) Scheme on the ground that the said order is illegal, contrary to law and without jurisdiction.

(2.) PETITIONER 's case in a nutshell is that the respondent-opp. Party no.1 in the forum below is one of the supply Engineers of NESCO (Licensee). The petitioner-company (NESCO) is one of the distribution companies, which is granted with the licence by OERC under Section 14(b) of the Electricity Act, 2003 (for short, 'Act, 2003') to distribute electricity as a distribution licensee within the Northern Zone of Orissa. Thus, the petitioner is engaged in business of retail supply of electricity to various consumers within its area of supply. The petitioner as a supply Engineer of NESCO is in charge of the Electrical Division, Baripada in the district of Mayurbhanj. One Bhabani Shankar Jena, Proprietor of M/s. Bharasa Hatchery-opposite party No.2 has executed an agreement on 18.12.2010 for supply of power for a load of 15.00 KW to his Hatchery unit. In terms of such agreement the charges to be paid by the consumer as mentioned in Clause-6 of the agreement is 'General Purpose Tariff' which is otherwise known as 'Commercial Tariff'. As the business activities of the consumer is purely commercial in nature, commercial tariff is applicable to him. The consumer is liable to pay the charges in accordance with the provisions of OERC Distribution (Conditions of Supply) Code, 2004 (in short, "Code, 2004") as notified in the Tariff Notification from time to time. Opp. Party no.2 while running his Hatchery unit as commercial purpose for profit motive continued to pay the charges demanded on G.P. (Commercial Tariff) as stipulated in agreement. While doing so, opp. Party no.2 raised a complaint before the Grievance Redressal Forum (in short, 'GRF') of the licensee-NESCO in GRFCC No.321/2011 praying for revision of the bills from February, 2011 to June, 2011 on the basis of Tariff applicable for the categories of consumers covered under "Allied Agricultural Activities" introduced by OERC in its Retail Supply Tariff order for 2008-2009. Opp. Party no.2- petitioner filed its counter reply objecting applicability of the Allied Agricultural tariff to the complainant-consumer's Hatchery unit. The GRF, Balasore upon hearing the parties and after analyzing the factual as well as legal aspects disposed of C.C. No. 231 of 2011 vide its order dated 29.10.2011 observing that classification of Hatchery unit of opp. Party no.2 under the G.P.S. (commercial) Tariff is legally correct and justified. Opposite Party No.2 being aggrieved by the said order of GRF dated 29.10.2011 approached the OMBUDSMAN-II (Electricity), Bhubaneswar on 29.11.2011 by filing a representation which was registered as C.R. Case No. 70 of 2011. Before the OMBUDSMAN, the present petitioner filed his objection along with the written notes of argument. After hearing both the parties, the OMBUDSMAN passed the impugned order dated 12.3.2012. Hence, the present writ petition.

(3.) MR . Falguni Rajguru Mohapatra, learned counsel appearing on behalf of opp. Party No.2 submitted that opposite party No.2 is a hatchery unit which comes under the poultry activity. The basic aim and objective vis-a-vis purpose as well as the function of the unit is to provide hatching (hatch the eggs to produce chicks). Without chicks poultry activities could not be happened. The OERC introduced a new category of consumer namely, "agro-industrial consumer" vide OERC Distribution (Conditions of Supply) (4th Amendment) Code, 2007. As per Regulation 80(5)(1) of OERC Distribution (Conditions of Supply) Code which defines that "this category relates to supply of power to Pisciculture, Horticulture, Floriculture and other allied agricultural activities including animal husbandry, poultry and cold storage (i.e. a temperature controlled storage where flowers, fruits, vegetables, meat , fish and food etc. can be kept fresh or frozen until it is needed)''. The OERC while determining the annual revenue and retail supply tariff for the Financial Year 2008-09, in paragraph 276 of the tariff order dated 2.3.2008 decided to allow tariff equal to irrigation and pumping category at HT/LT for rapid development of Agro-Industrial Consumer and it was made statutorily effective with effect from 11.9.2007 granting certain tariff benefit to the said category of consumers. By virtue of such amended enactment and the expansion in Regulation 80 of the Code this unit became entitled to be treated as an agro-industrial consumer. The OERC further brought an amendment to the OERC Code as 5th Amendment, 2009 which was published on 9th October, 2009. The Amendment to Regulation 80(5), Chapter-VIII classifies different categories of consumers. Opp. Party no.2-unit is coming under 80(5)(ii). Since opp. Party no.2-unit comes under allied agricultural category, the petitioner should have issued bills according to this category. Without considering the request of opp. Party no.2, the petitioner issued bills applying tariff for G.P. category. Referring to the order dated 27.1.2010 passed by the OERC in Case No.127 of 2009 it is submitted that the hatchery unit comes within the purview of poultry. The OMBUDSMAN after carefully observing the materials has passed the impugned order. The petitioner being a statutory body under the Act, 2003 and OERC Code, 2004 is duty bound to implement the OERC tariff order in letter and spirit.