ORISSA HIGH COURT: CUTTACK W.(P).C. No.14030 OF 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. … Pratap Chandra Pati … Petitioner. -Versus- Central Electricity Supply & Utility (CESU) represented by Executive Engineer, City Distribution Division-1, Ranihat, Cuttack … Opp. Party. For Petitioner : M/s K.K.Rath & Manasi Mohapatra For Opp. Party : Mr. R.N.Acharya P R E S E N T: THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA Heard and Disposed of on 19.08.2010 B.N.MAHAPATRA,J. In this petition, the petitioner challenges the action of the Opp. Party in disconnecting the electricity supply from his residential house where he is living as tenant on the ground that the said action of the Opp. Party is arbitrary, illegal and shrouded with mala fide intention and also prays for restoration of power supply to his house and to pass any other order(s)/direction(s) as this Court deems just and proper. 2. The petitioner’s case in short is that he is a tenant and legal representative of one late Chakradhar Panda who is a consumer of CESU bearing Consumer A/c No.00265786. The opposite party-Central Electricity Supply & Utility (in short “CESU”) with mala fide intention disconnected power supply from the residential house where the petitioner resides as a tenant. After death of said Chakradhar Panda, the real owner of the house, the petitioner and his family members took over possession of the said house and they have been taking care of that house. The relationship of the petitioner with late Chakradhar Panda is nephew and maternal uncle. The petitioner has been paying electricity charges to CESU regularly and has become a bona fide consumer of electricity. The CESU threatened the petitioner to impose more electricity charges by enhancing the load from 2 K.W. to 3 K.W. Due to such threat, the petitioner moved this Court in W.P.(C) No.7474 of 2010 and this Court vide order dated 23.04.2010 issued notice to CESU and granted interim order not to disconnect electricity supply from the house of the petitioner without leave of this Court. The said writ petition was finally disposed of on 19.05.2010 with the observation that it is open for the petitioner to approach the Grievance Redressal Forum within a period of two weeks from the date of order and if the petitioner files an application before the Grievance Redressal Forum, Cuttack, the same should be considered on its own merit without being influenced by the said order of this Court. It was further observed that the apprehension of the petitioner that the authorities proposed to take coercive action against the petitioner is unfounded. Pursuant to the said order of this Court, the petitioner filed a petition before the Grievance Redressal Forum, Cuttack and the latter vide its order dated 24.07.2010 dismissed the complaint on contest giving liberty to the petitioner to make a representation to the Ombudsman-1 within 30 days from the date of its order. Thereafter, power supply has been disconnected from the house of 2 the petitioner as a result of which the entire family of the petitioner is in darkness and facing difficulties. Against such illegal action of CESU, the petitioner has filed the present writ petition. 3. Mr. K.K. Rath, learned counsel appearing on behalf of the petitioner reiterating the averments made in the writ petition submits that no opportunity of hearing was afforded to the petitioner in terms of Regulation 100 of the Orissa Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2004 (for short “Code, 2004”) before disconnecting power supply to the house in which the petitioner is residing with his family. It is further submitted that the term ‘consumer’ as defined in Section 2(15) of the Indian Electricity Act, 2003 (for short ‘Act 2003’) is not only a real owner of a premises but also an occupier, who is the tenant of the premises and using electricity under the said Act. The petitioner is a bona fide consumer and disconnection of power supply by CESU is illegal, which should be restored on humanitarian point of view. The petitioner, it is stated, though has applied for fresh electricity connection in his name, no action on the same has been taken by the CESU as yet. 4. Mr. R.N. Acharya, learned counsel appearing on behalf of the CESU vehemently contended that the petitioner has no locus standi to file this writ petition and the same should be dismissed on the ground of maintainability. The petitioner is a stranger to the CESU. The CESU has no specific knowledge as to whether the petitioner resides or has been authorized to reside in the house of the consumer Chakradhar Panda. Chakradhar Panda is the consumer and bills have been issued in his name. The CESU has no knowledge as to whether the petitioner is a 3 tenant or legal representative of the real consumer-late Chakradhar Panda. The CESU has no knowledge regarding taking over possession of the premises by the petitioner who claims to be staying in the said premises with his family members. The writ petition has been filed suppressing the material facts to put the CESU in trouble. The earlier writ petition bearing W.P.(C) No.7474 of 2010 was disposed of on 19.05.2010 by directing the petitioner to approach the Grievance Redressal Forum as the petitioner had disputed the fact that the meter was not verified by the technical persons. Accordingly, the petitioner approached the Grievance Redressal Forum, Cuttack in C.C. Case No.60 of 2010, which was dismissed on contest. On 08.03.2010, the Squad of the CESU inspected the house/premises of the consumer, Chakradhar Panda, verified the meter status and at the spot prepared the Meter Verification Report. On verification, it was found that the meter status was very slow “speed slow” and on that basis the meter was declared defective. On such verification, the connected load was enhanced to 2 K.W. Accordingly, bills have been issued in the name of the consumer, Chakradhar Panda. The CESU vide its letter No.364 dated 24.04.2010 communicated the consumer regarding replacement of defective meter, but till date the said defective meter has not been replaced. Therefore, provisional bills have been issued to the consumer. Referring to Regulation 55(1) of the Code, 2004 Mr.Acharya justifies the action of the CESU. According to Mr.Acharya, since the petitioner is not a consumer, he is not entitled to any prior notice before disconnection of power supply. Mr. Acharya expresses his ignorance regarding filing of application by the petitioner for fresh connection of electricity. It is 4 stated that if any such application has been filed, the same shall be dealt with in accordance with law. 5. The undisputed facts are that the CESU has granted electricity connection to the premises of one Chakradhar Panda bearing Consumer A/c. No.00265786. The CESU has disconnected power supply from the house of the said consumer late Chakradhar Panda in whose name bills have been issued regularly by it. The petitioner has filed this writ petition claiming himself to be the tenant and legal representative of the consumer late Chakradhar Panda and prayed for issuance of a direction to the CESU to restore electricity supply to the house in question. Even though in paragraph-1 of the writ petition the petitioner has described himself as a tenant and legal representative of late Chakradhar Panda bearing Consumer A/c No.00265786, he fails to adduce any evidence to the effect that he is a tenant and legal representative of the consumer late Chakradhar Panda. Moreover, in the instant case, no step has been taken by the consumer/legal representative of late Chakradhar Panda for restoration of power supply to the house in question. The petitioner is in no way connected with supply of electricity to the house of the consumer late Chakradhar Panda bearing Consumeer A/c. No.00265786. Therefore, he cannot be held responsible towards any demand raised by the CESU at any point of time or for any damage caused to the electrical work done in connection with supply of electricity to the house in question. 6. At this juncture, it is relevant to refer to the findings of the Grievance Redressal Forum given in its order dated 24.07.2010 while 5 dismissing the complaint of the petitioner. The findings of the Grievance Redressal Forum, Cuttack is extracted below: “Since the O.P. disputes the status of Pratap Ch. Pati as complainant-consumer, complainant fails to file any document to the effect that he has been authorized to file this case even though his pleadings and rejoinder imply that he is a tenant and related the consumer. Though the complainant wants to test the meter in Govt. Laboratory, the said meter cannot be removed for testing without the consent of the consumer, i.e., in whose name service connection stands, as there is every possibility that the consumer may raise objection in future to the effect that as to how the meter was removed in absence of his consent. It would have been proper, if the complainant would have filed the consent of the consumer for filing this case, particularly when the same is disputed. Besides, the complainant did not properly explain as to why he failed to produce such a consent. In the aforesaid background, the complaint cannot be accepted as a complainant, as provided in the Code, 2004. In the aforesaid background, the complaint case is liable to be dismissed. Hence the ORDER: The complaint is dismissed on contest.” 7. In course of hearing, the petitioner files a xerox copy of the order passed by the Civil Judge (Sr. Division) 1st Court, Cuttack on a petition under Order-39 Rules-1 & 2 of C.P.C. from which it reveals that the suit bearing No.511 of 2007 filed by the petitioner in respect of the house in question is pending before the Civil Judge (Sr. Division) 1st Court, Cuttack. 8. Referring to Section 2(15) of the Act, 2003 while the petitioner claims that he is a consumer, learned counsel for the CESU strongly contends that the petitioner is not at all a consumer in term of the definition of ‘consumer’ under the Act, 2003. 6 9. The term “consumer” as has been defined in Section 2(15) of the Act, 2003 is extracted as under: “consumer” means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be.” A plain reading of the above provision makes it clear that a person is treated as a consumer under the Act, 2003, if he is supplied with electricity for his own use by a licensee or a Government or by other persons engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force. The said definition also includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be. In the present case, the petitioner is not supplied with electricity for his own use by the CESU. He is not also a person whose premises are for the time being connected for the purpose of receiving electricity with the works of the CESU. The person who is supplied with electricity by the CESU is late Chakradhar Panda bearing consumer A/c No.00265786. The premises to which electricity supply is connected also belongs to late Chakradhar Panda. There is nothing to show that the petitioner is a tenant of the said premises nor any electricity connection has been given in his name. Thus, the petitioner is not a consumer in terms of Section 2(15) of the Act 2003. 7 10. Since the petitioner is not a consumer as per Section 2(15) of the Act, 2003, he is not entitled to any notice as provided under Regulation 100 of the Code, 2004 before disconnection of supply of electricity from the residential house of the consumer, late Chakradhar Panda. 11. In view of the above, this Court is not inclined to issue any direction to opposite party-CESU to restore power supply to the house of the consumer, late Chakradhar Panda bearing consumer A/c No. 00265786 on the prayer of the petitioner. 12. The judgment of the Bombay High Court in the case of Fatechand Murlidhar and etc. v. Maharashtra State Electricity Board, Nagpur and etc., AIR 1985 Bom. 71, is not applicable to the case of the petitioner as the facts of that case are completely different from the facts of the case in hand. In Fatechand Murlidhar (supra), the applicants were the owners of their respective buildings and they had filed revision applications before the High Court of Bombay against the decree passed by the Court of Small Causes at Nagpur for consumption of electricity by their tenants. The Maharashtra State Electricity Board filed suits in the Court of Small Causes at Nagpur against the applicant-owners and their tenants for recovery of arrear charges for electrical energy supplied to the tenants. The admitted fact in that case is that on the application of the tenants in each case, service connection for business lighting was given to the tenants in occupation of their respective premises and the applicants-owners are sought to be made liable by the Maharashtra State Electricity Board for electrical energy supplied to the tenants and 8 consumed by the tenants only on the basis that as owners of buildings, they fall within the definition of the word ‘consumer’ as defined in Section 2(c) of the Indian Electricity Act, 1910. In that circumstances, the Bombay High Court held that the owners of the buildings were not included in the definition of word ‘consumer’ in section 2(c) of the Indian Electricity Act, 1910 where the premises were in occupation by their tenants and electrical energy was supplied to and consumed by the tenants. In the present case, the petitioner is not in occupation of the premises in question as tenant and no electrical energy is supplied to him for consumption on his application. Therefore, the above cited decision is of no help to the petitioner. 13. To deal with the further submission of the petitioner that he has made an application for fresh connection to the house in question where he claims to be residing with his family and the opp. party-CESU is not taking any action on the same vindictively, it is necessary to go through the relevant provisions of the Code, 2004. The said relevant provisions are Regulation-5, 6 and 7 of the Code, 2004, which are as follow:- “5. Notwithstanding anything contained in Regulation 4, the licensee may grant connection to the premises of any applicant, and the licensee’s engineer may dispense with documentary evidence of lawful occupation of the premises at his discretion. In cases where such documentary evidence of lawful occupation of the premises is dispensed with, any documentary evidence regarding electricity connection or payment of bills raised by the licensee for consumption of electricity will not constitute evidence for the purpose of lawful occupation of the premises in any municipal record, revenue record or any Court of law. Explanation : Any consumer who has been granted connection under this provision shall be 9 deemed to be an occupier for the purposes of the licensee notwithstanding that his occupation is found by any Court, Tribunal or other authority to be not bonafide or lawful. 6. All applications for supply of power shall be filed at least thirty days before the expected date of supply, where distribution mains have been laid and power supply commenced. In case of high tension service or service requiring extension of the licensee’s distribution mains, the prospective consumer shall submit his application not less than ninety days in advance provided that for contracting loads at HT or EHT in excess of 5 MW up to 10 MW, application shall be made one year in advance and or contracting loads in excess of 10 MW two years in advance. 7. An applicant, who is not the owner of the premises occupied by him, shall execute an indemnity bond, indemnifying the licensee against any damages payable on account of any dispute arising out of supply of power to the premises.” 14. Keeping in view the above provisions of the Code, 2004, this Court directs the Opp. Party-CESU to dispose of the petitioner’s application for a fresh electricity connection in accordance with law expeditiously. However, this Court expresses no opinion on the merits of the claim of the petitioner for fresh electricity connection. The petitioner is at liberty to approach the appropriate authority for any reliefs as are available under law. 15. With the above observation, the writ petition is disposed of. ………………………. B.N.Mahapatra, J. Orissa High Court, Cuttack 19 th August, 2010; skj/ss/pcp 10 Chief Justice 11 Orissa High Court, Cuttack Dated 2008/sss/pcp