R.N.BISWAL, J. W.P.(C) NOS.19822/2009 & 1577/2010 (Decided on 14.12.2010) EXECUTIVE ENGINEER,CDD-II,CESU,CTC. ….. ….. Petitioner. .Vrs. GRIEVANCE REDRESSAL FORUM, & ANR. .. ……. Opp.Parties. For Petitioner - M/s. Ashok Mohanty, B.K.Nayak & D.K. Mohanty. For Opp.Parties- M/s. S.K.Padhi, G.N.Mishra, S.C.Sahoo, P.K.Sahoo & B.Priyadarshi. R.N.BISWAL,J. The facts and points of law involved in the aforesaid two writ petitions being interlinked, they were heard analogously and the following common order is passed thereon. 2. M/s. Pasupati Feeds, the petitioner in W.P.(c) no.1577 of 2010 is a partnership firm. It is engaged in production of cattle and poultry feeds. On 4.12.2003 M/s. Pasupati Feeds (here-in-after called ‘the consumer’) took power supply for a contract demand of 200 KVA by executing an agreement. It was categorized under Large Industrial Tariff. Bills were raised by the Executive Engineer/Asst. General Manager CDD No.II, CESU, Badambadi, Cuttack, opp.party no.2 in W.P.(c) No.1577 of 2010 and petitioner in W.P.(c) No.19822 of 2009 and the consumer went on paying the same. 3. A new category of consumer namely, Agro Industrial Consumer was introduced vide OERC Distribution (Conditions of Supply) (4th Amendment) Code, 2007. The newly introduced Regulation 80(5)(I) reads as follows: “Reg. 80 (5) (1) – Agro Industrial Consumers: This category relates to supply of power for Pisciculture, Horticulture, Floriculture, Sericulture 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.” 4. It became effective from 1.4.2008. The OERC allowed the Agro Industrial consumers the same tariff as applicable to irrigation, pumping and agriculture. The CESU Badambadi, Cuttack billed the consumer for the month of May,2008 with energy charges @ Rs.1/- per KWH. Subsequently, CESU Badambadi, Cuttack in its letter no.7934 dated 23.6.2008 issued a revised bill for May,2008 demanding energy charges @ Rs.3/- per KWH. Again in the month of June,2008 bill was issued demanding energy charges amounting to Rs.1,19,862/. However, the consumer paid an amount of Rs.21,717/- on the basis of the tariff approved by the OERC for Agro Industrial Consumers. CESU issued a notice to the consumer on 16.7.2008 for disconnection electricity supply to its firm. So the consumer filed a complaint vide CC No.75 of 2008 before the Grievance Redressal Forum, Badambadi, Cuttack with prayer to direct the Respondents therein to classify cattle and Poultry processing unit of the consumer as Agro Industrial consumer and to revise the bills with effect from 1.4.2008. After hearing the parties, the Grievance Redressal Forum held that Poultry and Cattle Feeds being directly for benefit of Poultry i.e. an agri-product, it would come within the purview of other allied agriculture activities including animal husbandry and poultry and accordingly allowed the complaint and directed CESU, Badambadi to revise the bills of the consumer from 1.4.2008 as per Agro-Industrial tariff U/R 80(5)(i) and to prepare the bill under the said category. It was further ordered that the consumer shall execute a fresh agreement subject to compliance of conditions laid down in OERC (Conditions of Supply) Code 2004. The said order which was passed on 15.9.2008 has been challenged by the Executive Engineer, CESU,CDD No.II, Badambadi, Cuttack in W.P. (c) No.19822 of 2009. 5. In the meantime, OERC vide Notification dated 19th October, 2009 notified 5th amendment of the OERC Distribution (Conditions of Supply) Code,2004. As per this amendment, Regulation 80(5)was substituted as follows: “80(5)(1):Irrigation, Pumping and Agriculture: This category relates to supply of power for pumping of water in lift irrigation, flow irrigation and for lifting of water from wells/bore-wells, dug-wells, nallahs, streams, rivulets, rivers, exclusively for agricultural purposes. 80(5)(ii):Allied Agricultural Activities: This category relates to supply of power for Aquaculture (which includes Pisciculture/ prawn culture), Horticulture, Floriculture, Sericulture, Animal Husbandry and Poultry. Activities such as ice factories, chilling plants, cold storages, and cattle/poultry/fish feed units and food/ agri products processing units are excluded. 80(5)(iii):Allied Agro-industrial Activities: This category relates to supply of power to Cold Storages(i.e. a temperature controlled storage where flowers, fruits, vegetables, meat and fish can be kept fresh or frozen until it is needed)and includes chilling plant for milk and only the cold storages attached to processing units for meat, fish, prawns, flowers, fruits and vegetables.” Accordingly, public notice was issued on 30th October,2009 by OERC in fixing electricity tariff for different types of consumers as classified vide Notification dated 19.10.2009. Electricity tariff for the consumer was fixed at the rate fixed for Large Industrial Tariff and on 19.1.2010 it was asked to clear up the outstanding dues from 1.4.2008 to 31.12.2009 amounting to Rs.34,29,826/- on or before 2.2.2010. So, it challenged the public notifications dated 19.10.2009, 30.10.2009 and the demand notice dated 19.1.2010 in writ petition bearing W.P.(C)No.1577 of 2010 inter-alia on the ground that the same are in violation of the provision of Section 64 of the Electricity Act,2003 and Regulation 53 of the OERC (Conduct of Business) Code,2004 and Clause 5 of the OERC (terms and conditions for Determination of tariff) Regulation,2004. 6. With reference to W.P.(c) No.19822 of 2009,learned counsel appearing on behalf of the petitioner(Executive Engineer, CESU) submitted that the word ‘Poultry’ introduced in the definition of Agro Industrial Consumer category has not been defined in the Regulation. The dictionary meaning of it is hen, rooster, pullet, capon, chick all of 2 which are living birds. So poultry is quite different from production of cattle and poultry feeds. But, the GRF in CC case No.75 of 2008 wrongly held that Pasupati feed unit is covered under allied agricultural activities including animal husbandry and poultry. He further submitted that since cattle and poultry feed units were not there in the newly introduced regulation 80(5)(1), it could not be included therein. In support of his submission, he relied on the decisions, The Member-Secretary, Andhra Pradesh State Board for Prevention and Control of Water Polution Vs.Andhra Pradesh Rayons Limited and others,AIR 1989 Supreme Court 611,Sutleg Cotton Mills Ltd vs. Commissioner of Income-tax, West Bengal III, Calcutta AIR 1991 Supreme Court 218 and M/s Saraswati Sugar Mills Vs. Haryana State Board and others AIR 1992 Supreme Court 224. 7. Learned counsel for the consumer while supporting the impugned order contended that the consumer use to process feeds for fowls of its poultry firms situated at different places, which were insured in its name and drew the attention of the Court to Annexure- 5 in W.P.(c) No.1577 of 2010, which shows that the consumer has insured the birds. So, according to him there is no element of commercial or business activity in it. Moreover, he contended that O.E.R.C. vide notification dated 19th October,2009 notified 5th Amendment of the OERC Distribution(Conditions of supply)Code 2004, where activities like ice factories, chilling plants, cold storages, cattle/poultry, fish feed units and food/agri products proceeding units are excluded from Allied Agricultural Activities. Had those units not been included in the 4th amendment of OERC Distribution (Condition of Supply) Code, then there was no occasion of excluding the same. Furthermore, he contended that as found from Annexture-6 series in W.P. © No. 1577 of 2010, in response to the quires of the Commissioner, CESU in its affidavit dated 11.1.2010 stated the consumer comes under Allied Agro Industrial Categories. So, he prayed to dismiss W.P.(c) No.19822 of 2009. At the risk of repetition, it would be apposite to quote Regulation 80 (5) (1) of O.E.R.C. Distribution (Condition of Supply) (4th amendment) Code 2007. It reads as follows:- “Reg. 80 (5) (1) – Agro Industrial Consumers: This category relates to supply of power for Pisciculture, Horticulture, Floriculture, Sericulture 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 term ‘including’ is generally used to enlarge the meaning of preceding words. In the Regulation 80(5) (1) quoted just above, the preceding words of ‘including’ are ‘allied agricultural activities’. So, the meaning of these words can be enlarged. The same cannot be limited to 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)only. Moreover, the title of Regulation 80(5)(1)quoted above itself is ‘agro industrial consumers’. So, the meaning of ‘Allied Agricultural Activities’ can be enlarged to agro industries, which include cattle and poultry feeding units as rightly held by the Grievance Redressal Forum. In the decision cited on behalf of CESU in the case of The Member-Secretary, Andhra Pradesh State Board for Prevention and Control of Water Pollution ,Sutleg Cotton Mills Ltd and 3 M/s.Sarswati Sugar Mills (supra) it is held that there is no room that presumption and intendment in tax. Nothing is to be read in and nothing is to be implied. One has to look fairly at the language used. All the decisions relate to fiscal statute. In view of the discussion as made above these decisions are not applicable to the present case. Furthermore, in Regulation 80(5)(1)as per the 5th amendment of OERC Distribution)Conditions of supply)Code 2004 it has been specifically stated that activities such as ice factories, chilling plants cold storages and cattle/poultry/fish feed units and food and agro-products processing units are excluded which shows that cattle, poultry feed units were impliedly there in the 80(5)(1)of O.E.R.C. Distribution (Conditions of Supply)(4th amendment)Code,2004. 8. Learned counsel appearing for the CESU submitted that the said provision was explanatory, as found from the Notification dated 19th October,2009 of the O.E.R.C. The said Notification shows that the Distribution Companies requested the Commission to issue clarification on the scope and extent October,2009 it is found that the Distribution Companies requested the Commission to issue Clarification Companies requested the Commission to issue Clarification on the scope and extent of agro-industrial consumer category. So, the scope and extent of it was clarified in the said notification. Only because it has been so mentioned, it cannot be said that it is clarificatory in nature, rather it introduced a new concept. In the decision Union of India and others (supra) which also relates to fiscal statute, the apex Court held that the explanation given to Section 65(19)(II)of the Finance Act 2008 cannot be explanatory. The explanation reads as follows: “Explanation;-For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, ’service in relation to promotion or marketing of service provided by the client’ includes any service provided in relation to promotion or marketing of games of chance, organized, conducted or promoted by the client, in whatever form or by whatever name called, whether or not conducted online, including lottery, lotto, bingo;” Even though the explanation begins with “For the removal of doubts’, still then, the apex Court held that it is not explanatory in nature. In para 52 of the said decision it has been held as follows: “52.As stated hereinbefore, for the aforementioned purpose, the expressions like “for the removal of doubts” are not conclusive. The said expressions appear to have been used under assumption that organizing games of chance would be rendition of service. We are herein not concerned as to whether it was constitutionally permissible for Parliament to do so as we are not called upon to determine the said question but for our purpose, it would be suffice to hold that the Explanation is not clarificatory or declaratory in nature.” 2. Learned counsel for the CESU submitted that the Notification dated 19th October, 2009 would have retrospective effect. There is nothing in that provision that it would have such effect. It is an established law that there is presumption that the statutes are not intended to have retrospective effect unless they merely change the legal procedure. In view of the discussions made above, it is held that cattle/poultry feed units would come under allied agricultural activities and the same were excluded by the Amendment vide Notification dated 19th October,2009 to the OERC 4 Distribution(Conditions of Supply)Code,2004 which would have prospective effect. So the order as passed by learned Grievance Redressal Forum cannot be defaulted. 10. With reference to W.P.(c) No.1577 of 2010, learned counsel appearing for the consumer submitted that the Notification dated 19th October,2009 was made without following the provisions contained under Section 64 of the Electricity Act,2003,Clause 53 of the O.E.R.C.(Conduct of Business)Code,2004 and Clause 5 of the O.E.R.C. (Terms and Conditions for Determination of Tariff)Regulation,2004.It transpires from the aforesaid Notification dated 19th October,2009 that the Commissioner clarified Agro Industrial Consumers pursuant to the demand of such consumers and the CESU. Consumers engaged in prawn processing ice factories, chilling plants for milk and other agricultural products pleaded to include them in the category of Agro Industrial Consumers. Furthermore, this court vide order dated 26.8.2009 passed in W.P.(c) No.6516 of 2009 M/s.Prithwiraj Dairy Products Vs. State of Orissa and others while setting aside para 255 and 258 of Commission’s Retail Supply Tariff Order for FY 2009- 10 directed the Commission to consider the feasibility of creating an additional tariff category for agro-based Industries applicable to non-agriculturist consumers and fix appropriate tariff for the said category. Accordingly the aforesaid Notification was made. Under such circumstance even though it is presumed that the Tariff Transmission and Distribution licensees did not apply in proper format to the Commission containing calculation of the expected aggregate revenue from charges under its currently approved tariff and the expected cost of providing services for the ensuing financial year, it cannot be said that Section 64 of the Electricity Act,2003 and Regulation 5 of O.E.R.C.(Terms and Conditions for Determination of Tariff) Regulation, 2004 and Regulation 53 of the Orissa Electricity Regulatory Commission (Conduct of Business) Regulation, 2004 were violated. 11. In the 19th October,2009 Notification, Regulation 80(5) was substituted and the said Regulation was divided into three categories as quoted earlier. In the 2nd category it has been specifically mentioned that activities such as ice factories, chilling plants, cold storages, cattle/poultry/fish feed units and food/agri-products processing units are excluded. So the consumer cannot get the benefit of reduced rate of tariff after the aforesaid Notification was made effective. In such view of the matter, the Notifications dated 19.10.2009 and 30.10.2009 cannot be quashed as prayed for in W.P.(c) No.1577 of 2010.So far the demand notice dated 19.1.2010 is concerned, it stands quashed. 12. Accordingly, W.P.(c) No.19822 of 2009 is dismissed and the order dated 15.9.2008 passed by the Grievance Redressal Forum, Cuttack in CC case No.75 of 2008 is hereby confirmed and W.P.(c)No.1577 of 2010 is allowed in part. No cost. WP (C) No. 19822/09 dismissed. WP (C) No. 1577/10 partly allowed. 5