Presents:-
1.Sri P.Samantara, President.
2.Sri G.K.Rath, Member.
Dated Bolangir the 19th day of February, 2016.
C.C.No.29 of 2012.
M/S. Mishra Industry (Stone Crusher) At/P.O- Agalapali, P.S. Loisingha, Dist- Bolangir,
Represented through it’s Proprietor Rahul Mishra.
.. .. Complainant.
-Versus-
1.Executive Engineer, Electrical, WESCO, Bolangir.
2.S.D.O.Electrical, WESCO, Loisingha, At/P.O/P.S- Loisingha,Dist-Bolangir.
3.JuniorEngineer, Electrical, WESCO, At/P.O/P.S-Loisingha,Dist-Bolangir.
.. .. Opp.Parties.
Adv.for the complainant- Sri A.K.Mishra & Associates.
Adv.for the O.Ps - Sri B.S.Satpathy.
Date of filing of the case-04.06.2012
Date of order -19.02.2016
JUDGMENT.
Sri P.Samantara, President.
The complainant is that the proprietor of M/S Mishra Industry that runs a stone crusher to earn his livelihood. The Industry has availed electricity supply for contract demand of 38 Kilo Watt under Medium Industrial Tariff. Averred making regular payment being retained with consumer No.911001040105.
2. It is also stated the complainant suddenly has been asked to execute agreement under large industry tariff vide letter No.4885 dt.30.11.2011 so enforcing the petitioner to execute agreement under the large Industry tariff is illegal and contrary to the provisions of law. Praying a direction be passed not to disconnect the line and also not to compel the complainant to execute agreement on large Industry tariff. Relied on permission for installation and letters in communication.
3. Pursuant to notice- The O.Ps appeared and filed the version at too belated stage contending the case has no cause of action. The grievance raised by the complainant is nothing but a challenge to the process of penal assessment, raised u/s.126 of the Electricity Act 2003. The complainant retained one crusher unit and the crusher unit being a commercial set up, he is not a consumer under the definition of the term of Sec.2(d) of C.P.Act as such the case is not maintainable.
4. Further contending any doubt regarding accuracy in the meter reading, there is provision for applying about testing of the meter under regulation 58 of the O.E.R. Conditions of Supply code 2004, which has not been done by the complainant as such said allegation is without any basis and has been raised only to maintain the case.
5. And also fervently stated recording of high consumption continuously for long time is mean upto capacity of the machine but relating to asking the consumer about drawal of demand at a time beyond the permissible limit of 38 KW is unauthorized one as per regulation 106 and which relates to dishonest Abstraction.
6. Again the executed agreement entered for category of Medium Industry under contract load of 38 KW and his drawal has reached 120 KW which has crossed the fixed limitation to said category thereby it attracts reclassification and execution of fresh agreement in paid up required security. As such asking for appropriate agreement under regulation -82 is proper in exercise of option to disconnect.
7. It is submitted that there is no restriction imposed by the O.Ps on the complainant for more consumption but such consumption is to be legal and authorized manner with viable to the system. Prayed that the complaint filed by the complainant may kindly be rejected with cost. Relied on agreement copy and intimated letters in photo copies.
8. Heard and perused the materials on record with submissions and vehement denials with arguments.
9. The petitioner contended the notice issued by the O.P and the charges computed beyond the contract load as agreed with, on the other hand O.P contended drawal beyond the contract load attracts fresh agreement thereby computation of the bills/tariff under large Industry category.
Again we also come to notice in submission that the complainant is ready to pay under the tariffs as applicable by small scale/medium scale industry but not under the Large Scale Industry tariff category.
10. The above noted discussion puts, the core question revolves on the “reclassification of consumer”. “Reclassification of consumer” is provisioned under regulation-82 which reads;-
Regulation- 82- If it is found that a consumer has been classified in a particular category erroneously or…………….. may disconnect the supply of power .
And the regulation 85- reads- (1) Monthly demand charges shall be payable by the consumer on the basis of maximum demand and contract demand as determined in the tariff notification. In case maximum demand meter is not provided or the meter has become defective, the monthly demand charges shall be payable on the basis of contract demand as determined in the tariff notification.
(2)………
The bare reading of regulation- 82 provides classification of consumer, modification of contract demand thereby fresh execution of agreement and subsequent regulation -85 provides charges payable on contract demand in case maximum demand meter is not provided with.
11. The O.P has not clarified, whether maximum demand meter is provided with or not. In absence of maximum demand meter the charges due on consumption of excess contract demand is not consistent with the law. Again petitioner is not reluctant to pay but under medium scale industry tariff mode. On the issue, we consider once one agreement is in force no fresh agreement will not prevail upon unless it rescind, revoked or executed by terms and conditions. So as per the agreement it explicitly expressed the duration of the agreement is 5 years, assessment made during subsistence agreement is provisional and no final order has passed under sub section 3 of Sec.126. Thus assessment is not tenable under the law. Computation be made as per tariff under medium scale industry and then only he may opt for fresh classification as per the rules. Non obedience to expressed terms and sudden resile from same, is amounts to deficiency of service within the meaning of the term 2(g)- the manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Further Regulation 106 –reads-
No consumer shall make use of power in excess of the approved contract demand or use power for a purpose other than the one for which agreement has been executed or shall dishonestly abstract power from the licensee’s system.
12. In obedience to regulation 106, it reveals the petitioner has not used power purpose other than the one for which agreement has been executed. No material on record in substantiation of same. Even no record persists to note that dishonest abstract of power. So any assessment conducted is provisional and speculative in absence of document as such no dumb reading has ensured and as also not ensured in the right way in conforming to the standing regulation. Breach of agreement at both end is distinctive and the continuance of repeated notice serve d to the petitioner under Sub section 2 of Section 56 is apprehensively managed in obedience to the provision and raising of lawful arrear.
13. Under above noted discussion, it is observed the petitioner is to pay the entire consumption of units under medium scale industry tariff as expressed on the contract and thereafter only proceed to execute fresh agreement at his option to subscribe and the O.Ps have to ensure tariff under large scale industry in entering of fresh agreement in entitlement re-classification as laid down under the competent & respective regulation of OERC DISTRIBUTION ( CONDITIONS OF SUPPLY ) Code,2004 as because category (a) reads:- LT/HT Industrial (M) Supply-This category relates to supply of power for Industrial production with a contract demand of l22 KVA and above but below 110 KVA, where power is generally utilized as motive force.
(10) Large Industries- This category relates to supply of power to industries with a contract demand of 110 KVA and above but below 25000 KVA, where power is substantially utilized as motive force for industrial production.
14. The contract although made to 38 Kilo Watts, but it is elastic and can be extended to 68 Kilo Watts, post one year as expressed with. So consumption above the 38 Kilo Watts reading upto 102 Kilo Watts is appears to be no more violative, so again in view of such regulatory stipulation on contract demand, the petitioner is liable to pay under medium industry classification as no contract demand has been agreed upon under large scale industry. We feel it is not fairs to charge the tariff under Large Industry and the assessment made is provisional are not substantive and not made out under any final order as contemplated under 126 of Electricity Act. Hence ordered;
ORDER.
The O.Ps are hereby directed to charge the tariff under medium scale industry and issue revision bills thereof from December 2011 within 30 days of this order, failing which they are liable to pay penalty of Rs 10/- per day till issuance of the revision bill.
No order as to compensation and cost.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 19TH DAY OF FEBRUARY 2016.
(G.K.Rath) (P.Samantara)
MEMBER. PRESIDENT.
