1.       Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”), by the Complainant, namely, M/s Proton Steels Ltd., a body Corporate, is to the order dated 29.01.2016, passed by the Odisha State Consumer Disputes Redressal Commission at Cuttack (for short “the State Commission”) in First Appeal No. 906/1997.  By the impugned order, while overturning the order dated 26.09.1997, passed by the District Consumer Disputes Redressal Forum, Sundargarh – II, at Rourkela (for short “the District Forum”) in Consumer Dispute Case No.176/97, the State Commission has allowed the Appeal, preferred by the Opposite Parties in the Complaint, the Respondents herein.  By the said order, the District Forum had partly allowed the Complaint and directed the Respondents (the State Electricity Board) to raise a revised bill against the Complainant factory, for the supply of electricity to it, on the basis of 15 KVA load, actual consumption charges for the disputed period, i.e. from 01.08.1994 to 15.09.1994, for payment by the Complainant, within 30 days from the date of receipt of the order. 

2.       Succinctly put, the facts giving rise to the present Revision Petition, are that: the Petitioner/Complainant is a small scale industry, covered under the Industrial Policy Resolution, 1989, declared and published by the Industries Department, Government of Odisha on 01.12.1989.  Its plant at Rajgangpur, District Sundargarh, Odisha, was being supplied electricity by the Odisha State Electricity Board (now known as “GRIDCO”), with a sanctioned load of 445 KVA.  Since the electric meter of the Complainant was not working since November, 1993, average bills were being raised and paid regularly.  In the months of August/September, 1994, the Complainant Company was required to suspend its production for the purpose of overhauling and major maintenance of its plant.  Accordingly, vide its letter dated 30.07.1994, the Complainant intimated to Respondent/Opposite Party No.3 that it would be using load of 15 KVA between the period 01.08.1994 to 15.09.1994.  When the Complainant received the bill for the month of August, 1994, the same was found to be on average basis, as in the preceding months, without taking into consideration the fact that production in its plant was suspended during the aforesaid period.  On protest, the Respondents sought for production details for the said month and earlier period, which were furnished by the Complainant on 21.09.1994.  The bill, issued for the month of September, 1994, was also found to be on average basis.  At this stage, after verifying the production figures of the Complainant with the Central Excise records and finding them to be correct, Respondent/Opposite Party No.2 asked the Complainant to furnish the said details for the subsequent months as well.  According to the Complainant, on verification of the said details, the said Respondent was satisfied about the suspension of the production and, accordingly, in order to have a formal approval and correction in the bills in question, Respondent No.2 forwarded the matter to Respondent/Opposite Party No.1. In the meanwhile, the Complainant continued paying all the bills raised, except for the two bills in question.  With no positive response from the Respondents in sight and faced with the threat of disconnection of electricity supply, alleging deficiency in service on the part of the Respondents on the aforesaid counts, the afore-noted Complaint came to be filed before the District Forum, wherein the Complainant prayed for a direction to the Respondents to revise the bills in question and not to disconnect the electricity connection till the disposal of the case, and further to pay it a compensation of ₹1,00,000/- for the mental agony suffered on account of the afore-noted conduct of the Respondents.    

3.       Upon notice, the Respondents contested the Complaint, by filing their Written Version.  While admitting that the meter was not working, the Respondents denied that the bills raised were on the higher side.  It was pleaded that the bills had been issued on average consumption, on the basis of preceding consecutive three months, as per Para 17(f)(ii) of Orissa State Electricity Board (General Conditions of Supply) Regulations, 1995 (for short “1995 Regulations”).  In this way, consumption for the months of June to August 1993 was taken into consideration, as during the month of September 1993, the factory remained idle and during the month of October 1993, power supply was disconnected from 04.10.1993 to 20.10.1993.  On 25.09.1997, i.e. after a gap of 3 years and 6 months, the Complainant approached the Respondents, stating that the average bills were on the higher side, which was not acceptable.  It was pleaded that the reduced supply could have been allowed if the plant or the premises was unfit, wholly or substantially, due to breakdown by natural calamity, fire, earthquake etc. by giving seven days notice in writing, as per Regulation-47 of 1995 Regulations but such proof was not submitted by the Complainant for having the supply reduced for the annual maintenance; the meter was defective and could not be replaced due to non-availability of such type of meters; the Complainant took advantage of the said situation and applied for reduction of supply to 15 KVA, as per his application dated 30.07.1994, which was received in the office of the Respondents on 03.09.1994 (it should be 03.08.1994); the Complainant had not given seven days advance notice for reduction in supply of power and it was only on 03.08.1994 that the Complainant had approached the Respondents office; the said intimation not being as per Regulation-47, the supply could not be reduced and, hence, the bills for the period in question were raised on average basis.  It was alleged that the Complainant was withholding payment of nearly ₹3,00,000/- by raising the said dispute.     

4.       On appraisal of the evidence adduced before it, the District Forum held that the Respondents were required to raise the bill for the period in question on the reduced load, as pleaded in the Complaint.  Accordingly, while partly allowing the Complaint, the District Forum issued the aforesaid directions to the Respondents.

5.       Aggrieved, the Respondents carried the matter further in Appeal to the State Commission.  Relying on the provisions contained in Regulation 47 of the 1995 Regulations, the State Commission has arrived at the conclusion that since none of the contingencies referred to in the said Regulation were attracted, the Complainant was not entitled to the benefit of reduced supply of power to its plant.  Consequently, while setting aside the order passed by the District Forum, the State Commission has allowed the Appeal.    

6.       Hence, the present Revision Petition.                 

7.       At this juncture, it may be noted that this is the second round of litigation between the parties.  In the first round, on reversal of the order dated 26.09.1997, passed by the District Forum, partly allowing the Complaint, the State Commission, vide its order dated 20.09.2007, had arrived at the conclusion that the Complaint was pre-mature as the question regarding raising of the bill on average basis, because of non-functioning of the meter, was yet to be decided.  Dissatisfied with the said order, the Complainant had approached this Commission by filing a Revision Petition (No. 4007/2007). The Petition was allowed with a direction to the State Commission to decide the Appeal, filed by the Respondents, afresh on merits in accordance with law.  In furtherance of the said direction, the order, impugned in this Revision Petition, has been passed by the State Commission.  It is stated in the Petition that on dismissal of its Complaint by the State Commission vide order dated 20.09.2007, the Complainant was coerced to pay a sum of ₹3,00,000/-, against the disputed bills, with late payment surcharge @ 24% p.a. on all subsequent bills, on account of non-payment of the two disputed bills, which were paid under protest. 

8.       Mr. P.K. Agarwal, Ld. Counsel appearing for the Complainant, strenuously urged that the impugned order is per se illegal, in as much as the State Commission has erroneously: (i) relied upon the 1995 Regulations, which came into force only w.e.f. 23.09.1995, on publication in the Odisha Gazette Extraordinary No. 1085, whereas the disputed bills pertained to the months of August and September 1994; (ii) ignored Clause 11.1.1 of the Industrial Policy Resolution 1989, admittedly applicable to the case of the Complainant; (iii) omitted to take into consideration the fact that had the meter been replaced in November 1993, when it became defective, or immediately thereafter, the bill for payment of electricity charges would have been raised on actual consumption of energy basis, during the disputed months of August and September, when the production had been suspended for the purpose of overhauling and major maintenance of the plant, irrespective of the sanctioned load or consumption in the preceding months and not even on the basis of any minimum guarantee charges; and (iv) relied upon Regulation 47 of the 1995 Regulations, postulating seven days advance notice, as the said Regulations did not exist at the relevant time.

9.       Per contra, Mr. Hasan Murtaza, Ld. Counsel appearing for the Respondents, while supporting the view taken by the State Commission, questioned the very maintainability of the Complaint on the ground that the electricity connection having been obtained by the Complainant for commercial purpose, it was beyond the realm of the Act.  He again pressed into service the afore-noted Regulation 47.  It was stressed that prior to promulgation of the 1995 Regulations, there was no other provision under which the Complainant could seek reduction in the load.  Ld. Counsel maintained that having failed to give the requisite seven days’ notice, as postulated in the said Regulation, that too under the specified contingencies, which otherwise did not exist in the present case, the Complainant was not entitled to any relief.  In so far as the question of non-replacement of defective meter is concerned, it was argued that since the said issue was not raised in the Complaint, the Complainant cannot be permitted to urge the same in a Revision Petition.  As regards the applicability of the Industrial Policy 1989, it was submitted that the said policy has no relevance to the facts at hand, as the bills had been raised on the basis of average consumption and not on minimum charge basis, as provided in Clause 11.1.1 of the said Industrial Policy. 

10.     The short question falling for consideration is whether there was any deficiency in service on the part of the Respondents in raising the two bills in question for consumption of electricity for the months of August and September 1994 on average past consumption basis for the contracted load of 445 KVA and not on actual consumption basis for a 15 KVA load? 

11.     As aforesaid, the sole ground for rejection of the claim of the Complainant was that before the shut down for overhauling and extensive repairs, it had failed to give seven days’ advance notice for reduction in load, as contemplated in Regulation 47 of the 1995 Regulations.  The stand of the Complainant, to the contrary, was that the said Regulation not being in vogue at the relevant time, viz. August and September 1994, its case had to be considered under the afore-noted Industrial Policy conditions.

12.     Therefore, before examining the merits of the said rival stands, it would be expedient to notice the relevant provisions, pressed into service by the Ld. Counsel.  Clause 11 of the 1989 Industrial Policy, announced for encouraging new Industry and providing support to existing Industrial Units, which had come up in the State of Odisha during the past few years, lists one of the incentives in respect of power consumption by the industries for a period of five years from 01.12.1989.  Clause 11.1.1, relevant for the case, reads as follows:

“11.1.1         No minimum charge will be levied in respect of existing and new industrial units with a contract demand upto 500 KVA.  In other words, the energy bill will be made on the basis of actual monthly consumption of energy.  New industrial units with contract demand up to 500 KVA will also be exempted from payment of electricity duty for a period of 5 years from the date of power supply.”

12.1   Regulation 17 of the 1995 Regulations deals with supply of electricity through meters.  Clause (f)(i) & (ii) thereof read as under:

“(f)(i) The meters and associated equipments shall be inspected by the Engineers prior to their commissioning in the service.  If meters become defective in service or are found to be missing, the consumer, in case he has supplied the meter, shall on such defects/less being noticed by him or notified to him by the Engineer remove the defects/replace the meter within a period not exceeding 3 months.  The Engineer shall call upon the consumer to deposit the cost of replacement if the meter or equipment has been found to have tampered.  In case such defects in the meter and/or metering units are found to be recurring, the Engineer may call upon the consumer to instal his own meter at his cost subject to the approval of the Engineer.  Failure on the consumer to replace the defective/lost meter within a period of three months shall render him liable for disconnection.

(ii)     For the period, the meter remained defective or was lost, the billing shall be done on the basis of average consumption for the preceding consecutive three months.

          Provided that if the meter is rendered defective or lost before expiry of three months from the date of commencement of supply, the bill shall be prepared on the basis of average of three consecutive months reading, after the meter is rectified or replaced.”

13.     Having bestowed my anxious consideration to the facts at hand, in my view, the preliminary objection, raised by the Respondents on the maintainability of the Complaint at this stage, merits rejection on the short ground that no such objection was raised in the Written Version filed on behalf of the Respondents, in opposition to the Complaint, filed two decades ago in the year 1997.  Similarly, the 1995 Regulations not having seen the light of the day in the months of August and September 1994, Regulation 47 could not be invoked retrospectively to examine the correctness of the two bills in question.  Hence, the plea raised by the Respondents, based on the said Regulation, is also without merit and is rejected accordingly.  Nonetheless, even if for the sake of argument, it was to be accepted that the 1995 Regulations were applicable, being aware of the fact that the meter was defective, but could not be replaced because of non-availability of a new meter in its stocks, admittedly no steps, as contemplated in Clause (f)(i) and (ii) of Regulation 17 for replacement of the meter, were taken by the Engineer of the Respondents within the stipulated period of three months.  That being so, the Complainant could not be penalized by raising the bills for the said months on average consumption for the preceding consecutive three months, because of non-replacement of the defective meter by the Respondents themselves or by the Complainant, on a direction by the Engineer.  Acceptance of such a plea would tantamount to adding premium to the inefficiency and deficiency on the part of the Respondents.  Thus, the question surviving for consideration is whether Clause 11.1.1 of the 1989 Industrial Policy would be attracted in the present case.  It is plain from a bare reading of the said Clause that it merely stipulated that an industrial unit, covered under the policy, will be liable to pay the electricity charges on the basis of actual monthly consumption of energy and no minimum charges will be levied in respect of the industrial units with a contract demand up to 500 KVA, as in the instant case.  Thus, the said provision provides that if the electricity charges on the basis of actual consumption of energy is less than the minimum charges, such industrial unit would be liable to pay the lesser amount.  This is not the case here, in as much as in the present case, because of the defective/non-functioning of the meter, the actual energy consumption for the said two months could not be recorded.  Hence, the said provision would not be applicable on its plain language and, therefore, in the absence of any provision dealing with the situation at hand, the only equitable principle/method which could be applied for raising the bills for the months of August and September 1994 could be on pro-rata basis (15 KVA : 445KVA), on the average of the three preceding consecutive months, as were being raised in respect of the other months, when the unit was fully functional, and were admittedly being paid regularly by the Complainant, without demur.  It is ordered accordingly.

14.     Resultantly, the Revision Petition is allowed and the order impugned is set aside, with a direction to the Respondents to raise fresh electricity charges bill in respect of the months of August and September 1994 on the afore-stated basis, and refund the excess amount, including surcharge, recovered from the Complainant in respect of the said months, within six weeks of receipt of a copy of this order, failing which the said amount shall carry interest @ 9% p.a. from 23.11.2007, when the said amount was deposited by the Complainant after the order passed by the State Commission on 20.09.2007, till the date of actual realization.

15.     The Revision Petition stands disposed of in the above terms, leaving the parties to bear their own costs.