CASE NO. 1 of 1996

DATED BHUBANESWAR THE 7th NOVEMBER, 1996

Sri Somnath Som, Chairman
Sri A. R. Mohanty, Member
Sri D. K. Roy, Member

In the matter of application by M/s. United Hatchery Pvt. Ltd., Jagamara, Khandagiri, Bhubaneswar.

Vrs

For the petitioner - Sri Khirod Mohan Pattnaik

For the opposite party - Sri R.C. Das, Superintending Engineer

Sri B.K. Khatua, Executive Engineer.

The opinion of the Commission delivered by Sri S. Som, Chairman.

S.SOM :- This is a petition filed on 19.08.1996 by M/s. United Hatchery (Pvt.) Ltd., Jagamara, Khandagiri, Bhubaneswar. Opposite party is Grid Corporation of Orissa Limited. The petition was initially taken up on 26.8.96 and in presence of both the parties an interim order was passed. Opposite party filed his objection with copy to the petitioner and the matter was heard in detail on 27.9.96. Before going into the various issues which have arisen in this case, the facts of this case which fall within a small compass can be briefly stated.

2. Petitioner is a farm engaged in production of broiler chicks using electrically operated machinery. The unit is located at Vill : Bhatakudi, Dist : Khurda. It has been submitted during the hearing by the petitioner that he gets eggs hatched in his unit and sells around 12,000 one-day-old chicks per week. For supply of electricity to his unit, the petitioner entered into an agreement dated 24.12.92 with the erstwhile Orissa State Electricity Board, the predecessor-in-interest of the opposite party GRIDCO.

3. In the preamble to the agreement, it has been mentioned that the consumer, meaning the present petitioner, has requested Orissa State Electricity Board for supply of electrical energy for the purpose of hatchery unit. The agreement is initially valid for five years and is terminable through six months notice on either side.

4. Clause 3 of the agreement provides that the petitioner shall take from the opposite party supply of electrical energy upto but not exceeding a maximum demand of 31 Horse Power (HP) to run different types of motor and 29 KW of light load. Power required to run 31 HP motor load works to 23.13 KW, since 1 HP is equal to 0.746 KW. This along with 29 KW of light load comes to 52.13 KW of power rounding off to 52.5 KW. The contracted load of the petitioner is thus 52.5 KW.

5. The agreement indicates the tariff for such supply of energy: provision of payment of minimum charges and it is also agreed to between the parties that in case of unmetered or defective meter supply the energy consumption shall be assessed at load factor of 20% on the connected load rounding off to next 1/2 KW. There is also provision for collection of fuel surcharge and electricity duty over and above the tariff. fender the agreement the petitioner further agrees to abide by all the terms and conditions of Orissa State Electricity Board (General conditions of Supply) Regulations, 1981 as modified from time to time. The tariff and conditions of supply between the parties are also subject to future revision by the Board. Clause 9 of the agreement provides that in case of any dispute -or difference between the consumer and the Board as to supply of electrical energy or interpretation of the agreement, such dispute shall be referred to the Arbitration Tribunal constituted by Govt. of Orissa and such arbitration shall be covered by the Indian Arbitration Act, 1940. This Clause contains the important proviso that any dispute or difference with regard to the rate of tariff, surcharge or any other duties payable under the agreement and the liability of the consumer to pay the same shall not be deemed to be a dispute within the meaning of this Clause. The agreement also gives the details of the list of motors, their number and different Horse Powers. The total load works out to 31 HP and the details of light load work out to 29 KW as mentioned earlier.

6. After execution of the agreement, the petitioner installed some machinery and submitted a test report on 01.04.93. The installation was done by a contractor authorised by the Electrical Licensing Board to install electrical machinery. This test report was signed by the petitioner. He had indicated 119 points with a total wattage of 24070 or 24.5 KW. On submission of the test report, energy was supplied the same day.

7. The Vigilance Wing of Grid Corporation of Orissa Ltd. carried out a surprise inspection of the petitioner's premises on 17.11.95. The petitioner being away for business purposes, an employee of the petitioner who was the hatchery-in-charge remained present during this surprise inspection. In course of this inspection, it was reportedly found that the petitioner had a connected load of 27.25 KW for running motors as against a contracted load of 23.13 KW as mentioned earlier and a connected light load of 36.96 KW as against a contracted load of 29 KW, thus, totaling a connected load of 64.21 KW. It is important to note that at the time of this inspection, the meter in the premises of the petitioner was running as mentioned in the surprise inspection report. On receipt of the report of surprise inspection, the Executive Engineer in his letter No.1828 aft. 25.3.96 directed the petitioner to intimate the date of enhancement of the connected load without execution of fresh agreement/security deposit. It was intimated that if no reply is received within fifteen days energy bill would be claimed at penal rate i.e. double the tariff rate with retrospective effect. As no reply was sent by the petitioner, on the basis of the total load of 64.21 KW as found during surprise inspection against the contracted demand of 52.5 KW, the Board charged him with arrears of Rs.49,110/-. this amount along with the bill for current energy charges for the month of June, 1996 amounting to Rs.21,080.60 paise and electricity duty of Rs.1,097.10 paise came to Rs.71,287.70 paise. The petitioner was directed to pay the bill within 15 days from the date of the issue which was 15.07.96. The petitioner took up the matter with the Superintending Engineer, Bhubaneswar Circle in his letter dt 23.7.96 in which he claimed that his actual load did not justify paying of arrears at double rates. He also stated that there was no justification for using a load of 100 watt and 1000 watt for unused plug points which have been provided to connect mobile or emergency load. He also filed a petition before the Chairman, Grid Corporation of Orissa Limited on dt.09.08.96 contesting the demand for arrears and also claiming that he should be charged at medium industry rate and not at commercial rate. It is relevant to note that prior to all this, on 12th Nov., 1993, the petitioner had applied to the Superintending Engineer, Bhubaneswar Circle praying that the rate of tariff charged to him should be changed from commercial rate to the rates applicable to medium industry. Against the above background the petitioner has come up before the Commission with the present petition on dt.19.08.96.

8. In his petition before us, as also in course of his oral submissions the petitioner made the following points :

1. According to the Orissa State Electricity Board (General conditions of Supply) Regulation, 1981, he should be charged at the rate applicable to medium industry and not at commercial rate as at present.

2. The enumeration of the connected load as indicated in the inspection report of the Vigilance Wing is incorrect and suffers from various deficiencies.

3. As a consequence, the penalty of Rs.49,110/- charged to him is illegal and is not payable by him.

9. In their reply GRIDCO has pointed out that the rate applicable to commercial category has been rightly charged to the petitioner. They have also submitted that the calculation of connected load in the inspection report of the Vigilance Wing has been correctly done and the bill has been correctly worked out.

10. Before considering the submissions of both the parties, the question of maintainability has to be decided first. Even though this point has not been raised before us, it is well settled that consent of parties cannot confer jurisdiction on a court. The question of maintainability is specially important in view of sub-section (2) of Section 33 of the Reform Act of 1995 which lays down that nothing in this Act shall affect the rights and privileges of consumers under any other law including the Consumer Protection Act, 1986. Under the Consumer Protection Act, 1986, a hierarchy of Courts have been set up at the District, State and National levels. These courts are presided over by Senior Judicial Officers of vast experience. The Consumer Courts at the state and national levels are headed by Hon'ble Justices of the High Court and the Supreme Court. In dealing with complaints of consumers against the licensee, the Commission will therefore, have to be careful in not encroaching upon areas which under the law are covered by the Consumer Protection Act, 1986. It will, therefore, be necessary to look into the provisions of the Act of 1986 for deciding the question of maintainability of this petition before us.

11. Clause (d) of Section 2 of the Act of 1986 inter alia defines consumer as a person who buys goods for consideration but does not include a person who obtains such goods for resale or for any commercial purpose. It is well settled that electricity is goods but the petitioner in this case does not come within this part of the definition of consumer, because he is buying electricity from Gridco for a commercial purpose. The second part of the definition of consumer denotes any person who hires any services for a consideration. Clause (o) of the same Section defines service. This inclusive definition specifically mentions supply of electrical or other energy. The exceptions provided under this Clause relating to rendering any service free of charge or under a contract of personal service are not applicable to the petitioner. It is, therefore, clear that supply of electricity is a service and the petitioner is a consumer within the definition of this Act. But, the complaint of the petitioner is not regarding any deficiency in service provided by the opposite party. The petitioner complains that he has been billed for an amount which is not legally recoverable from him. His other grievance is about the tariff applied to him. Thus, the allegations against the opposite party do not reveal any deficiency in service provided by the opposite party. Therefore, the petition dtd. 19.08.96 is not a complaint as defined under Clause (c) of Section 2 of the Act and therefore, the present petition could not have been filed before the concerned Consumer Court. In course or his oral submissions the petitioner has also mentioned that he has been advised by his lawyer that his complaint is not maintainable before the Consumer Court.

12. The second aspect of question of maintainability is that under Clause 9 of the agreement between the petitioner and the opposite party referred to earlier, any dispute between the parties is required to referred to the Arbitration Tribunal. But as earlier mentioned, under the proviso to this Clause any dispute or difference with regard to the rate of tariff surcharge or any other dues payable under the agreement shall not be deemed to be a dispute within the meaning of this Clause. Therefore, with regard to the points raised in this petition the Arbitration Clause of the agreement is not attracted.

13. On the other hand, under sub-section (1) of Section 18 of the Orissa Electricity Reform Act, 1995, the Commission may enquire into the conduct or functioning of any license in carrying out the obligations under the Act upon receiving a complaint from any consumer. The petitioner is a consumer and therefore his complaint against the opposite party as alleged in hits petition is required to be adjudicated by the Commission. On the above consideration I hold that the petition is maintainable before us.

14. Of the three contentions of the petitioner, the second contention is taken up first. It has been urged by the petitioner that the enumeration of the connected load as indicated in the inspection report of the Vigilance Wing is incorrect as it suffers from various deficiencies. In support of this contention, in course of his oral submissions, the petitioner made the following points. It was stated that under circular No. 14769 dated 6th September 1989 of Chief Engineer (Commerce) of the erstwhile Orissa State Electricity Board norms were laid down for fixation of contract demand in respect of loads governed by single part tariff. In respect of commercial load the norm fixed provides that for each 5 Amp convenient plug point, load has to be taken as 100 watt and for each 15 Amp plug point as 1000 watt. It has been submitted by the petitioner that taking the load at 100 watt and 1000 watt each at uniform rate for all the 5 Amp and 15 Amp power plug points is illogical because the consumer is not expected to utilise all the plug points at any given point of time. According to the petitioner, the diversity factor should have been built into fixing of such norm as has been done in respect of domestic consumers under the same circular. The petitioner has also stated that issuing of this circular by Chief Engineer (Commerce) is without any legal basis and the connected load cannot be legally fixed in this fashion. The term connected load has been defined in sub-clause (ix) of Clause 3 of the Orissa State Electricity Board (General Conditions of Supply) Regulation, 1981 (1981 Regulation). Shorn of technical details, according to this definition, connected load means the total of the manufacturer's rating of all the apparatus including portable apparatus on the consumer's premises which is supplied with energy and apparatus in respect of which declaration has been made by the consumer for taking supply. Thus, it is clear that connected load has to be normally determined with reference to the rating of different apparatus on the premises of the consumer. In this case connected load has not been determined on the basis of manufacturers rating of the different apparatus with the consumer that is the petitioner; but on the basis of the rating of the different electrical installations according to the circular referred to earlier. The question is whether such calculation of the connected load is legal specially in view of the contention of the petitioner that the circular aft. 6th Sept. 1989 has been issued without any authority and therefore, is not binding on him. The above contention is not correct because under Clause 19 of the 1981 Regulation, it has been provided that where for any reason it is not possible to determine the maximum demand, power factor or any other electrical quantity contained in the supply in respect of an installation the Board shall determine such quantities periodically by rating/re-rating/physical measurement or any other method approved by the Board which shall be binding on the consumer. This Clause gives the authority to the Board to lay down principles and guidelines for fixation of connected load on the basis of rating of all electrical installations and the circular of the Chief Engineer (Commerce) has been issued in exercise of this power of the Board. Therefore, the circular cannot be said to be without any authority.

15. As regards, the question of diversity factor, it is seen that in case of domestic consumer, the circular provides that for 5 Amp wall plug point, the first two plug points should be taken as having a load of 100 watt each and for each additional 5 Amp plug points the connected load should be taken as 20 watt. Similarly, for 15 Amp power plug points on the premises of domestic consumers it has been laid down that the first two 15 Amp plug point would be taken to be having a load of 1000 watt each and for additional plug points load will be taken as 300 watt each. The contention of the petitioner is that such diversity factor has not been applied while laying down the norm for fixing the contract demand in respect of commercial consumers. This contention is not correct because of the following reason. While fixing 100 watt for each 5 Amp power plug point and 1000 watt for each 15 Amp power plug point in case of commercial consumers, diversity factor has been taken into account. This is because wattage is derived by multiplying the unit of the current with the voltage. Generally, the supply is made at voltage ranging between 220 to 230 volt. Taking the lower end of 220 volt for calculating wattage for a 5 Amp plug point the wattage is generally speaking 5 X 220 = 1100 watt as against which for commercial consumer an uniform wattage of 100 watt has been adopted. Similarly, for 15 Amp plug point at 220 volt the wattage would be 3300 watt as against which an uniform wattage of 1000 watt has been taken for each 15 Amp plug point in the impugned circular. The contention of the petitioner on this point must therefore, be rejected. This calculation takes into account, and to my mind quiet liberally, the diversity factor while fixing the norm of wattage for commercial consumers. It is a fact that for domestic consumers a further relaxation has been given in the above circular by taking the wattage of the third and further 5 Amp plug points as 20 watt each and similarly, for second and further plug points of 15 Amp as 300 watt each. But, the petitioner cannot claim as of right, further, concession in respect of his rating because as earlier mentioned under Clause 19, the rating made by the Board is binding on him. Moreover, in the initial test report submitted by him on 1.4.93 he had himself taken each 15 Amp plug point as having a wattage of 1000 watt each. It is, therefore, not open for him now to question the calculation of wattage in this manner.

16. The petitioner has further stated that a plug point by its very nature is meant for occasional use because for continuous and permanent use generally a switch is fixed. On this ground also he had challenged the above circular. Even though it may be true that a plug point is meant for occasional use but it cannot be said to be invariably so. The person can continuously run a T.V. or any other electrically operated machine through a plug point. Moreover, once a certain number of plug points has been fixed in a premise it is open for the owner/occupier of the premises to utilise all the plug points simultaneously and draw power. Thus, every plug point denotes the possibility of drawing power and also simultaneous use of all the plug points at the choice of the owner/occupier. I, therefore, do not find anything unreasonable in calculation of wattage in this way. As regards the other details of installation of machinery as mentioned in the inspection report of the Vigilance Wing those have not been challenged by the petitioner. The representative of the petitioner was present at the time of inspection and had signed the inspection report. This contention of the petitioner is therefore rejected.
 

17. The third contention of the petitioner is that the calculation of penalty at Rs.49,110/- has been incorrectly done. In reply, the opposite party has provided the detailed calculation sheet supporting the working out of the arrear charges at penal rate. I have personally checked up the calculation and I find that the calculations made by the opposite party are defective and the result of such defects has worked out to the advantage and not to the detriment of the petitioner. This point is explained hereunder. The date of inspection of the Vigilance Wing of Orissa State Electricity Board was 17.11.95. By that time Orissa State Electricity Board (General Conditions of Supply) Regulations 1995 (1995 Regulations) had come into force with effect from 1st October, 1995. Clause 40 of the Regulation deals with penalty. Under sub-clause (a), it is provided that quantum of unauthorised consumption shall be determined by the same ratio as the unauthorised load stands to the authorised load. In the case of the petitioner the connected load was found to be 64.5 KW as against the contracted load of 52.5 KW. As such the unauthorised load was 12 KW. So, the quantum of unauthorised consumption should have been determined by dividing 12 KW by the contracted load i.e. 52.5 KW and multiplying with the actual consumption of energy. But, as a matter of fact in the calculation made and bill submitted, the unauthorised load has been divided by the connected load of 64.5 KW and multiplying this by the energy consumption. This has resulted in reducing the figure and consequently the penalty. Secondly, penalty is charged under sub-section (b) for the period of such unauthorised consumption which shall be determined on the basis of evidence adduced by the consumer; on his failure to provide satisfactory evidence, this Clause provides, that penalty should be calculated for a period of one year prior to the date of detection limited to the date of actual supply in case supply was given within a period of one year. In this case, after the inspection report of the Vigilance Wing, the Executive Engineer in his letter dt.25.03.96 directed the petitioner to intimate the date of enhancement of the connected load. It was also stated that if no reply is received within 15 days, energy bill would be claimed at penal rates with retrospective effect. No reply to this letter was sent by the petitioner and therefore, the opposite party rightly charged the penal rate retrospectively for a period of one year. In the matter of calculation of the penal rate also the opposite party has committed mistake and the petitioner has benefited thereby. During that period of one year, the meter on the premises of the petitioner was running for certain periods and was out of order for certain other periods. For the period when the meter was running, the petitioner had paid the energy charges at the normal rate and penal rate being double of the normal rate, penalty has been worked out at the same rate as the normal rates. To be more specific, at the relevant period the tariff was Rs.2.00 per KWH. For the period when the meter was running, penalty has been charged lightly at Rs.2.00 per KWH, because two rupees per KWH have been already paid by the petitioner as current charges earlier. But, the situation is different for periods when the meter was out of order. For those periods the petitioner has not paid any dues for enhanced load and therefore the penal rate should have been charged at Rs.4.00 per KWH. But, for those periods in the bill the penal rate charged is Rs.2.00 per KWH. From the above, it is very clear that the petitioner's claim that the penalty at Rs.49,110/- has been wrongly calculated to his detriment is not based on facts and this contention is therefore rejected.

18. Having held that the petitioner has not been overcharged when the penalty has been levied at Rs.49,110/- it requires to be stated however that the opposite party has not correctly charged the petitioner in respect of his current dues in certain months. According to the agreement between the parties for- periods when the meter was out of order opposite party was required to charge the petitioner only at 20% of the load factor. But, in certain months from April'95 to August '95 the opposite party has charged the petitioner at average consumption for which there is no authority. Such overcharging of customer by adopting a method of calculation more beneficial to the Gridco cannot be countenanced. According to the calculation made by me if such overcharging is taken into account the net amount payable by the petitioner would come to Rs.23,320/- against which-in compliance with our order dtd.26.08.96 he has paid Rs.24,555/- as 50% of the penalty of Rs.49,110/- charged by the opposite party. Thus, the petitioner would be entitled to get back a small amount or Rs.1,000/- from Gridco. Besides while overcharging the petitioner in the manner explained above, Gridco has also claimed and obtained excess charges by way of electricity duty. This amount by a rough calculation comes to around Rs.4,000/- The petitioner would be entitled to get back this amount also. It is, therefore, ordered that Gridco would recalculate petitioner's liability strictly in accordance with directions given above and determine the excess amount already paid by the petitioner. This amount should be intimated to the petitioner and to the Commission along with detailed calculation within a period of 15 days. The amount so determined as excess should be deducted in the next Energy bill of the petitioner. Needless to say that in view of the above petitioner would not be required to pay the balance 50% of the penalty of Rs.49,110/- with which he has been charged.

19. The last contention of the petitioner is that he should have been charged with the rate applicable to medium industry and not the rate applicable for commercial supply. In support of this contention the petitioner has drawn our attention to Clause 28 of the 1981 Regulations. Under sub-clause (xi) supply to medium industry has been defined as follows: "This supply is meant for industrial production purposes with contract demand/connected load of 20 KW/22KVA and above upto but not exceeding 100 KW/110 KVA where power is ordinarily utilised as a motive force." The above definition has undergone slight change in the 1995 Regulations. Under this Regulation under sub-clause (x) of Clause 27 medium industries consumer has been defined as follows: "This category refers to supply of power for industrial production with a contract demand of and beyond 22 KVA upto and excluding 110 KVA, where power is generally utilised as a motive force." From the above two definitions, it is clear that the main element of definition of supply for medium industry has not undergone any change. Essentially it is supply of and beyond 22 KVA upto and excluding 110 KVA where power is generally utilised as a motive force. The petitioner has drawn our attention to the definition of commercial consumers under sub-clause (ii) of Clause 27 of 1995 Regulations which lays down that this category relates to supply of power to premises which are utilised for business/commercial purposes with a contract demand upto and excluding 110 KVA where the non-domestic load exceeds 10% of the total connected load. The petitioner has submitted that his unit is a industrial unit registered with the District Industries Centre (DIC) He also claims that hatching of eggs into chicks by creating an artificial environment through electrically operated machinery to enable the eggs to hatch is an industrial activity. He has further submitted that the term "motive force" means creation of any force for bringing about any change and as such creating an environment conducive to hatching of eggs through electrically operated machinery, according to him is an example of using electrical energy as a motive force.

20. Representatives of the opposite party have pointed out that in the definition of commercial consumer which was in force when the agreement with the petitioner was entered into, hatchery has been specifically mentioned as a commercial consumer. This was in 1981 Regulations. The representatives of the opposite party also pointed out that according to the definition of commercial consumer in the 1995 Regulations, the petitioner also comes under this category, as his non-domestic load exceeds 10% of the connected load. Further, it has been urged that the unit of the petitioner is not an industry and electric power is not being utilised by the petitioner as a motive force.

21. I have considered the contention of the petitioner very carefully. As regards, definition of industry, it is true that sometimes any organised activity with a certain object in view is termed as industry. Thus, one talks of Tourism Industry or Entertainment Industry. But, in determining the question raised by the petitioner, it is necessary to go, not by the general way (in which the term industry is used at other context, but the manner in which the term has been used in the 1981 Regulation or in the 1995 Regulation. Because, it is on that basis the rights and liabilities between the parties in this case have to be determined. Coming to the definition of commercial consumer in the 1981 Regulation as modified in 1987 pare (ii) of sub-clause (a) of Clause 28 of the Regulation defines commercial consumer. This definition specifically mentions hatchery as a commercial consumer. According to this definition commercial supply means supply for lights and combined installation of lights, fans, radio or other electrical appliances and small power installations up to but excluding a contracted load of 100 KW/110 KVA utilised for commercial or non-domestic purpose, at a single point for shops commercial establishments like rest houses, restaurants, etc. An illustrative list has been given in this Clause and this includes hatchery, poultry farm, etc. Definition of medium industry under 1981 Regulation has been already referred to earlier. Under the 1995 Regulation, definition of commercial consumer was changed to mean supply of power to premises which are utilised for business/commercial purposes with a contracted demand up to and excluding 110 KVA, where the non-domestic load exceeds 10% of the connected load. In the instance case, petitioner's contracted load is 52.5 KW which is within the supply range mentioned in the above definition. The second point is whether non-domestic load of the petitioner exceeds the total connected load. As earlier mentioned the contracted load of the petitioner was 52.5 KW out of which light load was 29 KW. From the break up of light load in the agreement, it is found that 5 KW is for general lightings some of which is obviously used also for the hatchery and residential light load is 1.8 KW. But, even taking the General lighting as part of domestic load the total domestic light load worked out to 6.8 KW the balance being non-domestic load. It is seen that domestic load is a small percentage of the total contracted load and thus, the petitioner comes well within the definition of commercial consumer. If we go by the connected load of 64.5 KW, then the domestic load is accounted for by taking all the light points with a load of 15 KW and the fan point 1.36 KW, thus total to 16.36 KW. The non-domestic load works out to 48.14 KW which is again much more than 10% of the total connected load. On both these calculations the supply to the petitioner thus squarely falls within the definition of commercial supply. The petitioner has relied upon the definition of medium industry in both 1981 and 1995 Regulations, where it is said that if within the range of supply mentioned in the definition power is generally utilised as a motive force then the unit will be considered as a medium industrial consumer. The petitioner has claimed that motive force means creation of any type of force and according to him creation of an environment conducive to hatching of eggs through functioning of electrically operated machinery is an example of use of electricity as motive force. I am unable to accept this contention because what is meant by motive force is use of kinetic energy that which produces motion. In other words, where utilisation of power is for- running a motor or some such apparatus that will be an example of use of power as a motive for-cc. In the case of the petitioner electrical energy is utilised for running of incubators, brooders, water pump, feed plants, etc. according to the contract. There the load of incubator works out to 7.46 KW under heavy load and 15 KW under light load. Taking brooder load at 7.2 KW and General and residential lighting at 6.8 KW, the total of 36.46 KW is used as non-motive force. Energy used for non-motive force works out to 36.46 or 36.5 KW as against the total contracted load of 52.5 KW. Thus, it cannot be held that power is being used in the unit of the petitioner generally as motive force. Therefore, on this ground also the unit of the petitioner does not come within the definition of medium industry. It is no doubt true that the petitioner's unit has been treated as a medium industry by the District Industries Centre. But that is mostly and generally for the purpose of availing subsidised credit and other facilities and has no connection with applicability of the type of tariff on the unit of the petitioner. On the above ground, this contention of the petitioner is also rejected.

22. To sum up, therefore, the contentions of the petitioner err rejected and the petition is dismissed subject to observations above.

Pronounced this day the Seventh of November, 1996 in presence of the petitioner and the opposite party.

Typed to my dictation and

Corrected by me.

(S.Som)

Sd/- Somnath Som
CHAIRMAN

I agree.

Sd/- A.Mohanty
(MEMBER)

I agree.

S/d D.K.Roy
(MEMBER)

ORISSA ELECTRICITY REGULATORY COMMISSION
BHUBANESWAR

This matter has been taken up today at short notice at the instance of the petitioner who has asked for an interim order pending consideration of the submissions made in his petition The petitioner is present in person Gridco is represented by the Superintending Engineer (Commerce) and the Executive Engineer, Khurda Electrical Division, Khurda. Heard the petitioner and the representatives of Gridco For the purpose of considering the prayer for issuing, an interim order, it is not necessary to go into detailed facts of this case except mentioning that the petitioner is a commercial consumer under Gridco with a contracted load of 52.5 kw On a surprise verification on 17.11.95 of the premises of the consumer where he is running a hatchery, by the Vigilance Wing of the erstwhile OSEB, now reconstituted as Gridco, it is alleged that the consumer was found to have installed load capacity of 64 21 kw Consequently Gridco has raised a bill of Rs.71,287.70 paise of which Rs.49,110/- has been shown as arrear charge from 11/94 to 10/95. During, the period from 11/94 to 10/95 for certain months the meter was defective It is submitted by the petitioner that during these periods the meter was actually running for sometime and there was no need for charging arrears on the basis of load factor It was explained by the representative of Gridco, that the amount of arrear charge of Rs 49,110/- had been worked out on actual consumption basis for the periods when the meter was running and for the other periods on the load factor and/or average charges The applicant in his petition has also raised a larger issue as to whether he should be charged as a commercial consumer as at present or as a medium industrial consumer That question will be considered after receipt of detail reply to the petition from the licensee (Gridco) Considering the fact that the petitioner is running a hatchery from which he is selling one day old chicks to the tune of 12000 chicks per week, it seems to us that quite apart from loss of business to the applicant by disconnection of his line, the lives of large number of living creatures will also be jeopardised if the line is disconnected At the same time the Gridco has raised demand on the basis of energy charges according to their acknowledged system Considering the balance of' convenience of both the sides we feel that ends of justice would be met if the petitioner is directed to pay 50% of the arrear charges of' Rs.49,110/- and the remaining amount of the bill in full After such payment, the Gridco should not disconnect the line till the matter is finally disposed of by us One week time for payment is given to the petitioner from today i.e. till 2nd of September after which date Gridco will be free to disconnect the line of the applicant if payment as above is not made The petitioner consented to make such payment It is clarified that payment of 50% of the amount of Rs.49,110/- by the applicant is without prejudice to his submissions regarding validity of this amount It is also clarified that failing to pay this amount by 2nd of September Gridco will be at liberty to disconnect the line of the consumer and take such other action as they are entitled under the law and their Regulations It is also clarified that the petitioner will continue to pay such current charges as may be raised against him by Gridco till the matter is finally disposed of.

The matter is posted to 23rd September for further hearing Gridco to submit their reply by 30.8.96 with copy to the petitioner

23.09.96 The petitioner represented in person Gridco represented by Superintending Engineer (Commerce) and the Executive Engineer, Khurda Electrical Division Written argument filed by the petitioner Heard the petitioner and the representatives of Gridco. Gridco is directed to file two circulars of 1978 and 1980 regarding fixation of contract demand within a week. Representatives of Gridco want to file written arguments. They are allowed to do so by 30.09.96 with copy to the petitioner. The matter is posted to 15.10.96 for orders The existing arrangement regarding supply of electricity to the petitioner to continue till delivery of orders.

15.10.96 The petitioner is present. The opposite party is absent. This matter was fixed for orders today, but as one of our Member Commissioners is out of station and will shortly be out of the country the matter is posted to a date after his return to head quarters. The case is posted for orders on 7th Nov. '96. Status quo to continue as directed in our order dt. 26 08 96

07.11.96 Petitioner present in person. Opposite party is also represented. Orders delivered in separate sheets. The petition is rejected Copies of the order given to the petitioner and the opposite party.

Sd/-
(D.K.ROY)

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