CASE NO. 17 of 1997

ORDER No. 002 DATED 23rd JULY, 1997

Shri S.C. Mahalik,Chairman
Shri A.R. Mohanty, Member
Shri D.K.Roy, Member

In the matter of dispute with Gridco in respect of category of consumer in the billing in violation to Power Supply Agreement.

M/s. Hotel Anand - Petitioner

For the Petitioner: Shri P.K. Satpathy, Retd. Chief Engineer (EL)

M/s. Grid Corporation of Orissa Limited - Affected Party

For the affected party : Shri P.C. Mishra, Executive Engineer, BCDD, Bhubaneswar.

1. This proceeding relates to consumer complaint case filed by M/s. Hotel Anand, Mancheswar Industrial Estate, Bhubaneswar seeking (i) stay in operation of any threat of disconnection by the Respondent_ (GRIDCO) ; (ii) direction to the Respondent (GRIDCO) to comply with the provisions of the Power Supply Agreement valid till its expiry on 14-10-2000; (iii) in preparing the bills for the tariff charges for industrial production purpose as mentioned in Clause.7(a) of the agreement; (iv) revision of energy bills already served on them by GRIDCO as per Clause.7(a) of the Power Supply Agreement in force; (v) payment of differential amount in suitable installments by the petitioner after the revision of the bill. The petitioner in his petition made specific reference to Section.(18)(i)(a) of the Orissa Electricity Reform Act, 1995 for relief against wrong bills raised by GRIDCO.

2. The Petitioner, M/s Hotel Anand, is a Unit of M/s NMHL Group of Companies running this hotel establishment at CB-1, Mancheswar Industrial Estate, Bhubaneswar. They had entered into an agreement with Orissa State Electricity Board for supply of electrical energy to their unit for Hotel purpose. This agreement is initially valid for five (5) years from the date of supply and was terminable through six (6) months notice on either side. The agreement is still in force as the supply was effected from 25.10.95. The representative of the Petitioner present during the hearing mentioned that GRIDCO has been charging the Hotel Anand on commercial rate of tariff as against industrial tariff provided in the Power Supply Agreement at Clause 7(a). The representative of the Petitioner was asked by the Commission about the applicability of Section 18(i)(a) of the Orissa Electricity Reform Act, 1995 under which the petitioner had sought relief against wrong billing by the GRIDCO, since Section 18(i)(a) relates to revocation of license, upon receiving a complaint from any consumer. Further, the representative of the Petitioner could not explain on the maintainability of the case before the Commission in the context of Section 33 (2) where the consumer is free to seek redressal through the appropriate consumer redressal forum under the Consumer Protection Act, 1986.

3. GRIDCO, the respondent, in their counter raised an issue regarding maintainability of the application. They contended that the previous owner Sri Purnachandra Behera has not assigned the agreement in favour of the present owner Kishore Kumar Misra as provided in Clause-37 of the OSEB (General Conditions of Supply) Regulations, 1995. Further, they justified reclassification of the petitioner as commercial consumer instead of industrial consumer on the ground that the petitioner has not produced any recommendation of the District Industrial Centre for availing the benefit under IPR, 1992 under which the Industries Deptt. used to give subsidy for treating: hotels as industry. Moreover, it is alleged that the Power Supply Agreement which was executed on 14.10.95 and was put into effect from 25.10.95 could not be effective for treating the petitioner as an industrial consumer in view of letter No.5819 dt.1.11.95 of the D.I.C., Bhubaneswar to the Executive Engineer, B.C.D.D. clarifying that the IPR facility would not be extended beyond 31.10.95. Accordingly, bills were prepared and served on the petitioner at commercial tariff from the date of power supply and payment have been made by the petitioner without any complaint till 5.2.97. The Jr. Engineer, Mancheswar Industrial Estate, in his letter No.865 dt.5.1.96 had intimated Hotel Ananda about excess drawal of energy beyond contract demand and requested for enhancement of load in the contract. On 17.8.96, a load census was made and load of 47 KWs was detected instead of 18 KWs connected load. The census report has been acknowledged by the representative of Hotel Ananda and accordingly GRIDCO preferred bills at 47 KWs of contract demand w.e.f.8/96 onwards.

4. The petition was fixed for hearing to determine whether petition was maintainable before the Commission. The issues arising in this case for consideration of the Commission including one regarding maintainability of the petitions are :

1. Is the Petition maintainable under Section 18 of the OER Act or any other provision of the said Act?

2. Can the Petitioner claim any benefit of the Power Supply Agreement by way of assignment?

3. Can the Petitioner claim any benefit under the IPR, 1992?

4. Can the Petitioner move the Commission in view of the arbitration agreement contained in Clause 37 of the Power Supply Agreement?

It would be necessary to go into Issue Nos. (ii), (iii), and (iv) only if the answer to Issue No.(i) is in the affirmative.

5. The Petitioner, in this case, has moved the Commission under Section 18(1)(a) on the footing that it is a consumer. However, the scope of the inquiry under Section 18 is defined in Section 18(2) which runs thus:

1. where the licensee, in the opinion of the Commission, has committed a willful or unreasonable default in doing anything required of him by or under this Act, or the Indian Electricity Act, 1910 or the Electricity(Supply) Act, 1948 the rules or regulations made thereunder;

2. where the licensee commits a breach of any of the terms and conditions of his licence, the breach of which is expressly declared by such license to render it liable to revocation ;

3. where the licensee fails within the period specified in his licence or any longer period which the Commission may allow by order;

1. to show, to the satisfaction of the Commission, that he is in a position to fully and efficiently discharge the duties and obligations imposed on him by his licence; and

2. to make the deposit or furnish the security required by his licence; and

4. where in the opinion of the Commission the financial position of the licensee is such that he is unable to fully and efficiently discharge the duties and obligations imposed on him by his licence".

The Petitioner has not sought for revocation of licence of GRIDCO due to non-compliance of licence conditions. The complaint is simply that GRIDCO has been treating the Petitioner as a consumer in the "commercial category" instead of "Industrial category'' as provided in the Power Supply Agreement. We need not go into the question whether in this case GRIDCO has made a wrong classification of consumer from tariff point of view, a wrong classification of an individual consumer does not come within the purview of any of the Clause (a) (b) (c) or (d) of Section 18(2) of the OER Act, 1995 to which the scope of the inquiry under Section 18 would be confined. A consumer's application under Section 18 of the OER Act would be maintainable only if the allegations made therein are such that, if true, they would attract the provision of Section 18 (2) of the OER Act, 1995. The first ingredient of the said provision is that the allegations, if true, should render the licence liable to revocation in public interest. The application filed by the Petitioner does not pass this test. At most, the Petitioner sets up a case of private injury to itself, for which remedy may lie elsewhere. The case set up by the Petitioner ex facie does not come within Clauses b, c, and d of Section 18(2); and it does not come within the meaning of the phrase "default in doing anything required of him by or under…regulations…."

In Clause (a). The word "default" is not the same as "mistake" or "illegality". Therefore, the application of the Petitioner raising a simple consumer dispute of this nature is not maintainable.

It is, therefore, not necessary to express any opinion on the other issues which touch on the merit of the case.

6. On the above considerations, the Petition is not maintainable before the Commission and is hereby dismissed.

7. Ordered that copy of this order be supplied to both the Petitioner and the respondent.

(D.K.ROY)
MEMBER

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