M/S. S.M. Cement Industries vs Assam Power Distribution Company Ltd. And 3 Ors.

Heard Dr. A. Saraf, the learned Senior Counsel assisted by Mr. P. Baruah, the learned counsel for the petitioner. Also heard Mr. B. D. Das, the

learned Senior Counsel assisted by Ms. R. Deka, the learned counsel for the respondent APDCL.

Order dated 26.03.2021 passed in File No. EOM. 43/2020 by the Electricity Ombudsman under the Assam Electricity Regulatory Commission is put

under challenge. It is submitted by Dr. Saraf that an order passed earlier by the Consumer Grievance Redressal Forum dated 21.08.2019 was put to

challenge in WP(C)/3364/2020. The said writ petition was disposed of vide order dated 11.09.2020 by remanding it back to the Consumer Grievance

Redressal Forum after holding as follows:-

“Para-20- Accordingly, the matter stands remanded back to the Consumer Grievance Redressal Forum for a fresh adjudication on the

legality and validity of the supplementary bill that was prepared under Clause 5.A.4.5(iii)(b) of the Electricity Supply Code and arrive at its

own finding as to whether the condition precedent of invoking the Clause 5.A.4.5(iii)(B) has been satisfied in the present case i.e. whether a

finding can be arrived at with the meter system, which was not working properly and it was found to be incorrect. But to arrive at such

conclusion, the invalid test report dated 25.04.2013 shall be relied upon. The authorities may rely upon any other acceptable materials to

substantiate such contention. The conclusion of the Electricity Ombudsman in the other matter as extracted in paragraph-17 hereinabove be

also kept in mindâ€​.

In terms of the said order dated 11.09.2020, the learned Consumer Grievance Redressal Forum disposed of the C.P Case No.11/2020 vide its

judgment dated 14.12.2020. The said order was put to challenge by the petitioner vide petition No. 5/2020 upon which File No. EOM. 43/2020 was

initiated before the Electricity Ombudsman under the Assam Electricity

Regulatory Commission and after hearing the parties, the Electricity Ombudsman vide its order dated 26.03.2021 passed the impugned order upholding

the order of the Forum operative portion of which is extracted herein below:-

“We have perused the entire materials available on record and gone through the relevant provision as enumerated in clause 5.A.4.5 (III)

(b) of the electricity supply code and also gone through the order passed by the learned Ombudsman related to this matter along with the

report dated 25.04.2013 submitted by the MTI Division, Amingaon and we find and hold that the supplementary bill in question which has

been prepared by the APDCL under clause 5.A.4.5 (III) (b) of the supply code has satisfied the condition precedent for invoking of the

aforesaid clauses and accordingly we find and held that the supplementary bill amounting to Rs.79,60.603.00 only is valid and proper. The

copy of the judgment & order be sent to the consumer and billing officials of the APDCL for complianceâ€​.

It is the contention of Dr. Saraf that while passing the order by the Consumer Grievance Redressal Forum it went beyond the scope of remand by

taking into consideration evidence which was not on record. The said evidence cannot be termed as circumstantial evidence. The Electricity

Ombudsman without taking into consideration of the remand order of this court affirmed the finding of the Redressal Forum and the order of the

Electricity Ombudsman is liable to be set aside along with the one of the Redressal Forum and matter may be remanded back for giving fresh

decision.

Mr. Das, the learned Senior Counsel on the other hand objected to the submission made by Dr. Saraf on the ground that the APDCL allowed drawal

of power by the petitioner company directly from the transformer/distribution system of the APDCL on 11.02.2013 after the 11 KV CT-PT set got

damaged. The said CT-PT was replaced on 14.03.2013 along with the existing meter with a new laboratory tested DLMS compliant meter.

Thereafter, the respondent APDCL raised the supplementary bill on 30.08.2013 amounting Rs. 79,60,603/-for the defect in the meter and the loss of

revenue arising thereafter. Referring to the operative portion of the order dated 11.09.2020, Mr. Das submits that this court granted the liberty to the

authorities concerned to rely upon any other acceptable material to substantiate the claim of the respondent APDCL and to that effect this court

referred the clause 5.A.4.5. (iii)(b) of Electricity Supply Code and on the basis of the said liberty which was earlier considered by the Electricity

Ombudsman, bill dated 24.08.2020 amounting Rs.50,66,422/-was raised. Those facts were considered by the Consumer Grievance Redressal Forum

and the Electricity Ombudsman which are admitted facts and on the basis of the same, Clause 5.A.4.5.(iii)(b) is applicable. It is also the contention of

the learned Senior Counsel for the APDCL that the findings are concurrent and as such unless there is any perversity with the evidence on record,

this court shall not interfere with the findings recorded in the order impugned in this writ petition.

Upon consideration of the submission of both the learned counsel, I am satisfied that the issue involved in this writ petition requires further hearing.

Accordingly let notice be issued. Ms. Deka accepts notice on behalf of all the respondents. Necessary extra copies be served on her. Notices are

made returnable after four weeks.

The petitioner shall deposit an amount of Rs. 15 Lakhs to the respondent APDCL which amount shall be subject to the outcome of this writ petition.

Though Dr. Saraf has contended that the said amount of Rs. 15 lakhs is on the higher side considering the present situation but the same is objected by

Mr. Das, the learned Senior Counsel for the APDCL considering it to be a meagre amount considering the outstanding from the year 2013.

In view of the submission and the counter submission of the learned Senior Counsel, in my considered opinion, this amount of Rs. 15 lakhs though

directed to be paid in the interim, however, considering the admitted facts in respect of feeding the petitioner Industry directly from 11 KV system, the

same is not on the higher side keeping in view other factual martrix prima facie.

The said amount shall be deposited within a period of six weeks from today whereafter no coercive measure shall be taken against the petitioner in

respect of the Bill dated 24.08.2020.