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Judgment
This matter is taken up through Hybrid Mode.
The Petitioner, in this Writ Petition, seeks to assail the order dated 07.03.2022 (Annexure-1) passed by the Ombudsman-II, Odisha Electricity Regulatory Commission in C.R. Case No.OM (II)W-13 of 2021, wherein confirming the order dated 19.08.2021 (Annexure-11) passed by the Grievance Redressal Forum, Sambalpur in GRF Case No.167 of 2021 the representation, the Ombudsman disposed of the representation filed by the Petitioner with certain directions.
Mr. Das, learned counsel for the Petitioner submits that the Petitioner, being the owner in possession of Plot No.1305 of Khata No.257/181 and Plot No.13057/18521 of Kahata No.257/182 situated at Sambalpur Town Unit-11, Khetrajpur, Sambalpur, (for brevity, “the premises”), is in peaceful occupation. The Petitioner has taken power supply to the premises vide Consumer No.DOM-IA-66 (new Consumer No.411001131716). Another power supply in the name of one Sanjay Kumar Agrawalla was also provided to the said premises vide Consumer No.411634050295. Said Sanjay Kumar Agrawalla defaulted in payment of electricity dues to the tune of Rs.1,35,679/- upto April, 2016. The said amount remained unpaid, for which the power supply in respect of Consumer No. 411634050295 was disconnected. The Petitioner also did not apply for restoration of the power supply in respect of the connection given to Mr. Sanjay Kumar Agrawalla. A demand of Rs.1,35,679/-was raised by the TPWODL (Opposite Parties) for which the Petitioner approached this Court in W.P.(C) No.23731 of 2019 which was disposed of on 03.12.2019 with a liberty to the Petitioner to approach the concerned Grievance Redressal Forum (for brevity, “GRF”). Accordingly, the Petitioner filed GRF Case No.167 of 2021 before the GRF, Sambalpur and vide order dated 19.08.2021 (Annexure-11), the complaint filed by the Petitioner was rejected. Assailing the same, the Petitioner filed a representation before the Ombudsman, which was registered as C.R. Case No. OM(II)W-13 of 2021. The said representation was not considered favourably vide order dated 07.03.2022 (Annexure-1) by the Ombudsman. Hence, this Writ Petition has been filed assailing the order under Annexure-1.
Mr. Das, learned counsel for the Petitioner further submits that the power connection in the name of Sanjay Kumar Agrawalla was given without the permission or knowledge of the Petitioner, who was the lawful owner in occupation of the premises. No consent was also given by the Petitioner in that regard. Thus, the Petitioner is not liable to pay any dues in respect of the power supply given in the name of Sanjay Kumar Agrawalla. This aspect was not considered either by the GRF or the Ombudsman for which the impugned orders under Annexures-1 & 11 are bad in law and are liable to be set aside. The demand of Rs.1,35,679/- made against the Petitioner should also be waived.
The matter was earlier listed on 04.08.2026 on which date Mr. Tripathy, learned counsel for the TPWODL placed reliance in the case of K.C. Ninan vrs. Kerala State Electricity Board and others; (2023) 14 SCC 431.
Mr. Das, learned counsel for the Petitioner prayed to examine the case law and make submission.
Today, Mr. Das, learned counsel for the Petitioner submits that though the principle laid down therein cannot be disputed, but the same is not applicable to the case of the Petitioner as no permission was taken from the Petitioner before providing power supply in the name of Sanjay Kumar Agrawalla in respect of the premises of the Petitioner.
Mr. Tripathy, learned counsel for the TPWODL vehemently objects to the same. He submits that while adjudicating the matter in the case of K.C. Ninan (supra), the Hon’ble Supreme Court framed certain issue and the relevant issue for consideration of the instant case is as follows:
“Whether arrears of electricity can become the charge or encumbrance over the premises”.
It is submitted that the issue has been answered by the Hon’ble Supreme Court from Paragraph-112 of the said case law. Paragraphs-112 & 117, which are relevant for our consideration are reproduced hereunder:
“112.A subordinate rule or regulation, as in the case of the Electricity Supply Code framed by a regulatory commission, can provide for a statutory charge to be fastened on the premises within which consumption of electricity was effected. In terms of Section 50 of the 2003 Act, a State Commission is empowered to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity and other cognate matters. In terms of Section PART F 181 of the 2003 Act, the State Commission is empowered to make regulations and rules consistent with the Act which carry out the provisions of the Act. As held in the preceding paragraphs, the rule making power contained under Section 181 read with Section 50 is wide enough to enable the regulatory commission to provide for a statutory charge in the absence of a provision in the plenary statute providing for creation of such a charge. The State Commission is conferred with wide powers under the statutory framework to provide for different mechanisms in the Electricity Supply Code for recovery of electricity arrears of the previous owner. The recovery of electricity arrears may take effect either by requiring a subsequent owner of premises to clear payment of outstanding dues as a condition precedent for an electricity connection, or by deeming that any amount due to the licensee shall be a first charge on the assets, or by any other reasonable condition.
xxx xxx xxx xxx
117.In light of the above discussion, we are of the opinion that the electricity utilities can create a charge by framing subordinate legislation or statutory conditions of supply enabling recovery of electricity arrears from a subsequent transferee. Such a condition is rooted in the importance of protecting electricity which is a public good. Public utilities invest huge amounts of capital and infrastructure in providing electricity supply. The failure or inability to recover outstanding electricity dues of the premises would negatively impact the functioning of such public utilities and licensees. In the larger public interest, conditions are incorporated in subordinate legislation whereby Electric Utilities can recoup electricity arrears. Recoupment of electricity arrears is necessary to provide funding and investment in laying down new infrastructure and maintaining the existing infrastructure. In the absence of such a provision, Electric Utilities would be left without any recourse and would be compelled to grant a fresh electricity connection, even when huge arrears of electricity are outstanding. Besides impacting on the financial health of the Utilities, this would impact the wider body of consumers.”
He further relies upon Section 17(vi) of the Odisha Electricity Regulatory Commission Distribution (Conditions of Supply) Code, 2019, (for brevity, “the Distribution Code, 2019”), which reads as under:
“17.xxx xxx xxx (vi) Any charge for electricity or any sum other than charge for electricity as due and payable to licensee/supplier which remains upaid by a deceased consumer or the erstwhile owner/occupier of any land/premises as the case may be, shall be a charge on the premises transmitted to the legal representative/successor-in-law or transferred to the new owner/occupier having lawful occupation of the premises as the case may be and the same shall be recoverable by the licensee/supplier as due from such legal representative or successor-in-law or new owner/occupier having lawful occupation of the premises as the case may be.”
It is, therefore, submitted that the demand is made against the Petitioner is in respect of the charge against the premises and not against any individual. It being a charge and encumbrance in respect of the premises, it is legally recoverable from the Petitioner, who is the lawful owner in possession of the premises.
Heard learned counsel for the parties and perused the materials placed before us for consideration of the rival contentions of the parties.
It is not disputed that Sanjay Kumar Agrawalla had taken power supply in respect of a portion of the premises and a separate consumer number was provided to him. He did not pay the outstanding electricity dues of Rs.1,35,679/-, for which power supply in the name of Sanjay Kumar Agrawalla was snapped.
In one hand Mr. Das, learned counsel for the Petitioner submits that said Sanjay Kumar Agrawalla took the power supply to a portion of the premises in his occupation. He has neither taken permission of the Petitioner for such power supply nor the TPWODL ever asked the Petitioner to give his consent. As such the Petitioner was unaware of such power connection.
In this connection, it may be relevant to note that said Sanjay Kumar Agrawalla is none else than the son of the Petitioner.
Section 17 of the Distribution Code, 2019 and the case law in K.C. Ninan (supra) do not make any distinction of a charge created in respect of the premises for non-payment of the electricity dues when power supply taken with or without consent of the lawful owner. It is also alleged by Mr. Tripathy, learned counsel for the TPWODL submits that without restoring the power supply by making good the unpaid electricity dues, the Petitioner supplied electricity to the portion occupied by said Sanjay Kumar Agrawalla by giving power connection from the meter in his name.
Thus, in view of the discussions above, the contention raised by Mr. Das, learned counsel for the Petitioner has no legal basis. When the charge and encumbrance is created in respect of the premises and not against any individual then the lawful owner, i.e., the Petitioner in the instant case is liable to made good the same.
Further, Mr. Das, learned counsel for the Petitioner could not make out any perversity in the impugned orders under Annexures-1 and 11. The impugned findings being outcome of concurrent finding of facts, this Court should not interfere with the same only because a second view may be possible by re-appreciation of evidence. Our observation get support from the case law in the case of MSEDCL v. APML & others; 2023 SCC Online 233.
Thus, we find no infirmity in the impugned orders under Annexures-1 & 11.
Accordingly, the Writ Petition being devoid of any merit stands dismissed.