S.N. Prasad, J. - (1.) The instant writ petition is under Article 226 and 227 of the Constitution of India wherein in the demand notice as contained in letter dtd.06.3.2002 along with penal bill under Annexure-6 series and the order dtd.08.11.2002 passed by the Designated authority in exercise of power conferred under Regulation 52 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code, 1998 are under challenge.
(2.) The fact of the case as has been pleaded by the writ petitioner in this writ petition in brief is that he is the owner of the premises in question to which power supply has been given by the opposite parties wherein the petitioner is carrying on business and running a shop in the name and style of M/s. Epari Jewellers. The petitioner has been allotted a consumer number bearing No.MCO- 08-45008 and power supply has been given to the petitioner with a connected load / contract demand of 13 KV. The CESCO of Orissa Limited is one of the four distribution companies engaged in distribution of electricity within the State of Odisha. The entire distribution activities of such distribution companies are governed under the Indian Electricity (Supply) Act, 1948, Orissa Electricity Reforms Act, 1995 and the O.E.R.C. Distribution (Conditions of Supply) Code, 1998 and the guidelines issued by the Orissa Electricity Regulatory Commission from time to time. The officers of CESCO had come to take meter checking of the premises of the petitioner in question on 28.2.2002 and the meter was found OK as on that date, accordingly Bill for the month of February, 2002 was issued. One day after, i.e. 2.3.2002 the Assistant Engineer (MRT), CESCO visited the premises at around 11.30 A.M. and served copy of the authorization letter dtd.2.3.2002 in which one MRT officer was authorized to enter into the premises for inspecting the electrical installations. The inspecting officer opened the T.P. Box seal and other seals of the meter to check the meter and carrying out the inspection for quite some time. According to the petitioner at the time of conducting inspection nothing has been communicated to him but when the shop was opened at 4 P.M. it was found that there is no power supply and on enquiry from opposite parties, he was informed that since the MRT officers have reported tampering of meter, as such, as per their instructions, power supply has been disconnected, the same was objected by the petitioner and on his much insistence a written report as contained in letter No.66 dtd.2.3.2002 was served upon him wherein it was stated that the power supply has been disconnected on safety grounds as per clause-46 of the Supply Code, 1998 as per instruction of the Squad party and S.D.O. No.3. He has also been informed that the penal Bill is being prepared and power supply to the petitioner will be given only after payment of such penalty, but no report of the inspecting squad was supplied to him. The petitioner, on much insistence, has received a letter dtd.6.3.2002 issued by the opposite party no.2 demanding Rs.2,52,693/- towards penalty purportedly levied as per Regulation 105(2) of the Supply Code, 1998 for payment by the petitioner by 15.3.2002 along with copy of the inspection report dtd.2.3.2002. The petitioner has made an objection to that and only in order to run his business, he has deposited Rs.80,000/- for immediate power supply. He has also stated that the inspection report has been prepared behind his back and in violation of the Regulation 52 of Supply Code, 1998. The petitioner when made an objection and it was pending since the opposite party No.2 insisted for payment of balance amount of penalty, the petitioner, finding no option, approached this Court in O.J.C. No.3049 of 2002 and this court vide order dtd.26.4.2002 has passed an order to the effect that since the petitioner, by way of protest, has deposited Rs.80,000/- and power supply has already been restored, the Designated Authority has been called upon to dispose of the complaint dtd.11.3.2002 filed by the petitioner after giving him an opportunity of hearing and till final decision is taken by the Designated Authority, power supply will not be disconnected to the petitioner on the ground that the balance penalty has not been paid. Thereafter the Designated Authority has passed an order on 8.11.2002 upholding tampering in the meter and also the penal Bill which has been assailed in this writ petition.
(3.) The contention raised by the petitioner is that there is no tampering with the meter and whatever report has been prepared and handed over to him are behind his back since no signature on the inspection report is there of the consumer, i.e. the petitioner. He submits that even accepting for the sake of argument that seal of the meter was broken, then also the penalty imposed cannot be said to be in consonance with law. He submits that the meter was running and it was not corroborated from a re-checked meter and thereafter reading is being shown by the said meter, the Bill has already been fetched, hence merely on the ground of broken seal, the amount shown as penalty is nothing but an arbitrary exercise of power. He further submits that he has not paid Rs.80,000/- against the default, rather he has paid the said amount by way of protest against the demand raised so that immediate power supply be provided to his premises to run the business. He submits that the Designated Authority has not applied its quasijudicial mind in upholding the inspection report as also has arbitrarily came to conclusion by showing the consumption pattern from January, 2001 to January, 2002 which is the basis of inflicting penalty upon him.;