B.P. Das, J.
1. The petitioner has tiled this writ petition under Articles 226 and 227 of the Consitition of India with the prayer to issue a writ of Mandamus directing the O.Ps. to restore power supply to the petitioner's Industrial unit. without insisting upon the petitioner to bear the cost of constrution of service line. at its cost and a further direction of the O.Ps. to compensate the lose sustained by the petitioner during the period of disconnection of power supply and also not insist upon the petitioner to pay the energy charges for the period of disconnection and in the alternative to refund back the amount as interest by the petitioner for constitution of electric line along with interest within a stipulated period.
2. The brief facts as disclosed in the writ petition are as follows :
The petitioner is a private limited Company and for the purpose of manufacturing metal chips etc. set up a stone crusher unit in the year 2000 in village Nityanandapur under Nihal Prasad Police Station of Dhenkanal district by availing a loan from the State Bank of India. After the crusher unit was set up, the petitioner-Company requested the O.P. Central Electricity Supply Company of Orissa Ltd. ('CESCO') for supply of electricity to its crusher unit whereupon the O.Ps. asked the petitioner to deposit Rs. 8,07,500/- towards security deposit. After the aforesaid amount was deposited on 19-1-2001 as per Annexure-1, the petitioner was again asked to make a deposit of Rs. 1,00,787/- by a demand draft towards charges for supervision of construction of 11 KV line with arrangement and installation of 500 KVA 11/0.4 KV Sub-station at Nityanandapur. After payment of the aforesaid amount, on 1-2-2001, O.P. No. 4 entered into an agreement with the petitioner-Company for supply of electricity vide Annexure-2, whereafter the O.Ps. again asked the petitioner to deposit Rs. 3,00,000/- for up gradation of 1.6 MVA 33/ 11 KV Power Transformer of 3 MVA in Gondia Section of Dhenkanal Electrical Sub-Division of CESCO wherefrom the supply was to be given to the petitioner's crusher unit. The petitioner initially protested against such demand saying that such upgradation was to be done by the O.Ps. at their cost but ultimately the petitioner deposited the said amount by a demand draft, vide Annexure-3, with a view to get smooth and steady power supply to Its crusher unit which was starving for power. According to the petitioner, even after depositing a total amount of Rs. 12,08,287/- towards supply of electricity to the crusher unit of the petitioner, the O.Ps. again asked the petitioner to install poles from Gondia Electrical Sub-Division to its unit at Nityanandapur covering a distance of about 4 kms. and finding no other way out the petitioner had to install poles and other equipments at its own cost by spending a sum of Rs. 25,00,000/-only with the hope of getting power supply to its unit as early as possible. In spite of spending such a huge amount to get power supply to its crusher unit, the petitioner got an erratic supply of power and was made to pay Rs. 1,50.000/- per month towards electric charges. Added to the erratic supply of power, which was only for 10 to 12 hours in a day, due to low voltage the unit remained idle for which the petitioner had to draw the attention of the O.Ps. by its letter dated 23 4-2002 (Annexure-4) and requested them to take immediate' steps for Improvement in supply of power and also for consistent supply of power so that the unit would be commercially viable. While the matter stood thus, some miscreants stolen away the electric wires from the poles connected to the petitioner's unit and damaged the electric poles for which power supply to petitioner's unit was totally disrupted from 20-5-2002. The petitioner by letters dated 20-5-2002 and 25-6-2002 (Annexures 5 and 6) intimated the aforesaid fact to the O.Ps. and requested them to restore power supply to the unit immediately so that the petitioner could re-start the unit and pay back the loans obtained from the Bank. When there was no response to the aforesaid letters from the O.Ps., the petitioner sent a reminder on 3-7-2002, vide Annexure-7. On 23-8-2002 O.P. No. 4, the Executive Engineer, Electrical Division, Dhenkanal, intimated the petitioner regarding preparation of an estimate for supply of power to the crusher unit of the petitioner wherein the petitioner was again asked to reconstruct the electric line and erect the poles at its cost on a route different from the existing route which is 3 kms. longer than the existing route. According to the petitioner, by that date the petitioner had invested Rs. 37 to 40 lakhs in order to get power supply to its crusher unit but due to erratic and irregular supply of power and that too due to low voltage, the unit operated in a haphazard manner for only 13 months and now after the electric wires were stolen away and the poles were damaged, the O.Ps. have asked the petitioner to reconstruct the electric line and erect the poles on the new alignment at its cost. That too, even though the power supply to the petitioner's unit was disrupted due to theft of wires since 20-5-2002 and the same was duly Intimated to the O.Ps., the O.Ps. have raised an exorbitant energy bill to the tune of Rs. 8,01,647.00 as per Annexure-8. According to the petitioner, it has no other alternative than to file the writ petition with the prayers indicated above.
3. A counter affidavit has been filed on behalf of the O.Ps. being sworn to by the Manager, Dhenkanal Electrical Division, wherein it is stated that the O.P. CESCO was granted a licence for distribution of electricity to consumers arid as per the Orissa Distribution and Retail Supply Licence, 1997, nothing shall require the licensee to provide connection in the circumstances where it is not economically, financially or technically feasible for the connection to be given apart from where it is prevented for doing so by circumstances not within its control. That apart, according to the O.Ps. the petitioner should have approached the forum provided under the Orissa Electricity Regulatory Distribution (Condition of Supply) Code, 1998 (hereinafter called '1998 Code') for adjudication of the dispute instead of filing this writ petition. In a nutshell, the O.Ps. have stated, when alternative remedy is available under the 1998 Code, this writ petition should not be entertained.
The O.Ps. in their counter-affidavit have admitted that the electric wires and poles were damaged by the miscreants and the same, according to the O.Ps. was due to personal animosity of the petitioner with the neighbouring villagers and for complete restoration of supply line to the unit of the petitioner, a huge investment is required and the same is not the work of the CESCO.
The further case of the O.Ps. is that after receipt of information from the petitioner regarding damage to the supply line and upon discussion with the petitioner, it was suggested to take supply line on a different route and as a mark of good gesture towards the consumer, the O.Ps. agreed to provide the conductors only. The outcome of the discussion made between the petitioner and O.P. No. 3 was also intimated to the petitioner through the letter dated 23-8-2002 (Annexure-A) to which the petitioner had given its willingness for execution of the work by the letter dated 4-9-2002 addressed to O.P. No. 3 (Annexure-B). So far as the bill raised against the petitioner is concerned, it is stated that as per the Regulation/agreement, unless and until the period of agreement is over, the consumer is required to pay the monthly demand charges along with delayed payment surcharges on the arrears and hence no illegality and irregularity has been committed by the O.Ps. in raising the bills. That apart, according to the O.Ps, the bill under Annexure-8 relates to the period prior to the alleged damage caused to the service line by the miscreants and during the said period the petitioner availed the power supply.
4. In the above background of facts and circumstances and after hearing the rival contentions of the learned Counsel for the parties, the following questions emerge therefrom for our examination in this writ petition :
(1) Whether the writ petition is maintainable ?
(2) Whether the petitioner has to bear the cost of restructuring the supply line ?
(3) Whether the bill so raised against the petitioner is payable by the petitioner ?
5. So far as the question of maintainability of the writ petition is concerned, in our considered opinion, even if statutory remedy is available, the same cannot be a bar to entertain a writ petition under Article 226 of the Constitution taking into account particular facts and circumstances of a case, where immediate interference is required. That too, the present case of the petitioner is not a dispute in terms of Clause 110 of the 1998 Code which provided that only when a consumer is aggrieved by any action or lack of action by the Engineer under this designated authority of the licensee above the rank of Engineer who shall pass final orders on such a representation within thirty days of receipt of the representation. So the question raised by the O.Ps. whether the cost of restructuring of the supply line would be borne by the O.Ps. or the petitioner will not come within the purview of Clause 110 of the 1998 Code. So, the objection raised by the O.Ps. regarding maintainability of the writ petition does not hold good and the same is accordingly rejected keeping in view the settled position of law regarding interference of the High Court under Article 226 of the Constitution of India, where alternative remedy is available as each case has to be adjudged on its peculiar facts and circumstances.
6. The next question is who shall bear the cost of restructuring the power line and if there is any provision under the law to direct the CESCO to do the same at their cost. Learned Counsel for the O.Ps. in course of his argument filed a written note of submissions wherein it is stated that it is the admitted case of the parties that supply line was given at the cost of the petitioner on depositing the fees as per the norms fixed by the CESCO. The petitioner is having its crusher unit at a distance of 4.5 kms. from the existing distribution 11 KV line and the same was drawn through corn field which became the root cause of disturbance and so far as the damage is concerned, it is a massive one in which the poles and 'V cross arms were severely damaged and stolen away by the villagers. According to the O.Ps. the petitioner in its letter under Annexure-B to the counter-affidavit expressed its willingness to execute the work at its cost provided the conductors were supplied by the CESCO within fifteen days of receipt of the letter. Consent was also given by the O.Ps. in Annexure-B that the conductors would be released only after erection of poles in the new alignment. Counsel for the O.Ps. vehemently argued that once the petitioner has agreed to get the supply at its own cost and as the service line was damaged due to the petitioner's fault in not maintaining harmonious relationship with the neighbouring villagers, the petitioner is estopped from demanding supply at the cost of the CESCO. Fact remains that an FIR was lodged at the local police station for theft of poles and electric wires. Theft of poles and wires is an admitted fact so also the fact that the initial cost for drawing the electric line was borne by the petitioner. Learned Counsel for the petitioner on the other hand submitted that after the theft of the conductors, the O.Ps. had directed the petitioner for erection of poles in new alignment which, according to the petitioner, is a hand-twisting method in putting the petitioner to more expenses which the petitioner had paid initially. In this regard we may refer to Clause 26 of the 1998 Code which provided that where the shifting of the service line within the same premises is undertaken on the request of the consumer, the entire charge on account of shifting including cost of additional materials, if any, shall be borne by the consumer and shall be payable within fifteen days of the licensee's demand. In other cases, where shifting is necessary in public interest or for convenience of the licensee, the consumer shall extend full co-operation but shall not be required to pay any charges. So, Clause 26 of the 1998 Code requires a consumer to pay in the eventuality as described therein and indicated above. Clause 27 of the 1998 Code provided as follows :
'The entire service line, notwithstanding that a portion thereof has been paid for by the consumer, shall be the property of the licensee and shall be maintained by the licensee who shall always have the right to use it for the supply of energy to any other person unless the line has been provided for the exclusive use of the consumer through any special arrangement agreed to in writing.'
A bare reading of Clause 27 of the 1998 Code would show that the entire service line through which power was supplied to the petitioner's unit, even though the cost of the same was borne by the consumer, is the property of the licensee and the same shall be maintained by the licensee. In the counter-affidavit as well as in the note of submissions the O.Ps. have tried to develop a case as If the power supply was disrupted due to the fault of the consumer on the ground that the consumer failed to keep good relationship with the villagers. The O.Ps. relied upon Clause 17.3 of the Orissa Distribution and Retail Supply Licence, 1999, which is not in any way applicable to the facts and circumstances of the present case.
'Maintenance' has not been defined either in the 1998 Code or in the Electricity Act, 2003 or in the new Code of 2004. As per the Chambers 21st Century Dictionary, 'maintenance' means 'the process of keeping something in good condition'. So, when as per Clause 27 of the 1998 Code the entire service line has become the property of the licensee and the same shall be maintained by the licensee, who shall always have the right to use it for the supply of energy to any other person. So any disruption of power supply, be It due to theft of conductors or damage by miscreants, shall be the duty and responsibility of the licensee to maintain the same. As we have indicated above, 'maintenance' means 'the process of keeping something in good condition' and that too when the property belongs to the licensee, the irresistible conclusion would be that it is the O.Ps. who have to maintain the service line, keep the same in good condition and protect the same from theft or damage by miscreants. In view of this, the argument ad-Vanced by the learned Counsel for the O.Ps; denying their liability to maintain the service line does not hold good. It is the O.P. CESCO which is liable to draw the line and provide the power supply to the petitioner's unit at its own cost.
7. So far as the bill raised against the petitioner is concerned, if there is any dispute in the bill, it is open to the petitioner to approach the Grievance Redressal Forum constituted under Section 42(5) of the Electricity Act, 2003.
8. For the foregoing reasons, the writ petition is allowed In part. The O.Ps. are directed to draw the line and provide power supply to the petitioner's crusher unit within a period of two months from the date of communication of this order subject to petitioner fulfilling all other required conditions.
N. Prusty, J.
9. I agree.