Judgment:
P.K. Mohanty, J.
1. The appellant, M/s. The Central Electricity Supply Company, in this appeal assails the order of the Orissa Electricity Regulatory Commission dated 16th February, 2001 issuing interim direction to withdraw the advertisement and stop operation of consumer census, to send draft procedure for steps to be taken under Regulation 5 1 of the OERC Distribution (Condition of Supply) 1998 for approval and to issue a public notice cancelling the advertisement issued by the appellant in the newspaper.
2. Shri J. Patnaik, learned Senior Advocate for the appellant-company contends that the interim order dated 16.2.2001 passed by the Orissa Electricity Regulatory Commission (hereinafter called the 'Commission') is illegal and in violation of the mandatory provisions of Section 28 (3) of the Orissa Electricity Reforms Act, 1995 (in short 'the Act'). It is his submission that the Commission can pass an order or in appropriate case an interim order, directing the licensee like the appellant for compliance only after it gives notice in terms of Sub-section (3) of Section 28 of the Act to the licensee stating therein the purpose, but the order under challenge having been passed without issuing a notice, it is illegal and liable to be set aside. It is further contended that otherwise also there was no occasion for the Commission to pass any such interim order since none of the conditions for passing the interim order which is emergent in nature were available against the appellant.
Shri Samareswar Mohanty, learned counsel for the Commission however, submits that the Commission is empowered to pass an interim order otherwise than as provided Under Section 28 of the Act in view of Clause 4(1) of the Licence read with Section 15 of the Act. It is his submission that in view of Clauses (b) and (e) of Sub-section (4) of Section 15 since, it requires the licensee to comply with the directions given by the Commission and comply with the requirement of Indian Electricity Act and Electricity (Supply) Act and Rules framed thereunder, no notice is necessary.
3. Chapter-IX of the Act speaks of the powers of the Commission to pass orders and enforce decisions. Sub-section (1) of Section 28 empowers the Commission to pass a final order Under Section 29 or in appropriate cases in accordance with Sub-section (2) an interim order as it deems proper for securing compliance, if it is satisfied that a licensee is contravening or is likely to contravene any relevant condition or requirement of its licence. However, under Sub-section (2) of Section 28 while determining whether it is appropriate for passing an interim order, the Commission shall have regard in particular to the conditions stipulated under Clauses (a) to (c) thereof.
4. However, if the Commission proposes to make an interim order in that event before passing any such order, it shall have to give notice to the licensee stating that it proposes to make an order and set out the relevant conditions or requirements with which the proposed order is intended to secure compliance, the act or omission which in its opinion constitute contravention of that condition or requirement, the other facts which in its opinion justified in making of the proposed order and effect of the proposed order, giving the licensee an opportunity to make a representation or objection to the proposed order within a specified time not less that five days from the date of the notice as contemplated under Clauses (a). (b) and (c) of Sub-section (3). Under Sub-section (4), the Commission may make an interim order at any time after expiry of the period specified in the notice pursuant to Clause (e) of Sub-section (3) after having considered the representation or objection from the licensee if it has reason to believe that the licensee has contravened or is contravening or is likely to contravene any condition or requirement and the provisions made by the order are required for the purpose of securing compliance with the conditions or requirement. Passing of an order contemplated under Sub-section (4) is subject to Sub-section (5) which provides that the Commission may not pass an order if it is satisfied that the licensee has agreed to take and is taking all such steps as the Commission considers the licensee should have to secure compliance of conditions or requirement in question. Clauses (a) to (c) of Sub-section (4) is with regard to the direction that an interim order should contain, the revocation, modification or necessity and the time from which the order has to lapse. Similarly, Sub-section (7) speaks of service of copy. manner of publication of order and with regard to commencement of proceedings, to declare the interim order final.
5. In view of the aforesaid statutory provisions, there cannot be any manner of doubt that the Commission is possessed of the power and authority to pass an interim order depending on the facts and circumstances as laid down under Sub-section (1) of Section 28 of the Act. But before passing the interim order, the Commission has to issue notice of its proposed order to the licensee giving him an opportunity to make a representation or objection allowing not less than five days time from the date of notice. Amongst others, one of the purpose of affording an opportunity as contemplated under Sub-section (3) is postulated in Sub-section (5) of Section 28 of the Act. The Commission on consideration of the representation or objection of the licensee may decide not to pass any interim order, if it is satisfied that the licensee has agreed to take and is taking all such steps as the Commission considers and the licensee should take to secure compliance with the condition or requirement in question. The Commission may pass interim order after considering the representation or objection from the licensee at any time after expiry of the period referred to in Clause (c) of Sub-section (3) which obviously mean that if the representation or objection is not filed within the time stipulated in the notice, the Commission is free to pass order as it deems fit and proper in view of specific provision of Sub-section (4) of Section 28. In that view of the matter it has to be held that any interim order passed by the Commission without a notice of the proposed order to the licensee to make a representation or objection in terms of Sub-section (3) and without consideration of such representation or objection, if any, in terms of Sub-section (4) of Section 28 is vitiated in law and has to be set aside.
6. The contention of Sri Mohanty, learned counsel for the Commission that in view of the licence, read with Section 1 5 of the Act, the Commission is empowered to pass appropriate interim order and that there is no requirement of law to give prior notice has to be rejected outright since the power of the Commission to issue an interim order is not in dispute. but what is disputed is whether it can issue directions by way of an interim order without a notice to the licensee. If has been held earlier that no interim order can be passed without a notice to the licensee as contemplated in Sub-section (3) of Section 28 and without consideration of the representation or objection, if any, in terms of Sub-section (4) thereof. Sri Mohanty has placed the relevant records of the Commission for perusal of the Court and it is fairly admitted that no notice has been issued to the appellant-licensee before passing of the impugned order giving him an opportunity to make a representation or objection.
7. In that view of the matter, the impugned order of the Commission, in absence of the notice of the proposed order to the licensee affording an opportunity to make a representation or objection is vitiated in law and has to be set aside. In view of the fact that the impugned order cannot be sustained solely on the ground of absence of notice as required under Sub-section (3) of Section 28,1 do not intend to go to the other contentions raised as to whether the Commission has taken note of the conditions and the requirement of law as laid down Under Section 28 of the Act before proposing an interim order and the legality or validity of the proposal.
8. In that view of the matter, the interim order of the Orissa Electricity Regulatory Commission dated 16.2.2001 (Annexure-5) is set aside, However, the Commission may proceed with the matter afresh in accordance with law and the observations made. It is agreed that to cut short delay, an authorised officer of the appellant company shall appear before the Chairman on 21st March, 2001 on which day if the Commission decides to proceed with the matter, shall serve a notice of the proposed order and proceed thereafter in accordance with the provision of the Act on which I express no opinion.
The appeal is allowed to the extent indicated. There shall be no order as to cost.