1. The Petitioner, a Company incorporated under the Companies Act, 1956 (for convenience referred as ‘the Consumer’), calls in question the legality and propriety of Letter No. WESCO 563 dated 17th December, 2019 (Annexure-1) issued by the Chief Operating Manager (Opposite Party No.2), WESCO Utility (now Tata Power Western Odisha Distribution Limited and for convenience referred as ‘the Licensee’), inter alia refusing to accept the request of the Consumer to give benefit of Reduction in Contract Demand (for convenience referred as ‘RCD’) with effect from 1st December, 2015 and consequently rejecting the representation filed by the Consumer.2. Short narration of facts relevant for proper adjudication of this case are stated thus:2.1 The Consumer made an application to the Licensee on 26th November, 2015 for RCD from 5700 KVA to 3900 KVA (Annexure-2). The Superintending Engineer, Electrical Circle, Rourkela of the Licensee, vide its letter dated 22nd January, 2016 recommended RCD as requested. Though the contract demand was reduced but the said letter reducing the contract demand was communicated to the Consumer by ordinary post vide letter dated 19th May, 2016 (Annexure-3) in which along with other conditions, it was specifically mentioned that the Consumer has to execute an agreement with the Authorized Officer of the Licensee for RCD within a period of thirty days, failing which the permission granted will be cancelled. The said letter under Annexure-3 was not received by the Consumer. Consequently, the Licensee, vide its letter dated 18th July, 2016 (Annexure-4) conveyed the Consumer about cancellation of permission for reduction of the contract demand. Upon receipt of the said letter, the Consumer, vide its letter dated 25th July, 2016 (Annexure-5) conveyed the Licensee about non-receipt of the said letter and requested to execute the agreement. Said request was turned down by the Licensee, vide letter dated 2nd August, 2016 (Annexure-6) and the Consumer was requested to apply afresh for RCD. Subsequent request of the Consumer, vide letter dated 25th August, 2016 (Annexure-7) was also turned down by the Licensee in their letter dated 31st August, 2016 (Annexure-8) informing the Consumer to make fresh application for RCD.2.2 Thus, the Consumer approached the Odisha Electricity Regulatory Commission (for convenience referred as ‘OERC’) and the Consumer has been advised to move the President of Grievance Redressal Forum (for short, ‘GRF) under the provisions of OERC (Grievance Redressal Forum- Ombudsman) Regulations, 2004 (for convenience referred as ‘Regulations, 2004’). On being moved, the GRF, vide its order dated 20th January, 2017 (Annexure-9) directed the Consumer to make fresh application for RCD before the competent authority of the Licensee. The Consumer being aggrieved moved the Ombudsman under the provisions of Regulations, 2004 in Consumer Representation Case No.OM (II) (W)-04 of 2017. Upon hearing the Consumer and the Licensee and on consideration of the materials on record, the Ombudsman by its order dated 27th February, 2017 (Annexure-10) passed the following order:“ORDER/AWARDFrom the above findings and records submitted by both the parties, this Forum pronounces the following order:1. The Respondent is directed to allow reduction of contract demand from 5700KV to 3900KVA w.e.f. December 2015 and execute necessary agreement for the same.The Respondent is directed to implement the above order within 15 days from the date of receipt of letter of acceptance from the Petitioner and file compliance to this Forum within 30 days.The case is disposed of and closed.”2.3 Being not satisfied, the Licensee moved this Court in W.P.(C) No.4550 of 2017 assailing the order under Annexure- 10. Upon consideration of the submissions of learned counsel for the parties, the writ petition was disposed of vide order dated 15th May, 2017 (Annexure-11) with the following direction:“Considering the contentions raised by learned counsel to the parties and after going through the records, it appears that in direction of the Ombudsman contained in the impugned judgment/award the application for reduction of contract demand has been allowed, but agreement has not been executed. The specific case of the petitioners is that though notice was issued, the same could not be served on opposite party no.2 due to change of its address, as a result of which the agreement could not be executed within the time stipulated by the Ombudsman. In order to sort out this problem, without entering into the merits of the case, this Court directs opposite party no.2 to appear before the petitioners on 18th May, 2017, on which date the Supply Engineer shall fix at date for execution of the agreement and also grant the benefit of reduction of contract demand and billing will be made accordingly.With the above observation and direction, the writ petition stands disposed of.”2.4 Pursuant to direction of this Court under Annexure-11, the Consumer approached the Licensee for execution of the agreement. Although the agreement was executed on 19th May, 2017, but the Licensee did not adhere to the direction of the Ombudsman under Annexure-10. Hence, the Consumer filed Misc. Case No.9591 of 2017 in the disposed of writ petition for a direction to the Licensee for ante-dating the RCD in accordance with the provisions of Clause-71 of the OERC Distribution and Conditions of Supply Code, 2004 (for convenience referred as ‘OERC Code’) as well as the judgment/award passed by the Ombudsman. In course of hearing of the Misc. Case, learned counsel for the Consumer prayed for withdrawal of the Misc. Case to approach the appropriate forum ventilating its grievance in accordance with law and accordingly the Misc. Case was disposed of as withdrawn vide order dated 24th July, 2017 (Annexure-12). The Consumer, therefore, submitted representations before the competent authority of the Licensee-Opposite Party No.1. The same being not considered within a reasonable period, the Consumer had to move this Court again in W.P.(C) No.18879 of 2017, which was disposed of vide order dated 29th October, 2019 (Annexure-13) with a direction to Opposite Party No.1 to take a decision on the request of the Consumer-Petitioner within a period of one and half months from the date of the communication of the order along with copies of enclosures. Annexure-1 is the outcome of such direction of this Court in W.P.(C) No.18879 of 2017.3. Mr. Das, learned Senior Advocate appearing on behalf of the Consumer-Petitioner, at the outset referred to Clauses- 70 and 71 of the OERC Code, which are as follows:-“70. Decision on Consumer’s application for reduction of contract demand shall be taken by the designated authority within ninety days of receipt of complete application. No application shall be rejected without recording reasons. The order on application shall be communicated to the Consumer by registered post.71. When reduction of contract demand is permitted by the designated authority of the licensee the effective date of such reduction shall be reckoned from the first date of the month following the month in which the application, complete in all respects, was received by the Engineer.”3.1 It is his submission that application for RCD complete in all respects was submitted on 26th November, 2015 (Annexure-2). On the basis of recommendation of Superintending Engineer, Electrical Circle, Rourkela vide letter No.165 dated 22nd January, 2016, the Chief Operating Officer of the Licensee allowed the application and communicated the said decision to the Petitioner on 19th May, 2016 (Annexure-3) reducing the contract demand. Since the said application was allowed by the designated authority, the effective date of RCD should have been reckoned from 1st December, 2015 as per Clause-71 of the OERC Code. He further submitted that Clause-70 of the OERC Code, makes it obligatory on the designated authority of the Licensee to communicate the order of RCD to the Consumer by ‘registered post’. But, the same was communicated to the Consumer by ordinary post. However, the Consumer on enquiry came to know from the office of the Executive Engineer (Electrical), Rajgangpur- Opposite Party No.3 that permission for RCD has already been granted stipulating therein that ‘the permission shall be valid for a period of thirty days from the date of issue of this letter. If the Consumer does not come forward….. and reduction of contract demand shall be treated cancelled.’ As the Consumer-Petitioner was not communicated with the said letter, it could not execute the agreement within the stipulated date. Thus, a request was made to the Licensee to execute the agreement. In spite of repeated requests of the Consumer, the Licensee did not come forward to execute the agreement. On the other hand, vide letter dated 31st August, 2016 (Annexure-8), it intimated the Consumer to apply for RCD afresh. Finding no other alternative, the Consumer approached the OERC on 21st September, 2016 under the provisions of OERC Regulations, 2004, but the GRF, vide its order dated 20th January, 2017, directed the Consumer to make fresh application for RCD before the competent authority. Being aggrieved, the Consumer moved the Ombudsman who directed the Licensee to allow RCD with effect from December, 2015 and execute necessary agreement for the same. Assailing the same, the Licensee moved this Court in W.P.(C) No.4550 of 2017. This Court, without interfering with the order of the Ombudsman, directed the Consumer to appear before the Licensee on 18th May, 2017 to fix a date for execution of the agreement. Ultimately, the agreement was executed only on 19th May, 2017. Taking advantage of the situation, the Licensee put a Clause in the said agreement to the effect that the effective date of RCD shall be the date of execution of the agreement as mutually agreed upon. Reacting to such illegality, the Consumer immediately made a representation to the Licensee to ante date the RCD to 1st December, 2015, but the same was not paid any heed. Accordingly, the Consumer filed W.P.(C) No.18879 of 2017, which was disposed of on 29th October, 2019, directing the Licensee to dispose of the representation of the Petitioner. Consequently, impugned letter dated 17th December, 2019 (Annexure-1) was issued rejecting such representation.4. It is his submission that the authority constituted under the Electricity Act are required to act in accordance with the provisions so laid down in the Act as well as the Rules and Regulations framed there under and not otherwise. Due to lapses of the Licensee, as aforesaid, the Consumer did not receive the letter under Annexure-3 in time. Moreover, the agreement for RCD under no circumstance can be made effective from a different date than provided under the OERC Code. The Ombudsman considering the same, directed to execute the agreement making it effective from December, 2015. As such, the impugned letter under Annexure-1 is not sustainable in the eyes of law and is liable to be set aside.4.1 Mr. Das, learned Senior Advocate placed reliance upon the case laws reported in Nirmal Chandra Panigrahi and others Vs. State of Odisha and others, reported in 2021 (2) OLR 152, wherein this Court in para-19 has held as under:“19. The issue of writ of mandamus is a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directing to any person, corporation, requiring him or them to do some particular thing specified in it which appertains to his or their office and is in the nature of a public duty.”Thus, this Court has ample jurisdiction to issue a direction to the Licensee to make the RCD effective from 1st December, 2015. Refuting the stand taken by the Licensee in their counter affidavit to the effect that the Consumer has an alternate remedy under Section 146 of the Electricity Act, 2003, it is submitted that the said provision stipulates punitive measure for non-compliance of the order by the authority but not to set an illegal act right by antedating the RCD. In support of his case, he relied upon a decision of the Hon’ble Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Odisha Limited (SOUTHCO) and another Vs. Sri Seetaram Rice Mill, reported in (2012) 2 SCC 108, in paragraph-80 of which it is held as under:-“80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the Civil Courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the Courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised.”(emphasis supplied)He, therefore, prayed for allowing the writ petition by setting aside the letter under Annexure-1 and directing the Licensee to antedate the RCD to 1st December, 2015.5. Mr. Tripathy, learned counsel for the Opposite Party- Licensee in his submission emphasized on the principles of estoppel by contending that when an agreement has been executed between the parties in which the parties have mutually agreed to make the RCD effective from 19th May, 2017, i.e., from the date of execution of such agreement, the Consumer cannot turn round and claim otherwise, until the agreement itself is set aside by a competent court of law.5.1 It is his submission that the order of the Ombudsman was assailed by the Licensee before this Court in W.P.(C) No. 4550 of 2017 which was disposed of taking into consideration the rival contentions of the parties. Accordingly, this Court disposed of the writ petition directing the Consumer to appear before the Licensee on 18th May, 2017 and the Supply Engineer was directed to fix a date for execution of the agreement and also to grant the benefit of RCD. Thus, it is not correct to allege that this Court has not interfered with the order of the Ombudsman. Further, the Consumer had also filed an application for modification of the said order in Misc. Case No.9591 of 2017 seeking a direction to the Licensee to comply with provision of Clause-71 of the OERC Code. But, the said application was disposed of as withdrawn on 24th July, 2017 (Annexure-12). As such, this Court taking into consideration the facts and circumstances of the case did not accede to the prayer of the Consumer to execute an agreement for RCD from a retrospective date. He further contended that the present situation arose because of the lapses at the end of the Consumer. The Consumer changed the place of its office without intimating the Licensee for which letter under Annexure-3 could not reach the Consumer in time. Thus, the Consumer has no locus standi to move this Court to claim a benefit which is lost due to latches on its part. It is further contended that the Consumer has an alternate and efficacious remedy under Section 146 of Electricity Act, 2003 (for convenience referred as ‘the Act’). As such, the writ petition is not maintainable. Hence, Mr. Tripathy, learned counsel for the Licensee prayed for dismissal of the writ petition.6. Taking into consideration the rival contentions of the parties, the following issues arise for consideration;(i) Whether the Consumer is entitled to the benefit of RCD from 1st December, 2015?(ii) Whether the Consumer is estopped to claim benefit of RCD from a retrospective date, when the agreement was executed on 19th May, 2017 on the terms and conditions mutually agreed upon?(iii) Whether the writ petition is maintainable in view of availability of the alternate remedy?Issue No.(i):7. Clause-71 of the OERC Code makes it clear that the RCD, if permitted by the designated authority of the Licensee, shall be reckoned from the 1st day of the month following the month in which the application, complete in all respect, was received by the Engineer. Admittedly, the application of the Consumer, complete in all respect was received by the Engineer on 26th November, 2015. Recommendation for RCD was made on 22nd January, 2016. Although Clause-70 mandates the designated authority to take a decision within 90 days from the date of receipt of complete application, the authority took almost 170 days in taking a decision in that regard. Further, Clause-70 mandates the designated authority to communicate the order on the application of the Consumer by registered post. But, in the instant case, the communication was made by ordinary post. Although a plea of change of place of office was taken by the Licensee, the same was rejected by the Ombudsman and by judgment dated 27th February, 2017 (Annexure-10) the Ombudsman directed the Licensee to allow RCD from 5700 KVA to 3900 KVA with effect from 1st December, 2015 and execute necessary agreement for the same. The said order was assailed in W.P.(C) No. 4550 of 2017. But, this Court without entering into the merits of the case, directed the Consumer to appear before the Licensee on 18th May, 2017 to receive instruction with regard to execution of agreement. There is nothing in the order dated 15th May, 2017 passed in W.P.(C) No. 4550 of 2017 to assume that this Court had interfered with the order of the Ombudsman. On the other hand, this Court did not enter into the merits of the case of the Licensee and thereby refused to interfere with the direction of the Ombudsman. It is a fact that the Consumer had filed Misc. Case No.9591 of 2017 for a direction to the Licensee to comply with the Clause-71 of the OERC Code as well as to comply with the judgment and award dated 27th February, 2017 of the Ombudsman. However, in course of hearing, the Licensee prayed for withdrawal of the Misc. Case with a liberty to approach the Licensee for redressal of its grievances and this Court by order dated 24th April, 2017 (Annexure-12) disposed of the Misc. Case as withdrawn with the liberty as sought for. Accordingly, the Consumer filed a detailed representation before the Licensee to comply with the direction of the Ombudsman as well as of this Court and make the RCD effective from 1st December, 2015. Since it was not paid any heed, the Consumer approached this Court in W.P.(C) No. 18879 of 2017, which was disposed of on 29th October, 2019 (Annexure-13) directing the Licensee to take a decision on the request of the Consumer. However, the authority in their impugned letter under Annexure-1 intimated the Consumer that since the agreement was executed on 19th May, 2017 on the terms and conditions mutually agreed upon, the request to give a retrospective effect to the RCD would not be tenable and accordingly, rejected the petition.8. Admittedly, the agreement to give effect to RCD was executed on 19th May, 2017 on the terms and conditions mutually agreed upon to give effect to the agreement from the date of execution, i.e., from 19th May, 2017. But Clause-70 of the OERC Code specifically provides that the RCD, if permitted by the designated authority of the Licensee, shall be effective from the 1st day of the month following the month in which the application, complete in all respects, was received by the Engineer. Since the application for RCD was made on 26th November, 2015, the RCD should have been made effective from 1st December, 2015. The Ombudsman under Annexure-10 has also passed order in that light directing the Licensee to allow RCD with effect from December, 2015 (Annexure-10) and execute necessary agreement for the same.9. In view of the provision of law, the RCD can only be made effective from 1st December, 2015 and not otherwise. The terms and conditions on mutual agreement cannot take away the effect of law. The Licensee being the creature of the statue has to act in accordance with the provision of law and not otherwise. When a word, phrase, sentence, paragraph, clause or other provisions of a contract would otherwise be unenforceable, illegal or void, the effect of that provision/clause will so far as possible be limited and read down so that it becomes in conformity with the provisions of law. A constitutional Court is not precluded from a judicial review and read down a clause of the contract, which is otherwise contrary to the provisions of law and make it enforceable in conformity with law without setting aside or rescinding the contract itself. The following observation of Hon’ble Supreme Court in the case of B.V. Nagaraju Vs. M/S. Oriental insurance Co. Ltd., Divisional Office, Hassan, reported in AIR 1996 SC 2054 is relevant for discussion, which runs thus:“7. …. In Skandia case [(1987) 2 SCC 654] this Court paved the way towards reading down the contractual clause by observing as follows: (SCC pp. 665-66, para 14)“… When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of ‘reading down’ the exclusion clause in the light of the ‘main purpose’ of the provision so that the ‘exclusion clause’ does not cross swords with the ‘main purpose’ highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose.”(emphasis supplied)In the case at hand, the effective date of RCD as per the agreement dated 19th May, 2017 is not in conformity with law. As such, this Court is not precluded from reading down the said clause in order to give it a meaningful interpretation in conformity with law by directing the Licensee to make the RCD effective from a retrospective date, i.e., 1st December, 2015.Issue No. (ii):10. Law is well-settled that there is no estoppel against law. As discussed earlier, in the present case the law requires the RCD to be effective from 1st December, 2015. By executing an agreement on mutual terms or otherwise, providing a different date in the agreement which is not in conformity with law, cannot be accepted, more particularly when the Consumer raises an objection to the same. It is also submitted by learned counsel for the Consumer that due to the prolonged legal battle and continued loss of the Consumer, it was compelled to sign the agreement. However, immediately after signing the agreement, the Consumer had raised objection to the same and moved this Court. In that view of the matter, it cannot at all be held that upon signing the agreement on the mutually agreed terms and conditions, the Consumer is estopped to challenge the same.Issue No. (iii):11. It is submitted by Mr. Tripathy, learned counsel for the Licensee that the Consumer has an alternate statutory remedy under Section 146 of Electricity Act, for redressal of its grievances with regard to non-compliance of the order and direction of the Ombudsman and therefore the writ petition is not maintainable.12. Section 146 of the Act, deals with plenary measure for non-compliance of the orders or directions. In the instant case, the prayer of the Consumer is not to impose punishment on the Licensee for non-compliance of the order of the Ombudsman. On the other hand, this writ petition has been filed seeking a direction to make the RCD effective from 1st December, 2015 and not from any subsequent date. The scope and ambit of Section 146 of the Electricity Act, does not empower the authorities under the said Act either to entertain or grant the prayer made in this writ petition. Further, the question raised in this writ application is a pure question of law. Thus, in view of the ratio in Sri Seetaram Rice Mill (supra) this Court has the power to adjudicate upon the prayer made by the Consumer-Petitioner in this writ petition. Hence, the objection with regard to availability o
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f alternate remedy raised by Mr. Tripathy is not sustainable.12.1 As held in the case of Nirmal Chandra Panigrahi (supra), power of this Court to issue a writ of mandamus is neither abridged nor crippled or clipped to issue a writ of mandamus requiring any person, Corporation, authority to do a particular thing in accordance with law, when it discharges any public duty. The Hon’ble Supreme Court in the case of Comptroller and Auditor General of India, GIAN Prakash, New Delhi and another –v- K.S. Jagannathan and another, reported in 1986 (II) SCC 679, held as follows:“20………. the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.”In this case, the Licensee discharging a public duty is amenable to writ jurisdiction and a mandamus in exercise of jurisdiction under Article 226 of the Constitution of India can be issued to it to act or perform in a lawful manner, when it failed to exercise its obligation under law. As such, this writ petition is maintainable.CONCLUSION13. In view of the discussions made above, this Court has no hesitation to quash and set aside the letter dated 17th December, 2019 issued by the Licensee under Annexure-1.14. Accordingly, the letter under Annexure-1 is set aside. The Licensee is directed to give effect to the RCD from 1st December, 2015 and communicate the same to the Consumer within a period of one month from the date of production of certified copy of this order.15. The writ petition is allowed to the aforesaid extent, but in the facts and circumstances of the case, there shall be no order as to costs.