Gujarat High Court
M/S Jahaan Steels Limited vs Uttar Gujarat Vij Company ... on 8 December, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/20014/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20014 of 2015
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M/S JAHAAN STEELS LIMITED....Petitioner(s)
Versus
UTTAR GUJARAT VIJ COMPANY LIMITED(UGVCL) & 3....Respondent(s)
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Appearance:
MR. BHADRISH S RAJU, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 08/12/2015
ORAL ORDER
Heard learned advocate Mr. Bhadrish S. Raju for the petitioner.
2. The petitioner by filing the present petition under Article 226 of the Constitution, seeks to challenge the following orders, (i) order dated 19.05.2015 passed by the Consumer Grievances Redressal Forum, (ii) order dated 20.07.2015 passed in Case No. 65 of 2015 by the Electricity Ombudsman challenging the order of the Grievance Redressal Forum, and (iii) order dated 12.10.2015, whereby the the Electricity Ombudsman rejected the review application of the petitioner. By the said orders, the authorities upheld the action of respondent No.1-Vij Company in issuing the energy bills to the petitioner under HTP-I Tariff. The bills were issued on the basis that the petitioner consumer exceeded in the electricity consumption violating the norms and conditions in respect of day time demand beyond 600 KVA.
Page 1 of 10HC-NIC Page 1 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER
3. Looking at the basic facts available from the pleadings and record, the petitioner was a high tension consumer of respondent No.1 company having consumer No. 18512 with contract demand of 4000 KVA under HTP-IV Tariff. The said connection was since 01.12.2010. It appears that the petitioner was desirous to have an Open Access facility. For that, admittedly, the petitioner procured and installed at its place the meter called Availability Based Tariff Meter (ABT Meter) in advance for switching over to Open Access facility for consumption of electricity. The said ABT meter was installed on 26.08.2013. It is the case of the petitioner however that he did not actually switch over to the Open Access facility. It is the say of the petitioner that by communication dated 30.04.2013, the petitioner was intimated by the competent authority that the request for Open Access would be considered if change in the tariff from HTP- IV to HTP-I is effected for the load demand.
3.1 It is again not in dispute that the ABT meter installed by the petitioner was made functional and it continued to function from the date of installation, that is, 26.08.2013 along with the regular meter of respondent No.2 company with 30 minutes time block. The aforesaid ABT meter was installed by the consumer as a tariff meter in presence of its representatives as per check sheet No.12914 on the aforesaid date. The ABT meter installed however was meter of 0.2s class accuracy. The old regular meter already exited before the installation of the ABT meter 0.5s accuracy. The ABT meter had higher accuracy standard of 0.2s class.
Page 2 of 10HC-NIC Page 2 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER For the eventuality that in case of failure of ABT meter to give details of consumption information, the old meter was kept in service to have information regarding the energy consumption.
3.2 As per CEA Notification dated 17.03.2006, Standards on Installation and Operation of Meters Part-I(2), it is required that the interface meter shall be of 0.2s class. The consumer meter should be above 650 volts and upto 33KV of 0.5s or better. The installation of ABT meter was of 0.2s class which meant better accuracy. The petitioner procured ABT meter with such accuracy upon getting approval for the same by the Vij Company.
3.3 It was noticed that the petitioner consumer violated HTP-IV Tariff in ABT meter and the consumption in violation of day time demand for the month of July and August was recorded as under, Billing Date Time Recorded Permissible Month period by demand day demand in KVA in KVA July,14 10/07/14 6.00 to 635 600 6.15 A.M. July,14 11/07/14 6.00 to 610 600 6.15 A.M. August,14 16/7/14 6.00 to 650 600 6.15 A.M. 3.4 The petitioner was billed for HTP-I Tariff for violation of day time demand on the basis of the above recorded data. The aforesaid figure of load survey data of ABT meter was supplied to the petitioner consumer on 25.07.2014.
Page 3 of 10HC-NIC Page 3 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER 3.5 It appears that subsequent to the detection of the violation of day time demand in the billing made for the consumption under HTP-I Tariff, the petitioner consumer got the said ABT meter removed on 30.10.2014.
3.6 Clause 13.7 and clause 13.8 of the Gujarat Electricity Regulatory Commission Tariff Order dated 29.04.2014 in respect of supply of electricity at High Tension in HTP-I Tariff Category, which are applicable, are as under, "Clause No. 13.7 Maximum Demand and its Measurements:
"The maximum demand in KW or KVA as the case may be, shall mean an average KW/KVA supplied during consecutive 30/15 minutes or if consumer is having parallel operation with the grid and has opted for 3 minutes, period of maximum use where such meter with the features of reading the maximum demand in KW/KVA directly, have been provided".
Clause No.13.8: Contract Demand "The contract demand shall mean the maximum KW/KVA for the supply of which the supplier undertakes to provide facilities from time to time".
3.7 Under HTP-IV Tariff, the petitioner consumer could use electricity exclusively during night hours from 10 p.m. to 6 a.m. next day. The authorities recorded a finding on the basis of aforesaid facts and the data recorded, that the petitioner violated the day time demand as recorded and revealed in ABT meter installed at its place. Therefore, the bill under HTP-
Page 4 of 10HC-NIC Page 4 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER I Tariff was issued which was as per the norms.
4. The relevant operative portion of the order of the Electricity Ombudsman is reproduced hereunder, "4.7. GERC Tariff Provisions state that the mandatory requirement of the meter for HTP-I tariff consumers having measurement of maximum demand shall be recorded during consecutive 30/15 minute integration period. 4 4.8. When the provisions made in the Tariff condition in the Tariff Order, which is statutory order, passed by the GERC which requires to give effect to it whenever any discrepancy between the decision of GERC in its order and any letter issued by GERC. On representation of the Appellant the clarification issued in the letter dated 10.09.2014 is to be taken into consideration. Thus, tariff order being a statutory order issued by the GERC in Tariff Order Clause No.13.7 is mandatory to give effect.
4.9. The violation observed in the ABT compliant meter is recorded during day time i.e. 6.00 to 6.15 during the month of July and August,2014. The Licensee's meter has not observed violation in day time demand i.e. 6.00 to 6.30 due to any of the below mentioned reasons:
(1) ABT meter clock not matched (synchronized) with Licensee's meter clock.
(2) Licensee's meter having time block of 30 minutes of integration.
As per HTP-IV tariff Appellant has to use electricity exclusively during night hours from 10.00 p.m. to 06.00 a.m. next day.
As per the GERC tariff for HTP-IV under Note (1) : 10% of total units consumed and 15% of the contract demand can be availed beyond the prescribed hours for the purpose of maintenance.
As Appellant has violated the day demand recorded in ABT meter, Respondent has issued bill under HTP-I tariff, which is as per norms and hence requisite amount is recoverable.
4.10. I order accordingly. 4 4.11. No order as to costs.
4.12. With this order, representation/Application stands disposed of."
4.1 The Electricity Ombudsman confirmed the order of Page 5 of 10 HC-NIC Page 5 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER the Redressal Forum to conclude that the billing done by respondent No.1-Uttar Gujarat Vij Company Limited at HTP-I Tariff rate was proper as there was a violation in the described permissible day time use of electricity. Review Application was considered and rejected.
5. Learned advocate for the petitioner submitted that the data recorded and relied on by the authorities to conclude against the petitioner was not based on the required integrated time period. This contention is without substance inasmuch as the data of use of electricity day time as above was based on the time period of 15 months which is in accordance with relevant Clause 13.7 read with Clause 13.8 of GERC Tariff Order mentioned above.
5.1 There is no dispute about the fact that the petitioner was willing to avail the Open Access facility and for that, he had applied to the Electricity Company and had installed in advance ABT meter for which approval was also granted by the company. Tariff applicable for such facility was as per the rate of HTP-I category. The ABT meter which was procured and installed at the place of the petitioner with the approval of the Vij Company recorded the specific details of consumption which was in excess than permissible and violative of the norms prescribed in the relevant Regulations. It could hardly be gainsaid that once the meter was procured and approved, the petitioner became eligible for Open Access facility. The ABT meter installed and made Page 6 of 10 HC-NIC Page 6 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER operational by the petitioner ought to have been the basis for billing and the data availed therefrom was rightly used for billing as violations were detected. The bills were issued on the basis of reading of ABT meter as above.
5.2 It is therefrom also recorded by the authorities that though the petitioner was billed on the basis of ABT meter right from the date of installation of said meter, it never objected to such billing, nor made any request for revision of the bill. The conduct of non- objecting and acquiescing and thus, accepting the ABT meter reading was quite relevant circumstance taken into account by the authorities. The billing for violation of day time demand was properly done and was with reference to the actual data recorded in the ABT meter installed and calculated on the basis of proper time slot.
5.3 The consideration of issue by the authorities below was an expert exercise. The billing was done at the HTP-I rate due to violation of day time demand and the same was in accordance with the relevant provisions of the GERC Tariff Order.
6. Having regard to the aforesaid facts noted and the circumstances obtained therefrom, it could hardly be said that the authorities committed any error in passing the impugned orders. The findings arrived at were proper and based on relevant material and germane aspects have been taken into account. They did not book any error so as to warrant interference in the Page 7 of 10 HC-NIC Page 7 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER exercise of writ jurisdiction of this court. This court does not sit in appeal over the order more particularly when the orders are found to be reasonable and are based on the relevant provisions duly applied to the facts of the case. The petition does not merit acceptance. The impugned orders being eminently just and proper, they are upheld. The petition is dismissed.
7. While parting, the Court could not remain oblivious to an aspect emerged in the case, which is both disturbing and deplorable. It is that, before filing the present petition petitioner approached Chairman of Gujarat Electricity Regulatory Commission by making a representation and seeking his opinion in respect of the issue involved. The Chairman responded to such representation and opined on the merit of the case of the petitioner. This fact is stated by the petitioner himself as averred in paragraph 3.9 in the memo of petition reading as under, "3.9 The petitioner submits that the petitioner approached the Chairman, Gujarat Electricity Regulatory Commission ("GERC") vide representation dated 20.08.2014 for clarification that the billing of the petitioner was required to be done in 30 minutes time block and not 15 minutes time block. The petitioner submits that the Chairman, GERC was pleased to clarify the same in favour of the petitioner and categorically clarified vide communication dated 10.09.2014 that the petitioner could not be considered as an Open Access consumer and the billing of the petitioner was thus required to be in 30 minutes time block. The petitioner submits that despite this categorical clarification, the representations of the petitioner to the respondent Nos.1 and 2 were to no avail and the petitioner was constrained to make a payment of a huge sum of over 44 lakhs to continue functioning."
7.1 The aforementioned representation made to the Page 8 of 10 HC-NIC Page 8 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER Chairman is on record at Page No.60 of the compilation of the petition. At Page No.69 figures the opinion in writing given by the Chairman, GERC, through the Secretary who has signed. The opinion is in favour of the case of the petitioner.
7.2 Gujarat Electricity Regulatory Commission is a statutory body under the Electricity Act, 2003. It is the highest adjudicatory forum of which the Chairman is a high statutory functionary. The constitution of the Commission is under Section 82 of the Act. The qualification for appointment of Chairperson thereof is provided in Section 84 and the functions of the Commission are enumerated in Section 86 of the Act. Matters and the disputes come for adjudication before the Commission which is the highest adjudicatory authority as stated. It cannot be said to be ordinary, rather it is unusual, that a consumer-litigant approaches Chairman of the Commission seeking advise on the merits of the case which he has to ultimately agitate before appropriate forum and in court of law, and the Chairman entertaining such request to give opinion on a case. It may be bona fide, yet blunt, that the petitioner has produced opinion given by the Chairman on the record of the petition and on the basis of opinion given, he seeks support for the merit of his case. The act of entertaining the representation and giving opinion on the merits of the case of a consumer-litigant by a statutory authority is capable of generating question of propriety.
8. On the date when the petition was first notified Page 9 of 10 HC-NIC Page 9 of 10 Created On Thu Dec 10 01:54:23 IST 2015 C/SCA/20014/2015 ORDER for admission hearing, upon Court noticing and taking exception to the same, today learned advocate for the petitioner filed an affidavit of the petitioner dated 08.12.2015. The affidavit is taken on record. It is to be hoped that any litigating party or statutory functionary eschews such conduct.
(N.V.ANJARIA, J.) chandrashekhar Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu Dec 10 01:54:23 IST 2015