Gujarat High Court
M/S Jahaan Steels Limited vs Uttar Gujarat Vij Company ... on 6 February, 2017
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/54/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 54 of 2016
In SPECIAL CIVIL APPLICATION NO. 20014 of 2015
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M/S JAHAAN STEELS LIMITED....Appellant(s)
Versus
UTTAR GUJARAT VIJ COMPANY LIMITED(UGVCL) &
3....Respondent(s)
==========================================================
Appearance:
MR. BHADRISH S RAJU, ADVOCATE for the Appellant(s) No. 1
MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 1 - 2
NOTICE SERVED for the Respondent(s) No. 3 - 4
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 06/02/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of the Letters Patent by the appellant - original petitioner against the order dated 08.12.2015 passed by learned Single Judge by which the learned Single Judge has dismissed the petition.
2. The brief facts leading to filing of the present appeal are as under:
2.1. It is the case of the petitioner that the petitioner company is High Tension (HT) consumer of respondent No.1 under HTP-IV tariff since the date of release of connection i.e. from Page 1 of 17 HC-NIC Page 1 of 34 Created On Sat Aug 12 18:52:10 IST 2017 1 of 34 C/LPA/54/2016 ORDER 01.12.2010. The petitioner was desirous of going in for Open Access in the near future and being aware of the time of nearly 3 to 4 months required to procure and install Availability Based Tariff (ABT) meter. The petitioner decided to procure and install ABT meter in advance of switching over to Open Access. It is the say of the petitioner that it has never switched over to Open Access. Petitioner has relied upon communication dated 30.04.2013 addressed by respondent No.1, wherein while approving the installation of ABT mater at the premises of the petitioner, it was informed to the petitioner that 'your case of Open Access shall be considered if change of tariff from HTP-IV to HTP-I tariff is effected for your load demand of 4000 KVA.' The petitioner never filled-up the required option form and did not change its tariff from HTP-IV to HTP-I. However, the ABT meter with 15 minutes time block was installed at the premises of the petitioner since 26.08.2013 and continued to function therein with the regular UGVCL meter with 30 minutes time block.
2.2. It is the grievance of the petitioner that on 20.07.2014, the petitioner received the energy bill for the month of July 2014 under much higher HTP-I tariff rate. When it was inquired with the respondent No.2, it was informed that the Page 2 of 17 HC-NIC Page 2 of 34 Created On Sat Aug 12 18:52:10 IST 2017 2 of 34 C/LPA/54/2016 ORDER petitioner has exceeded the day time demand on few occasions beyond the permissible limit. It is the case of the petitioner that it has never violated the rules of HTP-IV tariff rate, which required the petitioner to utilize the energy only during night hours i.e. between 10 p.m. to 6 a.m. with 10% of the total units consumed and 15% of the CD possible to be availed beyond the prescribed hours for the purpose of maintenance.
2.3. The petitioner received the consumption data for July 2014 on 25.07.2014 and found that the billing is done based on the ABT meter i.e. in 15 minutes time block, whereas it was required to be done in 30 minutes time block as per Gujarat Electricity Regulatory Commission's (GERC) relevant tariff order. Petitioner also received the bill for August 2014 as per HTP-I tariff rate. Petitioner, therefore, approached GERC for necessary clarification and the petitioner has placed reliance upon the communication dated 10.09.2014 issued by the Chairman of GERC which is in favour of the petitioner.
2.4. The grievance of the petitioner is that he was compelled to make payment of an amount of Rs.44 lac of the aforesaid bills so as to continue the supply of electricity.Page 3 of 17
HC-NIC Page 3 of 34 Created On Sat Aug 12 18:52:10 IST 2017 3 of 34 C/LPA/54/2016 ORDER 2.5. Petitioner challenged the incorrect billing by filing a representation dated 02.01.2015 to respondent No.3. However, the said representation was rejected by an order dated 19.05.2015.
Petitioner preferred representation before the respondent No.4 being aggrieved and dissatisfied with the order dated 19.05.2015 passed by respondent No.3, which was registered as Case No.65 of 2015. The said case was also rejected by an order dated 20.07.2015 by respondent No.4. Petitioner, therefore, filed review application which was also rejected by an order dated 12.10.2015.
2.6. Petitioner challenged the orders passed by the respondent authorities by filing the captioned petition before this Court. The learned Single Judge, by impugned order dated 08.12.2015, dismissed the petition summarily. Therefore, petitioner has preferred the present appeal.
3. Heard learned advocate Mr.Bhadrish Raju for the appellant - original petitioner and learned advocate Ms. Lilu K. Bhaya for the respondents.
4. Learned advocate Mr. Raju submitted that the appellant - original petitioner never switched over to open access inspite of installation of ABT meter at the premises of the petitioner. In Page 4 of 17 HC-NIC Page 4 of 34 Created On Sat Aug 12 18:52:10 IST 2017 4 of 34 C/LPA/54/2016 ORDER support of the said contention, learned advocate Mr. Raju has referred to the communication dated 30.04.2013 addressed by the respondent No.1 wherein the respondent No.1 has specifically stated that the case of the petitioner shall be considered for open access if change of tariff from HTP-IV to HPT-I is effected for the load demand of 4000 KVA of the petitioner. Petitioner has never filled-up the required option form and did not change its tariff from HTP-IV to HTP-I tariff. Inspite of that the case of the petitioner has been wrongly considered as open access and thereby the respondent authorities have committed an error by considering 15 minutes time block. At this stage, it is submitted that even after installation of ABT meter, the original UGVCL meter with 30 minutes time block was not removed from the premises of the petitioner and therefore it can be said that the petitioner never switched over to open access.
4.1. Learned advocate Mr. Raju thereafter submitted that prior and post installation of ABT meter, the petitioner never violated the rules of HTP-IV tariff which requires the petitioner to utilize the energy only during night hours between 10 p.m. to 6 a.m. with 10% of the total units consumed and 15% of the CD possible to be availed beyond the prescribed hours for the Page 5 of 17 HC-NIC Page 5 of 34 Created On Sat Aug 12 18:52:10 IST 2017 5 of 34 C/LPA/54/2016 ORDER purpose of maintenance.
4.2. It is further urged that even otherwise the respondents were required to appreciate that the stance of the petitioner was extremely reasonable in submitting that even if the billing is done as per the allegedly superior ABT meter, if the billing time period is taken as 30 minutes, the appellant would not be outside the permissible limit for HTP-IV tariff rate and therefore also the applications filed by the petitioner were required to be allowed and hence the impugned orders passed by the respondent authorities were required to be set aside by the learned Single Judge. However, learned Single Judge has not properly considered the aforesaid important aspects.
4.3. Learned advocate Mr. Raju has submitted that Electricity Ombudsman - respondent No.4 herein has in similar type of case i.e. Case No.31/2007 filed by one M/S.L.G. Industries Steel Re- Rolling and Fabrications, Bhavnagar, delivered a judgment in 2007, whereby the respondent No.4 has reduced the penalty imposed by the concerned electricity company by holding that there was no intention of the said applicant to consume 19 units more in day time. It was held that the said applicant was negligent and he did not care to Page 6 of 17 HC-NIC Page 6 of 34 Created On Sat Aug 12 18:52:10 IST 2017 6 of 34 C/LPA/54/2016 ORDER see that 19 units excess were consumed in day time. Further, it was observed that, 'In view of this I find that the applicant should be penalized for the entire day time consumption of 3392 units by way of HTP-I tariff and for the night consumption the respondent should charge according to HTP-IV tariff. Accordingly, the respondent is directed to revise the bill by charging 3392 units according to HTP-I tariff and balance of 64080 units (night time consumption) according to HTP-IV. Any excess payment made by the applicant be adjusted against the dues of next bill. This judgment should not be straight way applied in all such infringements of conditions without considering the facts on merits'. It is submitted by learned counsel Mr. Raju that however in the present case the respondent No.4 has not given such benefit to the petitioner and therefore the respondents may be directed to follow the said decision in the case of the present petitioner also.
5. On the other hand, learned advocate Ms. Lilu K. Bhaya appearing for the respondents submitted that the petitioner has opted for HTP-IV tariff for using the electricity only during the night hours to get advantage of lower tariff. However, while applying the said tariff, there was a condition that if the petitioner violates 10% of Page 7 of 17 HC-NIC Page 7 of 34 Created On Sat Aug 12 18:52:10 IST 2017 7 of 34 C/LPA/54/2016 ORDER the total units or exceed 15% of the contract demand then they will be billed as per tariff HTP-I instead of HTP-IV. It is submitted that HTP-IV tariff is special tariff wherein the rates are lower to maintain the load demand in day time. At this stage, it is contended that the petitioner has opted for open access. A consumer, who comes for permission for open access since he wants to purchase power from outside or from open market by power exchange/trading, in such case, a consumer is required to be bound by the Open Access Regulations, 2011. In the present case, the petitioner submitted an application on 12.04.2013 and requested to go for open access to which the respondent replied vide letter dated 30.04.2013, wherein it was stated that if the petitioner wants to go from HTP-IV to HTP-I, SLDC unique ID is mandatory requirement and ABT meter has to be installed. It is stated that the petitioner acquired ABT meter, which was installed at its premises on 26.08.2013. It is clarified that the ABT meter is having 15 minutes integration period. At this stage, it is further clarified that the meter of the respondent was also kept as check meter so that in case of failure of ABT meter, the information regarding energy consumed can be gathered. As per the submission of learned advocate for the respondents, the check meter of the respondents Page 8 of 17 HC-NIC Page 8 of 34 Created On Sat Aug 12 18:52:10 IST 2017 8 of 34 C/LPA/54/2016 ORDER is not tariff meter and not considered in normal course for billing. Once the ABT meter is installed, it is only relevant for the purpose of billing. Accordingly, the petitioner was billed as per the recording in the ABT meter only from the date of installation thereof and the petitioner has never objected.
5.1. Learned advocate Ms. Bhaya thereafter urged that the petitioner was found to have violated conditions of HTP-IV tariff during July-2014 and more particularly on 10.07.2014 during 6 a.m. to 6.15 a.m., the petitioner had exceeded the contract demand which was recorded as 635 KVA in place of 600 KVA. Similarly, on 11.07.2014, during 6 a.m. to 6.15 a.m., the contract demand was recorded at 610 KVA in place of 600 KVA. Further, on 16.07.2014, during the aforesaid period the contract demand exceeded at 650 KVA. It is therefore contended that petitioner was billed for HTP-I tariff for the month of July 2014 and August 2014 and the petitioner was supplied load survey data of ABT meter on 25.07.2014 by email.
5.2. Learned advocate Ms. Bhaya for the respondents submitted that Open Access Regulations clearly provide that once the consumer opts for open access, the consumer has Page 9 of 17 HC-NIC Page 9 of 34 Created On Sat Aug 12 18:52:10 IST 2017 9 of 34 C/LPA/54/2016 ORDER to install the ABT meter and the billing shall be done on the basis of ABT meter only. The meter of the respondents kept at the place of the petitioner was only check meter. Therefore, the respondents have not committed any error while issuing the bill for HTP-I tariff.
5.3. At this stage, it is submitted that the petitioner by letter dated 25.01.2014 assured that after installation of 0.2 S class CTPT unit for Open Access purpose, they will be switched over to HTP-I tariff, as ABT meter is already installed. The petitioner was thereafter billed on the basis of consumption recorded in ABT meter to which the petitioner has never objected. It is further submitted that since the installation of ABT meter has been confirmed and consented by the petitioner to switch over to HTP-I vide letter dated 31.07.2013 and therefore now it is not open for the petitioner to contend that he has not committed any violation of the condition and 30 minutes integration period be considered. It is therefore submitted by learned advocate for the respondents that no illegality has been committed by the respondent authorities while rejecting the complaint of the petitioner and the learned Single Judge also has not committed any error while dismissing the petition and therefore the present appeal be dismissed.
Page 10 of 17HC-NIC Page 10 of 34 Created On Sat Aug 12 18:52:10 IST 2017 10 of 34 C/LPA/54/2016 ORDER
6. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it emerges from the record that initially the petitioner company has obtained the electricity connection under HTP-IV tariff. However, thereafter when the petitioner was desirous to go for Open Access, request was made to install the ABT meter as per the requirement. The ABT meter is already installed at the premises of the petitioner on 26.08.2013. It is not in dispute that the check meter which was installed by the respondent authorities for HTP-IV tariff is having 30 minutes integration period, whereas the ABT meter which was installed at the instance of the petitioner at its premises is having 15 minutes integration period. Now, the dispute involved in the present proceeding is with regard to the counting of integration period i.e. 15 minutes or 30 minutes. The contention of the petitioner is that though ABT meter was installed on 26.08.2013, the petitioner has never gone for Open Access and therefore the respondent authorities could not have considered 15 minutes integration period while alleging that petitioner has exceeded the contract demand. Whereas, the case of the respondent is that once the ABT meter is installed on 26.08.2013 the billing shall be done on the basis of the ABT meter only and the Page 11 of 17 HC-NIC Page 11 of 34 Created On Sat Aug 12 18:52:10 IST 2017 11 of 34 C/LPA/54/2016 ORDER meter which was installed by the respondent at the premises of the petitioner from the beginning was only a check meter. Therefore, the respondents have not committed any error while considering 15 minutes integration period when it was found that the petitioner has exceeded the contract demand during the months of July and August 2014. Accordingly, the load survey data of ABT meter was supplied to the petitioner by email and accordingly the petitioner was billed for HTP-I tariff as per the rules and regulations.
7. From the record, it transpires that the respondent authorities noticed that the petitioner 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 period Recorded Permiss Month by demand ible in KVA day demand 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.
8. The petitioner was billed accordingly for Page 12 of 17 HC-NIC Page 12 of 34 Created On Sat Aug 12 18:52:10 IST 2017 12 of 34 C/LPA/54/2016 ORDER HTP-I tariff for violation of day time demand on the basis of the aforesaid recorded data. It is not in dispute that the ABT meter was installed on 26.08.2013 and the regular meter of respondent No.2 company was also kept as a check meter. The said ABT meter was installed by the petitioner as a tariff meter in presence of its representative as per the check-sheet No.12914 on 26.08.2013. The ABT meter installed was meter of 0.2 S class accuracy, whereas the old regular meter already existed before the installation of ABT meter is having 0.5 S accuracy.
9. At this stage, it is relevant to refer to Clauses 13.7 and 13.8 of 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 provide 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 Page 13 of 17 HC-NIC Page 13 of 34 Created On Sat Aug 12 18:52:10 IST 2017 13 of 34 C/LPA/54/2016 ORDER undertakes to provide facilities from time to time."
10. Under HTP-IV tariff, the petitioner could use electricity exclusively during night hours from 10:00 p.m. to 6:00 a.m. next day. From the material produced on record and from the impugned order, it is revealed that the respondent authorities recorded the finding on the basis of the aforesaid facts that the petitioner has violated the day time demand as recorded and revealed in ABT meter installed at its place. Therefore, the bill under HTP-I tariff was issued which was as per the norms and regulations.
11. From the aforesaid facts it is clear that the petitioner was willing to avail the Open Access facility for which he had applied to the respondent electricity company and had installed in advance ABT meter for which approval was also granted by the respondent company. The tariff applicable for such facility was as per the rate of HTP-I category. From the affidavit filed by the respondent No.4, it is clear that once the consumer opts for Open Access, the consumer has to install ABT meter and the billing shall be done on the basis of the ABT meter only as per the Open Access Regulations. It is also specifically stated in the affidavit that petitioner was billed on the basis of the Page 14 of 17 HC-NIC Page 14 of 34 Created On Sat Aug 12 18:52:10 IST 2017 14 of 34 C/LPA/54/2016 ORDER consumption recorded in the ABT meter after its installation to which the petitioner has never objected. However, when the conditions were violated in the months of July and August 2014 and when the load survey data of ABT meter was supplied to the petitioner on 25.07.2014, he has raised the dispute.
12. One of the contentions of the petitioner is that even assuming that the petitioner has violated the terms and conditions on three occasions during July 2014 and August 2014, even then the respondent authorities ought to have given the similar treatment which was given to one M/S.L.G. Industries Steel Re-Rolling and Fabrications, Bhavnagar. However, if we examine the order passed in the year 2007 by the respondent No.4 - Electricity Ombudsman in the case of the aforesaid consumer, it is revealed that specific finding was recorded by the respondent No.4 that only once consumption of 19 units excess was found during the month of November 2006 because of the breakdown of production at night for one day resulting in lesser number of units being consumed at night whereas the consumption of units marginally increased during day time due to maintenance work which was carried out during day time to remove the defects. In the aforesaid facts, the Page 15 of 17 HC-NIC Page 15 of 34 Created On Sat Aug 12 18:52:10 IST 2017 15 of 34 C/LPA/54/2016 ORDER respondent No.4 held that there is no evidence on record that the said consumer intentionally continued the factory during day time for production work and the consumption of units marginally increased during day time due to maintenance work which was carried out during day time to remove the defects. It was also observed that the said consumer had not committed such type of infringement in the past and he had given assurance that he will not make any infringement in future and therefore in the said facts the respondent No.4 passed an order in favour of the consumer.
13. However, if the facts of the present case as recorded hereinabove are examined, it is clear that the petitioner has exceeded the units not once but thrice during billing month of July and August 2014. Moreover, the units are not marginally increased but total 95 units are found to be exceeded than the permitted units as per the conditions. Thus, we are of the opinion that the reliance placed by the petitioner on the case of M/S.L.G. Industries Steel Re-Rolling and Fabrications, Bhavnagar decided by respondent No.4, is misconceived.
14. In view of the aforesaid discussions and in view of the reasonings recorded by the learned Page 16 of 17 HC-NIC Page 16 of 34 Created On Sat Aug 12 18:52:10 IST 2017 16 of 34 C/LPA/54/2016 ORDER Single Judge, we are of the view that when there are concurrent findings of fact recorded by the respondent authorities as well as learned Single Judge, we see no reason to interfere with the order passed by the learned Single Judge. Accordingly, the appeal being devoid of any merit is dismissed. Notice discharged.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 17 of 17 HC-NIC Page 17 of 34 Created On Sat Aug 12 18:52:10 IST 2017 17 of 34 C/LPA/54/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 54 of 2016 In SPECIAL CIVIL APPLICATION NO. 20014 of 2015 ========================================================== M/S JAHAAN STEELS LIMITED....Appellant(s) Versus UTTAR GUJARAT VIJ COMPANY LIMITED(UGVCL) &
3....Respondent(s) ========================================================== Appearance:
MR. BHADRISH S RAJU, ADVOCATE for the Appellant(s) No. 1 MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 1 - 2 NOTICE SERVED for the Respondent(s) No. 3 - 4 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 06/02/2017 ORAL ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of the Letters Patent by the appellant - original petitioner against the order dated 08.12.2015 passed by learned Single Judge by which the learned Single Judge has dismissed the petition.
2. The brief facts leading to filing of the present appeal are as under:
2.1. It is the case of the petitioner that the petitioner company is High Tension (HT) consumer of respondent No.1 under HTP-IV tariff since the date of release of connection i.e. from Page 1 of 17 HC-NIC Page 18 of 34 Created On Sat Aug 12 18:52:10 IST 2017 18 of 34 C/LPA/54/2016 ORDER 01.12.2010. The petitioner was desirous of going in for Open Access in the near future and being aware of the time of nearly 3 to 4 months required to procure and install Availability Based Tariff (ABT) meter. The petitioner decided to procure and install ABT meter in advance of switching over to Open Access. It is the say of the petitioner that it has never switched over to Open Access. Petitioner has relied upon communication dated 30.04.2013 addressed by respondent No.1, wherein while approving the installation of ABT mater at the premises of the petitioner, it was informed to the petitioner that 'your case of Open Access shall be considered if change of tariff from HTP-IV to HTP-I tariff is effected for your load demand of 4000 KVA.' The petitioner never filled-up the required option form and did not change its tariff from HTP-IV to HTP-I. However, the ABT meter with 15 minutes time block was installed at the premises of the petitioner since 26.08.2013 and continued to function therein with the regular UGVCL meter with 30 minutes time block.
2.2. It is the grievance of the petitioner that on 20.07.2014, the petitioner received the energy bill for the month of July 2014 under much higher HTP-I tariff rate. When it was inquired with the respondent No.2, it was informed that the Page 2 of 17 HC-NIC Page 19 of 34 Created On Sat Aug 12 18:52:10 IST 2017 19 of 34 C/LPA/54/2016 ORDER petitioner has exceeded the day time demand on few occasions beyond the permissible limit. It is the case of the petitioner that it has never violated the rules of HTP-IV tariff rate, which required the petitioner to utilize the energy only during night hours i.e. between 10 p.m. to 6 a.m. with 10% of the total units consumed and 15% of the CD possible to be availed beyond the prescribed hours for the purpose of maintenance.
2.3. The petitioner received the consumption data for July 2014 on 25.07.2014 and found that the billing is done based on the ABT meter i.e. in 15 minutes time block, whereas it was required to be done in 30 minutes time block as per Gujarat Electricity Regulatory Commission's (GERC) relevant tariff order. Petitioner also received the bill for August 2014 as per HTP-I tariff rate. Petitioner, therefore, approached GERC for necessary clarification and the petitioner has placed reliance upon the communication dated 10.09.2014 issued by the Chairman of GERC which is in favour of the petitioner.
2.4. The grievance of the petitioner is that he was compelled to make payment of an amount of Rs.44 lac of the aforesaid bills so as to continue the supply of electricity.Page 3 of 17
HC-NIC Page 20 of 34 Created On Sat Aug 12 18:52:10 IST 2017 20 of 34 C/LPA/54/2016 ORDER 2.5. Petitioner challenged the incorrect billing by filing a representation dated 02.01.2015 to respondent No.3. However, the said representation was rejected by an order dated 19.05.2015.
Petitioner preferred representation before the respondent No.4 being aggrieved and dissatisfied with the order dated 19.05.2015 passed by respondent No.3, which was registered as Case No.65 of 2015. The said case was also rejected by an order dated 20.07.2015 by respondent No.4. Petitioner, therefore, filed review application which was also rejected by an order dated 12.10.2015.
2.6. Petitioner challenged the orders passed by the respondent authorities by filing the captioned petition before this Court. The learned Single Judge, by impugned order dated 08.12.2015, dismissed the petition summarily. Therefore, petitioner has preferred the present appeal.
3. Heard learned advocate Mr.Bhadrish Raju for the appellant - original petitioner and learned advocate Ms. Lilu K. Bhaya for the respondents.
4. Learned advocate Mr. Raju submitted that the appellant - original petitioner never switched over to open access inspite of installation of ABT meter at the premises of the petitioner. In Page 4 of 17 HC-NIC Page 21 of 34 Created On Sat Aug 12 18:52:10 IST 2017 21 of 34 C/LPA/54/2016 ORDER support of the said contention, learned advocate Mr. Raju has referred to the communication dated 30.04.2013 addressed by the respondent No.1 wherein the respondent No.1 has specifically stated that the case of the petitioner shall be considered for open access if change of tariff from HTP-IV to HPT-I is effected for the load demand of 4000 KVA of the petitioner. Petitioner has never filled-up the required option form and did not change its tariff from HTP-IV to HTP-I tariff. Inspite of that the case of the petitioner has been wrongly considered as open access and thereby the respondent authorities have committed an error by considering 15 minutes time block. At this stage, it is submitted that even after installation of ABT meter, the original UGVCL meter with 30 minutes time block was not removed from the premises of the petitioner and therefore it can be said that the petitioner never switched over to open access.
4.1. Learned advocate Mr. Raju thereafter submitted that prior and post installation of ABT meter, the petitioner never violated the rules of HTP-IV tariff which requires the petitioner to utilize the energy only during night hours between 10 p.m. to 6 a.m. with 10% of the total units consumed and 15% of the CD possible to be availed beyond the prescribed hours for the Page 5 of 17 HC-NIC Page 22 of 34 Created On Sat Aug 12 18:52:10 IST 2017 22 of 34 C/LPA/54/2016 ORDER purpose of maintenance.
4.2. It is further urged that even otherwise the respondents were required to appreciate that the stance of the petitioner was extremely reasonable in submitting that even if the billing is done as per the allegedly superior ABT meter, if the billing time period is taken as 30 minutes, the appellant would not be outside the permissible limit for HTP-IV tariff rate and therefore also the applications filed by the petitioner were required to be allowed and hence the impugned orders passed by the respondent authorities were required to be set aside by the learned Single Judge. However, learned Single Judge has not properly considered the aforesaid important aspects.
4.3. Learned advocate Mr. Raju has submitted that Electricity Ombudsman - respondent No.4 herein has in similar type of case i.e. Case No.31/2007 filed by one M/S.L.G. Industries Steel Re- Rolling and Fabrications, Bhavnagar, delivered a judgment in 2007, whereby the respondent No.4 has reduced the penalty imposed by the concerned electricity company by holding that there was no intention of the said applicant to consume 19 units more in day time. It was held that the said applicant was negligent and he did not care to Page 6 of 17 HC-NIC Page 23 of 34 Created On Sat Aug 12 18:52:10 IST 2017 23 of 34 C/LPA/54/2016 ORDER see that 19 units excess were consumed in day time. Further, it was observed that, 'In view of this I find that the applicant should be penalized for the entire day time consumption of 3392 units by way of HTP-I tariff and for the night consumption the respondent should charge according to HTP-IV tariff. Accordingly, the respondent is directed to revise the bill by charging 3392 units according to HTP-I tariff and balance of 64080 units (night time consumption) according to HTP-IV. Any excess payment made by the applicant be adjusted against the dues of next bill. This judgment should not be straight way applied in all such infringements of conditions without considering the facts on merits'. It is submitted by learned counsel Mr. Raju that however in the present case the respondent No.4 has not given such benefit to the petitioner and therefore the respondents may be directed to follow the said decision in the case of the present petitioner also.
5. On the other hand, learned advocate Ms. Lilu K. Bhaya appearing for the respondents submitted that the petitioner has opted for HTP-IV tariff for using the electricity only during the night hours to get advantage of lower tariff. However, while applying the said tariff, there was a condition that if the petitioner violates 10% of Page 7 of 17 HC-NIC Page 24 of 34 Created On Sat Aug 12 18:52:10 IST 2017 24 of 34 C/LPA/54/2016 ORDER the total units or exceed 15% of the contract demand then they will be billed as per tariff HTP-I instead of HTP-IV. It is submitted that HTP-IV tariff is special tariff wherein the rates are lower to maintain the load demand in day time. At this stage, it is contended that the petitioner has opted for open access. A consumer, who comes for permission for open access since he wants to purchase power from outside or from open market by power exchange/trading, in such case, a consumer is required to be bound by the Open Access Regulations, 2011. In the present case, the petitioner submitted an application on 12.04.2013 and requested to go for open access to which the respondent replied vide letter dated 30.04.2013, wherein it was stated that if the petitioner wants to go from HTP-IV to HTP-I, SLDC unique ID is mandatory requirement and ABT meter has to be installed. It is stated that the petitioner acquired ABT meter, which was installed at its premises on 26.08.2013. It is clarified that the ABT meter is having 15 minutes integration period. At this stage, it is further clarified that the meter of the respondent was also kept as check meter so that in case of failure of ABT meter, the information regarding energy consumed can be gathered. As per the submission of learned advocate for the respondents, the check meter of the respondents Page 8 of 17 HC-NIC Page 25 of 34 Created On Sat Aug 12 18:52:10 IST 2017 25 of 34 C/LPA/54/2016 ORDER is not tariff meter and not considered in normal course for billing. Once the ABT meter is installed, it is only relevant for the purpose of billing. Accordingly, the petitioner was billed as per the recording in the ABT meter only from the date of installation thereof and the petitioner has never objected.
5.1. Learned advocate Ms. Bhaya thereafter urged that the petitioner was found to have violated conditions of HTP-IV tariff during July-2014 and more particularly on 10.07.2014 during 6 a.m. to 6.15 a.m., the petitioner had exceeded the contract demand which was recorded as 635 KVA in place of 600 KVA. Similarly, on 11.07.2014, during 6 a.m. to 6.15 a.m., the contract demand was recorded at 610 KVA in place of 600 KVA. Further, on 16.07.2014, during the aforesaid period the contract demand exceeded at 650 KVA. It is therefore contended that petitioner was billed for HTP-I tariff for the month of July 2014 and August 2014 and the petitioner was supplied load survey data of ABT meter on 25.07.2014 by email.
5.2. Learned advocate Ms. Bhaya for the respondents submitted that Open Access Regulations clearly provide that once the consumer opts for open access, the consumer has Page 9 of 17 HC-NIC Page 26 of 34 Created On Sat Aug 12 18:52:10 IST 2017 26 of 34 C/LPA/54/2016 ORDER to install the ABT meter and the billing shall be done on the basis of ABT meter only. The meter of the respondents kept at the place of the petitioner was only check meter. Therefore, the respondents have not committed any error while issuing the bill for HTP-I tariff.
5.3. At this stage, it is submitted that the petitioner by letter dated 25.01.2014 assured that after installation of 0.2 S class CTPT unit for Open Access purpose, they will be switched over to HTP-I tariff, as ABT meter is already installed. The petitioner was thereafter billed on the basis of consumption recorded in ABT meter to which the petitioner has never objected. It is further submitted that since the installation of ABT meter has been confirmed and consented by the petitioner to switch over to HTP-I vide letter dated 31.07.2013 and therefore now it is not open for the petitioner to contend that he has not committed any violation of the condition and 30 minutes integration period be considered. It is therefore submitted by learned advocate for the respondents that no illegality has been committed by the respondent authorities while rejecting the complaint of the petitioner and the learned Single Judge also has not committed any error while dismissing the petition and therefore the present appeal be dismissed.
Page 10 of 17HC-NIC Page 27 of 34 Created On Sat Aug 12 18:52:10 IST 2017 27 of 34 C/LPA/54/2016 ORDER
6. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it emerges from the record that initially the petitioner company has obtained the electricity connection under HTP-IV tariff. However, thereafter when the petitioner was desirous to go for Open Access, request was made to install the ABT meter as per the requirement. The ABT meter is already installed at the premises of the petitioner on 26.08.2013. It is not in dispute that the check meter which was installed by the respondent authorities for HTP-IV tariff is having 30 minutes integration period, whereas the ABT meter which was installed at the instance of the petitioner at its premises is having 15 minutes integration period. Now, the dispute involved in the present proceeding is with regard to the counting of integration period i.e. 15 minutes or 30 minutes. The contention of the petitioner is that though ABT meter was installed on 26.08.2013, the petitioner has never gone for Open Access and therefore the respondent authorities could not have considered 15 minutes integration period while alleging that petitioner has exceeded the contract demand. Whereas, the case of the respondent is that once the ABT meter is installed on 26.08.2013 the billing shall be done on the basis of the ABT meter only and the Page 11 of 17 HC-NIC Page 28 of 34 Created On Sat Aug 12 18:52:10 IST 2017 28 of 34 C/LPA/54/2016 ORDER meter which was installed by the respondent at the premises of the petitioner from the beginning was only a check meter. Therefore, the respondents have not committed any error while considering 15 minutes integration period when it was found that the petitioner has exceeded the contract demand during the months of July and August 2014. Accordingly, the load survey data of ABT meter was supplied to the petitioner by email and accordingly the petitioner was billed for HTP-I tariff as per the rules and regulations.
7. From the record, it transpires that the respondent authorities noticed that the petitioner 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 period Recorded Permiss Month by demand ible in KVA day demand 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.
8. The petitioner was billed accordingly for Page 12 of 17 HC-NIC Page 29 of 34 Created On Sat Aug 12 18:52:10 IST 2017 29 of 34 C/LPA/54/2016 ORDER HTP-I tariff for violation of day time demand on the basis of the aforesaid recorded data. It is not in dispute that the ABT meter was installed on 26.08.2013 and the regular meter of respondent No.2 company was also kept as a check meter. The said ABT meter was installed by the petitioner as a tariff meter in presence of its representative as per the check-sheet No.12914 on 26.08.2013. The ABT meter installed was meter of 0.2 S class accuracy, whereas the old regular meter already existed before the installation of ABT meter is having 0.5 S accuracy.
9. At this stage, it is relevant to refer to Clauses 13.7 and 13.8 of 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 provide 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 Page 13 of 17 HC-NIC Page 30 of 34 Created On Sat Aug 12 18:52:10 IST 2017
30 of 34 C/LPA/54/2016 ORDER undertakes to provide facilities from time to time."
10. Under HTP-IV tariff, the petitioner could use electricity exclusively during night hours from 10:00 p.m. to 6:00 a.m. next day. From the material produced on record and from the impugned order, it is revealed that the respondent authorities recorded the finding on the basis of the aforesaid facts that the petitioner has violated the day time demand as recorded and revealed in ABT meter installed at its place. Therefore, the bill under HTP-I tariff was issued which was as per the norms and regulations.
11. From the aforesaid facts it is clear that the petitioner was willing to avail the Open Access facility for which he had applied to the respondent electricity company and had installed in advance ABT meter for which approval was also granted by the respondent company. The tariff applicable for such facility was as per the rate of HTP-I category. From the affidavit filed by the respondent No.4, it is clear that once the consumer opts for Open Access, the consumer has to install ABT meter and the billing shall be done on the basis of the ABT meter only as per the Open Access Regulations. It is also specifically stated in the affidavit that petitioner was billed on the basis of the Page 14 of 17 HC-NIC Page 31 of 34 Created On Sat Aug 12 18:52:10 IST 2017 31 of 34 C/LPA/54/2016 ORDER consumption recorded in the ABT meter after its installation to which the petitioner has never objected. However, when the conditions were violated in the months of July and August 2014 and when the load survey data of ABT meter was supplied to the petitioner on 25.07.2014, he has raised the dispute.
12. One of the contentions of the petitioner is that even assuming that the petitioner has violated the terms and conditions on three occasions during July 2014 and August 2014, even then the respondent authorities ought to have given the similar treatment which was given to one M/S.L.G. Industries Steel Re-Rolling and Fabrications, Bhavnagar. However, if we examine the order passed in the year 2007 by the respondent No.4 - Electricity Ombudsman in the case of the aforesaid consumer, it is revealed that specific finding was recorded by the respondent No.4 that only once consumption of 19 units excess was found during the month of November 2006 because of the breakdown of production at night for one day resulting in lesser number of units being consumed at night whereas the consumption of units marginally increased during day time due to maintenance work which was carried out during day time to remove the defects. In the aforesaid facts, the Page 15 of 17 HC-NIC Page 32 of 34 Created On Sat Aug 12 18:52:10 IST 2017 32 of 34 C/LPA/54/2016 ORDER respondent No.4 held that there is no evidence on record that the said consumer intentionally continued the factory during day time for production work and the consumption of units marginally increased during day time due to maintenance work which was carried out during day time to remove the defects. It was also observed that the said consumer had not committed such type of infringement in the past and he had given assurance that he will not make any infringement in future and therefore in the said facts the respondent No.4 passed an order in favour of the consumer.
13. However, if the facts of the present case as recorded hereinabove are examined, it is clear that the petitioner has exceeded the units not once but thrice during billing month of July and August 2014. Moreover, the units are not marginally increased but total 95 units are found to be exceeded than the permitted units as per the conditions. Thus, we are of the opinion that the reliance placed by the petitioner on the case of M/S.L.G. Industries Steel Re-Rolling and Fabrications, Bhavnagar decided by respondent No.4, is misconceived.
14. In view of the aforesaid discussions and in view of the reasonings recorded by the learned Page 16 of 17 HC-NIC Page 33 of 34 Created On Sat Aug 12 18:52:10 IST 2017 33 of 34 C/LPA/54/2016 ORDER Single Judge, we are of the view that when there are concurrent findings of fact recorded by the respondent authorities as well as learned Single Judge, we see no reason to interfere with the order passed by the learned Single Judge. Accordingly, the appeal being devoid of any merit is dismissed. Notice discharged.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 17 of 17 HC-NIC Page 34 of 34 Created On Sat Aug 12 18:52:10 IST 2017 34 of 34