Madras High Court
M/S Aruppukottai Sri Jayavilas Ltd vs The Tamil Nadu Electricity on 28 August, 2019
Author: T.Raja
Bench: T.Raja
W.P.No.25818 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.08.2019
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.No.25818 of 2018
M/s Aruppukottai Sri Jayavilas Ltd.,
(Cotton Spinning Mills)
H.T.S.No.68
No.3/333, Melakandamangalam
Tamilpadi Post 626 129
Aruppukottai Taluk
Virudhunagar District
rep.by its General Manager
Gopal Dinakaran .. Petitioner
-vs-
1. The Tamil Nadu Electricity
Regulatory Commission
19-A, Rukmani Lakshmipathy Salai
(Marshall Road), Egmore
Chennai 600 008
rep.by its Secretary
2. The Chairman and Managing Director
TANGEDCO
144, Anna Salai
Chennai 600 002
3. The Superintending Engineer
Virudhunagar Electricity Distribution Circle
TANGEDCO, Virudhunagar 626 001
4. The Tamil Nadu Electricity Ombudsman
19-A, Rukmani Lakshmipathy Salai
(Marshall Road), Egmore
Chennai 600 008 .. Respondents
1/14
http://www.judis.nic.in
W.P.No.25818 of 2018
Petition under Article 226 of the Constitution of India, praying for the
issue of a Writ of Certioraried Mandamus, calling for the records pertaining to the
award/orders dated 27.08.2018 in A.P.No.70 of 2017 passed by the fourth
respondent and that portion of the amounts in Items 9 and 13 of the Current
Consumption Bill dated 30.03.2007 demanded by the third respondent and quash
the same as illegal, arbitrary and against the Tariff order in para 7.17 (1.0)(i) and
(ii) dated 15.03.2003 and the Regulation 5(2)(1) of the Tamil Nadu Electricity
Supply Code 2004 and consequently direct the third respondent to refund the
excess demand charges collected from the petitioner.
For Petitioner :: Mr.K.Seshadri
For Respondents :: Mr.S.K.Raameshuwar
Standing Counsel for R2 & 3
ORDER
M/s Aruppukottai Sri Jayavilas Limited (Cotton Spinning Mills) represented by its General Manager has once again come to this Court challenging the correctness of the impugned order passed by the Tamil Nadu Electricity Ombudsman, Chennai, the fourth respondent herein in A.P.No.70 of 2017 and that portion of the amounts in Items 9 and 13 of the Current Consumption Bill dated 30.03.2007 demanded by the Superintending Engineer, Virudhunagar Electricity Distribution Circle, the third respondent herein, to quash the same as illegal, arbitrary and against the Tariff order in para 7.17 (1.0)(i) &
(ii) dated 15.03.2003 and the Regulation 5(2)(1) of the Tamil Nadu Electricity Supply Code 2004 with a consequential direction to the third respondent to refund the excess demand charges collected from the petitioner.
2. Mr.K.Seshadri, learned counsel for the petitioner submitted that the 2/14 http://www.judis.nic.in W.P.No.25818 of 2018 petitioner industry is a cotton yarn industry with high tension electricity service connection bearing no.68 having a sanctioned demand of 1300 K.V.A., accorded by the Chairman and Managing Director, TANGEDCO and the Superintending Engineer, Virudhunagar Electricity Distribution Circle, the respondents 2 & 3 and enjoying the supply from 31.10.82. Thereafter, to extend the industrial activity, the petitioner requested the second and third respondents to sanction additional demand of 3690 K.V.A., and the second respondent, after satisfying with the technical feasibility, has accorded 11 K.V., supply to 3690 K.V.A., demand on 9.12.2005. Since then, the petitioner has been using 4990 K.V.A., with 11 K.V., supply line. The learned counsel for the petitioner also stated that the petitioner is an exporter of cotton yarn registered with the Cotton Textile Export Promotion Council (TEXPROCIL) and they have been awarded one Star Export House Status by the Ministry of Commerce, Government of India for the export turnover achieved by them over the years. They are also providing employment opportunity to 1700 to 2000 persons living in and around Aruppukkottai vicinity. Since they have been paying the current consumption charges without any default as demanded by the third respondent for the electricity consumed, as per the tariff fixed by the Government of Tamil Nadu under Section 4 of the Tamil Nadu Revision of Tariff Rates on Supply of Electricity Act 1978, till 15.3.2003, after the Tamil Nadu Electricity Regulatory Commission, the first respondent has come into existence, the tariff is being fixed by them and the first respondent also has notified the tariff on consumption of electricity payable by various 3/14 http://www.judis.nic.in W.P.No.25818 of 2018 consumers on 15.3.2003. As per the tariff notification referred to above, the petitioner industry falls under high tension tariff IA (Industrial Tariff) and the tariff payable by the petitioner would be of two part, namely, demand charges and energy charges. As per the tariff, the petitioner mill has to pay Rs.300/- per K.V.A., of maximum demand sanctioned and paise 350 per unit as energy charge. In view of clause 7.17(1.0)(i) of tariff order applicable to high tension supply involving a sanctioned demand above 5000 K.V.A., plus 2 percent marginal adjustment shall be given supply at 33 K.V., if available in the area or at EHT voltage. Whereas under clause 7.17 (1.0)(ii), in the case of existing high tension consumer whose sanctioned demand exceeds 5000 K.V.A., and who do not avail supply at 33 K.V., or EHT voltage, they shall be charged an extra levy of ten paise per KWH over and above the normal tariff for the entire energy consumed in a month. The learned counsel submitted, in other words, that a high tension consumer who requires sanctioned demand for 5000 K.V.A., and above, such consumer shall avail the high tension supply at 33 K.V., or extra high voltage supply, but not at 11 K.V., supply. This is for the reason that if the high tension consumer, after getting sanction for 5000 K.V.A., or more, fails to avail the high tension supply at 33 K.V., line or EHT voltage line and if they exceed the 5000 K.V.A., demand, then such consumer is liable to pay 10 paise per unit over and above the normal tariff for the entire energy consumed. Therefore, the above provision is applicable to those high tension consumers whose sanctioned demand is 5000 K.V.A., and who failed to avail the supply at 4/14 http://www.judis.nic.in W.P.No.25818 of 2018 33 K.V., line or EHT supply, then such consumer is liable to pay extra levy of 10 paise per unit over and above the normal tariff for the entire energy consumed.
3. Continuing his arguments, the learned counsel submitted that whenever the consumer exceeds the sanctioned demand, the excess demand recorded alone shall be charged at double the normal rate. Hence, under the tariff order dated 15.3.2003, a high tension consumer has to pay Rs.300/- per K.V.A., towards demand charges and if he exceeds the permitted sanctioned demand, he will have to pay Rs.600/- per K.V.A., of the demand so exceeded being the double of the normal rate as prescribed under the Supply Code. Ignoring the provisions of the tariff order dated 15.3.2003 and the Tamil Nadu Electricity Supply Code as notified by the Tamil Nadu Electricity Regulatory Commission, the first respondent herein on 1.9.2004, the third respondent has issued the proceedings dated 1.3.2007 in letter No.SE/VDR/AO/R/RCS/A2/F.HT. SC.68/D 2944/2007 stating that necessary penalty clause will be imposed for exceeding the demand over and above the sanctioned demand on demand factor and energy factor as per the Tamil Nadu Electricity Regulatory Commission directives, namely, penalty of three times demand charges for the excess maximum demand and 10 paise per unit over and above the normal tariff for the entire consumption, in case the consumer exceeds 5000 K.V.A., and failed to avail 33 K.V., supply. Aggrieved by the same, the petitioner sent a detailed reply to the third respondent explaining how the petitioner is not liable the penalty of 5/14 http://www.judis.nic.in W.P.No.25818 of 2018 10 paise per KWH, as their sanctioned demand is 4990 K.V.A., and the penalty clause is applicable only to those consumers whose sanctioned demand is 5000 K.V.A., and above and who do not avail the high tension supply at 33 K.V., or EHT voltage line, therefore, the same cannot be applied to the petitioner. In the representation, it has been further stated that for exceeding the sanctioned demand of 4990 K.V.A., the petitioner has been paying the demand charges at three times of the normal rate, namely, Rs.600/- per K.V.A., of the exceeded demand and Rs.300/- per K.V.A., of the recorded demand. Therefore, the petitioner requested the third respondent not to impose any penalty of 10 paise per KWH, as the third respondent had not pressed the petitioner to avail the 33 K.V., supply at any point of time before issuing the letter dated 1.3.2007 invoking penalty clauses. While so, to their shock and surprise, in the bill dated 30.3.2007, the third respondent has included the extra levy amounts in items 9 and 13 at three times of the normal tariff for exceeding the sanctioned demand and extra levy of 10 paise per unit over and above the normal tariff for the entire consumption for exceeding the sanctioned demand of 4990 K.V.A. Hence, W.P.No.12236 of 2007 was filed before this Court challenging the same. This Court, after perusing the documents filed by the petitioner and the respondents and after hearing both parties, allowed the writ petition quashing the proceedings dated 1.3.2007 and also the consequential demand in items 9 and 13 of the consumption bill dated 30.3.2007 in its order dated 6.10.2014. Aggrieved thereby, W.A.No.181 of 2015 was filed and the Hon'ble Division Bench 6/14 http://www.judis.nic.in W.P.No.25818 of 2018 in its order dated 7.11.2017 directed the petitioner to move the Ombudsman. Accordingly, an appeal in A.P.No.70 of 2017 was filed before the Ombudsman on 21.11.2017 with the relevant documents and the Ombudsman, without considering the provisions in the tariff order and Regulation 5(2)(1) of the Supply Code 2004, has passed the impugned order dated 27.8.2018.
4. Firstly, the Ombudsman, it is contended, has failed to adhere to the mandatory provisions contained in Regulation 22(3) of the Regulations for Consumer Grievance Redressal Forum and Electricity Ombudsman 2004, in disposing of the appeal within three months time. Secondly, by taking nine months to pass the order, the Ombudsman has exceeded the statutory limit without assigning any reason. When Regulation 5(2)(1) of the Supply Code 2004 demands that the petitioner has to pay thrice the normal rate for the exceeded sanctioned demand, levying and demanding another 10 paise per unit for the entire consumption of energy under tariff order 7.17 (1.0)(i) and (ii) from 3/2006 is illegal, arbitrary and the same amounts to unjust enrichment. Thirdly, the Ombudsman also failed to note that as per the tariff order, the petitioner should have availed 5000 K.V.A., as sanctioned demand and subsequently failed to avail 33 K.V., supply or extra high voltage supply and only then, the petitioner is liable to pay extra levy of 10 paise per unit for the entire consumption. When the petitioner had the sanctioned demand of 4990 K.V.A., with 11 K.V., supply as accorded by the second respondent, the petitioner is not liable to pay penalty. 7/14 http://www.judis.nic.in W.P.No.25818 of 2018 This has been ignored in the impugned order, hence, the impugned order is liable to be set aside. Further, the Ombudsman, in paragraphs 12.1 and 12.2, reached a conclusion against the tariff order dated 15.3.2003 and the Supply Code 2004, since he has ordered to pay two penalties for a single violation under paragraph 7.17(1.0)(i) and (ii) and Regulation 5(2)(1) of the Supply Code, 2004. The Ombudsman also failed to note that the third respondent is entitled to collect excess demand charges twice the normal rate on the exceeded demand only, instead of thrice the normal rate collected. For these reasons, the impugned order is liable to be set aside, he pleaded.
5. Mr.S.K.Raameshuwar, learned standing counsel for the respondents 2 & 3, supporting the impugned order passed by the fourth respondent, submitted that as per clause 7.17(1.0)(ii) of the Tariff Schedule relating to high tension supply, in the case of existing high tension consumers whose sanctioned demand exceeds 5000 KVA and who do not avail supply at the voltage indicated in item (1), they shall be charged an extra levy of ten paise per KWH over and above the normal tariff for the entire energy consumed and this extra levy is applicable to all categories of HT consumers till they avail supply at the specified voltage. As per the said clause, the petitioner is liable to pay the maximum demand charges for any month based on the KVA demand recorded in that month at the point of supply or such percentage of sanctioned demand as may be decided by the commission from time to time whichever is higher. The 8/14 http://www.judis.nic.in W.P.No.25818 of 2018 exceeded demand alone shall be charged double the normal rate as per Regulation 5(2)(1) of the Supply Code vide notification No.TNERC/SC/7/1 dated 21.7.2004. Adding further, the learned standing counsel also contended that when the petitioner has not only exceeded 5000 KVA, but also not availed the supply at the required voltage level of 33 K.V., their challenge to the impugned proceedings that they are not liable to pay ten paise per KWH over and above the normal tariff for the entire energy consumed, is liable to go. The learned standing counsel, explaining how the petitioner's billable demand and excess demand are billed, stated that when the actual recorded demand was 5448 K.V.A., consequent to the sanctioned demand of 4990 K.V.A., the actual recorded demand or 90% of the sanctioned demand whichever is higher is billed as the billable demand i.e., 5448 K.V.A. Therefore, the petitioner is liable to pay the demand charges for the actual recorded demand of 5448 K.V.A., multiplied by Rs.300/- equivalent to Rs.16,34,000/- and the demand charges for the exceeded demand shall be charged double the normal rate, namely, 548 x 600 = Rs.2,74,800/-. The levy of extra 10 paise per KWH over and above the normal tariff for the entire energy consumed for exceeding 5000 K.V.A., when the consumer who do not avail the supply at the required voltage of 33 K.V.A., is in accordance with the commission's tariff order dated 15.3.2003.
6. I also find merits on the submissions made by the learned standing counsel for the respondents 2 & 3, for the following reasons. When the 9/14 http://www.judis.nic.in W.P.No.25818 of 2018 petitioner has not only exceeded 5000 K.V.A., but also not availed the supply at the required voltage level of 33 K.V., the contention of the petitioner is contrary to clause 7.17(1.0)(i) and (ii) of the Tariff Schedule, which reads as follows:-
“7.17 Tariff Schedule Part-I High Tension Supply 1.0 General provisions applicable for High Tension Supply
(i) Any High Tension Supply involving a sanctioned demand above 5000 KVA plus 2 percent marginal adjustment shall be given supply only at 33 KV, if available in the area or at EHT voltage.
(ii) In the case of existing High Tension Consumers whose sanctioned demand exceeds 5000 KVA and who do not avail supply at the voltage indicated in item (i) they shall be charged an extra levy of ten paise per KWH over and above the normal Tariff, for the entire energy consumed. This extra levy is applicable to all categories of HT consumers till they avail supply at the specified voltage.” Consequently, the maximum demand charges for any month will be levied on the KVA demand actually recorded in that month or 90% of the sanctioned demand whichever is higher. Admittedly, when the actual recorded demand of the petitioner was 5448 K.V.A., consequent to the sanctioned demand of 4990 K.V.A., the actual recorded demand or 90% of the sanctioned demand whichever is higher is billed as the billable demand i.e., 5448 K.V.A. Therefore, the petitioner is liable to pay the demand charges for the actual recorded demand of 5448 K.V.A., multiplied by Rs.300/- equivalent to Rs.16,34,000/- and the demand 10/14 http://www.judis.nic.in W.P.No.25818 of 2018 charges for the exceeded demand shall be charged double the normal rate, namely, 548 x 600 = Rs.2,74,800/-. When the petitioner was sanctioned with the demand of 4990 K.V.A., the recorded demand of the petitioner from 03/2006 to 10/2007 reads as follows:-
Sl.No. Month Recorded Recorded Recorded Rs.0.10/0.0 Demand Energy Energy 2 paise per Total Peak unit plus E.tax 01 03/2006 5184 1828000 408300 200514 02 04/2006 5232 3292729 836820 363310 03 05/2006 5472 3482160 869160 383879 04 06/2006 5520 2787496 712479 307649 05 07/2006 5472 2323640 584454 256256 06 08/2006 5496 2737650 674549 301619 07 09/2006 5448 3268393 814653 360289 08 10/2006 5232 2574734 624212 283456 09 12/2006 5136 2947557 749756 325238 10 01/2007 5376 2655843 701002 293585 11 02/2007 5400 2282564 564817 251530 12 03/2007 5448 3275623 816255 361082 13 04/2007 5400 3267900 841560 360802 14 05/2007 5352 3257160 811260 359038 15 06/2007 5328 3488040 867120 384454 16 07/2007 5400 3362760 825960 370435 17 08/2007 5016 3214080 798180 354240 18 09/2007 5064 3257280 753480 357837 19 10/2007 5202 2498055 497100 272735 Grand Total 6147948
7. A reading of the above table clearly shows that when the petitioner 11/14 http://www.judis.nic.in W.P.No.25818 of 2018 has got a sanctioned demand of 4990 K.V.A., only, they have reached 5448 K.V.A., during the month of March 2007. Therefore, as rightly contended by the learned standing counsel for the respondents 2 & 3, the petitioner is liable to pay the billable demand and excess demand charges in accordance with the tariff order 7.17(1.0)(ii) and Regulation 5(2)(1) of the Tamil Nadu Electricity Supply Code and this has been rightly appreciated by the respondent Ombudsman. Hence, finding no merits whatsoever, the impugned order is confirmed and the writ petition stands dismissed with costs of Rs.10,000/- payable by the petitioner to the respondent-TANGEDCO within one week. Consequently, W.M.P.Nos.30029 & 30242 of 2018 are also dismissed.
Speaking/Non speaking order 28.08.2019
Index : yes/no
ss
To
1. The Secretary
Tamil Nadu Electricity
Regulatory Commission
19-A, Rukmani Lakshmipathy Salai
(Marshall Road), Egmore
Chennai 600 008
2. The Chairman and Managing Director
TANGEDCO
144, Anna Salai
Chennai 600 002
12/14
http://www.judis.nic.in
W.P.No.25818 of 2018
3. The Superintending Engineer
Virudhunagar Electricity Distribution Circle
TANGEDCO, Virudhunagar 626 001
4. The Tamil Nadu Electricity Ombudsman
19-A, Rukmani Lakshmipathy Salai
(Marshall Road), Egmore
Chennai 600 008
13/14
http://www.judis.nic.in
W.P.No.25818 of 2018
T.RAJA, J.
ss
W.P.No.25818 of 2018
28.08.2019
14/14
http://www.judis.nic.in