Himachal Pradesh High Court
M/S Prime Steel Industries vs Himachal Pradesh State on 28 January, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 28thDAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
.
CMP NO. 843 & 638 OF 2022 IN CIVIL WRIT PETITION No. 323
of 2022
Between:-
M/S PRIME STEEL INDUSTRIES
PRIVATE LIMITED, THROUGH ITS
CEO, VILLAGE BATED, BADDI,
BAROTAWALA ROAD,
BAROTIWALA, DISTRICT SOLAN,
H.P.-174103.
....PETITIONER
(BY SH. B.C. NEGI SR. ADVOCATE WITH SH. MANIK SETHI,
ADVOCATE)
AND
1. HIMACHAL PRADESH STATE
ELECTRICITY BOARD LIMITED
(HPSEBL), THROUGH ITS
M.D.,KUMAR HOUSE, VIDYUT
BHAWAN, SHIMLA, HIMACHAL
PRADESH-171004.
2. FRIENDS ALLOYS,
VILLAGE BATED, P.O. BAROTIWALA,
TEHSIL BADDI, DISTRICT SOLAN, H.P.
THROUGH ITS AUTHORIZED SIGNATORY
MR. SANJEEV SHARMA, S/O
LATE SH. DINA NATH, VPO HARETA,
TEHSIL GALORE, DISTT. HAMIRPUR
(H.P.) AGED 49 YEARS.
....RESPONDENTS
(SH. VISHAL THAKUR, ADVOCATE VICE SH.
VIKRANT THAKUR, ADVOCATE, FOR R-1.)
(SH. BIMAL GUPTA, SR. ADVOCATE WITH SH.
GURINDER SINGH PARMAR, ADVOCATE, FOR
APPLICANT IN CMP NOS. 843 OF 2022).
Reserved on: 24.1.2022
Date of decision: 28.1.2022.
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These applications coming on for orders this day,
Hon'ble Mr. Justice Satyen Vaidya, passed the following:
.
ORDER
Petitioner has approached this Court by filing CWP No. 323 of 2022, for following reliefs:-
"I. Issue a writ of mandamus directing the respondent to not give supply of electricity to others from the dedicated feeder of the petitioner by tapping the 132 KV dedicated line r of the petitioner.
II. Any other relief which this Hon'ble Court deems fit in the interest of justice."
2. Along with CWP No. 323 of 2022, petitioner has also filed an application for interim relief, bearing CMP No. 638 of 2022, to the following effects:-
"I. Pending the adjudication of the present petition, the respondent may be directed to not give supply of electricity to others from the dedicated feeder of the petitioner by tapping the 132 KV dedicated line of the petitioner, OR II. Pending the adjudication of the present petition, the respondent may be directed to maintain status-quo regarding the supply of electricity to others from the dedicated feeder ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -3- of the petitioner by tapping the 132 KV dedicated line of the petitioner."
.
3. Petitioner has based the reliefs in the main petition as well as in the application for interim relief, on the grounds that he is the sole owner of 132 KV dedicated feeder, provided by respondent-HPSEBL from Jharmajri-Barotiwala Sub Station.
Petitioner claims to be the owner of the said dedicated feeder on the basis of Sale Deed dated 7.3.2019, executed by the H.P. State Financial Corporation (HPFC) in its favour, in pursuance to an auction-purchase. Petitioner has laid specific reliance, to assert its above noted rights, on Clause 2 (vii) of the sale deed (Annexure P-1), which reads as under:-
"vii) The rights and entitlements of the said industrial units in respect of:
a. Existing NOC, consent to operate obtained from State/Central Pollution Control Board for production of MS Ingots/Billets (32000 MT and 60000 MT= total 92000MT), and TMT Bars, Angle, Channel etc (81600MT);
b. Existing connected power load of
19991.7 KW (say 20MW) along with
security and IDC deposited with the
Himachal Pradesh State Electricity
Board;
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c. Existing rights over private transmission
lines to 132 KVA Grid;
shall vest in the BUYER and the borrower .
companies shall be bound to execute the requisite documents in favour of the BUYER".
4. As per petitioner, the respondent-Board once continuously allowed dedicated feeder to the petitioner, cannot allow any other consumer to be connected through said feeder under the rules. Petitioner has contended that Central Electricity Authority has framed CEA (Measures relating the Safety and Electricity Supply) Regulations, 2010 and Sub-
clause (6) of Clause 44 of such regulations, prohibits tapping of another transmission line from the main line for 66 kV and above class of lines. In addition, petitioner has relied upon Sale Circular No. 3/2021, issued by the respondent Board, which according to petitioner, also prohibits such tapping.
5. On 11.1.2022, this Court passed an interim order in CMP No. 638 of 2022 to the effect that "In the meantime, operation of impugned order dated 30.12.2021 (Annexure P-5) shall remain stayed".
6. A company named "Friend Alloys" filed two separate applications in CWP No. 323 of 2022, being CMP No. 842 of 2022 and CMP No. 843 of 2022. CMP No. 842 of 2022 was filed ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -5- for impleadment of "Friends Alloys" as party respondent to CWP No. 323 of 2022, whereas, CMP No. 843 of 2022 has been filed .
for vacation/modification of orders/directions dated 11.1.2022, passed by this Court, as noticed above.
7. CMP No. 842 of 2022 stands allowed vide order dated 24.1.2022 and the applicant therein i.e."Friends Alloys"
has been ordered to be impleaded as respondent No.2 and, therefore, shall hereinafter to be referred to as respondent No.2.As per contention of Respondent No.2, its request for enhanced electricity demand has been proposed to be met by Respondent No.1 Board by using the supply line, which according to petitioner is its dedicated feeder. According to Respondent No.2, it has already made all the expenditures for installation of necessary equipment and machinery for the purpose and is also equipped with all necessary permissions and sanctions from competent authorities in that behalf.In these circumstances, Respondent No.2 is the necessary party and according to said respondent delay of each day is causing huge recuring losses to it, besides being put to inconvenience and harassment.
8. Petitioner opposed CMP No. 843 of 2022 by filing reply. Besides reiterating the grounds, as raised in CWP No. ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -6- 323 of 2022, petitioner has taken exception to the permission granted to respondent No.2, by respondent No.1 Board, to .
supply powers by using dedicated feeder exclusively claimed by the petitioner. It has been alleged by the petitioner that in case of respondent No.2, the Power Availability Certificate (PAC), issued by the respondent-Board is not in terms of "In Principle Approval" granted to respondent No.2 by the Directorate of
9. to Industries, through Single Window Clearance System.
As per petitioner, respondent No.2 was authorized by Single Window Clearance System to have additional load and additional contract demand at 66 KV supply voltage from 132/66/11 KV Jharmajri-Barotiwala Sub Station, whereas, PAC was issued at 132 KV supply voltage from 132/66/11 KV Jharmajri-Barotiwala Sub Station and such act of respondent Board has been said to be in variance with sanctioned approval by the Single Window. Petitioner thus, seeks to resist the action of respondent No.1 Board, in providing supply of electricity to respondent No.2, from the alleged dedicated feeder of petitioner. Additionally, the petitioner has alleged that allowance of the power supply to respondent No.2 from alleged dedicated feeder of petitioner will violate the grid descipline and ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -7- will considerably affect the quality of power supply to the petitioner, besides causing safety concerns.
.
10. In response to the averments made by respondent No.2, in CMP No. 842 of 2022 that the instant petition filed by the petitioner is not maintainable in view of pendency of CWP No. 6625 of 2021, filed by the petitioner against respondent No.1, involving identical question, it has been stated by the petitioner that the cause of action in CWP No. 6625 of 2021 is not the same as in the instant petition.
11. Respondent No.1 Board has also placed on record the detailed written instructions. It has been stated that the matter in issue, in CWP No. 6625 of 2021 and the instant petition is the same. Providing background of filing of CWP No. 6625 of 2021, respondent No.1 has stated that petitioner filed a complaint No.1454/3/19/042 beforethe Consumer Grievances Redressal Forum, (for short as 'CGRF'), constituted by respondent No.1 Board, with following prayers:-
"i) An order directing the Respondents not to cause any interference in the existing 132 KV Transmission Line emanating from 132 KV Sub Station Jharmajri which was provided to the exclusive use of M/s Sri Rama Steels Ltd.
and presently the right and entitlement over the same have been acquired and vested upon ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -8- the complainant company in terms of Sale Deed07.03.2019, by way of tapping the existing 132 KV dedicated Transmission line .
from 132 Sub-Station Jharmajri to the take off factory point of the complainant company in order to provide electricity supply to other consumers.
ii) An order directing the respondents not to release the power supply connection to any consumers from the existing 132 KV dedicated Transmission line from 132 KV sub-Station Jharmajri to the take-off factory point of the complainant company without the prior written permission of the complainant company and payment of line expenses in terms of HPERC (Recovery of expenditure for supply of Electricity) Regulations as have been amended up to date."
12. As per Respondent No.1, the CGRF on 20.8.2020, without expressing any opinion on merits,disposed ofthe complaint of petitioner with liberty to the parties to approach the Court of competent jurisdiction in the first instance to settle the claim and ownership and rights of parties in respect of the existing dedicated 132 KV transmission line emanating from 132 KV Sub Station, Jharmajri.
::: Downloaded on - 31/01/2022 20:12:37 :::CIS -9-13. It has also been contended by respondent No.1 Board that petitioner assailed the order of CGRF before the .
Electricity Ombudsman, by way of Complaint No. 37 of 2020.
The Electricity Ombudsman on 28.7.2021 decided the said complaint and the operative portion of the order passed by the Electricity Ombudsman reads as under:-
"1. The orders passed by the Consumer Grievance Redressal Forum on dated 20/08/2020 in Complaint No. 1454/3/19/042 dated 02/09/2019 are quashed and set aside.
2. The Respondent Board is hereby directed to intimate the complainant prior to any release of connection from the 132 KV dedicated transmission line emanating from the Jharmajri sub-station to the premises of the Complainant, the Complainant being the rightful owner of the same, and also keeping in view the 30% redundancy in the system as per provisions of the Regulations.
3. The Respondent Board is further directed to compensate the Complainant for the past (Already released to M/s Eastman Auto) and any subsequent release of connections from the 132 KV dedicated transmission line emanating from the Jharmajri sub-station to the premises of the Complainant on prorate basis alongwith interest @ 8% compounded ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -10- annually from the date of release of such connection till actually paid in line with provisions under Regulation 6 of Himachal .
Pradesh Electricity Regulatory Commission (Recovery of Expenditure for Supply of Electricity) Regulations, 2005.
4. In case of any subsequent release of connections from the 132 kv dedicated transmission line emanating from the Jharmajri sub-station to the premises of the Complainant keeping in view the 30% redundancy in the system, the said line shall qualify for the definition of common line in line with provisions under Clause 2.1.6.1 (B) specifically explanation given at the end of Fourth Proviso of Himachal Pradesh Electricity Supply Code 2009, in that case the Complainant shall be entitled to reimbursement of the full cost of the 132 kv transmission line emanating from Jharmajri sub-station to his premises.
5. The Respondent Board is further directed to report compliance of the above directions within a period of 30 days from the date of issue of this order but not later than 28/8/2021 positively failing which the matter shall be reported to the Hon'ble Commission for violation of directions under Regulation 37 (6) of Himachal Pradesh Electricity Regulatory ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -11- Commission (consumer Grievances Redressal Forum and Ombudsman) Regulations, 2013 for appropriate action by the Commission .
under the provisions of the Electricity Act, 2003.
6. The Complaint filed by M/S Prime Steel Industries Pvt Ltd., Village Bated, Baddi- Barotiwala Road, Barotiwala, District Solan, HP-174103 is hereby disposed of."
14. Respondent No.1 Board claims to have filed CWP No. 6625 of 2021, assailing the aforesaid order of Electricity Ombudsman and on 26.10.2021, this Court passed orders in CMP No. 12534 of 2021 in CWP No. 6625 of 2021, staying the operation, implementation and execution of the aforesaid orders, passed by the Electricity Ombudsman.
15. As per stand of respondent No.1 Board, notwithstanding the pending dispute as to ownership of 132 KV dedicated feeder, inter-se petitioner and respondent No.1, as per Clause 14.3 of "Abridged Condition of Supply" framed and notified by respondent No.1 Board, the line/equipment though paid for by the consumer, the whole of the service line, sub-
station together with wires, meters and other operatives on the similar terms shall be and remain the property of HPSEBL by whom it is to be maintained. In addition, HPSEBL also ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -12- reserved the rights to make use of such service line/equipment for extending power supply to other consumers in the vicinity or .
for any other purposes, as per Regulation No.11 of the HPERC (Recovery of Expenditure for Supply of Electricity), Regulations 2012, provided that it does not adversely affect the supply to the consumers. The respondent No.1 Board has also placed reliance on the aforesaid regulations, especially Regulation
16. to No.11, in order to support its contention.
As per respondent-Board, the total load bearing capacity of 132 KV supply line in question is 90 MVA. Already another consumer i.e. Eastman Auto and Power Ltd. stands provided supply from the said feeder and it has further proposed to supply the power to respondent No.2 from the said supply line. Taking cumulative loads of petitioner, Eastman Auto and Power Ltd. and respondent No.2, it becomes 40 MVA and after keeping redundancy of 30% space, line capacity of bearing 30% more load to any other consumer remains available, in case so required. The apprehension of the petitioner regarding disturbance of its supply, is stated to be fallacious, unfounded and technically not sustainable.
17. It has also been clarified by respondent No.1 Board that the electricity connection to the petitioner was released ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -13- only on 1.11.2019, whereas the statutory compliances for release of power connection in favour of respondent No.2 were .
completed prior thereto. In addition, connection of M/s Eastman Auto and Power Ltd. was released from the same supply line on 3.1.2020, to which the petitioner had raised no objection at all.
18. From the analysis of the aforesaid materials, the petitioner has failed to make out a prima-facie case for grant of interim relief in his favour. Sub-clause (6) of Clause 44 of CEA (Measures Relating to Safety of Electric Supply) Regulations 2010 does not help the petitioner since the same provides tapping of another transmission line from the main line for 66 KV and above class of line. Clause 2 (72) of Electricity Act 2003 defines transmission of lines as under:-
"(72) "transmission lines" means all high pressure cables and overhead lines (not being an essential part of the distribution system of a licensee) transmitting electricity from a generating station to another generating station or a sub-station, together with any step-up and step-down transformers, switch-gear and other works necessary to and used for the control of such cables or overhead lines, and such buildings or part thereof as may be required to accommodate such transformers, switch-gear and other works."::: Downloaded on - 31/01/2022 20:12:37 :::CIS -14-
19. Clause 2 (42) of Electricity Act 2003 defines main as under:-
.
"main" means any electric supply-line through which electricity is, or is intended to be, supplied".
20. The system through which, respondent No.1 proposes to provide electric connection to respondent No.2 from the dedicated feeder in question is not the transmission line and is, thus, not prohibited as alleged.
21. In addition, Regulation 11 of HPERC (Recovery of Expenditure for Supply of Electricity) Regulations, 2012 read with Clause 14.3 of the Abridged Condition of Supply framed by respondent No.1 Board, allows as many connections from one supply line as can be held on the capacity of such line, provided it does not adversely affect the supply of consumer. It has been clarified by respondent No.1 Board in its instructions that appropriate technical measures are being proposed to be adopted while connecting the proposed connection to respondent No.2 from the dedicated feeder in question and, thus, will not affect supply of the petitioner in any manner whatsoever. The capacity of supply line in question is stated to ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -15- be more than the requirement of the petitioner, respondent No.2 and any other consumers, as noticed above.
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22. The objections of the petitioner that the proposed connection to respondent No.2 from its dedicated feeder is prohibited by the provisions of Sale Circular No.3 of 2021, also cannot be used by the petitioner to claim the relief, as prayed for, by way of interim application. The relevant extraction of Sale Circular No.3 of 2021 reads as under:-
"Solid tapping of the HV/EHV lines should not be allowed. The proper control and protection switchgear at Toff points in case of the consumers eligible for joint feeder may be provisioned in order to avoid interrupting to other part of the HT/EHT lines in case of breakdown on Toff points onwards. This is also required in order to comply with direction of the HPERC, the reliability indices as per Standard of performance Regulations and to implement SCADA System for remote control and line load flows monitoring"
Further, Sub-Regulation -6 of Regulation 44 of Central Electricity Authority (CEA) Regulations of Measures Relating to Safety and Electric Supply, 2010 provides as under:
"There shall not be taping of another transmission line from the main line for 66 KV and above class of lines."
::: Downloaded on - 31/01/2022 20:12:37 :::CIS -16-23. From reading of aforesaid circular, it transpires that what is prohibited is solid tapping, which means tapping of .
lines in such a manner, which may affect the entire supply line, without installation of appropriate technical equipment to save such instances. It is not that installation of appropriate technical equipment, to save other consumers from the loss of transmission of supply, cannot be allowed. As noticed above, Regulation-11 of HPERC(Recovery of Expenditure for Supply of Electricity), Regulations 2012 and Clause 14.3 ofthe Abridged Condition of Supply allows the grant of more than one connection on a single line, provided it does not affect the supply of another consumer. All the provisions of Electricity Act, Rules and Regulations framed thereunder have to be read conjunctively and purposively.
24. The petitioner has though tried to point out discrepancies between the sanction granted to respondent No.2 by Single Window, vis-à-vis, the consequent PAC. Perusal of these documents, especially Clause 18 of the PAC negates the assertion raised by the petitioner. Clause -18 of PAC reads as under:-
"18. The power for a load to addl. Load of 5801 kw making total load of 9000 kw wih 4322 kva addl. Contract demand making total contract demand of ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -17- 7743 kva contract demand can be made at 132 kv supply voltage from 132/66/11 kv sub-station Jharmajri through 132 kv dedicated/joint dedicated .
feeder after re-organization of existing system at the cost of the consumer. The recovery of expenditure for supply of electricity shall be as per HPERC (Recovery of expenditure for supply of electricity) Regulation 419/2012."
25. Nothing has been specifically brought on record by the petitioner to support its contention that the allowance of connection to respondent No.2 from supply line in question will have adverse effect in supply to the petitioner. On the other hand, sufficient material has been placed by the respondents, especially respondent No.1 to show that the apprehension, if any, of the petitioner in this regard is without any basis.
Moreover, no such objection was raised by the petitioner, when another consumer, as noticed above, was connected with the same supply line, whereafter both i.e. petitioner and said consumer have been enjoining the electric supply to their respective industries without any complaints.
26. Thus, petitioner has failed to make out a prima facie case for grant of interim relief in his favour. Petitioner is not likely to suffer any irreparable loss or injury in case of denial of interim relief. On the other hand, respondents shall be put to ::: Downloaded on - 31/01/2022 20:12:37 :::CIS -18- irreparable loss and injury in case of grant of interim relief, as prayed, in favour of the petitioner, as in absence of provision of .
additional load required by respondent No.2, the respondents shall be put to recuring financial losses besides causing loss of additional industrial output/production and resultant National loss.
26. In view of the above discussions, CMP No. 843 of 2022 is allowed.
638 of 2022 is vacated.
r to Order dated 11.1.2022, passed in CMP No. CMPs No. 638 of 2022 is accordingly dismissed and disposed of.
List CWP No. 323 of 2022 along with CWP 6625 of 2021 on 21.2.2022.Respondents to submit their replies on or before next date.
(Satyen Vaidya)
28th January, 2022 Vacation Judge
(kck)
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