Madras High Court
M/S.Madura Coats Ltd vs Tamil Nadu Electricity Board on 13 August, 2013
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13/08 /2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.7748 of 2001 M/s.Madura Coats Ltd., by its Vice President at New Jail Road, Madurai-625 001. ... Petitioner Vs. Tamil Nadu Electricity Board, by its Chairman at 800, Anna Salai, Chennai - 600 002. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records connected with letter No.SE/Comml./EE(T)/CR.7/2001 dated 29.03.2001 of the Chairman, Tamil Nadu Electricity Board, the respondent herein and quash the said order and consequently to direct the respondent to reverse the adjustment of Rs.98,79,707/- in HT SC 90 and refund the said amount with interest at 24% per annum from 28.12.1994 till date of payment. For Petitioner : No appearance For Respondent : Mr.P.Gunaraj - - - O R D E R
The writ petitioner filed an affidavit and revealed the facts of the case as follows:-
The petitioner is the Vice President-Legal & Company Secretary of M/s.Madura Coats Ltd. The petitioner Company is a manufacturer of textile at various places and also runs an Export Oriented Unit at Ambasamudram, Tirunelveli District. The Textile Mill was established at Papavinasam which has been drawing High Tension Supply since 1941 for its exclusive use for the purpose of light and power under connection to HT SC 2 from the Tamil Nadu Electricity Board. The petitioner Company has signed various agreements with the respondent herein / TNEB for drawing High Tension Supply. The latest agreement, in renewal, was signed on 15.10.1980 pursuant to which the respondent sanctioned an additional load of 1500 KVA over and above the permitted demand of 7500 KVA, resulting in a sanctioned demand or contracted load for the said unit at 9000 KVA. The agreement was for an initial period of 10 years and remains in force till date with the consent of both the parties. The petitioner uses electrical energy for industrial purpose in order to run its motor, pumps etc., which eventually runs the machinery and also for non-industrial purposes for lighting and other associated activities. The supply of electrical energy under the agreement is governed by the provisions of the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948, provisions of the tariff, scale of miscellaneous and other charges and the terms and conditions of supply prescribed by the respondent from time to time.
2. For the Export Oriented Unit (EOU), at Ambasamudram, the petitioner Company has signed an agreement dated 29.10.1994 with the respondent for drawing a maximum demand of 2300 KVA under connection HT SC 90. The petitioner was extended concession tariff for this connection in terms of GO No.35, Energy (A-2), dated 01.03.1994 under which new high tension industries set up after 03.05.1989, in areas other than the Madras Metropolitan Areas were entitled to concessional tariff for the first three years.
3. The Tamil Nadu Government by G.O.Ms.No.2341-PWD, dated 29.11.1982 introduced certain amendments with effect from 01.12.1982 to the Schedule to the Tamil Nadu Revision of Tariff Rates on Supply of Electrical Energy Act, 1978. As per the amendment, in all cases of High Tension Supply under High Tension Tariff-I, the connected load under 'lighting and non-industrial purposes' is restricted to 5% of the approved demand, where approved demand is more than 5000 KVA. If the load is within the prescribed limit, the consumption in the service is to be charged at High Tension Tariff-I. Any excess load above the prescribed limit is to be charged under High Tension Tariff-VII. The consumer is required to utilize the energy for 'lighting and non-industrial purposes' for the bona-fide purpose of the factory and its industrial activities. The Chief Engineer is designated the final authority for deciding the bona-fide nature of these purposes. As the approved demand for the petitioner's connection under HT SC 2 was 9000 KVA, the prescribed limit for "lighting and non-industrial purposes' cannot exceed 450 KVA or 436.5 KW calculated at a power factor of 0.97. It is thus clear that only the excess load upto the prescribed limit would be charged under High Tension Tariff VII and the Chief Engineer alone is the final authority for deciding the bona-fide use under the said purpose.
4. Since the change in procedure specified under G.O.2341 was not clear enough and correctly understood by many H.T. consumers and representations were received from the CII, Chambers of Commerce and others citing cases where respondent started charing higher HT Tariff where 'lighting and non-industrial loads' were not separately metered, the respondent has issued a press release notifying under B.P.(FB) Ms.No.35, dated 22.07.1988. The fresh release spells out what type of load would constitute 'industrial' 'non-industrial', or 'lighting' in a HT service connection. It is clarified, inter-alia that in addition to machinery and equipment, air conditioners and wall plugs in shop floor, office, laboratory and computer rooms and lighting loads forming an integral part of any machinery / equipment are to be treated as "industrial load". All other loads such as residential load, street lighting, canteen, school etc. are to be treated as 'non-industrial load'. The 'lighting load' will include fans, yard lighting, security lighting and all lighting in the shop floor, office, laboratory etc. The respondent through the said press release has also explained the method for deciding the tariff as "industrial load' simpliciter is called category 'A', lighting and non-industrial load' metered along with 'industrial load' is called category 'B'. 'Lighting and non-industrial load' metered separately is called category 'C'. Category 'D' covers pure domestic load metered separately. It is explained that where sum total of categories 'B + C' is more than the prescribed limit of 5%, but category 'B' alone does not exceed the prescribed limited, then the energy charges for categories 'A + B' will be billed under HT Tariff-I for category 'C' under L.T. Tariff VII. The Superintending Engineer of all distribution circles were advised to arrange immediate inspection of HT service connections and ascertain the load under various categories. It was clarified that the directions contained in the press release would apply to all past cases which had arisen on or after 01.12.1982 when the amended tariff took effect.
5. The petitioner received a letter from the respondent dated 30.01.1989 wherein, the respondent referred to an inspection of petitioner's connection H.T. SC 2 by the Anti Power Theft Squad (APTS) of the respondent during December 1987 and had reported that the 'lighting and non-industrial load' was 473.55 KW at the time of inspection and the same was above the permissible limit of 382.5 KW as incorrectly assumed. The respondent relied on the letter dated 22.12.1987 written by the petitioner to the Assistant Divisional Engineer, Anti Power Theft Squad, wherein details of 'lighting and non-industrial load' were provided as directed and in the manner required by the respondent. The respondent adopted a power factor of 0.85 to arrive at the permissible limit of 'lighting and non-industrial load' at 382.5 KW. The respondent in the said letter submitted a revised bill under H.T. Tariff-VI for the period 01.12.1982 to 10.04.1988 for an amount of Rs.98,79,707/- and demanded the payment from the petitioner. The respondent totally ignored another letter written by the petitioner dated 03.12.1988 addressed to the Superintending Engineer of the respondent wherein the petitioner had clarified that the respondent should consider "Air Conditioners" and "Wall plugs: installed in the manufacturing area as part of 'industrial load' and not under 'lighting and non-industrial load' as per the respondent's press release dated 22.07.1988 which had clarified this aspect. The petitioner in the letter provided revised working of load under 'lighting and non-industrial purposes' under category 'B' which came to 403.25 KW, well within the permissible limit of 436.5 KW computed at a power factor of 0.97. The respondent has not applied the correct power factor of 0.97 for the petitioner's connection and hence, incorrectly calculated the permissible limit under category 'B'. In a subsequent letter dated 04.11.1994, the respondent has acknowledged that the correct power factor is 0.97 for HT SC 2. The respondent also ignored the observations of the Assistant Executive Engineer (Distribution), in his letter dated 21.11.1988 addressed to the Executive Engineer, clarifying that the petitioner's 'lighting and non-industrial load' as per physical verification on 21.11.1988 was only 341.80 KW and it was possible that the Anti Power Theft Squad may have taken 'air conditioners' as lighting loads at the time of inspection. The demand of Rs.98,79,707/- based entirely on the premise that the petitioner exceeded 'lighting and non-industrial load' under category 'B' on certain dates beyond the permissible level is therefore, clearly erroneous and unsustainable. Rightly therefore, the respondent never pursued the demand further and the petitioner naturally assumed that the matter was closed.
6. However, after a long gap of more than 5 years and 9 months, the respondent vide its letter dated 04.10.1994 while considering the petitioner's application for bifurcation of a portion of load (1000 KVA) for its Water Mill Unit at Ambasamudram, again demanded the said sum of Rs.98,79,707/-. Thereafter, the respondent, by subsequent letter dated 04.11.1994 proceeded to adjust the said demand of Rs.98,79,707/- against the amount sanctioned to the petitioner by the respondent by way of Tariff concessions in respect of the Export Oriental Unit in HT SC 90. The adjustment in this fashion was confirmed by the respondent by letter dated 26/28.12.1994 issued as 'final order' in respect of HT SC 2 and letter dated 26/28.12.1994 issued in respect of HT SC 90. The action of the respondent is arbitrary and illegal. In the letter dated 04.11.1994, the respondent stated that the petitioner had segregated the loads under each category on different dates i.e., on 11.04.1988, 22.11.1988, 17.02.1989 and 08.03.1989, but the revised test reports were taken on 21.11.1988, 17.02.1989 and 08.03.1989. The respondent concludes from the above that the 'lighting and non-lighting load' of the petitioner under category 'B' alone had exceeded the permissible limit of 450 KVA upto 10.04.1988.
7. The petitioner further submits that it is surprising that the respondent arrived at the conclusion that the petitioner be charged H.T. Tariff VI/VII for the entire period from 01.12.1982 to 10.04.1988 on the ground that the petitioner was found to exceed 'lighting and non-industrial load' under category 'B' on the date when the revised test reports were taken in 1988 and 1989. It is submitted that the petitioner never exceeded the 'lighting and non-industrial load' under category 'B' on any of the said dates relied upon by the respondent and that the respondent cannot in any event charge the petitioner the higher tariff retrospectively for the period starting on 01.12.1982 based on inspection done 6 years later. The petitioner submits that in terms of the revised test reports dated 05.10.1987, which was conducted in the presence of the Junior Engineer, TNEB as well as before the inspection of Anti Power Theft Squad conducted in December 1987, it was recorded that the 'lighting and non-industrial load' under category 'B' was 369 KW, which is well within the prescribed limit. The so-called final orders of the respondent communicated in the letter dated 28.12.1994 recognized the revised test reports dated 05.10.1987, but proceeded to charge the entire load under H.T. Tariff VI/VII retrospectively from 01.12.1982 to 04.10.1987 on the assumption that the petitioner's mill exceeded the 'lighting and non-industrial load' for this entire period. The petitioner further submits that the basis adopted by the respondent in arriving at such an illogical conclusion is not clear.
8. The petitioner further submitted that the respondent in its letter dated 28.12.1994, had stated that the original assessment was revised due to the petitioner exceeding the permissible limit of 'lighting and non-industrial load' for the period 01.12.1982 to 10.04.1988, taking into account the revised test reports of 05.10.1987. The respondent had then stated that for the period from 01.12.1982 to 04.10.1987, i.e., the day before taking of revised test reports dated 05.10.1987, the entire load should be brought and billed under H.T. Tariff VI/VII treating that there had been excess 'lighting and non-industrial load'. The respondent tried to support its conclusion with reference to the instructions given in last para of BP (FB) MS.No.35, dated 22.07.1988. The petitioner submits that the B.P. does not contain any such instruction nor can such an instruction be ever sustainable. It is submitted that when the revised test reports dated 05.10.1987 recorded that the petitioner was well within the permissible limit and since there was no prior test report nor any inspection by the respondent nor any other basis to suggest that the petitioner exceeded the prescribed limit, it militates against propriety and justice for the respondent to proceed on an arbitrary assumption that the petitioner exceeded the prescribed limit right from 01.12.1982 to 04.10.1987. It is further submitted that even in terms of subsequent revised test reports dated 16.08.1988, 21.11.1988, 17.02.1989 and 08.03.1989 and the position recorded by the respondent on 11.04.1988 in its letter dated 04.11.1994, the connected load for 'lighting and non-industrial purposes' under category 'B' was well within the prescribed limits of 436.50 KW calculated at a power factor of 0.97.
9. The petitioner produced below summary of recorded 'lighting and non-industrial load' as per the various revised test reports, all below the permissible limit of 436.50 KW:-
RTR No.175604 dated 05.10.1987 369.00 KW APTS Inspection dates: 403.25 KW (10.12.87, 16.12.87, 21.12.87 and 22.12.87) Position recorded by the respondent 360.33 KW (as on 11.04.1988 vide letter dated 04.11.1994) RTR No.151305 dated 16.08.1988 341.96 KW RTR No.224653 dated 21.11.1988 314.22 KW RTR No.224665 dated 17.02.1989 314.22 KW RTR No.138957 dated 08.03.1989 362.41 KW Even assuming, though denying, that the petitioner exceeded the 'lighting and non-industrial' load on certain dates as alleged, it is only in respect of the excess load alone and not on the entire load that too in respect of the dates when the inspection was carried out that the respondent could charge higher tariff.
10. The petitioner further submits that it is relevant to mention that this Court, by its order dated 18.04.1995 in W.P.No.6397 of 1989 and others in the matter of Tea Estates India Ltd. Vs.Tamil Nadu Electricity Board has held:-
"If segregation is possible, only the excess alone should be charged under the higher rates. Segregation can no doubt, be done by having a separate meter. It does not however, mean that if there is no separate meter to record the "lighting and non-industrial load" it should be presumed that the segregation is not possible. Even in such cases, segregation is possible on a physical and visual verification of the various loads. Therefore, whenever, after such segregation it is found that the consumer has exceeded, the 15% (in the present case 5%), it is only the excess which should be charged at a higher rate, namely, High Tension tariff or any other rate. It is also prescribed that the Chief Engineer alone is the final authority to decide on the excess over 15 percent (5% in the present case)."
It is, therefore clear that the Department can charge only the excess load i.e., excess above the permissible limit, at a higher rate and the Chief Engineer alone is the final authority to decide on the excess over the prescribed limit. It is submitted that even assuming, though denying, that the petitioner's unit did exceed the prescribed limit under Category 'B', the respondent can charge a higher tariff for the excess load alone and only in respect of the dates on which the respondent allegedly discovered that the petitioner exceeded the prescribed limit and not for any prior period retrospectively and this can be done only after the Chief Engineer verified the loads and reported variations in load, if any. It is submitted that till date, the Chief Engineer has not visited the petitioner's mills for verifying or recording the load and deciding if ever the prescribed limit was exceeded by the petitioner. It is submitted, without prejudice, that the respondent cannot pass any fresh or final orders or demand or adjust or recover any amount in respect of the period 01.12.1982 to 10.04.1988 until the Chief Engineer carries out the inspection of the petitioner's mill and submits a report on the various loads.
11. As the petitioner was justifiably aggrieved by the action of the respondent in illegally and arbitrarily demanding and unilaterally adjusting the sum of Rs.98,79,707/- against the concession sanctioned to the EOU Unit, the petitioner wrote several letters to the respondent and met its senior officers and urged them to reverse and set-aside the said illegal and arbitrary demand and adjustment. The petitioner's representatives met in person, the then Chairman of the respondent on 20.03.1997.The Chairman promised the petitioner that its representation would be disposed of in accordance with the High Court's directions in the Tea Estates case provided the petitioner undertake to abide by the High Court decision and further undertake not to contest the issue in the Court. The officers of the respondent kept promising the petitioner that its rightful claim would be favourably looked into soon. The petitioner's officials met the Member (Distribution) and the Executive Engineer (Tariff) of the respondent on 23.07.1988 and 21.12.1998, respectively at Chennai. The petitioners were advised that a final decision was under the respondent's consideration. The petitioner presented a detailed representation dated 22.07.1988 to the Chairman of the respondent and subsequently on 24.08.1999 and 06.10.1999 met in person the Member (Distribution) of the respondent. The respondent, as always, again represented to the petitioner that a final decision is to be taken soon by the respondent's Board.
12. The petitioner, therefore, wrote to the respondent on 16.02.2000 requesting the respondent's Chief Engineer to verify the load under 'lighting and non-industrial purposes'. The respondent by letter dated 08.03.2000 referred to the petitioner's representations dated 26.07.1999 and 16.06.2000 and stated that it was considering similar such cases on the basis of billing procedure adopted in the case of 14 Tea Estates of Udumalpet Electricity Distribution Circle as per High Court orders. The respondent felt that such reconsideration would open up venues for representations from other similarly placed consumers and as such required study of full implication before taking any decision. The respondent further stated that it had called for certain details from the Superintending Engineers / Distribution Circles and was awaiting their reports. The respondent assured that on receipt of details from all the circles, the matter would be examined and the petitioner would be informed of the decision in due course. The petitioner by letter dated 6th April, 2000, solicited an early decision on the subject.
13. Since there was no response from the respondent for over eight months, in communicating any decision as promised, the petitioner was obliged to file W.P.No.20163 of 2000 for mandamus directing the respondent to dispose of the various representations of the petitioner as assured by the respondent in its letter dated 08.03.2000 within a time to be fixed by this Court. In the affidavit in support of the writ petition, the petitioner submitted that the action of the respondent in demanding and subsequently adjusting the sum of Rs.98,79,707/- against concessions property allowed to the petitioner by the respondent in respect of EOU mill is illegal, arbitrary and unjustified and is also violative of the principles of natural justice and that the respondent be directed to consider and decide the matter as promised, in the light of rulings of this Court and the detailed representations made by the petitioner on 26.07.1999 and subsequently resting with the petitioner's letter dated 16.02.2000. This Court, on 30.11.2000 ordered notice to the counsel for the respondent. After service of notice to the respondent through counsel, the matter came up for orders before Court on 04.01.2001 and after hearing both sides, this Court made the following order on 04.01.2001:-
"There will be a direction to the respondent to dispose of the representation of the petitioner dated 06.02.2000 and 08.03.2000 within a period of six weeks from the date of receipt of the copy of this order in accordance with law and earlier directions of this Court."
By letter dated 10.01.2001, the petitioner sent a certified copy of the order of this Court and it was received by the respondent on 18.01.2001.
14. It is respectfully submitted that the reference to the representation of the petitioner dated 06.02.2000 and 08.03.2000 would appear to be a typographical error. As seen from the order itself, the letter dated 08.03.2000 is that of the respondent addressed to the petitioner. The petitioner's representation to the respondent is dated 16.02.2000. Both these letters, one by the petitioner and the other by the respondent, refer to the petitioner's earlier detailed representation dated 26.07.1999. It is submitted with respect that the direction given by this Court, in effect and substance, is to dispose of the representations made by the petitioner to the respondent on the subject matter. The subsequent correspondence between the parties, viz., the respondents letters dated 19.01.2001 and 27.01.2001 and the petitioner's letter dated 30.01.2001 would make the position clear. Thereafter, the petitioner was asked to appear before the S.E's Office, TNEB, Tirunelveli on 23.02.2001 and then the officers of the petitioner appeared before the Chief Engineer and made submissions. At the request of the Chief Engineer, a written submission was sent by the petitioner on 23.02.2001 reiterating the petitioner's representations and contentions. This was followed up by a reminder dated 4th April 2001.
15. Thereafter, the petitioner received on 09.04.2001 Letter No.SE/Comml./EE(T)CR-7/2001 dated 29.03.2001 from the Chairman, TNEB, by which the relief sought for by the petitioner were rejected in these terms:-
"Now on receipt of Court direction an enquiry was conducted by Chief Engineer / Tirunelveli on 23.02.2001 in the presence of the Vice President - Legal, Company Secretary and three Electrical Engineers of your Company. In the said enquiry your have produced one letter dated 23.02.2001. The contents of the letters are nothing new but only repetition of the contents of previous letters only.
In view of the position explained above, it may be seen that all efforts were taken by TNEC to dispose of your representations by giving due consideration and after verification of factual position then and there and the bona-fide was carefully studied by the Chief Engineer / Chairman's office and the assessment was made as per G.O.2341, dated 29.11.1982 and as per B.P.Ms.No.35, dated 22.07.1988.
Hence, the question of inspection by Chief Engineer again does not arise as factual position will not differ".
This communication refers to the fact that no representations dated 06.02.2000 and 08.03.2000 have been received by the Board, but refers to the representations of the petitioner dated 16.02.2000 and 26.07.1999 and the discussions that the petitioner's representatives had with the Chief Engineer on 23.02.2001 and the written representation presented at his request. But the main question raised by the petitioner, viz.,
(a) The legality of the enhanced tariff imposed for the period 01.12.1982 to 10.04.1988 based on the inspection by APTS on four days during the period 10.12.1987 to 22.12.1987;
(b) Non compliance with the directions given in the ruling of this Court in the Tea Estates Case regarding segregation of the load on physical and visual verification by the constitution authority, viz., the Chief Engineer; and
(c) The non-compliance with the directions in the said ruling that in the case of excess usage of lighting and non industrial load beyond the permissible limit, the higher rate could be charged only on the excess alone and not on the entire lighting and non-industrial consumption;
have not been considered or disposed of.
Thus, the order of the respondent does not dispose of the main claims and contentions raised by the petitioner in his representation as directed by this Court and it is submitted that the disposal does not amount to a decision on the questions raised.
16. The petitioner submits that the impugned order of the respondent dated 29.03.2001 is illegal, arbitrary and capricious and does not dispose of the real controversy between the parties and is vitiated by several errors apparent on the face of the record and it is, therefore, liable to be quashed by this Court.
17. The respondent in his counter has submitted that the petitioner is running a Textile industry at Vickramasingapuram for which 9000 KVA demand has been sanctioned and assigned with HT SC No.2. Also the petitioner is having another Textile Oriented Industry for which 2300 KVA has been sanctioned initially and assigned with HT SC No.88 (Old HT SC No.90).
18. The respondent submits that High Tension Service Connection No.2, M/s.Madura Coats Limited was effected on 25.08.1948. The present sanctioned Demand is 9000 KVA. The latest Agreement executed by the petitioner for effecting Additional Demand of 1500 KVA was accepted on 15.10.1980. The agreement will remain in force until it is terminated by either party as provided in the Terms and conditions of supply of Electricity. The petitioner has utilized the electrical energy for running his Textile Industry. The respondent further submits that the petitioner owns another Mill at Papanasam Main Road. Ambasamudram for which power supply has been given for a sanctioned Demand of 2300 KVA and assigned with HT SC No.88 (Old HT SC No.90) The Tariff concession was allowed for the said service for three years.
19. In Government Notification GOMS No.2341 dated 29.11.1982 orders have been issued revising the Tariff-I rates. In BPMS (FB) No.35, Administrative Branch dated 22.07.1988 orders have been issued taking into account the views of the confederation of Engineering Industry - Chamber of Commerce classifying the loads that may be billed under lighting and non-industrial loads for regulating the claims. For deciding the tariff applicable the following classification of loads has been ordered:-
1) Total Industrial load 'A' 2) Lighting and Non-industrial which are metered only along with 'A' and not through one one more sub-meters if any 'B' 3) Total lighting and non-industrial lands which are metered through one or more sub-meters if any 'C' 4) Purely Domestic load 'D'
20. The respondent further submits that according to Terms and Conditions of supply of Electricity, and instructions issued subsequently, the permissible limit of lighting and non-industrial load of HT SC No.2 of the petitioner, by adopting 0.85 Power Factor for 450 KVA i.e., 5% of 9000 KVA is 382.5 KW. The classification of loads utilized in the petitioner HT SC No.2 is in accordance with the instructions issued. Based on the guide lines of Tamil Nadu Electricity Board and after taking into consideration of segregations of various load and Test Report dates after inspection, assessment has been made with revised calculation as per Board instructions.
21. In BPMS (FB) No.35 Administrative Branch dated 22.07.1988, orders have been issued taking into account of the views of the confederation of Engineering Industry, Chamber of Commerce for classifying the loads under lighting and non-industrial loads. As instructed by the Board, the Anti Power Theft Squad Wing of Tirunelveli Circle have inspected premises of the petitioner and offered their reports as per the guidelines issued in the BPMS (FB) No.35, Administrative Branch dated 22.07.1988.
22. The respondent submits that Anti Power Theft Squad commenced inspection after notice in writing. The petitioner has been properly informed of the fact of the inspection conducted by the Anti Power Theft Squad during December 1987 in letter dated 30.01.1989 and excess availing of lighting and non-industrial load above the permissible limit has also been intimated.
23. The respondent further submits that under Board's Terms and Conditions of Supply of Electricity, consumer is to maintain power factor at 0.85 lag and above nearer to unity. According to terms and conditions of supply of Electricity the permissible lighting and non-industrial load by adopting 0.85 Power Factor for 450 KVA i.e,. 5% of 9000 KVA at 0.85 power Factor is 382.5 KW (9000 x 5/100 x 0.85). Therefore, the Bills already rendered under HT Tariff-I has been revised at HT Tariff VI rate for the period 01.12.1982 to 10.04.1988 and an amount of Rs.98,79,707/- has been assessed. The Inspection Team who have inspected the service of the petitioner has confirmed that the Air Conditioners which are all the units mentioned in category 'B' under clolumn (4) were only the Air Conditioners included in the inspection report. In the petitioner's letter dated 03.12.1988, nine air conditioners were furnished against spinning mill of which three are quoted against Engineers office. Further, no wall plugs have been reckoned as connected load by the Inspection Team. During the Inspection of Anti Power Theft Squad, 35.65 KW of lighting and Power loads were found at Industrial canteen. However, the power loads were not accounted against lighting and non-industrial load. But as per BPMS 35 dated 22.07.1988, the Power loads of the canteen might have been treated as non-industrial load. Hence, the load of 35.65 KW found by Anti Power Theft Squad or 33.92 KW disclosed by the petitioner immediately after issue of BPMS No.35, dated 22.07.1988 has been considered and incorporated in the category B.
24. The respondent further submits that after receiving demand from respondent, petitioner herein submitted that power factor maintained by him was 0.97 lag and requested to revise demand by increasing ratio of lighting load to industrial load to his advantage. It was accordingly complied with. The power factor of 0.97 was considering to arrive at the permissible limit only to express that even after such adopting (maximum power factor), the consumer had exceeded the limit. But as per terms and conditions of supply of Electricity, as per BP Ms.780, dated 02.06.1977, a standard power factor of 0.85 has only to be considered upon and under such consideration, the permissible limit works out to 382.50 KW which clearly shows that the petitioner had exceeded the permissible limit. It is very clear and beyond doubt that even from the own statement of the petitioner, he has exceeded the permissible limit of lighting and non-industrial load. As such, the assessment of Rs.98,79,707/- already made is in order and the petitioner is bound to pay the above legitimate amount for exceeding the permissible limit. The inspection of APTS was conducted during December 1987 and at the time of inspection, excess lighting and non-industrial load above the permissible limit was found. The Assistant Executive Engineer / Distribution / TNEB / Vickramasingapuram had inspected the above HT SC during 11/88 i.e., after nearly one year after the inspection of APTS. Before that time the loads in the premises have been removed. Regarding the Air-conditioners, all the units mentioned in category 'B' under column (4) were only the air-conditioners included in the inspection report of APTS. In the petitioner's letter dated 03.12.1988, nine air-conditioners were furnished against Spinning Mil of which three are quoted against Engineer's office. Further, the loads checked by the APTS, the power load of 25.726 KW found actually connected in the canteen on 22.12.1987 were treated as Industrial load and hence were not taken into account as non-industrial load. At the time of verification of load on 22.12.1987, the APTS physically checked 15 air conditioners and included them in category 'B'. The air-conditioners in office, Laboratory and computer room have been treated as industrial load.
25. The petitioner has been informed in letter dated 04.11.1994 to pay the amount assessed towards charges for availing excess lighting and non-industrial load over and above the permissible limits which is bound to be paid by the petitioner. The petitioner has also been intimated of the fact of adjusting the balance amount duly worked out by deducting the amount for the period from 17.02.1989 to 28.02.1994 for which revised test report have been obtained and adjusting the net due from the tariff concession allowed to HT SC No.88 (old No.90) the other HT service standing in the name of the above consumer.
26. As per para 12 of BP MS (FB) No.35 Admn. Br dated 22.07.1988, all past cases which have arisen on or after 01.12.1982 have to be reviewed and billed for availing excess lighting and non-industrial load. The petitioner has exceeded the load under lighting and non-industrial load as per the inspection of APTS and the assessment made is in accordance with the instructions issued in the BP MS (FB)No.35, Adm Br, dated 22.07.1988. The load recorded in the RTR dated 05.10.1987 may be within the permissible limit and prior to the RTR dated 05.10.1987, there was no RTR. Hence, the report of APTS has been taken which has confirmed the excess lighting and non-industrial load availed by the petitioner.
27. The respondent further submits that the petitioner had segregated the loads under each category on different dates i.e., on 11.04.1988, 22.11.1988, 17.02.1989 and 08.03.1989 but revised test reports were taken only on 21.11.1988, 17.02.1989 and 08.03.1989. Test report is the basic authority to ascertain the details of loads connected and date of connection of such loads. It is evident from the above that the lighting and non-industrial load of the petitioner under category 'B' alone had exceeded the permissible limit upto 10.04.1989. Even though it has been reported that some non-industrial loads under category 'B' has been segregated and separate meter has been installed on 11.04.1988, it is pointed out that no revised test report was taken on that date. As per Boards Terms and Conditions of Supply of Electricity the recorded load in the test report has been taken into account only from the date of test report and load has been ascertained from the date of test report.
28. The respondent further submits that for considering this case on par with this Court orders dated 18.04.1995 in W.P.No.6397 of 1989 and others in the matter of 14 Nos Tea Estates, it is stated that the ratio decided by the Court in respect of 14 Nos. Tea Estates cannot be applied to the other consumers.
Regarding the petitioner's request for inspection of service connection by the Chief Engineer to decide the excess over lighting load it is stated that as per G.O.Ms.No.2341, PWD, Electricity Department, dated 29.11.1982, the Chief Engineer shall be the final authority in deciding the bona-fide nature of lighting and non-industrial load. In the petitioner's assessment the Chief Engineer of the Chairman's office, who called for the details available under various inspection reports, revised test report, APTS, representation of petitioner calculation details furnished by petitioner and arrived at infinality is the competent authority. Petitioner himself approached him several times furnishing his representations to help him to tide over the situation and the assessment was made accordingly.
29. The respondent further submits that petitioner has been intimated the fact of adjustment of the amount assessed due to exceeding the permissible limit of lighting and non-industrial load through the tariff concession allowed to HT SC No.88 (old No.90) vide letter dated 28.12.1994. The petitioner has given an undertaking dated 1st October 1992, to abide by the terms and conditions of supply of Electricity at the time of effecting HT supply to M/s Madura Coats Export Oriented Unit, Ambasamudram. The petitioner has also accepted the assessment made while adjusting the sum of Rs.77,07,818/- from the tariff concession allowed to the tune of Rs.1,07,88,589/- in respect of HT SC No.88 (Old No.90).
30. The respondent further submits that regarding consideration of this case on par with 14 Nos. Tea Estates, it is stated that the ratio decided by the Court in W.P.No.6397/99 cannot be applied to this case. Because even in respect of Tea Estates load details, connected machineries etc, differed a lot and a uniform principle could not be adopted. So also in the case of petitioner, factual position was different and the number of machineries, lighting arrangement, air conditioner system were different. Hence, uniformity cannot be involved in the case of petitioner. The respondent further submits that the petitioner has been informed to settle the arrears due to be paid in respect of HT SC No.2, M/s.Madura Coats Ltd at the time of according sanction for effecting extension of HT supply to their additional service M/s.Madura Coats Export Oriented Unit, Ambasamudram with a sanctioned Demand of 2300 KVA. The petitioner has also been properly informed of the fact of adjustment of the amount, due to be paid for availing excess lighting and non-industrial load over and above the permissible limit from the tariff concession allowed to HT SC No.88 (Old No.90) vide letter dated 28.12.1994.
31. The respondent further submits that the representatives of the petitioner were called for discussion with the Boards officials as per directions of this Court on 23.02.2001. The petitioner has been informed of the justification in the assessment made towards lighting and non-industrial load. After the discussion the petitioner has put-forth their demands vide their letter dated 23.02.2001. The petitioner has been informed in Lr.No.SE/Comml/EE(T)/CR-7/2001 dated 29.03.2001 the correctness in the assessment made for availing excess lighting and non-industrial load over and above the permissible limits as prescribed in Go.Ms.No.2341 dated 29.11.1982 and BP MS No.35, dated 22.07.1988.
a) The assessment made towards excess availing of lighting and non-industrial load for the period from 01.12.1982 to 10.04.1988 based on the inspection report of APTS is in accordance with Board's Rules and Regulation.
b) Regarding consideration of this case on par with 14 No. Tea Estates, it is stated that the ratio decided by the Court, cannot be applied to this case.
c) The assessment made for availing excess lighting and non-industrial load over the permissible limit is as per the guidelines issued in G.O.Ms.No.2341, dated 29.11.1982 and B.P.Ms.No.35, dated 22.07.1988 and is in order.
The petitioner has been informed of the correctness in the assessment made towards availing excess lighting and non-industrial load with the details in Lr.No.SE/Comml./EE(T)/CR-7/2001, dated 29.03.2001 as per the direction of this Court.
32. The respondent further submitted that:-
a) In BPS MS (FB) No.35, dated 22.07.1988 instructions have been issued classifying the loads that may be billed under lighting and non-industrial loads for regulating the claims. The APTS has inspected the premises of the petitioner and offered their reports. Based on the inspection report assessments were made for availing excess lighting and non-industrial loads over and above the permissible limit, which is in accordance with instructions issued. The petitioner has been properly intimated the fact of adjustment of the amount assessed through their other HT SC No.88 (Old No.90) M/s.Madura Coats Export Oriented Unit which is as per the clause of terms and conditions on supply of electricity.
b) The assessment towards excess availing of lighting and non-industrial load has been made for the period from 01.12.1982 to 10.04.1988 based on the inspection report of APTS and as per guidelines issued in BP MS No.35, dated 22.07.1988 which is in order.
c) The APTS Inspection Team who have inspected the premises of the petitioner have confirmed that the air-conditioners come under the category of all the units mentioned in category 'B' under columns 4. Further no wall plugs have been taken into account as connected load by the APTS.
d) The revised test reports were taken on 21.11.1988, 17.02.1989 and 08.03.1989 even though the petitioner has segregated the loads on different dates i.e., on 11.04.1988, 22.11.1988, 17.02.1989 and 08.03.1989. The connected loads will be taken into account only from the date of test reports. Prior to 21.11.1988, there was no test report to confirm the loads available. Hence, the loads furnished by the APTS, in the inspection report has been taken into account.
e) Regarding treating this case on par with the direction issued in 14 Nos. of Tea Estates it is stated that the ratio decided by the Court in respect of 14 Nos. Tea Estates cannot be applied to in this case.
f) The petitioner has been informed clearly the grounds on which the assessment made for availing excess lighting and non-industrial load with full justification through letter dated 29.03.2001. The assessment made for the excess lighting and industrial load is in accordance with the instructions issued in GO Ms.No.2341, dated 29.11.1982 and BP MS No.35, dated 22.07.1988. The APTS Inspection Team who have inspected the premises of the petitioner during December 1987 have furnished their reports, confirming, the fact of excess lighting and non-industrial load available in the premises of the petitioner.
33. The petitioner has been informed to clear all the arrears due to be paid in respect of HT SC No.2 M/s.Madura Coats Ltd., at the time of according sanction for extension of HT supply to their other service M/s.Madura Coats Export Oriented Unit, Ambasamudram with a sanctioned demand of 2300 KVA. The petitioner has given an undertaking dated 01.10.1992 agreeing to abide by the decision of the TNEB regarding collection of arrears assessed towards excess availing of lighting and non-industrial load over and above the permissible limit.
34. The petitioner himself has confirmed the fact of exceeding the permissible limit of lighting and non-industrial load. As such the assessment made on account of exceeding the permissible limit of lighting and non-industrial load for the period from 01.12.1982 to 10.04.1988 is in accordance with the Board's Rules and Regulation. All the necessary efforts were taken by the TNEB to dispose the representations of petitioner by giving due consideration and after discussions with representatives of the petitioner and the bona-fide was carefully examined by the Chief Engineer / Chairman's office and confirmed the correctness of assessment made towards availing excess lighting and non-industrial load over and above the permissible limits correct as per G.O.Ms.No.2341, dated 29.11.1982 and BP MS No.35, dated 22.07.1988. Hence, it was prayed to dismiss the writ petition.
35. The learned counsel for the respondent argued that the petitioner Company is running a textile industry for which 9000 KVA demand has been sanctioned and assigned with HT SC No.2 and it was effected from 25.08.1948. The present sanctioned demand is 9000 KVA. The petitioner had executed an agreement for an additional demand of 1500 KVA which was accepted on 15.10.1980. As per agreement, the petitioner utilized the electricity energy for running the textile industry. The learned counsel further submits that the Government has revised the tariff and as such, the following classification of loads has been ordered. The total industrial load come under 'A' category, lightening and non-industrial loads which are metered through one or more sub meters if any are classified in 'C' category, purely domestic load as classification in 'B' category. As such, the Electricity Board, after an inspection, has made the assessment with the revised calculation as per Government notification.
36. The learned counsel for the respondent further submits that Anti Power Theft Squad commenced inspection after notice in writing. The petitioner has been properly informed of the fact of inspection conducted by the Anti Power Theft Squad during December 1987 and the excess availing of lightening and non-industrial load above the permissible limit has also been intimated. According to the terms and conditions in supply of electricity, the permissible lightening and non-industrial load by adopting 0.85 power factor for 450 KWA i.e., 5% of 9000 KVA at 0.85 power factor is 382.5 KW. Therefore, the bills already rendered under HT Tariff-I has been revised at HT Tariff-VI rate for the period from 01.12.1982 to 10.12.1988 and an amount of Rs.98,79,707/- has been assessed. However, the power loads were not accounted against lightening and non-industrial load, nevertheless the power loads of the canteen might have been treated as non-industrial load. As such, the load of 35.65 KW found by the Anti Power Theft Squad of 33.92 KW disclosed by the petitioner immediately after issuance of BP MS No.35, dated 22.07.1988 has been considered and incorporated in category 'B'. The very competent counsel further submits that the petitioner has admitted in his own statement that he has exceeded the permissible limit of lighting of non-industrial load. As such, the assessment of Rs.98,79,707/- is legitimate, as the petitioner has exceeded the permissible limit and hence, the learned counsel entreats the Court to dismiss the above writ petition.
37. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel for the respondent and on perusing the grounds raised by the learned counsel for the petitioner, this Court does not find any discrepancy in the conclusions arrived at in the adjustment of the amount of Rs.98,79,707/- in HT SC 90 for the excess payment due by the petitioner. Further, this Court is of the view that the respondent had conducted an enquiry in the presence of the petitioner and also had physically verified all the load details and the revised test reports were also taken in the presence of the petitioner for correctness. The petitioner has also signed in all such reports and thereafter, the impugned order has been passed after well considering the submission made by the petitioner and three Electrical Engineers of the petitioner's Company. Therefore, the writ petition has insufficient force in order to permit it. Hence, the impugned order is fit to be proceeded with.
38. In the result, the above writ petition is dismissed. Consequently, the impugned order No.SE/Comml./EE(T)/CR.7/2001 dated 29.03.2001, on the file of the Chairman, Tamil Nadu Electricity Board, Chennai is confirmed. There is no order as to costs.
13 / 08 / 2013
Index : Yes/No.
Internet : Yes/No.
r n s
To
The Chairman,
Tamil Nadu Electricity Board,
800, Anna Salai,
Chennai - 600 002.
C.S.KARNAN, J.
r n s
Pre Delivery Order made in
W.P.No.7748 of 2001
13/08/2013