Telangana High Court
M/S. Radha Smelters Private Limited vs State Of Telangana on 22 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 31163 OF 2023
ORDER:
The present Writ Petition is filed seeking a direction to adjust the amount of excessive billing for the month of December, 2021 i.e. Rs.1,15,00,006/- along with interest at 24% from the date of payment made by petitioner till today to the next billing month.
2. The conspectus of petitioner's case is that petitioner is involved in manufacturing of steel products such as Billets and MT bars and has been operating since 2007. Petitioner has HT Service connection provided by the respondents herein, bearing No. MDK-1060 with CMD of 24 MVA, voltage of 132 KVA, having a Main, Check and Standby meter bearing Serial number as follows: Y0265840 (Main meter), Y0265845 (Check Meter), Y0265850 (Stand by Meter). Petitioner is a Cross-subsidizing Consumer; it has been charged higher price of Electricity rate to lower prices for other consumers. Petitioner was one of the highest revenue earners for respondents for Medak Division and also for the State of Telangana (in steel manufacturing sector) with monthly bill of approximately Rs. 18,00,00,000/- (Rupees Eighteen Crore only). Petitioner also procures power from power exchange (LEX) 2 through short-term open access. It is stated that under HT agreement, maximum power used in one particular time block will be considered for the purpose of billing. Petitioner receives a monthly H.T.C.C. Bill from the Respondents. The CC bill is prepared on the basis of load survey test. Along with CC bill, petitioner also receives Settlement of Energy drawn from open access / DISCOM and MRI dump Statement (hereinafter referred to as 'Settlement Statement') every time (whenever there is power purchased from the open access) showing the power utilized on every day in that particular billing cycle month. After going through the CC bill for December, 2021 and the corresponding Settlement Statement for December, 2021, petitioner noticed that in the CC bill, Maximum Demand (MD) / Total Consumption (KVA) has been incorrectly shown and charged as 28852, whereas as per the Settlement Statement, the highest recorded MD was 28316.
According to petitioner, for December 2021, as per the Settlement Statement, maximum demand for any day over Coincident Maximum Demand (CMD) was on 16.12.2021 which is 4316 KVA and after adding 24000 KVA which is the CMD for petitioner, total comes to 28316 KVA, which is mentioned in the Settlement Statement. Petitioner stated that it is clear from the Meter Recording Instrument (MRI) Dump dated 16.12.2021, the 3 maximum recorded demand was 28532 at 06:15 hrs., which is also mentioned in the Settlement Statement. It is submitted that from this consumption recording of 28532, open access credit of 216 KVA of petitioner is to be adjusted and the net KVA to be charged would be 28316 KVA. As such, petitioner stated that billing for December, 2021 should have been done for 28316 KVA for petitioner.
Petitioner further stated that they had made representation on 17.01.2022 to the Senior Engineer (Medak), Senior Accounts Officer (Medak), Divisional Engineer Medak and Chief General Manager/Finance/Revenue i.e. Respondents 4 and 5 to revise the bill, so that petitioner can make the correct payment but there was no response from respondents and in turn, petitioner was forced by the respondents to make excessive payment with the threat of disconnection of their service line, if they fail to make such excessive payment. It is stated that petitioner addressed another representation to the 1st respondent on 19.02.2022, but again, there was no response. It is stated that with an imminent wrongful threat of disconnection of their electricity connection which would put them to irreparable harm and might also lead to explosion or account of furnaces at petitioner's factory premises being shut down forcefully, petitioner was compelled to make payment, as 4 demanded by respondents between 25.01.2022 and 31.01.2022. It is stated that payment of excess amount was made under protest and was made only because disconnection of electricity connection to the site would have caused huge loss to petitioner. It is pertinent to note that respondent authorities already have a security deposit of Rs 24.09 crores and they ought not to have threatened and forced petitioner to pay excess bill.
Being aggrieved by such wrongful / excess billing and subsequent inaction of respondents on the representations, petitioner was compelled to approach Consumer Grievance Redressal Forum - I (Rural, TSSPDCL) (hereinafter referred to as 'CGRF' for brevity). Petitioner filed the complaint dated 13.05.2022, in which it was represented that instead of taking MD of 28316 as per the Settlement Statement being the regular practice, respondents have made CC bill for December, 2021 with MD of 28852. The bill amount was increased by Rs.1,15,00,006/-. Petitioner vide said complaint prayed before the CGRF for refund of the said amount or an alternative remedy of adjustment of the said amount of Rs. 1,15,00,006/- along with 24% interest from the date of payment till the date of adjustment against the next immediate CC Bill. It is stated that after making the said complaint before CGRF, petitioner 5 received three letters from Telangana State Southern Power Distribution Corporation Limited (TSSPDCL). It is stated further that in all the three letters, TSSPDCL had given completely different reasons while defending their wrongful actions. The first response by the respondents dated 06.06.2022 mentioned that the MD recorded in the main meter was observed as 28852 KVA on 16.12.2021 at 07:35 hours as per DEE/OP/MDK/ Commercial and they also submitted that the meter existing at petitioner's premises is not supplied by TSSPDCL, but was purchased by petitioner, hence petitioner was asked to get clarification from the meter manufacturer. It is stated that petitioner vide representation dated 16.06.2022 clearly disproved the erroneous contentions of respondents stating that 3 ABT meters in petitioner's premises were purchased from TSSPDCL itself, providing all the proofs for the same. The said meters were even tested and sealed in the presence of DE/MRT/TS TRANSCO and DE/M&P/TSSPDCL and then installed, hence putting an end to any contentions to the contrary. It is stated that the representation dated 16.06.2022 reiterates that MD recorded on 16.12.2021 is 28316, which was the highest recorded MD for the billing period of December 2021. It is further reiterated in the said representation that as per the Settlement Statement and MRI dump, figure of 28852 KVA has not been recorded anywhere, hence, there is no basis 6 for the stand taken by TSSPDCL in the letter dated 06.06.2022. Therefore, it is stated that there is no justification for the stand taken by Respondents before the CGRF. It is stated also that vide letters dated 19.08.2022 and 29.10.2022, respondents took further erroneous stand that since the reading of 28852 KVA was displayed in the main meter, that is to be relied upon in the CC Bill for December, 2021. Petitioner clearly showed before the CGRF that in the Settlement Statement, such a figure of 28852 KVA has not been reflected in the entire billing cycle for December, 2021 in the load test survey report, which is the actual mechanism used to know the energy used and billing. It is stated that respondents at a belated stage of proceedings before the CGRF had taken yet another absurd stand that the MD recorded in the Settlement Statement and the MD recorded in the billing history is in variation because the program available in billing history is with sub-integration period of five minutes, whereas in load survey, i.e. the Settlement Statements, the MD recorded is with the time block method (15 minutes). It is stated that petitioner had comprehensively clarified before the CGRF that the time-block method is as per the statutorily- recognized Regulations in force, i.e. Andhra Pradesh Electricity Regulatory Commission Interim Balancing and Settlement Code for Open Access Transactions (Regulation No. 2 of 2006), which was adopted in Telangana State vide Telangana State Electricity 7 Regulatory Commission (Adoption of Previously Subsisting Regulations, Decisions, Directions or Orders, Licences and Practice Directions) Regulation, 2014 (Regulation No. 1 of 2014). It is further stated that petitioner also clearly pointed out the fallacies in the contentions of respondents before the CGRF by relying on the Tariff Order - Retail Supply Tariffs for Financial Year 2018-2019 valid till the Financial year 2021-2022, and the Tariff Order for the Financial Year 2022-2023 issued by the Telangana State Electricity Regulatory Commission. It is submitted that the said contention before the Hon'ble CGRF was to the effect that even the said Tariff orders also clearly shows that the consecutive 15-minute block is to be considered for MD and not with the 5 minute sub-integration as stated by the Respondents.
It is further stated that despite all the averments made by petitioner and providing cogent and comprehensive documentary proof, the CGRF had passed the order in favour of the respondents merely on what they had submitted without any documentary proof to that effect vide order dated 16.02.2023. Aggrieved by such an unreasoned order, petitioner preferred Appeal before the Vidyut Ombudsman, Hyderabad, dated 06.04.2023 bearing Appeal No. 02 of 2023. 8
According to petitioner, Vidyut Ombudsman passed the Award dated 25.05.2023 against petitioner without considering the averments made by them and by providing a completely incomprehensible rationale. It is submitted that the said award was based on the rationale that 'since both the main and check meters recorded a difference of MD in the billing history and load survey report (Settlement Statement), while the standby meter recorded the same MD for billing history and load survey report as 28892.4 KVA on 16.12.2021 at 07:15 AM which eliminates the dispute in every aspect such as billing history MD or load survey report MD or integration with (15) minutes time block, affirming all the questions raised by the appellant and qualifying for billing when compared with Main and Check meters... it goes to show that Standby meter parameters which are undisputed shall be more realistic for billing.' According to petitioner, reliance on the standby meter, when there is no fault with the Main or the Check meter is beyond the statutory provision and is devoid of any logic or authority, and against the billing methods followed by the respondent department themselves. Further, it is stated that Section 42 of the Electricity Act, 2003 (for short, 'the Act') empowers the State Commission to make Regulations for fixing the charges by the distribution licensee in accordance with the provisions of the Act. In consequence, the Interim Balancing and Settlement Code for Open Access Transactions, Regulation No. 2 of 2006, was made by the Andhra Pradesh Government which was adopted in Telangana State vide Telangana State 9 Electricity Regulatory Commission (Adoption of Previously Subsisting Regulations, Decisions, Directions or Orders, Licences and Practice Directions) Regulation, 2014 (Regulation No. 1 of 2014). As per Regulation 2 of 2006, time-block (clause 2(g)) has been defined as block of 15 minutes for which the energy meters record specified electrical parameters and quantities, with the first time block for the day starting at 00:00 hrs. It is stated that as per Clause 7 (Meter Reading Energy Accounting and Settlement), the State Load Despatch Centre (SLDC) shall undertake the accounting of energy for each time- block on a monthly basis and that the readings for each time block shall be retrieved through a Meter Reading Instrument MRI. It is further stated that Clause 9 (Settlement of Energy at Exit Point in Respect of OA Consumers) further envisages calculation of the energy mentioning the 15-time block, again. It is hence stated that relevant statutory provisions clearly lay down that accounting of energy consumed for the purpose of billing is to be as per 15-minute time-block method. Petitioner stated that it had addressed the letter dated 21.10.2023 to respondents requesting to provide MRI dump with the Sub- Integration period of five minutes for 01.12.2021 to 31.12.2021 but has not received any response for the same. It is reiterated that the time-block method of 15 minutes is as per the statutorily-recognized regulations in force and the same 10 contention was taken before the CGRF and Vidyut Ombudsman. The said Award of Vidyut Ombudsman dated 25.05.2023 has not addressed the issues for consideration that were put forth before it and has thereby enabled the respondents in subjecting petitioner to the said wrongful and excessive billing. According to petitioner, the post-facto justifications provided by the respondents for the wrongful billing of petitioner for December 2021 are contrary to the Regulations in force and it is stated that respondents are aware about the same but have still engaged in the said wrongful acts and has not addressed the issues for consideration that were put forth before it and has thereby enabled the respondents in subjecting petitioner to the said wrongful and excessive billing. In the light of the above submissions the petitioner has sought for the directions from this Court as stated supra.
3. Conversely Respondents 2 to 8 in the counter affidavit stated that the averments and allegations of the affidavit are false and baseless. The respondent company issues bills to its consumers including petitioner as per the 2003 Act, tariff fixed by the TSERC and the Regulations made by it in respect of the matter in issue. Respondents further stated that the contention of the petitioner that the highest Recorded Maximum Demand is 28316 KVA but the same has been incorrectly charged for a 11 Maximum Demand of 28852 KVA is false and baseless, and as such denied. As per the billing history of the main meter dump, display in the main meter located at the premises of petitioner and the meter reading book of petitioner, the highest Maximum Demand for December 2021 is recorded as 28852 KVA. Monthly readings were collected by DE/Operation/Medak on 18.12.2021 from the display of Main, Check and Stand-by meters installed at the location of petitioner's company. The CC bill was raised with a Recorded Maximum Demand of 28852 as observed from the Main meter. Open access credit of 216 KVA for the entire December billing month is adjusted as per prevailing Open Access Regulations and accordingly, bills were raised as tabulated below: -
Meter Serial Number Billing Date Recorded MD Recorded MD(KVA) as per Load survey of MRI as per HT CC as per Billing dump Bill history of MRI dump Y0265840(Main) 28852 28531(16/12/21 6:15 AM) 18/11/2021 (16/12/21 7:35 AM) Y0265845(Check) To 28875.2 28554.86(16/12/21 6:15 AM) 18/12/2021 (16/12/21 7:35 AM) Y0265850(Standby) 28892.4 28892.46(16/12/21 7:30 AM) (16/12/21 7:35 AM) 12 Respondents further stated that any consumer who intends to avail open access shall have to make the metering arrangement as stipulated in the Central Electricity Authority [installation and operation of meters] Regulations, 2006. The consumer is required to fix two meters known as Main meter and Check Current Transformers [CT's] and Potential Transformers [PT's] and the same are defined as under in the above Regulations:
"Section 2 [1] [o]: "Main Meter" means a meter, which would primarily be used for accounting and billing of electricity.
Section 2[1] [i]: Check Meter means which shall be connected to the same core of the current transformer [CT] and voltage transformer [VT] to which main meter is connected and shall be used for accounting and billing of electricity in case of failure of main meter. The Check Meter is mainly fixed to the same core of Transformer to be used for accounting and billing of electricity if the main meter is in any way defective or correct readings are not recorded. Section 2 [1] [v] defines "Standby meter" and the same means a meter connected to Instrument transformer, other than those used for main meter and check meter and shall be used for accounting and billing of electricity in case of failure of both main meter and check meter. Respondents further stated that along with main meter, two other meters known as check meter and Standby meter have been fixed in 13 the premises of petitioner. The Max MD recorded in the Check Meter is 28875.2 and Standby meter is 28892.46 KVA on the same date i.e. 16.12.2021 at 07:35 am. and 07:30 am respectively. Even in the log book register at 132KV Chinna Shankarampet Substation and 132KV RSPL feeder, maximum demand recorded is 29MVA on 07/12/2021, which clearly demonstrates that petitioner utilized the load approximately in the range of 29MVA. The above readings confirm that petitioner availed the loads in the range of 28852 to 28892 before enhancement of his Contracted Maximum Demand [CMD] for December 2021. Hence the contention of petitioner to consider the recorded MD of 28532 KVA instead of 28852 KVA becomes untenable since the same is against the provisions of the 2003 Act and General Terms and Conditions of Supply. Respondents further stated that based on the meter readings, it can be observed that petitioner knowingly exceeded CMD continuously from April 2021 onwards as detailed below: -
MONTH CMD RMD
Apr-21 9990 12018
May-21 9990 11274
Jun-21 9990 11964
Jul-21 9990 11814
Aug-21 9990 11718
Sep-21 9990 11622
Oct-21 9990 12054
Nov-21 24000 22848
Dec-21 24000 28852
Jan-21 45000 34845
14
It is stated that this continuous and regular over drawl of energy by petitioner Company over and above CMD had impact on the Transmission Lines and Power Transformer located in the substation due to repeated over loading of the transmission system. Due to unexpected overdrawl, respondent Company had to procure power from the short-term market at higher cost to maintain reliable power supply to petitioner company. Petitioner had also increased the load from 9990 to 24000 and to 45000KVA in November, 2021 and January, 2022 respectively. If in any month, the Recorded Maximum Demand (RMD) of the consumer exceeds the Contracted Maximum Demand with the Licensee, consumer shall pay the following charges on excess demand recorded and on the entire energy consumed as per the Tariff Order.
RMD OVER CMD DEMAND CHARGES ON ENERGY CHARGES ON EXCESS DEMAND FULL ENERY 100 TO 120% 2 times normal charge Normal Above 120% and upto 2 times normal charge 1.15 times normal charge 200% More than 200% 2 times normal charge 1.2 times normal charge It is also stated that recorded MD in December 2021 is 28852 KVA which is greater than CMD by 120% and up to 200% hence, additional charges become applicable as shown in above table, as per the retail supply tariff order issued by TSERC for the said period and petitioner is liable to pay the same. In billing history of meter dump of the service connection 15 of petitioner, MD recorded is 28852 on 16.12.2021 at 07:35 am. Every time respondents have to consider the billing history for the purpose of billing. The highest MD recorded is displayed in the Main meter situated in the premises of petitioner which can be verified by them. Respondents stated that petitioner was made aware of the billing parameters when it submitted representation and was requested to pay the demand as per the bill. The highest MD recorded is available in the display at the time of collecting the readings for December 2021, as such, there is no need of revision of bills. Petitioner/consumer is liable to pay the amount due to respondents company as per statutory provisions in the Terms & Conditions of Supply. The Recorded Maximum Demand of 28852 is correct in nature as the said demand of 28852 KVA is available in billing history of MRI Dump and also available in the meter display. Hence according to respondents, the claim of petitioner to consider 28316 as billing demand is erroneous and petitioner is not entitled to refund of 1.15 Cr shown in the bills as per Open Access Regulations and Terms & Conditions of Supply.
Respondents further stated that billing history considers the maximum demand recorded in the fixed time slots of 15 minutes/moving time slots of 15 minutes at every 5 minutes. However, in both the above methods, the MD captured 16 by the meter is average of 15 min time slots. Respondent company has to consider such MD recorded by the meter for billing as per Terms and Conditions of Supply. The same demand recorded in the billing history is also displayed on the Main meter of the service connection of petitioner till it is reset on the day of recording reading of the service connection of petitioner company by the local DE/operation/Medak. It is submitted that petitioner filed complaint before CGRF in CG. No: 26/2022-23. CGRF having considered the complaint and the material made available, dismissed the same holding that the RM value considered by the respondents for the billing of service of the complaint for December 2021 is correct. Aggrieved by the Award, petitioner filed Appeal before Vidyut Ombudsman in Appeal No. 02 of 2023. The Vidyuth Ombudsman disposed of the Appeal by order dated 25.05.2023. Respondent company considering the demands recorded in the billing history are correct as per statutory provisions. CGRF being an expert body consisting of officers experienced in the electricity generation and supply has passed the Award taking the relevant provisions of the Central Electricity Authority [Installation and Operation of Meters]Regulations 2006 into consideration. The demand charges are raised for the billing month as per the prevailing tariff orders issued by TSERC and the same are valid in law. 17
4. Heard Sri. Avinash Desai, learned Senior Counsel appearing for Mr. M. Nethan Reddy and Sri. R. Vinod Reddy learned Standing Counsel for TRANSCO/TSSPDCL and perused the record.
5. This Court vide order dated 05.03.2024 directed the respondents to adjust Rs.57,50,003/- of Rs.1,15,00,006/- to the next bill till disposal of the Writ Petition.
6. Firstly, this Writ Petition is misconceived for the reasons that without challenging the order dated 25.05.2023 passed by Vidyut Ombudsman in Appeal No. 02 of 2023, petitioner is seeking a direction from this Court to adjust the amount of excessive billing for December, 2021 i.e., Rs.1,15,00,006/- along with 24% interest from the date of payment made by petitioner till today to the next billing month.
7. The subject matter of Writ Petition was directly involved in the proceedings before CGRF and thereafter, before the Vidyut Ombudsman in Appeal No.2 of 2023 which has culminated into the order dated 25.5.2023. In the Award, it was clearly observed as under:
" While the Standby meter recorded the same MD for billing history and load survey report as 28892.4 KVA on 16.12.2021 at 07.15 AM which eliminates the dispute in every aspect such as billing history MD or load survey report MD or integration with (15) minutes time 18 block, affirming all the questions raised by the appellant and qualifying for billing when compared with Main and Check meters. The exact cause of the difference in recording maximum demands was not brought before this Authority. In the scenario having differences in MD values of both the Main and Check meters in terms of billing history and load survey report parameters, it goes to show that Standby meter parameters which are undisputed shall be more realistic for billing. In view of the above circumstances, I hold that the CC bill for the month of December 2021 issued by the respondents is not excess and as such the appellant is not entitled for refund the excess amount with interest @24% p.a. and the impugned Award of the learned Forum is not liable to be set aside"
Petitioners have not challenged the orders of CGRF and Vidyut Ombudsman, wherein their claim for refund of Rs. 1,15,00,006/- along with 24% interest for the alleged excessive billing for December 2021 has been rejected. Therefore, contention of the respondents that petitioner is estopped from seeking the relief in this Writ Petition is justifiable, as such, this Court opines that petitioner cannot be granted any relief without there being challenge to the orders of the CGRF which was affirmed by the Award dated 25.05.2023 passed by the Vidyut Ombudsman in Appeal No.2 of 2023.
8. In the absence of petitioner's challenge to the orders of CGRF which was affirmed by the Award dated 25.05.2023 passed by the Vidyut Ombudsman in Appeal No.2 of 2023, this Court is not inclined to delve upon the allegations levelled against the respondents by petitioner more particularly 19 with respect to the contention of petitioner that in the CC bill for December, 2021, the Maximum Demand (MD) / Total Consumption (KVA) has been incorrectly shown and charged as 28852, whereas as per Settlement Statement, the highest recorded MD was 28316 as the said issue was already dealt with extensively and adjudicated upon by the authorities stated supra.
9. In the result, the Writ Petition fails and is accordingly dismissed. It is, however, open for the respondents to take steps for recovery of Rs.57,50,003/- from petitioner, if not already adjusted pursuant to the directions of this Court. No costs.
10. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 22nd July 2024 ksld