Madhya Pradesh High Court
Century Denim (A Division Of Century ... vs The State Of Madhya Pradesh on 12 February, 2018
Digitally signed by
Jasleen Singh Saluja
Date: 2018.02.16
17:58:20 +05'30'
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
SINGLE BENCH:HON'BLE SHRI JUSTICE VIVEK RUSIA
WRIT PETITION No.2162/2015
CENTURY DENIM
Vs.
THE STATE OF M.P. & OTHERS
Shri Ajay Bagadiya with Shri Amit Upadhyay, learned
counsel for the petitioner.
Shri S.S. Chouhan, learned counsel for the respondent
Nos.4
Shri D.S. Panwar, learned counsel for the respondent Nos.2
and 5.
______________________________________________________
Whether approved for reporting:
Reserved on 29.01.2018
ORDER
(Passed on / /2018) This order shall govern the disposal of W.P.No.2004/2015, 2159/2015, 2162/2015, 2494/2015, 1951/2015 & 1173/2016. For the sake of convenience, the facts as narrated in W.P.No.2004/2015 have been taken.
The petitioner has filed the present petition being aggrieved by issuance of the impugned notice dated 21.09.2015 (Annexure P/3) and 12.03.2015 (Annexure P/4) and demand of supplementary bills. Since, the petitioner has paid the aforesaid amount, therefore, by way of this petition, seeking relief of quashment of demand and refund/release or adjustment of the said amount.
2. The petitioner is a company registered under the provisions of Companies Act having its registered office at Plot No.2, Kheda Industrial Growth Centre, Pithampur, District Dhar. The petitioner is involved in manufacture of Textile, Synthetic Yar etc.
3. The petitioner is a HT consumer of respondent No.2 and 5. In order to get uninterrupted power supply, the petitioner opted for intra state "Open Access" which is an intra state supply to the consumers through intra state transmission system. The consumer is having liberty and discretion to avail the supply of electricity either from a Government Agency or from a Private Distribution Generator or Licensee other than his distribution company within whose geographical area the consumer is situated. The said facility is available subjected to specific terms and conditions. In order to avail the said facility, the petitioner is required to pay the cross subsidy billing charges for billing/energy charges and applicable transmission lies to respondent No.2 MPPKVVCL.
4. The Madhya Pradesh Paschim Kshetra Vidyut Vitran Company Ltd. is a Government company formed under the provisions of Companies Act and under Section 12 of the Indian Electricity Act, 2003 is constituted under Section 5 of the Electricity (Supply)Act, 1948. The MPPKVVCL came into existence after the bifurcation of the Madhya Pradesh Electricity Board into five companies. The MPPKVVCL is having responsibility for supply of electricity to its LT and HT consumers under the provisions of Electricity Act, 2003.
5. The petitioner is availing the facility of Open Access from Central Transmission System for which it had obtained necessary grid compliances and due permission from MPPKVVCL as well as Nodal agency State Load Dispatch Center, as per the guidelines given in Madhya Pradesh Open Access Regulations, 2005. The petitioner is also a consumer availing HT power supply at 33KV for a contract demand of 3200 KVA under HT agreement dated 20.11.2013.
6. The MPPKVVCL used to issue a bill to the petitioner as per his consumption under Open Access System and the consumption of HT power supply since August, 2011. All of a sudden, the respondent No.2 & 5 issued a notice for recovery of certain amount for availing power supply, through Open Access as well as HT connection for the period August 2011 to November, 2014. Vide notice dated 21.09.2015, the Senior Account Officer, MPPKVVCL, Indore requested the petitioner to make additional payment of billing within 15 days from the consumer. The aforesaid demand was made on the basis of clarification issued by the Madhya Pradesh Electricity Regulatory Commission (in short "MPERC") in case of mixed use of supply in the same premises (i) in case of use of supply from open access ; (ii) also from HT connection. As per clarification given by the MPERC the scheduled energy under open access is to be adjusted first form the total consumption recorded in each 15 minutes block and balance energy in each 15 minutes block is to be considered against the HT agreement. Thereafter, vide notice dated 12.03.2015 (Annexure P/4), again Officer of respondent No.2 and 5 issued supplementary additional bill from the period August, 2011 to January, 2014 for their recovery of amount of Rs.31,45,946/-.
7. Being aggrieved by the demand of additional bill, the petitioner raised objection by letter dated 28.02.2015. The petitioner submitted that SLDC made gross error by not recording their Open Access energy purchase on the aforesaid date and the same has been included in the supply made through MPPKVVCL. The respondent Nos.2 and 5 issued a bill for recovery of Rs.33,27,383/- which the petitioner paid under protest and filed the present writ petition before this Court.
8. The petitioner has assailed the additional demand and system of segregation of Open Access Energy from the consumer recorded in HT bill on the ground of delay and violation of principles of natural justice. It is submitted that MPERC issued a clarification in the year 2009 but the respondent Nos.2 & 5 ignored to implement the said clarification and continued to issue the bill for subsequent period. Now, they cannot demand the additional bill which is contrary and against the provisions of Section 56 (2) of the Electricity Act, 2003.
9. After notice, the respondent No.2 and 3 filed reply to the writ petition by submitting that the petitioner is drawing and utilizing energy under Short Term Open Access (STOA) through Indian Energy Exchange and adjustment of energy drawn from IEX. In fact, drawl of energy by petitioner as Open Access Consumer is performed through Availability Based Tariff (ABT) Complaint 0.2 Accuracy Class ME/Meter where facility of recording energy at each 15 minutes block time interval is available. The adjustment of actual energy availed through open access was to be given on the basis of 15 minutes time interval data of energy drawl against scheduled energy.
10. The demand was made by way of supplementary bill in respect of unbilled energy computed for his respective period after segregating the total consumption of petitioner through open access and consumption of energy obtained from respondent under HT agreement in each 15 minutes block. The aforesaid demand was made in compliance of the direction issued by the MPERC vide clarification letter dated 02.09.2009. Since, there was an error in calculation and there is no dispute of consumption of electricity charges, therefore, the provisions of Section 56(2) of the Electricity Act, 2003 would not attract. The petitioner is not disputing the consumption of quantum of energy but aggrieved by the mode of billing and delay in demand which has become time barred.
11. Thereafter, the respondent filed second reply that the controversy involved in this matter is based on the interpretation of clarification of letter dated 02.09.2009, therefore, the matter is liable to be referred to MPERC, Bhopal for clarification and deciding the issue raised by the petitioner under Clause 12 of the Madhya Pradesh Electricity Balancing and Settlement Code, 2009.
12. The petitioner has filed rejoinder to the additional submission by respondent Nos.2 and 5 by submitting that vide notification dated 02.06.2010 issued by the MPERC, Clause 2.2 of Section 2 of the Madhya Pradesh Electricity Balancing and Settlement Code, 2009 ( Principal Code) has been replaced by following :
"2.2 This Code shall apply within the geographical area of the State of Madhya Pradesh and shall apply to Intra-State Entities (excluding Intra-State Open Access Customers) in Madhya Pradesh in a manner as specified in this Code"
13. The Code of energy shall apply to Intra-State Entities (excluding Intra-State Open Access Customers) in Madhya Pradesh in a manner as specified in this code. It is further submitted that in the earlier billing, the respondent No.1 gave Under Drawl Unit (which unit consumed/left in Grid due to Load variation) credit at the rate of UI charges (Unscheduled Interchanges frequently based tariff) which is very credit by approx 70P per unit while now respondent on 15 minute basis again segregate the Open access unit and balance unit treat at over drawl claim by charged HT tariff rate (Approx 4.30 Rs/Unit) Excluding FCA, Electricity duty also. There is a Big gap in rate, that on one hand respondent give credit 70-80 P/unit drawl unit and on the other hand they are allegedly claim over drawl charge at HT tariff more than 4.30 Rs/unit and over drawl & under drawl unit should also be credit/debit by the same rate.
14. The MPERC also filed reply raising preliminary objection that under Section 42 of the Electricity (Supply) Act, 1948, the petitioner is having alternate and efficacious remedy to approach the Electricity Consumer Grievances Redressal Forum i.e. Electricity Ombudsman constituted under the provisions of MPERC (Establishment of Forum and Electricity Ombudsman for redressal of grievances of the consumer) Regulations, 2004 and the MPERC is not having jurisdiction to look into the billing dispute between petitioner & respondent Nos.2 & 5.
15. The Apex Court in case of Maharashtra Electricity Regulatory Commission Vs. Reliance Energy Ltd & Others, reported in (2007) 8 SCC 381 has held that the complete machinery has been provided in Section 42(5) and 45(6) for redressal of grievances of individual consumers by way of forum/ombudsman, therefore, the writ petition is not maintainable. It is further submitted that the MPERC has framed regulation called MPERC (Terms and conditions for Infra-State Open Access in M.P.) Regulations, 2005 applicable to open access customers or distribution system. MPERC has issued clarification dated 11.11.2008 and 02.11.2009 same are applicable to the petitioner. The MPERC has unnecessary been made party in this petition because MPERC is having no jurisdiction to deal with the matter relating the billing dispute as held by the Appellate Tribunal for Electricity in its order dated 30.03.2007 that no appeal, petition or application lies before any regulatory commission or this Tribunal in respect of billing matters.
16. The respondent Nos.2 and 5 filed application for vacating stay that the respondents are required to follow the provisions of Central Electricity Regulatory Commission (Deviation Settlement Mechanism and Related matters) Regulation, 2014 and the Madhya Pradesh Electricity Balancing and Settlement Code, 2009 for the purpose of billing. Impugned demand has arisen only in view of the error in calculating drawl of energy from two sources of consumption of energy and now the billing was done as per clarification.
17. I have heard learned counsel for the parties.
18. The facts of the case are not much in dispute to the extent that the petitioner being a HT consumer also drawing electricity under Open Access System. There is no dispute about the quantum of the consumption of Unit by the petitioner during relevant period. The dispute between the petitioner and respondent Nos.2 and 5 is only about the manner of the calculation of consumption of the unit. The Madhya Pradesh Electricity Regulatory Commission framed the Madhya Pradesh Electricity Balancing and Settlement Code, 2009 in exercise of power conferred by Section 181 read with Section 39(2)(d)(i), 40(c) (I), 56, 86
(c) and 86 (2) (I) of the Electricity Act, 2003. As per preamble of the said code it is framed for implementation of Availability Based Tariff (ABT) at State level & the Code shall apply within the geographical area of the State of Madhya Pradesh and also shall apply to intra-state entities (excluding Intra-State Open Access Entities) in the Madhya Pradesh. As per Clause 11, this Code shall apply only to SSGS IPPs discom and intra-state Open Access entities from the date of coming into force. Clause 12 gives power and authority to MPERC to remove difficulties, if any, arises in giving effect of the provisions of this Code. The Commission may by general or special order direct direct SLDC STU or any of intra-state entities to take suitable action not being inconsistent with the provisions of this Act, which appears to the commission to be a necessary or expedient for the purpose of removing the defects.
Clause 11 and 12 are reproduced below:
"11. Applicability of Code 11.1 This code shall apply only to SSGS, IPPs (if any), Discoms and Inter-State Open Access Entities from the date of coming into force and shall apply to such other Generators/ Entities from such date, as may be specified by the Commission separately by way of notification.
12. Powers to remove difficulties 12.1 If any difficulty arises in giving effect to any of the provisions of this Code, the Commission may, by general or special order, direct SLDC, STU and/ or any of the Intra-State Entities to take suitable action, not being inconsistent with the provisions of the Act, which appears to the Commission to be necessary or expedient for the purpose of removing the difficulties.
12.2 SLDC, STU and/or any of the Intra-State Entities may also make an application to the Commission and seek suitable orders to remove any difficulties that may arise in implementation to this Code."
19. By notification dated 11.06.2010 Section 2.2 of the Madhya Pradesh Electricity Balancing and Settlement Code, 2009 has been amended by excluding "Intra-State Open Access Customers", meaning thereby w.e.f 02.06.2010 the Code is not applicable to intra-state Open Access customers.
Amendment to Section 2 is reproduced below:
"2.2 This Code shall apply within the geographical area of the State of Madhya Pradesh and shall apply to Intra-State Entities (excluding Intra-State Open Access Customers) in Madhya Pradesh in a manner as specified in this Code"
20. Open Access customers is define in Section 3(24) according to which the person who has availed or needs to avail Open Access to receive supply of Electricity from a person other than the licensee distributor of his area of supply or State Government entity. There is a dispute about applicability of this Code after amendment on 02.06.2010. Under Clause 12, the Commission has been authorized to remove the difficulties. According to the petitioner, the balance and settlement Code has been notified by the MPERC in the month of Oct, 2009, and now amended in June, 2010, by excluding "Intra-state Open Access customers" from the applicability of the Code.
21. In considered opinion of this Court in order to resolve the controversy between petitioner and respondent No.2 & 5, the MPERC is competent authority.
22. Therefore, the petitioner is directed to approach the MPERC against respondent Nos.2 and 5 under Clause 12 of the Madhya Pradesh Electricity Balancing and Settlement Code, 2009.
23. The applicability of Section 56(2) of the Electricity Act, 2003 would be considered after the decision of MPERC.
24. The writ petition is disposed of with aforesaid direction. Let a copy of this order be retained in the file of each connected case.
(VIVEK RUSIA)
jasleen Judge