Madras High Court
Bmf Beltings Limited, Rep. By Its ... vs The Chairman, Tamil Nadu Electricity ... on 14 November, 2006
Author: K. Chandru
Bench: A.P. Shah, K. Chandru
ORDER K. Chandru, J.
Page 3209
1. W.P. No. 26675 of 2004 is taken up as a representative case so as to set out the facts of the issues involved in the entire batch of cases listed before us. The prayer in all the writ petitions is almost identical and the relief claimed in this writ petition is extracted below:
Petition to issue a writ of Declaration declaring that the levy, demand and collection of peak hour charges by the respondents at 0.70 paise extra (20% extra) from the petitioner on the total consumption of electricity in their industries/Mills/Factories without fixing a meter or programme the existing meter in their wind mills for taking in to consideration to set off the electricity generated or produced through their wind mills against consumption during the peak hour as unconstitutional, illegal and null and void and direct the respondents to refund to the petitioner the total amount collected illegally as peak hour charges from the petitioner for their own generated electricity through Wind Mills during peak hours till date.
2. In all these cases, the petitioners are manufacturers and are consuming High Tension energy from the respondent Tamil Nadu Electricity Board (for short, 'Board'). In W.P. No. 23354 of 2004, the petitioner is an Association, which has filed the writ petition describing itself as Indian Wind Power Association (for short, 'Association'). It is an Association of companies and individuals, who have set up the Wind Mill Farm at various places in the State of Tamil Nadu and are producing electrical energy through Wind Mills and they are supplied electricity by the Board and they have a contractual agreement with the Board. The list of members of the Association has been given by them in the typed set of papers filed by them in W.P. No. 23354 of 2004 and as many as 396 names of industries have been given as members of that Association and it also claims to be the representative body of all the industries, which have established Wind Mill Farm in the State of Tamil Nadu.
3. It is the case of the writ petitioners that as a consumer of electricity under the respondent Board, they are paying huge sum of money every month towards the electricity tariff and they have also deposited amount as security deposit. Since all of them have established Wind Mills and are producing power at various places, they are utilising the same for their own consumption in the industries and wherever they have not been utilised, it is given to the Board and the electricity generated is transferred into the grid established by the respondent Board. The surplus electricity generated in a month are kept in banking or reserve for being continued in the succeeding month with the permission of the respondents. While they are transferring the surplus energy to the grid established by the Board, they are also paying electricity charges as per the tariff fixed by the Government. By G.O.Ms. No. 17, Energy Department dated 14.02.1997, tariffs were revised and subsequently, further revision was made by G.O.Ms. No. 95, Energy Department dated 28.11.2001. Under the earlier G.O.Ms. No. 17, Clause (d) provided for peak hour charges, which are as follows:
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(d) for the High Tension Industrial Consumers, Time of the Day meter shall be provided. On installation of Time of the Day meters, the High Tension Industrial Consumers shall be billed at 20% extra on the energy charges for the energy recorded during peak hours. The duration of peak load hours shall be as under:
(1) 6.00 a.m. to 9.00 a.m. (2) 6.00 p.m. to 9.00 p.m."
4. According to the petitioners, the extra tariff levied for peak hour consumption is arbitrary and it does not have any legal sanction and the said additional charge was challenged before this Court in various writ petitions, which were disposed of by a learned single Judge of this Court by a common order dated 06.11.2003. According to the petitioners, though the judgment proceeded on the basis that as if there was no device or meter in the Wind Mills established by the petitioners and they are expected to install a new device themselves. They have also stated that the existing TOD Meter fixed in the Wind Mills is sufficient to record as to how much energy is being generated during peak hours every day provided the same shall be programmed by the Board. Further, the Wind Mill owners cannot fix any meter in the Wind Mills without the knowledge or permission of the Board. In view of the difficulties faced by them, the Association gave a representation dated 14.4.2004 to the first respondent and requested them to take suitable steps to fix the Meter/Device or program the TOD already fixed in the Wind Mills to record as to how much energy is being generated during peak hour. The first respondent informed the Association stating that their representation was forwarded to the second respondent and the Wind Mill owners were asked to correspond only with the second respondent, who is in charge of the operations. Once again, they sent detailed representations dated 03.5.2004 and 25.5.2004 enclosing a copy of the judgment dated 06.11.2003 passed by this Court. However, the second respondent, despite the receipt of the same, did not take any steps and no reply was given. They also issued a legal notice to the respondents asking them to take steps to install the Meter or to program the existing TOD Meter so as to record as to how much energy is being generated during the peak hour and to set if off against consumption during this period.
5. As nothing was heard from the respondents, the present writ petition was filed. Like the petitioner, all other Wind Mill owners have also filed similar writ petitions and have also obtained interim order injuncting the respondents from collecting 20% extra towards the peak hour charges. These writ petitions were grouped together as stated already.
6. We have heard the arguments of Mr. Palani Selvaraj, learned Counsel appearing for the petitioners and Mr. P.S. Raman, learned Additional Advocate General leading Mr. P. Subbiah, learned Standing Counsel for the respondent Board and perused the records.
7. The learned Counsel appearing for the petitioners submitted that the action of the respondents in not fixing the meter or not programming the existing TOD Meter already installed in the Wind Mills is arbitrary and would amount to violating Articles 14 and 19(1)(g) of the Constitution of India. The Page 3211 further submission of the learned Counsel for the petitioners is that that the petitioners themselves cannot install any meter without the permission of the Board and they cannot set up a meter on their own. It is for the respondent Board to set up a new meter or program the existing TOD Meter. It is also unfair on the part of the respondents not to give credit to peak hour charges on the basis of corresponding energy supplied by the Wind Mill owners and by not crediting such amount, the petitioners are put into disadvantageous position and it will result only in the closure of the industries and their right to carry on trade guaranteed under Article 19(1)(g) of the Constitution of India is taken away by this action. Therefor, they are entitled for the relief as claimed in the writ petitions.
8. The respondents have filed a counter affidavit in W.P. No. 30226 of 2005 stating that G.O.Ms. No. 17 Energy dated 14.02.1997 issued by the Government of Tamil Nadu is only to implement the policy taken by the Government and the said policy includes charging of additional amount for consumption during peak hours. The reason for introducing peak hour consumption charges is to discourage the H.T. consumers using energy during peak hours so that the demand and supply can be equated during peak hours and power drawal from other sources is avoided. It is also stated that the Board has to incur heavy expenditure to purchase the energy at higher price from the private generators in order to meet the demand during peak hours and the levy of 20% extra on the energy charges for the energy consumed during the peak hours is only for restricted hours. It is also stated by the learned Additional Advocate General that in the earlier order, this Court has said that the State Government and the Board are justified in collecting higher charges for the use of their industries during peak hours. It is also stated that the G.O. had been issued during the year 1997 and the similarly placed Wind Mill owners have challenged the same only after a period of six years, viz., in the year 2003. They themselves never questioned that there is no occasion for the Board to consider their demand. It was only by the common order dated 06.11.2003, this Court has directed the Wind Mill owners to establish the TOD facility in their respective wind mill service meters. In fact, subsequent to the order passed by this Court, the Board has issued Board Proceedings in Permanent B.P. (FB) No. 101 dated 09.5.2005. The obligation to fix the meters lay only with the Wind Mill owners and whenever such a meter was installed by them, after necessary calibration is done by the Board, the energy generated as well as consumed during peak hours are measured and necessary set off of the energy produced against the electricity consumed between 6 A.M. and 9 A.M. and 6 P.M. and 6 P.M. are given to the Wind Mill owners. It is also stated the G.O.Ms. No. 17 dated 14.02.1997 was not quashed by this Court in the earlier challenge and, therefore, the present challenge is misconceived. Therefore, he prayed that the writ petitions may be dismissed as devoid of merits.
9. In view of the rival submissions, the issue largely revolves around the common order dated 06.11.2003 passed by a learned Judge of this Court in the earlier batch of writ petitions. The relevant portions in paragraphs 25 to 27 from the said order are extracted below:
Para 25: It is obvious that for the extent of electricity generated by Page 3212 such wind mill owners account is maintained by such wind mill owners. If it is found that such wind mill owners generate electricity during non-peak hours only, obviously the State Government and the Board would be justified in collecting higher charges for the use of such industry during peak hours. However, if such wind mill owners are also producing energy during peak hours, there cannot be any justification to deny them of the use of such energy during that period.
Para 26: Learned Additional Advocate General has, however, raised a valid objection to the effect that since the G.O., had been issued in 1997 and it had not been challenged earlier, there is no method to find out now how much electricity had been generated by such wind mill owners in the past during peak hours. In this context, he has pointed out that when the wind mill owners had kept quiet for more than 5 years and paid the amount without demur, their grievance cannot be looked into in view of the principles of waiver and acquiescence. This contention of the learned Additional Advocate General cannot be lightly brushed aside. Therefore, while it is not possible to grant any relief of refund to such wind mill owners for the electricity already generated and consumed, it is made clear that in case such wind mill owners instal any device through which the amount of electricity generated during peak hours can be measured and accounted for, such persons should not be called upon to pay the additional duty for use of such electricity during peak hours.
Para 27: Subject to the aforesaid clarification relating to the wind mill owners, which would become effective only as and when such devices are installed by the wind mill owners themselves, there is no scope to interfere with the order passed by the Government and to issue any direction regarding refund.
Therefore, this Court while guaranteeing the right of the Wind Mill owners to claim to set off the charges against the energy consumed and energy generated from the levy of 20% peak hour charges, clearly stated that the order of the Government levying peak hour charges was passed as early as 1997 and the same was not challenged earlier and, therefore, there was no method to find out how much electricity had been generated by such Wind Mill owners. If the Wind Mill owners can keep quiet for more than five years and paid the amount without demur, their grievance cannot be looked into in view of the principles of waiver and acquiescence. This Court also made it clear that it is not possible to grant any relief of refund to such Wind Mill owners for the electricity already generated and consumed. What was guaranteed was that if the wind mill owners install any device through which the amount of electricity generated during the peak hours can be measured and accounted for, such persons should not be called upon to pay the additional duty for use of such electricity during peak hours. The batch of writ petitions were dismissed only subject to this clarification and it was made clear that the order will become effective only as and when such devices are installed by the Wind Mill owners themselves and until such installation is made, it was made clear that there was no scope to interfere with the order passed by the Government and to issue any direction regarding refund will not arise.
Page 3213
10. The order passed by this Court applies even for the present grievance raised by the Wind Mill owners. We do not find as to how all these writ petitions are filed despite the order passed by the learned single Judge of this Court, which had become final. For this question, Mr. Palani Selvaraj, learned Counsel appearing for the petitioner Association submitted that even as per the order of the learned single Judge, the Board has not come forward to install meter or program the existing TOD Meter and they are taking advantage of the directions made by the learned single Judge and even though the Wind Mill owners have succeeded in establishing their right, they have been penalised by the Board for not installing any meter. We, then, pointed out that the installation of the meter was to be done only by the Wind Mill owners and not by the Board and only the calibration is done by the Board for which the learned Counsel appearing for the Association has no answer.
11. In this context, the counter affidavit filed by the second respondent is relevant and the paragraph 4 of the same is extracted below:
I also submit that after the said order of this Hon'ble Court TOD meters are installed in the wind mill units by which the energy generated as well as consumed during peak hours are measured and necessary set off of the energy produced against the electricity consumed between 6 A.M. to 9 A.M. and 6 P.M. to 6 P.M. are given.
12. The above fact is not disputed by the learned Counsel appearing for the petitioners. On the contrary, a statement showing the various dates of installation of TOD meters was produced by the learned Counsel for the Association itself. He also fairly admitted that the Board is giving set off from the date on which the TOD Meters were fixed and in the list furnished by them in respect of 32 Wind Mill owners, different dates have been given.
13. We do not see there is any wanton delay on the part of the respondent Board in implementing the orders of this Court. In fact, pursuant to the order passed by this Court, a meeting of the Full Board was held on 23.4.2005 and a decision in respect of the implementation of the order of this Court was taken by the Board. Pursuant to the said meeting, Permanent B.P. (FB) No. 101 dated 09.5.2005 was issued by the Board. Therefore, the argument of the learned Counsel appearing for the Association is unsustainable and we consider there is no delay on the part of the Board in giving effect to the order of this Court. On the contrary, it was the wrong understanding on the part of the Wind Mill owners, who have not come forward to install appropriate meters for measuring the energy generators in their wind farms so as to enable the Board to activate the same and calculate the generation of electricity during peak hours.
14. We do not see any substance in the argument advanced by the learned Counsel appearing for the Association. Accordingly, the writ petitions are dismissed. In view of the same, connected W.P.M. Ps are also dismissed.
15. It is at this stage, Mr. Palani Selvaraj, learned Counsel appearing for the petitioner Association and also the petitioners in the other writ petitions, submitted that since they have enjoyed the benefit of stay for the last two years and if they are asked to pay the peak hour charges suddenly, there will Page 3214 be great difficulty for them to mobilise the resources. We do not agree with the said submission and we do not think that this Court should show any indulgence in view of the fact that this is the second round of litigation launched by them and they also enjoyed the benefit of unconditional stay by this Court.
16. The learned Counsel for the petitioner Association makes a request that the Board should furnish a statement of account showing the amounts to be paid by each of the petitioner and must give minimum of four weeks time for making the payment.
17. This is the problem which crops whenever batch matters are disposed of against the petitioners challenging fiscal levy made by the State or its agencies. If only at the time of admission of the writ petition terms are imposed either by Bank Guarantee or deposit of the disputed amount, these requests will not be forthcoming.
18. In view of the said request made by the petitioners, we hereby direct the respondent Board to supply a statement account to each of the petitioners (who are also otherwise HT Consumers) showing the arrears of payment to be made by them towards peak hour charges in terms of G.O. Ms. No. 17 dated 14.02.1997. On furnishing of the said statement, the writ petitioners shall pay the amount within a period of four weeks thereafter without raising any further objections in respect of the same.