Punjab-Haryana High Court
Bathinda Integratedd Coop Cotton vs Pseb And Anr on 25 November, 2014
Author: Raj Mohan Singh
Bench: Surya Kant, Raj Mohan Singh
LPA No.1938 of 2014 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
LPA No.1938 of 2014 (O&M)
Date of decision: 25.11.2014
The Bathinda Integrated Cooperative Cotton Ginning
and Spinning Mills Ltd. Bathinda.
......Appellant
Versus
The Punjab State Electricity Board, Patiala
and another
.......Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr.Puneet Kansal, Advocate,
for the appellants.
****
Raj Mohan Singh, J.
1. This Letters Patent Appeal is directed against the judgment dated 12.9.2014 rendered by learned Single Judge, dismissing the writ petition.
2. The appellant/petitioner filed the writ petition, assailing the order dated 10.6.1995, passed by respondent No.2, vide which Peak Load Surcharge to the tune of ` 4,55,845/- was imposed for violation of Peak Hour Load Restrictions; order dated 16.10.2001, passed by Zonal Level Dspute Settlement Committee, Bathinda and order dated 2.9.2002, passed by Dispute Settlement Authority of the Electricity Board. Appellant/petitioner claimed to be engaged in ginning and spinning of the cotton yarn, which is a continuing process industry. Appellant/petitioner had applied for total load of ANITA DEVI 2014.12.09 10:55 I attest to the accuracy and integrity of this document Chandigarh LPA No.1938 of 2014 (O&M) 2 2500 K.W. and the respondent-board sanctioned the load upto 2279.239 K.W.. The contract demand of the appellant was 1800 KVA and the connection was released on 18.2.1993. The appellant/petitioner, being a continuous process factory, had also applied for peak hour load relaxation to run the factory within the peak hours over and above the normal tariff measure. Appellant/petitioner was allowed peack load exemption of 800 K.W. load for a period of two months i.e. from 1.4.1995 to 31.5.1995 on payment of usual peak load exemption charges. During this period, an independent feeder was sanctioned by Operation Organisation and a separate 11 KV Industrial Feeder was converted into an Independent Feeder. With some other conditions, the aforesaid continuous process status was granted to the appellant/petitioner.
3. Appellant/petitioner alleged that on 9.6.1995, the Assistant Executive Engineer, Patiala visited the premises of the appellant/petitioner at about 3.00 P.M. and found all the implements in order. No irregularity was found and noticed. A notice was issued to the appellant/petitioner on 10.6.1995 on the ground that the connection was checked by Executive Engineer/ T.A. Ropar and Patiala on joint basis and it was found that connection was working at 55 Amps between 7.30 P.M. to 9.45 P.M., which came to be about 849 K.W. as against 57 K.W. out of total sanctioned load of 2279.239 K.W. Resultantly, an amount of ` 4,55,848/- was levied as Peak Load Surcharge on the appellant/petitioner, failing which connection was to be dis-connected within 15 days. ANITA DEVI
4. Appellant/petitioner alleged that the factory was already 2014.12.09 10:55 I attest to the accuracy and integrity of this document Chandigarh LPA No.1938 of 2014 (O&M) 3 equipped with two generator sets of the capacity of 500 KVA each to meet the exigencies towards power cut and also of Peak Hour Load Restrictions. The civil suit was also filed, challenging the action of the respondent-board on the ground that the Executive Engineer, Patiala and Ropar never visited the factory premises of the appellant/petitioner at the relevant time, nor associated it in any fact finding inspection. The suit was got dismissed with the liberty to file representation to the respondents for referring the dispute to the Dispute Settlement Committee/ Zonal Level Committee of the respondent-board. Appellant/petitioner deposited an amount of ` 2,50,000/- on 10.6.1995 in order to save disconnection.
5. On being referred, Zonal Dispute Settlement Committee rejected the claim of the appellant/petitioner vide order dated 16.10.2001, finding that the load was recorded between 50 to 55 amps at the relevant time of peak load hours. The committee found that the amount of surcharge is chargeable from the appelant- petitioner. Appellant/petitioner, thereafter, unsuccessfully approached the Dispute Settlement Authority, Patiala, where its claim was rejected vide order dated 2.9.2002.
6. Appellant/petitioner assailed all these orders in the writ petition, primarily on the ground of violation of principles of natural justice. Secondly, the appellant/petitioner assailed the action of the respondent-board on the ground that respondent No.2 has no authority to impose the surcharge for want of legislative back up. The appellant/petitioner claimed that the executive right, ANITA DEVI effecting the civil right of the appellant/petitioner, has to have 2014.12.09 10:55 I attest to the accuracy and integrity of this document Chandigarh LPA No.1938 of 2014 (O&M) 4 legislative backup otherwise it will have no binding character. Thirdly, the checking from independent feeder situated at a distance of 7-8 km from the factory was also claimed to be an act of illegality having no nexus with the alleged activity. Lastly, the action of the respondent-board was assailed being discriminatory inasmuch as that similarly situated M/s Malwa Spinning Mill, Barnala has been let off on similar alleged violations.
7. Learned Single Judge discarded the plea of the appellant/petitioner by appreciating all the incriminating facts and evidence on record. Appellant/petitioner was granted exemption from Peak Load Restriction for the period w.e.f. 1.4.1995 to 31.5.1995. This fact in itself shows that the appellant-petitioner being a continuous process industry was availing the exemption. On 9.6.1995, the checking was done from independent feeder of the appellant/petitioner and this grid sub station is the best place to check the violation of peak hour load restrictions because as per the statement of Engineer J.S.Mann, Mill Engineer, Bathinda, the industry is located in 37 acres of land. The main unit of industry is located at about half k.m. from the entrance gate. Therefore, in order to check theft of energy, checking from grid sub station was the best place to note violations of peak hour load restrictions. Appellant/petitioner is a big factory and the load is generally switched off or changed over to generator sets by the time checking squad is allowed to enter the premises and to reach the meter installations. The authenticity and accuracy of grid sub station meter cannot be ANITA DEVI doubted. The learned Single Judge also observed that the amount of 2014.12.09 10:55 I attest to the accuracy and integrity of this document Chandigarh LPA No.1938 of 2014 (O&M) 5 surcharge has been calculated on the rates applicable for second defaulter as the appellant/petitioner had the history of defaulter on earlier occasion also. The dismissal of the writ petition prompted the appellant/petitioner to file the present appeal, reiterating the grounds earlier made before the learned Single Judge.
8. Learned counsel emphasised upon the violation of principle of natural justice and checking done from grid sub station. We are, however, not impressed by the submissions. It is relevant to see that while granting exemption of 800 K.W. load from 1.4.1995 to 31.5.1995 an independent feeder was sanctioned by the respondent. Checking from this sub station was perceived to be the best place to check peak hour load violations. The sanctioning of this peak load exemption suggested that the appelant was availing exemption being a continous process industry. The statement of Mr.J.S.Mann, Mill Engineer assumed significance in the aforesaid context. The witness deposed that between 1.6.1995 to 9.6.1995, the consumer had not used the power for industrial purpose during peak load hours and the industry load was met through generator sets. Further said that the industry was having exemption from peak load restriction for the period 1.4.1995 to 30.10.1995, vide memo No.14744/46 dated 14.12.1995. The Mill Engineer alleged that there was no energy consumption between 1.6.1995 to 9.6.1995. The aforesaid stand cannot be appreciated for the simple reason that if there was exemption from peak load restriction in favour of the appellant for the period 1.4.1995 to ANITA DEVI 30.10.1995, then there was no occasion for the appellant to say that 2014.12.09 10:55 I attest to the accuracy and integrity of this document Chandigarh LPA No.1938 of 2014 (O&M) 6 the industry was not operated on energy between 1.6.1995 to 9.6.1995 and equally wrong was the ground of operating the industry on generator sets. The defence was of total denial, but the witness admitted that the industry is located in 37 acres of land and the main gate of the industry is located at about half kilometre from the entrance gate and it takes about 5-7 minutes to reach the industry unit from the main gate if there is no restriction. The change of supply from energy cables to the generator sets takes a minute or so. The plea of the respondent-board was that the load on 11 KV feeder was checked at the grid sub station jointly by XEN/ T.A. Ropar and XEN/ T.A. Ludhiana during peak hour load restriction when 800 K.W. had already expired. The load found running at the relevant time was in the range of 55 amps on the aforesaid 11 KV during peak hours i.e. 7.30 A.M. to 9.45 P.M.. Since the load of 55 amps on 11 KV worked out to be more than 1000 KVA, appellant was found violating peak hour load restrictions and was accordingly surcharged for ` 4,55,848/- as compensation on the rates applicable for second default. The stand of the appellant was falacious as the report of Assistant Executive Engineer, Patiala at about 3.00 P.M. was not related to the checking made from grid sub station because the same was independent process of checking peak load restriction violations. The respondent also relied upon log sheet which revealed that the appellant was regularly using excessive amps on 11 KV during peak hour load restrictions between 1.6.1995 to 9.6.1995, despite the fact that the exemption allowed to it stood expired on 31.5.1995. The ANITA DEVI checking at the grid sub station was done jointly by the Executive 2014.12.09 10:55 I attest to the accuracy and integrity of this document Chandigarh LPA No.1938 of 2014 (O&M) 7 Engineer/ T.A. Ropar and Executive Engineer/ T.A. Ludhiana besides Executive City/ Barnala and checking having been done by more than one officer could not be faulty. In case of independent feeder, the grid sub station was perceived to be the best place to check violations of peak hour load restriction because the appellant being a big industrial unit, where chances of switching off or changing over the generator sets could have been easily made by the time, checking squad made its entry in the premises and reach to the meter room/ installations. Since the feeder from the grid sub station was the independent feeder of the appellant, which was lawfully checked, therefore, no fault could have been attributed to such a mechanism.
9. The appellant has tried to project a legal proposition to say that the discretion conferred upon the executive authorities must be exercised within clearly defined limits. In other words, the appellant contends that the respondent-board acted with arbitrary power and the discretion vested in it has not been exercised judiciously. Reliance is placed upon AIR 1967 SC 1427 titled S.G. Jaisinghani vs. Union of India and others. The facts of the cited judgment were wholly on different pedestal. It is true that the discretion has to be exercised on sound principles and should satisfy judicial conscience. The impugned action of the respondent-board was in confirmity with the rule and procedure. The perception in a given case cannot be made to say that a theft of energy would require prior notice to the person making theft. Moreover the theft ANITA DEVI was detected from independent feeder of none else but the 2014.12.09 10:55 I attest to the accuracy and integrity of this document Chandigarh LPA No.1938 of 2014 (O&M) 8 appellant. No fault could be pointed out against the mechanism of fraud detection, so adopted by the department, which was the only workable solution in the lights of the facts and circumstances of the case particularly when meter installations in the premises were situated about half a kilometre from the main entrance of the factory and the process of switching over the energy load from meter to generator sets hardly takes few seconds.
10. The appellant also relied upon (1983) 4 SCC 582 B.S.Minhas vs. Indian Statistical Institute and others. The cited decision pertains to administrative actions for which the authorities are bound to adhere to the procedural standards so as to avoid arbitrariness. There cannot be any dispute with the proposition but such a question does not crop up for consideration because whatever was done in order to bring out the fraud of the appellant was in accordance with rule of law and procedure. Since fraud vitiates all solumn acts, therefore appellant has no equities and menance of peak hour load violations was lawfully dealt by the respondent-board.
11. Looking to the findings and material on record, no case for interference is made out. Hence, the appeal is dismissed.
(SURYA KANT) (RAJ MOHAN SINGH)
JUDGE JUDGE
November 25, 2014
anita
ANITA DEVI
2014.12.09 10:55
I attest to the accuracy and
integrity of this document
Chandigarh