Madras High Court
S.Jayamani vs The Government Of Tamil Nadu on 28 February, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 28.02.2012
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
W.P.No.38754 of 2002
1.S.Jayamani
2.M.Nallusamy
3.N.Shanmugam
4.Ramasamy Gounder
5.Mrs.Sivam
6.S.Maheswaran
7.P.Muthusamy
8.P.Shanmugam
9. N.Paramasiva Gounder
10.S.Krishnan
11.S.Subramaniam
12.M.Sadasivam
13.P.R.Mahesh
14.C.Yoganathan
15.Chinnappan
16.R.Subramani
17.Krishnasamy
18.Ramasamy Gounder
All are members of Kurumbala Mahadevi Neeretru Pasana
(Lift Irrigation) Co-operative Society
Paramathivelur Taluk
Namakkal District 637 213. ..Petitioners
-Vs.-
1. The Government of Tamil Nadu
rep. by its Secretary, Electricity Department
Fort St. George, Chennai 9.
2. The Chairman,
Tamil Nadu Electricity Board
Anna Salai, Chennai 2.
3. The Superintending Engineer
Tamil Nadu Electricity Board,
Mettur, Salem District.
4. The Junior Engineer
(Operation & Maintenance)
Tamil Nadu Electricity Board
Jedarpalayam, Paramathivelur Taluk
Namakkal District.
5. The Special Officer
S.No.263, Kurumbala Mahadevi
Neeretru Pasanam (Lift Irrigation)
Co-operative Society
Kurumbalamahadevi Post and Village
Paramathivelur Taluk
Namakkal District 637 213. ..Respondents
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorari to call for the records of the respondents 1 to 3 which has culminated in the order of the 4th respondent dated 5.9.2002 made in Proceedings No.,/kp/bgh/ , g n$ gh/vz;337 and the consequential order dated 27.9.2002 of the fifth respondent served on the petitioners herein and quash the same.
For Petitioner : Ms.G.Thilakavathi
For Respondents : Mr.I.Arokiyasamy
Govt. Advocate for R1
Mr.S.K.Rameshwar (R2 to R4)
No appearancea for R5
O R D E R
The writ petition is filed for issuance of a writ of certiorari to call for the records of the respondents 1 to 3 which has culminated in the order of the 4th respondent dated 5.9.2002 made in Proceedings No.,/kp/bgh/ , g n$ gh/vz;337 and the consequential order dated 27.9.2002 of the fifth respondent served on the petitioners herein and quash the same.
2. The petitioners are members of the Society and they are engaged in agricultural operations by lifting water from wells adjacent to the river Cauveri basin by using electrical energy. For lifting water from the well adjacent to the Cauveri river by using electrical energy, they got permission vide G.O.Ms.No.280, P.W.D. dated 2.3.1981. The Government through its policy announced free supply power for agricultural operation. By virtue of the above policy of the Government the petitioner society is enjoying the free supply of power from the year 1990. The farmers of the society were served with notice by the fifth respondent/ Electricity Board demanding payment of electrical charges at the rate of Rs.250/- per horse power for usage of electricity to draw water from the well near the Cauveri river. The writ petition has been filed stating that the electrical energy is used for lifting the water for agricultural irrigation purpose and therefore, there should be no discrimination and the benefit in terms of G.O.Ms.No.280, P.W.D. dated 2.3.1981 and G.O.Ms.No. 2431, P.W.D. Dated 17.11.1990 should be uniformly applied including the farmers of the petitioner society. Status quo order was passed on 23.9.2002 and it continues as on today.
3. Today, when the matter is taken up for final disposal, Mr.Rameshwar, learned counsel for the respondents stated that the Tamil Nadu Electricity Commission has passed an order extending the benefit to the similarly placed Association of small farmers, who used Electricity energy supplied by the respondents-Board to lift the water from the Wells for agricultural operations. The gist of the order as contained in the Chief Engineers memo CE/Comml./EE.1/AEE.2/D.400/2004, dated 24.7.2004 is as follows:-
" In the Tariff Order dated 15.3.2003, the Hon'ble TNERC has fixed tariff rates of Rs.250/- per HP per annum / 20 paise per unit for the nither free category or LT Tariff IV Agriculture.
In the order dated 25.6.2003 (Ref.1) communicated in reference second cited The Tamil Nadu Electricity Regulatory Commission has ordered that if electricity is used for agriculture purpose. The service shall be billed under Tariff-IV Agriculture, irrespective of ownership of the land. This order took effect from 1.7.2003.
Prior to the Commission's Tariff order dated 15.3.2003, free supply has been given to individual agriculturists. Supply to the agricultural services in the name of trust, company etc. (not in the name of individual farmers) were billed under LT Tariff -V (Commercial and Others) owing to the clarification issued by the Government and objection raised by AG's Audit.
Aggrieved by the order for not effecting free supply and change to commercial tariff some consumers filed writ petitions in the High Court of Madras and Civil Suits before Munsif Courts. Other consumers paid the arrears due to change of tariff. There were representations to apply the orders of the TNERC under reference (1) even prior to 01.7.2003.
The above matter was referred to the Tamil Nadu Electricity Regulatory Commission to adjudicate upon the applicability of order of TNERC dated 25.6.2003 even charged under Tariff -V (Commercial and Others).
The TNERC in its letter dated 14.4.2004 has ordered that the commission has no objection in applying the above stand even for earlier period (Commercial and others) if the TNEP desires.
In this connection, the following orders are issued.
TNERC's order dated 25.6.2003 is now to be given effect to the earlier period prior to 1.7.2003 also. All such cases can be reworked and any excess payment adjusted/ refunded. Audit objections pending can be arranged to be dropped."
4. In view of the order of the Tamil Nadu Electricity Regulatory Commission and the Chief Engineer's letter, the same benefit will enure to the petitioners as well. The impugned demand is set aside in terms of Tamil Nadu Electricity Regulatory Commission order No. T.O.P.1-5, dated 25.6.2003. This writ petition is allowed. No costs.
krr/
1. The Secretary, Electricity Department Fort St. George, Chennai 9.
2. The Chairman, Tamil Nadu Electricity Board Anna Salai, Chennai 2.
3. The Superintending Engineer Tamil Nadu Electricity Board, Mettur, Salem District.
4. The Junior Engineer (Operation & Maintenance) Tamil Nadu Electricity Board Jedarpalayam, Paramathivelur Taluk Namakkal District