Gujarat High Court
Shantigram Estate Management Private ... vs Uttar Gujarat Vij Company Limited & 2 on 18 September, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/11526/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11526 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SHANTIGRAM ESTATE MANAGEMENT PRIVATE LIMITED &
1....Petitioner(s)
Versus
UTTAR GUJARAT VIJ COMPANY LIMITED & 2....Respondent(s)
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Appearance:
MR. MIHIR JOSHI, SR. ADVOCATE with MR. SHAMIK BHATT & MS. DHARA
MAUSURIYA, ADVOCATES for SINGHI & CO, ADVOCATE for the Petitioners.
MR. S.N. SHELAT, SR. ADVOCATE with MR PREMAL R JOSHI, ADVOCATE
for the Respondent(s) No. 2
MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 18/9/2015
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HC-NIC Page 1 of 30 Created On Sat Sep 19 01:44:47 IST 2015
C/SCA/11526/2014 CAV JUDGMENT
CAV JUDGMENT
1. In the present petition filed under Article 226/227 of the Constitution of India, the petitioners have made following prayers in paragraph 8 :
"8. The petitioners, therefore, most humbly and respectfully prays that:
(A) Your Lordships may be pleased to issue a writ of Certioriari and/or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate writ, order or direction to quash and set aside the impugned estimates and the consequent demands raised by Gujarat Energy Transmission Company Limited through Uttar Gujarat Vij Company Limited vide letters dated 24.9.2012 and 5.1.2013 in respect of the development of the transmission network from Vadavi to Shantigram Township.
(B) Your Lordships may be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction to Uttar Gujarat Vij Company Limited to refund the supervision charges amounting to Rs.3.19 crores made by the petitioner no.1 under protest towards the wrongful estimate issued by Gujarat Energy Transmission Company Limited through Uttar Gujarat Vij Company Limited vide letters dated 24.9.2012 and 5.1.2013 for the development of the transmission network from Vadavi to the Shantigram Township.
(C) Your Lordships may be pleased to issue a writ of Mandamus or an other appropriate writ, order or direction to Uttar Gujarat Vij Company Limited to refund the expenditure incurred by the petitioner no.1 proportionately in respect of the LT Connections at Shantigram Township.
(i) In the construction of EHT Network from Vadavi to Shantigram Township.
(ii) In the modification carried out at the Vadavi sub station and
(iii) In the development of 66 KV sub station at Shantigram Township.
Page 2 of 30HC-NIC Page 2 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT (D) Your Lordships may be pleased to issue a writ of Mandamus or an other appropriate writ, order or direction to Uttar Gujarat Vij Company Limited to refund the pro-rata charges amounting to Rs.1,16,90,000.00 made by the petitioner No.1 under protest.
(E) Your Lordships may be pleased to issue a writ of Certiorari and/or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate writ, order or direction to quash and set aside the estimate raised by Uttar Gujarat Vij Company Limited in respect of the development of the distribution network within the Shantigram Township and direct Uttar Gujarat Vij Company Limited to revise the estimate in terms of the GERC orders dated 30.12.2010 and 5.11.2011 i.e. on per K. W. basis.
(EE) Alternatively, in the situation that Your Lordships do not grant prayer E hereinabove, Your Lordships may be pleased to (I) quash and set aside the subsequent demand notices for individual connections issued by the respondent No.1 seeking to charge the Petitioner No.1 on KW basis, (ii) direct the Respondent No.1 to refund the payment made by the Petitioner No.1 against such demand notices, and (iii) restrain the Respondent No.1 from issuing such further notices under KW basis in the future.
(F) Your Lordships may be pleased to issue a writ of Certiorari and/or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate writ, order or direction to quash and set aside the impugned orders dated 5.7.2013 and 14.8.2013 passed by the Electricity Ombudsman, Gujarat State in case No.61/2013;
(G) Such other and further relief(s) as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted. "
2. The case of the petitioners is that the petitioner No.1 Company is developing an Integrated Township Project ("Shantigram Township") in Ahmedabad District under the Page 3 of 30 HC-NIC Page 3 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT Regulations for Residential Township, 2009 ("the Township Regulations"). The respondent No.1 - Uttar Gujarat Vij Company Limited ("the UGVCL") raised wrongful estimate as forwarded by the Gujarat Energy Transmission Company Limited ("GETCO) - respondent No.2 for the establishment of transmission network from Vadavi to the Shantigram Transmission which includes establishment of 66 K.V. Substation and also raised wrongful estimate for establishment of distribution network of Low Tension (LT) Connection for 1640 units aggregating to 8.5 MVA LT connections and 5.5 MVA HT Connections for electricity requirement of the individual units within the Shantigram Township. The petitioners have averred in the petition that for phase-wise development of the Shantigram Township, the petitioner No.1 indicated establishment of 66 KV Line near the location of Shantigram Township and then having come to know about the need of the land for setting up Substation by respondent No.1 and 2, it provided the land within the township. However, consolidated application on behalf of 1640 residential units aggregating 8.5 MW of LT connections and 5.5 MW HT connection for supply of electricity to Shantigram Township was considered for general electrification of Shantigram Township and the supervision charge of Rs.3.19 crore Page 4 of 30 HC-NIC Page 4 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT (approximately) @ 15% was levied. The petitioner No.1 then indicated that 2074 individual applications (which was revised from earlier number 1640 for individual units)were being filed and requested to provide separate estimate for domestic residential consumers. However, such request to accept 2074 applications was refused and the petitioner No.1 was intimated to deposit the amount of new Substation to be constructed at Shantigram Township and Rs.1,06,55,684.00 being supervision charges @15% of Rs.7,10,37,892.00. Subsequently, on revised estimate 15% supervision charges amounting to Rs.4.01 crore approximately were levied upon the petitioner No.1. The petitioner No.1 required electricity for the residents of township and respondent No.1 and 2 since are under obligation to provide transmission line and to establish the electric plant, the petitioner no.1 could not have been subjected to heavy estimate for establishment of transmission network and payment of 15% supervision charges. Since the request of the petitioner no.1 was turned down, the petitioner No.1 challenged the action of respondent no.1 and 2 before the Consumer Grievances Redressal Forum which was rejected against which the petitioner no.1 approached the Electricity Ombudsman, Gujarat State which has upheld the estimate given by the respondent no.1 and 2 and the charges levied on Page 5 of 30 HC-NIC Page 5 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT the petitioner no.1, however held that the respondent No.1 and 2 cannot refuse to register 2074 applications made on behalf of the individual residential units. It is stated that the petitioner No.1 has paid the charges demanded under protest.
3. Learned Senior Advocate Mr. Mihir Joshi appearing with Mr. Shamik Bhatt and Ms. Dhara Mausuriya, Advocates for Singhi & Company for the petitioners submitted that the petitioner No.1 Company is developing residential township and for electricity supply to the residents of the township, it made consolidated application for 14 MW Power Supply which could be said to be for domestic consumer and, therefore, petitioner No.1 was exempted from paying the costs of establishment of Substation and laying of transmission line to the Substation at the township. Mr. Joshi submitted that the application of the petitioner was wrongly considered for electrification of the township and not for electricity supply to the domestic consumers. Mr. Joshi submitted that once the electricity supply was required for the residents of the township, the petitioner No.1 was not required to bear any costs as per the estimate given by respondent No.1 and 2 for transmission network and, as a consequence, respondent No.1 and 2 were not authorized to levy 15% of the supervision Page 6 of 30 HC-NIC Page 6 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT charges on the estimate for transmission network. Mr. Joshi submitted that even if the petitioner No.1 was to bear the costs for transmission network, the estimate should have been as per Regulation-4 of the Gujarat Electricity Regulatory Commission (Licensee's Power to Recover Expenditure Incurred in Providing Supply and Other Miscellaneous Charges) Regulations, 2005 ("GERC Regulation"). Mr. Joshi submitted that the demand of electricity supply by petitioner No.1 was not beyond 440 volts and, therefore, there was no justification for respondent No.1 and 2 to provide estimate by considering the demand of the petitioner no.1 for Extra High Tension ("EHT") Power Supply. Mr. Joshi submitted that it is the statutory obligation on the part of respondents No.1 and 2 as per section 43 of the Electricity Act, 2003 ("the Act") to provide for transmission line till the residential township without subjecting petitioner No.1 to unreasonably high estimate for the cost of transmission line and the substation and 15% supervision charges on such estimation. Mr. Joshi submitted that the Regulations for Township - 2009 could not apply for the purpose of estimate and levy of charges for transmission network for electricity supply to the residents of the township, therefore, it cannot be put into service for not treating the application of petitioner no.1 for domestic purposes. Mr. Joshi submitted that respondent No.1 and 2 were Page 7 of 30 HC-NIC Page 7 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT also not justified in including pro-rata charges to total requirement of electric supply in the estimate given to the petitioner no.1 for HT Connection, as levy of such charge would amount to duplication of the charges for HT Connection. Mr. Joshi submitted that since demand of supply included supply for LT connections, the petitioner no.1 could not have been levied supervision charges by considering total HT supply. Mr. Joshi submitted that in any case, the petitioner no.1 spent for full capacity of 66 KV Substation and if such substation is to be permitted to be used by any other consumer, the petitioner no.1 is required to be refunded proportionate costs incurred vis-viz utilization of the substation for the requirement of residents of township and also to refund proportionate supervision charges on such basis or respondent No.1 and 2 may not allow use substation to any other consumer.
4. Learned Senior Advocate Mr. S.N. Shelat appearing with learned Advocate Mr. Premal R. Joshi for the respondent No.2 submitted that the petitioner No.1 is establishing the township under the Township Regulation of 2009 and it is it's obligation to set infrastructures which would include supply of electricity to the residents of the township. Mr. Shelat submitted that the Page 8 of 30 HC-NIC Page 8 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT petitioner no.1 cannot be considered as consumer as it is doing commercial business of constructing township for the persons who will be the occupants of residential units in the township and they will be the real user of the electricity supply as a domestic consumers. Mr. Shelat submitted that the petitioner no.1 being developer of the township, cannot claim to be a domestic consumer and, therefore, not exempted from paying cost of transmission network and supervision charges. Mr. Shelat submitted that the demand of supply made by petitioner No.1 is beyond 440 volts for which the petitioner No.1 required establishment of substation of 66 KV and, therefore, no error is committed by respondent No.1 and 2 to treat the demand of the petitioner as Extra High Tension supply. Mr. Shelat submitted that for such Extra High Tension Supply, Regulation-5 of the GERC Regulations will apply and, therefore, it cannot be said that the respondent Nos. 1 and 2 have given wrong estimate and levied the supervision charge illegally. Mr. Shelat submitted that the pro-rata charges are considered as per the rules while calculating the estimate for transmission network of Extra High Tension Supply and the petitioner cannot make any grievance for such charges. Mr. Shelat submitted that the Commission as also the Ombudsman both have examined the grievance of the petitioner No.1 and Page 9 of 30 HC-NIC Page 9 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT this Court, having limited power of judicial review, may not interfere with the orders impugned in the petition. Mr. Shelat submitted that once the case of the petitioner No.1 is governed by Regulation-5 of the GERC Regulation, the petitioner no.1 would be required to bear full cost of transmission network irrespective of its part demand for LT Connection and, therefore, petitioner No.1 is not entitled to proportionate refund of the supervision charges. Mr. Shelat submitted that the petitioner No.1 being developer, cannot be considered to be domestic consumer, and respondent No.1 and 2 therefore have rightly subjected the petitioner No.1 to bear cost of transmission network and committed no error in levying supervision charges at the rate of 15%.
5. Learned Advocate Ms. Bhaya appearing for respondent No.1 while adopting the arguments of learned Senior Advocate Mr. Shelat, submitted that the petitioner no.1 having agreed to bear the cost of transmission network cannot be permitted to urge that it was not liable to pay the cost thereof. Ms. Bhaya submitted that the petitioner No.1 cannot claim that it is a domestic consumer, as, it being a developer, is under obligation to provide offset infrastructure for the residential township. Ms. Bhaya submitted that dividing requirement of Page 10 of 30 HC-NIC Page 10 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT supply in LT and HT Connections by petitioner no.1 will not be a ground for proportionate reduction in the estimate or supervision charges as there is no change in the cost of establishment of transmission network.
6. Having heard the learned advocates for the parties, it appears that for developing the residential township, the petitioner No.1 indicated its requirement of power supply and distribution network in its letter dated 5.2.2010 at Annexure D addressed to the Additional Chief Engineer of respondent No.1. It is stated therein that the petitioner No.1 proposes and plans to phase-wise develop 30 million sq. ft. of residential and commercial property over a period of 10 years and has indicated phase-wise anticipated power demand for five different phases, total of which, as mentioned, is 82 MW. In this letter, it also indicated requirement of suitable receiving station for such power load and suggested realignment of existing 66 KV Line to facilitate development of township and requested to immediately sanction 66 KV receiving station and realignment of 66 KV line so as to release 1.5 MW of load for the construction and other miscellaneous purposes.
7. The Township Regulations are framed under the Gujarat Page 11 of 30 HC-NIC Page 11 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT Town Planning and Urban Development Act, 1976 ("the Development Act"). The Government, by its resolution dated 1.12.2009, has sanctioned the Township Regulations in exercise of its powers under section 122 of the Development Act. It is stated therein that all the prescribed area development authorities to send their proposal to the Government to include such regulations in their General Development Control Regulations ("GDCR") and till their inclusion comes into effect, the resolution sanctioning Township Regulations shall be implemented by the prescribed authorities.
8. Undisputedly, the petitioner no.1 is developing residential township under the Township Regulations sanctioned by the Government. Mr. Joshi was right when he submitted that the matters regarding power supply are governed by the provisions of the Act and the regulations made thereunder and cannot be governed by the Township Regulations. However, the fact remains that the residential township being developed by petitioner no.1 is to comply with the provisions made in the Township Regulations and petitioner No.1 is to discharge its obligations under the Township Regulations as a developer of such township.
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9. At this stage, some relevant regulations from Township Regulations need to be referred.
"3.4 'Township Developer' shall mean any person/persons or authority or authorities; authorized by the prescribed authority as the case may be to perform such functions as may be specified under these regulations. 3.7 'Residential Township' under these regulations shall mean a parcel of land owned by a township developer subject to a. Minimum 60% of the land eligible for developing after deducting the land used for public purpose infrastructure, is put to residential use.
b. Minimum area not less than 40.00 hector in case of AUDA, SUDA, GUDA, VUDA, RUDA, BADA & JADA and an area not less than 20.00 hector in case of other towns and the relevant appropriate authority areas;
3.9 'Infrastructure' shall includes roads, streets, open spaces, parks, playgrounds, recreational grounds, water and electric supply, street lighting, sewerage, drainage, storm water drainage public works and other utility services and convenience;
3.10 'Cross Over Infrastructure' shall be the part of the infrastructure which is required to pass through the township so as to provide the facility to the township vicinity area.
3.11 'Public Purpose Infrastructure (PIA' shall mean the infrastructure provided as per these regulations which the developer shall:
- develop, as per prescribed guidelines and on completion transfer it to the appropriate authority;
- operate and maintain for the maintenance period;
- Development shall be carried out as per the specifications approved by the Prescribed Authority.
For the purpose of administration, the PPI shall vest with the appropriate authority.
8. CONTENTS OF THE TOWNSHIP PROPOSALS : The proposal shall include :
8.1 master plan of the area:Page 13 of 30
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- demarcating the details for all parcels of the land separately for
- Public purpose infrastructure;
- Primary infrastructure;
- Rest of the uses;
8.2 detailed area statement of each parcel of land as mentioned in 8.1, the FSI calculations;
8.3 layout of buildings and infrastructure as per norms; 8.4 detailed plans for the buildings and infrastructure; 8.5 estimates to develop the infrastructure separately for cross over infrastructure other infrastructure; 8.6 Details of project finance;
8.7 management plan including proposals maintenance and upkeep 8.8 proposal expressing the ability to develop and maintain such project;
9. PUBLIC PURPOSE INFRASTRUCTURE 9.1 Cross over infrastructure & Road The cross over infrastructure shall be provided as per the specifications of the competent authority and shall:
- sync with the T.P./D.P. Roads in the vicinity.
- include at least 30 mts wide road on a part of the boundary where T.P./D.P. Road does not abut to the boundary.
- The total area of the crossover infrastructure shall be minimum 10% of the Township area of 40 hac, and for each additional area of 20 hac. the cross over infrastructure shall be provided @ 12% 9.2 Other amenities:
- 5% for School, Hospital and Public Amenities; and
- 5% for Parks and Garden, catering to the neighbourhood with public access. Such plots shall have minimum area not be less than 3000 sqmts;
Provided that in case if the township consists of buildings exceeding height more than 40 mts, the developer shall have to provide space for fire brigade services, Such services shall be operated and maintained by the township developer but for the purpose of administration it shall be manned by the Municipal staff.
11. PHYSICAL PLANNING PARAMETERS:
11.11 Ensure continuous and quality power supply; 11.15 Space and separate access required as per rules shall have to be provided for power distribution; 11.17 Street lights shall be operated using Solar Power Page 14 of 30 HC-NIC Page 14 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT
12. RESPONSIBILITIES OF THE TOWNSHIP DEVELOPER: The Township Developer shall with regard to the township shall:
12.1 acquire/own / pool the land at his own expenses; 12.2 provide at his own expenses the facilities mentioned in clause 8 and 9;
12.3 develop the township at his cost as approved; 12.4 develop the land & buildings within for public purpose infrastructure as approved; 12.5 provide and an undertaking about the terms and conditions the plan to maintain and upkeep of the infrastructure;
12.6 disclose to the beneficiaries the entire details of the plan, design, the contracts and other details effecting the beneficiaries;
12.7 for the maintenance period, maintain and upkeep as per the undertaking, the infrastructure other than the public purpose infrastructure;
12.8 for the maintenance period, maintain and upkeep the land and property used for public purpose infrastructure; 12.9 develop the public purpose infrastructure as per the specifications prescribed by the prescribed committee; 12.10 on issue of building use permission, the township developer shall execute a bank guarantee equivalent to 2% of the cost incurred for the infrastructure. T he authority shall revoke this bank guarantee if required to maintain the infrastructure. On the expiry of the maintenance period, this guarantee shall be converted into a corpus fund of the members of the cooperative society.
12.11 On expiry of the maintenance period, he shall transfer the public purpose infrastructure, free from all the encumbrances to the competent authority. To this effect, the township developer give an undertaking; 12.12 On the issue of building use permit, organize to form a Registered Cooperative Society of all beneficiaries, elect a promoter/president, issue share capital to each of the beneficiary 12.13 The scheme developer shall create a common facilities and community utilities as per clause no. 8 (public purpose infrastructure) and hand over to the competent authority.
13. GRANT/REFUSAL OF THE PERMISSION :
13.1 On the receipt of the recommendation of the authority or otherwise, the State Government under section 29(1)(ii) of the Act, may relax the GDCR and these regulations to grant or refusal the proposal.
13.2 Validity and lapse of the permission shall be according to section 32 of the Act.Page 15 of 30
HC-NIC Page 15 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT 13.3 Development to be commenced within one year from the issue of the permission to construct or the NA order, whichever is earlier;
13.4 Interpretation of these regulations 13.4.1 If any question or dispute arises with regard to interpretation of any of these regulations the decision of the Government shall be final.
13.4.2 In conformity with the intent and spirit of these regulations, the Government may, if required in appropriate cases, use the discretionary powers to decide in any of the matters.
14. FLOOR SPACE INDEX :
For the purpose of these regulations, irrespective of the Floor Space Index (FSI) prescribed in any zone, it shall be regulated as under:
- Global FSI (GFSI) shall be 1.0
- Additional Premium FSI shall be permitted on payment
to the competent authority, as below:
Sr. No. Additional FSI Premium Rates
1 25% of GFSI 40% of the Jantri
Rates
2 Additional 25% of GFSI 50% of the Jantri
Rates
Maximum permissible use 1.5 FSI
16. ZONING, GROUND COVERAGE & OTHER REGULATIONS:-
16.1. Irrespective of any zone, uses in the township shall be permissible as proposed in the application under these regulations. Provided that such permission can be denied by the government on account of safety. 16.2. Where ever not mentioned, the provision GDCR shall be apply mutates mantis.
16.3. Even after approval under these regulations, permissions from Airport Authority of India, Department of Forest and Environment for EIA clearance, and necessary permission from relevant department, as required, shall be mandatory.
17. DEVELOPMENT OF EXTERNAL (OFFSITE INFRASTRUCTURE): THE TOWNSHIP Developer shall provide the offsite infrastructure shall:
17.1. Connect to the existing road or development plan road or town planning scheme road having width not less than 30 mits.
17.2. The developer shall himself provide water supply at Page 16 of 30 HC-NIC Page 16 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT his own or connected with the city system. 17.3. Arrange to collect, treat and dispose in the township area. However for future shall make provision connect to the city drainage system;
17.4. Arrange for the power supply;
17.5. Bear the entire cost for the offsite infrastructure;
18. SUPERVISION AND MONITORING OF THE QUALITY OF CONSTRUCTION 18.1 To ensure that the quality of construction of public purpose infrastructure, the prescribed authority, shall appoint a consultant who would supervise the quality and timely execution of the project.
18.2. The scheme developer for supervision, deposit 2% of the estimated cost of cost of public purpose infrastructure. Such deposit shall be refunded once the consultant issue of completion certificate.
19. GRIEVANCE REDRESSAL:
19.1. Any occupant of any of the buildings who is entitled to use the facilities shall have a right to lodge his complain before the prescribed authority; 19.2. The prescribed authority shall, on the merits, address the issues to:
- Direct the developer to resolve the issue;
- May resolve the issue to by reconstructing/repairing at the cost of developer.
19.3. The prescribed authority shall recover the cost by revoking the bank guarantee for the cost incurred for the works required to be done by the prescribed authority as per above clause. "
10. The above regulations would not require any deliberation to say that the development of residential township is to be nourished under the supervision of the prescribed authority to ensure full blown facilities for its inhabitants and the petitioner No.1 who is under obligation to set infrastructure for residential township under the Township Regulations when applied for power supply cannot be considered to be a domestic consumer. Neither in the Act nor under the GERC Regulation, "domestic consumer" is defined but "consumer" is Page 17 of 30 HC-NIC Page 17 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT defined in the Act. The definition of consumer under section 2(15) of the Electricity Act reads as under:
"2(15) "consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be;"
11. The petitioner in its letter dated 5.2.2010 annexure D indicated requirement of 1.5 MW of load for construction and other miscellaneous loads. However, the phase-wise power demand anticipated of 82 MW was for residential township.
Petitioner No.1, is thus not the person who is supplied with electricity for its own use nor is the person whose premises are, for the time being, connected for receiving electricity with the works of licensee-respondent No.1. It just required release of 1.5 MW loads electricity for construction purpose. Petitioner No.1 therefore cannot be said to be a domestic consumer much less a consumer. As per the dictionary meaning, the word domestic means of or pertaining to one's house or home, or one's household or family; relating to home life; as, domestic concerns, life, duties, cares, happiness, worship, servants. Thus, person whose requirement of electricity is for his residential house, and for non-commercial purpose could be said to be a domestic consumer. Petitioner No.1 does not Page 18 of 30 HC-NIC Page 18 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT belong to such category, therefore, cannot claim exemption from paying estimated cost for establishing transmission network for the supply of electricity to the residential township.
12. Section 45 and 46 of the Act provide for power of distribution licenses to recover the charges for supply of electricity in pursuance of section 43 from owner or occupier of the premises applying for such supply of electricity to such premises. It is under section 45 and 46 of the Act, the GERC Regulations were framed by notification no.9/2005 to recover the expenditure incurred in providing supply and other miscellaneous charges.
13. Petitioner No.1, therefore, when made application dated 5.1.2012 Annexure J for 14 MW Electrical Power (LT Connection 8.5 MW and HT Connection - 5.5 MW) is the applicant within the within the meaning of definition of applicant in regulation 2.5 (ii) and respondent No.2 is not correct when it says in its affidavit that the petitioner No.1 is not an applicant for the power supply. However, such application was as a developer and not to use the electricity for domestic purpose. In such view of the matter, petitioner no.1 was required to bear expenses for the transmission network and township infrastructures. If the petitioner No.1 Page 19 of 30 HC-NIC Page 19 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT was to undertake such work, it would be required to pay 15% supervision charges as provided by GERC Regulation.
14. The Hon'ble Supreme Court, in the case of Uttar Pradesh Avas Evam Vikas Parishad versus Uttar Pradesh Power Corporation Limited reported in (2011) 10 SCC 223, has dealt with the issues about requirement of imposition of supervision charges where builder chooses to erect infrastructure itself instead of it being done by electricity agency. The Hon'ble Supreme Court has held and observed in para 23 to 29 as under:
"23. The Electricity Supply Code, 2002 which has statutory trappings was formulated to carry out functions earlier assigned to the U.P. Electricity Regulatory Commission under Section 10 of the U.P. Electricity Reforms Act, 1999 (already extracted above). This is apparent from the order of the U.P. Electricity Regulatory Commission, reproduced hereunder:
"Electricity Supply Consumers Regulation, 1984, formulated by the erstwhile U.P. State Electricity Board covers the conditions of supply of electricity to retail consumers. After the enactment of U.P. Electricity Reforms Act, 1999, the U.P. Electricity Regulatory Commission has been assigned functions under Section 10 of the Act to regulate the distribution, supply, utilization of electricity, issue licenses to regulate the working of the licensees and to set the standards of services for the consumers as well as standards for the electricity industry in the State."
Since the provisions of the Electricity Supply Code, 2002, has statutory trappings, the same would Page 20 of 30 HC-NIC Page 20 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT override and supersede the stipulations contained in the Office Memorandum dated 17.1.1984, which has the force of merely an administrative order.
24. We are also satisfied, that the Appellate Tribunal for Electricity, while adjudicating upon the controversy in question, was fully justified in relying upon clauses 4.3, 4.5 and 4.45 of the Electricity Supply Code, 2002. The aforesaid clauses are being reproduced hereunder:
"4.3 The Licensee is responsible for ensuring that its distribution system is upgraded, extended and strengthened to meet the demand for electricity in its area of supply.
4.5 The cost of extension and upgradation of the system for meeting demand of new consumers shall be recovered from the new consumers through system loading charges as approved by the Commission. In areas where distribution mains do not exist, the costs for installation of new distribution mains shall normally be covered by grant from the State Government or local body or any collective body of consumers or a consumer. The Licensee may also install new Distribution Mains from the surplus available with the Licensee after meeting all expenditure. The Licensee shall submit a policy regarding the utilization of surplus funds and the installation of Distribution Mains to the Commission for approval. The.....
(a) responsibility of construction of the required distribution network in case of a new residential, commercial or an industrial complex with load exceeding 25 KW shall be that of the body or the agency (public or private) that constructs such complex, and
(b) responsibility for laying the distribution network for street lights on any new road/street shall be that of the local authority concerned.
4.45 The estimate shall be prepared as per the provisions of the Indian Electricity Act, 1910 and on the basis of charges approved by the Commission. The Licensee shall submit once in two years a proposal to the Commission for approval of various charges to be charged by the Licensee from the consumer in the estimate. The estimate shall be valid for two months. If the work is to be done by Page 21 of 30 HC-NIC Page 21 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT the applicant, Licensee shall charge 15% of the estimate as supervision charges that shall need to be deposited before work begins. In other cases, Licensee shall commence the work after the applicant has deposited the full amount of the estimate."
25.The cumulative effect of the aforesaid statutory provisions leave no room for any doubt, that the responsibility of erection of transmission lines, associated distribution sub-stations and L.T. distribution mains, throughout the State of U.P., was originally exclusively being carried out by the UP, SEB, and thereafter by the U.P. Power Corporation, as "designated licensees". The aforesaid activity was also being carried out exclusively in colonies/multistoried buildings by the aforesaid, again as "designated licensees".
26. Subsequently, through the Government order/notification dated 2.6.1982, by relaxing the provisions of the Indian Electricity Rules, 1956, the U.P. Avas Evam Vikas Parishad was permitted, subject to its complying with certain conditions, the liberty to carry out the aforesaid electrification works. The delegated work was liable to be carried out in terms of the prescribed standards. To ensure that works were being executed as per norms, clause 4.45 of the Electricity Supply Code, 2002, provided for supervision of the works by the U.P. Power Corporation. The aforesaid supervision work was liable to be carried out by charging 15% of the estimated cost of the work. No fault can be found, for having done so.
27. According to the learned counsel for the appellant, the rate of supervision charges was hiked from 5% to 15% unauthorizedly, and without application of mind. The submission was, that the supersession of the Office Memorandum dated 17.1.1984 would have an adverse effect on the public at large, inasmuch as, the eventual cost of construction of houses offered by the U.P. Avas Evam Vikas Parishad to the general public would be costlier. The subject-matter under consideration is erection of transmission lines, associated distribution sub-stations and L.T. distribution mains.
28. The aforesaid activity though indispensable, has dangerous connotations. If appropriate standards are not maintained and if adequate safety measures Page 22 of 30 HC-NIC Page 22 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT are not adopted, disastrous consequences are possible. Delegation of such activity has necessarily to be regulated by supervision, so as to avoid any lapses. Supervision needs inputs which have to be paid for. The Electricity Supply Code, 2002, stipulates 15% of the total estimated cost of electrification works as supervision charges. It is not the case of the appellant, that the aforesaid charges are disproportionate to the work involved or have been fixed arbitrarily. It is not as if the appellant has any compulsion of carrying on these works by itself. It has chosen to do so, by taking the responsibility on itself. If the supervision charges are unacceptable, the appellant can require the U.P. Power Corporation to undertake the electrification work by depositing the estimated cost with the respondent.
29. In our considered view, the fact, that the public at large would have to bear the brunt of the hike in supervision charges, is totally unacceptable, especially in the background of the position noticed above. The instant contention is even otherwise irrelevant to the subject- matter under consideration. Supervision charges have been levied, so that the agencies, such as the appellant herein, who decide to carry out the activities of erection of transmission lines, associated distribution sub-stations and L.T. distribution mains, on their own, abide by the minimum prescribed norms. Higher public cost ensuring prescribed safety measures, would certainly override the cost consideration projected by the learned counsel for the appellant. We find no merit in the instant contention as well."
15. However, grievance made is that the actual estimate given to the petitioner is not in accordance with the GERC Regulations. Regulation 4 and 5 read as under:
"4. PROVISION FOR LOW TENSION SUPPLY 4.1 In case of applications for Low Tension supply,where such supply requires only laying the service line from the existing distributing main to the consumer's premises, the Distribution Page 23 of 30 HC-NIC Page 23 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT Licensee shall estimate the cost of service line and the cost of terminal and metering arrangements at the premises of the consumer, but not including the cost of meter. The estimate of the cost of electric line, electrical plants and metering arrangements shall be based on the latest cost data as published by the Distribution Licensee.
In respect of above consumers the Distribution Licensee may dispense with the process of preparation of detailed individual estimate and instead charge on the basis of per KW of contracted load and per Meter rate. Although, it will not prepare individual estimate, the Distribution Licensee shall maintain the cost incurred in respect of such categories of the consumers who are provided with electricity only through extension of service line (with out undertaking any of the work like DTR or laying of HT line). The average cost incurred (according to the latest cost date as published by the Distribution Licensee) shall be used as the yard stick for determining the per kW cost of these categories of consumers.
4.2(i) In cases of applications where there is a need to erect new electrical plant such as distribution transformer (DTR) along with switch-gear etc., for extending supply to the applicant for Low Tension connection, the licensee shall estimate the cost of electrical plant as follows:
Cost of the works of erection of DTR including switchgear (in Rupees)=P Rated capacity of DTR in KVA=Q Cost per KVA (in Rupees) =p/Q Page 24 of 30 HC-NIC Page 24 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT Contracted load in KVA of the applicant=K Amount payable by applicant towards electrical plant (in K*(P/Q) In cases of applications when the capacity of existing electrical plant (such as DTR and switchgear etc.) is require to be augmented, the differential cost of existing and new such electrical plant will form the basis of calculation of pro-rata charges.
In all cases the estimate of the cost of electrical plant shall be based on the latest cost data as published by the Distribution licensee.
4.2(ii) In cases of applications which besides erection of electrical plant (such as DTR and switchgear etc.), need laying or extension of the HT line for providing supply to the applicant, the estimate of the cost of such section of HT line shall be made on a per kilometer basis based on the latest cost data as published by the Distribution Licensee.
The Distribution Licensee shall recover the cost, as mentioned in the sub-clause 4.2(i) and 4.2(ii), from the applicants excluding following categories:
a. Agricultural consumers with the exception of Agricultural connection to be given under special schemes like "Tatkal Scheme" which may be brought out in future.
b. Water works and Sewerage Pumps operated by/for any local authority other than Municipal Corporation.
c. Domestic consumers
d. Commercial consumers up to 100
KVA/125 HP of contract demand.
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C/SCA/11526/2014 CAV JUDGMENT
5. PROVISION FOR HIGH TENSION / EXTRA
HIGH TENSION SUPPLY:
(i) In case of applications where there
is a need to erect a new HT line or EHT
line from the sub station or extend the
existing HT or EHT line or strengthening of existing HTY or EHT line in order to extend supply to the applicants, the Distribution Licensee, on its own in case of HT , and in co-ordination with Transmission Licensee in case of EHT, shall prepare an estimate of the cost of aforementioned work including the cost of terminal and metering arrangements at the premises of the consumer, but not including the cost of meter. Such estimate shall be based on the latest cost data as published by the Distribution Licensee and/or Transmission Licensee.
In case of the applications where there is a need to erect a new sub station for extending supply to the applicant, the Distribution Licensee, on its own or in co-ordination with Transmission Licensee, shall prepare estimate of the cost of the necessary works in the same way as indicated in sub-clause 4.2 (I) above. In cases of applications when the capacity of existing substation is required to be augmented, the differential cost of existing and new such electrical plant will form the basis of calculation of pro-rata charges. The estimate of the cost of such substation shall be based on the latest cost data as published by the Distribution Licensee and/or the Transmission Licensee."
16. Mr. Joshi submitted that since 14 MW power demand was Page 26 of 30 HC-NIC Page 26 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT for the residents of the township, estimate should have been for LT supply or in the alternative, since out of total demand of 14 MW, 8.5 MW was for LT connection, there should have been pro-rata reduction in the estimate as per the formula for LT Supply. However, the Court finds that out of total indicated power supply of 82 MW for huge township, present demand of 14 MW power Supply is in no way can be said to be a demand for LT supply. It is 14000 KV demand of power supply and simply because demand of power supply is divided by petitioner no.1 in LT connection and HT Connection, same would not be a ground to say that estimate of cost of township net work should have been on the basis of LT Supply. In the case of an application for LT Supply, supply requires only laying service line from the existing distribution main to the consumers' premises as provided in regulation 4.1 and in such case, the distribution licensee may estimate cost of service line on the basis of per KV contracted load. In the case of an application where there is need to erect electric plant, the licensee may estimate cost of electric plant as per the formula stated in regulation 4.2 (I) but where in the case of applications besides erection of electric plant, there is need of laying of or extending of HT line, estimate for such HT line is to be given as provided therein. However, when there is need for Page 27 of 30 HC-NIC Page 27 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT erecting new HT Line, or EHT (Extra High Tension) line and also need for erecting new substation for extending supply to the applicant, regulation 5 would apply. EHT Supply means electricity supplied at voltage equivalent to or greater than 66 KV. HT Supply means electricity supplied at a voltage greater than 44 KV and lesser than 66 KV. LT Supply means electricity supplied at voltage not exceeding 440 volts. Mr. Joshi submitted that the demand of power supply by the petitioner No.1 was consolidated for residents of the township and the application for such demand was registered by taking registration charge of Rs.100.00 only and, therefore, such application could be said to be consolidated application for domestic use and since such demand includes 8.5 LT connection, it would not fall within the definition of EHT Supply or HT Supply. However, the Court finds that considering high voltage power supply demand of the petitioner No.1, it is not possible to accept the contention of Mr. Joshi. The petitioner no.1 in fact required establishment of 66 KV substation to cater needs of High Voltage Power Supply for the residential township. Demand of 14 MW would therefore certainly fall within the definition of EHT Supply. The Court thus finds that the estimate given to petitioner no.1 for establishment of transmission network by applying Regulation 5 of the GERC Page 28 of 30 HC-NIC Page 28 of 30 Created On Sat Sep 19 01:44:47 IST 2015 C/SCA/11526/2014 CAV JUDGMENT Regulations, cannot be said to be in any way illegal.
Respondent No.1 in its affidavit has rightly stated that the application dated 5.1.2012 was for development of residential township which was registered as such, as petitioner no.1 is responsible for providing infrastructure as per the Township Regulations. Therefore, the registration charges of Rs.100.00 levied on the application of the petitioner would not decide the status of petitioner no.1 and cannot absolve petitioner no.1 from bearing expenditure as required by the GERC Regulations as per the estimate given by respondent no.1 to it and to pay supervision charges on such estimate. The pro-rata charges amounting to Rs.1,16,90,000.00 is part of such legal estimate by considering the demand of 14 MW load supply out of 82 MW demand of load supply. The supervision charges of Rs.1,06,55,684.00 at the rate of 15% is on cost estimated of Rs.7,10,37,892.00 of material and labour charges for carrying out obligation of providing infrastructure by petitioner no.1 within the township and, therefore, cannot be said to be illegally levied and recovered. The contention that the substation if utilized for other consumer, proportionate refund of cost spent should be allowed cannot be accepted as the substation remains to be the property of respondent No.1 and 2 and no refund on hypothesis can be allowed.
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17. In above view of the matter, no interference is called for in the orders impugned in exercise of powers under Article 226/227 of the Constitution of India.
18. As regards challenge to the demand notices issued to the petitioner no.1 pending the petition, such challenge is not accepted as it is found that the application of the petitioner no.1 for total demand of 14 MW can not be considered as consolidated application for domestic use. The Court thus does not find any substance in any of the challenges made in the petition. The petition is, therefore, dismissed. Notice discharged.
Sd/-
(C.L.SONI, J.) anvyas Page 30 of 30 HC-NIC Page 30 of 30 Created On Sat Sep 19 01:44:47 IST 2015