Telangana High Court
M/S. Sarvotham Care vs Telangana State Southern Power ... on 23 July, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.34959 of 2023
ORDER:
Heard Sri Challa Gunaranjan, learned counsel appearing on behalf of the petitioner and Sri R. Vinod Reddy, learned Standing Counsel for TSSPDCL, appearing on behalf of respondent Nos. 1 to 3.
2. The petitioner approached the Court seeking prayer as under:
"to issue a Writ direction or order especially in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in demanding Cross Subsidy Surcharge and Surcharge on the energy drawn and consumed by the petitioner from its captive generating plant for the period from April 2022 to November 2023 purported in pursuance to the directions of the 3rd Respondent vide Lr No SE/OP/B Hills/SAO/JAO/HT/D.No.317/23 dt 18/11/2023 as arbitrary, illegal, unauthorized, contrary to the Electricity Rules 2005 and provisions of Electricity Act 2003, besides violative of petitioners rights guaranteed under Articles 14 and 19 (1)(g) of the Constitution of India and consequently set aside the same and further direct the 3rd Respondent to pass appropriate order considering the objections raised by the petitioner in its reply dated 28/11/2023 and to pass ...".2
SN, J WP_34959_2023
3. Counter affidavit has been filed by respondents in particular Para No.17 reads as under:
"17. In reply to Para 19, it is submitted that, this Respondent issued notice dated 06.11.2023 seeking clarifications & justifications regarding the captive status of its scheduled consumers with regard to its previous LTOA agreements till 24.10.2022 which was concluded under captive status. The petitioner submitted its explanation vide letter dated 28.11.2023. The petitioner violated the definition of captive generating plant as laid down in Section (2) of the Electricity Act, 2003 by way of collecting electricity charges separately from its Lessees/IT companies as mentioned in their lease deed/Letter of intent. Therefore, the petitioner is not justified to raise objections on the demand notice issued by the 3rd Respondent vide Letter No. SE/OP/ B.Hills/ SAO/JAO/HT/D.No.717/23, DT:18.11.2023 for the period from April-2022 to October-2023 as the petitioner itself admitted that it is not eligible for exemption of cross subsidy surcharge & additional surcharge by entering into LTOA agreement under third party sale for the period from 25.10.2022 to 24.10.2024".3
SN, J WP_34959_2023 PERUSED THE RECORD.
4. It is represented by learned senior designate counsel Sri Challa Gunaranjan representing the petitioner that admittedly as borne on record no notice had been issued for the petitioner for a period from April-2022 to October-2023 and without any enquiry, without any determination of liability, liability had been fixed upon the petitioner unilaterally and, the impugned order dated 18.11.2023 had been passed. The order impugned dated 18.11.2023 reads as under:
"With Reference to the 3rd cited, it is to inform that the CGM (IPC)/TSSPDCL has communicated that the solar Generator M/S. SARVOTHAM CARE has failed to meet the captive status by not fulfilling the rule 3(1)
(a) (ii) i.e., Consumption of its captive consumers is less than 51%.
Accordingly, the renewal Intra State LTOA Agreement was entered between M/S. SARVOTHAM CARE and TSSPDCL under Third party sale on 09.10.2023. Hence, Cross subsidy surcharge & Additional Surcharge may be raised on the scheduled consumers from the period of LTOA agreement i.e. 25.10.2022 to 24.10.2024.
Further, it is requested to raise cross subsidy surcharge & Additional surcharge to the scheduled consumers M/S. SARVOTHAM CARE (BJH1015) for the F.Y 2021-22 and F.Y 2022-23 up to period of expiry of pervious LTOA (i.e., 24.10.2022). It is therefore, M/S. SARVOTHAM CARE (BJH1015) is hereby called upon to pay an amount of Rs.74,04,810.00 (Rupees Seventy-Four Lakhs Four Thousand Eight Hundred Ten only) towards Cross 4 SN, J WP_34959_2023 subsidy surcharge & Additional surcharge for the period April-2022 to Oct- 2022 Hence, you are requested to pay the same within 15 days from the date of receipt of this notice, otherwise the same demand will be raised in November-2023 billing cycle without any further notice or reminder".
5. Sri R. Vinod Reddy, learned Standing Counsel appearing on behalf of the respondents does not dispute the said submissions made by the learned counsel appearing for the petitioner that the amount of Rs.74,04,810.00 (Rupees Seventy Four Lakhs Four Thousand Eight Hundred and Ten only) had been determined against the petitioner without giving notice to the petitioner.
6. Taking into consideration the averments made in the counter affidavit filed at para No.17, which clearly indicates that the explanation of the petitioner dated 28.11.2023 had been subsequent to the impugned proceedings dated 18.11.2023 and the petitioner admittedly had not been provided with an opportunity to submit petitioner's objections prior to the determination made against the petitioner vide impugned order dated 18.11.2023, the impugned order 5 SN, J WP_34959_2023 dated 18.11.2023 is directed to be treated as a notice issued to the petitioner and the petitioner is directed to submit his detailed objections in response to the determination arrived at para No.4 of the proceedings dated 18.11.2023 pursuant to the period from April- 2022 to Oct- 2022 within a period of two (02) weeks from the date of receipt of the copy of the order. The 2nd respondent shall consider the said objections in accordance to law, in conformity with principles of natural justice and pass appropriate reasoned orders and duly communicate the decision to the petitioner within a period of two (2) weeks thereafter. Till the whole exercise as indicated above is initiated and concluded and appropriate orders are passed by the 2nd respondent, the respondents shall not take any coercive measures in pursuance to the impugned letter No. SE/OP/B.Hills/SAO/JAO/HT/D.No. 317/23, dated 18.11.2023 issued by the 2nd respondent including disconnection to petitioner i.e. HT Service Number BJH1015 of M/s. Sarvotham Care.
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SN, J WP_34959_2023
7. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall also stand closed.
___________________________ MRS. JUSTICE SUREPALLI NANDA 23.07.2024.
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