Andhra HC (Pre-Telangana)
Adoni Cotton Mills, Unit Of National ... vs Chief Engineer (Electricity) ... on 18 October, 1995
Equivalent citations: 1996(1)ALT552
JUDGMENT C.V.N. Sastry, J.
1. M/s Adoni Cotton Mills, a unit of the National Textiles Corporation Ltd., (A Government of India Undertaking), Adoni, has filed this writ petition challenging the appellate order dated 12-10-1988 passed by the Chief Engineer (Electricity), South Zone, Andhra Pradesh State Electricity Board, Cuddapah, the first respondent herein, holding the petitioner liable to pay sum of Rs. 2,16,649-20 towards compensation to the Board for the malpractice alleged to have been committed by the petitioner in exceeding the connected load. The facts leading to the filing of the writ petition may be stated briefly:
2. The Petitioner entered into a contract with the Electricity Board for the supply of electrical energy to its unit. Under the contract, the petitioner was sanctioned a load of 800 H.P. with a maximum demand of 500 K.V.A. with a view to undertake an expansion programme, the petitioner applied to the Board on 19-12-1979 for sanction of additional load. Even though the petitioner is stated to have complied with all the required formalities, the additional power was sanctioned by the Chief Engineer only on 29-12-1982 and the additional power was actually released to the petitioner's unit on 7-1-1984 after a lapse of four years. Meanwhile in view of the urgency and need to complete the expansion programme which had to be completed by October, 1982, the petitioner seems to have commenced the erection of additional equipment from April, 1982 onwards even before the receipt of formal sanction orders from the Board and commenced test-runs of the same from 1-7-1982. In the course of an inspection made on 6-9-1982 by the Assistant Divisional Engineer/DPE/ Ananthapur, it was noticed that the petitioner had exceeded the sanctioned contracted load of 800 H.P. by connecting a load of 1203.5 H.P. and thereby committed malpractice. Thereupon the petitioner was served with a provisional assessment notice dated 18-9-1982 by the Assistant Divisional Engineer, operation, Adoni provisionally estimating the value of energy misused by the petitioner at Rs. 4,32,458-20 pending a regular inquiry by the S.E. and calling upon the petitioner to pay half of the estimated value plus Rs. 200/- towards supervision charges within 15 days from the date of receipt of the said notice failing which supply will be disconnected. It is stated that the petitioner paid the said amount under protest. Thereafter the Superintending Engineer (Operation), Ananthapur, second respondent herein, issued a show-cause-notice dated 13-5-1983 to which the petitioner submitted explanation dated 3-6-1986 and a further explanation dated 5-5-1986 denying that it indulged in any malpractice and stating that it has merely conducted some test-runs of the additional equipment, that it has not exceeded the contracted demand, that it has duly paid for the electrical energy actually consumed, that the Board has not suffered any loss whatsoever, that the petitioner had acted bona fide and in good faith without any dishonest intention to commit any malpractice and/therefore, requested for dropping the proceedings. The Superintending Engineer, after giving a personal hearing to the petitioner and after considering the explanation submitted by the petitioner, passed a final order of assessment on 14-7-1987 holding that the petitioner is guilty of malpractice in the use of energy and determined the amount payable by the petitioner to the Board as Rs. 3,29,658/-.
3. Questioning the said order, the petitioner preferred an appeal to the Chief Engineer (Electricity), South Zone, Cuddapah, the first respondent herein who by the impugned order dated 12-10-1988 confirmed the finding that the petitioner had indulged in malpractice by unauthorisedly exceeding the contracted load but reduced the amount payable by the petitioner to Rs. 2,16,649-20. Assailing this order the present writ petition is filed.
4. The learned counsel for the petitioner has contended that the petitioner has not committed any malpractice and that the Board has not suffered any loss whatsoever and the impugned order is arbitrary, illegal and without jurisdiction. He also submitted that the petitioner is a public sector undertaking, that it had applied for sanction of additional load in the year 1979 itself fulfilling all formalities, but the Board unnecessarily delayed sanction without any justification, that in view of the urgency to complete the expansion programme which was a time-bound programme, the petitioner merely installed some additional frames for the purpose of trial runs only in anticipation of proper sanction and that commercial production was started by the petitioner only after the additional load was sanctioned and released by the Board, that the impugned order was passed arbitrarily without proper application of mind and without taking into consideration all relevent factors and as such the impugned order is liable to be set aside.
5. On the other hand, the learned Standing Counsel for the Electricity Board has contended that exceeding the contracted load without obtaining prior sanction of the Board constitutes a malpractice for which the Board is entitled to be compensated in accordance with the principles of assessment laid down in the statutory terms and conditions of supply, that proof of actual loss to the Board is not required, that the petitioner actually filed application for sanction only on 8-3-1982 though the petitioner made some correspondence earlier eliciting information from the Board, that it was not open to the petitioner to connect the additional load without obtaining the sanction of the Board, that the question of motive or absence of means rea is irrelevant, that the assessment made by the authorities is perfectly volid and it is in accordance with the principles laid down in the staturory terms and conditions of supply and that the writ petition is without any merit and it is liable to be dismissed. The learned counsel for the respondent-Board has placed strong reliance on a judgment of this Court in W.P.No. 411 of 1986 dated 13-12-1988 wherein a learned Single Judge of this Court has dismissed a similar writ petition repelling the same contentions as are now raised by the petitioner in this case.
6. To appreciate properly the respective contentions of the parties, it is necessary to notice the relevant terms and conditions of supply which are framed under Section 49 of the Electricity (Supply) Act, 1948 and which are binding on the Electricity Board as well as the consumer. The expressions 'maximum demand', 'contracted demand, 'connected load', 'contracted load' are defined in Condition Nos. 2.12, 2.13, 2.14 and 2.15 respectively. According to Condition No. 2.15 'contracted load' means the connected load which the consumer requires and is so specified in the agreement, or in the sanction accorded for the service. The expression 'malpractice' is defined in Condition No. 39.1 as including any violation of law or the terms and conditions of supply framed under Section 49 of the Electricity Supply Act, 1948 including pilferage in particular, the following:
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1.2. Exceeding the contracted load without specific permission of the Board."
Condition No. 39.6 provides for provisional assessment of loss sustained by the Board and payment. It provides the inspecting officer shall make a provisional estimate of the loss incurred by the Board by the reason of the malpractice or pilferage of energy committed by the consumer which shall assessed as mentioned herein below and intimated to the Assistant Divisional Engineer concerned. Condition No. 39.7 lays down that provisional assessment of the loss sustained by the Board referred to Clause 39.6 above shall be made on the principles set out therein. Condition No. 39.9 lays down the procedure for making the final assessment by the assessing authority. Condition No. 39. 10 provides for an appeal against the order of final assessment. Clause (5) of the standard form of H.T. Agreement as per Appendix-III of the statutory terms and conditions of supply stipulates that the consumer should undertake to comply with all the requirements of the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948, the Rules thereunder, provisions of the tariffs scale of Miscellaneous and General charges and the terms and conditions of supply prescribed by the Board from time to time and agree not to dispute the same. Condition No. 17 of the terms and conditions of supply stipulates consumer shall not make any alteration in his installation except as provided hereunder. He shall also not make extension to any other adjacent premises. Should the consumer at any time after the supply of energy has been commenced, desire to increase the number or size of lights, fans, motors, etc., on his premises or in any way alter the position of his wiring therein, notice thereof shall be sent in writing to the Board whose representative will call and inspect the proposed alteration and, if necessary, change the meters and fuses and alter the service lines. The consumer shall, where necessary, change the contracted demand or connected load. A test report signed by his Wiring Contractor shall be submitted to the consumer and cost of alterations to service line shall also be borne by him. Provisions of condition 16, above shall apply to the alteration and additions made in the installation. Failure to give such notice may derange the supply system and will render the supply liable to be summarily discontinued. During such time as alternations, additions or repairs are being executed, the supply to the circuit which is being altered, added to or repaired must be entirely disconnected and it shall remain disconnected until the altercations, additions or repairs have been tested and passed by the board." Rule 63(3) of the Indian Electricity Rules, 1956 provides that the owner of high or extra high voltage installation who makes any addition or alterations to his installation shall not connect to the supply his apparatus or electricity supply lines comprising the said alterations or additions unless and until such alternations or additions have been approved in writing by the Inspector.
7. It is dear from an examination of the aforesaid rules and terms and conditions of supply that it is not open to the consumer to make any additions or alternations to his service or to connect the same to supply till approval is obtained in writing from the concerned authority. The learned counsel for the petitioner, however, contends that since the petitioner has not made any permanent additions or alternations but merely made some test-tuns of the equipment, there is no violation of the above rules or terms and conditions of supply by the petitioner in this case. I am afraid it is not possible to accept this submission. In the explanation dated 3-6-1983 furnished by the petitioner in reply to the show-cause-notice issued by the Superintending Engineer, the petitioner has admitted that it completed erection of 10 ring frames and they were tested for their performance by trial runs by stopping the existing machines. Though it is stated that commercial production was not carried on till after sanction orders were received, the fact remains that the petitioner erected some additional equipment and they were found to be put to use by the date of inspection. This, is my view, is sufficient to constitute a malpractice as Condition No. 39.2 specifically provides that exceeding the contracted load without specific permission of the Board amounts to a malpractice. I am inclined to agree with the contention of the learned counsel for the respondent that the question of intention or absence of mains rea is not relevant and when once it is found that there has been violation of the terms and conditions of supply, the liability to compensate the Board as laid down in the terms and conditions of supply will be attracted irrespective of proof of any actual damage suffered by the Board. In such a case loss is implied or presumed. This question has been considered by this Court in W.P.No. 411 of 1986 wherein it has been held that additions to the contracted load amounts to a malpractice within the meaning of terms and conditions and that proof of actual loss to the Board is not required. I am in respectful agreement with the view expressed in the said judgment. Though the learned counsel for the petitioner sought to distinguish the said judgment, I find that it is more or less an identical case on facts and the said judgment governs this case also.
8. The impugned order was admittedly passed after following the procedure prescribed by the terms and conditions of supply and after giving a show-cause-notice to the petitioner and also a personal hearing to the petitioner. No infirmity in the manner of (sic.) at the decision has been brought to my notice. I have, therefore, no hesitation in negativing the main submission of the learned counsel for the petitioner that the petitioner has not committed any malpractice and that it is not liable to pay any amount to the Board.
9. The learned counsel, however; made an alternative submission that even according to the findings recorded by the appellate authority the total amount payable by the petitioner comes to Rs. 70,177-60/- only as per the details set out in paragraphs 8 of the writ petition. This, I think, is a matter for verification by the appellate authority. I therefore, while affirming the finding with regard to the commission of malpractice, remit the matter back to the appellate authority for consideration and verification of the claim for certain deductions made by the petitioner in paragraph 8 of the writ affidavit. The appellate authority shall examine the same and pass appropriate orders thereon in accordance with law after giving a reasonable opportunity to the petitioner to make its representation thereon.
10. The Writ Petition is disposed of accordingly. No costs.