Telangana High Court
T. Chandrakala vs State Of Telangana on 31 August, 2020
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.7668 OF 2020
ORDER:
Assailing the Sanction Memo No.DEE/OP/SRNR/COMML/F- CAP/D.NO.2489/19-20, dated 20.02.2020 issued by the 3rd respondent according approval for sanction for an estimate of Rs.2,70,799.31 ps., treating the petitioner's application for service connection as non- domestic purpose instead of domestic purpose for providing supply of power to Plot No.24A in Sy.No.196, Kuntloor Village, Abdullapurmet Mandal, Pedda Amberpet Municipality in terms of Section 43(1) of the Electricity Act, 2003 and not providing electricity supply even after lapse of more than a year from the date of making application, the petitioner filed the present writ petition.
2. Heard Sri S. Rahul Reddy, learned counsel for the petitioner and Sri R. Vinod Reddy, learned counsel for the respondents.
3. Claiming that she is the absolute owner and possessor of Plot No.24A in Sy.No.196, Kuntloor village, Abdullapurmet Mandal, Pedda Amberpet Municipality, the petitioner has submitted an application dated 29.05.2019 to the respondent authorities for providing Service Connection for 'construction purpose' by paying requisite fee. The 3rd respondent vide Memo dated 20.02.2020 informed the petitioner that the service connection has been approved subject to payment of Rs.2,70,799.31ps., treating the petitioner's application as non-domestic purpose.
KL,J 2 WP No.7668 of 2020
4. Sri S. Rahul Reddy, learned counsel for the petitioner would submit that the said memo dated 20.02.2020 issued by the 3rd respondent informing the petitioner about the sanction estimate and requesting the petitioner to pay the said amount of Rs.2,70,799.31ps. by treating the application submitted by the petitioner as non-domestic is illegal, contrary to the provisions of the Electricity Act, 2003 and Regulations. He would further submit that the petitioner has submitted an application for construction of a house and it will fall under domestic category, but not under non-domestic category as claimed by the respondent authorities. According to him, as per Section 46 of the Electricity Act, the State Commission may, by regulations, authorize a distribution licensee to charge from a person requiring a supply of electricity in pursuance of Section 43 of the Electricity Act any expenses reasonably incurred in providing any electric line or electrical plant used for the expenditure purpose of giving that supply. He would further submit that in exercise of the said powers, the Sate Commission has issued Regulation No.4 of 2013 which was notified in the Gazette on 29.07.2013.
5. As per Regulation No.4 of 2013, the respondent authorities have no right to claim service line charges and also development charges from the petitioner. He has relied upon Clauses - 5 to 8 of the said Regulation No.4 of 2013 dated 29.07.2013. With the said contentions, learned counsel for the petitioner would submit that the impugned memo dated 20.02.2020 is arbitrary and illegal, and sought KL,J 3 WP No.7668 of 2020 to set aside the same with a consequential direction to the 3rd respondent to provide domestic service connection free of cost and supply power to the petitioner's plot.
6. The 4th respondent filed counter denying the contentions raised by the petitioner.
7. Sri R. Vinod Reddy, learned counsel for the respondents would submit that the petitioner has submitted an application dated 29.05.2019 for providing service connection for the purpose of construction of house. As per existing tariff rules, construction of house falls under in Category-II i.e. non-domestic category. He would further submit that considering the said application of the petitioner, an estimate was made for Rs.2,70,799.31ps. and sanction was approved. The respondents have received only one application in the entire lay out consisting of several plots. There is no other application in respect of the area/layout in which the petitioner has submitted application. Therefore, as per the provisions of the Electricity Act, General Terms and Conditions of Supply (GTCS) and also existing Tariff Rules, the 3rd respondent has issued the sanction memo dated 20.02.2020 informing the petitioner about payment of an amount of Rs.1,97,078/- towards service line charges, Rs.62,802/- towards development charges and Rs.800/- towards initial consumption deposit. He would further submit that there is no irregularity or illegality in the said proceedings. He has also referred to the Regulation No.4 of 2013 and also the GTCS. He has also relied upon KL,J 4 WP No.7668 of 2020 the principle laid down by the Apex Court in Hyderabad Vanaspathi Ltd., v. A.P. State Electricity Board1.
8. A reply affidavit was filed by the petitioner to the counter filed by the 4th respondent. In the said reply, it is contended by the petitioner that it is not in dispute that the application was made for providing power connection for construction purpose and during the period of construction, the connection would be treated as temporary supply and Tariff applicable would be LT-II. Reliance was placed on Clauses - 5 to 8 of GTCS, Section 46 of the Electricity Act and Regulation 4 of 2013 dated 29.07.2013. It is further contended by the petitioner that the application submitted by the petitioner is for supply of electricity for construction of house and the applicable tariff during the period of construction is Category-II as per the tariff order and the electric line and the connection to be provided should be domestic, whereas the respondents are not within power to alter the category of connection as commercial and impose unreasonable costs.
9. On perusal of the material papers and the pleadings, the contentions of the petitioner are mainly of two-fold:
(i) treating the application submitted by the petitioner for providing power connection for construction purpose as non-domestic is illegal; and
(ii) demand of Rs.2,70,799.31ps., towards service line charges, development charges and initial consumption 1 (1998) 4 Supreme Court Cases 470 KL,J 5 WP No.7668 of 2020 deposit, to provide power connection under non-
domestic category by 3rd respondent from the petitioner is arbitrary, unjustified and illegal.
10. It is not in dispute that he petitioner has submitted an application dated 29.05.2019 along with a demand draft for Rs.2,775/- for providing power supply. In the said application, the purpose is mentioned as 'for construction'. A self declaration was also submitted by the petitioner to the said effect. The 3rd respondent vide sanction memo dated 20.02.2020 informed the petitioner that the estimate is administratively approved and technically sanctioned subject to certain conditions, which are specifically mentioned in the sanctioned memo. It is also informed by the 3rd respondent that the petitioner has to pay an amount of Rs.2,70,799.31ps. towards service line charges, development charges and initial consumption deposit.
11. By virtue of the powers vested under the Electricity Act, the A.P. Electricity Regulation Commission has issued Regulation No.4 of 2013 dated 29.07.2013. The said regulation deals with licensees' duty for supply of electricity on request and recovery of expenses for providing electric line or electrical plant.
12. Clause - 2 (t) of the Regulation No.4 of 2013 deals with "service line" as per which any electric supply line through which electricity is, or is intended to be, supplied: (i) to a single consumer either from a distributing main or immediately from the Distribution KL,J 6 WP No.7668 of 2020 Licensee's premises; or (ii) to a group of consumers from a distributing main on the same premises or on contiguous premises supplied from the same point of the distribution main, (iii) to a dedicated consumer, the service line includes take off arrangements at the sub-station.
13. As per Clause - 6 of the said Regulation, the Distribution Licensee shall, unless otherwise specified in the Regulation or otherwise by an order of the Commission, fulfill the obligation to supply electricity to an applicant who seeks power supply, subject to the provisions of the Act and the regulations and subject to such directions, orders or guidelines, the Commission may issue from time to time, every Distribution/Transmission Licensee is authorized to recover from an applicant, requiring supply of electricity, any expenses that the Distribution/Transmission Licensee shall be required to reasonably incurred to provide any electric line specifically for the purpose of giving such supply to the applicant.
14. Clause - 7 of the said Regulation No.4 of 2013 deals with specific provision for service line charges. As per the said Clause, the Distribution Licensee is having power to collect charges for providing service lines. Clause - 8 of the said regulations deals with levy of development charges by the Distribution licensee. As per Clause - 8 (3) of the said Regulation, the Distribution Licensee shall recover full cost of transformer in case of commercial complexes, apartments and multi storied buildings, where a dedicated transformer is provided KL,J 7 WP No.7668 of 2020 while extending new LT service connections. In such case, the Distribution Licensee is not entitled to collect development charges and shall own the transformer and maintain it. The Distribution Licensee shall not extend power supply to any other consumer from the dedicated transformer other consumer from the dedicated transformer other than the consumer who has borne the full cost of Transformer.
15. As per Clause - 8 (4) of the Regulation No.4 of 2013, in case of LT supply, the responsibility of erection of distribution transformer lies with the Distribution Licensee and shall not charge cost of transformer to any consumer except those consumers mentioned in the above mentioned sub-clause (3) and levy only the developmental charges. As per Clause - 8 (5) of the said Regulation, the distribution Licensee shall not charge development charges to a consumer who seek 'temporary supply'.
16. As stated above, it is not in dispute that the petitioner has submitted an application dated 29.05.2019 seeking service connection for construction of house and during the period of construction, the connection would be treated as temporary supply and the tariff applicable would be LT-II. As per Section 43 of the Electricity Act, duty is cast upon the Distribution Licensee to supply the power to the consumer. Section 45 of the electricity Act deals with power to recover charges including development charges, service amount charges etc. The GTCS were approved by the Electricity Regulatory KL,J 8 WP No.7668 of 2020 Commission. As per Clause - 5.3.2.1 of the GTCS, the service line charges payable by the consumer for release of the new connection / additional load under both LT and HT categories shall be levied at the rates notified by the company in accordance with regulations / orders issued by the Commission from time to time. These charges shall be paid by the consumer in advance failing which the work for extension or supply shall not be taken up. These charges are not refundable.
17. Clause - 5.3.3 of the GTCS deals with development charges. As per Clause - 5.3.3.1, the amounts payable by the consumer towards development charges of new connection / additional load under LT and HT categories shall be at the rates notified by the Company with the approval of the commission from time to time. The consumer shall pay these charges in advance, failing which the works for extension of supply shall not be taken up. These charges are non- refundable.
18. Thus, as per the GTCS, the provisions of the Electricity Act and also as per Regulation No.4 of 2013, the respondent authorities being 'Distribution Licensee' is entitled to collect the service line charges and also development charges. In the case on hand, the petitioner has applied for supply of power and service connection for construction of house. As per Clause - 7.37 of tariff order, construction activities of structures of height less than 10 meters will fall under LT-II Category. In the present case, admittedly, the petitioner has submitted application for providing service connection KL,J 9 WP No.7668 of 2020 for construction of house which will fall under LT-II Category. The said fact was also admitted by the petitioner in the reply affidavit to the counter affidavit filed by the respondents' authorities.
19. As per Clause - 7.8 of tariff order, LT-II - non- domestic/commercial has been sub-divided into LT-IIA, LT-IIB, LT- IIC and LT-IID. A consumer who undertakes construction activity including house construction will fall under LT-IIA i.e., non-domestic.
20. The petitioner has submitted application dated 29.05.2019 for providing service connection for the purpose of construction and during the period of construction, it would be treated as temporary supply and tariff applicable would be LT-II. Therefore, it falls under non-domestic. After completion of construction, if the petitioner applies for providing service connection for domestic use, it will fall under domestic category. Therefore, the contention of the petitioner that the application submitted by the petitioner for providing power connection for construction purpose should be treated as domestic is not sustainable.
21. As per Clause - 6 (4) of Regulation No.4 of 2013, in the event, the electricity supply is required by two or more applicants in the same area through extension of common electric line, the expenditure in respect thereof, the Distribution Licensee shall apportion such expenditure amongst all such applicants, whereas, in KL,J 10 WP No.7668 of 2020 the present case, the petitioner alone has applied for power connection in the entire layout.
22. Admittedly, the in the present case, the petitioner has submitted application on 29.05.2019 i.e., about one year three months back. The said application was considered and the 3rd respondent has issued the sanction estimate vide memo dated 20.02.2020 i.e., about six months back. In the sanction estimate, it is stated by the 3rd respondent that the existing load will be tagged on existing 11KV Kuntloor Agl. feeder, emanating from 33/11 SS, Pedda Amberpet. It is also mentioned in the said sanction estimate about the number of poles etc. The said estimate is made about six months back. The respondents' authorities have estimated an amount of Rs.1,97,078/- towards service charges on the basis of the prevailing circumstances as on 20.02.2020 pursuant to the application 29.05.2019. In the impugned memo dated 20.02.2020, there is no mention about the basis on which the said estimate was made. The respondent No.4 has specifically contended in the counter that the petitioner was advised as it will cost much, as only one service is to be released in the area, by erecting the material. Therefore, the respondents' authorities are not in a position to apportion the expenditure since the petitioner alone has approached the respondents' authorities with a request to provide service connection. As discussed supra, the application submitted by the petitioner is dated 29.05.2019 and the estimation was made on 20.02.2020. Therefore, the respondents have to consider the KL,J 11 WP No.7668 of 2020 application dated 29.05.2019 afresh, prepare the estimation considering the circumstances prevailing at present.
23. As discussed supra, as per Clause - 8 (5) of Regulation No.4 of 2013, a Distribution Licensee shall not charge development charges to a consumer who seeks temporary supply. As per Clause - 8 (4) of the Regulation, in case of LT supply, the responsibility of erection of distribution transformer lies with the Distribution Licensee and shall not charge cost of transformer to any consumer except those consumers mentioned in sub-clause (3) of Clause - 8 and levy only development charges. Thus, as per the said Clauses, the respondents are not having power to levy development charges to the petitioner, who has submitted application for service connection for the purpose of construction of a house. After completion of construction of house, the application made by the consumer to supply the power to the house shall fall in the category of domestic. Whereas, for the purpose of construction, the service connection will be treated as temporary supply and the respondents are not having power to charge development charges as per Clause - 8 (5) of the Regulation 4 of 2013. Thus, the 3rd respondent cannot claim an amount of Rs.62,802/- towards development charges from the petitioner, who has applied for power supply, which is a temporary supply for construction of a house.
24. In view of the above discussion, the impugned sanction Memo No.DEE/OP/SRNR/COMML/F-CAP/D.NO.2489/19-20, dated KL,J 12 WP No.7668 of 2020 20.02.2020 issued by the 3rd respondent is hereby set side. The respondents' authorities are directed to consider the application dated 29.05.2019 submitted by the petitioner to provide service connection for construction of house strictly in accordance with Regulation No.4 of 2013 dated 29.07.2013, Electricity Act and Tariff Rules; prepare fresh estimates and provide service connection to the petitioner on payment of necessary charges by the petitioner as per fresh estimates. The respondents shall complete the entire exercise within a period of one (01) month from the date of receipt of a copy of this order.
25. Accordingly, the Writ Petition is disposed of. However, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
________________ K. LAKSHMAN, J Date: 31-08-2020 KTL