Madras High Court
M/S.Dharani Sugars And Chemicals Ltd vs The Chief Engineer
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.12.2017
PRONOUNCED ON : .12.2017
CORAM
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
W.P.No.17355 of 2002
M/s.Dharani Sugars and Chemicals Ltd.,
Karaipoondi Village,
Polur Taluk,
Tiruvannmalai District
rep.by its Director A.Senniamalai
...Petitioner
-Vs-
1. The Chief Engineer,
Non-convential Energy Resources,
Vth Floor, Eastern Wing,
No.800, Anna Salai,
Chennai 600 002.
2.The Superintending Engineer,
Tiruvannamalai Electricity Distribution
Circle, Tamil Nadu Electricity Board,
Tiruvannamalai District.
...Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the respondent culminating in and by their proceedings in Letter No.SET/AOR/RCS/AI/F.HT Sc.No.29/D.220-2/2002, dated 27.02.2002, passed by the first respondent and with the order passed by the second respondent in and by the proceedings No.SET/AOR/RCS/A1/F.Co-Gen/Cr.41/2002, dated 07.05.2002 and quash the same and consequently direct the respondent to charge the maximum demand charges on recorded demand and act in accordance with the existing agreement in so far as the use of electricity consumed by the petitioner company.
For Petitioner : Mr.AR.L.Sundaresan, SC
Assisted by Ms.P.T.Ramadevi
For Respondents 1 & 2 : Mr.M.Varunkumar
O R D E R
The prayer sought for in this writ petition is for a writ of Certiorarified Mandamus calling for the records of the respondent culminating in their proceedings in letter No.SET/AOR/RCS/AI/F.HT Sc.No.29/D.220-2/2002, dated 27.02.2002 passed by the first respondent and with the order passed by the second respondent in the proceedings No.SET/AOR/RCS/A1/F.Co-Gen/Cr.41/2002, dated 07.05.2002 and quash the same and consequently, direct the respondent to charge the maximum demand charges on recorded demand and act in accordance with the existing agreement in so far as the use of electricity consumed by the petitioner company.
2.The necessary facts which are required to be noticed for the disposal of this writ petition is as follows:
2.1. The petitioner company is running a Sugar Mill in Karaipoondi Village Polur Taluk, Tiruvannamalai District. The company has also been producing power generated by the bagasse based co-generation plant. An agreement has been entered into between the petitioner Company and the respondent Board on 10.08.2000 which is otherwise called as, 'Power Purchase Agreement'.
2.2. As per the terms of the agreement, the petitioner shall feed the surplus power from their co-generation plant into the Tamil Nadu Electricity Board [TNEB] grid. As per clause 10 of the agreement, the petitioner Mill has to pay for the power drawn from the said grid for the purpose of co-generation plant under Board HT tariff 1 for maintenance works, trial run of equipments, water works etc., and it shall be charged under Boards HT tariff with maximum demand charges, on recorded demand, basis.
2.3. The said agreement was put in force for fifteen years. Therefore, the case of the petitioner is that, as per the said agreement whenever the power is drawn or imported by the petitioner Mill from the TNEB power grid, the maximum demand charges, as per Board Tariff shall be fixed on the basis of recorded demand, only.
2.4. Whileso, all of a sudden, the respondent Department by communication dated 26.09.2001, issued an order directing the petitioner to pay a sum of Rs.30,48,000/-, on the ground that, as per the working sheet enclosed therein, the said amount has to be paid taking into consideration of the sanctioned demand.
2.5. Aggrieved over the said demand letter dated 26.09.2001, the petitioner had approached this Court by filing W.P.No.18491 of 2001. This Court, by order dated 18.10.2001, having quashed the said order of the respondent dated 26.09.2001, on the ground of violation of principal of natural justice, had remitted the matter to the respondents for re-consideration, of course, after affording reasonable opportunity to the petitioner.
2.6. It is the further case of the petitioner that, subsequent to that, on 17.01.2002, the petitioner had given an application to the respondent Department for reduction of sanctioned demand from 2000kVA to 1000kVA. Though the said application was made by the petitioner for reduction of sanctioned demand by 50%, no action had been taken by the respondent and according to the petitioner, the said application of the petitioner had been kept pending all along, without being disposed of.
2.7. Thereafter, letters were issued on 24.01.2002 by the second respondent, directing the petitioner to execute the supplementary agreement in order to enable the respondents to make a maximum demand on the basis of the sanctioned demand, instead of recorded demand. The said request made on 24.01.2002 by the second respondent has been replied by the petitioner on 30.01.2002. However, without considering the said reply given by the petitioner, the respondent keep on writing to the petitioner seeking to execute the supplementary/new agreement as they desire, and such requests had been made by the respondents on 01.02.2002 and again on 13.02.2002. Thereafter, on 27.02.2002, the respondents had issued a communication stating that, even though the petitioner had not come forward to execute the supplementary/new agreement as desired by the respondents, pending execution of such revised agreement, the bill for the month of February 2002 payable in March 2002 had been prepared, based on the sanctioned demand or recorded demand whichever is higher, as already informed to the petitioner, and the subsequent bills also would be levied in these conditions only.
2.8. Even, the said letter dated 27.02.2002 of the respondents was replied by the petitioner. However, the respondents once again issued another communication on 07.05.2002 reiterating the earlier demand of execution of a supplementary agreement in a non-judicial stamp papers. Along with the said communication dated 07.05.2002, the respondents had also annexed a draft agreement, wherein, the clause pertaining to method of calculation on the power drawn or imported by the petitioner Mill was proposed to be changed that, instead of the calculation on the basis of recorded demand, it would be on the basis of either sanctioned demand or recorded demand whichever is higher. Therefore, aggrieved over the said two communications i.e., dated 27.02.2002 and 07.05.2002 along with the draft agreement sent by the respondents, the petitioner has come forward with this writ petition, challenging those proceedings, with the aforesaid prayer.
3. On behalf of the respondents counter affidavit had been filed. Among the various averments, the averments pertaining to the point raised in this writ petition are concerned, the respondents stated that, as per the terms and conditions of supply, the TNEB has decided to levy the maximum demand charges on the sanctioned or recorded demand whichever is higher and accordingly, the alteration clause in the existing agreement was necessitated, hence, it has directed the petitioner to make a supplementary agreement. The counter affidavit would further proceeded to state that, in view of the said decision of the respondents, the maximum demand charges will be levied with effect from February 2002 based on the sanctioned demand or recorded demand whichever is higher as laid down in clause 19.02 of the terms and conditions of supply. The counter would further state that, this change of tariff calculation system was intimated to the petitioner by the Chief Engineer on 27.12.2001, by giving three months time in advance, and the petitioner was requested to execute the supplementary agreement within thirty days. However, the petitioner had failed to execute the supplementary agreement so far.
4. The counter affidavit of the respondents would also state the justification on the part of the respondents to make the demand from the petitioner to enter into a supplementary agreement by quoting some Board proceedings. The relevant portion of the counter are extracted here under:
I submit that as per B.P.(F.B.) No.92, dated 07.07.2001, Tamil Nadu Electricity Board has ordered to apply the rate for bagasse based co-generation as contemplated in B.P.(F.B.) No.1, dated 11.01.2000 only for that portion of energy exported by the sugar mills during the period from December to June of the succeeding year using bagasse as fuel. No provision of extension of season for claiming the above rate and pay at captive power rate as stipulated vide B.P.(F.B.) No.93, dated 16.0.2000 for the Power received from Sugar Mills during the period from July to November irrespective of type of fuel used in the Boiler including Bagasse. These changes require modification in clauses 7 (a) and 7(b) in the existing Power Purchase Agreement already in force. But the petitioner has objected to change seasonal and non-seasonal period. The Tamil Nadu Electricity Board has the right to modify the above clauses in the existing agreement already in force.
10. I submit that whenever there is surplus power generation and there is no demand for the power from the consumer during a particular point of time the Tamil nadu Electricity Board has no other alternative except to request the captive power generation to reduce the generation. In such cases the Tamil Nadu Electricity Board will inform the Sugar mills to stop the generation of power fed in to Tamil Nadu Electricity Board grid. As per clause 36.02 of Terms and Conditions of Supply of Electricity and as per B.P.(F.B.) No.61 dated 24.12.1988, the Board have the right to relax, modify or waive any of the clauses of the Terms and Conditions of Supply of Electricity in respect of any consumer. Accordingly, the Board has introduced the Backing down clause.
5. Mr.AR.L.Sundaresan, learned Senior counsel assisted by Ms.P.T.Ramadevi, appearing for the petitioner would submit that, it is a bilateral agreement between the petitioner and the respondent Board. The said agreement was entered into between the parties on 10.08.2000. It is an agreement for parallel operation and supply of surplus power from the petitioner's Sugar Mill. In the agreement, mostly the modus of relevant aspects of supplying excess power from the petitioner company to the respondent Department have been dealt with in detail. At the same time, in so far as the drawal/import of power from the respondents grid, in case of any halt of the Mill for variety of reasons, the method of calculation of bill, has been specifically made at clause 10 of the agreement, which reads thus:
10(a)(i) Maximum demand and energy recorded by the import meter (i.e. drawal of power from Board's grid) shall be charged at Board's Tariff. (H.T.Tariff I rate applicable for Industrial consumers) including M.D. charges on recorded demand. Penal and other surcharges are to be applied as per the notified tariff availed during peak load hours as the case may be or conditions specified from time to time.
(ii) Power drawn from the grid for the purpose of sugar mill/co-generation plant maintenance works, trail run of equipments, water works etc., shall be charged under Board's H.T.Tariff III including M.D. charges on recorded demand.
6. The learned Senior counsel would also invite the attention of this Court that, as per clause 14 of the agreement, the period of agreement would be lasting for fifteen years or till the life period of the plant, whichever is less. Learned Senior counsel would further submit that, in so far as the drawal tariff to be calculated and demanded for the power drawn or imported by the petitioner is concerned, it shall only be made on the basis of Clause 10(a)(i) & (ii) of the agreement as has been extracted above, and accordingly, the charges on recorded demand, alone has to be demanded by the respondents. This arrangement, admittedly agreed upon between the parties and specifically incorporated in the agreement between the parties cannot be brushed aside or withdrawn unilaterally by the respondents that too, with great prejudice to the interest of the petitioner.
7. Learned Senior counsel would also draw the attention of this Court on the notice issued by the respondent on 16.11.2001. According to the said notice, a sum of Rs.3,10,000/- was demanded. Along with the said notice, a working sheet has also been annexed. The Senior Counsel would point out that, in the working sheet, the amount to be claimed by way of billing for sanctioned demand and the amount to be claimed by way of billing on recorded demand has been specifically mentioned for every month from August 1998 to August 2001. The table in the working sheet would go to show that, though a very minimum power was drawn or imported by the petitioner, a very huge amount has been shown on the basis of the sanctioned demand. Only in order to find the maximum demand from the respondent, the specific clause 10(a)(i) and (ii) was incorporated in the agreement between the parties. To substantiate this contention, the learned Senior Counsel would, rely upon the facts and figures given in the working sheet, which are extracted hereunder:
Working Sheet Month & Year To be Billed for Sanctioned demand Already billed for recorded demand Short fall Amount Rs.
August ' 1998 340000 34000 306000 September' 1998 340000 68000 272000 October ' 1998 340000 68000 272000 November' 1998 340000 204000 136000 November' 1999 340000 68000 272000 July' 2000 400000 160000 240000 August'2000 400000 80000 320000 September'2000 400000 80000 320000 October'2000 400000 80000 320000 November'2000 400000 120000 280000 August'2001 400000 90000 310000 Total:
4100000 1052000 3048000 Month & Year To be Billed for Sanctioned demand (2000KVS X Rs.200) Already billed for recorded demadn (450KVA X Rs.200) Short fall Amount Rs.
September'2001 400000 90000 310000
8. The learned Senior Counsel would also submit that, though the requirement of the petitioner to draw the power from the respondent grid was very minimum, it was sanctioned for 2000kva, therefore, even in respect of sanctioning of 2000kva, the petitioner has made a subsequent request to the respondent on 17.01.2002, to reduce the sanctioned demand from 2000kva to 1000kva. However, no action had been taken by the respondents to reduce the sanctioned demand. This itself shows, according to the learned Senior Counsel, that the respondents, unmindful of the requirement or usage on the part of the petitioner, had sanctioned a huge power quantity to the extent of 2000kva and based on which, making the demand, by introducing the clause that, either on the basis of sanctioned demand or recorded demand whichever is higher. Therefore, the learned Senior Counsel would submit that, this unilateral decision taken by the respondents by insisting upon the petitioner to enter into an agreement prejudicial to the interest of the petitioner, is not only unlawful but also unjustifiable as it goes contra to the agreed terms and conditions entered into between the parties. Therefore, the learned Senior Counsel would submit that, the impugned orders are liable to be quashed.
9. Per contra, Mr.M.Varunkumar, learned Standing Counsel appearing for the respondent Board has submitted that, the agreement itself was entered into between parties on the basis of terms and conditions of supply of electricity of Tamil Nadu Electricity Board. According to the Standing Counsel, as per Clause 19, especially under Clause 19.02, the Board has every power to make maximum demand charges on the basis of either recorded demand or sanctioned demand whichever is higher. To substantiate this contention, the learned counsel relied upon clause 19.02 of the terms and conditions which reads thus:
The maximum demand charges for any month and at the point of supply shall be based on the kVA demand recorded in that month or 100 per cent of the sanctioned demand, whichever is higher. In addition, for exceeding the sanctioned maximum demand, the charges per kVA exceeded shall be at double the normal rate.
10.The learned Standing Counsel would also rely upon the clause 36 of the terms and conditions which reads thus:
BOARD'S RIGHTS REGARDING THE TERMS AND CONDITIONS OF SUPPLY OF ELECTRICITY:
36.01 The Board will have the right to change from time to time the Terms and Conditions of Supply of Electricity by special or general proceedings.
36.02 The Board will have the right to relax, modify or waive any of the clauses of Terms and Conditions of Supply of Electricity in respect of any consumer or any class of consumers.
11. By relying upon these two clauses and also relying upon paragraphs 9 and 10 of the counter affidavit of the respondents, the learned Standing Counsel would submit that, the respondents have every right to alter the terms and conditions of supply of electricity by special or general proceedings. Since the respondents, by Board proceedings, have changed the pattern, making maximum demand on sanctioned demand or recorded demand whichever is higher, the agreement between the parties also must be changed on the basis of such terms and conditions alone. Since the clause 10(a)(i) &(ii) of the agreement between the parties does not reflect the terms and conditions of the Board in too, the necessary lacuna has to be fulfilled. Therefore, in that context only, the respondents directed the petitioner to execute the supplementary agreement, incorporating the suitable clause in this regard so as to enable the respondents to make the demand either on the basis of the sanctioned demand or on recorded demand whichever is higher.
12. Therefore, the learned Standing counsel would submit that, the communication made, which are impugned herein, by the respondents, requiring the petitioner to enter into an agreement, otherwise, as per the Board proceedings, the bill would be calculated from February 2002 onwards on the basis of the terms and conditions only, are justifiable and infact which are in consonance with the terms and conditions of the Board. Therefore, the same cannot be found fault with on the pretext that, earlier, the parties have agreed upon, as per the agreement, to make the demand only on the basis of the recorded demand.
13. I have considered the rival submissions made by the learned Senior counsel as well as the learned standing counsel for the parties and have perused the materials placed before this Court.
14. It is an admitted fact that, the agreement entered into between the petitioner and the respondents is mainly a Power Purchase Agreement. The nomenclature of the agreement itself states that it is the agreement for, The Parallel Operation and Supply of Surplus Power from M/s.Dharani Sugars & Chemicals Limited, Polur. On a perusal of the agreement, mainly it deals with the supply of power by the petitioner to the respondent grid. Under Clause 7 of the agreement tariff to be charged by the petitioner for the power supplied by it to the respondent grid from the years 2000-2001 till the year 2009-2010 has been specifically mentioned. In clause 10 of the agreement, which has already been extracted above, it has been specifically agreed upon between the parties that, the maximum demand energy recorded by the import meter shall be charged on Board tariff, the HD tariff 1 rate applicable for industrial consumers including M.D.charges on recorded demand. Sub clause (ii) of clause 10(a) also would state that, the power drawn from the grid for the purpose of sugar mill for various maintenance work, shall be charged under Board HT tariff III including M.D.charges on recorded demand.
15. On a careful perusal of the clauses i.e., clause 10(a)(i) and 10(a)(ii), it is specifically mentioned that, during the seasonal period the tariff would be charged as per the Board H.T. Tariff-1 rate applicable for industrial consumers. Further, for the unseasonal period for the purpose of plant maintenance work, trial run, water works etc., it shall be charged under Board's HT Tariff III. However, on both count it shall be only on recorded demand.
16.These clauses have been specifically incorporated in the agreement between parties with due diligent understanding and negotiation between them.
17. As per clause 14 of the agreement, the terms and conditions of the agreement will be in force till the life period of the plant or for fifteen years whichever is less. When these clauses are incorporated in the agreement, and if at all either of the party wants to change or alter or modify any of the clauses, that too to the prejudice of either party, then certainly the same can be done only if the other party is agreed upon to do so. On a perusal of the entire agreement this court finds that, no clause is available for alteration of the clauses of the agreement unilaterally. However, Clause 12 of the agreement would give power to the respondents to terminate the agreement. The relevant clause is extracted hereunder.
The Board reserves the right to terminate the agreement if any of the conditions laid down by the TNEB/CEIG is not complied with by the Sugar Mill.
18. Even the said right conferred on the respondents to terminate the agreement is qualified one, provided if any of the conditions imposed or laid down by the TNEB/CEIG was not complied with by the sugar Mill. Here in this case, it is not the case of the respondents that the Mill has not complied with any conditions imposed by the TNEB. Therefore, the right of terminating the agreement, as referred to above, cannot be invoked or exercised by the respondents as admittedly, there is no complaint from the respondents that the petitioner Mill has violated any of the conditions imposed by the respondents.
19. Here in this case, the case of the respondents is that, the agreement entered into between the parties, by which the power drawn or imported by the petitioner mill would be charged only based on the recorded demand, subsequently was decided to be modified or changed unilaterally by the respondents. Therefore, in order to incorporate such an undue modification mooted by the respondents, they demanded or requested the petitioner to come forward to execute a new or supplementary deed as has been projected by the respondents.
20. In this regard, the relevant clause which is to be modified as per the draft agreement is required to be noted. The relevant clause in the draft agreement annexed alongwith the impugned proceedings is extracted hereunder:
10(a)(i) Maximum demand and energy recorded by the import meter (i.e. drawal of power from Board's grid) shall be charged at Board's Tariff. (H.T.Tariff I rate applicable for Industrial consumers including M.D. Charges. Penal and other surcharges shall be levied as per the notified tariff conditons if the sanctioned demand is exceeded or power is availed during peak load hours as the case may be or conditions specified from time to time.
(ii) Power drawn from the grid for the purpose of sugar mill/co-generation plant maintenance works, trail run of equipments, water works etc., shall be charged under Board's H.T.Tariff III including M.D. charges on sanctioned/recorded demand whichever is higher irrespective of the period whether crushing or non-crushing period.
21. On perusal of the aforesaid clause in the proposed agreement, it is found that, the words at clause 10(a)(i) in the existing agreement 'on recorded demand' has been removed. Like that, in Clause 10(a)(ii) also the word 'recorded demand' has been replaced with the words of sanctioned/recorded demand whichever is higher, irrespective of the period whether crushing or non-crushing period.
22. On perusal of this proposed clause, it is found that, if these clauses are incorporated in the supplementary/new agreement, then the entire pattern of levying charges on the power to be drafted or imported by the petitioner mill would be completely changed. Moreover, if this proposed clauses are accepted by the petitioner, as has been rightly contended by the learned Senior counsel appearing for the petitioner, the petitioner mill has to pay a huge amount for every month even when the petitioner mill draw some minimum power from the respondents grid for maintenance and other works. For instance, as per the working sheet extracted above, for the month of August 1998, the billed amount as per the recorded demand was Rs.34,000/- whereas, the amount to be billed for sanctioned demand for August 1998 was Rs.3,40,000/- that is ten times higher than the actual consumption.
23. Only in this context, the petitioner Mill on 17.01.2002 itself, had given a letter to reduce the sanctioned demand from 2000kVA to 1000kVA and according to the petitioner, even the sanctioned demand had not been reduced as requested by the petitioner so far.
24. Moreover, in the letter dated 30.11.2001, the petitioner Mill had pointed out that, the billing of power imported by the plant was done only as per the agreement, as the generation of electrical energy from bagasse based co-generation plant comes under non-conventional energy category. In this regard, the relevant portion of the request made by the petitioner are extracted hereunder.
The billing of power imported by the plant is also done as per the afore seen agreement only. As generation of Electrical Energy from Bagasse based co-generation plant comes under non-conventional energy category and considering the following facts and practical difficulties in operating co-generation plant exemptions like charging Maximum Demand charges based on recorded demand and relaxation on power factor maintenance were agreed.
1.Power imported by the plant is imported thro the same power transmission line and equipment used for exporting power from the mill, developed exclusively for power export from the mill at the cost of Sugar Mill. Whereas generally, the transmission line and equipments will be installed at the cost of the Electricity Board and to cover the investment cost the basis of charging the maximum demand on Recorded demand or Sanction demand whichever is higher came into force. In our case the complete installation cost for the equipment required for power transmission is borne by the company. Hence, no extra equipment (or) transmission line is used for supplying the power imported by the plant. Hence, charging demand charges on record demand bases was followed from the inception of the co-generation plant.
2.The power imported by co-generation plant is very small quantity as compared to the power exported by the plant to the grid. Hence demand charge worked out based on the sanctioned demand will be on very higher side and unjustifiable.
25. Since the transmission line and equipment were installed only at the cost of the petitioner, the respondents did not incur any extra cost either for supplying power or for purchasing power. Because the power being supplied from the petitioner Mill to the respondents grid, and the power intermittently being imported or drawn by the Mill from the respondents grid, are only through the same line and equipments, there is no extra cost incurred by the respondents Board. Moreover, the bagasse based co-generation plant is an eco-friendly installation and the respondents do not incur any extra cost for transmission line and equipments. Considering these factors the specific clause was put in, in the agreement, between the parties, wherein, it was agreed upon that the maximum demand shall be made on the basis of Board's tariff on recorded demand, only.
26. If the proposed clause to be incorporated in the new agreement as proposed by the respondents is accepted, it will go to the root of the issue as the pattern of calculating tariff for the very minimum power imported by the petitioner Mill will be totally changed with great prejudice to the petitioner.
27. It is the settled preposition that, when specific agreement entered into between the parties, where clauses are carefully drafted and incorporated, unless both parties agreed upon, the clause, whichever considered to be prejudicial to either of the party cannot be modified or altered.
28. The arguments advanced by the respondents through the standing counsel that, as per clause 19.02 of the terms and conditions, the maximum demand charges shall be based on the kva demand recorded in that month or 100% of the sanctioned demand whichever is higher, therefore, contrary to clause 19.02 of the terms and conditions of the agreement, the parties cannot have a clause is concerned, the said argument cannot be advanced at this stage, as the said terms and conditions especially clause 19.02 of the terms and conditions of the respondent Board was very much available at the time of entering into the agreement between the parties. Therefore, knowing fully well the said clause i.e., clause 19.02, clause 10(a)(i) and (ii) were incorporated in the agreement between the parties and therefore, it cannot be argued at this stage that the clause 10(a)(i) and (ii) of the agreement alone goes contra to the clause 19.02 of the terms and conditions.
29. Like that, the further argument of the learned standing counsel that, as per clause 36 of the terms and conditions, the Board will have the right to change, from time to time, the terms and conditions of supply of electricity, by general or special proceedings, is concerned, that right is always available with the respondents Board to change the terms and conditions of supply of electricity. The terms and conditions are subjected to change, relaxation or modification or waiver. That depends upon the policy decision to be taken by the Board. However, when specific agreement entered into between the parties i.e., the Board and the petitioner where, specific clauses have been incorporated, during the subsistence of the agreement and even at the time of entering into the agreement the relevant clauses in the terms and conditions of the Tamil Nadu Electricity Board was very much available, it can only be presumed that, after having found the fact that those conditions are available in the terms and conditions, the respondents Board had come forward with due diligence and knowledge and incorporated clauses 10(a)(i) and (ii) in the agreement. Therefore, merely because clause 19 and 36 are available in the terms and conditions of the Board, that will not give any power to the respondents to alter the conditions/clauses of the agreement entered between the parties, as admittedly, there is no scope for such unilateral modification or change of clause in the agreement that too prejudicial to one party. Therefore, the contention made by the learned Standing counsel for the respondents by quoting the clauses in the terms and conditions, cannot be made applicable in the facts and circumstances especially in the context of the agreement between the parties which was subsisting for fifteen years right from 2000.
30. Moreover, when this writ petition came up for admission, this Court by order dated 21.05.2002 in WPMP.No.23581 of 2002 in W.P.No.17355 of 2002 had granted an interim injunction restraining the respondents from demanding the payment based upon the sanctioned demand as against the recorded demand charges. When the respondents filled petition to vacate the said interim order in WVMP No.921 of 2002, this court after considering the case, has passed the following order on 24.04.2003:
Since there is already a concluded contract and what is now proposed is to change the tariff conditions unilaterally, the balance of convenience requires that the interim injunction granted on 21.05.2002 could be made absolute and as such it is made absolute. Consequently, the W.V.M.P. is dismissed.
In view of the revenue implication involved in this case, the Office is directed to post the writ petition in the second week of August 2003.
31. When this Court had already held that it is the conclusive contract between the parties and therefore, the proposed amendment or change of tariff conditions unilaterally cannot be allowed to go on, this Court feels that the said situation is a perennial one in so far as the present case is concerned, because the duration of the agreement, as per clause 14, is for fifteen years. As a matter of fact, even the fifteen years is over by the year 2015 and therefore, beyond the said period it is open to the respondents to enter into a fresh agreement on the basis of the current tariff position subject to mutual agreement between the parties. But that would not give any leverage to the respondent to alter the conditions/clauses already made in the agreement dated 10.08.2000 during the subsistence period of fifteen years.
32. For all these reasons and the discussions made above, this court is of the considered view that, the impugned communications requesting/demanding the petitioner to enter into a supplementary/new agreement with the respondents Board for the purpose of incorporating new clause or clauses, enabling the respondents department, to claim maximum demand charges on sanctioned demand or recorded demand whichever is higher, are beyond the scope of the very agreement dated 10.08.2000 entered into between the parties and therefore, those demand letters, which are impugned herein, are liable to be quashed. Accordingly, they are quashed.
33. In the result, the writ petition is allowed and the parties shall bear their respective costs.
Index: Yes/No .12.2017
Speaking Order/Non-speaking order
smi
To
1. The Chief Engineer,
Non-Conventional Energy Resources,
Vth Floor, Eastern Wing,
No.800, Anna Salai,
Chennai 600 002.
2.The Superintending Engineer,
Tiruvannamalai Electricity Distribution
Circle, Tamil Nadu Electricity Board,
Tiruvannamalai District.
R.SURESH KUMAR, J.
smi
Pre-Delivery Order in
W.P.No.17355 of 2002
.12.2017