Andhra HC (Pre-Telangana)
Vinayaka Steels Ltd., Kothur, ... vs A.P.S.E.B., Hyderabad And Others on 16 December, 1998
Equivalent citations: 1999(1)ALD682
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioner is a H.T. Consumer with a contracted maximum demand of 3530 KVA under an agreement with the first respondent-Electricity Board for the supply of power. The Electricity Board required the petitioner to pay the consumption deposit equivalent to two months consumption charges and accordingly, the petitioner so far has deposited a sum of Rs.55,58,600/- towards the consumption deposit.
2. It may be required to notice that on 6-6-1998, the petitioner entered into an agreement with a Private Company called M/s. Rain Calcining Limited, Somajiguda, Hyderabad for the supply of electrical energy. As per the agreement, the said company has to supply 7,00,000 KWH per month and the supply has to be made though APSEB lines. The company slated to have entered into agreement in turn with the APSEB for the supply of energy to the petitioner company. The petitioner is stated to have furnished bank guarantee equivalent to two months consumption i.e., 14,00,000 units. The petitioner has furnished bank guarantee for a sum of Rs.45,00,000/- accordingly.
3. The second respondent through the proceedings dated 20-5-1998 has reviewed petitioner's consumption deposit basing on consumption recorded during April, 1997 to March, 1998, and accordingly demanded a further sum of Rs.32,06,400/-towards additional consumption deposit. The petitioner disputes the said conclusion of the second respondent. According to the petitioner, he has to get a sum of Rs. 15,96,462/- towards refund after excluding the demanded additional consumption deposit amount pursuant to the letter dated 20-5-1998 of the second respondent. The second respondent without refunding the same started pressurising the petitioner to pay the additional consumption deposit pursuant to the letter dated 20-5-1998. The petitioner is stated to have filed WP No.16742 of 1998 which is still pending. Tlie petitioner is also stated to have paid a further sum of Rs.10,61,400/- as part payment.
4. However, the petitioner was given bill for the month of October, 1998 for a sum of Rs.37,64,4967- towards the consumption charges. The petitioner is stated to have requested the respondents to adjust the bill amount for the month of October, 1998 out of the excess amount in deposit with the respondent-Board to an extent of Rs.26,66 lakhs. The petitioner is stated to have made a representation on 6-4-1998, 21-10-1998 and 2-11-1998 in this regard. This Court by an order dated 12-11-1998 directed the respondent-Board to take an appropriate decision in the matter on the representations of the petitioner and in the meanwhile directed not to disconnect the supply. The second respondent through the letter dated 27-10-1998 has disposed of the petitioner's representations. It is the said letter which is impugned in this writ petition along with the consequential proceedings dated 20-11-1998 on the file of the second respondent demanding an amount of Rs.26,66,000/- towards current consumption bill for the month of October, 1998 and less amount already paid in part bill. The impugned proceedings on the file of the first respondent dated 27-10-1998 reads as follows:
"With reference to your letter cited, it is to inform that the refund of excess Consumption Deposit can be examined after the General Review of C.D. for the year 1998-1999 in April, 1999 based on the performance during 1998-1999 and the excess Consumption Deposit if any found, will be refunded by adjustment against the future c.c. bills from May, 1999 onwards."
5. It is submitted that there is no rational, justification on the part of the respondents to withhold the excess consumption deposit in view of the mandatory requirement to refund the excess consumption deposit as provided for in Clause 28.2 of the Terms and Conditions of Supply and also as per Clause 2.17 of the Modified Power Wheeling Agreement.
6. Learned Counsel for the petitioner Sri Duba V. Nagarjuna Babu would urge that a duty is cast upon the Board under Condition No.28.2.1(b) of the Terms and Conditions of Supply to review the adequacy of consumption of deposit, usually once in an year basing on the average consumption recorded during 12 months period from April to March. The said terms and conditions also imposes a further duty upon the Board to review in the same manner at any time during the year, if so warranted, if in the opinion of the Board warrant such review of adequacy of existing consumption deposit. It is urged that the terms and conditions which are statutory in nature confer a valuable right on the consumer to seek refund in case the existing deposit is excess by 10 per cent of the required deposit. The Board is under an obligation to review the consumption deposit. Learned Counsel for the petitioner placed reliance upon the following decisions. State (Delhi Admn.) v. I.K. Nagia and another, , Stale of Uttar Pradesh v. Jogendra Singh, , and Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority, Raipur and another, , in support of his submission that even an enabling provision imposes duty upon the authority concerned to act under the situation enumerated in the Statute and such duty is required to be construed as a mandatory one.
7. Sri K.N. Jwala, learned Standing Counsel for the Board would urge that the Board is duty bound and under an obligation to review about the adequacy of consumption deposit on the average consumption of previous 12 months from April, to March in every year. The Board may also review at anytime during the year, if so warranted due to revision of tariff, enhancement of the CMD by the consumer, changes in pattern of consumption by the consumer, relaxation of power restrictions and completion period of tariff rebate or such other factors which in the opinion of the Board warrant such review of adequacy of the existing consumption deposit. Learned Standing Counsel for the Board would lay emphasis on the expression used "warrant review of adequacy of existing consumption deposit" in the said clause. Learned Standing Counsel would proceed further and submit that in the aforesaid circumstances, if the Board comes to the conclusion that the existing consumption deposit is not adequate, it is open to the Board to review about the adequacy of consumption deposit at any time during the year.
8. The only point that arises for consideration is as to the true meaning and purport of Clause 28.2. l(b) of the Terms and Conditions of supply.
9. It is settled law that the terms and conditions of supply framed under Section 49 of the Electricity (Supply) Act, 1948 are statutory in character (see M/s. Hyderabad Vanaspaihi Ltd. v. APSEB, ). A plain reading of Clause 28.2.1(b) would suggest that the Board is duty bound and under legal obligation to review about the adequacy of consumption deposit based on the average consumption for the period representing 12 consumption months once in every year. That is what the Board is expected to do usually every year. It may also review at any time during the year itself if so warranted as to the adequacy of the existing consumption deposit. The later portion of the said clause would suggest that it is only an enabling provision. It would mean that the Board is entitled to review about the adequacy of existing consumption deposit if it comes to the conclusion that the deposit made by the consumer is not adequate on account of revision of tariff, enhancement of the CMD by the consumer, changes in pattern of consumption by the consumer, relaxation of power restrictions and completion period of tariff rebate. All the said situations would suggest as to the possibility of requiring the consumer to increase the consumption deposit. The said power can be exercised by the Board at any time during the year, if it comes to the conclusion that the existing consumption deposit is not adequate to meet the changed scenario and where the consumer may be required to increase or enhance the consumption deposit. The Board is not under an obligation to exercise that power only with a view to refund by adjustment against the current consumption bills. All the contingencies provided in the said clause would undoubtedly indicate the possibility of requiring the consumer to make further consumption deposit over and above the existing consumption deposit. That is how the expression "warrant review of adequacy of the existing consumption deposit" acquires the significance. It is an enabling power conferred upon the Board to take care and ensure the adequacy of the existing consumption deposit at all points of time during the year. The power to review at any time does not confer any right upon a consumer nor an obligation on the Board to do so except when the Board itself comes to the conclusion that the existing consumption deposit by a consumer is not adequate and therefore, a review is required. The very object of such consumption deposit is to secure payment of bills. The clause enables the Board to adjust the bill against such deposit, as the consumer used and consumed electricity on credit ranging from two or three months depending upon the category of consumer (See Ferro Alloys Corpn. Ltd v. the A.P. State Electricity Board, ). The clause imposes on obligation upon the consumer to make such deposit, as the Board's interest requires that there should be some protection by way of security of advance payment in respect of consumption for which bills are issued only after consumption. The object and purpose for which the said clause is introduced is so obvious and clear. In my considered opinion, it does not create any right whatsoever upon any consumer. The review itself is to facilitate the Board to know as to whether the consumption deposit already made by a consumer would be adequate to meet the changed scenario for the reasons attributable and contingencies mentioned, such as, revision of tariff, enhancement of the CMD by the consumer, changes in pattern of consumption by the consumer, relaxation of power restrictions and completion period of tariff rebate and such other factors. Therefore, it cannot be said that the Board is required to review even during the year at any time and at the request of a consumer. Such an interpretation would defeat the very purpose and object of Clause 28.2.1(b).
10. The decisions upon which reliance is placed by the learned Counsel for the petitioner have no application whatsoever.
11. Under those circumstances, the impugned proceedings do not suffer from any infirmity warranting interference of this Court.
12. The writ petition fails and shall stand accordingly dismissed. No costs.