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Madras High CourtWP/17005/2011disposed of

Mrs. Manisha Preeth, v. The Assistant Engineer,

2021-03-05Honourable Mr Justice C. Saravanan6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.03.2021

CORAM

THE HONOURABLE MR.JUSTICE C.SARAVANAN W.P. No.17005 of 2011 and M.P. No. 1 of 2011 Manisha Preeth, W/o.R.Ravisandran ... Petitioner Vs

1. The Assistant Engineer, Tamilnadu Electricity Board, (TANGEDCO) O & M, Napalayam, Chennai - 600 103.

2. The Assistant Accounts Officer, Revenue Branch, Tondiarpet/CEO/North, Chennai - 21.

3. The Assistant Audit Officer, Audit Branch, TANGEDCO, Chennai - 2.

... Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the records inproceedings in Lr.No.AAO/TPT.RB/AS/S.C.A/c.007. 027.120.D765/11 dated 9.6.2011 on the file of the 2nd respondent and quash the same and further direct the 2nd respondent to drop all further proceedings pursuant to the impugned order. For Petitioner : Mr.Sudharshana Sunder For R1 to R3 : Mr.P.R.Dhilip Kumar Standing Counsel

ORDER

The petitioner has challenged the impugned demand notice dated09.06.2011 bearing Lr.No.AAO/TPT.RB/AS/S.C.A/c.007.027.120. D765 /11.

2. By the impugned demand notice, a sum of Rs.4,31,532/- has been demanded from the petitioner based on the audit that the petitioner was allegedly in arrears of CC charges. The impugned demand notice therefore called upon the petitioner to pay the

aforesaid arrears within a period of 15 days.

3. The reason for arriving on the above figure in the audit is follows:- "AUDIT SLIP No.34 Dt.2.6.2011 Rs.4,31,532/- Non-adoption of correct average consumption S.C.No.07.27.120 52KW IIIB On a review of the above service, it is noticed that the meter card defective since 8/2008. But correct consumption has been adopted only in 2/09 to 6/09(7640 units). The new meter has been fixed on 21.7.2009 and again defective but correct average consumption has not been levied as per clause 11(2) of TNERC. The details are as follows:

Date/Month Reading Units PF Amount The field has adopted based on 6/08 & 8/08 CC 10480 15285 ------- 7642.5 Say units But field to take average PF 31-10-07 11145 11144 91948 2/08 23109 11964 102671 4/08 33085 80305 6/08 43565 10480 75731 8/08 48370 47123 10/08 48820 12/08 48930 2/09 8307.7 Ar .04 42151 4/09 8192.9 .04 42151 6/09 8133.5 FR 8961.5 IOL 42151 8/09 0.48 43705 10/09 0.69 12/09 0.69 2/10 0.69 4/10 0.69 6/10 0.69 0.48 PF penalty 85.48 37x1.5% X 5.5% Average consumption 7640 units with PF penalty 55.5% This average has to be adopted from 10/08 CC to 6/09 instead of 2/09 to 6/09 Moreover the new meter changed on 21.7.09 with IC 0.2 also 8/10 16470 31.10.10 16482

land defective and new meter again fixed on 1.11.10. That is during then defective period also same average consumption i.e. 7640 units with PF penalty 55.5% has to be followed. But in this case very meager average of 3020 units has been adopted has, caused heavy loss of revenue to TANGEDCO. 7640 1500x4.00 = 6000 6140x4.70 = 28858 ---------------- 34858 55.5% PF Penalty 19346.19 ----------------- 54204.19 5% Tax 2710.20 FC 60.00 ------------------ 56974.39 ------------------ Say Rs.56974/- (31/8/10) 8/10 CC 7640/60x31 3947x5.00 = 19735 1500x4.00 = 6000 2193x4.70 = 10307.10 -------------- 55.5% PF = 36042.10 20003.36 --------------- 56045.46 5% Tax 2802.27 FC 60.00 ---------------- 58907.73 ---------------- Say Rs.58908/- 10/10 CC average Rs.59982/- Details of Shortfall Month To be billed Already billed Shortfall 10/08 56974 49674 12/08 56974 52017 2/09 56974 42151 14823 4/09 56974 42151 14823 6/09 56974 42151 14823 8/09 56874 43705 13269 10/09 56974 37233 12/09 56974 37233 2/10 56974 37233

Month To be billed Already billed Shortfall 4/10 56974 37233 6/10 56974 37233 8/10 58908 16470 42438 10/10 59982 16482 43500 Total Shortfall 431532 The above audit shortfall amount Rs.431532/- may be collected and intimate to audit with collection details".

4. It is the contention of the respondents that the petitioner has an option to approach the Consumer Grievance Redressal Forum as is contemplated under Section 11 of the Tamil Nadu Electricity Regulatory Commission's Code/The Tamil Nadu Electricity Supply Code. On the other hand, it is the contention of the learned counsel for the petitioner that the demand is clearly barred under Section 56(2) of the The Electricity Act, 2003.

5. The learned counsel for the petitioner submits that the petitioner was not aggrieved by the calculations and therefore there was no question of assessment to drive the petitioner to approach the Consumer Grievance Redressal Forum in terms of Section 11(7) of the Tamil Nadu Electricity Supply Code.

6. I have considered the arguments advanced by the learned counsel for the petitioner and the respondents.

7. There is an embargo on the respondents from demanding arrears as per sub-clause 2 to Section 56 of the Electricity Act, 2003. As per the aforesaid provision, no sum due from any consumer shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrears of charges for the electricity supplied.

8. In this case, the demand notice is dated 09.06.2011. Therefore, the demand, if any, can be made only for a period commencing from 10.06.2009 to 09.06.2011. In this case, the demand has been made for a period commencing from October 2008 to October 2010, based on the audit note. Therefore, the demand for the period prior to two years from the date of impugned notice is unsustainable. Therefore, to that extent, the impugned order seeking to demand arrears of charges from the petitioner is quashed. However, whether the respondents were justified in demanding amount based on the audit objection is to be determined by the respondents.

9. The petitioner has also given a representation dated 24.06.2011. This representation has not been considered by the respondents. While quashing the impugned order, I therefore direct the respondents to issue appropriate show cause notice to the petitioner within a period of 30 days from the date of receipt of a copy of this order to show cause as to why the arrears should not be collected from the petitioner for the period within the limitation prescribed under Section 56(2) of the Electricity Act, 2003.

10.

The petitioner shall thereafter give a reply/representation to the same before the concerned authority/concerned officer of the respondents. Such order shall be passed by such officer/authority after following the principles of natural justice by affording an opportunity of hearing to the petitioner. Pending such proceedings, no further recovery shall be made from the petitioner.

11. In case, the amount paid by the petitioner is in excess of the amount to be determined, the same shall be allowed by adjusted against future bill or refunded. On the other hand, if the consumption was excess, the petitioner shall be directed to pay the amount within the prescribed time limit as per the provision of the Act.

12. This Writ Petition is disposed of with the above observations and directions. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar arb To

1. The Assistant Engineer, Tamilnadu Electricity Board, (TANGEDCO) O & M, Napalayam, Chennai - 600 103.

2. The Assistant Accounts Officer, Revenue Branch, Tondiarpet/CEO/North, Chennai - 21.

3. The Assistant Audit Officer, Audit Branch, TANGEDCO, Chennai - 2.

+1 cc to M/s.D.Kanagasundaram, Advocate Sr.No. 14497 +1 cc to M/s.p.R.Dhilip Kumar, Advocate Sr.No. 14296 W.P. No. 17005 of 2011 and M.P. No. 1 of 2011 PA(CO) RMP(29/03/2021)