M/S.Gnanambikai Mills Ltd v. The Tamilnadu Electricity
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2018
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P.No.2419 of 2010 and M.P.No.2 of 2010 M/s.Gnanambikai Mills Limited, Alankar Building, III Floor, 551, D.B.Road, R.S.Puram, Coimbatore-641 002.
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Petitioner Vs 1.The Tamil Nadu Electricity Regulatory Commission rep.by its Secretary, 19-A, Rukmini Lakshmipathy Salai (Marshalls Road), Egmore, Chennai-600 008.
2.The Tamil Nadu Electricity Board rep.by its Chairman, 144, Anna Salai, Chennai-600 002.
3.The Superintending Engineer, Tamil Nadu Electricity Board, Coimbatore Electricity Distribution Circle/North, Coimbatore-641 012.
4.The Assistant Executive Engineer (South), Tamil Nadu Electricity Board, Coimbatore Electricity Distribution Circle, Thudiyalur, Coimbatore.
5.The Accounts Officer (Revenue), Tamil Nadu Electricity Board, Coimbatore Electricity Distribution Circle/North, Coimbatore-641 012.
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Respondents 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 fifth respondent contained in the impugned CC Bill dated 01.09.2009 for the month of August in respect of the petitioner's HT SC No.2 in so far as it relates to the demand of Rs.7,95,240/- towards penalty for peak hour violation and set it aside as being arbitrary and illegal and direct refund of the said sum of Rs.7,95,240/- forthwith.
For Petitioner : Mr.R.Parthasarathy For Respondents : Mr.S.K.Rameshwar
O R D E R
The petitioner-Mill is an industry involved in the manufacture of cotton yarn. The petitioner is having High Tension Electricity Supply in H.T.SC.No.2. The said H.T.supply has been sanctioned to the petitioner with a sanctioned demand quota of 1450 kVA to run the industry. While so, the Government of Tamil Nadu, through the Energy Department on 22.10.2008, have issued restrictive measures on the consumption of power relying upon Regulation 38 of the Tamil Nadu Electricity Distribution Code, 2004 and accordingly directed the second respondent to impose 40% power cut to H.T. Industrial and Commercial Consumers. Based on the directions of the Government of Tamil Nadu, the second respondent imposed 40% demand and energy cut on the base demand and base consumption from 01.11.2008.
The Government have also directed to reduce the demand charges proportionately to the consumers, whose demand and consumption have been restricted to the extent of 40% per month. The first respondent-Commission has also issued a detailed order in M.P.No.42 of 2008 dated 28.11.2008 directing that excess demand shall be charged at a rate thrice the normal rate and excess energy consumption be charged at thrice the normal rate for both H.T. Industrial and Commercial Customers. As a result, the H.T. Consumers who exceed the quota have to pay Rs.900/- (Rs.300 + Rs.600) being thrice the normal rate towards excess demand quota and Rs.10.50 (ie., Rs.3.50 + Rs.7.00) per unit for excess energy quota.
2.It is further stated by the petitioner that however, the first respondent refused the proposal of adjustment of excess consumption during one quota period against the entitlement for the following quota period. The first respondent further denied retrospective imposition of additional charges and penalty over the excess demand and energy charges from 01.11.2008, but ordered to enforce the excess demand charges and excess energy charges from the date of the order, ie., from 28.11.2008 onwards. Therefore, it was decided that there should be no set off of the excess consumption of one quota period in the following quota period. However, the petitioner received a letter dated 24.07.2009 from the second respondent, which was a purported notice in compliance with the orders of the Tamil Nadu Electricity Regulatory Commission, the first respondent herein in M.P.No.42 of 2008, intimating the petitioner that the second respondent Board was enforcing
the measures from 01.11.2008 and appropriate action was being taken for any violation detected thereafter. The petitioner states that a reading of the metre in respect of the evening peak hour consumption would clearly show that the petitioner has been in compliance with the orders passed by the first respondent Commission.
3.But the petitioner has received the impugned demand of the fifth respondent in the CC Bill for the month of August 2009 demanding a sum of Rs.7,95,2400/- for the alleged violations of peak hour restrictions. Further, by a subsequent letter dated 07.08.2009, the fourth respondent has specifically stated that upon an inspection on 07.08.2009, it was found that there was a violation by the petitioner in respect of demand quota fixed for peak hour period and hence the quota for the next 48 hours is refixed at 5% of the quota demand. Since the petitioner had important orders to complete and was not in a position to immediately approach the judicial forum to obtain orders, the petitioner was forced to make payment of the amount demanded, ie., Rs.7,95,240/- under protest by including it in the current consumption demand of Rs.32,35,317/-. 4.Thereafter, the petitioner requested the authorities for refund of the excess amount collected as penalty. Since the request of the petitioner met with no response, the present writ petition has been filed.
5.When this writ petition was taken up, the learned counsel for the petitioner has submitted that the issue involved in this writ petition is squarely covered by the decision of the Appellate Tribunal for Electricity in Appeal Nos.177, 178, 182, 183, 186 and 187 of 2013 dated 29.05.2014, by which the Tribunal dismissed the appeals filed by the Tamil Nadu Electricity Board and held as under: "i)According to the judgment of this Tribunal in Appeal Nos.
51 & 56 of 2012, the demand and energy quota as communicated by the Electricity Board in advance based on the advance declaration of energy proposed to be made available from captive generation will be used for calculation of excess demand and excess energy charges till the new procedure as decided by the State Commission dispensing the need for advance declaration by the captive consumer by order dated 7.9.2010 has been implemented.
basis for calculation of excess demand / energy as per the above judgment of the Tribunal.
ii)The State Commission has correctly interpreted the findings of this Tribunal in Appeal Nos.51 & 56 of 2012 and drawn the correct conclusion in the impugned order dated 17.4.2012 which is in consonance with the findings of this Tribunal."
6.The learned counsel for the petitioner has also produced a copy of the order passed by the Hon'ble Supreme Court in Civil Appeal No(s).8215/2015 dated 25.10.2018, wherein the view taken by the Regulatory Commission and the Appellate Tribunal for Electricity that 'the decision and methodology for charging excess energy and demand charges adopted by the Distribution Licensee is correct but the date of collection of such charges would be from 2010 and not from 2008 when the Restriction and Control measures were introduced' has been affirmed.
7.In view of the above, the impugned CC Bill dated 01.09.2009 for the month of August 2009 in respect of the petitioner's HT Service Connection No.2 in so far as it relates to the demand of Rs.7,95,240/- is set aside and the writ petition is disposed of on the same lines as observed by the Appellate Tribunal for Electricity in Appeal Nos.177, 178, 182, 183, 186 and 187 of 2013 dated 29.05.2014. No costs. Consequently, the connected miscellaneous petition is closed.
Sd/- Assistant Registrar(Co) //True Copy// Sub Assistant Registrar KM To 1.The Secretary, Tamil Nadu Electricity Regulatory Commission 19-A, Rukmini Lakshmipathy Salai (Marshalls Road), Egmore, Chennai-600 008.
2.The Chairman, Tamil Nadu Electricity Board 144, Anna Salai, Chennai-600 002.
3.The Superintending Engineer, Tamil Nadu Electricity Board, Coimbatore Electricity Distribution Circle/North, Coimbatore-641 012.
4.The Assistant Executive Engineer (South), Tamil Nadu Electricity Board, Coimbatore Electricity Distribution Circle, Thudiyalur, Coimbatore.
5.The Accounts Officer (Revenue), Tamil Nadu Electricity Board, Coimbatore Electricity Distribution Circle/North, Coimbatore-641 012.
W.P.No.2419 of 2010 and M.P.No.2 of 2010 ASK(23/01/2019)