IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.03.2011 CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR W.P. No. 5240 of 2011 KONGARAR COTTON & SYNTHETICS (P) LTD HTSC NO.94 172-A DHALLY ROAD UDUMALLPET-642 126 TIRUPUR DISTRICT REPD.BY ITS MANAGER N.SHANMUGASUNDARAM. .. Petitioner Vs. 1 THE DIRECTOR/OPERATION TAMIL NADU TRANSMISSION CORPORATION LTD. 144 ANNA SALAI CHENNAI-2. 2 THE SUPERINTENDING ENGINEER UDUMALPET ELECTRICITY DISTRIBUTION CIRCLE TAMIL NADU ELECTRICITY BOARD UDUMALPET-642 126. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari Calling for the records of the 2nd Respondent in his Letter No.SE/UEDC/UDT/AO/REV/ AS/AS2/F.HTSC94/F.TCP/2011 Dated 23/02/2011 and Revised Bills No.94 dated 22.02.2011 and bill dated 28.02.2011 in so far as it relates to levy of penalty under Serial No.13(a)(b) and (f) quash the same as unsustainable in law. For Petitioner : Mr. A.R.L.Sundaresan, Sr. Counsel for Mr. R.S.Pandiyaraj For Respondents : Mr. A. Selvendran ORDER This writ petition is filed to call for the records of the 2nd Respondent in his Letter No.SE/UEDC/UDT/AO/REV/ AS/AS2/F.HTSC94/F.TCP/2011 Dated 23/02/2011 and Revised Bills No.94 dated 22.02.2011 and bill dated 28.02.2011 in so far as it relates to levy of penalty under Serial No.13(a)(b) and (f) quash the same as unsustainable in law. https://hcservices.ecourts.gov.in/hcservices/ 2. By consent, the writ petition is taken up for final disposal. 3. The petitioner in this case has entered into an agreement with one TCP Limited, a third party for purchase of power and in proceedings Lr. No.SE/SEDC/SVGA/HT/AS/A1/F-R&C/D/2010, dated 28.8.2010, the power generated by M/s. TCP Limited, Sivagangai Distribution Circle was directed to be wheeled through Tamil Nadu Electricity Board to their HT Consumers. In the list of 12 consumers, the petitioner finds place at Sl.No.10. 4. The Bills relating to October 2010 to December 2010 and February 2011 was sought to be revised on the plea that the third party power purchase from M/s. TCP Limited through Superintending Engineer, Sivagangai and said to have been supplied to the petitioner service connection is not correct. This is based on a report. In view of such report, the Bills of October-2010, November-2010, December-2010 and February 2011 are revised by excluding the third party purchase units and treating it as units supplied by the Board. Consequently, penalty was imposed for exceeding the limit. 5. The main grievance of the petitioner is that before passing the impugned proceedings dated 23.2.2011, the petitioner has not been put on notice. The petitioner has infact paid the third party power supplier during the relevant period and they have records to prove the same. Therefore, department's claim is not correct. If the Department had given an opportunity to the petitioner to prove that the third party purchase is in accordance with the terms of the agreement and there was no consumption of the power supplied by the Board, the demand will have to be set aside. 6. The petitioner relied upon the proceedings dated 28.8.2010 issued by the Superintending Engineer, Sivagangai Distribution Circle wherein, in Sl.No.10 the petitioner is shown as a party for the supply of power generated by the TCP Limited. On this premise, the impugned proceedings is challenged stating that the demand made by way of penalty is without jurisdiction and arbitrary. In respect of the penalty amount levied in respect of February 2011 Bill, the same plea is taken. 7. Heard Mr. A. Selvendran, learned counsel appearing for the respondents, who submitted that the impugned proceedings is based on the report and records. If the only plea of the petitioner is denial of opportunity then they may be permitted to treat the impugned proceedings as notice and submit their objection/reply along with the proof of purchase of power from third party, to the https://hcservices.ecourts.gov.in/hcservices/ Department so as to determine the nature of consumption (i.e.) if it is through third party purchase or from the Board. If the petitioner's case is found to be not genuine, the authorities may be allowed to proceed in accordance with law as per the demand. 8. In this case, admittedly, while passing the impugned proceedings dated 23.2.2011, the petitioner has not been put on notice and the Bills relating to October 2010 to December 2010 and February 2011 have been revised without giving opportunity as aforesaid. This will clearly amount to violation of Principles of natural justice. However, the plea of the respondents counsel to treat the impugned proceedings as notice is tenable. 9. In such view of the matter, without setting aside the impugned proceedings, the petitioner is directed to submit a reply along with necessary documents to show that the purchase of power from third party is in order and the levy of penalty is bad. The petitioner is at liberty to put forward his plea/ objection with regard to the bonafides of the third party purchase within a period of fifteen days from the date of receipt of a copy of this order and the same shall be considered and decided by the authority in accordance with law within a period of 15 days thereafter. The petitioner is however liable to pay the current consumption charges as applicable. The respondents shall not claim the payment of penalty demanded for the months of October to December 2010 and February2011 till the issue is finalised after receipt of document as indicated above. 10. This writ petition is disposed of accordingly. Consequently M.P.Nos. 1 and 2 of 2011 are closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1 THE DIRECTOR/OPERATION TAMIL NADU TRANSMISSION CORPORATION LTD. 144 ANNA SALAI CHENNAI-2. https://hcservices.ecourts.gov.in/hcservices/ 2 THE SUPERINTENDING ENGINEER UDUMALPET ELECTRICITY DISTRIBUTION CIRCLE TAMIL NADU ELECTRICITY BOARD UDUMALPET-642 126. 1 cc To Mr.R.S.Pandiyaraj, Advocate, SR.14872 1 cc To Mr.J.Ravindran, Advocate, SR.16026 WP No. 5240 of 2011 bvr(co) pmk.10.3.2011 https://hcservices.ecourts.gov.in/hcservices/