1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.02.2011 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.660 of 2011 Maris Spinners Ltd., HTSC No.88, Kulithalai Road, Sevaloor Village, Manaparai Trichy, Rep. by its General Manager, R.S.Ganappathi : Petitioner Vs. The Superintending Engineer, Trichy Electricity Distribution Circle, Tamil Nadu Electricity Board, Mannarpuram,Trichy-20. : Respondent Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records of the respondent in his letter No.SE/TEDC/M/Ty/AEE/Dev/JE/Dev/F.HT.SC.No.88/D.930/10, dated 30.12.2010, quash the same as unsustainable in law and consequently, direct the respondent to give additional demand of 245 KVA in the existing metering point itself, within the stipulated time, applied vide application dated 17.02.2010. For Petitioner : Mr.AR.L.Sundaresan Senior Counsel For Mr.R.S.Pandiyaraj For Respondent : Mr.Murali For Mr.M.Suresh Kumar ORDER This Writ Petition is directed against the order dated 30.12.2010 on the file of the respondent, whereby and whereunder, the petitioner was directed to shift the metering point immediately for taking further action to sanction the additional demand of 245 KVA, as per the direction of this Court dated 28.10.2010 in W.P.(MD)No.8550 of 2010. FACTS IN BRIEF: 2. The petitioner is a limited Company and their Spinning Mill is located at Kulithalai in the district of Trichy. Since the petitioner wanted to expand their manufacturing activity, they have installed machines and for the purpose of making use of the new machinaries, application was submitted on 17.02.2010 for sanctioning additional load of 245 KVA. Since there was a demand pending against the petitioner, which was the subject matter of another Writ Petition, the respondent, as per communication dated 20.04.2010, indicated that action would be taken only after the payment of arrears. The respondent, in the very same communication, further stated that the request for exemption for shifting the metering point would be considered only after the clearance of the pending Court cases and payment https://hcservices.ecourts.gov.in/hcservices/ 2 of penal charges. The proceeding dated 20.04.2010 was challenged in W.P.(MD) No.8550 of 2010. The said Writ Petition was disposed of as per order dated 28.10.2010, directing the respondent to consider the application for additional demand. 3. While the matters stood thus, the respondent, through the impugned communication, called upon the petitioner to shift the metering point from the present place to another point within 30 metres from the main gate. The said notice is under challenge in the Writ Petition. 4. The respondent, in their counter-affidavit, explained that the petitioner has earlier agreed to shift the point of supply and an undertaking to that effect was also given. The said undertaking was given for sanctioning the additional demand. The Board sanctioned the additional demand subject to the condition that the petitioner should shift the metering point within a period of 12 months. Subsequently, the petitioner made a fresh request for additional demand. It was only for the purpose of considering the said demand, the petitioner was directed to comply with their earlier undertaking by shifting the metering point. The respondent further contended that Rule 29(14) of the Tamil Nadu Electricity Distribution Code, 2004 [hereinafter referred to as "the Supply Code"] specifically provides that the point of supply shall be within 30 metres from the main gate easily accessible and visible. Therefore, the petitioner is bound to comply with the statutory requirements. THE RIVAL SUBMISSIONS: 5. The learned Senior Counsel for the petitioner would contend thus: (a) The Unit was established only after submitting a plan and in the said plan, the point of supply was clearly shown. It was only after satisfying about the supply point, the Board approved the plans and accordingly, supply was given to the petitioner. Therefore, it is too late on the part of the respondent to come up with a demand to shift the metering point. (b) The supply point in question is visible both from the main gate as well as from the second gate. The situation of the supply point is such that even a stranger could see the said point from a distance and as such, there is no point in directing the petitioner to shift the point of supply at this point of time. (c) The petitioner has already handed over the keys of the gate and as such, there would be no difficulty for the department to conduct inspection at any point of time. (d) The main gate is not defined in the Supply Code. Therefore, it cannot be said that the front gate alone is the main gate so as to direct that the point of supply should be within 30 metres from the front gate. (e) The petitioner has invested huge amount for locating the supply point. In case the point of supply is to be shifted, it would cost a minimum sum of Rs.30,00,000/- and as such, it would cause undue financial hardship to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 3 (f) The Chief Executive Officer is given the jurisdiction to approve the point of supply at a place beyond 30 metres and as such, the request of the petitioner has to be considered by the said authority. 6. The learned Standing Counsel for the respondent would submit thus: (a) Rule 29(14) of the terms and conditions of supply of Electricity clearly provides for locating the point of supply within 30 metres from the main gate. Therefore, the petitioner is bound to comply with the said Regulation. (b) The petitioner has earlier given an undertaking agreeing to shift the point of supply to a place within 30 metres from the main gate. The direction now given is only for the purpose of complying with the said undertaking. (c) The point of supply is beyond 30 metres both from the main gate as well as from the inner gate. Therefore, the petitioner cannot be heard to say that the point of supply is within 30 metres from the main gate. (d) The petitioner was given power connection subject to the terms and conditions. The petitioner has entered into an agreement with the Board agreeing to abide by the terms and conditions for supply of electricity Therefore, the Board was justified in their action. THE STATUTE: 7. Rule 29(14) of the terms and conditions for supply of electricity reads thus: "14. For high tension service connections: (a) For indoor metering, an electrical room with RCC roof having a clear floor area 5m x 6m with a vertical clearance of 3.7 metres between the floor and the ceiling/beam bottom with locking facility, exhaust fan and adequate size of cable duct shall be exclusively provided in the ground floor for installing the licensee's equipments, etc. This room shall be of fireproof and weatherproof. (b) For outdoor metering, a clear space of 10m x 4m or 5m x 5m open to sky shall be provided. This enclosure shall be at the periphery of the building and shall be cut off from other portions of the premises by fire resistance walls. These areas shall be specifically shown in the plan. Before the plan is sent to the competent authority for approval, it shall be sent to the engineer and got approved. The point of supply shall be within 30 metres from the main gate easily accessible and visible and satisfactory with regards to security aspects. Failure to comply with the above requirements will result in denial of supply." https://hcservices.ecourts.gov.in/hcservices/ 4 DISCUSSION: 8. It is true that the respondent has given power supply to the petitioner. The terms and conditions for supply of electricity contains an indication that the plan of the Unit has to be sent to the competent authority for approval. There is also a requirement to locate the point of supply in the said plan and it should be within 30 metres from the main gate easily accessible and visible. The prescription that point of supply shall be made within 30 metres was inserted for a specific purpose. The Officers of the Electricity Board and the Power Theft Detection Squad should be in a position to enter the point of supply without the knowledge of the petitioner or their men. 9. The petitioner has given an undertaking earlier agreeing to shift the point of supply. The direction of the respondent is only to adhere to the said undertaking. 10. The proviso added to Rule 29(14), as per notification dated 08.02.2008, gives power to the Chief Executive Officer or any other Officer, not less than the rank of a Chief Engineer to approve the point of supply at a place beyond 30 metres from the main gate. The proviso reads thus: "Provided that the Chief Executive Officer or any other Officer, not less than in the rank of a Chief Engineer, authorized by the Chief Executive Officer may approve the point of supply at a place beyond 30 metres from the main gate, if he is satisfied that such place is (a) easily accessible and visible to the officials of the licensee; (b) is safe and secure; and (c) is not susceptible to malpractice. Also there shall be no compromise on technical grounds, while relaxing the distance criteria." 11. The proviso gives a clear indication that the Chief Executive Officer is empowered to decide the issue regarding locating the point of supply beyond 30 metres. The respondent earlier issued a proceeding dated 20.04.2010. The said proceeding contains a statement that the request made by the petitioner for exemption from shifting the existing metering point within 30 metres from the main entrance would be decided after the clearance of the pending Court cases and penal charges. The said proceeding was challenged in W.P.(MD)No.8550 of 2010. While deciding the Writ Petition, the learned Judge observed that the petitioner had been permitted to pay peak hour penalty imposed by the Board on installments and as such, they should consider the demand for additional demand. It was only pursuant to the said order, the respondent has taken up the issue regarding sanctioning additional load. In view of the order passed by this Court dated 28.10.2010, in W.P.(MD)No.8550 of 2010, the respondent has to consider the request of the petitioner for exemption from the requirement regarding locating the metering point within 30 metres. Since the respondent has agreed to consider the request for exemption, subject to the clearance of the pending Court cases and penal charges and the said condition having been set aside by the Court, as per order dated 28.10.2010 in W.P.(MD)No.8550 of 2010, necessarily https://hcservices.ecourts.gov.in/hcservices/ 5 the issue has to be considered by the Chief Executive Officer or the authority nominated by the Chief Executive Officer. 12. The question as to whether the petitioner should be permitted to retain the metering point in the present location or whether they should shift to a point within 30 metres from the main entrance are all matters to be decided by the Chief Executive Officer. The decision taken by the Chief Executive Officer would be binding on the petitioner. Therefore, I am of the view that the issue requires consideration by the Chief Executive Officer. CONCLUSION: 13. Accordingly, the petitioner is directed to approach the Chief Executive Officer of the Tamil Nadu Electricity Board with an application for exemption so as to enable them to retain the point of supply at the present location and in the event of making any such application, within a period of four weeks from the date of receipt of a copy of this order, the same shall be considered by the Chief Executive Officer on merits and as per law. Such exercise shall be completed within a period of four weeks thereafter. 14. The Writ Petition is disposed of with the above direction. No costs. Sd/- Deputy Registrar(LA) /TRUE COPY/ Assistant Registrar To 1 The Superintending Engineer, Trichy Electricity Distribution Circle, Tamil Nadu Electricity Board, Mannarpuram, Trichy-20. 2 The Chief Executive Officer, Trichy Electricity Distribution Circle, Tamil nadu Electricity Board, Trichy. Order made in W.P.(MD)No.660 of 2011 Delivered on:- 14.02.2011 SML PA/03.03.2011/5P/3C https://hcservices.ecourts.gov.in/hcservices/