1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14-12-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)Nos.10740, 11849, 13073 and 13079 of 2011 And M.P.(MD) Nos.1, 1, 1 and 1 of 2011 Kamala Industries, S.No.49, Seydunganallur Road, Vasavappapuram, Srivaikuntam Taluk, Tuticorin District represented by its Proprietor Samuel. .. Petitioner in all WPs vs. Tamil Nadu Generation and Distribution Corporation Ltd., Anna Salai, Chennai, Represented by its Chairman cum Managing Director. .. R-1 in WPs 10740, 11849, 13073 & 13079/2011 The Superintending Engineer, Tuticorin Circle, Tamil Nadu Generation and Distribution Corporation Ltd., Tuticorin. .. R-2 in WPs 10740, 11849 and 13073/2011 The Superintending Engineer, Tuticorin Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Ltd., Tuticorin-1. .. R-2 in WP 13079/2011 The Accounts Officer, O/o.The Superintending Engineer, Tuticorin Circle, Tamil Nadu Generation and Distribution Corporation Ltd., Tuticorin. .. R-3 in WPs 10740, 11849 and 13073/2011 W.P.Nos.10740 & 11849/2011 Writ Petitions filed under Article 226 of the Constitution of India, praying for the issue of Writs of Certiorarified Mandamus, calling for the records pertaining to the demand notices/Bills dated 1.9.2011 and 30.9.2011 in respect of the petitioner's service connection HT SC No.206 and quash the same in so far as it relates to levy of penalty for exceeding quota and for consumption during evening peak hours as illegal, arbitrary and consequently direct the respondents to permit the petitioner to run his industry with the demand and energy sanctioned. https://hcservices.ecourts.gov.in/hcservices/ 2 WP No.13073/2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the demand notice/Bill dated 31.10.2011 of the third respondent in respect of the petitioner's service connection-HT SC No.206 and quash the same in so far as it relates to levy of penalty for exceeding quota and for consumption during evening peak hours as illegal, arbitrary and consequently direct the respondents to permit the petitioner to run his industry with the demand and energy sanctioned in their proceedings dated 6.9.2011. WP No. 13079/2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned letter of the second respondent in Lr. No.SE/TEDC/TIN/AEE/DVT/AE-DVT/F.DOC/D.No.1938/2011 dated 19.10.2011 and quash the same and consequently direct the respondents to give additional load of 300 KVA to petitioner's service connection HT SC No.206 vide his application dated 29.8.2011. For Petitioner in all WPs : Mr.V.Kannan For Respondents in all WPs : Mr.G.Kasinatha Durai, Standing Counsel for TNEB. C O M M O N O R D E R While the first 3 writ petitions challenge the bills for the months of August, September and October 2011, the fourth writ petition challenges the demand made by the respondents for the settlement of the arrears of consumption charges, as a pre-condition for the sanction of additional load. 2. I have heard Mr.V.Kannan, learned counsel for the petitioner and Mr.G.Kasinatha Durai, learned Standing Counsel for the respondents. 3. The petitioner is an Industry having a High Tension Service Connection bearing HTSC No.206. The petitioner originally had sanctioned a demand of 250 KVA granted in January 2005. They obtained additional demand of 350 KVA with effect from October 2008. After enjoying a total demand of 600 KVA for about 10 months, the petitioner surrendered 350 KVA, by a letter dated 1.8.2009. But within a week, there was a change of mind and the petitioner requested for a reduction in demand from 600 KVA to 405 KVA (rather than reduction from 600 KVA to 250 KVA), by a letter dated 8.8.2009. The Superintending Engineer called upon the petitioner to remit a registration fee of Rs.500/- for consideration of the said request.. Accordingly, the petitioner paid the amount of Rs.500/- on 13.10.2009. 4. By a letter dated 27.10.2009, the respondents approved the reduction in sanctioned demand from 600 KVA to 405 KVA without any reduction in the existing connected load. One of the conditions stipulated was that the maximum demand charges for any month and at the https://hcservices.ecourts.gov.in/hcservices/ 3 point of supply shall be based on the KVA recorded in that month or 90% of the sanctioned demand, whichever is higher. The terms and conditions were accepted by the petitioner as seen from the remittance of the estimate charges of Rs.32,349/-, made along with a letter dated 11.11.2009. 5. The petitioner failed to pay the current consumption charges for the month of April 2010, on or before the due date without BPSC. The due date was 7.5.2010. The respondents waited till 22.5.2010, which was the due date for payment with BPSC. But he did not pay. Therefore the service connection of the petitioner bearing HTSC No.206 was ordered to be disconnected on 22.5.2010. 6. Thereafter in November 2010, the petitioner made a request for re-fixation of energy and demand quota by treating it as a new industry from the date of conversion to urban feeder. The Superintending Engineer found that in the case of reduction of sanctioned demand permitted after 2008, the demand quota permitted should not exceed 60% of the sanctioned demand after reduction. The Superintending Engineer also took note of the fact that the reduction of demand from 600 KVA to 405 KVA was effected on 9.3.2010. Therefore, he sought a clarification from the Chief Engineer as to whether the petitioner is eligible for fixing the demand quota at 80% of the sanctioned demand after reduction or 72% of the sanctioned demand after reduction. 7. In response to the clarification sought by the Superintending Engineer, as above mentioned, by his communication dated 22.12.2010, the Chief Engineer reduced the demand of 400 KVA and directed re-connection, after taking note of the original demand, the base demand, energy quota etc., as on 7.11.2008 and 13.11.2009. 8. Thereafter the service was re-connected on 20.7.2011 after changing the Meter Box. But the connected load could not be checked, since the petitioner was not ready to connect the load. This was recorded by the Executive Engineer in his communication dated 22.7.2011 to the Superintending Engineer. 9. After re-connection on 20.7.2011, the petitioner himself sent a letter dated 26.7.2011, seeking re-fixation of the energy and demand quota. The request made by the petitioner requires re-production, since it involves technical details. Therefore, the relevant portion of the letter dated 26.7.2011 is re-produced as follows:- “We may request to fix the energy and demand quota as follows at present as per the order of CE. Comml/Chennai. 1. The present sanctioned demand is 405 KVA. 2. As per CE/Comml orders the demand quota is fixed as 223 KVA. 3. As per Original base demand 194.00 KVA 4. As per additional demand of 155 KVA base demand is arrived at as per order dated 12.3.2010 – 96.75 KVA Total Base demand 290.75 KVA or 291.00 KVA 5. With the quota demand now sanctioned at 223 KVA we are unable to run the Industry. 6. Hence demand may be permitted upto 291 KVA with number of days reduced as per Board orders dated 1.11.2008. Energy Quota https://hcservices.ecourts.gov.in/hcservices/ 4 7. As per CE/Comml orders Energy Quota is fixed at 19,224 units for original demand. 8. As per CE/Comml. orders for additional load of 155 KVA (350-195) the energy is to be fixed as follows: 155 x 250 units @ for 3 shift industry per KVA units allotted will be 250 unit/KVA is Total units permissible due to additional load = 38,750 Total Units Permissible 38,750 19,224 --------- 57,974 Units ===== Since the quota demand is fixed at 223 KVA and since the Industry can be permitted to avail upto base demand is 291 KVA with limited number of days of working as follows 223 x 30 ---------- = 22.98 day or 23 Days 291 Hence we may request you to permit us to run the Industry with 291 KVA day for 23 days in a month with 57,974 Units. We have CEIG's approval of 800 KVA. So we request you to sanction quota for Demand and Energy.” 10. In response to the request made by the petitioner on 26.7.2011, the Superintending Engineer sent a reply dated 3.8.2011, approving the revised quota as follows:- “Base demand : 405 KVA Base Energy : 72468 Units 80% Demand Quota : 223 KVA Energy Quota : 57974 Units 10% Demand Quota : 22.3 KVA 10% Energy Quota : 5797 Units.” 11. Within a month of re-connection, the petitioner again made a demand for a change. To be precise, the petitioner wanted the demand quota of 223 KVA and energy quota of 57,974 Units, to be changed to the optimum demand of 291 KVA for 23 days in a month with energy quota of 57,974 Units. The request made by the petitioner was sanctioned by the Chief Engineer by his letter dated 18.8.2011. The sanction was communicated to the petitioner by the Superintending Engineer by a memo dated 6.9.2011. 12. In the meantime, the petitioner received a bill dated 1.9.2011 for a sum of Rs.18,72,220/-. The bill was for the consumption in the month of August 2011. Challenging the said bill, the petitioner came up with W.P.No.10740 of 2011. In the said writ petition, notice was ordered on 21.9.2011 and an interim injunction was granted on condition that the petitioner pays Rs.5 lakhs. 13. Thereafter the next bill for the month of September 2011 was raised on 30.9.2011, for a sum of Rs.19,27,137/-. Challenging the same, the petitioner came up with the second writ petition W.P.No.11849 of 2011. While ordering notice in the said writ petition on 18.10.2011, I directed the petitioner to pay a sum of Rs.7,50,000/-, within two weeks. https://hcservices.ecourts.gov.in/hcservices/ 5 The petitioner obtained an extension of time subsequently and he appears to have made payments. 14. The next bill dated 31.10.2011 for a sum of Rs.11,35,761/- relating to the consumption for October 2011 became the subject matter of challenge in the third writ petition W.P.No.13073 of 2011. In the meantime, the petitioner sought an additional demand of 300 KVA. But the respondent informed the petitioner that the same could not be considered unless the amounts pending in dispute in the 3 writ petitions are remitted. Therefore, challenging the pre-condition imposed by the respondent for the grant of additional load, the petitioner has come up with the fourth writ petition W.P.No.13079 of 2011. 15. Therefore, all the writ petitions were taken up together and I have heard the learned counsel on both sides. W.P.No.10740/2011: 16. As pointed out earlier, the first writ petition challenges the Bill for the month of August 2011 issued on 1.9.2011. On top of the Bill, the permitted maximum demand is indicated as 405 KVA, the demand quota indicated as 223 KVA and energy quota indicated as 57,974 Units. The actual consumption was 1,35,672 Units, out of which there was a peak hour consumption of 35,358 Units. Therefore, the respondents have calculated the current consumption charges, by including the extra levy for exceeding the limits. 17. Though the affidavit of the petitioner in support of W.P.No.10740 of 2011, challenging the Bill for the month of August 2011 is highly confusing, the basis on which the petitioner challenges this Bill is that the respondents have reduced the quota and imposed a levy for the excess demand, without following the principles of natural justice. All the grounds raised by the petitioner in para 15 of the affidavit, repeat the same allegation of violation of principles of natural justice, in different tunes. 18. But I fail to understand as to how and where principles of natural justice creep in. What is challenged in the writ petition is only a monthly Bill. I have not so far come across a case, where the respondents have been directed to follow the principles of natural justice, even for raising a routine monthly Bill. The impugned Bill merely raises totally energy charges, demand charges, meter rent, extra levy for exceeding limits, evening peak energy and demand and electricity tax. But the petitioner has projected his case as though some penalty has been levied without any notice or opportunity. This has led to a misconception that natural justice was violated. 19. In so far as the reduction of the demand quota from 405 KVA to 223 KVA and energy quota to 57,974 Units are concerned, the respondents have not done so unilaterally. They have reduced the quotas, only at the request of the petitioner. The petitioner has actually suppressed in his affidavit, the request made by him to reduce the quotas. Therefore, apart from the fact that he is guilty of suppression of facts, the grievance of the petitioner regarding the reduction of the quota is unjustified, since the reduction happened at his request. https://hcservices.ecourts.gov.in/hcservices/ 6 20. At the time of arguments, the learned counsel for the petitioner contended that even in the Bill dated 31.7.2011, the energy quota was indicated as 1,06,724 Units and that suddenly in the impugned Bill, the energy quota is reduced to 57,974 Units. It is only on this basis that the petitioner is alleging violation of natural justice. 21. But it may be seen from the sequence of events narrated from paragraph 3 onwards that the service connection of the petitioner was under disconnection from 22.5.2010. It was reconnected only on 20.7.2011. On 26.7.2011, the petitioner made a request for reducing the energy quota to 57,974 Units. The respondents have produced a copy of this letter dated 26.7.2011 submitted by the petitioner. The Meter reading for July 2011 would have been over on 25th or 26th of July 2011. Therefore, the Bill dated 31.7.2011 naturally reflected the original energy quota. But the subsequent Bill for August 2011 gave effect to the request of the petitioner dated 26.7.2011 and indicated the energy quota as 57,974 Units. Therefore, the grievance projected by the petitioner after suppressing the request made by him, is highly unfair. 22. In view of the above, I do not find the grievance of the petitioner to be either fair or justified. Hence, W.P.No.10740 of 2011 is dismissed. W.P.No.11849/2011: 23. The grievance of the petitioner in respect of the Bill dated 30.9.2011 for the month of September 2011, is almost on identical lines as his grievance relating to the previous Bill. He has projected as though the energy quota was reduced all of a sudden from 1,06,724 Units to 57,974 Units. But it is not so. Even in this Bill, the respondents have calculated the consumption charges, extra levy for exceeding limits etc., as they have done in respect of the previous Bill. 24. As I have pointed out earlier, the sequence of events show that the Unit of the petitioner was under disconnection from 22.5.2010. After re-connection on 22.7.2011, the petitioner sought reduction of the energy quota and demand quota, by a letter dated 26.7.2011. The same was accepted by the respondents by a letter dated 3.8.2011. 25. The counsel for the petitioner originally took a stand that he was not communicated with the letter dated 3.8.2011. But in the course of hearing, the respondents produced the file, which shows that the petitioner received the letter dated 3.8.2011. In any case, the petitioner cannot raise a plea that he was not served with the letter dated 3.8.2011, since he had suppressed even his own request letter dated 26.7.2011. 26. Taking advantage of the communication dated 6.9.2011, by which the respondents informed the petitioner of the revision of quota, the counsel for the petitioner contended that he came to know about the revision only on 6.9.2011. But this is a false claim. The petitioner admitted in the course of hearing that he submitted a letter dated 26.7.2011. The reply dated 3.8.2011 is found by me to have been served on the petitioner. Therefore, there are no merits even in the second writ petition. Hence W.P. No.11849 of 2011 is dismissed. https://hcservices.ecourts.gov.in/hcservices/ 7 W.P.No.13073/2011: 27. Apart from the same grounds raised in the previous two writ petitions, the petitioner has taken an additional ground that the previous Bills are under challenge in the earlier writ petitions. But I have come to the conclusion in the preceding paragraphs that those writ petitions are liable to be dismissed. Therefore, the third writ petition challenging the Bill for the month of October 2011 is also liable to be dismissed. 28. The contention of the learned counsel for the petitioner that peak hour consumption charges have been raised in this Bill, does not improve his case. The last revision sought by the petitioner has been taken into account by the respondents, for arriving at these charges. Therefore, the third writ petition is also liable to be dismissed. Accordingly W.P.No.13073 of 2011 is dismissed. W.P.No.13079/2011: 29. The prayer in this writ petition is for setting aside an order by which the respondents demanded payment of the amounts due under the Bills for the months of August, September and October, as a condition for sanctioning additional load of 300 KVA. 30. The only ground on which the petitioner challenges the demand made by the respondents is that the Bills for the months of August, September and October, 2011 are under challenge in the earlier writ petitions and that when the matter is subjudice, the respondents cannot impose a condition for payment of those amounts. 31. The above contention cannot hold good anymore, in view of the dismissal of those 3 writ petitions. Moreover, under the provisions of Regulation 5(2)(iv) of the Tamil Nadu Electricity Supply Code 2004, no addition or reduction of load may be sanctioned unless the outstanding dues in the same service connection had been paid. Therefore, the order impugned in the writ petition is perfectly valid. Hence W.P.No.13079 of 2011 is also dismissed. 32. In the result, all the writ petitions are dismissed and the interim orders earlier passed are vacated. There will be no order as to costs. Consequently connected miscellaneous petitions are also dismissed. Sd/- Assistant Registrar (RTI) / True Copy / Sub Assistant Registrar To 1.The Chairman cum Managing Director, Tamil Nadu Generation and Distribution Corporation Ltd., Anna Salai, Chennai, 2.The Superintending Engineer, Tuticorin Circle, Tamil Nadu Generation and Distribution Corporation Ltd., Tuticorin. https://hcservices.ecourts.gov.in/hcservices/ 8 3.The Superintending Engineer, Tuticorin Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Ltd., Tuticorin-1. 4.The Accounts Officer, O/o.The Superintending Engineer, Tuticorin Circle, Tamil Nadu Generation and Distribution Corporation Ltd., Tuticorin. +1CC TO MR.G.KASINATHA DURAI, ADVOCATE SR : 43646 Svn SR : 28.12.2011 : 8p/6c Common Order in W.Ps.(MD) 10740, 11849, 13073 and 13079 of 2011 14-12-2011 https://hcservices.ecourts.gov.in/hcservices/