IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. Nos: 1101, 1102 & 1335 of 2007 Date of decision: 26.5.2008 1. CWP No. 1101 of 2007 M/s. Winsome Textile Petitioner Versus H.P.S.E.B. & others Respondents 2. CWP No. 1102 of 2007 M/s Winsome Spinners Petitioner Versus H.P.S.E.B. & others Respondents 3. CWP No. 1335 of 2007 M/s Winsome Textile Ltd. Petitioner Versus H.P.S.E.B. & others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No For the Petitioners: Mr.R.L.Sood, Senior Advocate, with Mr.Arjun Lal, Advocate For the Respondents:Mr.Baldev Singh, Advocate Deepak Gupta, J.(Oral) The aforesaid three writ petitions are being disposed of by one judgment since common questions of law and fact are involved in all the three petitions. 1 Whether the reporters of the local papers may be allowed to see the Judgment? The petitioners had earlier filed CWP Nos.496, 499 & 500 of 2002 in this Court praying for the grant of the following reliefs: “a) Quash the demand raised in bill dated 12.12.2001 Annexure PC, Bill dated 12.12.2001, Annexure PE, Bill dated 14.01.2002, Annexure PG, Bill dated 11.2.2002, Annexure PJ, Bill dated 14.03.2002, Annexure PL and Bill dated 8.4.2002, Annexure PN. b) Restrain the respondents from raising electricity bills in respect of the Petitioner Company in any manner whatsoever, save and except, on the basis of the Contract Demand (KVA), after the respondents have entered into an agreement with the Petitioner Company. The bills be directed to be raised on the basis of the Contract Demand as being the basic factor and thereafter taking 80% of the said Contract Demand for calculating the amount due towards demand charges, or on the basis of the actual Maximum Demand. c) And also direct the respondents to raise the bills correctly in respect of the Contract Demand for 21 hours and in respect of peak load hours only for 3 hours per day without levying any peak rate charges for the bona fide lighting load and direct the respondents to refund the excess amount charged with 18% p.a. interest.” When the petitions came up for hearing before us, both the parties admitted that the said petitions may be disposed of in terms of the orders passed by the H.P. State Electricity Regulatory Commission (hereinafter referred to as the Commission), which had disposed of a number of matters wherein similar questions were involved. The parties agreed that the writ petitions be disposed of in terms of the order of the Commission, relevant portion of which reads as follows: “i) The sanctioned connected load during normal hours shall not be treated as contract demand for the purpose of levying the demand charge. The contract demand should be the only basis for determining the demand charge. However, where the Application and Agreement form has been signed based upon the connected load only and does not indicate the contract demand the Board shall provide an opportunity, within one month of issue of this order, to all the affected consumers to enter into fresh agreements for the purpose of contract demand. The process of execution of fresh agreements for the contract demand should be completed with in three months of issue of this order. In such past cases, where the contract demand has not been contracted, the demand charge should be levied based upon the maximum recorded demand during the month. ii) The Peak Load Exemption (PLE) granted by the Board to the consumer should be treated as the contract demand for the peak load hours. The PLE demand charge of Rs. 150 /kVA/ month for the peak load exemption is to be charged in addition to the normal demand charge of Rs.125 KVA/month. iii) For peak load violations, the consumer has to pay the demand charge @ Rs.150/kVA/month as well as the energy charge @ Rs.4.70 per KVAh to be levied on the consumption of energy recorded during the peak hours on the days of violation, to be identified on the basis of demand. Besides it, he has also to pay the penalty @ Rs.300/KVA/month on the demand in excess of the contract demand (PLE). iv) If the number of violations in a month are more than one, then the maximum recorded demand during the days of violation should be the basis of levying the demand charge and the penalty for overdrawal. This is applicable for violations committed during normal & night hours and peak load hours. v) Board to issue instructions to all its field officers to apply the Tariff Order in letter and spirit. vi) Board to carry out the correction of bills of all “LS” consumers, where incorrectly issued w.e.f. November 1, 2001 and to refund the excess amount deposited, if any, by the consumers. vii) Suitable amendments and explanations in HPSEB’s Sales Manual should be carried out within one month of the date of this order.” In view of the statements of the parties we had disposed of all the aforesaid petitions with the following directions: “The parties are in agreement that this case is also covered by the order passed by the State Electricity Regulatory Commission. We, therefore, dispose of this petition by directing that the petitioners shall be billed as per the orders passed by the State Electricity Regulatory Commission, dated 3rd August, 2002. In case any excess amount has been received by the Board fro the petitioners, it shall be adjusted against the future bills. Obviously, in case the amount deposited by the petitioners is found to be less than that to be calculated under the orders of the State Electricity Regulatory Commission, then the Board shall be entitled to recover the same from the petitioners. The petitions are disposed of in the aforesaid terms. No costs. All the pending applications, if any, also stand disposed of.” After the petitions were decided the Electricity Board granted benefit to the petitioners of getting billed in accordance with the contract demand w.e.f. 12th March, 2004 only and not from Ist November, 2001. The short question is whether the petitioners are entitled to this benefit from November 1, 2001 or not. A perusal of Clause (vi) of the order of the Commission quoted hereinabove clearly shows that the Commission had directed the Board to correct the bills w.e.f. 1st November, 2001 and to refund the excess amount deposited. The Board having agreed that the petitions be disposed of in terms of this order of the Commission cannot now urge that this benefit cannot be given to the petitioners from Ist November, 2001. The only defence of the Board is that fresh agreements with regard to the contract demand were entered into between the parties on 12th March, 2004 and therefore the benefit can be given to the petitioners only from the said date. This contention is totally without merit. A perusal of the record shows that right from December, 2001 the petitioner Companies have been writing time and again to the Board to enter into a fresh agreement in terms of the changed tariff conditions. In all these letters they insisted that fresh agreements be entered into and the bills be not issued on the basis of connected load. The Electricity Board did not enter into fresh agreements compelling the Companies to file the earlier petitions. All these petitions were filed in the early of 2002. Reference may also be made to the letter dated 4th March, 2003 issued by the Board itself, relevant portion of which reads as follows: “1.Levy of Demand Charges: An opportunity shall be given to all industrial units for entering into fresh Contract Demand Agreement which shall be made applicable w.e.f. 1.11.2001. The fresh contract demand shall be governed as under: i)For industries running in single shift, the minimum limit shall be 50% of the connected load. ii)For industries running in two shifts, the minimum limit shall be 60% of the connected load. iii)For industries running in three shifts, and having a connected load up to 500 KW, the minimum limit shall be 80% of the connected load. iv)For industries running in Three Shifts and having connected load above 500 KW, the minimum limit shall be 85% of Connected Load.” This letter of the Board also clearly shows that the fresh demand agreements were to be made applicable w.e.f. 1.11.2001. This was in respect of even those consumers who had not till then requested for execution of fresh agreements. The cases of the petitioners stand on much better footing since they right from December, 2001 had been requesting the Board to enter into fresh agreements. It was the Board which did not enter into fresh agreements. As such we are clearly of the view that the action of the Board in denying benefit of the fresh agreement w.e.f. 1st November, 2001 is totally illegal and contrary to the orders passed by the H.P. State Electricity Regulatory Commission which orders were incorporated in our earlier judgment dated 25.4.2007. Moreover, the Board in its letter dated 4th March, 2003 had also clearly stated that the benefit would be available from 1.11.2001. Keeping in view the aforesaid facts, we allow all the petitions and issue a writ quashing Annexures PB and PY and further direct that the petitioners should be given benefit of agreed contract demand w.e.f. 1.11.2001 and fresh calculations be made accordingly within a period of 3 months from today. We burden the Board with costs of Rs.3000/- in each petition. ( Deepak Gupta ),J. May 26, 2008. ( Surinder Singh ),J. PV