IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14888 of 2009 Date of Decision: 25.09.2009 M/s Rana Polycot Limited Petitioner Versus Punjab State Electricity Board and another Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.Ashok Aggarwal, Senior Advocate with Mr.Rahul Sharma, Advocate for the petitioner Mr.H.S.Sidhu, Advocate ….. Jasbir Singh, J. Vide electricity supply bill dated 24.4.2008, the petitioner was directed to pay an amount of Rs.1,13,10,261/- towards voltage surcharge, to be charged @ 10% over and above the electric consumption bill of a consumer. Surcharge amount was claimed w.e.f. 19.4.2005 till 31.3.2007. Vide letter dated 21.5.2008 (P7), the petitioner was directed to deposit the above amount in five equal installments, failing which, it was intimated that action shall be initiated as per law. It is necessary to mention here that the above said amount was claimed in terms of commercial circular, issued by the Punjab State Electricity Board (in short, PSEB) on 28.11.2007 (P6). The petitioner laid challenge to the above said demand before the Zonal Level Dispute Settlement Committee (in short, ZDSC), South Civil Writ Petition No.14888 of 2009 Zone at Mohali. Before ZDSC, it was grievance of the petitioner that surcharge @ 10% upto demand recorded at 2500 KVA was abolished and it was to be charged on the demand recorded over and above the same. ZDSC opined that the amount was being claimed in terms of orders passed by the Punjab State Electricity Regulatory Commission (PSERC), which was notified vide circular dated 14.7.2006. Application filed by the petitioner was dismissed on 30.4.2009 (P8). The petitioner went in appeal, which was dismissed by the Punjab State Electricity Board Forum for Redressal of Grievances of Consumers (in short, the Forum), on 18.7.2009 (P10). Instead of making representation to the Ombudsman, constituted by the PSEB under the provisions of Section 42(6) of the Electricity Act, 2003 (in short, the Act), the petitioner has filed this writ petition. Besides laying challenge to the electricity bill and the orders, mentioned above, the petitioner has laid challenge to the commercial circular No.66/2007 dated 28.11.2007 (P6) in this writ petition. Counsel for the parties heard. It is primary grievance of counsel for the petitioner that the circular dated 28.11.2007 (P6), being non-statutory in nature, cannot be applied retrospectively. It has further been stated that the petitioner has enhanced his contract demand, for supply of electricity in terms of the commercial circular issued by the PSEB on 24.6.2003 (P1), 11.10.2004 (P2) and now vide the impugned circular, the petitioner cannot be put to disadvantageous position, claiming surcharge @ 10%, on the electricity consumed by the petitioner. At the time of arguments, Shri H.S.Sidhu, Advocate was called to assist this Court on behalf of the respondent-PSEB. He brought it to the notice of this Court that similar controversy has already been decided in 2 Civil Writ Petition No.14888 of 2009 favour of the PSEB and against the consumer by a Learned Single Bench of this Court in M/s Antarctic Industries & others v. Punjab State Electricity Board and others (CWP No.8451 of 2007), decided on 27.4.2009. Counsel for the petitioner made an attempt to show to this Court that the controversy involved in that writ petition was somewhat different, however, he has failed to do so. It is apparent from the records and not disputed before this Court that circular dated 28.11.2007 was issued by the PSEB, in terms of tariff order, passed by PSERC, (which is a statutory body), for the year 2004-2005, which was notified vide CC No.30/06 dated 14.7.2006. That circular is not under challenge. In above said circular in clause No.13.3, regarding voltage surcharge, it was mentioned as under:- “Large supply consumers with contract demand exceeding 2500 KVA and upto 4000 KVA catered at 11 KV shall to pay a surcharge @ 10% on consumption charges including demand charges, if any, or normal minimum as compensation for transformation losses, incremental line losses etc.” It is an admitted fact that the petitioner is getting high tension (HT) supply @ 11000 voltage (11KV) and is a large supply industrial consumer. It is also an admitted fact that when electricity is supplied through 11KV system, there is a loss in transmission and it also involves incidental charges. To cover that, surcharge @ 10% over and above actual consumption, was envisaged by the PSEB. Electricity Act, 2003 was notified on 26.5.2003. Section 62 of the Act refers to the constitution of a Commission, to determine the tariff for supply of electricity etc., by the distribution licencee. Section 64 deals with the procedure to be followed by the Commission in determining the tariff 3 Civil Writ Petition No.14888 of 2009 for a particular year. For the State of Punjab, PSERC is the competent Commission to decide tariff for supply of electricity to the consumers, by the PSEB. In the case of M/s Antarctic Industries (supra), it was so held by this Court, by observing as under:- “On the same analogy, it has to be held that the regulatory commission constituted under Section 82 of the 2003Act alone has the power to determine the tariff under section 86(1)(a) of the Act and the State Government, the licensee or a utility have no authority whatsoever to determine or vary the tariff on their own. The tariff approved by the commission is final. However, the tariff is required to be determined by the State Commission in a transparent manner and by following the procedure laid down under Section 64 of the Act.” In the above said judgment, it was further held by this Court that in pursuance to the tariff orders for the years 2004-2005, 2005-2006, 2006-2007, PSEB has billed the consumers along with levy of surcharge. It has also come on record that some consumers, similarly situated like the petitioners, filed a review application to lay challenge to the tariff order passed, however, their application was dismissed. Vide the judgment, mentioned above, it was held by this Court that ‘there can be no agreement or understanding between the licensee and its consumers to levy or waive off the tariff de-hors the conditions and schedule to tariff determined by the Regulatory Commission.’ Vide the impugned orders, it has specifically been held that the surcharge is being claimed in terms of the tariff orders passed by the PSERC from time to time. Vide the judgment in M/s 4 Civil Writ Petition No.14888 of 2009 Antarctic Industries (supra), it was also held that because the amount is being claimed under order passed by a statutory authority, as such, the concession given earlier, can be withdrawn. Same is the situation in this case. It is also apparent from the records that vide judgment, mentioned above, many writ petitions were disposed of. In some of those writ petitions, challenge was also laid to the circular dated 28.11.2007 (P6). To negative challenge to the circular mentioned above, it was observed as under:- “At this stage, it may also be noticed that some of the writ petitioners are the arc furnace industries who have challenged the commercial circular No.66/2007 dated 28.11.2007 whereby, according to them, the previous circular No.52/2004 dated 11.10.2004 has been retrospectively withdrawn from the date of its issue. Suffice it to mention here that the contention has no factual or legal basis. The Tariff Order for the year 2004-05 came to be issued on 30.11.2004. The Circular No.55/2004 was issued a few days prior thereto, i.e., on 11.10.2004 whereby on the demand of the Industries Association that the 10% additional billing was causing hardship to them, it was clarified that the consumption (KWH) recorded at 11 KV corresponding to the demand recorded over and above 25,000 KVA shall be increased by 10% in the total average consumption. Since this exemption was not reflected by the Board in the ARR or in its proposal for the General Conditions of Tariff, the same was inadmissible as soon as the Tariff Order for the year 2004-05 came into force. The subsequent circular dated 28.11.2007 merely reiterates the 5 Civil Writ Petition No.14888 of 2009 levy of 10% surcharge on the consumption charges leviable with effect from 1.4.2004, as approved by the State Regulatory Commission in its Tariff Orders for the year 2004 to 2007 for the reason that the previous administrative circular dated 11.10.2004 of the Board had become defunct and inoperative after the Tariff Order for the year 2004-05 came to be issued on 30.11.2004. The subsequent circular has only rectified the error and has, at the best, withdrawn an erroneously drawn concession which was not admissible to the petitioners after 30.11.2004.” In view of aforesaid authoritative pronouncement, this Court is of the opinion that this writ petition has no substance and no case is made out for interference. The same is accordingly dismissed. 25.09.2009 (Jasbir Singh) gk Judge 6