IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.2882 of 2003 & W.P.M.P.No.3604 of 2003 Sri Kaderi Ambal Mills Ltd., A& B Unit. Rep. by its Executive Director Mr.S.V.Petha Perumal ... Petitioner -vs- 1. The Chairman Tamil Nadu Electricity Board 800 Anna Salai, Chennai 600 002. 2. The Member (Distribution) Tamil Nadu Electricity Board 800 Anna Salai, Chennai 600 002. 3. The Superintending Engineer Sivagangai Electricity Distribution Circle Sivagangai District. .. Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified mandamus to call for the records of the 2nd respondent in his proceedings Permanent B.P.(F.B.)No.22 dated 14.2.2001 and quash the portion of demand/levy of surcharge at the rate of 2.5% or 3% per month and direct the 3rd respondent to refund the sum of Rs.60,759/- collected from the petitioner. For Petitioner : Mr.M.Kamalanathan For Respondents : Mr.P.Srinivas O R D E R With the consent of the learned counsel appearing on either side, the Writ Petition itself is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/ 2. The prayer in the Writ Petition is for issuance of a writ of certiorarified mandamus to quash the proceedings of the second respondent dated 14.2.2001, in so far as it relates to the demand/levy of surcharge at the rate of 2.5% or 3% per month and direct the third respondent to refund the sum of Rs.60,759/- collected from the petitioner. 3. The facts which are necessary for the disposal of the Writ petition are that the petitioner, a Private Limited Company incorporated under the Companies Act, is a Textile Mill having two Units with two High Tension Service Connection Nos. 46 and 75. The sanctioned loads are 1200 KVA and 1250 KVA respectively. At the time when the petitioner was granted the service connections, they are required to pay earnest money deposit and after the supply is effected, the petitioner has to pay the current consumption deposit which will be periodically reviewed and refixed once in a year during April and May, depending upon the amount collected, additional current consumption deposit will also be collected. During 1997, on account of the recession faced by the Textile Industry, various Textile Mills represented to the respondent Board to grant them some relief in respect of payment of electricity consumption charges. The Board took note of the plight of the High Tension Consumers and by proceedings in B.P.(F.B.)No.22 dated 14.2.2001, extended the time for payment of the current consumption charges, subject to certain conditions. 4. The petitioner is aggrieved by the condition imposed in B.P. (F.B.No.22) dated 14.2.2001, by which belated payment of surcharge is levied at 2.5% per month irrespective of the number of days delay, eventhough the maximum number of days given as extension is only ten days i.e. between 15th and 25th of that month. For ten days, interest is levied at 1.75% more which works out to 5.25% per month. For extension beyond 25th upto the end of the month i.e. for five days, the increase is 0.5% which works out to 3%. It has been stated that such condition is onerous and untenable. 5. The learned counsel for the petitioner submits that the condition contained in B.P.22 providing for collection of surcharge at the rate of 2.5% per mensum on the amount due for one month is excessive and unreasonable and made without proper exercise of power. It is further contended that the collection of earnest money deposit under clause 14 of the terms and conditions of supply and additional current consumption deposit under clause 15 has not been taken into consideration while passing the impugned Board proceedings. At any rate, the levy of surcharge at the rate of 2.5% and 3% per month for entire month is high arbitrary and unreasonable. On the above grounds, the learned counsel for the petitioner would submit that the condition imposed in the impugned proceedings deserves to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 6. Though no counter affidavit was filed by the respondent Board, the learned Standing Counsel for the respondent would submit that the petitioner has not questioned the right of the Board to levy BPSC, but have questioned the quantum alone. It is submitted that the condition imposed in the impugned Board Proceedings is a very fair and reasonable condition and there is nothing arbitrary or unreasonable in the levy of surcharge. It is further contended that under the terms and conditions of supply, as it originally stood prior to the present amendment in clause 20.02, there existed similar condition and such condition was not questioned by the petitioner and only based on the representation from the high tension consumers, the impugned Board Proceedings have been passed and the surcharge being only an additional payment, there is no arbitrariness or illegality in levying 2.5%/3% per month for a full moth. 7. I have considered the submissions made by the counsel appearing appearing on either side and perused the materials available on record. 8. As per the terms and conditions of Electricity Supply Agreement between the petitioner and the respondent Board, the consumer/petitioner is under obligation to pay the current consumption charges within first seven days after reading is recorded beyond first seven days, if remittance is made, it has to be construed as a delayed remittance and action could be taken under the provisions of the Act and the Distribution Code for disconnection, levy of penalty, etc. 9. Even according to the petitioner, high tension consumers like the petitioner were unable to pay the current consumption charges within the time permitted and therefore, they had requested the Board to grant them some relief. This request made by such high tension consumers was considered by the respondent Board and by B.P.No.22 dated 14.2.2001, took note of the fact that as per the order in B.P.No.19 dated 29.9.2000, the high tension consumers have to pay monthly minimum at 100% of the sanctioned demand after termination of agreement and all other dues in one lumpsum to get re- connection and this would cause heavy burden on high tension consumers when they seek re-connection after a long time and since the Industries are closed due to recession and as there were representations for payment of old arrears in instalments, with a view to streamline the procedure for extension of time for payment of current consumption charges and by high tension consumers and re- connection of disconnected services, the Board passed B.P.No. 22. In clause I of the Board proceedings, high tension consumers were permitted to remit payment of current consumption charges after expiry of the first eight days period on or before 25th of the due calendar month by Superintending Engineer subject to levy of BPSC at 2.5% per month for a full month instead of the existing 3% per month for a full month irrespective of the number of days delay. Further https://hcservices.ecourts.gov.in/hcservices/ extension of time may be permitted by the Chairman of the Board upto the end of the due calendar month with BPSC at 3% per month for a full month irrespective of the number of days delay. 10. This condition relating to BPSC also found place under the erstwhile terms and conditions of supply of electricity by the Tamil Nadu Electricity Board in clause No.20.00. In clause No.20.012, bills of high tension consumers not paid within the time stipulated will be subject to levy of 1.5% per mensum. However, for consumers who are availing of extension of time beyond 7 days in those period in terms of clause 19.05 BPSC shall be at 3% per month from the expiry of eight days period allowed for payment for a full month irrespective of number of days delay. 11. In this Writ Petition, the power to levy the BPSC is not in question. But, what has been questioned is the quantum and manner in which it is levied. The Surcharge is only an additional payment and not prohibited by law from being charged. In fact, under the terms and conditions of supply as it then stood and subsequently under the provisions of the Electricity Distribution Code, there is sufficient power vested with the Board to levy the surcharge. Admittedly, the consumer such as the petitioner is not in a position to remit the current consumption charges within the stipulated seven days period. The Board taking note of the plight of the high tension consumers agreed to extend time, but, subject to certain conditions. The surcharge in the form of BPSC is not an additional imposition or interest as claimed by the petitioner, but, it is an amount which is claimed towards delayed payment. Had the petitioner paid the current consumption charges within the stipulated period, the question of payment of BPSC would not arise. It is not the case of the petitioner that there is no power to effect such surcharge. 11. As could be seen from the impugned Board Proceedings, Board has taken note of the plight of the high tension consumers and has in fact provided a two tire remedy for belated payment. This in the nature of the concession and such concession has a charge attached to it. In no manner, it could be stated that the surcharge levied under the impugned Board Proceedings is either arbitrary or unreasonable. 12. In the result, the Writ Petition fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rpa https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chairman Tamil Nadu Electricity Board 800 Anna Salai, Chennai 600 002. 2. The Member (Distribution) Tamil Nadu Electricity Board 800 Anna Salai, Chennai 600 002. 3. The Superintending Engineer Sivagangai Electricity Distribution Circle Sivagangai District. 1 cc To Mr.M.Kamalanathan, Advocate, SR.52781 1 cc To Mr.P.Srinivas, Advocate, SR.53651 W.P.No.2882 of 2003 mrd(co) pmk.3.8.2010. https://hcservices.ecourts.gov.in/hcservices/