IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF APRIL TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 8463 of 2001 Between : M/s. Himalaya Engineering Works Pvt. Limited, Rep. by its Director Sir M.K.V.Rao, Having its business in permises No.33 Phase-I, Jeedimetla, R.R.District. ..... PETITIONER AND 1 Central Power Distribution Company of A.P. Limited, Rep. by its Chairman/Managing Director, Hyderabad. 2 Superintendent Engineer/OP/R.R.Circle, Hyderabad. 3 Divisional Engineer/Operations, Kukatpally, 4 Asst. Divisional Engineer, Elec. Operations, Jeedimetla, Hyderabad. 5 Addl. Asst. Engineer, Operation,APCPDCL, IDA, Jeedimetla. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction, one more in the nature of Writ of Mandamus or any other appropriate writ setting aside the impugned order No.ADE/O/JDM/F.No. Multiple Services/D.No.1003/01 dated:27.3.2001. Counsel for the Petitioner : MR.N.RAJESWAR RAO Counsel for the Respondents: O.MANOHAR REDDY(SC FOR APTRANSCO) The Court made the following : ORDER : In this writ petition, the petitioner, a Private Limited Company, which is involved in the manufacture of spring fasteners and is registered as a small scale industry, has questioned the validity of the order, dated 27th March 2001, issued in Letter No.ADE/OP/JDM/F.No.Multiple Services/D.No.1003, by the Assistant Divisional Engineer (Operations), A.P. Central Power Distribution Company Limited. 2. For the purpose of running his industry, the petitioner has obtained electricity power vide Service Connection No.601. To avail the power supply, he entered into a separate agreement as per the Terms and Conditions of Supply, framed under the Electricity Supply Act, 1948. There was a shed constructed by the petitioner in the same premises, where his industry is located, and he has leased out the same under a registered lease deed, dated 28th of July 1998, in favour of Saptagiri Fasteners Private Limited, which is also a Company registered under the Companies Act. The said lessee Company has also obtained a separate Service Connection to run that industry. 3. While things stood thus, the respondents have issued a notice, dated 3rd February 2001, stating that the above two industries are found in the same premises and the total connected load of the above said two connections is 150 HP, and as such, instructions were issued to the petitioner to avail the supply under High Tension category, instead of Low Tension category, since the total connected load is more than 75 HP. In the said notice, the petitioner was also warned that if they do not come forward with such a request for clubbing both the connections, necessary action would be taken as per Rules. In response to the said notice, dated 3rd February 2001, issued in Letter No.AAE/OP/IDA/ JDML/Sub-Eng/D.No.729, the petitioner/Company has filed representations, dated 12th February 2001 and 16th March 2001. 4. It is stated that the petitioner, which is a Private Limited Company, incorporated under the provisions of the Companies Act, 1956, has taken electricity Service Connection, vide Service Connection No.601 during the year 1979-80, initially for 55 HP, and the same was enhanced to 75 HP. Further, it was stated that the petitioner is having a separate entrance to his factory and pleaded that they have nothing to do with the other Company namely, ‘Saptagiri Fasteners Private Limited’, and there is nothing common in between them, and as such, requested to maintain the same service connection, which was under Low Tension category. On receipt of the representation filed by the petitioner, the respondent/Company has passed the impugned order, dated 27th March 2001, treating the two Units as a single establishment in terms of Condition No.27 of the Terms and Conditions of Supply, framed under the Electricity Supply Act, 1948. In the order impugned, it is stated that the product manufactured by both the Companies is same and the activity carried out by both the Companies is in the nature of split-up of common process i.e. manufacture of bolts and nuts in one Unit and manufacture of Spring Washers and galvanizing the products in the second Unit. It is further stated that both the establishments are located in the same premises with common entrance and if the Horse Power of both the Units is clubbed, it would become more than 150 HP, and hence, they must avail the High Tension Supply. 5. In this writ petition, the impugned order is mainly questioned on the ground that both the Units are independent and separate and there is nothing common amongst the two Companies so as to use discretion by the respondents for clubbing the two service connections for the purpose of applying High Tension category. It is their case that the discretion under Condition No.27 of the Terms and Conditions of Supply can be used only in cases where different establishments are located in the same premises and they are owned and leased by the same person. On the other hand, it is the case of the respondents that asmuch as both the Companies are located in the same premises, they have exercised their discretion in accordance with Condition No.27 of the Terms and Conditions of supply. It is not in dispute that electricity supply to the Units is governed by the Terms and Conditions of Supply, which are framed in exercise of powers under the Electricity Supply Act, 1948. It is submitted that as per Condition No.27 of the said conditions, the establishments having distinct set up and staff, or owned or leased by different persons, or covered by different licenses or registrations under any law where such procedures are applicable, will be deemed to be separate establishments, but however, as per the proviso to Condition No.27, there is a discretion conferred on the Board to treat the two different establishments as a single establishment if they are situated in the single premises owned or leased by the same person and requiring electricity for the purposes provided under the same category of tariff. 6. The interpretation of Condition No.27 of the Terms and Conditions of Supply came to be examined by a Division Bench of this Court in the case of S r i Laxmi Ganapathi Paddy Boiled Industries v. A.P.State Electricity Board[1]. In the said judgment, while considering the scope of the proviso to Condition No.27, a Division Bench of this Court has categorically held that the Board can have the discretion under the said proviso to treat two or more establishments as a single establishment only when all three conditions of the proviso are satisfied. In this case, though it was stated by the petitioner in his reply to the notice issued by the respondents, that the petitioner is a separate establishment registered under the Companies Act, and there is nothing common between the petitioner’s Company and the other Company, namely, Saptagiri Fasteners Private Limited, but inspite of the said fact, clubbing is ordered, only on the ground that they are located in the same premises, and their manufacturing activity is common. Even the finding of the respondents that it is a common premises, as referred to in the impugned order, is also not supported by any material. So far as the petitioner is concerned, it is involved in manufacture of Spring Washers, where as the end products of the other Company, namely, Saptagiri Fasteners Private Limited, are nuts and bolts. Asmuch as different end products are being manufactured, it cannot be said that there is a common manufacturing activity. In any event, the power under Condition No.27 of the Terms and Conditions of Supply can be exercised only in cases where different establishments are owned or leased by the same person. In the case on hand, it is not in dispute that the petitioner owns the present industry, namely, M/s.Himalaya Engineering Works Private Limited, and a shed in the same premises is leased in favour of a third party by name Saptagiri Fasteners Private Limited. In that view of the matter, it cannot be said that the two establishments are owned or leased by the same person within the meaning of proviso to Condition No.27 of the Terms and Conditions of Supply. The order impugned is passed contrary to the language of the proviso to condition No.27. In the judgment cited above, a Division Bench of this Court held that for the purpose of using discretion under the proviso to Condition No.27, all the three ingredients of the said proviso are to be satisfied. Asmuch as both the establishments are two different Companies, and they are not owned or leased by the same person, the respondents cannot use the discretion conferred under the proviso to Condition No.27 for clubbing the two Service Connections. Therefore, the order under challenge is liable to be set aside. 7. For the reasons stated above, the writ petition is allowed, setting aside the impugned order issued in Letter No.ADE/OP/JDM/ F.No.Multiple Services/D.No.1003, dated 27.03.2001. Accordingly, the consequent demand notice, dated 24.03.2008, also stands quashed. _____________________ R.SUBHASH REDDY, J 22nd April 2009 ajr [1] 1997 (1) ALD (D.B) 68