HON’BLE DR. JUSTICE G. YETHIRAJULU W.P.No.26554 of 1997 ORDER: This writ petition has been filed by the petitioner-company praying to issue a writ of Certiorari by way of quashing the impugned order, dated 14-05-1997 passed by the first respondent and also to issue a writ of Mandamus directing to refund the amount of Rs.28,17,400/- collected with interest @ 24% per annum or to adjust the said amount in the future bills. 2. The petitioner is a registered company represented, by its Senior Manager, with its registered office at Bombay and the factory at Karakambadi village of Chittoor District and other places. It is engaged in manufacture of silicon carbide and other products and was exporting the same. It is a power intensive unit and has entered into an agreement with the respondent Board for power supply by way of entering into a memorandum of understanding along with other industries for the purpose of formation and registration of a new company under the name and style of A.P. Gas Power Corporation Limited. The petitioner is one of the participants and a shareholder in the said company having 3% share to its credit. The petitioner is entitled for 3% power generated by the second respondent to meet its power requirements. The first respondent issued a memo, dated 20-09-1993 providing for permission in the matter of temporary reduction of contracted maximum demand in respect of H.T. consumers including the petitioner under certain terms and conditions. The second respondent used to send intimation to the petitioner with regard to the expected generation for every month in the beginning of the month so that the first respondent Board can set the meter for the purpose of recording the meter consumed by the petitioner. The petitioner was initially told by the second respondent that the expected generation for the billing month of November, 1994 is 40 million units and 70,000 KVA of demand. 3% of 70,000 KVA works out to 2100 KVA. This is in addition to the contacted demand the petitioner has with the Board of 4,900 KVA for the month of November, 1994. The petitioner was informed by the second respondent for the billing month of November, 1994 as stated earlier. The petitioner, accordingly, arranged and planned its production schedule in the light of the commitment made by the second respondent to the knowledge of the first respondent. The first respondent fixed the meter in the premises of the petitioner to record the consumption and compare with the contracted demand. But, surprisingly it is informed by the second respondent on 05-11-1994 that the expected generation is revised to 30,000 million units and 60,000 KVA demand keeping in view of the actual generation till that date. The second respondent through the letter, dated 14-11-1994 informed that the expected generation for the billing month of November, 1994 was further revised to 15,000 and 39,000 KVA due to failure of the transformer. The petitioner contends that it has no hand in the reduction effected by the second respondent from time to time. The petitioner has not exceeded 6,600 KVA during the relevant period notwithstanding the fact that the petitioner is entitled for a contracted demand up to 7,000 KVA. The respondent Board, in the light of the revision effected by it, ought to have reset the meter since a duty is cast on the Board not only to maintain the meter, but also to set the meter to record correct readings as per the intimation of the second respondent. 3. The further submitted that during November, 1994, there were no power restrictions in the consumption of the energy by the consumers. The consumer is required to pay only towards the demand and energy consumption during the month. Since the petitioner was under the temporary deration, the excess demand of consumption for the November, 1994, if at all will have to be paid for only 5 times the normal tariff rates. There can be no extra charge for the energy consumption in November, 1994 in its entirety. During the power restriction period, the consumption of energy is regulated by Board by restricting its quota of demand. When the consumer exceeds the allotted quota of demand, the Board has the power to penalize the consumer. During November, 1994, the terms and conditions of temporary deration were in terms of the Board’s memo, dated 20-09- 1993. In case of deration, clause 14 provides for levy of 5 times the normal tariff as the penal rates for exceeding the demand during he period of temporary deration. There is no condition prescribed for imposing 5 times the normal tariff charges, as the penal rates for energy consumption since November, 1994 is a free power period and the consumers are at liberty to consume energy without any restriction and such consumption of energy does not attract penalties. If the company exceeds the demand, all that the Board can do is to penalize the petitioner only for exceeding the contract demand. But the first respondent levied 5 times of the demand as well as energy charges. The Board has committed an error in calculating the amount and also in charging the petitioner on the proportionate basis which is without authority by arriving at Rs.26,58,400/- towards alleged excess energy. The petitioner, on receipt of the demand, approached the Board and the Board by its communication, dated 20-12-1994 ordered stay of disconnection and subsequently, without hearing the petitioner, revoked the stay order making the petitioner to pay the amount to avoid disconnection. When the petitioner filed W.P.No.2725 of 1995, this Court, while disposing of the writ petition, permitted the petitioner to make a representation to the first respondent by raising all the grounds and the first respondent shall pass appropriate orders after giving opportunity to the petitioner. The petitioner made a representation to the first respondent on 10-03-1995. But the first respondent did not take any steps in the matter. Several letters have been written. But, ultimately it was informed to the petitioner that the entire matter is placed before the first respondent. The petitioner further pleaded that the first respondent passed the order on 14-05-1997 rejecting the contentions of the petitioner by holding that the petitioner is not entitled for the refund of the amount already paid. Hence, the writ petition for the reliefs as mentioned above. 4. In the proceedings, dated 14-05-1997, Condition No.XIV of the memo, dated 20-09-1993, provides that for exceeding the demand during the period of temporary deration, the consumer shall pay five times the normal tariff rates for the excess demand of energy. The petitioner requested the first respondent for temporary reduction of their CMD of 8,353 KVA to 4,900 KVA. The Board agreed to the request of the petitioner and reduced the CMD to 4,900 KVA. During the month of November, 1994, due to shortfall in the energy supplied by APGPCL, the consumer drawn more energy from the APSEB, thereby exceeded the CMD from the Board. In view of the excess consumption of demand, the excess demand and energy charges were billed as per condition No.XIV of the memo. In the impugned order, it is further mentioned that by considering all the objections raised by the consumer in the representations and the personal hearing on 19-04- 1995, it was decided that the consumer is liable to pay for the excess consumption during November, 1994 at five times the normal tariff rates as per Condition No.XIV of the Board memo, dated 20-09-1993 and that the consumer is responsible for such liability even as per the terms of memorandum of understanding between the board and participating industries. Accordingly, the claim of the petitioner for refund of the amount is rejected. 5. The learned counsel for the petitioner contended that the relevant period is a free power period and there is no condition that the consumer is liable to pay penalty during the free power period. He further contended that as APGPCL was being run by the first respondent, it is responsible for the drop in production and if there is no deration, the consumer is liable to pay penalty 2 times and if there is deration, he is liable to pay the penalty 5 times to the amount. 6. The learned counsel further contended that the matter was heard by one officer and the order was passed by another officer, which is against the principles of natural justice, therefore, the order is liable to be set aside as it was passed by the officer, who did not hear him. 7. The learned counsel for the Respondents submitted that the impugned order was passed by the Member Secretary on a representation made by the petitioner and as it is neither a statutory appeal nor the proceeding before a quasi judicial authority, there is no necessity of personal hearing when the objections raised by the petitioner in the representation are considered and answered in detail and it cannot be said that there is any violation of the principles of natural justice. 8. It is an undisputed fact that the original CMD of 8,353 KVA has been derated to 4,900 KVA at the request of the petitioner and whenever there is deration and if the consumer exceeds the contracted maximum load, under condition No.XIV of the memo, dated 20-09- 1993, the consumer is liable to pay 5 times the normal tariff for the excess demand in energy. Since the petitioner got the demand derated from 8,353 KVA to 4,900 KVA, he is liable to pay the penalty of 5 times the normal tariff for the excess demand and energy, but not 2 times as contended by him. 9. As seen from the record, the petitioner consumed 6,600 KVA, while the contracted maximum demand was only 4,900 KVA, which is a clear indication that the petitioner exceeded the CMD, thereby it is liable to Condition No.XIV of the memo issued by the first respondent. The contention of the petitioner that though the original contracted load was 7,000 KVA, the consumed energy is only 6600 KVA, therefore, he is not liable to be penalized cannot be accepted. 10. In the light of the above facts and circumstances, the petitioner is not entitled either to get the impugned proceedings quashed or to get refund of the amount already paid. The writ petition is devoid of merits and is liable to be dismissed. 11. Hence, the writ petition is dismissed. No order as to costs. ___________________ DR. G. YETHIRAJULU, J Date: 18-02-2008 YCR