In the High Court of Judicature at Madras Dated: 10.12.2008 Coram: The Honourable Mr.Justice S.J.Mukhopadhaya and The Honourable Mr.Justice V.Dhanapalan Writ Appeal No.3020 of 2001 & W.A.M.P.No.22325 of 2001 1. The Chief Engineer/Distribution, Tamilnadu Electricity Board, Coimbatore Region, P.B.No.2940, Tatabad, Coimbtore-12. 2. The Superintending Engineer, Tamilnadu Electricity Board, Coimbatore Electricity Distribution Circle, South, Coimbatore-12. .. Appellants vs. M/s.Venkatalakshmi Textiles (P) Ltd. No.194, Mangalam Road, Tirupur-4. .. Respondent Writ Appeal against the order dated 17.9.2001 passed by the single Judge in Writ Petition No.5915 of 2001 on the file of this Court it is prayed that the Honourable Court may be pleased to issue a writ of certiorari or any other appropriate writ or order or direction in the nature of Writ calling for the records of the first respondent relating to the proceedings in Lr.NO.CE/D/CBE/PR.No.543/AEE/GL/F.APTS/2000 dated 15.3.2001 confirming the proceedings of the second respondent passed in Lr.No.SE/CEDC/S/AEG./ TA.1/PHTSC 1/97/A 1813/2000 dated 5.6.2000 and quash the same. For appellants : Mr.A.Selvendran For respondent : Mr.V.Sanjeevi https://hcservices.ecourts.gov.in/hcservices/ Judgment S.J.Mukhopadhaya,J The respondent-M/s.Venkatalakshmi Textiles (P) Ltd., a Textile Mill, (writ petitioner) challenged the proceedings of the second appellant-Superintending Engineer, Tamil Nadu Electricity Board (for short, 'the TNEB'), Coimbatore Electricity Distribution Circle, South Coimbatore, in Letter No.SE/CEDC/S/AEG1/TA.1/FHTSC 167/A.1813/2000, dated 5.6.2000, and the proceedings in Lr.No.CE/D/CBE/PR.No.543/AEE/GL/F.APTS/2000, dated 15.2.2001 of the first appellant-Chief Engineer (Distribution), TNEB, Coimbatore Region, whereby the aforesaid order dated 5.6.2000 passed by the second appellant, was affirmed. 2. By the first order dated 5.6.2000, the second appellant- Superintending Engineer communicated the compensation charges of Rs.5,52,085/- payable by the respondent-Textile Mill in ten instalments for unauthorised expansion of supply of energy to the purposes other than the purpose for which the connection was given within the premises of the respondent-Textile Mill. The appeal preferred against the said order dated 5.6.2000 was affirmed by the first appellant-Chief Engineer (Distribution), vide proceedings dated 15.2.2001. 3. The learned single Judge, by the impugned order dated 17.9.2001, having allowed Writ Petition No.5915 of 2001, by setting aside both the proceedings dated 5.6.2000 and 15.2.2001, the present Writ Appeal has been preferred by the appellants-TNEB against the said order of the learned single Judge. 4. While the appellants-TNEB have taken a plea that the proceedings dated 5.6.2000, as was affirmed by the proceedings dated 15.2.2001, are proper and justified, in view of the amended Clause 31.02 of the Terms and Conditions of the Supply of Electricity of the TNEB, according to the learned counsel appearing for the respondent-writ petitioner (Textile Mill), it was against the proceedings of the TNEB, in Permanent BP(Ch).No.203, dated 23.10.1998, whereby, the word, "expansion" in Clause 31.02 of the Terms and Conditions of the Supply of Electricity, was explained and clarified. 5. The only question to be determined in the present Writ Appeal is as to whether the amended Clause 31.02 of the Terms and Conditions of the Supply of Electricity, as was notified vide proceedings of the Full Board as contained in Permanent BP(Ms) No.110, dated 25.5.1997, stands clarified by the proceedings as contained in Permanent BP(Ch).No.203, dated 23.10.1998. https://hcservices.ecourts.gov.in/hcservices/ 6. We have heard the learned counsel appearing for the parties and noticed the rival contentions and also perused the records including the original files called for and produced by the learned Standing Counsel appearing for the appellants-TNEB. 7. It appears that the Full Board of the TNEB issued the Terms and Conditions of the Supply of Electricity in exercise of the powers conferred by Section 49 of the Electricity (Supply) Act, 1948 (Central Act 54 of 1948), notified in BP.Ms.(FB).No.61, dated 24.12.1988, published in Part VI Section 3(b) of the Tamil Nadu Government Gazette No.7, dated 21.2.1996, and as amended subsequently. The Full Board of the TNEB, vide their proceedings in Permanent B.P(F.B).No.110, dated 29.5.1997, amended Clause 31.02 of the Terms and Conditions of the Supply of Electricity, relevant portion of which reads as follows: "AMENDMENT No.10 TAMIL NADU ELECTRICITY BOARD ABSTRACT Electricity-Unauthorised extension of supply to the purpose other than the purpose for which the supply was given within the premises-Treated as violation- Amendment to Clause 31.02 of Terms and Conditions of supply of Electricity-Issued. ------------------------------------------------ TECHNICAL BRANCH Permanent B.P.(F.B)No.110 Dated: 29.5.97 Vaigasi:15 Easwara Tiruvalluvar Aandu 2029. Read: 1. B.P.Ms.(F.B.)No.61 dt.24.12.88 2. Minutes of the 768th Meeting of T.N.E.B. held on 15.5.97 (Item No.38). ... PROCEEDINGS: It has come to the notice of the APTS during inspections that HT/EHT consumers extend supply from their HT/EHT services availed for specific industrial purpose to loads used for construction purpose also while expanding their existing plant or putting up new plants. This was considered as misuse of tariff with reference to Clauses 13.02 and 25.01 and action were taken by the field Engineers under Clause 37 (Violation and theft of energy) of Terms and Conditions of Supply https://hcservices.ecourts.gov.in/hcservices/ of Electricity based on the report of APTS. Instructions were issued in memo. No.IEMC/E1/AEE/D.528/96 dt.19.4.96 that in order to record the energy used for such construction activities in the premises of HT consumer a separate L.T. energy meter has to be provided in the premises of the HT Consumers and energy recorded in this meter shall be charged at the rates applicable for L.T. temporary services. On failure on the part of the consumer to adopt the above procedure, the extension of supply for construction activities from their HT supply system will be treated as violation and necessary compensation charges are to be levied. The main Clause 31 referred to in Clause 2.04 (II) of main Clause 37 states only unauthorised supply of energy by the consumer to any other person as violation. It does not specifically mention that using energy for a different purpose by the consumer for his own works (such as construction activities as discussed above) as a violation, though the consumer's action in extending supply for a different purpose violates Clauses 13.02 and 25.01. It is considered to include this aspect of purpose also in Clause 31.02. Accordingly, in exercise of the powers conferred by Section 49 of the Electricity (Supply) Act, 1948 (Central Act LIV of 1948), the T.N.E.B. issues the following amendment to Terms and Conditions of Supply of Electricity notified in B.P.Ms.(F.B.).No.61, dt. 24.12.88 and published in Part VI Section 3(b) of Tamil Nadu Government Gazette No.7, dated 21.2.96 and as amended subsequently. AMENDMENT After modification, the Clause 31.02 will read as: "If a consumer is detected to be supplying energy unauthorisedly at any time, he shall be liable to pay compensation charges and supply shall be disconnected within 24 hours. For the purpose of this condition, the unauthorised supply of energy shall mean the supply of energy by consumers to any other person or for any purpose other than the purpose for which supply was https://hcservices.ecourts.gov.in/hcservices/ sanctioned from the energy drawn by him from the Board irrespective of whether supply is charged in any form or not. The supply drawn by LT/HT consumers, from the existing service for the purpose of construction and testing of their own expansion/new plant without the approval of the Board is also considered as violation and action will be taken as provided under main clause 37, Schedule Part I of Terms and Conditions of supply of Electricity. However, the supply of energy by the owner of a building to his tenants or by any establishment or person to lessees, employees and/or to the area used for the welfare/amenities of employees shall not be considered as unauthorised supply of energy." (BY ORDER OF THE BOARD) K.VARADHARAJAN MEMBER (DISTRIBUTION). To .... Copy to .... ::FORWARDED BY ORDER:: (D.SELVARAJ) EXECUTIVE ENGINEER:IEMC." 8. From the original files, it further appears that on inspection by the officials of the TNEB, it was found that some of the H.T. industries unauthorisedly taking additional load connection in their service connection, which was treated as violation as per Clause 31.02 of the Terms and Conditions of the Supply of Electricity. The matter was considered by the Chairman of the TNEB, who in consultation with the other officials of the Engineering Section and Member (Distribution), issued Permanent BP (Ch).No.203, dated 23.10.1998. By the said proceedings dated 23.10.1998, the word "expansion" in Clause 31.02 of the Terms and Conditions of the Supply of Electricity, as amended vide proceedings in BP(FB).No.110, dated 29.5.1997, was explained and it was informed that additional loads connected in the existing service in the same building in the same premises for the same purpose, need not be considered as "expansion" and hence, levy of compensation charges as per Clause 31.02 of the Terms and Conditions of the Supply of Electricity, will not arise, though it https://hcservices.ecourts.gov.in/hcservices/ was explained that the H.T. consumers for additional load connection in their existing service, are liable to take prior approval of the Board. 9. From the counter affidavit filed before the Writ Court by the appellants-TNEB/respondents 1 and 2, it appears that on 7.10.1998, the premises of the respondent-writ petitioner-Textile Mill at Tirupur, was inspected and it was found that the respondent-writ petitioner-Textile Mill has connected and utilised additional load of 46.46 KVA over and above the sanctioned load of 777.25 HP + 294.55 KW + 7.5 KVA + lighting load of 22.38 KW. The respondent-writ petitioner had got Safety Certificate for the proposed additional load, which were to be connected with it's existing H.T. Service Connection No.167 from CEIG on 27.7.1998, but the respondent-writ petitioner had not applied to the TNEB for approval for connecting additional load till 7.10.1998. The respondent-writ petitioner applied to the TNEB for approval only on 12.10.1998, i.e. after detection of violation on 7.10.1998. In fact, that was the reason the Executive Engineer of the TNEB, Tirupur, issued a show cause notice on the respondent-writ petitioner-Textile Mill, alleging violation of the Terms and Conditions of the Supply of Electricity, by taking unauthorised supply of energy for the purpose of own expansion, without the approval of the Board, which is in violation of Clause 31.02 of the Terms and Conditions of the Supply of Electricity, as amended. The respondent-Textile Mill was called upon to stop the violation and remove the equipment installed and used for the above violations within 24 hours from the date of receipt of the notice, and was also asked to explain as to why it be not held liable for the violation of Clause 31.02 of the Terms and Conditions of the Supply of Electricity and why compensation charges for the above violation be not levied and collected in accordance with Clause 6.02 of Schedule to the Terms and Conditions of the Supply of Electricity. On receipt of the explanation dated 19.11.1998, and the deposition made by the respondent-Textile Mill in the enquiry conducted on 28.12.1998, taking into consideration the facts and records furnished by the respondent-Textile Mill, the impugned order dated 5.6.2000 was passed, as was affirmed by order dated 15.2.2001. 10. With regard to the alleged violation of Clause 31.02 of the Terms and Conditions of the Supply of Electricity, learned counsel appearing for the respondent-writ petitioner-Textile Mill, first submitted that BP.(Ms)(FB).No.110, dated 29.5.1997 stands superseded due to clarification, vide proceedings made in BP (Ch). No.203, dated 23.10.1998. The stand of the learned Standing Counsel appearing for the appellants-TNEB was that the proceedings of the TNEB as contained in BP(Ms)(FB).No.110, dated 29.5.1997 cannot be treated to have been superseded by the proceedings of the Chairman of the TNEB as contained in BP(Ch).No.203, dated 23.10.1998. It was https://hcservices.ecourts.gov.in/hcservices/ pointed out that in the first proceedings dated 29.5.1997, after the BP, in the bracket, "(FB)" had been inserted wherever there are proceedings of the Full Board, whereas, after BP, in the other proceedings, dated 23.10.1998, within the bracket, "(Ch)", i.e. it means 'Chairman' had been inserted. Therefore, the proceedings No.203, dated 23.10.1998, which are the proceedings of the Chairman of the TNEB, cannot be treated to be the proceedings of the TNEB. 11. Learned counsel for the respondent-writ petitioner referred to Supreme Court decision in the case of "C.I.T. vs. Podar Cement Pvt. Ltd.", reported in 1997 (5) SCC 482 and in the case of "Allied Motors (P) Ltd. vs. C.I.T", reported in 1997 (3) SCC 472, to suggest that the proceedings can be clarified subsequently by the authority. Reliance was also placed on the decision of the Supreme Court in the case of "T.N. Electricity Board vs. Status Spg. Mills Ltd.", reported in 2008 (7) SCC 353, to suggest that an instruction can be issued by the authority to clarify its earlier proceedings. The decision of the Supreme Court in the case of "State of Gujarat vs. Saurashtra Cement & Chemical Industries Ltd.", reported in 2003 (2) SCC 394, was also relied upon to explain the meaning of the word "expansion". 12. From the original files, it would be evident that the proceedings in Permanent B.P.(F.B)No.110, dated 29.5.1997, were issued "BY ORDER OF THE BOARD" which was "THE FULL BOARD". On the contrary, the proceedings in Permanent BP(Ch).No.203, dated 23.10.1998 are the proceedings issued "BY ORDER OF THE CHAIRMAN", communicated by the Member (Distribution) of the TNEB. The bracketed portion also suggests that one order was issued by the direction of the "Full Board" and the other was issued under the direction of the "Chairman". 13. Now, it is settled law that any clarification can be made even by a competent authority properly explaining the decision if taken by the superior authority. Therefore, it was open for the Chairman of the TNEB to clarify any decision of the Full Board of the TNEB, as he is also a member of the said Full Board. But such clarification should be in consonance with the decision of the original authority and cannot be contrary to the decision of the original authority. 14. In the present case, the Full Board, in its proceedings in Permanent B.P.(F.B).No.110, dated 29.5.1997, has noticed that during inspection, it was found that H.T./E.H.T. consumers extend supply from their services availed of for specific industrial purpose, to loads used for construction purpose also while expanding their existing plant or putting new plants. This was considered as misuse of tariff. Taking into consideration all such aspects, the Full Board of the TNEB, considered to include such https://hcservices.ecourts.gov.in/hcservices/ aspect for the purpose of Clause 31.02 of the Terms and Conditions of the Supply of Electricity and amended the said Clause, vide proceedings in Permanent B.P(F.B).No.110, dated 29.5.1997. The amended Clause 31.02 as seen from the said proceedings dated 29.5.1997, reads thus: "If a consumer is detected to be supplying energy unauthorisedly at any time, he shall be liable to pay compensation charges and supply shall be disconnected within 24 hours. For the purpose of this condition, the unauthorised supply of energy shall mean the supply of energy by consumers to any other person or for any purpose other than the purpose for which supply was sanctioned from the energy drawn by him from the Board irrespective of whether supply is charged in any form or not. The supply drawn by LT/HT consumers, from the existing service for the purpose of construction and testing of their own expansion/new plant without the approval of the Board is also considered as violation and action will be taken as provided under main Clause 37, Schedule Part I of the Terms and Conditions of Supply of Electricity." (emphasis supplied as in the proceedings) 15. From the aforesaid proceedings of the Full Board, dated 29.5.1997, it would be evident that even the supply drawn by the H.T. consumers like the respondent-writ petitioner-Textile Mill, from the existing Service Connection, for the purpose of construction and testing of their own expansion, without the approval of the TNEB, is also considered as violation of Clause 31.02 of the Terms and Conditions of the Supply of Electricity. A specific decision having been taken by the Full Board of the TNEB, it was not open for the Chairman of the TNEB to give a different meaning to the word "expansion" for the purpose of Clause 31.02 of the Terms and Conditions of the Supply of Electricity, contrary to the decision of the TNEB in its proceedings in Permanent BP(FB). No.110, dated 29.5.1997. The said explanation given by the Chairman of the TNEB in Permanent B.P.(Ch).No.203, dated 23.10.1998, being contrary to the decision of the Full Board of the TNEB in Permanent B.P.(FB).No.110, dated 29.5.1997, issued in exercise of the powers conferred by Section 49 of the Electricity (Supply) Act, 1948, we hold that the proceedings in B.P.(Ch). No.203, dated 23.10.1998, are illegal and void in the eye of law. 16. In view of our findings aforesaid, we hold that the appellants-TNEB rightly understood the decision of the Board as contained in amended Clause 31.02 of the Terms and Conditions of the Supply of Electricity and circulated vide Permanent B.P(F.B). https://hcservices.ecourts.gov.in/hcservices/ No.110, dated 29.5.1997 while issuing their proceedings dated 5.6.2000, as was affirmed by proceedings dated 15.2.2001. 17. The learned single Judge, having failed to notice the aforesaid distinction between Permanent B.P.(F.B).No.110, dated 29.5.1997 and the illegal order of the Chairman as contained in B.P (Ch).No.203, dated 23.10.1998, we are inclined to interfere with the impugned order passed by the learned single Judge. We accordingly set aside the impugned order dated 17.9.2001 passed by the learned single Judge in Writ Petition No.5915 of 2001 and uphold the proceedings issued by the appellants-TNEB dated 5.6.2000, as was affirmed by proceedings dated 15.2.2001. If the amount as quantified in the said proceedings dated 5.6.2000/15.2.2001 is not yet recovered from the respondent-writ petitioner-Textile Mill, the appellants-TNEB may take appropriate steps for recovering the same and may proceed in accordance with law. 18. The Writ Appeal is allowed with the aforesaid observations. No costs. W.A.M.P. is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. cs To 1. The Chief Engineer/Distribution, Tamilnadu Electricity Board, Coimbatore Region,P.B.No.2940, Tatabad, Coimbtore-12. 2. The Superintending Engineer, Tamilnadu Electricity Board, Coimbatore Electricity Distribution Circle, South, Coimbatore-12. 1 cc to Mr.V. Selvendran, Advocate, SR. 69298 1 cc to M/s. V. Sanjeevi, Advocate, Sr. 69151 Writ Appeal No.3020 of 2001 SSK (CO) kk 17/12 https://hcservices.ecourts.gov.in/hcservices/