IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 21-12-2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.29473 OF 2011 and M.P.No.1 of 2011 M/s.KGS Mills, Unit of The Kadri Mills (Cbe) Ltd., represented by its General Manager, Kuppanur Post, Coimbatore – 641 010. ... Petitioner -vs- 1.The Government of Tamil Nadu, represented by its Secretary to Government, Energy Department, Fort St.George, Chennai-9. 2.Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 3.The Superintending Engineer, Coimbatore Electricity Distribution Circle/North, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Tatabad, Coimbatore-641 012. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari, to call for the records of the third respondent culminating in his impugned proceedings bearing Lr.No.SE/CEDC/N/CBE/DFC/AO/REV/AS/A5/F.E.Tax/D.864/11, dated 08.12.2011, issued for the petitioner's H.T.SC No.82 and quash the same as being violative of the Tamil Nadu Tax on Consumption or Sale of Electricity Act,2003, and also as unconstitutional. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.N.L.Rajah For respondents : Mr.M.Dig Vijaya Pandian, AGP for R-1 Mr.G.Vasudevan for RR 2 & 3. O R D E R Heard Mr.N.L.Rajah, learned counsel for the petitioner; Mr.Dig Vijaya Pandian, learned Additional Government Pleader, appearing for first respondent, and Mr.G.Vasudevan, Standing Counsel for respondents 2 and 3. 2. In this Writ Petition, the petitioner has sought for issuance of a writ of certiorari to call for the records of the third respondent culminating in his proceedings bearing Lr.No.SE/CEDC/N/CBE/DFC/AO/REV/ AS/A5/F.E.Tax/D.864/11, dated 08.12.2011, issued for the petitioner's H.T.SC No.82 and quash the same as being violative of the Tamil Nadu Tax on Consumption or Sale of Electricity Act,2003, and also as unconstitutional. 3. According to the petitioner, it is a unit of The Kadri Mills (Cbe) Ltd., engaged in the manufacture of cotton yarn. The said unit has a High Tension Electricity Supply Connection bearing HTSC No.82 with a maximum demand of HT supply. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), first respondent herein, is the subsidiary and successor-in-interest of the Tamil Nadu Electricity Board in so far its generation and distribution functions are concerned and they were governed by the Electricity Supply Act,1948, earlier, and now the Electricity Act,2003. 3.1. In the year 1962, the State of Tamil Nadu enacted The Tamil Nadu Electricity (Taxation and Consumption) Act,1962 (Act 4 of 1962) to provide for the levy of tax on the consumption of electrical energy in the State of Madras. The said Act was repealed in the year 2003 and in its place Tamil Nadu Tax on Consumption or Sale of Electricity Act,2003 was enacted, in which Section 3 is the charging proviso in terms whereof every licensee and every person other than licensee is required to pay every month to the Government in the prescribed manner electricity sold or consumed during the previous month at the rate specified thereunder. Subsequently, The Tamil Nadu Tax on Consumption or Sale of Electricity (Amendment) Act,2007 was passed and the purpose of the said Act is to give retrospective amendment to the provisions. Challenging the said amendment, a batch of writ petitions have been filed and this Court passed an interim order to the following effect : https://hcservices.ecourts.gov.in/hcservices/ (a) Wherever there is a demand for the period covered before the validation Act, the undertaking given by the respondents not to disconnect electricity connection shall continue until further orders. (b) In case of periods after the validation Act, the undertaking is restricted not to disconnect the electricity supply for non-payment of tax, but, however, the respondents are at liberty to make demand for such periods. (c) It is however made clear that the petitioners are bound to pay current consumption charges and tax thereon. (d) In the event of non-payment of tax on consumption for those covered under exemption and for the component dealing with maximum demand, the respondents are at liberty to make demand but not to enforce the same until further orders." 3.2. The above said batch of writ petitions are pending adjudication before a Division Bench of this Court. While that be so, the respondents, vide the impugned communication, dated 08.12.2011, are attempting to demand from the petitioner a sum of Rs.3,48,054/- on the ground of audit objection towards short levy. Aggrieved over the same, the petitioner has approached this Court, by way of this Writ Petition. 4. Today, when the matter is taken up for hearing, learned counsel for the petitioner, by producing a copy of the order made by the Division Bench of this Court in W.P.Nos.25572 of 2011 and 26190 of 2011, dated 14.11.2011, would submit that the issue in question is covered by the said orders of the Division Bench and, therefore, the same yardstick is to be made applicable to this case as well, to which submission, the learned counsel for the respondents have readily agreed. The order of the Division Bench in W.P.No.25572 of 2011 reads thus : "2.We have heard Mr.N.L.Rajah, learned counsel for the petitioner and Mr.G.Vasudeval, learned counsel for the respondents 2 and 3. 3.It is the contention of Mr.Rajah that in terms of Section 9 of the Tamil Nadu Tax on Consumption or Sale of Electricity Act, the demand could be made only after a reasonable opportunity being given to the consumers and in any case the demand of electricity tax payable under the Act shall not be made beyond a period of four years. https://hcservices.ecourts.gov.in/hcservices/ By virtue of the impugned circular, the members of the petitioner-Association apprehend that the demand could be made contrary to the provisions of Section 9 and for that reason, the petitioner- Association is constrained to challenge the circular. 4.Mr.G.Vasudevan, learned counsel for the respondents 2 and 3, on the other hand, would submit that the impugned circular is only to clarify the provisions of Section 2 (7) and inasmuch as the members of the petitioner- Association have not been issued with any demand, the writ petition is premature and is liable to be rejected. He would also submit that the writ petition at the instance of the Association is not maintainable, as the individual member could alone challenge. 5.We have considered the above submissions. The fact remains that the impugned circular is one clarifying Section 2 (7) of the Act with a further direction to the Superintending Engineers/Chief Engineers to demand the electricity tax from the consumers. However, the question is as to whether in terms of Section 9, at the time of demand, an opportunity of being heard is contemplated to the consumers and the demand could be made beyond a period of four years. These are all matters which are not available to the members of the petitioner-Association as of now till such time they are issued with the individual demand notice. In that view of the matter, the contention of Mr.G.Vasudevan that the writ petition is premature is well founded Accordingly, we are not inclined to entertain the writ petition and the same is liable to be rejected. However, as we have found that by the impugned communication the respective officers have been directed to make the demands, till such time demands are made in terms of the provisions of the Act, the petitioner cannot question the circular as such on mere apprehension. It is always open to the members of the petitioner-Association to canvass all the points raised in this writ petition including the point that the demand cannot be made without opportunity and beyond a period of four years before the authority, by way of objections opposing the demand of electricity tax. Hence, the writ petition stands rejected. https://hcservices.ecourts.gov.in/hcservices/ Consequently,M.P.Nos.1 to 3 of 2011 are also rejected. No costs." 5. The Division Bench, in the other order in W.P.No.26190 of 2011, held in para 3 as under : "3. The question as to whether the demand could be made for a period beyond four years prior to the date of demand and as to whether at the time of demand, the provisions of Section 2 (12) read with Section 3 relating to the net charge had been duly taken into consideration or not, are all the matters not to be adjudicated at this point of time, for the simple reason that the impugned order is liable to be set aside on the sole ground that before such a demand is made, the petitioner- consumer has not been afforded an opportunity as required under Section 9 of the Act. On the said ground alone, we are inclined to interfere with the impugned order. Accordingly, the Writ Petition is allowed, the impugned order will be treated as a show cause notice and the petitioner is at liberty to make objections on all the available grounds including the grounds which we have referred to in this order, in a period of 15 days form the date of receipt of a copy of this order before the third respondent. In the event such objections are received, the third respondent shall consider the same and after affording opportunity to the petitioner, pass a fresh order of demand. We also make it clear that in the event the petitioner fails to make any objection within the period stipulated in this order, the third respondent is entitled to proceed further on the basis of the impugned demand. As we have directed that the impugned order shall be treated to be one of show cause notice, till such time final order is passed, in the event of receipt of objection as directed, the third respondent shall not disconnect the electricity service connection of the petitioner. We further make it clear that this order is with reference to the demand made in the impugned proceedings. With these observations and directions, the writ petition is allowed. Consequently, M.P.Nos.1 and 2 of 2011 are closed. No costs." 6. Following the above orders of the Division Bench, this Writ Petition is disposed of, treating the impugned proceedings of the third respondent as a show cause notice and the petitioner is at liberty to make objections on all available grounds within a period https://hcservices.ecourts.gov.in/hcservices/ of 15 days from the date of receipt of a copy of this order before the third respondent. In the event such objections are received from the petitioner, the third respondent shall consider the same and, after affording an opportunity to the petitioner, pass a fresh order of demand, on merits and in accordance with law. It is also made clear that in case the petitioner fails to make any objection within the period stipulated in this order, the third respondent is at liberty to proceed further on the basis of the impugned demand. As this Court directed that the impugned demand shall be treated to be one of show cause notice, till the final order is passed on receipt of the objections from the petitioner as observed above, the third respondent shall not disconnect the electricity service connection of the petitioner. No costs. Consequently, the connected M.P.is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. cs/dixit To 1.The Secretary to Government, Government of Tamil Nadu, Energy Department, Fort St.George, Chennai-9. 2.The Chairman and Managing Director, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3.The Superintending Engineer, Coimbatore Electricity Distribution Circle/North, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Tatabad, Coimbatore-641 012. 1 cc To Mr.N.C.Rajah, Advocate Sr 78389 W.P.No.29473 OF 2011 ug[co] gp/6.1 https://hcservices.ecourts.gov.in/hcservices/