In the High Court of Judicature at Madras Dated: 07.01.2008 Coram The Honourable Mr.JUSTICE P.JYOTHIMANI Writ Petition No.28943 of 2007 Sonal Vyapar Limited rep. By its Director by its President Aravind Gupta .... Petitioner Vs. 1. The Tamil Nadu Electricity Board, 800, Anna Salai,Chennai – 600 002 rep. By its Chairman 2. The Chief Financial Controller, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai – 600 002 3. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem – 636 014. .... Respondents PETITION under Article 226 of The Constitution of India for the issuance of writ of mandamus directing the respondents to refund the monthly minimum charges of Rs.1,60,000/- collected illegally from the petitioner vide the 3rd respondent's bill dated 29.09.2002 against the provisions of Regulation 31(5) of the Tamil Nadu Electricity Distribution Code, 2004. For Petitioner : Mr.R.S.Pandiyaraj For Respondents: Mr.S.N.Kirubanandan, Spl.G.P. ----------- O R D E R Heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondents. 2. This writ petition is filed for a direction to the respondents to refund the monthly minimum charges of Rs.1,60,000/- collected illegally from the petitioner vide the 3rd respondent's bill dated 29.09.2002 against the provisions of https://hcservices.ecourts.gov.in/hcservices/ Regulation 31(5) of the Tamil Nadu Electricity Distribution Code, 2004. 3. It is not in dispute that the petitioner company namely M/s. Sonal Vyapar Limited has given an application in the year 1987 for new HTSC for a maximum demand of 3200 KVA for the proposed industry at Nattamangalam Main Road, Maniyanoor, Salem – 636 010. The service connection was also given in the year 1987 and the petitioner has availed tariff concession. Thereafter, on 3.10.1994, the petitioner has applied for new service connection with physical separations as Unit II and that was effected on 3.10.1994 and the service connection number was assigned as 147. In respect of the service connection 147 also, the petitioner has availed tariff concession again. 4. According to the respondents there is a due from the petitioner to the extent of Rs.1,49,297/-, which is stated to be the electricity tax arrears. The case of the petitioner is that as far as the arrears in respect of service connection No.147 is concerned, litigations are pending and the matter is not yet settled as to whether the petitioner is liable to pay the said arrears of tax or not. In the meantime, the petitioner has applied for a new connection on 13.05.2002 before closing the account in Service Connection No.147. Steps were taken for effecting supply and technical sanction was also granted to the petitioner on 1.8.2002. The petitioner has paid the amount of Rs.12,36,890/- towards the payment of development charges, Meter caution deposit charges, service connection charges on 8.8.2002. There was an agreement entered into in this regard on 8.8.2002, which was executed on 12.8.2002 for new HTSC No.202. The respondents by their communication dated 5.9.2002 informed the petitioner that they are ready to effect the maximum demand of 3200 KVA in the petitioner's industry and the Electricity Board side works are completed. The petitioner was also informed that the petitioner can avail electricity supply on or before 6.9.2002, failing which the petitioner has to pay the monthly minimum charge from 7.9.2002 to till the date of availing the maximum demand of 3200 KVA for a period of first three months. 5. According to the petitioner, the respondents have collected a sum of Rs.1,60,000/- taking into consideration that the petitioner has availed the service connection and is liable to pay the monthly minimum charge in respect of the new service connection from 6.9.2002 to 10.9.2002. The case of the petitioner is that the petitioner has availed the said new connection only from 11.9.2002 and he should be charged with the monthly minimum charge only from the date of availing the electricity supply i.e., from 11.9.2002. Therefore, the conduct of the respondents in collecting the amount of Rs.1,60,000/- on https://hcservices.ecourts.gov.in/hcservices/ the basis that the petitioner is liable to pay monthly minimum charge from 6.9.2002 till 10.9.2002 is illegal. 6. On the other hand, it is the admitted case of the respondents, as seen from the counter affidavit that in respect of earlier service connection No.147, which was disconnected, there was arrears to the extent of Rs.1,49,297/- But the case of the respondents/Electricity Board is that the petitioner by his conduct has been negotiating with the accounts members and in fact the petitioner has given an undertaking to pay the said amount of arrears being electricity tax in respect of HTSC No.147, while giving new connection as per the order dated 5.9.2002. Therefore, according to the respondents/Electricity Board, the conduct of the petitioner having given an undertaking to pay the arrears in respect of Service connection No.147, having not paid till 10.9.2002 shows that the respondents are entitled to treat the period from 6.9.2002 as monthly minimum charge, since the fault is on the petitioner in not availing the same. 7. Mr.S.N.Kirubanandam, learned counsel appearing for the respondents submits that as per Regulation 31(5) of the Tamil Nadu Electricity Distribution Code, the Electricity Board is entitled to charge monthly minimum charge inasmuch as the electricity Board has made it very clear that the Board is ready to supply from 5.9.2002 and the fault is on the part of the petitioner in not availing the same by paying the balance amount in respect of other service connection, namely 147. Hence, the order passed by the Electricity Board is perfectly in order. It is also submitted by the learned counsel that the Electricity Board, being a public utility organisation has right to deduct the amount due from the petitioner in respect of other accounts also. Hence, these are the amounts payable in respect of the electricity supply availed. 8. On the facts and circumstances of the case, it is clear that there is absolutely no dispute about the liability of the petitioner in paying the arrears of tax in respect of service connection No.147. Even assuming that the petitioner has not given any undertaking, there is no difficulty to conclude that the liability of the petitioner is there and as submitted by the learned counsel for the respondent that even if any litigation is pending, in respect of the same, no stay was granted as on date. In view of the same, it cannot be said that the petitioner is not liable to pay the balance amount in respect of service connection No.147. 9. However, the dispute, which has to be decided is as to whether the respondents/Electricity Board has got any right at https://hcservices.ecourts.gov.in/hcservices/ all to treat from the period 6.9.2002 for the purpose of charging monthly minimum charge in respect of new Service Connection No.202. It should be charged from the date of availing the electricity supply i.e., from 11.9.2002. However, the case of the respondents is that on 5.9.2002 itself, the respondent Electricity Board was ready to give supply, but the petitioner has not chosen to avail by paying the amount in respect of arrears regarding the other account. Therefore, it should be treated as if he has availed the electricity supply from 5.9.2002 and in that view of the matter by applying Regulation 31(5), the respondent Electricity Board has right to recover the amount. 10. Regulation 31 of the Tamil Nadu Electricity Distribution Code 2004 reads as follows: "31. Inspections, testing and effecting supply- (1) After completion of the wiring, notice must be sent to the engineer by the intending consumer (upon printed test report from obtainable free of cost from the offices of the licensee) that the installation has been completed and tested and that the same is complete and ready for inspection and test by the engineer. Notice of the engineer's intention to inspect and test the installation will be sent to the intending consumer who must be present or his/her competent representative at the time fixed to give information that may be necessary concerning the installation. (2) the intending consumer shall avail himself of the supply within three months in case of HT and one month in case of LT from the date of issue of notice in writing, informing him that supply is available. (3) If the intending consumer fails to avail the supply within the above period, a further three months notice in case of HT and one month notice in case of LT will be sent to the intending consumer to avail the supply. If he does not avail himself the supply during this notice period, the application will be treated as lapsed and cancelled in the case of low tension supply and the application shall be treated as cancelled, terminating the agreement, in the case of high tension supply. Theservice connection charges and the security deposit/development charges, etc., except meter caution deposit will be forfeited. In case the intending consumer could not avail the supply under force manjuere conditions, the security deposit/development charges and meter caution deposit shall be refunded to the intending consumer. https://hcservices.ecourts.gov.in/hcservices/ (4) However, licensees of the distribution are delegated with powers to condone the delay on specific request from them if received before expiry of second notice period and to accord approval to effect supply any day after the date of expiry of second notice of availability of supply without forfeiture of development and other charges and cancellation of application subject to his/her consent to pay monthly minimum charges upto the date of availing supply. (5) If the intending consumer avails supply during the notice period of availability of supply, he shall pay the monthly minimum charges at the notified tariff rate for the period from the date of issue of first notice of supply availability till the date of availing supply. (6) Requisition for supply or additional supply of electricity should be made in the prescribed form obtainable from the local office of the licensee sufficiently in advance of the date of requirement of supply. Such forms can also be made available in downloadable mode in the licensee's website or allowed to be printed by others and made available in open market. The requisition should be made by the owner, or occupier, of the premises for which supply is required, and should indicate his/her full name and address. Any assistance or information required in filling up the form has to be given to the intending consumer at the local offices of the licensee." 11. A reading of above Regulation 31(5) makes it clear that the liability of the intending consumer to pay the monthly minimum charge arise only from the date of availing the supply. 12. Regulation 17 of the Tamil Nadu Electricity Supply Code 2004 reads as follows: "17. Agreement with respect to supply: Issues on recovery of charges:- (1) Every consumer shall pay to the licensee, from the date of commencement of supply till the agreement is terminated, security deposit, minimum monthly charges, fixed charges, if any, and other charges as provided in the tariff orders, this Code and any other orders in this regard by the Commission, from time to time. However, any consumer, who has not availed of reconnection even after the expiry of termination of agreement period, the monthly minimum charges may be limited to the https://hcservices.ecourts.gov.in/hcservices/ date of disconnection. (2) Notwithstanding the termination of the agreement, the consumer shall be liable to pay the arrears of current consumption charges or any other sum due to the licensee on the date of disconnection and meter rent, if any, upto the date of termination of the agreement and Belated Payment Surcharge (BPSC) upto the date of payment. (3) The licensee may require the consumer, who, at any time during the currency of the agreement, intends to sell or otherwise dispose of or lease out in whole or in part of the premises or business to which supply is given or has been contracted for, to give three months' notice of his intention to the engineer of the licensee and clear all dues upto the date of sale/disposal/lease. In the case of such notice, the agreement in so far as the consumer is concerned, will cease to operate with effect from the date specified in such notice, but without prejudice to any claim or right which may have accrued to the parties thereunder. (4) If the consumer fails to give advance intimation as aforementioned of his intention to sell or lease out or otherwise dispose of the properties or business to which supply is given or contracted for, the licensee shall have the right to recover the charges for consumption and other charges due to the licensee under the agreement even beyond the date of sale or lease out or otherwise disposal of the properties or business. (5) If a service connection remains disconnected for a period of three months for non-payment of dues to the licensee, the licensee shall issue a notice requiring the consumer to get supply restored within three months from the date of receipt of such a notice and intimating him that failure to avail supply within that period will result in termination of the agreement. After the expiry of notice period of three months, the agreement shall stand terminated." 13. A reading of the above said Regulation also makes it clear that the consumer is liable to pay to the licensee, namely, the Electricity Board, the monthly minimum charge from the commencement of supply till the agreement is terminated. 14. In this case, it is not even the case of the Electricity Board in the communication dated 5.9.2002, that the Electricity Board has demanded the petitioner to pay the amount https://hcservices.ecourts.gov.in/hcservices/ of arrears in respect of Service connection No.147 and until the amount is paid the petitioner will not be given supply and such a stand has never been made. Even in the absence of the such a stand, the Electricity Board has right to recover the amount. It cannot be said that during the period, namely, from 6.9.2002 to 10.9.2002, when the petitioner has not actually availed the supply, he should be made responsible for the payment of monthly minimum charge. 15. Learned counsel for the respondent has relied upon a judgment of the Supreme Court reported in 2005(5)CTC 289 (Amit Products (India) Ltd., V. Chief Engineer (O&M) Circle held that the Electricity Board has got right to recover the dues for any account and adjust the same to some other account. 16. As stated earlier, there is absolutely no difficulty about this legal position and the only question to be decided here is about the payment of monthly minimum charge payable by the petitioner for the period from 6.9.2002 to 10.9.2002. I am of the considered view that the respondent board is not entitled to collect the monthly minimum charge for the period from 6.9.2002 to 10.9.2002 for which period the petitioner has not availed the supply at all. However, at the same time, it cannot be said that the electricity board is not entitled to recover the amount due to the petitioner in respect of service connection No.147. It is the case of the petitioner that in respect of service connection No.147, some litigations are pending. But there is no stay in that regard preventing the Electricity Board from making such recovery. 17. In view of the same, while holding that the Electricity Board is entitled to claim monthly minimum charge in respect of HTSC No.202 only from 11.9.2002, but at the same time, the respondents Electricity Board is entitled to adjust the amount of Rs.1,60,000/- to tax due in respect of HTSC No.147 if the said amount is not paid otherwise by the petitioner. 18. The writ petition is disposed of in the above terms. No costs. Sl Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chairman, The Tamil Nadu Electricity Board, 800, Anna Salai,Chennai – 600 002 2.The Chief Financial Controller, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai – 600 002 3.The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem – 636 014 • One cc to Mr. R.S. Pandiyaraj, Advocte SR 1188 • NG (co) sg 11/01/08 W.P.No.28943 of 2007 07.01.2008 https://hcservices.ecourts.gov.in/hcservices/