IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRD DAY OF SEPTEMBER, TWO THOUSAND AND FOUR PRESENT: THE HON’BLE SRI JUSTICE G.BIKSHAPATHY AND THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY WRIT APPEAL NO. 1791 of 1998 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated: 10.10.1996 in W.P.No. 3967 of 1989 on the file of the High Court) Between: 1. The Andhra Pradesh State Electricity Board, Vidyut Soudha, Somajiguda, Hyderabad. Represented by its Member-Secretary. 2. The Superintending Engineer, Operation Circle, A.P.S.E.B., Rajahmundry. APPELLANTS (Respondents) AND The Andhra Sugars Limited, Venkatarayapuram, Tanuku, Represented by its Chairman and Managing Director Sri M.Harischandra Prasad RESPONDENT (Petitioner) . Counsel for the Appellant:SMT.M.VINOBHA DEVI Counsel for the Respondent No.: M/S C.KODANDA RAM The Court made the following: J U D G M E N T : (per G. Bikshapathy J) 1. The Writ Appeal is directed against the Order passed by the learned Single Judge in W.P.No. 3967 of 1989, dated: 10.10.1996. 2. The matter relates to levy of additional charges on the High Tension Consumers in pursuance of the Orders passed by the Andhra Pradesh State Electricity Board in B.P.M.S.No. 607, dated: 21.7.1981. Challenging the said additional charges by demand letter dated: 14.12.1988, number of H.T. Consumers filed Writ Petitions before this Court. 3. M/s Associated Cement Company Limited filed W.P.No. 2696 of 1989 questioning the levy of additional charges. The Company filed W.P.No. 5110 of 1988 seeking writ of mandamus restraining the respondent-Board from encashing bank guarantee issued in favour of the Board. The said W.P.No. 2696 of 1989 was allowed by the Division Bench by an Order dated: 28.8.1996, setting aside the levy of additional charges, consequently W.P.No. 5110 of 1988 was dismissed as infructuous in view of the Order passed in W.P.No. 2696 of 1989. 4 . Similarly, M/s A.P. Papers Limited filed W.P.No. 4631 of 1989 questioning the decision of the Board for payment of additional charges. The said Company also filed W.P.No. 5012 of 1988 seeking writ of mandamus restraining the Board from encashing the bank guarantee furnished by the petitioner to the Board in respect of the additional charges. The Division Bench of this Court by Orders dated: 9.10.1996 quashed the demand levying additional charges and consequently passed Orders in W.P.No. 5012 of 1989 disposing of the Writ Petition in terms of the Order passed in W.P.No. 4631 of 1989. 5. As the petitioner also stood on the identical footing, the petitioner being H.T. Consumers filed W.P.No. 3967 of 1989 challenging the Order dated: 14.12.1988 levying the additional charges and to restrain the Board from encashing the bank guarantee. Since the matters were already covered by the decision of the Division Bench in W.P.No. 4631 of 1989 filed by Andhra Paper Mills, W.P.No. 2696 of 1989 filed by Associated Cement Company, wherein a challenge was made to the levy of additional charges through demand letter dated: 14.12.1988, consequent on which the Writ Petitions filed by the aforesaid companies challenging the action of encashment of bank guarantee was disposed of, the said Writ Petition filed by the petitioner in W.P.No. 3967 of 1989 came to be disposed of by the learned Single Judge basing on the Orders passed in W.P.No. 5012 of 1989, 5110 of 1989, dated: 19.9.1996. But, however, the present Writ Appeal has been filed by the Board challenging the Order of the learned Single Judge. 6. The learned Senior Counsel appearing for the Appellant-Board Mr. N. Subba Reddy also contended that on merits, the levy of additional charges are justified and hence he submitted before this Court that the matter has to be heard on merits as it is not covered by the decisions relied on by the learned counsel for the Writ Petitioner. 7. At this point of time, it was found that two courses are open to this Court to deal with the matter either it should be sent back to the learned Single Judge for fresh consideration on merits or this Court can itself consider the applicability of the decision of the Division Bench of this Court which are sought to be relied on by the petitioner and render appropriate decision in this regard. But, the learned counsel appearing for the Board as well as the Writ Petitioner submit that in view of the long lapse of time, it would be further consumption of time if the matter is again sent to the learned Single Judge for fresh consideration. More over, they submitted that the applicability of the Orders of the Division Bench is the prime question and therefore, this Court itself can hear the matter and dispose of the same on merits so as to render finality to the matter. 8. In view of the submission of the learned counsel for the parties, this Court was inclined to dispose of the Writ Appeal duly considering the merits of the case. For the sake of convenience, the parties in the Writ Appeal are referred as they were arrayed in the Writ Petitions. 9. Petitioner is a Public Limited Company incorporated under the Companies Act and having registered Office at Tanuku, West Godavari District in Andhra Pradesh in the year 1961. It has set up an industrial unit for manufacture of caustic soda, chlorine and allied products in West Godavari District. The energy was supplied to the petitioner by the respondent on the basis of agreement entered between the petitioner and the respondent. The energy was supplied to the petitioner unit at 11 K.V. voltage till January, 1974 and thereafter 33 K.V. voltage upto 24.6.1988. From 24.6.1988 the supply of energy was changed to 132 K.V. The petitioner is H.T. Consumer. 10. In exercise of powers conferred by Section 49 of the Electricity (Supply) Act, 1948, the Board is empowered to notify the tariffs from time to time. The Board issued B.P.M.S.No. 418, dated: 2.6.1981 notifying tariffs for various categories of consumers. We are only concerned with H.T. Consumers. Under the above notification the voltage of supply to H.T. Consumers shall normally be 11000 volts/33000 volts and the Board reserves the right to supply at higher voltage of 66,132 or 220 K.V. at its discretion taking into account the contracted demand of the Consumer. However, in order to ensure that H.T. Consumers with different contracted demands avail supply at specified voltage, the Board decided to issue amendment to the existing H.T. tariff provision. Accordingly the Board issued B.P.M.S.No. 607, dated: 21.7.1981. The amendments reads thus: “AMENDMENT The existing condition (1) under Part-‘A’ of H.T. Tariffs is deleted and is substituted by the following:- “Condition (1):- The voltage at which supply has to be availed by H.T. Consumer shall be For contracted demand upto and }{ 11000 Volts Including 15000 KVA }{ Far contracted demand from 1501 KVA}{ 33000 Volts upto and including 5000 KVA. }{ For contracted demands from 5001 KVA}{ 132000 Volts or and above }{ 220000 Volts as decided by Board. Existing H.T. Consumers who are availing supply at a voltage less than that specified above have to make necessary arrangements for changing their supply system within a period of 6 months to us to avail supply at the above voltages. Failure to make such arrangements to receive supply at the specified voltages within the specified period will attract additional charges for low voltages for compensating the Board against transmission and transformation losses and cost of additional capital incurred at the rates indicated below:- --------------------------------------------------------------------------------------------------------------------------------- Contracted demand Voltage at which voltage at which Addl. Charge of Consumer supply is to be supply is availed to be levied availed --------------------------------------------------------------------------------------------------------------------------------- Upto and including 1500 KVA 11 KV 6.6 KV}{ 5% 3.3 KV}{ 1501 KVA TO 5000 KVA 33 KV 11 KV 2.5% 6.6 KV}{ 7.5% 3.3 KV}{ 5000 KVA and above 132KV or 66 KV 5% 220 KV 33 KV 7.5% 11 KV 10% 6.6 KV}{ 15% 3.3 KV}{ The percentage of additional charge is leviable only on “Demand Plus Energy charges” billed during the month in respect of H.T. Consumers covered by the two part tariff and on “Energy charges” in respect of consumers billed on energy basis.” 11. When the said B.P.M.S.No. 607 was issued, the contracted power demand in respect of petitioner’s caustic soda unit was 24 M.V. (24000 K.V.A) and therefore, the petitioner was required to receive energy at 132 KV or 220 KV Voltage as per the said B.P. The additional charges leviable under the said B.P.M.S.No.607 for receiving energy at the lower voltage of 33 K.V. instead of at 132 K.V. was 7.5% on energy charges billed for the petitioner during the month. The Board gave such of those H.T. Consumers who were required to change over to higher voltage six months time to effect the change over and receive supply at higher voltage applicable to them i.e. upto 28.2.1982 and further clarified that after the said period such of those consumers who fail to receive supply at the respective higher voltages would have to pay additional charges as indicated in B.P.M.S.No. 607. 12. Feeling aggrieved by the above B.P.M.S.No. 607, High-Tension Consumers (H.T. Consumers) including the petitioner challenged the same. Accordingly, the petitioner filed W.P.No. 2700 of 1982 questioning the validity of B.P.M.S.No. 607. However, the Writ Petition came to be allowed along with the Batch of similar Writ Petitions by an Order dated: 26.10.1982. The said B.P. was quashed. Aggrieved by the said Order, the matter was carried in appeal by the Board in W.A.NO. 1003 of 1982 and Batch and the Division Bench allowed the same on 25.6.1987. Thereupon, the H.T. Consumers challenged the Order of the Division Bench before the Supreme Court in S.L.P. No. 8396 of 1988. The Supreme Court disposed of the Civil Appeal No. 793 to 807 of 1988 by a judgment dated: 8.3.1988 reported in HYDERABAD ENGINEERING INDUSTRIES LTD. Vs. A.P. STATE ELECTRICITY BOARD. The Supreme Court up held the power to require its consumers to receive energy at higher voltage and thereby, upheld the validity of the said B.P.M.S.No. 607, dated: 21.7.1981. The Supreme Court observed thus: “12……………………………………………………………..The fact remains that lower the voltage higher the transmission loss higher the voltage lower the transmission loss and it is also not in dispute that these appellants are high tension consumers consuming substantial power and therefore when power travels through transmission lines even for short distances it is not smaller quantities of power but heavy quantities of power are transmitted and in this view of the matter it could not be said that the policy decision taken by the Board to supply these high tension consumer power at high voltage so that transmission loss and transformation loss should be minimised could not be said to be any wrong decision or a decision not supported by scientific reasoning. As regards the contention that it was the duty of the Board to establish and maintain Sub-stations and main transmission lines and that it was not open to the Board to transfer this responsibility to the Consumers by requiring them to make their own arrangements to step down electricity after taking it at a high voltage, the Supreme Court while rejecting the said contention held as follows: ……….. Section 2, sub-clause (7) of the Act defines the main transmission lines but all this in sub-clause (7) of Section 2 refers to is about transmission of electricity from a generating station to another generating station or to a Sub- station. Apparently, it refers to all the lines and equipments required to be installed from the generating station to the distributing Sub-station. Apparently both being that of the Board itself it has to maintain it and on this basis it could not be contended that if the Consumer has to receive power at a higher voltage and if he wants to utilise it at a low voltage it is not his responsibility to install equipments for stepping down the power from high voltage to low voltage.” The Supreme Court also dealt in detail with the contention of the Consumers that the time of six months granted was too short considering the equipment required to be installed for the purpose of receiving energy at higher voltage and also for stepping down the voltage to the required levels by the Consumers themselves. The discussion in this regard in the judgment of the Supreme Court is relevant for the purpose of dealing with the questions raised in the present Writ Petition, which reads thus: “13. It was also contended that 6 months time granted was too short in view of the fact that these consumers were expected to install transformers and equipments which ordinarily are not easily available in this country and which involved high capital investment. It was also suggested that even the respondent-Board has not been able to lay lines for supply at high voltage as during the course of this litigation most of the appellants have accepted to receive the supply at the high voltage and the before it was contended that the enhanced rate for supply at low voltage which was brought into force immediately after six months of the issue of this notification is not only not justified as it was termed by learned counsel for the petitioners to be penal but it was contended that it is not reasonable as in spite of the fact that the petitioners accepted to receive supply at high voltage and some of them have even installed the transformers and other equipments but still Board was not in a position to lay supply lines for the high voltage supply of power and on this basis in substance it was vigorously contended that this enhanced rate should not be made chargeable from the date immediately after the expiry of six months after the issue of this notification. 14. In one of the cases i.e. A. P. Paper Mills it has been specifically alleged that in spite of the fact that the petitioner has installed a transformer but the respondent-Board could not lay down the lines as there was some injunction issued against the Board when the work for laying the lines started still although the Board is not in a position to supply the power at high voltage still the appellant is compelled to pay the higher rate as he is not receiving power at the high voltage indicated in the notification. 15. So far these aspects of the matter are concerned admittedly they were not before the High Court. Originally what was challenged in the High Court was the power of the Board to unilaterally alter the conditions of supply. This question about from what date the higher rates should be charged and as to whether grant of six months time to complete the preparation for receiving the supply at a higher voltage is reasonable or not were not before the High Court (single Judge) nor before the Division Bench and in fact, facts in respect of each petitioner on the basis of which these questions could be considered are also not before us although an attempt has been made by some of the appellants by additional affidavits and documents to place it before us. But it is not sufficient nor it is proper to decide these questions. After all the respondent-Board is, an authority under a Statute and if the appellants are able to satisfy the authority that the time of six months in the context of the circumstances when this notification was issued was not reasonable it is open to the Board to consider from what date to enforce the enhanced rates for supply at lower voltage taking into consideration all the cases and also keeping in view the circumstances in connection with installation of transformers and laying the lines which have come during the course of these hearings. It is also open to the Board that in the. Special facts of any particular case to provide a separate date for enforcement of the higher rate. But all these questions cannot be decided in the scope of the present appeals.” In the light of the above discussion, the Supreme Court left it open for consideration of the Board the question regarding imposition of the higher tariffs on failure of the Consumers to receive the supply of the voltage indicated in the notification at the rates specified therein or not, and gave liberty to the Consumers to approach the Board and left it open to the Board in the facts and circumstances of each case not to levy the surcharge indicated in the notification during a particular period after taking into consideration the facts and circumstances of each particular case. 13. It is also stated that during the pendency of the appeal, the Board issued B.P.M.S.No. 1014 (Commercial), dated: 13.12.1983 revising the tariff. The said tariff was brought into effect from 15.1.1984. Under the said B.P.M.S, a specific condition was added to the effect that existing H.T. Consumers, who are availing supply at a voltage less than specified voltage have to make necessary arrangements for changing the supply system so as to avail supply of the heavy voltage, failure to make such arrangements to receive supply at the specified voltage will attract the additional charge for low voltage compensating the Board against the transmission and transformation and cost of additional capital incurred at the rate specified. Notwithstanding the payment of additional charges specified the Board has also reserved right to terminate the agreement of such consumers, who are not availing such supply of voltage. By this Order, no option was left with the existing H.T. consumers except to make arrangements for receiving energy at the specified voltage and failure to do so entails termination of the agreement. 14. In pursuance of the observations made by the Supreme Court in the case referred to supra, the petitioner submitted representations dated: 17.3.1988, 19.3.1988 and further detailed representation dated: 1.4.1988 and requested the Board not to levy additional charges upto 25.6.1988, on which date the Board made available energy at 132 K.V. The petitioner submitted that the respondents were not at all in a position to supply the energy at 132 K.V. to the petitioner’s caustic soda unit, as the existing 132 K.V. supply line was laid only upto Kovvur village and no modifications were made to the existing 33 K.V. line between Nidadavole and Kovur by fitting necessary control and protection equipment. It is only after providing such equipment and making available the distribution main at Kovvur, respondents will be in a position to supply the energy and the petitioner will be in a position to receive such supply at 132 K.V. voltage. It is further stated that the respondents were required to lay the distribution line at Kovvur and for that purpose various works were to be undertaken to rectify the lines and until such time the above works are completed, it can not be said that 132 K.V. is available at Kovvur and then the petitioner unit can avail or received energy at 132 K.V. It is stated that it is only on 25.6.1988, the respondents completed laying the distribution unit at Kovvur for supply of energy at Kovvur through one circuit line and second circuit line was not made available. It is further stated that the respondents not only not completed control room but also did not set up the station and battery for operating circuit and they were at present using the petitioner’s equipment. It is stated that the respondents did not distribute the main line as to avail at 132 K.V. and number of instances were cited to establish that the respondents did not discharge their obligation to supply energy at 132 K.V. Detailed letters were also addressed right from 1982 on this issue. But, however, no response was forthcoming. It is further stated that on 25.11.1982, the Superintending Engineer, Rajahmundry, wrote a letter to the petitioner to acquire and hand over the site for arranging the erection of equipment. The same was replied and ultimately the land was acquired in August, 1987 and handed over the physical possession of the same to the respondents. Thereafter, the petitioner procured the equipment and made arrangements for erection of the Sub- station. It is also brought out in the Writ Petition that this Court on 24.9.1982 allowed the batch of Writ Petitions filed by H.T. Consumers challenging the validity of B.P.M.S.No. 607, dated: 21.7.1981. Subsequently, the Writ Petitions filed by the petitioner also came to be allowed on 26.8.1982, basing on the earlier judgments. Thereafter, the board preferred appeals and appeals were allowed on 25.6.1987. Therefore, during this interregnum, the Board did not take any effective steps to make available the energy at 132 K.V. at Kovvur and also did not finalise the site for point of supply, for the reason that the matter was sub-judice before the High Court in Writ Appeals. The Chief Engineer by a letter dated: 22.3.1988 requested the petitioner to deposit Rs. 19.39 lakhs towards the cost of work expansion of 132 K.V. supply to the petitioner as service line charges. The said amount was deposited with the respondents in the 1st week of March, 1988. However, it is observed the service line charges came to be collected only after 19.9.1985. Prior to that voluntary loan contribution (VLC) scheme was in existence and the scheme of service line charges was introduced through B.P.M.S.No. 693, dated: 19.9.1985. 15. It is also the case of the petitioner that the respondents did not take any steps to inform about the service line charges to be paid so as to make energy available at 132 K.V. by installing equipment and make necessary modifications. Even after 8.4.1988 also the respondents did not make available the energy at 132 K.V. till 24.6.1988. The respondents by a letter dated: 14.12.1988 informed to the petitioner that the said additional service line charges will be collected from 1.3.1983 instead of 1.3.1982. This relaxation was given to all H.T. Consumers. Under B.P.M.S.No. 607 the time fixed for change over was 1.3.1982. However, the respondents did not take into consideration the submissions made by the petitioner justifying that he was not liable to pay the additional charges. 16. The representation was however rejected by the Board in proceedings SE(Comml.)/III/248/88-3, dated: 14.12.1988 and 8.3.1989 without properly appreciating the contentions raised by the petitioner. In pursuance of the said Orders, the Superintending Engineer, Rajahmundry by letter dated: 10.1.1989 called upon the petitioner to pay a sum of Rs. 3,77,12,571.25 towards additional charges for the period from 1.3.1983 to 7.4.1988. However, on the representation of the petitioner the Superintending Engineer revised the additional charges and by his letter dated: 26.5.1989, the charges were calculated at Rs. 3,22,06,484-28. 17. It is the contention of the petitioner that terms of the agreement to receive supply of energy implies that the board is in a position to make available the required energy till such time that required energy is not available, and expression “to receive supply” would loose its meaning. The Division Bench in earlier Writ Petitions filed by the H.T. Consumers wherein the additional charges were demanded had considered in W.P.Nos. 2696 of 1989 and 4631 of 1989 and interpreted the said expression to the effect that until such time, the Board is in a position to supply the energy, the question of receiving the energy by the Consumers does not arise and only from the date it was in a position to supply, the Board is entitled to recover the additional charges. It is stated that the present case also stands on similar and identical footing and therefore, the learned Judge has quite rightly allowed the Writ Petition and there are no grounds to interfere with the Order of the learned Judge. 18. In the counter filed by the respondent, it is stated that the H.T. supply to the petitioner was released on 23.9.1960. As per the agreement entered into between the petitioner and the Board, the energy was supplied to the factory at 11 K.V. voltage