1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR L.P.A. NO.22/2011 IN WRIT PETITION NO.1557/2008 M.S.E.D.C. WARDHA ..VS.. THE LOLYED STEEL INDUSTRIES LTD. & 2 ORS. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri K. H. Deshpande, Sr. Advocate & R.E.Moharir, Adv – appellant . Shri M.G. Bhangde, Sr. Advocate with Shri R.M.Bhangde, Adv. for Respondent no.1 CORAM : SMT. VASANTI A. NAIK & P.B. VARALE, JJ. DATE : JULY 20, 2011. The respondent no.1 is the consumer of the petitioner and the factory of the respondent no.1 is situated at Bhugaon which is about 8-10 K.M.from Wardha Railway Station. The respondent no.1 had asked for electric connection at its factory for the first time in May 1994 and the respondent no.1 was granted load of 9 MVA initially in pursuance of its contract demand. Later on the respondent no.1 asked for an additional load to the extent of 45 MVA and the same was granted. Thereafter, the same was raised to 55 MVA. then to 90 MVA and finally to 100 MVA on the demand by respondent no.1. Since the Maharashtra State Electricity Board had no arrangement to supply electricity to the place where the factory of the respondent no.1 was situated, the M.S.E.B. demanded an amount of Rs.3.50 crores for meeting the expenses for supply of the electricity to the factory at Bhugaon. A 2 plot admeasuring 250 meter x 250 meters was also demanded free of cost for installation of the power station at Bhugaon. After a plot of land admeasuring 250 meters x 250 meters was handed over to M.S.E.B. and the sum of Rs.350 crores was paid in installments, the M.S.E.B. granted the initial load of 9 MVA to the respondent no.1. The amount of Rs.3.50 crores was paid by the respondent no.1 to the M.S.E.B. for meeting the expenses for a load of 90 MVA. Later on when the respondent no.1 made a demand for an additional load of 10 MVA and a total load of 100 MVA, the respondent no.1 was made to pay an additional sum of Rs.65 lacs towards the expenses for supply of the additional load to the respondent on.1. It is necessary to note that from 100 MVA the demand was reduced by the respondent no.1 to 88 MVA and from 88 MVA to 56 MVA in the year 2001. The conditions of the contact entered into between the parties in the year 1994, however remained unchanged. The respondent no.1 thereafter wanted to increase the load from 56 MVA to 90 MVA. The supply of 90 MVA was restored to the respondent no.1 in June 2002 and a demand was raised in terms of letter dated 2.8.2001 for service line charges which according to the MSEB were agreed to be paid by the 3 respondent no.1, but in installments. Aggrieved by the said order of demand the respondent no.1 filed an application before the Consumer Grievance Redressal Forum, but the Forum by an order dated 26.11.2007 dismissed the application filed by the respondent no.1 and held that the respondent no.1 was liable to pay the amount of Rs.221 lacs for service line charges and 6.90 lacs for service connection charges as demanded by the M.S.E.B. The respondent no.1 made a representation against the order dated 26.11.2007 to the Ombudsman and the Ombudsman by an order dated 29.2.2008 held that the M.S.E.B. could not have demanded the amount towards service line charges and service connection charges. Against the order of the Ombudsman the M.S.E.D.C.L. filed Writ Petition No.1557/2008. The learned Single Judge by the judgment dated 7/8-9-2010 dismissed the writ petition. According to Shri K.H.Deshpande, the learned Senior Counsel appearing on behalf of the appellant, the respondent no.1 was liable to pay the service line charges and the service connection charges according to the conditions of supply and specially condition no.7 thereof. It is submitted on behalf of the appellant M.S.E.D.C.L. that the M.S.E.B. had informed the 4 respondent no.1 by the communication dated 2.8.2010 while permitting the reduction in contract demand that any further enhancement in contract demand would attract payment of service line and other charges as per the prevailing conditions of supply and hence the respondent no.1 was liable to pay the service line charges and service connection charges for securing an additional load from 56 MVA to 90 MVA. The learned Senior Counsel submitted that in view of condition no.7(i)(a) the consumer was required to pay the service connection charges to meet the total costs of work involved in effecting the supply facility and existing supply line at prescribed voltage. It is canvassed on behalf of the appellant that more particularly in view of condition no.7(v) every high tension consumer was liable to pay fixed service connection charges over and above the amount to be paid as per condition 7(i) for new loads demanded by him and in case of additional load, to the extent of the new demand i.e. excluding the load already connected. The learned Senior Counsel submitted that the term 'connected load' defined in condition no 1(h) means the sum of the rated capacities of all the energy consuming devices duly wired upto and connected to the power supply system on the consumer's premises, including 5 stand-by devices, if any. It is submitted on behalf of the appellant that the term “connected Load” does not have the same meaning as the term “load connected” which finds place in condition no.7(v) of the conditions of supply of the electrical energy. It is submitted on behalf of the appellant that the term 'load connected' does not mean 'connected load' and it is only referable to a contract demand. The learned counsel submitted that the words “including load already connected” in condition 7(v) of the conditions is not referable to the 'connected load', in this case. According to the learned counsel the demand of Rs.221 lacs for service line charges and Rs.6.9 lacs for service line was just and proper. Shri M.G.Bhangde, the learned Senior Counsel appearing on behalf of the respondent no.1 submitted that the appellant was aware that the appellant could not have demanded the amount of Rs.221 lacs under condition 7(i) of the conditions of supply and therefore it was canvassed on behalf of the appellant before the learned Single Judge that the entire demand was sought to be made under condition no.7(v) of the conditions of supply. It is submitted on behalf of the respondent no.1 that 6 while supplying the electricity to the respondent no.1 for the first time an amount of Rs.3.50 crores was paid to the M.S.E.B. as per its demand for making arrangement of the infrastructure for providing the load of 90 MVA. Hence according to the learned counsel when the demand of additional load was made on atleast three occasions the M.S.E.B. did not demand any additional charges while granting additional load to the extent of 90 MVA. It is submitted on behalf of the respondent no.1 that when the additional load, was sought to be increased from 90 MVA to 100 MVA an amount of Rs.65 lacs was paid to the M.S.E.B. as per the demand. According to the learned Senior Counsel, the contract demand increased or decreased from time to time, but the connected load remained 128628 since 7.12.1994 till this date. In such circumstances, according to the learned Senior Counsel, the appellant could not have demanded any amount for the service line charges or service connection charges. The respondent no.1 had already paid the charges for supply of load to the extent of 100 MVA and for granting load of 90 MVA there was no question of paying any service line charges or service connection charges. The infrastructural charges, according to the learned counsel as were required to be paid by condition no.7(i) 7 were already paid by the respondent no.1 for grant of load to the extent of 100 MVA. The learned Senior Counsel submitted that there is no distinction whatsoever between the terms 'load connected' and 'connected load' and the words 'load already connected' in condition no.7(v) are referable to the term 'connected load' as is defined in condition 1(h) of the conditions of supply. The learned Senior Counsel submitted that the Ombudsman and the learned Single Judge had rightly held that the appellant could not have made a demand of Rs.221 lacs towards the service line charges and an amount of Rs.6.9 lacs for service connection, in the facts and circumstances of the case. On hearing the learned counsel for the parties and on perusal of the relevant documents, it appears that the appellant was not justified in demanding Rs.221 lacs for service line charges and Rs.6.9 lacs for service connection charges. The Ombudsman had therefore rightly by the order dated 29.2.2008 held that the demand by the M.S.E.B. was not justified. The learned Single Judge also considered the conditions of supply and the facts and circumstances of the case to hold that the appellant had failed to demonstrate any demand of additional 8 load, within the meaning of condition 7(v) of the conditions to supply. The learned Single Judge found that the appellant was unable to point out even before the learned Single Judge that the respondent no.1 had sought any additional load excluding the load already connected, and that the appellant was justified in raising the demand. The learned counsel for the respondent is justified in submitting that the appellant could not have demanded Rs.221 lacs for service line charges under condition no.7(i) of the conditions of supply as those charges were payable for meeting service connection charges and the infrastructural expenses. The respondent no.1 was supplied the load of 100 MVA at one point of time and the infrastructural facilities were available for providing the load to the extent of 100 MVA when the respondent no.1 had fulfilled the additional demand of the M.S.E.B. for payment of Rs.65 lacs over and above the initial payment of Rs.3.50 crores. The appellant was also not entitled to demand the amount of Rs.6.9 lcas for service connection charges for the additional load demanded by the respondent no.1 from 56 MVA to 90 MVA as this additional demand was much below the connected load. It is difficult to accept that the terms 9 “connected load” and “load already connected” as they appear in condition nos.1(h) and condition 7(v) respectively carry a different meaning. In fact condition no.7(v) makes it clear that the service connection charges are payable in case of additional load only to the extent of the new demand which excludes the load already connected. The load already connected in this case was constant at 128628 MVA. In any case the appellant could not have demanded the service line charges and service connection charges when the respondent no.1 sought to raise the additional load from 56 MVA to 90 MVA as the infrastructural facilities were available for increase of the additional load to the extent of 100 MVA. In the facts and circumstances of the case, the learned Single Judge therefore rightly did not find any error with the order passed by the Ombudsman on 29.2.2008. We feel that the order passed by the Ombudsman on 29.2.2008 was just and proper and was therefore, rightly not interfered with by the learned Single Judge in exercise of the writ jurisdiction. In the result, the letters patent appeal is dismissed with no order as to costs. 10 JUDGE JUDGE SMP