IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.01.2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.No.1961 of 2008 and M.P.No.1 of 2008 M/s.Binny Limited, Rep. by its General Manager, (Pers. & HRD), 106, Armenian Street, Chennai – 600 001. ... Petitioner .. Vs .. 1. The Chairman, Tamil Nadu Electricity Board, 144, Anna Salai, Chennai – 600 002. 2. The Superintending Engineer, Chennai E.D. Circle/Central, Tamil Nadu Electricity Board, Valluvarkottam, 110, KVSS Campus, Nungambakkam, Chennai – 600 034. ... Respondents Prayer:- Writ petition filed under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorari, calling for the records from the first respondent herein relating to his letter No.CE/Comml. / EET / AEE2 / F.HT.Tariff / Binny / CR.No.150/07, dated 05.10.2007 and the consequential demand issued by the second respondent to his letter No.SE / CEDC / C / DFC / AAO / HT / F.HT.2132, M/s.Binny / D. 07, dated 29.10.2007 and quash the same. For Petitioner : Mr.V.Venkattasamy For Respondents : Mr.A.Selvendran O R D E R This is the second writ petition filed by the petitioner to challenge the order passed by the Tamil Nadu Electricity Board against the demand of Rs.1,17,50,174/-. The consumption charges of the petitioner company were revised from Tariff HT I to HT Tariff VI and accordingly, a demand of Rs.1,17,50,174/- was raised. The petitioner, being dissatisfied with the demand, approached this Court by filing Writ Petition No.19882 of 1994, which was decided on 09.07.2003. https://hcservices.ecourts.gov.in/hcservices/ 2. The relevant portions of the judgment necessary for adjudication of this case are reproduced here under:- "3. The petitioner further submits that in November, 1982 the Government issued orders in G.O.Ms.No.2341 P.W.D. and Electricity Department, dated 29.11.1982 amending the schedule to Tamil Nadu Act 1 of 1979 relating to the conditions and rates for the electricity supply. The terms of the amended notification provide for all contract for power supply at H.T.Tariff-I the connected load under lighting and non- industrial purposes should not exceed the prescribed limits which was on a slab basis. According to the interpretation of the petitioner, in respect of contract for power supply at Tariff-I above 5000 KVA, the lighting and non- industrial loads should not exceed 5 per cent of the total connected load. However, the Government Order did not precisely define the meaning of the words "Non- Industrial loads" and "lighting loads". The petitioner further submits that on the introduction of the amendment as aforesaid, the petitioner had furnished details of their operation, particularly about the total connected load, industrial and non-industrial load and lighting load. But there was no response from the respondent/Board on the said subject. 4. The petitioners were being billed only at H.T.Tariff-I right from the beginning. During January, 1988, the officials of the respondent/Board made an inspection of the petitioner's mill and determined the lighting and non-industrial loads as amounting to 1434 K.V.A. The petitioners were required to pay the electricity consumption charges at H.T. Tariff VI on the ground that the lighting and non-industrial loads exceeded the permissible loads of 5 per cent of the total connected load. The petitioners were required to pay nearly Rs.2,00,000/- per month more than the amount which they are liable to pay on the basis of H.T. Tariff-I. Therefore, they had submitted a representation in April, 1988 bringing it to the notice of the respondent/Board that the action of the Board was irregular. However, without considering the issue to the shock of the petitioner, the respondent may made a demand for a sum of Rs.1,17,50,174/- along with the bill for the month of June, 1988. The petitioners addressed a letter to the second respondent on 01.07.1988 disputing the demand and also addressed letters to the higher authorities including the Hon'ble the Chief Minister. They had also brought to the notice of the Government that the mills had been sick for past two decades. However, without considering the objections, the respondents were insisting on the payment and hence the above writ petition. https://hcservices.ecourts.gov.in/hcservices/ 10. I have considered the submissions of both and in view of the manner of the disposal of the writ petition, it is not necessary to deal with the merits of the various contentions raised by both sides. The main dispute relates as to whether the overhead lighting in the factory could be treated as part and parcel of the machinery or not. The grievance of the petitioner is that in spite of the petitioner having taken the stand that the machineries cannot be run without the lighting facility, the respondents have not devoted their attention to the said issue. Learned counsel for the petitioner has rightly pointed out that in paragraph No.12 of the Ground-F, they have specifically stated that the lighting load in the Company which are integral part of the equipments, has to be classified as an industrial load and as integral part of the machinery/equipment. In terms of the clarification issued by the Board itself, if the lighting load is integral part of the machinery/equipment, then it has to be subjected only to Tariff-I. It has also been specifically raised that the lighting loads which are provided in the petitioner's Mills are inevitably required for the operation of the machinery and therefore, cannot be categorised as a non- industrial lighting load. A perusal of the counter affidavit shows that the respondents have not specifically dealt with the said stand taken by the petitioner. The respondents have to consider the liability of the petitioner on the basis of the actual state of affairs in the petitioner's Mills. The respondents cannot approach the issue in a hyper technical manner and have to assess whether the machinery could be operated without the aid of overhead lighting and whether the supply adjudged as non-industrial could be segregated. The contention that the Board cannot exclude the lighting which is required for running of the machinery, has to be considered in detail. 11. A perusal of the orders impugned herein, disclose that the respondents have not considered specific issues raised by the petitioner, but have proceeded only to give a general statement regarding the effect of the Government Order. In G.O.Ms.No.2341, dated 29.11.1982, though it is stated that the Committee went into the issues raised by the petitioner, no reasons are stated in the impugned order. Therefore, I am inclined to hold that the impugned demand is liable to be quashed on the ground of non-application of mind and the respondents should provide proper opportunity to the petitioner to substantiate their claims. 12. The proceedings of the Board dated 22.7.1988 dealt with the interpretation of the Board of G.O.Ms.No.2341, dated 29.11.1982 and how the nature of https://hcservices.ecourts.gov.in/hcservices/ consumption is to be differentiated between the industrial load and non-industrial load. 13. A perusal of the 20 items mentioned under "Non- industrial load" discloses that they mostly relate to outside and extra-curricular activities of the factory, such as canteen, guest-house, Swimming pool, etc., On of the items classified under "Industrial Load" discloses that the lighting loads will also be included if they are integral part of the machinery or equipment. Therefore, if the contention of the petitioner that the lighting was essential for the very running of the machinery is correct, then the petitioner's claim would positively fall under the Industrial load. There is yet another classification of "Lighting Load" which includes lighting in the shop-floor and laboratory premises including mobile lighting, yard lighting, security lighting, Ceiling, Pedestal and table fans and all other lighting loads other than those which are integral part of any machinery or equipment. It is also pertinent to note that Exhaust fan in the shop-floor, laboratory, and offices, water-cooler, water-heaters etc., are sought to be treated as "Industrial Load". Therefore, there has to be a proper consideration of the purpose for which the overhead lighting in the factory premises are put up and other items which the petitioner claims to be "Industrial Load". The impugned orders do not disclose any such detailed analysis and therefore, I am inclined to hold that the petitioner's company have to be provided with proper opportunity to substantiate their claim before the Tariff liability is conclusively decided. 14. In the result, the impugned orders are set aside with liberty to the petitioner to forward a proper representation to the respondents containing all comprehensive details regarding the manner in which the supply is utilised by the petitioner's Company. Thereupon the respondents may further inspect the "Mills" in the light of the points raised by the petitioner/Company and after giving a hearing to the petitioner, pass orders after considering all the issues raised by the petitioner in detail. The petitioner's Company is directed to file their comprehensive representation before the respondents within a period of four weeks from the date of receipt of a copy of this order and the respondents may proceed thereafter to fix up their own schedule for inspection and hearing of the petitioner. With the above observations, the writ petition is disposed of. The impugned orders are set aside and the writ petition is disposed of in the above terms. No costs." 3. The appeal filed by the respondent Board against the order passed by the Hon'ble single Judge was disposed of on https://hcservices.ecourts.gov.in/hcservices/ 12.07.2004 by upholding the order. After the disposal of the writ appeal, respondents have now passed a fresh order again with the same illegality as no reasons have been given to meet the contentions raised by the petitioner to the effect that the lighting load necessary for Industry was to be included in the connected load and not separately. The operative portion of the impugned order reads as under:- "Therefore no decision could be arrived. Further M/s.Binny Ltd., in their letter dated 08.10.2005 requested to withdraw the proposal of levy of excess lighting load and to refund of Rs.1 lakh paid by them. Based on the Hon'ble High Court direction in W.A.No.2122 of 2004 and based on the comprehensive representation filed by the petitioner on 08.01.2005, an enquiry was conducted in the chamber of SE/CEDC/Central with Mr.S.N.Sriram, Manager, B & C Mill on consumer side, on 26.02.2007. The consumer side representative has emphasized repeatedly and contended that the lighting loads as per the exhibit attached are integrated lighting load of the machinery and the functioning of the machinery designs are integrated with lighting load. These lighting load could not be separated and are essential for the functioning of the machinery. From the above fact, it is seen that the consumer has not made any objection of the usage of lighting load which are integrated to machinery and shall be treated as industrial. However in G.O.Ms.No.2341 (P.W) dated 29.11.1982 and B.P. Ms.No.35, dated 22.07.1988 orders have been issued specifically that the connected load under the lighting in HT Industrial Servises shall be only 5% of the maximum demand exceeds 5000 KVA. The permitted maximum demand of this service in this case at that time was 10,000 KVA and the permissible lighting load was 505 KVA. The total lighting load furnished by the company itself is 1434.227 KVA. The company has also agreed the utilization of lighting load energy during the enquiry and also in the comprehensive report which establishes the genuinity of utilization. Therefore, it is concluded that the tariff rate revision effected for the period from 01.12.1982 to 31.12.1987 amounting to Rs.1,17,50,174/- is quite reasonable and must be paid by company." 4. The reading of the order shows that the directions issued by this Court have not been complied with, and an order has been passed in mechanical manner to justify the demand as would be clear from the fact, that in previous writ petition it was pointed out that the petitioner had furnished details of its operation, https://hcservices.ecourts.gov.in/hcservices/ particularly about total connected load, Industrial and non- industrial load and lighting load. It was also noticed that the main dispute is as to whether the overhead lighting in the factory could be treated as part and parcel of machinery or not. The claim of the petitioner was that the lighting load in the company which are integral part of equipment has to be classified as an industrial load and as an integral part of machinery and equipment, in terms of clarification issued by Board to the effect that if lighting load is integral part of machinery/equipment then it has to be subjected to tariff I. 5. The positive direction issued by this Court was that the respondents have to consider the liability of the petitioner on the basis of actual state of affairs in the petitioner's mill and have to assess whether machinery could be operated without the aid of overhead lighting and whether the supply adjudged as non-industrial could be segregated. 6. The impugned order is silent on the points referred. It only shows that a deliberate attempt has been made to justify the demand, without meeting with or answering the points raised by the petitioner and recorded by this Court. 7. In view of the fact that on an earlier occasion, this Court had not gone into merit of the case to pass a final order, it would not be appropriate for this Court now to decide the controversy on merit. 8. Consequently, the writ petition is allowed, the impugned order is set aside and a direction is issued to the respondent Board to pass a fresh order with regard to the demand raised, after giving opportunity of hearing to the petitioner. The order should meet with the contentions raised by the petitioner by giving reasons for agreeing or disagreeing with the contentions. 9. The order be passed within three months of receipt of certified copy of this order. 10. The petitioner shall also be entitled to cost of this petition which are assured as Rs.10,000/-. 11. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ jrl To 1. The Chairman, Tamil Nadu Electricity Board, 144, Anna Salai, Chennai – 600 002. 2. The Superintending Engineer, Chennai E.D. Circle/Central, Tamil Nadu Electricity Board, Valluvarkottam, 110, KVSS Campus, Nungambakkam, Chennai – 600 034. + 1 cc to Mr.Selvendran, Advocate SR. W.P.No.1961 of 2008 GGK(CO) Eu 15.2.11 https://hcservices.ecourts.gov.in/hcservices/