IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24.11.2008 Coram: THE HONOURABLE MR. JUSTICE M. JAICHANDREN W.P.No.1798 of 2003 P.Parthasarathy ...Petitioner Vs. 1. The Chairman, Tamil Nadu Electricity Board, Chennai-600 002. 2. Executive Engineer / O & M, TNEB/MES, Egmore II, Revenue Branch 23, Malayappan Street Seven Wills, Chennai. ..Respondents Prayer: Petition filed seeking for a writ of Certiorarified Mandamus to call for the records relating to the Circular Memo No.8E/IEMC/EE7/AEE1/AE1/Tailoring/99-1 (Technical Branch) Dt. 14.9.1999, and to quash the same as null and void and also without jurisdiction and consequently restraining the respondents from implementing the impugned order LR.No.EE/EGM/AAO/ERB/AS VIII- A/F.BOAB/D.2/02, 28.12.2002 as null and void. For Petitioner : Mr.M.Jayabalan For Respondents : No Appearance O R D E R Heard the learned counsel appearing for the petitioner. No appearance on behalf of the respondents. 2. The petitioner has stated that he is a tailor by profession. He has been running a Tailoring Shop under the name and style of 'Kagoshima stylos' at No.25, Audiappa Street, I Floor, Chennai-600 079, for the past 20 years. He was having 15 Tailoring Machines and One Iron Box. Some of the Tailoring Machines and the Iron Box are power oriented. The electricity connection has been in his father's name with Electricity Account No.152-14-46. https://hcservices.ecourts.gov.in/hcservices/ 3. It has been further stated that there are various kinds of Tariffs being levied by the respondents depending upon the actual use for which the electricity connection is utilised by the consumer. Originally, the electricity supply to the petitioner's shop was classified under Tariff IX. Since the petitioner's Tailoring unit was registered as a Small Scale Cottage Industry with the Directorate of Industries, the Government of Tamilnadu, vide D.Dis.No.03980/B6/98, dated 13.3.1998, a Provisional Certificate had been issued by the said Department. During the relevant period, the Cottage Industries were eligible for concession in Electricity Consumption Charges. The said benefit was extended to the petitioner's unit, as per the order No.EE/CEDC/Egmore ALS/AS/152:14:46/D871/98, dated 7.10.1998. The said order was endorsed on the White Card by the concerned authority. The normal consumption by the petitioner's unit would be from 2500 to 4900 Units for every two months. The average consumption charges would be between Rs.12,000 to Rs.19,000/-. 4. It has been further stated that by virtue of the change of Tariff, the petitioner became entitled to the reduced rate of consumption charges. After the change in Tariff, the petitioner's consumption charges were between Rs.5,000/- and Rs.8,000/-, once in every two months. While so, the second respondent, by a letter No.EE AAO/ASVII/A/BOAB/AUDIT/D 43-2001, dated 4.1.2002, had called upon the petitioner to pay a sum of Rs.94,742/- due to the non- adoption of the correct tariff, as pointed out by the auditors of the Tamil Nadu Electricity Board, during the audit of accounts for the period from 1999-2000. Inspite of the representation made by the petitioner, the second respondent, by a letter,No.EE/O & M/EGMR/AAO/RB/SWPT/EGMR-II/AS-VII/F-BOAB/A/C152-14-46/D.600/2002, dated 18.6.2002, had passed an order, assessing the short levy of consumption charges and the audit short fall amount of Rs.1,19,055/-, with a direction to pay the said amount in 10 equal monthly instalments. 5. It has been further stated that the said order had been issued without following the principles of natural justice, as no notice had been issued to the petitioner. The concession given to the petitioner, by changing Tariff IX to Tariff III, had been withdrawn, without a notice having being issued to the petitioner. The unilateral withdrawal of the concessional rate, with retrospective effect, is arbitrary and illegal. Therefore, the petitioner has filed the writ petition in W.P.No.24575 of 2002, before this Court, challenging the demand made by the respondent Electricity Board. This Court, by an order, dated 10.7.2002, had set aside the order issued by the respondent Electricity Board and the petitioner was directed to make a representation to the second respondent, justifying his claim for classifying its tailoring unit under Tariff III. https://hcservices.ecourts.gov.in/hcservices/ 6. It has been further stated that the petitioner had submitted a written representation, dated 31.7.2002, justifying the concessional rate of tariff granted in favour of the petitioner. By a letter, dated 2.9.2002, the petitioner was called upon to attend an enquiry, on 11.9.2002. The petitioner had attended the enquiry and submitted a representation, dated 12.9.2002. The second respondent had sent a reply, on 21.9.2002, enclosing Circular Memo No.SE/IEMC/EET/AEE1/AEI/Tailoring/99-1 (Technical Branch), dated 14.9.1999, wherein the reasons for not extending the concessional tariff to the petitioner's tailoring unit have been stated. In the said circular, it was admitted that in G.O.Ms.No.566, Rural Development and Local Administration Department, tailoring was included as a Cottage Industry. However, since the classification had been done before 30 years, it would not have any relevance to the present classification. The petitioner has stated that such a stance taken by the respondent Electricity Board cannot be held to be valid, since the circular cannot have a overriding effect over the Government Order in G.O.Ms.No.566, Rural Development and Local Administration Department. In response to the letter of the petitioner, dated 4.10.2002, the respondents had forwarded a copy of G.O.Ms.No.115 Energy (A2), dated 19.7.1978, claiming that the said Government order reflects the correct tariff for the tailoring unit. However, a reading of the said Government order had disclosed that the Concessional Tariff had not been withdrawn for the Tailoring units. The said Government order stipulated the revision of tariff to all categories of electricity supply. Once again, the petitioner had written a letter, dated 2.12.2002, clarifying the position. However, the respondents, without considering the representation of the petitioner, had passed a final order, bearing L.R.No.EE/EGM/AAO/ERB/AS/VIII/A/F.BOAB/D/21/02, dated 28.12.2002, determining the short fall amount at Rs.1,13,505/- and calling upon the petitioner to pay the said amount, within 15 days from the date of receipt of the said order. In such circumstances, the petitioner has filed the present writ petition before this Court, under Article 226 of the Constitution of India. 7. Inspite of several adjourments having been granted, no counter affidavit has been filed on behalf of the respondents. Further, the records pertaining to the matter have not been produced before this court. 8. In view of the submissions made by the learned counsel appearing for the petitioner, it is seen that the revision of tariff has been made in respect of the electricity service connection of the petitioner's Tailoring Unit, without issuing any notice to the petitioner. The concessional rate of tariff allowed to the petitioner's tailoring unit, by classifying it as Tariff III from Tariff IX, had been withdrawn, unilaterally, by the respondent Electricity Board and the impugned order, dated 28.12.2002, had https://hcservices.ecourts.gov.in/hcservices/ been issued directing the petitioner to pay the short fall amount of Rs.1,13,505/-, within fifteen days from the date of receipt of the said order. No proper reasons have been given by the second respondent, while passing the impugned order, dated 28.12.2002. 9. Further, it is not the case of the respondents that the concessional rate of electricity tariff has been allowed in respect of the petitioner's tailoring unit, as a Cottage Industry, due to the misrepresentation or fraud committed by the petitioner. While so, it has not been shown by the respondent Electricity Board that the petitioner could be directed to pay the electricity charges for the earlier period, when the petitioner's tailoring unit was classified under tariff III, based on the report of the BOAB Audit. The short fall in the payment of the electricity tariff by the petitioner cannot be held to be due to the fault of the petitioner. The imposition of increased electricity tariff by unilaterally withdrawing the concession granted to the petitioner's tailoring unit in its electricity consumption charges, without issuing a notice to the petitioner, is clearly contrary to the principles of natural justice and therefore, it is arbitrary and invalid in the eye of law. Any such increase could have been made only after issuing a show cause notice to the petitioner and as provided under the terms and conditions relating to the supply and distribution of electricity. 10. At this stage of the hearing of the writ petition, the learned counsel appearing for the petitioner had submitted that the petitioner would pay the revised tariff from the month of July 2002. Therefore, the amount of Rs.50,000/-, deposited by the petitioner to the second respondent pursuant to the order passed by this Court, on 29.9.2003, in W.P.M.P.No.2238 of 2003, in W.P.No.1798 of 2003, may be adjusted to the revised tariff due to be paid by the petitioner from the month of July, 2002, as per the revised tariff applicable to the petitioner's tailoring unit. However, it is open to the respondent Electricity Board to initiate appropriate steps, in respect of the shortfall amount said to be due from the petitioner, by following the procedures established by law by issuing a show cause notice to the petitioner and by affording an opportunity to put forth his case. The writ petition is ordered accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chairman, Tamil Nadu Electricity Board, Chennai-600 002. 2. The Executive Engineer / O & M, TNEB/MES, Egmore II, Revenue Branch, 23, Malayappan Street, Seven Wells, Chennai. + 1 c.c. to Mr. N. Jayabalan, Advocate. S.R.No.65747. W.P.No.1798 of 2003 VS (CO) GSK 30.12.2008. https://hcservices.ecourts.gov.in/hcservices/