IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21/10/2003 CORAM THE HONOURABLE MR. JUSTICE E. PADMANABHAN W.P.No. 18864 of 2002 and W.P.Nos. 18865, 41148 to 41153, 22293, 22294, 22295 to 22298, 24492 to 24497, 26437 to 26446, 32770, 32771, 34659, 34660, 35014, 35015, 35127, 40878 to 40881, 41744, 41745 of 2002, and 523, 524, 525, 526, 3910, 3911, 4571, 4572, 8852, 8354 to 8357 of 2003 and WPMP and WVMP Nos:60904, 60906, 60908, 60910, 60912, 60914/2002, 160 to 165/203, 25952, 25954 of 2002, 634,635/2003 30796, 30798/2002 618, 619/2003, 30800, 30802, 30804, 30806 of 2002, 614 to 617 of 2003, 336 81, 33683, 33685, 33687, 33689, 33691/2002, 620 to 625/2003, 36850, 36853,36855, 36857, 36858, 36860, 36862, 36865, 36866, 36869/2002, 794 to 803 of 2003, 48752, 487542002 626, 627 of 2003, 51664, 51666/2002, 262,263/2003, 52136, 52138/2002, 260,261/2003, 52256/2002, 264/2003, 60536, 60538, 60540, 60542/2002, 628 to 630, 632/2003 61718, 61720/2002, 631, 633, 625,627, 629,631,4927, 4929, 5794, 5795, 11337, 10696, 10698, 10699 and 10702 of 2003 W.P.No:18864 of 2002 Dindigul Spinners Association (Regn No:330/97) No.27-28, Matha Buildings, main Road, Dindigul 624 001 rep. By its Secretary Dr.P.Periathambi. ..Petitioner -Vs- 1. The Secretary to Govt., Govt., of Tamil Nadu Energy Department Fort St. George Chennai-9 2. The Chief Electrical Inspector to Govt., Thiru Vika Industrial Estate Guindy, Chennai-32 3. Tamil Nadu Electricity Regulatory Commission rep. By its Chairperson, Seethammal Colony, Alwarpet Chennai-18. ..Respondents Writ Petitions preferred seeking for the relief of writ of certiorari to quash G.O.Ms.No:30 and 31, Energy (B.1) Department dated 1.4.2 002 issued by the first respondent as stated therein. !For petitioners: Mr.R.Thiagarajan,S.C., Mr.R.S.Pandiaraj, Mr.Palani Selvaraj, Mr.Kamalanathan, Mr.Sivanandham, For Respondents: Mr.N.R.Chandran, Advocate General, Mr.R.Raghupathy, Additional Government Pleader Mr.N.Srinivasan, for Tamil Nadu Electricity Regulatory Commission. :COMMON ORDER In these batch of writ petitions either the Association or the individual writ petitioners challenge the Notifications issued by the Government of Tamil Nadu in (1) GO (MS)No: 30 Energy (B.1) Dept., dated 1.4.2002 (2) GO (MS)No: 31 Energy (B.1) Dept., dated 1.4.2002 The said two Notifications were issued by the first respondent, Secretary to Government of Tamil Nadu, Energy Department simultaneously and the petitioners have prayed for quashing of both the Government Notifications. 2. It may not be necessary to refer to the details of the petitioner or petitioner associations as it has not bearing nor any special point has been raised in respect of the particular petitioner or petitioner association. Further no objections have been raised by the respondents as to the maintainability of the writ petitions by the association. 3. The petitioners are consumers of High Tension Electricity and they are subjected to periodical inspection by the Electrical Inspectorate in terms of Rule 46(1)(a) as well as Rule 63 of the Indian Electricity Rules, 1956. For such inspections, hitherto the rate of inspection fees were collected as fixed in terms of Rule 7 (2) and 46(2) (a) of the Indian Electricity Rules 1956. By the impugned Government Orders, the rate of fees have been increased to the tune of 300% and above, besides fixing different periodicity of inspection for different connections under Rule 46. According to the petitioner the many fold increase on and after 31.3.2003, is arbitrary, and such increase has been notified in violation of principles of natural justice without affording an opportunity or without hearing the consumers or without publishing a preliminary notification and calling for objections from the consumers or trade. It is alleged that hitherto it has been the practice to publish a preliminary notification at the first instance calling for objections or suggestions before revising the rate of inspection fee and after considering the objections or representations the State Government used to issue the notification. Such was being the practice and it was in conformity with the principles of natural justice. In violation of the same, the sudden increase has been notified by increasing the rates of fees to several hundred times. 4. It is contended that there is obligation on the part of the respondents to afford an opportunity and this failure vitiates the notifications. It is further pointed out that directing annual inspection and payment of annual fees is not contemplated by the Rule 46 and by the impugned Notifications annual inspection has been made compulsory and as a matter of routine when such annual inspection is not a mandatory requirement. 5. It is pointed out that the inspections are only ceremonial inspections in nature as the entire installation of High Tension is being installed or erected only under the strict control and supervision of qualified engineers or certified license holders for such installations. It is claimed that every Electricity consumer appoints a qualified Electrical Engineer of its own who possess C Certificate issued by the Chief Electrical Engineer to the Government and they are only maintaining the High Tension electrical installations. That apart APTS (Anti Power Theft Squad) is making periodical inspection regarding theft, unauthorised installation, electrical safety etc., Besides very many engineers from the Electricity Board also periodically inspect the High Tension installations. Therefore fixing an annual inspection is not only repetitive in nature but it does not serve any new purpose and totally unwarranted and uncalled for. Notifications are contrary to Rule 46 (1)(a) which envisages such periods on an intervals of not exceeding five years. Therefore the direction to have annual inspection as a mandatory one runs counter to Rule 46 (1)(a) and the consequential imposition of annual fee is also illegal and arbitrary and it is a compulsory extortion of a huge sum in the guise of inspection fees. 6. It is contended that there is no nexus between the enhanced fee revising the periodicity of inspection as one year under the impugned Notifications and the objectives of such inspection and the inspections which are only ceremonial in nature and the sole object being earning revenue or motive being to extract more money from the High Tension Consumers like the petitioners. It is a gross violation of principles of natural justice and the impugned Government Orders are liable to be quashed. There is no justification for the exorbitant increase of fees by the impugned Notifications. Further there could be an inspection once in five years, but making annual inspection compulsory subject to payment of annual fees is arbitrary and runs counter to the statutory rule 46. Therefore the impugned Notifications in so far as it makes it compulsory to have annual inspection and subject to payment of annual inspection of fees is arbitrary and runs counter to the statutory rule. 7. It is contended that the Government Orders were issued in violation of principles of natural justice. It is further contended that the impugned G.Os were issued by the first respondent without jurisdiction after coming into force of the Tamil Nadu Electricity Regulatory Commission notified in the Electricity Regulation Commission Act, 1998. It is further pointed out that the services rendered is only minimal and there is no quid-pro quo Even the existing rate of fee will not withstand the scrutiny of quid pro quo, not to speak of 30 0 to 400% in revision of rates. Therefore the impugned orders are unfair, arbitrary, offends Art.14 of The Constitution. 8. It is further contended that there is no nexus between the enhanced fee imposed, revising the periodicity of the inspection as one year and the objectives of such inspections as the inspections are only ceremonial in nature and the Government Orders obviously meant to extract more money or more revenue from the High Tension Electricity consumers like the writ petitioners or the members of the petitioner associations as the case may be. Hence the present writ petitions. 9. A common counter affidavit has been filed on behalf of the first and second respondent. The third respondent has just adopted the counter affidavit filed by the first respondent. According to the first respondent, the Electrical Inspectorate Department functions under the Administrative control of the Energy Department of Government of Tamil Nadu. The Chief Electrical Inspector is the Head of the Department under whom senior Electrical Inspectors, Assistant Electrical Inspectors and Junior Electrical Inspectors function. Section 36 of the Indian Electricity Act, provides for appointment of Electrical Inspectors. Rule 4(A) provides for appo intment of officers to assist the Inspectors. Rule 7 (2) of the Electricity Rules confers power on the State Government to levy such fees for testing and inspection and revise the same from time to time by a general or special order or remit any portion of the fees as the S tate or Central Government may deem it. Rule 46 of the Indian Electricity Rule 1956 provides for periodical inspection and testing of installations. Rule 46(1)(a) provides for inspection and testing of consumers' installations at intervals not exceeding five years. By the impugned G.O (Ms)Nos.31 Energy (B.1) Department, dated 1.4.2002, the State Government has made inspection of the consumers installations to be periodical in respect of various class of consumers. In respect of High and extra High Voltage consumers the installations have to be inspected once in a year, medium voltage consumer installations once in three years and low voltage consumer installations once in five years. Rule 63 of the Rules makes provision with respect to electric supply lines, systems and apparatus for high and extra high voltage and very many services have to be performed by Electrical Inspectorate who inspect from time to time and conduct tests. The inspection is not ceremonial as sought to be alleged. Rule 63 contemplates approval of high voltage and extra high voltage installations by Electrical Inspectorate. 10. The respondent has set out the nature of functions discharged by the Chief Electrical Inspector and the stages or process of approval as hereunder:- "18. The designer, namely the Professional Engineer and the Customer desire to ensure whether their proposal meets the requirements of:- a. Indian Electricity Rules, 1956, b. Wiring Regulations specified in the National Electrical Code issued by Bureau of Indian Standards c. Compliance of Indian Standard Specifications in electrotechnical field issued by the Bureau of Indian Standards. And hence the customer for his own interest requires the services of the Chief electrical Inspectorate to scrutinise, check up the drawing proposal, and to offer technical opinion/remarks of the drawing proposal. This service is rendered to the person who requests the same even though such a service is not statutorily contemplated in Rule 63 of the Indian Electricity Rules; of course such a service is done only after payment of service charges in accordance with the rates specified in Sections I to VI of Schedule III of the G.O.Ms.No.30 Energy (B,1) Dept., dated 1st April 2002, which is in supersession of the orders containing the rates for such services in G.O.Ms.NO.2501, PWD, dated 7.12.1989.The current rates of fees prescribed is nominal, compared to the expenditure involved towards the establishment for technical staff and other paraphernalia for this purpose, building up of infrastructure of technical library containing books of Indian Standards, International electro technical Commission Standards in electro technical field, books in electrical engineering technology, and books in other allied fields of engineering, Journals and Periodical Publications relating to electrical industry. If the customer/ Professional Engineer does not desire the Chief Electrical Inspectorate to scrutinise, check up the drawing proposal and get technical opinion, and they themselves are confident that the statutory requirements are fulfilled in their design, they have rights to skip this first stage and step in to the second stage of the process of approval under Rule 63 of Indian Electricity Rules 1956, detailed below. 19. The second stage of the process of approval under Rule 63 of Indian Electricity Rules 1956 is detailed below: The customer engages an electrical contractor licensed under subrule (1) of Rule 45 of Indian electricity Rule, 1956, the Selections of contractors are made by the customer and his Professional consultants. The quantity surveyor of the designer of electrical installation measures the quantities of labour and material necessary to complete the electrical installation work; the size and quantity of all the materials, cables, control equipment's and accessories are determined, and called "bill of quantities". The electrical contractor completes the electrical installations work to the appropriate standards or the agreed cost. 20. As the erection of electrical installation progresses, it often becomes necessary due to constrains faced during the practical erection of the electrical works to modify the positions of certain equipments indicated on the layout drawings and /or to change the feeder/ final circuit arrangements indicated in the single line distribution drawings; thus the original intentions of the designer get changes. Hence, when the installation is completed, a set of drawings, indicating the final positions of all electrical equipment and final electrical distribution arrangement with all electrical data incorporated in the drawings are produced and they are called as fitted drawing. Initial inspection and testing report for the fitted completed electrical installation is produced to the Electrical Inspector along with treasury receipt for having paid the fees for inspection and testing in accordance with scale of fees prescribed in the Schedule I in G.O. Ms.No.30 Energy (B.1) department dated 1.4.2002. The general practice of according approval in writing under Rule 63 of Indian Electricity Rules 1956 is based on inspection and checking the compliance of the provisions of Indian Electricity Rules by Electrical Inspectorate Department Officers; also provisional approval in writing under Rule 63 of Indian Electricity Rule, 1956 are also accorded pending inspection, based on the completion certificate and test report of the licensed Electrical Contractor and his competency Certificate holder; inspection is carried out post approval under Rule 63 of Indian Electricity Rules, 1956. 11. With respect to issue of approval in terms of Rule 63 of the Rules, the procedures have been elaborated by the respondent in the following words: a. On-site check inspection, and to carry out tests or b. To accord provisional approval in writing under Rule 63 of Indian Electricity Rule, 1956 is based on the Completion Report and Test Report of the licensed Electrical Contractor and the client, permanent approval is accorded after carrying out inspections at a later date along with other inspection programme in that area considering the administrative convenience. 12. It is contended that Rule 7(2) of the Rules enables the State Government to levy such fees for testing and inspection and generally for the services of the inspectors or officers appointed to assist the Inspectors as of made from time to time by general or special orders, direct. 13. It is claimed that sub rule (2) of Rule 7 empowers the State Government to levy fees for testing, inspection and generally for the services of inspectors or any officers appointed to assist the inspector from time to time. By general or special order, the State Government has to fix the levy of such fees for testing and inspection and generally for the services of electrical Inspectors by the impugned G.O.Ms.No:30, Energy (B.1) Department dated 1.4.2002. 14. Rule 46(2)(a) confers powers to determine the fees for such inspection and testing as may be determined by the State Government. In exercise of such powers, G.O.Ms.No:31, Energy (B.1) Department, dated 1.4.2002 has been issued fixing the rates of fees for such inspections and testing. By the impugned Government Orders the Government has revised the rates of fees for inspection and testing with effect from 1.4.2002 in supersession of the earlier notifications which were in force since 12.8.1987. The Government also issued orders revising the periodicity of inspection and testing of consumer installations with effect from 1.4.2002 in supersession of the earlier orders issued on 12.8.1987. 15. In para 28 of the Counter affidavit, the Government has compared the scale of inspection fee for periodical inspections under Rule 46 of the rules which was in force prior to 1.4.2002 and the new rates which came into force on 1.4.2002 in respect of medium voltage, High Tension voltage and various other installations and it is pointed out that the increase is not many fold as sought to be contended. 16. It is pointed out that in terms of Section 38 only before introduction or amendment of rules, a publication has to be made and after considering the representations or objections the rule has to be made. Such publication is required by giving three months notice. Section 37 contemplates publication of rules in the Gazette published by the Government of India. The Central Electricity Board is the rule making authority who is also the competent authority to amend the rules. It is claimed that from time to time levy of rates of inspection fees have been varied either under Rule 7(2) or under Rule 46(2) and at no point of time there was a previous publication inviting objections as alleged and such an averment is incorrect. 17. The contention that there must be some correlation between the fees fixed and the services rendered in return for it is untenable. The rates of inspection fees revised by the respondent State Government is more or less the same as to the rates of inspection fees fixed by the Government of India and the Government of Karnataka. Such revision has been notified strictly in accordance with the Rule 7 (2 ) and 46(2) of the Rules. The revision is not arbitrary. It is further stated that revised rates of inspection fee has been fixed taking into consideration of the following points:- "The old rates were fixed 14 years and 7 months before and thereafter there has been a general increase in the cost of things due to increase in the salary of officers and other staff in the establishment of Electrical Inspectorate due to implementation of revises scales of pay recommended by the Pay Commissions after 1987, increase of Dearness Allowance, increase of Traveling Allowance etc., Before fixation of fee, correlation between the fee fixed and the services rendered in return for it was taken into consideration; however it was also taken note that it is not practically possible that the levy shall have direct correlation to the actual services rendered in each case to an individual called upon to pay; however, it is ensured that the same type of service is rendered to all persons." 18. It is pointed out that period inspections of High and Extra High Tension voltage consumer installations inclusive of their medium and low voltage installations once in a year was ordered in the year 1963 and since then the same has been in force. The practice of periodical inspection once in a year was not objected to by the High voltage and extra high voltage consumers from the year 1963 and the grievance expressed in this respect is without any basis. 19. It is claimed that various arrangements have been made including training, conducting examinations and licensing A-Grade, BGrade or C-Grade contractors or licensees which involve lot of expenditure. The Tamil Nadu Electrical Licensing Board was constituted for the grant of certificate of competency to wireman and supervisors and licensers, electrical contractors in terms of Rule 38 of the Indian Electricity Rules. The respondent has elaborated the nature of job executed by electrical contracting industry. The respondent has also detailed the role played by professional electrical technicians or Engineers in the design, installation or erection of installations in various type of industries or domestic buildings or commercial buildings as the case may be. The Electrical Contractors are expected to carry out the work only in accordance with the specifications of Standards and Bill of Quantity in the contract. 20. The details of procedure namely the submission of application with diagrams and various provisions in terms of the existing rules have been indicated in para 51 and 52 of the counter affidavit. The respondent has also detailed the electrical loads installed in each factory and the requirement of a qualified person who is in charge of electrical installations or generation or transmission or transformation, conversion, distribution or use of energy. The rules also provide for appointment of an authorised person by the management of the factory for ensuring observation of the safety provisions as contemplated in the Electricity Act and the Rules. 21. Various avermnets set out in the affidavit have been denied. Rule 5 of the Electricity Rules provide for entry and inspection and the purpose of inspection either by Assistant Engineer or Executive Engineer or Superintending Engineer or by the Chief Engineer of the Tamil Nadu Electricity Board to check the compliance of terms and conditions of Supply, taking meter reading of the electrical consumption etc., The consumer is obliged to pay fees for the inspection and testing by any person as and when they receive the services. The inspection fees are not exorbitant and the levy is reasonable and more so when the revision has been made after 14 years and 7 months. It is contended that periodicity of inspection once in a year is not revised and periodicity of inspection once in a year is existing from the year 1963 and the same is being continued. The rates of fee fixed is reasonable. They are neither arbitrary, nor excessive. The fee fixed by the impugned G.Os is fair and reasonable and no interference is called for. The periodicity of inspection has not been revised for the first time, but it has been in existence since 1963 and such annual inspection once in a year is continued as was done hitherto. The practice of periodical inspection once in a year was not objected to by the High voltage and extra High Voltage consumer from the year 1963 and it was taken for granted that the consumers are satisfied with the procedure so far adopted or periodicity of inspection. The petitioners are estopped by their conduct in this respect. The respondents have prayed for dismissal of these writ petitions while submitting that both the impugned G.Os are legally sustainable and they are not liable to be interfered by this court. 22. Heard Mr. R.Thiagarajan, learned senior counsel appearing for Mr.R.S.Pandiaraj, Mr.Palani Selvaraj, Mr.Kamalanathan, Mr.Sivanandham, learned counsel appearing for the petitioners Mr.N.R.Chandran, learned Advocate General assisted by Mr.R.Raghupathy, learned Additional Government Pleader for respondents 1 and 2 in all the writ petitions and Mr.N.Srinivasan, learned counsel appearing for the third respondent- Tamil Nadu Electricity Regulatory Commission in all the writ petitions. 23. The points that arise for consideration in these batch of writ petitions are:- (1) Whether the levy of inspection fees in terms of the Indian Electricity Act and the Rules is regulatory in nature or a fee collected for the services rendered warranting quid pro quo? (2) Whether the procedure followed in the revision of rates and periodicity of inspection are violative of principles of natural justice and not in conformity with the Indian Electricity Rules 1956? (3) Whether the fee or charges for inspection of Electrical Installations is excessive or disproportionate to the services rendered and liable to be quashed as arbitrary and offending Art.14? (4) Whether the rate of fees fixed for investigation and inspection for evaluation of electrical undertakings or for any inspection, examination as revised by G.O.Ms.No.30 Energy (B.1) Department dated 1.4.2002 is liable to be quashed as one not authorised by law, arbitrary and offends Art.14 of The Constitution? (5) Whether the fees fixed for the inspection in terms of clause (a) of sub rule (2( of Rule 46 of the Indian Electricity Rules as detailed in Schedule and appended to G.O.Ms.NO.31, Energy (B.1) Department, dated 1.4.2002 is liable to be quashed as arbitrary or excessive, expropriatory, offends Art.14 of The Constitution? (6) Whether G.O.Ms.No.31, Energy (B.1) Department, dated 1.4.2002 fixing the periodicity of inspection of the consumers installations runs counter to the provisions of the Indian Electricity Act or the Rules framed thereunder and liable to be quashed as illegal, arbitrary? (7) To what relief if any the petitioners are entitled to? 24. Mr.R.Thiagarajan, learned senior counsel appearing for all the petitioners leading the arguments heavily relied upon the pronouncement of the Supreme Court in Krishi Upai Mandi Samithi Vs. Orient Paper Industries Ltd., reported in 1995 (1) SCC