IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2009 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN W.P.No.14070 of 2009 and M.P.No.1 of 2009 M/s.M.V.R.Infracture Tollways (P) Ltd., Rep. by the Executive Director ... Petitioner Vs 1. Tamil Nadu Electricity Board, Rep. by the Chairman, 800 Anna Salai, Chennai 600 002. 2. The Superintendent Engineer, TNEB Salem Electricity Distribution Circle, udayampatty, K.N.Colony Post, Salem 636 014. ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the records of the second respondent in lr.No.SE/SEDC/AOR/HT/A2/F/HT SC 250/ D746/09 dated 22.6.2009 and quash the same as illegal and direct the second respondent to refund the difference of commercial and industrial tariff collected from the petitioners with interest. For Petitioner : Mr.S.Sivanandam For Respondents : Mr.A.Selvendran O R D E R The case of the petitioner is as follows: The petitioner is a private limited company. They are Civil Contractors carrying on National Highway four laning work. Petitioners do have their stone crushing unit at Parapatty village https://hcservices.ecourts.gov.in/hcservices/ with HT SC No.250 within the jurisdiction of the second respondent with a permitted load of 1500 KVA. This service connection was obtained to the crushing unit only, which is an industrial activity. Thus, the service connection given was only for an industrial purpose and the tariff applicable is an industrial tariff and the same is being levied on the petitioner company. The petitioner company was also paying the same as per the demand made by the respondent board. While so, the petitioner received a demand from the second respondent on 22.06.2009 calling upon the petitioners to pay a sum of Rs.38,68,011/- being the short levy of current consumption charges, worked out on the basis of Commercial tariff and the difference in commercial and industrial tariff was claimed. The reason for claiming commercial tariff was audit objection. The second respondent has not given any other reason for changing the tariff from industrial tariff to Commercial tariff to the petitioner's unit. It was also stated by the second respondent that future bills would also be revised under commercial tariff. Though the petitioner made a representation to the respondents, the June month bill received on 29.6.2009 was also raised under commercial tariff. Apprehending disconnection, the petitioners have paid June month bill under protest. Thereafter, in and by letter dated 13.7.2009 the petitioner made a representation to the respondents spelling out the details of the activities carried on in the unit having HT SC 250 and reiterated that correct tariff applicable is only industrial tariff and not Commercial tariff. Since the demand is arbitrary and illegal, the above writ petition has been filed for the aforesaid relief. 2. I have heard the learned counsel appearing for the petitioner and Mr.A.Selvendran learned counsel appearing for the respondents. I have also gone through the documents available on record. 3. The learned counsel for the petitioner would contend that the petitioner company operating stone crushing unit producing blue metal jelly is purely an industrial activity and the tariff applicable is industrial tariff only and not commercial tariff. If the revision is made by the respondents from industrial tariff to Commercial tariff on 22.06.2009 that too on the basis of the audit objection, then in all fairness, the respondents ought to have given notice to the petitioner to explain their case. Without any opportunity, the industrial tariff which was granted to the petitioner has been changed unilaterally, that too, after two years. The learned counsel for the petitioner also adds that the petitioner was issued with a Certificate by the Tamil Nadu Pollution Control Board to the effect that it operates an industrial plant. Therefore, the learned counsel for the petitioner would contend that the order passed by the second respondent is in violation of principles of natural justice and the same is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 4. Per contra, the learned counsel for the respondent would submit that because of the objection raised by the audit department that the industrial Unit of the petitioner would attract only commercial tariff and not industrial tariff, the letter dated 22.6.2009 was sent by the second respondent, calling upon the petitioner to make good the short fall amount. Therefore, it cannot be said that the order has been passed without any basis. Hence, he prays for dismissal of the writ petition. 5. I have considered the rival submissions carefully. 6. Admittedly, the stone crushing unit run by the petitioner company at Parapatty village was provided with HT service connection bearing SC No.250 with a permitted load of 1500 KVA, under industrial tariff in December 2007 by the respondents. At the time when the respondents sanctioned the loan and extended the service connection, the respondents were very well aware that the petitioner company was having a stone crushing unit and doing industrial activities. While so, on the ground of audit objection, the impugned letter dated 22.06.2009 has been sent changing the tariff from industrial to commercial and the huge shortfall amount was claimed from the petitioner. Admittedly, there was no prior notice sent to the petitioner nor the petitioner was called upon to offer their explanation for change of tariff. When the change of tariff is sought to be made by the respondents it gives rise to a civil consequences and therefore, an opportunity ought to have been given to the petitioner company. Therefore, on the ground that there was no opportunity given to the petitioner, the impugned order is liable to be interfered with. Further, in this case, from December 2007 till the date of revision, the petitioner company was charged under industrial tariff and they have been paying the same. While so, arbitrarily, by a stroke of pen, the tariff has been changed from industrial to commercial which cannot stand in the eye of law. 7. Therefore, I am of the considered view that without giving an opportunity to the petitioner, the impugned order has been passed by the second respondent which suffers from infirmity and illegality and the same is liable to be set aside. It is always open to the respondents to call the petitioners for enquiry and pass orders in consultation with the petitioners for change of tariff. 8. In the result, the writ petition is allowed. The impugned demand dated 22.6.2009 made by the second respondent is set aside. Consequently, the matter is remanded to the Superintending Engineer, TNEB Salem Electricity Distribution Circle, Udayampatty, K.N.Colony Post, Salem 636 014, the second respondent herein to enable him to call the petitioner for an enquiry in respect of the change of tariff from industrial to commercial and pass an order on merits and in https://hcservices.ecourts.gov.in/hcservices/ accordance with law. Till such order is passed, no demand could be made against the petitioner under commercial tariff and the bills should be raised only on the basis of industrial tariff. No cost. M.P.No.1 of 2009 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vaan To 1. The Chairman, Tamil Nadu Electricity Board, 800 Anna Salai, Chennai 600 002. 2. The Superintendent Engineer, TNEB Salem Electricity Distribution Circle, udayampatty, K.N.Colony Post, Salem 636 014. 1 cc To Mr.S.Sivanandam, Advocate, SR.33137 1 cc To Mr.J.Ravindran, Advocate, SR.33677 W.P.No.14070 of 2009 and M.P.No.1 of 2009 BK(CO) PMK.26.8.2009. https://hcservices.ecourts.gov.in/hcservices/