IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE G.V.SEETHAPATHY WRIT APPEAL NO : 2183 of 1998 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 29-11-1998 in W.P.No.15149 of 1988 on the file of the High Court.) Between: 1. The A.P.State Electricity Board, Rep.by its Secretary, Vidyut Soudha, Somajiguda, Hyderabad. 2. The Senior Accounts Officer, Operation Circle, A.P.S.E.B., Khammam, Khammam District. ..... APPELLANTS A N D M/s Sri Vishnu Cements Limited, Seethapuram, Dhondpadu, Nalgonda District, Rep.by its Managing Director, K.S.N.Raju .....RESPONDENT Counsel for the Appellants: MR.O.MANOHER REDDY Counsel for the Respondent: MR.D.V.NAGARJUNA BABU The Court made the following: THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.A.No.2183 OF 1998 JUDGMENT: (Per the Hon’ble Sri Justice V.Eswaraiah) Heard the learned Standing Counsel for the appellants/respondents and the learned counsel for the respondent/writ petitioner. 2. The appellants are the Andhra Pradesh State Electricity Board. The respondent herein, which is a cement manufacturing company, ﬁled W.P.No.15149 of 1988 praying to issue a writ of mandamus declaring the action of the 2nd respondent in levying the penalty on the energy proportionate to the excess demand recorded over and above the contracted demand, as highly illegal and arbitrary, if necessary by striking down the operation of Clause 7 of B.P.Ms.No.671 (Commercial) dated 10-06-1987 (for short ‘Clause 7’) insofar as it provides for billing twice at normal charges on the energy consumption. 3. By judgment dated 27-11-1998, a learned Single Judge of this Court allowed the writ petition declaring that the appellants herein are not entitled to levy or collect any penalty on the energy consumed by the writ petitioner proportionate to the demand exceeded and that the amount of such penalty, if any, collected from the writ petitioner under the bill dated 28-09-1988 shall be refunded or adjusted towards the future bills of the writ petitioner. Aggrieved by the same, the appellants/APSEB ﬁled the present writ appeal contending that the learned Single Judge having referred to the judgment of the Apex Court in A.C.MILLS V. A.P.S.E.B (AIR 1976 SC 2414), wherein it was held that the Board has got power under Section 49 of the Electricity (Supply) Act, 1948 to regulate supply and to ﬁx higher rates for consumption of excess energy and that without striking down or declaring Clause 7, as void, illegal and arbitrary, allowed the writ petition under the teeth of the above referred clause. 4. Sri O.Manoher Reddy, learned Standing Counsel for the appellants/APSEB would contend that admittedly the Contracted Maximum Demand (C.M.D) is ﬁxed at 15000 KVA and the writ petitioner exceeded the CMD by 1320 KVA during the month of September 1988. He would further contend that as per Clause 7, if in any month the recorded maximum demand of a consumer exceeds the contracted demand by more than 5%, that portion of the demand in excess of the contracted demand and that portion of the proportionate energy will be billed twice the normal charges towards demand, energy and fuel cost adjustment charges; that there is a method in issuing every bill consisting of three components viz., demand, energy and fuel cost adjustment charges; that admittedly the recorded maximum demand exceeded by 5% of the contracted demand and as such the consumer is liable to pay twice the normal charges and that as per the terms and conditions of the contract, the writ petitioner is bound by Clause 7 and unless and until the said clause is held to be illegal or declared as null and void, the writ petitioner is bound to pay twice the normal charges towards demand, energy and fuel cost adjustment charges and, therefore, the bill dated 28-09-1988 was rightly issued. 5. The learned counsel appearing on behalf of the respondent/writ petitioner would submit that the learned Single Judge having been satisﬁed that the appellants are not entitled to collect any penalty from the writ petitioner on the so called excess energy consumed by the writ petitioner proportionate to the demand exceeded and noting the fact that the appellants subsequently deleted Clause 7 by B.P.M.S.No.225 dated 16-10-1990, rightly allowed the writ petition. 6. No doubt the learned Single Judge has not declared Clause 7 as illegal or arbitrary and if that be so, we are of the opinion that unless Clause 7 is declared as illegal or arbitrary and the same is struck down, the writ petitioner is not entitled to any relief. Therefore, as the legality and validity of Clause 7 has not been decided, though challenged, we are of the opinion that it is just and proper to set aside the order under appeal and remand the matter to the learned Single Judge. 7. Having regard to the facts and circumstances of the case, without expressing any opinion with regard to the merits of the case and the rival contentions advanced by both the counsel, the judgment under appeal is set aside and the writ appeal is allowed and the matter is remanded to the learned Judge Single for fresh disposal. __________________ V.ESWARAIAH, J ______________________ G.V.SEETHAPATHY, J 14th October, 2008 Lrkm