THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.1396 of 2003 Dated:23.08.2011 Between: The A.P.State Electricity Board, And others. … Appella And M/s.Navabharat Ferro Alloys Ltd. ... Respond THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT APPEAL No.1396 of 2003 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) This appeal by the Andhra Pradesh State Electricity Board (APSEB) its two Officials is against the order and judgment dated 10.12.2001 W.P.No.634 of 1993 passed by the learned single Judge quashing order/letter of the first appellant dated 26.11.1992 and the consequential le dated 20.01.1993 of the second appellant. For the sake of convenience, in order we will refer to the parties as they are arrayed in the writ petition. The petitioner is a company incorporated in the manufacture of F Silicon. Under a High Tension (HT) Agreement they have at the relevant ti they are availing 17,000 KVA at voltage of 33 KV from the APSEB. T installed the necessary transformer and other equipment for receiving the po supply at their premises. They were charged the HT tariff as prescribed by first respondent and as per the agreement. In exercise of their powers un Section 49 of the Electricity (Supply) Act, 1948 (Electricity Supply Act), APSEB issued proceedings, being B.P.Ms.No.607, dated 21.07.1981. As the said notification, they notified amendments to HT tariff provisions. As condition No.1 therein, those HT consumers who are availing contrac demand upto 1500 KVA shall be supplied at voltage of 11 KV, those hav contracted demand of 1501 KVA to 5000 KVA, the supply shall be at voltage of 33 KV, and the consumers with a contracted demand of 5001 K and above, shall have to avail electricity supply at 132 KV or 220 KV as may decided by the Board. The notification further required all the HT consum who were availing supply at a voltage less than that specified hereinabov make necessary arrangements for changing their supply system within a pe of six months so as to avail supply at the above voltages. If there is any defa the notification stipulated charging additional charges for the low voltages compensating the Board against transmission and transformation losses cost of additional capital incurred. The additional charges ranged from 5% 10% leviable at the demand plus energy charges billed during the mont respect of HT consumers. The notification, dated 21.07.1981, was challenged by HT consumer this Court. They were allowed. The Division Bench, however, validated notification. In appeal before the Supreme Court, being Hyderab Engineering Industries Limited v A.P.State Electricity Board[1], the A Court dismissed the appeals affirming the findings of the High Court. contention was raised before the Supreme Court that when the Board w enabled to lay the lines for supply of high voltage insisting upon the installa of the equipment for receiving high voltage within a period of six months w unjustified. Insofar as this aspect is concerned, the Supreme Court gave lib to the consumers to approach the Board whether or not to levy the additio charge indicated in the notification during the period when it was not read supply high voltage electricity. After the decision of the Supreme Court in Hyderabad Engineer Industries Limited, the petitioner addressed a letter dated 29.03.1988 APSEB requesting time for installation of equipment on the ground that Board was not ready with the distribution main. Having considered the sa the Board decided to levy additional charges from 01.03.1983 to 20.11.19 The decision was communicated by the Member Secretary of the Board v letter dated 14.12.1988. The consequential orders dated 03.08.1991 w issued by the second respondent informing that the CC bills for the period f 20.11.1987 to 13.01.1989 are revised and consequent thereto an amoun Rs.2,30,13,576.75 ps is withdrawn and credited to the petitioner’s account. petitioner then addressed a letter dated 04.11.1992 informing that distribu main was not ready and that the levy of additional charges till the high volt electricity was made available is unjustified. On consideration of representation, the first respondent by communication dated 26.11.1 informed the petitioner that the Board decided to charge transformation los at 1% instead of 3% and that the demand and energy recorded du 20.11.1987 to 12.01.1989 will be multiplied by a factor of 1.01 and that revi demand will be issued by the second respondent. Consequent thereto, second respondent by letter dated 20.01.1993 requested the petitioner to an amount of Rs.15,36,898/- being the transmission losses of 1% and recor maximum demand and energy for the above mentioned period. These letters were impugned in the writ petition. The second respondent filed counter affidavit opposing the writ petit inter alia, making a submission to the following effect. After considering representation of the petitioner, the Board considered the difficulty procurement of equipment within six months and stipulated 18 months passed orders withdrawing additional charges at 7.5% from 01.03.1982 01.03.1983 and decided to levy additional charges from 01.03.1983 20.11.1987. Again when the petitioner made a representation the Bo decided to levy 1.15% additional charges from 20.11.1987 to 12.01.1 towards transmission losses incurred in supplying power at 33 KV even tho the Board is not in a position to supply the power at 132 KV and enhance 3% to compensate the Board. Again when the petitioner made representation, the Board decided to charge 1% instead of 3% and accordin the second respondent demanded Rs.15,86,989/-. Learned single Judge referred to the decision of the Division Benc Associated Cement Companies Limited v APSEB[2] and applying its r came to the conclusion that levy of additional charge at 1% on the petitio even though the Board was not in a position to supply high voltage electricit unjustified and violative of Article 14 of the Constitution of India. Accordin the writ petition was allowed. Learned Counsel for APSEB, Sri N.Subba Reddy, submits that whe the Board was not in a position to supply high voltage electricity is a questio fact, and therefore, the same would not have been gone into by the lear single Judge. Secondly, he would submit that an averment in paragraph the counter affidavit (sworn on 30.06.1999 by the second respondent) to effect that, “…even though the Board is not in a position to supply power at KV…” is the obvious mistake and the word “not” should be ignored w considering the effect of the averment made in the counter affidavit. Accord to him, the Board was ready even by November 1987 to supply electricity at KV, and therefore, the demand for the period from 20.11.1987 to 12.01.198 justified. Sri Challa Gunaranjan, learned Counsel for the writ petitioner/ respondent herein, submits that either before the learned single Judge or be this Court the Board has not placed any material in support of their allega that the Board was ready by November 1987 to supply electricity at 132 KV the absence of any such material the ratio in Associated Cement Compan Limited applies to the facts of the case. He also relies on Andhra Prad State Electricity Board v Andhra Sugars Limited[3] and an unrepo judgment dated 19.07.2011 in KCP Limited v APSEB[4] in support of contention that when the Board is not ready to supply the electricity at required voltage, they are not entitled to levy additional charge under notification dated 21.07.1981. There cannot be any dispute with regard to the general probation tha a proceeding for a writ of certiorari, the determination of the facts by the finding authority is considered to be final. The certiorari Court ordinarily wo not interfere with the fact finding authority. But, in a case where the v existence of the basic facts and the exercise of statutory power in rela thereto is put in issue, it becomes necessary even for a certiorari Court to cal the proof of material which weighed with the fact finding authority in arriving conclusion before applying the principles of law (see State of U.P v Johri [5]). In Associated Cement Companies Limited interpreting condition N in the notification the Division Bench of this Court held that, “…additio charges could be imposed only if the Board was in a position to supply ene at the higher voltage and yet the consumer was not ready to receive suppl the specified higher voltage. Otherwise, it would lead to unreasonable absurd result that even though the Board was not in a position to supply energy at the higher voltage, the consumer should pay for not receiving energy at the higher voltage. It would not be unreasonable for the Boar charge for the period consumer was not in position to receive supply whe fact the Board was not ready and prepared to supply the energy at the hig voltage.” Yet again in Andhra Sugars Limited another Division Be observed that when the Board fails to discharge its obligation to make availa supply of 132 KV energy, it cannot levy additional charge as per notification. Another Division Bench in KCP Limited also took the similar vie If the Board justifies and sustains the impugned letters relying B.P.Ms.No.607, dated 21.07.1981, the burden is certainly on them to show they were ready to supply high voltage energy and that lapse is on the pa the HT consumer to avail it, which resulted in transmission and transforma losses. Before us the Board has not placed any material to show that there w distribution main and distribution line ready for the petitioner to avail electr at 132 KV. Therefore, we do not feel compelled to interfere with the order of learned single Judge. The submission of the Counsel for the Board with regard to the cou averments is belated and unacceptable. Indeed, as rightly pointed out by learned counsel for the petitioner, a reply was filed denying the same, an spite of the same, no material is placed before this Court to show that the Bo was ready to supply energy at 132 KV. Further, no such plea was raised be the learned single Judge, and at the stage of appeal, the Board cannot permitted to raise such a plea when no effort was made to prove the pleading The writ appeal, therefore, fails and is accordingly dismissed with cos _____________ (V.V.S.RAO ________________ (K.G.SHANKAR .08.2011 vs [1] AIR 1988 SC 985 [2] 1996 (4) ALT 1011 (DB) [3] 2004 (6) ALT 303 (DB) [4] W.A.No.881 of 2003 [5] AIR 2004 SC 3800