U.P. Avas Evam Vikas Parishad & Anr vs U.P.Power Corpn Ltd

1. The appellant herein, the Uttar Pradesh Avas Evam Vikas Parishad (hereinafter referred to as, the U.P. Avas Evam Vikas Parishad), is a statutory body constituted under the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965. The U.P. Avas Evam Vikas Parishad has been engaged in development of colonies, residential plots, residential houses, as well as, commercial plots and complexes throughout the State of Uttar Pradesh (U.P.).

2. The U.P. Power Corporation Ltd. (hereinafter referred to as, U.P. Power Corporation) is the successor of the U.P. State Electricity Board (hereinafter referred to as, UP, SEB). It has been the statutory duty of the UP, SEB (and thereafter, the U.P. Power Corporation) to erect transmission lines, associated distribution sub-stations and L.T. distribution mains, throughout the State of U.P. The aforesaid activity has also been carried out by the UP, SEB (and thereafter by the U.P. Power Corporation) in colonies/multistoried buildings, developed/raised in the State of U.P. The aforesaid statutory duty is cast on account of the fact, that the said authorities are "designated licensees", for supply and distribution of electricity, under section 26 of the Electricity (Supply) Act, 1948. The aforesaid provision has been re-enacted as a part of section 86 of the Electricity Act, 2003.

3. The UP, SEB (and thereafter, the U.P. Power Corporation) used to exclusively carry out its legal obligations, of erection of transmission lines, associated distribution sub-stations and L.T. distribution mains, throughout the State of U.P., as a "designated licensee". The aforesaid activity was also carried out in colonies/multistoried buildings by the aforesaid, again as a "designated licensee". For carrying out the said activities in colonies/multistoried buildings, the concerned depleting agency was required to deposit with the "designated licensee", the estimated cost of 3 the transmission lines, associated distribution sub-stations and L.T. distribution mains. The said work was entrusted to the UP, SEB (and thereafter, the U.P. Power Corporation) as "deposit work".

A perusal of the aforesaid Government order reveals, that no supervision charges were prescribed as payable by the U.P. Avas Evam Vikas Parishad to the UP, SEB.

5. Supervision charges were levied by the UP, SEB for the first time through an office memorandum dated 17.1.1984. At the aforesaid juncture, the UP, SEB was pleased to levy 5% of total estimated cost of the electrification work as supervision charges. The memorandum dated 17.1.1984 prescribing 5% as supervision charges, was applicable for housing boards, local development authorities and NOIDA who opted to carry out on their own, the work of erection of transmission lines, associated distribution sub-stations, and L.T. distribution mains in the colonies/multistoried buildings promoted/raised by them. The office memorandum dated 17.1.1984 laid down the following pre-conditions to be fulfilled by the housing boards/local development authorities/NOIDA who were desirous to take up the aforesaid electrification activity on their own:- 5

6. On 24.4.1998, the UP, SEB (presently, the U.P. Power Corporation) issued another office memorandum, whereby the supervision charges were revised upwards from 5% to 15%. As per the office memorandum dated 24.4.1998, the aforesaid supervision charges were payable in respect of residential/non-residential, single/multi-storied building complexes and colonies; developed by public enterprises, private builders and promoters. Based on the memorandum dated 24.4.1998, higher supervision charges were demanded from the appellant. Disputing the applicability of the memorandum dated 24.4.1998, the U.P. Avas Evam Vikas Parishad (i.e., the appellant herein), addressed representations to the "designated licensee" asserting, that the memorandum dated 24.4.1998 was not applicable to it. The appellant herein claimed, that supervision charges were recoverable from it, as per the earlier office memorandum dated 17.1.1984. The various representations made by the appellant (i.e., the U.P. Avas Evam Vikas Parishad) came to be rejected by the U.P. Power Corporation on 10.10.2001.

7. The appellant herein assailed the order dated 10.10.2001 by preferring an appeal before the Uttar Pradesh Electricity Regulatory Commission, Lucknow. On 30.7.2002, the Uttar Pradesh Electricity Regulatory Commission held, that the appeal preferred by the appellant herein was maintainable. Accordingly, notices were issued to the U.P. Power Corporation. Thereafter the matter came to be finally adjudicated on merits, vide an order dated 3.2.2006. The appeal preferred by the U.P. Avas Evam Vikas Parishad was allowed. The operative part of the order dated 3.2.2006 is being reproduced hereunder:-

Accordingly, inspite of the office memorandum dated 24.4.1998, the U.P. Avas Evam Vikas Parishad was allowed to pay supervision charges at the rate of 5%, as were prescribed by the office memorandum dated 17.1.1984.

8. It, however, emerges from the operative part of the appellate order dated 3.2.2006, that it had been held that the payment of supervision charges at the rate of 5% (under the office memorandum dated 17.1.1984) was permissible only upto 6.6.2002 i.e., upto the date preceding the date from which the Electricity Supply Code, 2002, came into force. It would be pertinent to mention that the Electricity Supply Code, 2002 became enforceable with effect from 7.6.2002. The inference emerging from the appellate order dated 3.2.2006 was, that supervision charges with effect from the date of the enforcement of the Electricity Supply Code, 2002, would be governed by the said Code. This determination at the hands of the Uttar Pradesh Electricity Regulatory Commission was not acceptable to the U.P. Avas Evam Vikas Parishad (i.e., the appellant herein). It is, therefore, that the U.P. Avas Evam Vikas Parishad preferred an appeal before the Appellate Tribunal for Electricity, assailing the determination of Uttar Pradesh Electricity Regulatory Commission to the effect, that supervision charges as prescribed by the office memorandum dated 17.1.1984, would be applicable only upto 6.6.2002. The challenge raised was that the appellant herein could not be required to pay supervision charges stipulated under the Electricity Supply Code, 2002. The appeal preferred by the U.P. Avas Evam Vikas Parishad was dismissed by the Appellate Tribunal for Electricity on 7.3.2007. Dissatisfied with the order 9 dated 7.3.2007, the U.P. Avas Evam Vikas Parishad has preferred the instant Civil Appeal.

13. For the reasons recorded hereinabove, we find no merit in the instant Civil Appeal and the same is accordingly dismissed.

October 18, 2011.