Judgment · High Court · 2012

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 2.8.2012CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition Nos.11101 and 11102 of 2012andM.P.No.1 of 2012 in both Writ Petitions Best Cotton Mills, HTSC No.129,(Unit of Best Corporation Limited),SF No.113, Chitravuthampalayam Village, Pollachi Road, Dharapuram-638 657,represented by its Manager,P.Muthukrishnan. ... Petitioner in W.P.No.11101 of 2012 Balu Spinning Mills Pvt. Ltd.,HTSC No.197,C.Ammapatti, Ellis Nagar Post, Dharapuram-638 657,represented by its General Manager,V.Myilsamy. ... Petitioner in W.P.No.11102 of 2012vs.

The Chief Engineer (Distribution), Tamil Nadu Electricity Board, P.B.No.2940, Coimbatore-12.

The Superintending Engineer, Udumalpet Electricity Distribution Circle, Tamil Nadu Electricity Board, Udumalpet-642 126. ... Respondents in both W.Ps.Both Writ Petitions are filed under Article 226 of the Constitution of India praying to issue a Writ of CertiorarifiedMandamus, calling for the records of the second respondent in hisletter No.SEU/UDT/AEE/GL/AE/SDM/F.HT GL/D.No.0513/12 dated12.03.2012, quash the same as unsustainable in law and consequentlydirect the respondents 1 and 2 to install dedicated feeder videapplication dated 21.07.2005. https://hcservices.ecourts.gov.in/hcservices/ For petitionerin both W.Ps. : Mr.AR.L.Sundaresan, Senior Counsel for Mr.R.S.PandiyarajFor respondentsin both W.Ps. : Mr.S.K.RameshwarCOMMON ORDER Both Writ Petitions are filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the secondrespondent in his letter No.SEU/UDT/AEE/GL/AE/SDM/F.HTGL/D.No.0513/12 dated 12.03.2012, quash the same as unsustainable inlaw and consequently direct the respondents 1 and 2 to installdedicated feeder vide application dated 21.07.2005.2. Mr.S.K.Rameshwar, learned standing counsel appearing for theelectricity board takes notice on behalf of the respondents. Byconsent both the writ petitions are taken up together for finaldisposal.

The two petitioners are private limited companies and have aseparate high tension electricity service connection. PetitionerBest Cotton Mills draw electricity supply under HTSC No.129 and thepetitioner Balu Spinning Mills Pvt. Ltd., draw electricity supplyunder HTSC No.197. In view of the power crisis prevailing in the State, the petitioners wanted to avail power through third partysources to meet their industrial consumption requirements and forthis purpose wanted to install a dedicated feeders since no loopingof the injected energy is possible in categories of consumers in thevicinity. The dedicated feeder line, according to the petitioners, will help the petitioners as well as Board to arrest or stop leakageof electricity. For this purpose, on 21.7.2005, the two petitionersmade a joint application to the second respondent to provide aseparate 22 KV feeder to the petitioners industries. This wassanctioned by the second respondent vide letter dated 21.12.2005 andthe petitioners were directed to remit a sum of Rs.9,24,960/- infavour of the respondent Board.

At the outset, Thiru AR.L.Sundaresan, learned senior counselfor the petitioners states that the demand of Rs.62,30,286/- inrespect of HTSC No.129 of Best Cotton Mills is subject matter of an https://hcservices.ecourts.gov.in/hcservices/ order of interim stay passed by this Court in W.P.No.18789 of 2010 byorder dated 17.8.2010 and that interim order is extended from time totime. Insofar as the Balu Spinning Mills is concerned interim staywas granted on 22.12.2010 and extended until further orders inW.P.No.28008 of 2010, against the demand for a sum of Rs.72,43,126/-from M/s.Balu Spinning Mills towards short levy of excess demand dueto non implementation of quota demand. He, therefore, submitted thatthe impugned orders demanding the remittance of the outstandingarrears for considering the applications for the dedicated feederline, cannot be justified.

Learned senior counsel for the petitioners referred to Tamil Nadu Electricity Distribution Code 2004 which prescribes themanner in which the distribution of the electricity supply should beregulated or facilities refused. He referred to section 27 of the Tamil Nadu Electricity Distribution Code, 2004 and it reads asfollows:-"27. Requisitions for supply of energy:- (1)The provision regarding the duty of Licensee asdetailed in section 43 of the Act to supplyelectricity on request is reproduced below: (1)Save as otherwise provided in this Act, every distribution licensee, shall on anapplication by the owner or occupier of anypremises, give supply of electricity to suchpremises, within one month after receipt of theapplication requiring such supply:provided that where such supply requiresextension of distribution mains, or Commissioningof new sub-stations, the distribution licenseeshall supply the electricity to such premisesimmediately after such extension or Commissioningor within such period as may be specified by the Appropriate Commission. Provided further that in case of a village orhamlet or area wherein no provision for supply ofelectricity exists, the Appropriate Commission mayextend the said period as it may considernecessary for electrification of such village orhamlet or area. Provided that the licensee will refuse tosupply electricity to an intending consumer whohad defaulted payment of dues to the licensee inrespect of any other service connection in hisname. "(emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

According to the learned senior counsel for the petitioners, as per the third proviso to Section 27 of the ElectricityDistribution Code, the respondent licensee can refuse to supplyelectricity to an "intending consumer" who had defaulted payment ofdues to the respondent licensee in respect of any other serviceconnection in his name. It should mean that if a new serviceconnection is sought for by a party and if there is a default inpayment in any other service connection standing in petitioner'sname, then they can refuse. In the present case, all that thepetitioners asking is for the dedicated feeder/transmission line tothe existing service connection on payment of necessary charges whichhas been paid already. There is no restraint in granting such abenefit if the petitioners comply with the requirement for grant ofsuch facility. The one and only reason given by the authority isthat certain amount is due as outstanding in respect of the HTService connection of the two petitioners. According to the learnedsenior counsel for the petitioners, the respondent authority hasfailed to take into consideration that the demand made in respect ofthe two HT Service Connection are subject matter of pending writpetitions challenging the respondents demand and interim ordersstaying such demand has been passed. The said interim orders areextended from time to time. The respondent Board has not chosen tovacate the said order. Therefore, the demand of the said amountwhich are subject matter of pending litigation before this court willamount to disobeying the order the High Court and seeking recoveryindirectly what they failed to do directly. The respondentauthorities have conveniently and deliberately ignored the interimorder of the court, while making the said demand as a preconditionfor grant of the facility. There is no reference to the pendingwrit petition and the interim orders in the impugned proceedingseven though the very same Superintending Engineer is a partyrespondent in the earlier writ petitions. This will establish thecolourable exercise of power and arbitrariness in their approach.

Learned counsel for the respondent on the other hand reliedon the decision of the learned single Judge in W.P.No.12507 of 2011dated 23.11.2011 M/s.Vishnuvardhan Paper Mills (P) Ltd., - vs. -Tamil Nadu Electricity Board and two others to contend that the orderof stay in respect of the two HT Service Connection would only enablethe petitioners to enjoy uninterrupted power supply. The stay isonly with regard to the enforcement of demand which form the subjectmatter of those writ petitions. It doe not preclude the departmentto seek payment of dues for other benefits sought for. He referredto the order to state that the order of stay granted by this Courtdoes not obliterate the demand made for all purposes. If thepetitioners want the dedicated feeder line, they have to pay thepending dues. Since the petitioners seek other facility, despitethe interim order of stay, the respondent authority has a right toinsist on the payment of above amount. https://hcservices.ecourts.gov.in/hcservices/

In sum and substance, learned counsel for the respondentrelied upon para 41 of the order dated 23.11.2011 passed in W.P.(MD)No.12507 of 2011 which reads as follows:-"41. Therefore, it is clear that all thecompanies are closely held family companies. Hence, there was nothing wrong in the respondentsdemanding payment of the dues of those companies, which form the subject matter of other writpetitions. The petitioner contends that thedemand of the amounts whose collection is stayedby this Court in the other writ petitions wouldamount to a circumvention, if not contempt of thestay orders of this Court. But this contentioncannot be accepted. The stay granted by this Court in the writ petitions filed by the sistercompanies of the petitioner, would go only so faras to enable those writ petitioners to enjoyuninterrupted supply, subject to the compliancewith all other usual conditions, except the demandfor payment of the charges made under the ordersimpugned in those writ petitions. What is stayedis only the enforcement of the demand, which formsthe subject matter of those writ petitions. Thestay does not obliterate the demand made for allpurposes whatsoever. Therefore, when thepetitioner herein or the petitioners in those writpetitions seek any other facility, which does notform part of the subject matter of those writpetitions, the respondents would naturally have aright to insist upon payment of those amounts. "The facts in that case are different from the facts of the presentcase and can be distinguished. This is not a case of group ofcompanies defaulting in payment so as to lift the corporate veil. Thepetitioner Companies have filed the earlier writ petitions andobtained interim orders. In any event, demanding payment for otherfacilities despite interim orders of court would amount to negatingthe order passed by the Constitutional Court. By no stretch ofimagination one can accept that interim order of a writ court can beoverridden by an executive authority on the plea of providing otherfacility. The prescription as to what are other facility should bespecific and supported by Act, Rule or Regulation. It cannot begenerally stated that for seeking other facility the payments shouldbe made, despite orders of writ court, interim or final.

A counter-affidavit is filed in W.P.No.11102 of 2012 andparas 10, 14 an 16 reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "

I further submit section 5(2)(IV) of the Tamil Nadu of the Tamil Nadu Electricity SupplyCode 2004 states that no addition or reduction ofload in case of LT service and no addition orreduction of demand in case of HT service, may besanctioned unless the outstanding dues in the sameservice connection had been paid. Hence Anoutstanding amount of Rs.72,43,126/- (Rupeesseventy two lakhs forty three thousand one hundredtwenty six only) is pending to be paid by thepetitioner. ""14. I further submit that under theprovision of regarding the duty of licensee asdetailed in the section 43 of Electricity Act,2003 to supply electricity on request by theconsumer, and as per clause 27(1) of chapter 6 –Terms and conditions for supply of electricity in Tamilnadu Electricity distribution code, asapproved by TNERC notification No.TNERC/DC/8/1dated 27.01.2004. "The licensee will refuse tosupply electricity to an intending consumer whohad defaulted payment of dues to the licensee inrespect of any other service connection in hisname".

The respondent counsel relies upon the provision to statethat the authority is justified in insisting on payment ofoutstanding dues in the same service connection. It is pertinent tonote that in the case of Best Cotton Mills, there is excess demandfor exceeding peak and normal hour consumption. Insofar as the BaluSpinning Mills concerned there is a short levy of excess demand dueto non implementation of quota demand in HT Service Connection basedon audit objection. This has been challenged before this Court.

Both these issues as above admittedly are subject matter ofrespective writ petitions and interim order of stay has been grantedand extended from time to time. Further, it is not a case of additionor reduction of demand of HT Service. Hence the provision will notapply. The request for Dedicated feeder line will not come withinthe scope of Regulation 5(2)(iv) and therefore, the said plea ismisconceived.

It will be relevant to point out that the said demand isconsequent to a claim by the department under the Tamil NaduElectricity Supply Code, under Regulation 5(2) which deals withexcess demand charges. In respect of the excess demand charges, Regulation 5(2)(iv) provides that no addition or reduction of load incase of LT service and no addition or reduction of demand in case ofHT service may be sanctioned unless the outstanding dues in the sameservice connection had been paid. All that sub regulation (2)(iv) of Regulation 5 states that whenever the consumer exceeds thesanctioned demand, no addition or reduction of demand is possiblewithout paying the outstanding dues. There is no dispute on thisposition. The fact remains that in the present case, in respect ofboth the petitioners, excess demand charges has been challengedbefore the court and there is an order of interim stay which is inforce and has not been vacated.

The proviso to Regulation 27 of the Electricity DistributionCode speaks about the refusal to supply electricity to an intendingconsumer who has defaulted in payment of dues to the respondentlicensee in respect of any other service connection in his name. Inthe present case, it is not a case of electricity supply to anintending consumer or a new supply. The respondents are not able topoint out any other provision, and there is nothing in the Distribution Code to hinder the grant of benefit to the petitionersas sought for.

Section 5(2)(iv) of the Electricity Supply Code will notapply to the facts of the present case as it deals with the case ofaddition or reduction of load in the case of HT Service, which is notthe case here. For the dedicated feeder line, the authorities havereceived the amount as specified and an agreement has also beenexecuted. No provision of law, regulation or code is cited in theimpugned order to state as to how the demand is maintainable forproviding the dedicated feeder line. The order should speak foritself. In the present case, the impugned orders are blissfullysilent on the issue.

It is rather unfortunate to note that the very sameauthority, who is a party respondent in the earlier writ petitionwhich is pending before this court, has failed to take note of theinterim order before making such a demand. If a demand of thisnature is made suppressing the pendency of writ petition and theinterim order and the authority wants to secure the payment despite https://hcservices.ecourts.gov.in/hcservices/ the order of the court, it will amount to flouting the orders of thecourt. Till the interim order of this Court is vacated, therespondent authority will have no jurisdiction to demand the payment. The action of the respondent in suppressing the order of this courtand directing the payment of dues which is stayed by courtproceeding as a precondition for extending the benefit of dedicatedfeeder line is contemptuous. It is an affront to the judicial systemin our democracy. The right of the citizen to seek legal remedycannot be whittled down by such administrative action. Theimpugned order has been passed without any statutory backing and itdoes not specify any rule or regulations. Hence, this Court has nohesitation to hold that it is bad and the impugned orders are liableto be set aside.