M/s. M.V.R. Infracture Tollways (P) Ltd. v. Tamil Nadu Electricity Board & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.07.2009CORAMTHE HONOURABLE MR.JUSTICE S.RAJESWARANW.P.No.14070 of 2009 and M.P.No.1 of 2009M/s.M.V.R.Infracture Tollways (P) Ltd.,Rep. by the Executive Director... Petitioner Vs1. 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. ... RespondentsWrit petition is filed under Article 226 of the Constitution ofIndia for issuance of a Writ of Certiorarified Mandamus, calling forthe records of the second respondent in lr.No.SE/SEDC/AOR/HT/A2/F/HTSC 250/ D746/09 dated 22.6.2009 and quash the same as illegal anddirect the second respondent to refund the difference of commercialand industrial tariff collected from the petitioners with interest.For Petitioner :Mr.S.SivanandamFor Respondents :Mr.A.Selvendran O R D E RThe case of the petitioner is as follows:The petitioner is a private limited company. They are CivilContractors 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 respondentwith a permitted load of 1500 KVA. This service connection wasobtained to the crushing unit only, which is an industrial activity.Thus, the service connection given was only for an industrial purposeand the tariff applicable is an industrial tariff and the same isbeing levied on the petitioner company. The petitioner company wasalso paying the same as per the demand made by the respondent board.While so, the petitioner received a demand from the second respondenton 22.06.2009 calling upon the petitioners to pay a sum ofRs.38,68,011/- being the short levy of current consumption charges,worked out on the basis of Commercial tariff and the difference incommercial and industrial tariff was claimed. The reason forclaiming commercial tariff was audit objection. The second respondenthas not given any other reason for changing the tariff fromindustrial tariff to Commercial tariff to the petitioner's unit. Itwas also stated by the second respondent that future bills would alsobe revised under commercial tariff. Though the petitioner made arepresentation to the respondents, the June month bill received on29.6.2009 was also raised under commercial tariff. Apprehendingdisconnection, the petitioners have paid June month bill underprotest. Thereafter, in and by letter dated 13.7.2009 the petitionermade a representation to the respondents spelling out the details ofthe activities carried on in the unit having HT SC 250 and reiteratedthat correct tariff applicable is only industrial tariff and notCommercial tariff. Since the demand is arbitrary and illegal, theabove writ petition has been filed for the aforesaid relief.2. I have heard the learned counsel appearing for the petitionerand Mr.A.Selvendran learned counsel appearing for the respondents. Ihave also gone through the documents available on record.3. The learned counsel for the petitioner would contend that thepetitioner company operating stone crushing unit producing blue metaljelly is purely an industrial activity and the tariff applicable isindustrial tariff only and not commercial tariff. If the revision ismade by the respondents from industrial tariff to Commercial tariffon 22.06.2009 that too on the basis of the audit objection, then inall fairness, the respondents ought to have given notice to thepetitioner to explain their case. Without any opportunity, theindustrial tariff which was granted to the petitioner has beenchanged unilaterally, that too, after two years. The learned counselfor the petitioner also adds that the petitioner was issued with aCertificate by the Tamil Nadu Pollution Control Board to the effectthat it operates an industrial plant. Therefore, the learned counselfor the petitioner would contend that the order passed by the secondrespondent is in violation of principles of natural justice and thesame is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/

4. Per contra, the learned counsel for the respondent wouldsubmit that because of the objection raised by the audit departmentthat the industrial Unit of the petitioner would attract onlycommercial tariff and not industrial tariff, the letter dated22.6.2009 was sent by the second respondent, calling upon thepetitioner to make good the short fall amount. Therefore, it cannotbe said that the order has been passed without any basis. Hence, heprays for dismissal of the writ petition.5. I have considered the rival submissions carefully.6. Admittedly, the stone crushing unit run by the petitionercompany at Parapatty village was provided with HT service connectionbearing SC No.250 with a permitted load of 1500 KVA, under industrialtariff in December 2007 by the respondents. At the time when therespondents sanctioned the loan and extended the service connection,the respondents were very well aware that the petitioner company washaving a stone crushing unit and doing industrial activities. Whileso, on the ground of audit objection, the impugned letter dated22.06.2009 has been sent changing the tariff from industrial tocommercial and the huge shortfall amount was claimed from thepetitioner. Admittedly, there was no prior notice sent to thepetitioner nor the petitioner was called upon to offer theirexplanation for change of tariff. When the change of tariff issought to be made by the respondents it gives rise to a civilconsequences and therefore, an opportunity ought to have been givento the petitioner company. Therefore, on the ground that there wasno opportunity given to the petitioner, the impugned order is liableto be interfered with. Further, in this case, from December 2007till the date of revision, the petitioner company was charged underindustrial tariff and they have been paying the same. While so,arbitrarily, by a stroke of pen, the tariff has been changed fromindustrial to commercial which cannot stand in the eye of law. 7. Therefore, I am of the considered view that without giving anopportunity to the petitioner, the impugned order has been passed bythe second respondent which suffers from infirmity and illegality andthe same is liable to be set aside. It is always open to therespondents to call the petitioners for enquiry and pass orders inconsultation with the petitioners for change of tariff.8. In the result, the writ petition is allowed. The impugneddemand 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.ColonyPost, Salem 636 014, the second respondent herein to enable him tocall the petitioner for an enquiry in respect of the change of tarifffrom 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 bemade against the petitioner under commercial tariff and the billsshould 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.RegistrarvaanTo1. 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.331371 cc To Mr.J.Ravindran, Advocate, SR.33677W.P.No.14070 of 2009and M.P.No.1 of 2009BK(CO)PMK.26.8.2009.