Sonal Vyapar Limited v. The Tamil Nadu Electricity Board & Ors.

In the High Court of Judicature at MadrasDated: 07.01.2008CoramThe Honourable Mr.JUSTICE P.JYOTHIMANIWrit Petition No.28943 of 2007Sonal Vyapar Limitedrep. By its Directorby its President Aravind Gupta.... PetitionerVs.1. The Tamil Nadu Electricity Board, 800, Anna Salai,Chennai – 600 002 rep. By its Chairman2. The Chief Financial Controller, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai – 600 0023. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem – 636 014..... RespondentsPETITION under Article 226 of The Constitution of India forthe issuance of writ of mandamus directing the respondents torefund the monthly minimum charges of Rs.1,60,000/- collectedillegally from the petitioner vide the 3rd respondent's billdated 29.09.2002 against the provisions of Regulation 31(5) ofthe Tamil Nadu Electricity Distribution Code, 2004.For Petitioner : Mr.R.S.PandiyarajFor Respondents: Mr.S.N.Kirubanandan, Spl.G.P.-----------O R D E RHeard the learned counsel for the petitioner and thelearned Special Government Pleader for the respondents.2. This writ petition is filed for a direction to therespondents to refund the monthly minimum charges ofRs.1,60,000/- collected illegally from the petitioner vide the3rd respondent's bill dated 29.09.2002 against the provisions of https://hcservices.ecourts.gov.in/hcservices/ Regulation 31(5) of the Tamil Nadu Electricity DistributionCode, 2004.3. It is not in dispute that the petitioner company namelyM/s. Sonal Vyapar Limited has given an application in the year1987 for new HTSC for a maximum demand of 3200 KVA for theproposed industry at Nattamangalam Main Road, Maniyanoor, Salem– 636 010. The service connection was also given in the year1987 and the petitioner has availed tariff concession.Thereafter, on 3.10.1994, the petitioner has applied for newservice connection with physical separations as Unit II and thatwas effected on 3.10.1994 and the service connection number wasassigned as 147. In respect of the service connection 147 also,the petitioner has availed tariff concession again.4. According to the respondents there is a due from thepetitioner to the extent of Rs.1,49,297/-, which is stated to bethe electricity tax arrears. The case of the petitioner is thatas far as the arrears in respect of service connection No.147 isconcerned, litigations are pending and the matter is not yetsettled as to whether the petitioner is liable to pay the saidarrears of tax or not. In the meantime, the petitioner hasapplied for a new connection on 13.05.2002 before closing theaccount in Service Connection No.147. Steps were taken foreffecting supply and technical sanction was also granted to thepetitioner on 1.8.2002. The petitioner has paid the amount ofRs.12,36,890/- towards the payment of development charges, Metercaution deposit charges, service connection charges on 8.8.2002.There was an agreement entered into in this regard on 8.8.2002,which was executed on 12.8.2002 for new HTSC No.202. Therespondents by their communication dated 5.9.2002 informed thepetitioner that they are ready to effect the maximum demand of3200 KVA in the petitioner's industry and the Electricity Boardside works are completed. The petitioner was also informed thatthe petitioner can avail electricity supply on or before6.9.2002, failing which the petitioner has to pay the monthlyminimum charge from 7.9.2002 to till the date of availing themaximum demand of 3200 KVA for a period of first three months.5. According to the petitioner, the respondents havecollected a sum of Rs.1,60,000/- taking into consideration thatthe petitioner has availed the service connection and is liableto pay the monthly minimum charge in respect of the new serviceconnection from 6.9.2002 to 10.9.2002. The case of thepetitioner is that the petitioner has availed the said newconnection only from 11.9.2002 and he should be charged with themonthly minimum charge only from the date of availing theelectricity supply i.e., from 11.9.2002. Therefore, the conductof the respondents in collecting the amount of Rs.1,60,000/- on https://hcservices.ecourts.gov.in/hcservices/ the basis that the petitioner is liable to pay monthly minimumcharge from 6.9.2002 till 10.9.2002 is illegal. 6. On the other hand, it is the admitted case of therespondents, as seen from the counter affidavit that in respectof earlier service connection No.147, which was disconnected,there was arrears to the extent of Rs.1,49,297/- But the caseof the respondents/Electricity Board is that the petitioner byhis conduct has been negotiating with the accounts members andin fact the petitioner has given an undertaking to pay the saidamount of arrears being electricity tax in respect of HTSCNo.147, while giving new connection as per the order dated5.9.2002. Therefore, according to the respondents/ElectricityBoard, the conduct of the petitioner having given an undertakingto pay the arrears in respect of Service connection No.147,having not paid till 10.9.2002 shows that the respondents areentitled to treat the period from 6.9.2002 as monthly minimumcharge, since the fault is on the petitioner in not availing thesame.7. Mr.S.N.Kirubanandam, learned counsel appearing for therespondents submits that as per Regulation 31(5) of the TamilNadu Electricity Distribution Code, the Electricity Board isentitled to charge monthly minimum charge inasmuch as theelectricity Board has made it very clear that the Board is readyto supply from 5.9.2002 and the fault is on the part of thepetitioner in not availing the same by paying the balance amountin respect of other service connection, namely 147. Hence, theorder passed by the Electricity Board is perfectly in order. Itis also submitted by the learned counsel that the ElectricityBoard, being a public utility organisation has right to deductthe amount due from the petitioner in respect of other accountsalso. Hence, these are the amounts payable in respect of theelectricity supply availed. 8. On the facts and circumstances of the case, it is clearthat there is absolutely no dispute about the liability of thepetitioner in paying the arrears of tax in respect of serviceconnection No.147. Even assuming that the petitioner has notgiven any undertaking, there is no difficulty to conclude thatthe liability of the petitioner is there and as submitted by thelearned counsel for the respondent that even if any litigationis pending, in respect of the same, no stay was granted as ondate. In view of the same, it cannot be said that thepetitioner is not liable to pay the balance amount in respect ofservice connection No.147.9. However, the dispute, which has to be decided is as towhether the respondents/Electricity Board has got any right at https://hcservices.ecourts.gov.in/hcservices/ all to treat from the period 6.9.2002 for the purpose ofcharging monthly minimum charge in respect of new ServiceConnection No.202. It should be charged from the date ofavailing the electricity supply i.e., from 11.9.2002. However,the case of the respondents is that on 5.9.2002 itself, therespondent Electricity Board was ready to give supply, but thepetitioner has not chosen to avail by paying the amount inrespect of arrears regarding the other account. Therefore, itshould be treated as if he has availed the electricity supplyfrom 5.9.2002 and in that view of the matter by applyingRegulation 31(5), the respondent Electricity Board has right torecover the amount. 10. Regulation 31 of the Tamil Nadu ElectricityDistribution Code 2004 reads as follows:"31. Inspections, testing and effectingsupply- (1) After completion of the wiring, noticemust be sent to the engineer by the intendingconsumer (upon printed test report from obtainablefree of cost from the offices of the licensee) thatthe installation has been completed and tested andthat the same is complete and ready for inspectionand test by the engineer. Notice of the engineer'sintention to inspect and test the installation willbe sent to the intending consumer who must bepresent or his/her competent representative at thetime fixed to give information that may be necessaryconcerning the installation.(2) the intending consumer shall avail himself ofthe supply within three months in case of HT and onemonth in case of LT from the date of issue of noticein writing, informing him that supply is available.(3) If the intending consumer fails to avail thesupply within the above period, a further threemonths notice in case of HT and one month notice incase of LT will be sent to the intending consumer toavail the supply. If he does not avail himself thesupply during this notice period, the applicationwill be treated as lapsed and cancelled in the caseof low tension supply and the application shall betreated as cancelled, terminating the agreement, inthe case of high tension supply. Theserviceconnection charges and the securitydeposit/development charges, etc., except metercaution deposit will be forfeited. In case theintending consumer could not avail the supply underforce manjuere conditions, the securitydeposit/development charges and meter cautiondeposit shall be refunded to the intending consumer. https://hcservices.ecourts.gov.in/hcservices/ (4) However, licensees of the distribution aredelegated with powers to condone the delay onspecific request from them if received before expiryof second notice period and to accord approval toeffect supply any day after the date of expiry ofsecond notice of availability of supply withoutforfeiture of development and other charges andcancellation of application subject to his/herconsent to pay monthly minimum charges upto the dateof availing supply.(5) If the intending consumer avails supply duringthe notice period of availability of supply, heshall pay the monthly minimum charges at thenotified tariff rate for the period from the date ofissue of first notice of supply availability tillthe date of availing supply.(6) Requisition for supply or additional supply ofelectricity should be made in the prescribed formobtainable from the local office of the licenseesufficiently in advance of the date of requirementof supply. Such forms can also be made available indownloadable mode in the licensee's website orallowed to be printed by others and made availablein open market. The requisition should be made bythe owner, or occupier, of the premises for whichsupply is required, and should indicate his/her fullname and address. Any assistance or informationrequired in filling up the form has to be given tothe intending consumer at the local offices of thelicensee."11. A reading of above Regulation 31(5) makes it clearthat the liability of the intending consumer to pay the monthlyminimum charge arise only from the date of availing the supply.12. Regulation 17 of the Tamil Nadu Electricity SupplyCode 2004 reads as follows:"17. Agreement with respect to supply: Issueson recovery of charges:- (1) Every consumer shall payto the licensee, from the date of commencement ofsupply till the agreement is terminated, securitydeposit, minimum monthly charges, fixed charges, ifany, and other charges as provided in the tarifforders, this Code and any other orders in this regardby the Commission, from time to time. However, anyconsumer, who has not availed of reconnection evenafter the expiry of termination of agreement period,the monthly minimum charges may be limited to the https://hcservices.ecourts.gov.in/hcservices/ date of disconnection.(2) Notwithstanding the termination of the agreement,the consumer shall be liable to pay the arrears ofcurrent consumption charges or any other sum due tothe licensee on the date of disconnection and meterrent, if any, upto the date of termination of theagreement and Belated Payment Surcharge (BPSC) uptothe date of payment.(3) The licensee may require the consumer, who, atany time during the currency of the agreement,intends to sell or otherwise dispose of or lease outin whole or in part of the premises or business towhich supply is given or has been contracted for, togive three months' notice of his intention to theengineer of the licensee and clear all dues upto thedate of sale/disposal/lease. In the case of suchnotice, the agreement in so far as the consumer isconcerned, will cease to operate with effect from thedate specified in such notice, but without prejudiceto any claim or right which may have accrued to theparties thereunder.(4) If the consumer fails to give advance intimationas aforementioned of his intention to sell or leaseout or otherwise dispose of the properties orbusiness to which supply is given or contracted for,the licensee shall have the right to recover thecharges for consumption and other charges due to thelicensee under the agreement even beyond the date ofsale or lease out or otherwise disposal of theproperties or business.(5) If a service connection remains disconnectedfor a period of three months for non-payment of duesto the licensee, the licensee shall issue a noticerequiring the consumer to get supply restored withinthree months from the date of receipt of such anotice and intimating him that failure to availsupply within that period will result in terminationof the agreement. After the expiry of notice periodof three months, the agreement shall standterminated."13. A reading of the above said Regulation also makes itclear that the consumer is liable to pay to the licensee,namely, the Electricity Board, the monthly minimum charge fromthe commencement of supply till the agreement is terminated. 14. In this case, it is not even the case of theElectricity Board in the communication dated 5.9.2002, that theElectricity Board has demanded the petitioner to pay the amount https://hcservices.ecourts.gov.in/hcservices/ of arrears in respect of Service connection No.147 and until theamount is paid the petitioner will not be given supply and sucha stand has never been made. Even in the absence of the such astand, the Electricity Board has right to recover the amount.It cannot be said that during the period, namely, from 6.9.2002to 10.9.2002, when the petitioner has not actually availed thesupply, he should be made responsible for the payment of monthlyminimum charge. 15. Learned counsel for the respondent has relied upon ajudgment of the Supreme Court reported in 2005(5)CTC 289 (AmitProducts (India) Ltd., V. Chief Engineer (O&M) Circle held thatthe Electricity Board has got right to recover the dues for anyaccount and adjust the same to some other account. 16. As stated earlier, there is absolutely no difficultyabout this legal position and the only question to be decidedhere is about the payment of monthly minimum charge payable bythe petitioner for the period from 6.9.2002 to 10.9.2002. I amof the considered view that the respondent board is not entitledto collect the monthly minimum charge for the period from6.9.2002 to 10.9.2002 for which period the petitioner has notavailed the supply at all. However, at the same time, it cannotbe said that the electricity board is not entitled to recoverthe amount due to the petitioner in respect of serviceconnection No.147. It is the case of the petitioner that inrespect of service connection No.147, some litigations arepending. But there is no stay in that regard preventing theElectricity Board from making such recovery.17. In view of the same, while holding that theElectricity Board is entitled to claim monthly minimum charge inrespect of HTSC No.202 only from 11.9.2002, but at the sametime, the respondents Electricity Board is entitled to adjustthe amount of Rs.1,60,000/- to tax due in respect of HTSC No.147if the said amount is not paid otherwise by the petitioner.18. The writ petition is disposed of in the above terms.No costs.SlSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Chairman, The Tamil Nadu Electricity Board, 800, Anna Salai,Chennai – 600 002 2.The Chief Financial Controller,Tamil Nadu Electricity Board, 800, Anna Salai, Chennai – 600 0023.The Superintending Engineer,Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem – 636 014•One cc to Mr. R.S. Pandiyaraj, Advocte SR 1188•NG (co)sg 11/01/08W.P.No.28943 of 200707.01.2008