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Judgment
V. Dhanapalan, J.—The petitioner has come up with the present writ petition challenging the proceeding of the third respondent dated
12.5.2010.
2.1. The case of the petitioner is that it is a continuous process industry engaged in the manufacture of inter coolers, radiators and oil coolers,
having High Tension Electricity Supply in H.T.S.C. No. 1488 within the jurisdiction of the second respondent. Violating the order made in M.P.
No. 42 of 2008 dated 28.11.2008, the third respondent issued a demand for payment of penal charges for exceeding the evening peak hour
quota. The petitioner filed a writ petition before this Court in W.P. No. 2378 of 2010, challenging the said demand. By its order, this Court had set
aside the said notice and directed the second respondent to give opportunity to the petitioner to put forth their objections against such levy and
pass orders after hearing the petitioner.
2.2. While so, the petitioner received the impugned demand notice from the third respondent directing the petitioner to pay a sum of Rs.
10,00,715/- towards evening peak hour quota excess consumption for the period 12/2008 to 07/2009. Therefore, the petitioner has to approach
this Court by filing the present writ petition challenging the said impugned order.
The learned Counsel appearing for the petitioner mainly contended that,
(i) the third respondent failed to give opportunity to the petitioner inspite of this Court directing the third respondent to do so; and
(ii) the impugned demand is in violation of the order made in M.P. No. 42 of 2008 dated 28.11.2008 of the first respondent.
On the other hand, the learned Counsel appearing for the respondents submitted that,
(i) in view of the order passed by the first respondent dated 04.05.2010, the petitioner has to exhaust its remedy by filing an appeal before the
Appellate Tribunal for Electricity; and
(ii) in view of the order passed by the first respondent on 04.05.2010 holding that the Electricity Board has got the power to levy penalty for
exceeding the evening peak hour quota, the petitioner cannot still harbour that the third respondent has no power to impose penalty.
I have heard the learned Counsel appearing for the petitioner as well as the learned Counsel appearing for the respondents.
The first and foremost contention that was raised by the learned Counsel appearing for the petitioner is that the penalty cannot be imposed by
the third respondent which is violative of the order made in M.P. No. 42 of 2008 dated 28.11.2008. However, I am unable to accept the said
contention raised by the learned Counsel appearing for the petitioner, since the first respondent had clarified its order dated 04.05.2010, clarifying
that the penalty could be imposed for exceeding the evening peak hour quota.
7.1. The Tamil Nadu Electricity Consumers Association filed M.P. No. 4 of 2010 before the Tamil Nadu Electricity Regulatory Commission
(hereinafter called the Commission) to punish the Tamil Nadu Electricity Board by imposing a maximum punishment by passing appropriate orders
in exercise of powers conferred in Sections 142 and 146 of the Electricity Act, 2003.
7.2. Further, the Tamil Nadu Spinning Mills Association filed M.P. No. 7 of 2010, contending that the Electricity Board has no power or authority
to levy penalty in terms of money for the alleged excess use of demand and energy during evening peak hours except for the reduction of demand
to the level of 5% for the following 48 hours as specifically stated in Para 33 of the order passed in M.P. No. 42 of 2008 dated 28.11.2008.
7.3. The above applications came before the Commission and the Commission has passed the following order:
11.5. Para 29 of the Order of the Commission in M.P. No. 42 of 2008 stipulates that excess demand and excess energy shall be charged at thrice
the normal rate for HT industrial and HT commercial consumers. This is a general stipulation and should be deemed to apply to all demand and
energy consumption in excess of the quota determined by the licensee. This was designed as a monetary disincentive to discourage HT industrial
and commercial consumers from exceeding the demand and energy quota. Para 33 should be read in conjunction with para 29. Para 33 deals with
non-monetary measures for the specific period between 6.00 p.m. to 10.00 p.m. to dissuade HT industrial and HT commercial consumers from
drawing power in excess of 5% and 10% respectively. In other words, the demand quota for HT industrial consumers would be 5% between 6.00
p.m. and 10.00 p.m. and the demand quota for HT commercial consumers would be 10% between 6.00 p.m. and 10.00 p.m. Consumption of
demand and energy in excess over the quota is liable to be changed at the rate mentioned in para 29 irrespective of the fact whether the excess is
recorded during non-peak hour or evening peak hour.
11.6. Para 35 of the Order of the Commission in M.P. No. 42 of 2008 talks of a third deterrent, the first being levy of excess demand/energy
charges and the second being pruning of the quota for the following 48 hours. Para 30 of the Order in M.P. No. 42 of 2008 envisages similar
treatment for LT CT industrial and LT CT commercial consumers.
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11.11. Therefore, it is clear that the Order of the Commission in M.P. No. 42 of 2008 prescribed excess demand and excess energy charges for
evening peak hour violation also.
7.4. The Commission also discussed and held that a licensee is empowered to claim its demand upto a period of two years from the date when
such sum became due, since a plea was taken by the consumers that excess demand charges and excess quota charges have been raised by the
Tamil Nadu Electricity Board belatedly. Paras 11.12, 11.13 and 11.14 of the said order is usefully extracted here under:
11.12. A plea has been raised by the Petitioners that excess demand charges and excess energy charges have been raised by the TNEB belatedly
as late as one year after the Order. The excess demand charge and excess energy charge being in the nature of penalty, ought to have been levied
promptly, in which case the Petitioners would have desisted from consuming excess power. The conduct of the TNEB, according to them, in
raising the demand almost a year after the Order of the Commission amounts to waiver of claim for penal charges.
11.13. We wish to refer, in this context, to Section 56 of the Electricity Act 2003 extracted below:
Disconnection of supply in default of payment - (1) Where any person neglects to pay any charge for electricity or any sum other than a charge
for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to
him, the licensee or the generating company may, after giving not less that fifteen clear days'' notice in writing, to such person and without prejudice
to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply
line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted,
distributed or wheeled land may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off
and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits, under protest,-
a) an amount equal to the sum claimed from him, or
b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six
months, whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be
recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as
recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
11.14. Section 56 makes it clear that a licensee is empowered to claim its demand upto a period of two years from the date when such sum
became due. The ""charge for electricity"" mentioned in Section 56(1) refers to the electricity tariff; ""any some other than a charge for electricity
referred to in Section 56(1) means charges other than tariff charges such as capacitor compensation charge, excess demand charge, belated
payment surcharge, additional security deposit, name transfer charge, re-connection charge, meter related charges etc., mentioned in Clause 4 of
the Tamil Nadu Electricity Supply Code 2004 notified by the Commission. Therefore, we have to conclude that the TNEB is entitled to recover
any sum due to them within a period of two years.
Thus, the bone of contention raised by the petitioner is that the levy of penalty for exceeding evening peak hour quota as against the order made
by the Commission in M.P. No. 42 of 2008 dated 28.11.2008 has been watered down by the subsequent order of the Commission dated
04.05.2010.
The second submission made by the learned Counsel appearing for the petitioner is that, when this Court had directed the third respondent to
pass orders afresh, the third respondent without any reference thereto, ought not to have directed the petitioner to pay the penalty for exceeding
the quota. This contention of the learned Counsel appearing for the petitioner appears to be well founded. When this Court had directed the third
respondent to pass orders afresh in the above referred writ petitions, the third respondent in violation of the said orders ought not to have issued a
demand notice to the petitioner to pay penalty for exceeding the quota.
Though an appeal remedy is available to the petitioner to challenge the impugned demand made by the third respondent, I am not inclined to
drive the petitioner to file an appeal before the appellate forum on the sole ground that the demand was made without giving due notice to the
petitioner and without affording an opportunity to the petitioner as directed by this Court.
In result, the impugned order passed by the second respondent dated 12.05.2010 is liable to be set aside and is accordingly set aside and the
writ petition stands allowed. However, the third respondent is directed to pass orders afresh after due notice to the petitioner and after hearing the
petitioner as directed by this Court in the writ petitions referred to above. No costs. Consequently, M.P. No. 1 of 2010 stands closed.