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Judgment
Vinod K. Sharma, J.—The petitioner has approached this Court with prayer for issuance of writ in the nature of Certiorari to quash the
Letter No. AAO/TBM/RB/RA VII/BA/2/AC No. 252-581 12/D. No. 633/20.7.2007 dated 28.7.2007 and the consequential order dated
03.08.2007. The impugned orders read as under:
TAMIL NADU ELECTRICITY BOARD
From
The Asst. Account Officer
Tambaram Revenue Unit
CEDC/S/Chennai
To
The Junior Engineer/
The Asst. Engineer/O&M/Chromepet
L. No. AAO/TBM/RB/RA VII/BA/2/AC No. 252-581
12/D. No. 633/20.7.2007 2007 Dt. 28.7.2007
Sir,
Sub: Electricity-Clearance Certificate-reg.
Ref: Your letter AE/O&M/CMPT/F/Clearance/
Dismantling/D. No. 155/07\dated 21/07/2007
In connection with the Clearance Certificate required in respect of the Account No. 252-581-12 the following details are furnished.
The above certificate is issued subject to collection of any malpractice amount M.N.R. if any for which no intimation has been received in this
offices) far.
From
ASSISTANT ENGINEER
O&M/CHROMEPET/TNEB
CEDC SOUTH
CHENNAI-44
To
M/s. Mecca Prime Tanners
Thiruneermalai Road
Nagalkeni
Lr. No. AE/O&M/CMPT/F. Disc/D208 dt. 3/8/07
Sir,
Sub: Chromepet A/c No. 252/581/12 Permanent
Dismantling of Service Request to pay the Advice Slip
amount Rs. 1,78,290/- Notice issued-reg.
-----
I am herewith sending the Advice Slip for payment of Rs. 1,78,290/- towards the dismantling of above service a/c No. 252/581/12 as per the
clearance certificate issued by AAO/Tambaram within 7 days from the date of receipt of this letter.
ASSISTANT ENGINEER
O&M/CHROMEPET/TNEB
CEDC SOUTH
CHENNAI-44
Encl: Advice Slip
The petitioner is a firm carrying on tannery business. The petitioner has L.T. Power connection for running the machineries. In the year 2000, the
Tamil Nadu Electricity Board advised all the Industrial Consumers to install Electronic Meters in the place of old electro mechanic meters. With the
consent of petitioner, the Electronic Meter was installed in their factory.
The petitioner was thereafter advised to install capacitors of various capacities depending on the connected power load in each tannery, which
was also complied with by the petitioner. The capacitors were required to maintain Power Factor with the purpose to ensure that there was no loss
of energy between the supply and the stage of usage.
It is the case of petitioner that the maintenance of power factor depends predominantly upon the consistent maintenance of voltage. The
fluctuation of voltage is always due to the fault on the part of the electricity board and not the consumers. The consumers therefore cannot be
blamed for non maintenance of power factor.
It is submitted, that after installation of capacitors as advised by the respondent Board, it was found by the Assistant Engineer that the Power
Factor could not be maintained due to voltage fluctuation. The Assistant Engineer therefore in consultation with his superiors, attempted to evolve a
procedure for maintaining the Power factor, but while doing so, he levied a penalty at the rate of more than 50% of the consumption charges in the
service meter card of all the consumers including the petitioner.
The Association of Tanners challenged the action of imposing of penalty by filing batch of W.P. No. 7988 of 2001. The writ petitions were
dismissed by this Court.
It is submitted, that prior to passing of the Electricity Act, 2003, the Indian Electricity Act, 1948 was in force. It was in exercise of powers
conferred by Section 49 of the Indian Electricity (Supply) Act, 1948, the terms and conditions of supply of electricity were framed. Thereafter, on
24.12.1988, the terms and conditions of supply of electricity were revised and notified. It is submitted, that as per para-20 of the revised terms
and conditions, Tamilnadu Electricity Board is entitled to levy belated payment of surcharge in respect of high-tension supply. Whereas 20.01 of
the terms and conditions provides, that no surcharge will be levied on surcharge. The State of Tamilnadu enacted Tamilnadu Revision of Tariff on
Supply of Electrical Energy Act, 1978 (hereinafter referred to as the ''Act'') with an object to provide for revision of tariff rate leviable on electrical
energy supplied in the State of Tamilnadu by the Tamilnadu Electricity Board. Prior to coming into force of this Act, tariff rates of electricity
consumption were fixed by order of the State Government, u/s 3 of the Tamilnadu Essential Articles Control and Requisitioning (Temporary
Powers) Act, 1949. Section 3 of the Act provides for tariff rate payable by any consumer on the electrical energy supplied by the Board as
specified in the schedule to this Act. Whereas u/s 4 of the Act, the power is vested with the State Government to amend the provisions of the
schedule by notification, taking into account the cost of production of energy and other relevant matters.
In exercise of powers conferred u/s 4 of the Act, the State Government, vide notification dated 07.01.2000 substituted the schedule to the Act,
which came into force from the date of issuance of notification. As per, the general provisions applicable to consumers covered under high tension
tariff I to V, it was provided that the average power factor of consumer''s installation shall not be less than 0.90 lag and where the average power
factor is less than the stipulated 0.90 lag, the rates of compensation charges were to be levied as provided in the schedule. The levy of low factor
surcharge for the first time was notified by the State Government vide G.O. Ms. No. 3/Energy Department dated 07.01.2000.
In the meanwhile, the Electricity Regulatory Commission Act, 1998 (Central Act XIV 1998) was enacted. This provided for establishment of
Central Electricity Regulatory Commission at the Central level and State Electricity Regulatory Commissions at the State level.
Consequent to the enactment of the Electricity Regulatory Commission Act 1998, the Government of Tamilnadu in G.O.M.S. No. 58/Energy
(A1) Dept. dated 17.3.99 constituted the Tamilnadu Electricity Regulatory Commission (TNERC). Subsequently, the Central Government enacted
the Electricity Act 2003 (Central Act 36 of 2003) with an object of consolidating the laws relating to generation, transmission, distribution, trading
and use of electricity and for matters connected therewith.
In exercise of powers conferred u/s 50 of the Electricity Act 2003, the Tamilnadu Electricity Regulatory Commission made Tamilnadu
Electricity supply Code and the same came into force from 1.9.2004. Similarly, the Tamilnadu Regulatory Commission made Tamilnadu Electricity
Distribution Code by exercising powers u/s 86 and 46 of the Electricity Act, 2003. Section 22(1) and 29 of the Electricity Act 2003 enable the
State Regulatory Commission to fix the tariff rates. In exercise of this power, the Tamilnadu Electricity Regulatory Commission in TP No. 1 of
2002 passed an order on 15.3.2003, fixing the tariff rates which came into force from 16.3.2003.
In this order, the Tamilnadu Electricity Regulatory Commission took note of the existing tariff structure providing for levy of low power factor
surcharge for all HT consumers, and adopted it with a modification to introduce power factor penalty as well as incentive for all industrial services
under the bracket of 25 hp to 75 hp also.
The rates of power factor surcharge provided in the schedule of the 1978 Act has been adopted.
On the basis of these provisions, the respondent Board started levying penalty as power factor surcharge. A batch of Writ Petitions in W.P.
7988 of 2001 etc batch were filed in this Hon''ble Court challenging the levy of power factor surcharge. A learned Single Judge of this Hon''ble
Court by a Common Judgment dated 8.9.2006 dismissed the above batch of Writ Petitions, upholding the right of the respondent Board to levy
lower power factor surcharge.
At this stage, it is relevant to state that the respondent Board initially did not levy any belated payment surcharge or interest on the low power
factor surcharge when the above batch of Writ Petitions were filed.
Even after the dismissal of the batch of Writ Petitions by a common Order dated 8.9.2006, individual demands were issued to various
consumers like the Petitioner levying low power factor surcharge alone. On receipt of this notice, the consumers in the tannery industry paid the
low power factor surcharge as demanded by the respondent.
It is the case of petitioner, that respondent no. 3 levied and demanded interest in the form of belated payment of surcharge on the low power
factor surcharge as per para 20.01 of the terms and conditions of electricity Act.
It is also submitted, that the Tamilnadu Electricity Regulatory Commission vide its order dated 15.03.2003, directed the respondent Board to
install meters within a period of three months from 16.03.2003 and introduce incentive penalty suitable as per the tariff schedule. That prior to the
directions by the Tamilnadu Electricity Regulatory Commission, the respondents sent a demand, calling upon the petitioner to pay interest (belated
payment surcharge) on the low power factor from April 2001 to January 2007.
Initially, the petitioner was directed to pay a sum of Rs. 1,17,861/- (Rupees One Lakh Seventeen Thousand Eight Hundred and Sixty one
only) towards Low Power Factor Compensation Charges. The petitioner thereafter applied for dismantling of service connection, as the petitioner
concern had shifted its business to No. 73, Anna Salai, Nagalkeni, Chrompet, Chennai. The petitioner gave an undertaking to pay Rs. 1,17,861/-
(Rupees One Lakh Seventeen Thousand Eight Hundred and Sixty one only) (Low Power Factor Surcharge) in six equal monthly installments
towards the petitioner''s S.C. No. 252:581:12 for dismantling of petitioner''s service connection. That the impugned orders have been passed
calling the petitioner a sum of Rs. 1,78,290/- (Rupees One Lakh Seventy Eight Thousand Two Hundred and Ninety only) towards LPFSC and
belated payment surcharge.
The petitioner has challenged this demand to be illegal, without jurisdiction and not sustainable in law.
Learned counsel for the petitioner vehemently contends, that the impugned orders cannot be sustained, as surcharge on charges was not
permissible under the terms and conditions of supply of electricity and that there is no provision for belated payment surcharge, demanded from the
petitioner.
On consideration, I find that the contention raised by the petitioner is totally imaginary. The reading of impugned orders no where shows, that
any belated payment surcharge has been claimed or demanded. The order dated 28.07.2007 is only clearance certificate issued by the Assistant
Account Officer to the Junior Engineer for permanent dismantling.
The reading of the impugned orders also does not show the imposition of surcharge on surcharge or belated payment surcharge. The
contention of learned counsel for the petitioner, that the amount of Rs. 1,17,861/- (Rupees One Lakh Seventeen Thousand Eight Hundred and
Sixty one only) has been enhanced to Rs. 1,78,290/- (Rupees One Lakh Seventy Eight Thousand Two Hundred and Ninety only), also cannot be
accepted, as the order does not speak of any surcharge.
In the pleading or at the time of argument, the learned counsel for the petitioner has not questioned the permanent dismantling charges. In
absence of any pleading or the case to challenge the impugned orders, it is not possible for this Court to go into the question raised, as the
contention of the learned counsel for the petitioner, that the amount demanded is towards belated payment surcharge, cannot be accepted, as there
is no such order. The impugned order only deals with permanent dismantling charges, which are not challenged.
No merit. Dismissed. No costs.