Ravindra Solvent Oils Ltd. vs Member Secretary, APSEB and Others

S. Parvatha Rao, J.—The petitioner questions the order of the third respondent dated 7-1-1993 confirming the assessment of charges towards alleged malpractice at Rs. 6,11,204-44 ps. made by the second respondent.

The petitioner set up a unit for manufacturing bran oil from rice bran and has been receiving electrical energy from the Andhra Pradesh State Electricity Board. Its contracted maximum demand is 260 KVA and its contracted load was 326.81 HP. It is the case of the petitioner that it approached the Electrical Inspectorate of Government of Andhra Pradesh and obtained permission for installation of additional loads under letters dated 7-1-1983 and 3-6-1985 and that it informed the Assistant Divisional Engineer (Operation) at Vijayawada by letter dated 26-6-1985 about the release of the additional loads. According to the petitioner, after obtaining the said permissions, it installed equipment to the extent of additional loads sanctioned by the Electrical Inspectorate. After the intimation by letter dated 26-6-1985, the respondents have not objected to the said additional loads installed by the petitioner in its unit. It is the case of the petitioner that though the additional loads were installed, it never exceeded the contracted maximum demand and the contracted load.

The petitioner states that the Assistant Divisional Engineer (Operation), Andhra Pradesh State Electricity Board, Gunadala in Krishna District issued a letter dated 30-1-1990 to the petitioner pointing out that the Assistant Divisional Engineer at Vijayawada inspected the petitioner''s unit on 13-1-1990 and noticed that the petitioner exceeded the connected load by 143.08 H.P. and that constituted malpractice under clause 39.1.2 of the terms and conditions of supply of electrical energy by the Andhra Pradesh State Electricity Board (''the Conditions''), and provisional assessment of the loss sustained by the Board was made at Rs. 6,31,217-55 Ps. The petitioner filed its objections. Thereafter, the second respondent herein issued a show-cause notice dated 11-9-1991 requiring the petitioner to show cause as to why the said loss sustained by the Board should not be estimated at Rs. 6,10,899-79 ps. The petitioner once again filed its objections and the second respondent confirmed the said assessment through his proceedings dated 30-11-1991 10-12-1991. The petitioner''s appeal to the third respondent was dismissed by order dated 7-1-1993 confirming the assessment made by the second respondent.

Before the third respondent, the petitioner represented that under B.P.Ms. No. 1329 (Commercial) dated 23-12-1989 Condition 39.1.1.2 was amended substituting a new Condition 39.1.1.2 with clauses (a), (b), (c) and (d) (the correct provision which was amended was in fact 39.1.2 and not 39.1.1.2 and, therefore, the amended provision should be read as 39.1.2. (a), (b), (c) and (d) and not as 39.1.1.2 (a), (b), (c) and (d) and that one of the malpractices covered was "Excess contracted load approved by the Chief Electrical Inspector to Government but not intimated within three months from the date of approval of the Chief Electrical Inspector to Government in case of H.T. Services", and that in view of the fact that the petitioner had intimated to the Assistant Divisional Engineer (Operation) at Vijayawada by letter dated 26-6-1985 that the Chief Electrical Inspector to Government approved the excess contracted loads, no malpractice was committed by the petitioner as per Condition 39.1.2. in force at the relevant time when the inspection was made and the alleged malpractice was sought to be made out against the petitioner. The petitioner also contended before the second respondent that though contracted load was exceeded by installing additional load, in fact the contracted demand and energy were never exceeded by the petitioner''s unit and therefore, no loss in fact was suffered by the Board because there was no increase in the maximum demand or consumption of energy by the petitioner at any time even though the installed load was higher than the contracted maximum demanded load. The Chief Engineer was not persuaded by the petitioner''s contention''s before him because, as stated by him, the issue involved was connecting of additional load unauthorisedly without obtaining sanction from the Board and because the petitioner failed to follow the procedures contemplated by the Conditions applicable for connecting additional load and violation of the said procedures was nothing but a malpractice attracting the liability for payment of the amount determined by the authorities concerned as the loss sustained by the Board in terms of the formula prescribed under the Conditions. The third respondent met the contentions of the petitioner based on the amended Condition 39.1.2 as follows:

"While admitting that they (petitioner) have connected additional loads duly obtaining approvals from Chief Electrical Inspector to Government 4 years before the issue of B.P.Ms. No. 1329 dated 23-12-1989 and claiming relief under the provision of this B.P. may not stand to reason as they have failed to follow the procedures in vogue at the time of connecting the additional loads by them".

On that basis, the third respondent confirmed the amount to be paid by the petitioner as Rs. 6,11,204-44 ps. which included Rs. 300/- towards supervision charges.

In the counter-affidavit filed by the fourth respondent on behalf of the respondents the reasons given by the third respondent were reiterated. it is stated that from what was stated by the petitioner it is obvious that it installed additional connected loads as early as in 1983 and 1985 and that the petitioner cannot rely on communicating copies of the approval of the Chief Electrical Inspector to Government to Divisional Engineer (Operation), Vijayawada Town for straightaway connecting additional load because it ought to have applied for additional load to the Board and obtained sanction and should have got additional load released as per the procedure contemplated by the Conditions and as that was not followed, the petitioner committed malpractice. It is contended that it was the Board which had to approve the additions to the contracted load and release the said load. Though the approval of the Chief Electrical Inspector to Government was statutorily required for releasing the additional load or for releasing new service, that alone would not entitle the petitioner to connect the additional load without obtaining the sanction and release from the Board.

In the reply-affidavit, the petitioner placed reliance on B.P.Ms. No. 830 dated 25-8-1984 which, inter alia, provided as follows:

"2. After taking into account the various technical and other aspects related to H.T. services as distinguished from other categories of loads, it has been decided to adopt the following revised procedure in connection with dealing with the cases coming under exceeding the contracted load in the H.T. Services, whose maximum demand is recorded through proper metering.

Whenever the H.T. consumers are found in the commission of exceeding the contracted load unauthorisedly they should be notified by registered post acknowledgment due to apply for the additional load to the Distribution Engineer concerned and obtain the acknowledgment thereof. No application fee need be collected in such cases.

The additional load should be regularised within three months of installation of additional connected load.

No supervision charges need be levied in cases of this type.

In the event of failure on the apart of the consumer to adhere to the above procedure the inspecting officers are free to take action as prescribed in the schedule to clause 39.1.2 of the terms and conditions of supply, based on the matters noticed at the time of original inspection and detection of the unauthorised connected load".

The learned counsel for the petitioner placed strong reliance on this. According to him, this was in force at the relevant time when the petitioner installed the additional load and intimated to the concerned Divisional Engineer about the approval of the additional load by the Electrical Inspector on 7-1-1983 and 3-6-1985. The learned Counsel points out that in spite of this intimation no action was taken by the officers of the Board requiring the petitioner to regularise the installation of the additional connected load and that by the time the inspection was made on 13-1-1990 and the notice was issued by the Assistant Divisional Engineer vide letter dated 30-1-1990, Condition 39.1.2. stood amended in 1989 itself by virtue of B.P.Ms. No. 1329 dated 23-12-1989, whereby the excess contracted load approved by the Chief Electrical Inspector to Government, in respect of which intimation was given to the authorities concerned within three months, could not have been treated as a malpractice. The learned counsel also points out that subsequently Conditions 39.1.2(c) and 39.1.2(d) were deleted under B.P.Ms. No. 105 dated 23-9-1992. He submits that, under the circumstances, at least after B.P.Ms. No. 830 dated 25-8-1984, the Conditions never intended that increasing connected load beyond the contracted load after due approval of the Electrical Inspector was not considered as a serious violation of the Conditions and was treated as something which could be readily regularised. Thus, after B.P.Ms. No. 830 dated 25-8-1984 was issued it was made clear that even after the authorities of the Board found that any consumer had exceeded the contracted load he could be given an opportunity to regularise the same by making application for the additional load to the concerned Engineer and, even if the consumer did not regularise the said additional load within three months of the installation, discretion was given to the authorities concerned whether to take action or not under Condition 39.1.2. of the Conditions as in force at that time. After Condition No. 39.1.2 was amended under B.P.Ms. No. 1329 dated 23-12-1989, under clause (d) of the amended Condition 39.1.2, only excess contracted load approved by the Chief Electrical Inspector to Government but not intimated within three months from the date of such approval in the case of H.T. services was made a malpractice; which means that, if intimation was made within three months from the date of such approval, it could not have been treated as a malpractice.

Mr. J. Siddaiah learned Standing Counsel for the Board, contends that in the present case, though intimation was given, that intimation was long before the said B.P.Ms. No. was issued i.e. long before 23-12-1989 as admittedly the intimation was made only in the year 1985 and that, therefore, the petitioner could not have relied upon this intimation''. We are not inclined to accept this contention of the learned Standing Counsel, firstly because the said Condition does not specify that it would be applicable only to cases where contracted load was exceeded after 23-12-1989. Even otherwise, in the present case, even though the contracted load was exceeded in 1983 and 1985 no action was taken by the authorities concerned under the Conditions then in force which enabled the consumer to regularise the excess load by affording opportunity even after inspection and discovery of the same; the inspection, in fact, was made only after the Condition was amended under B.P.Ms. No. 1329 dated 23-12-1989 and it is not the case of the respondents that the petitioner exceeded contracted load after the B.P.Ms. came into force on 23-12-1989 though inspection was made after that date. Obviously, it related to an event which occurred long before the said B.P.Ms. was made. Under the circumstances, the petitioner could certainly rely on the Conditions in force as on the date of the inspection and, as on that date, it cannot be disputed that there was no exceeding of the contracted load after the said B.P.Ms. came into force and the exceeding of the contracted load was with the intimation of the approval by the Electrical Inspectorate to the concerned Engineers of the Board.

We can also look at the matter from a different angle. In view of B.P.Ms. No. 830, dated 25-8-1984, the petitioner had a clear opportunity to regularise the excess contracted load even after the discovery made by an inspection by the authorities concerned of the Board. Even if no such inspection was made at all and the petitioner failed to regularise within three months of the installation of the additional connected load as already pointed out, it is open to the authorities concerned not to take any action under Condition 39.1.2. In the present case, the respondents do not dispute the fact that the petitioner had informed the Assistant Divisional Engineer (Operation) at Vijayawada by letter dated 26-6-1985 about the approval given by the Electrical Inspectorate for the additional load beyond the contracted load. It follows that the respondents were aware at the relevant time about what the petitioner did; in spite of which no action was initiated by them under Condition 39.1.2 which was in force at the relevant time. From this, we have to construe that the respondents had not taken any objection to the increasing of the connected load by the petitioner at the relevant time. From this it follows that it was not open for them to take any action in that regard after a lapse of nearly five years and that too after Condition 39.1.2 was amended under B.P.Ms. No. 1329 dated 23-12-1989 introducing clause (d).

Viewed from any angle, therefore, we find that no malpractice was made out in respect of which the respondents could penalise the petitioner by imposing exorbitant penalty of Rs. 6,11,204-44 Ps. We are, therefore, of the view that no basis is made out for the impugned assessment for the alleged malpractice. Writ Petition has, therefore, to be allowed.

The learned Counsel for the petitioner drew our attention to the fact mentioned in the affidavit filed in support of the petition that the petitioner had paid a sum of Rs. 1,55,000/- pursuant to the orders of this Court in W.P.M.P. No. 1567 of 1992 in Writ Petition No. 2000 of 1990 dated 29-1-1992, which was filed by the petitioner questioning the provisional assessment made by the Assistant Divisional Engineer (Operation), Andhra Pradesh State Electricity Board at Gunadala by his letter dated 30-1-1990. That Writ Petition was dismissed as infructuous on 5-2-1997, in view of the fact that final assessment was already made and the present Writ Petition was already preferred and was pending. He states that a further sum of Rs. 1,56,204-44 Ps. was paid pursuant to the interim direction of this Court dated 12-2-1993 passed in W.P.M.P. No. 1885 of 1993 in the present Writ Petition. Thus, in all, a sum of Rs. 3,11,204-44 ps. was paid by the petitioner in part compliance with the impugned assessment. As we are inclined to set aside the assessment, the respondents will have to repay this amount by way of adjustment towards the future consumption bills raised against the petitioner.

The Writ Petition is accordingly allowed. The repayment of Rs. 3,11,204-44 ps. shall be made forthwith by adjustment towards the bills raised from May 1997 onwards. The petitioner shall have its costs.