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Judgment
K. Mohan Ram, J.—The prayer in the writ petition is for the issuance of a Writ of Certiorari to call for the records of the impugned undated letter of the Respondent herein in LRND.SE/MEDC/MDU/DFC/HT/AS/F BOAB 2005-2006/DNO 553/06 dated ...06.2006 and quash the same.
The short facts that are necessary for disposal of the above writ petition are set out below:
(i) The Petitioner is provided with an electricity service connection in H.T.S.C. No. 138 for 400 KV. According to the Petitioner, electricity charges has to be charged under tariff I, it being a textile unit, but instead the Petitioner was charged under tariff III from August 1998 to November 1998 and hence the Petitioner filed O.S. No. 26 of 1999 before the District Mun-sif Court, Thirumangalam for the relief of mandatory injunction to adjust the excess amount paid by the Petitioner-mill and not to disconnect the electricity service connection for non-payment of December 1998 electricity bill. The said suit was dismissed and the appeal filed by the Petitioner in A.S. No. 168 of 2003 was also dismissed on 08.02.2005 by the III Additional Sub Court, Madurai.
(ii) According to the Petitioner thereafter the Petitioner approached the Respondent for payment of arrears of consumption charges in instalments; the Petitioner was permitted by the Respondent to pay the ar-rears of consumption charges in 9 instalments and the Petitioner executed an undertaking in Form-5 on 08.07.2005 and the Petitioner paid all the instalments as per the schedule without any default.
(iii) While so, the Respondent by an undated proceedings demanded a sum of Rs. 18,69,335/- from the Petitioner being the Belated Payment Surcharge (hereinafter referred to as "BPSC") for the delay in payment of consumption charges for the period from December 1998 to August 1999, stating that the said demand is being made on the basis of the audit report and a copy of the audit report was also enclosed with the demand and the Petitioner was put on notice that unless the amount is paid within 15 days the service connection will be disconnected. The said demand is being challenged in the above writ petition.
The contention of the Petitioner is that as per Regulation 5 (4) (viii) surcharge can be levied only in cases were there is default in the payment of the instalments and when the Petitioner has paid all the instalments as per the schedule, the Respondent is no entitled to make the demand towards BPSC.
Though the Respondent has not filed a counter affidavit, the learned Standing counsel for the Respondent on the basis of written instructions received from the Respondent made his submissions.
Heard both.
The Learned Counsel for the Petitioner submitted that the original demand for the period from December 1998 to August 1999 was Rs. 31,09,070/- and pursuant to the interim orders passed in O.S. No. 26 of 1999, 50% of the amount viz., a sum of Rs. 15,54,606/- was paid and the remaining amount of Rs. 15,54,464/- was permitted to be paid in 9 instalments by the Respondent and the Petitioner executed an undertaking in Form-5 and the Petitioner promptly paid all the 9 instalments as undertaken without any default. The Learned Counsel further submitted that in the undertaking itself the Petitioner has undertaken to pay the said amount in monthly instalments subject to levy of BPSC, in case of default to pay the instalments on the dates specified therein and therefore the Learned Counsel submitted that the Petitioner will be liable to pay the BPSC, only if the Petitioner had committed default in paying the said instalments but not otherwise. The Learned Counsel for the Petitioner further contended that as per Rule 5(4) (viii) of the Tamil Nadu Electricity Supply Code 2004 (hereinafter referred to as ''the code'') the BPSC can be demanded only in the case of short assessment which is permitted to be paid in installments and the surcharge shall accrue only when there is default in the payment schedule and the Petitioner''s case is not one of short assessment and therefore the demand for BPSC is not sustainable.
To appreciate the contention of the Learned Counsel for the Petitioner, it will be useful to extract the relevant provisions of the code. Rule 5 (4) of the Code deals with BPSC and the same reads as follows:
5 (4) Belated Payment Surcharge (BPSC)
(i) All bills are to be paid in the case of HT consumers, within the due date specified in the bill and in the case of LT consumers, within the due date and notice period specified in the consumer meter card.
(ii Where any HT consumer neglects to pay any bill by the due date, he shall be liable to pay belated payment surcharge from the day following the due date for payment. Where any LT consumer neglects to pay any bill by the last day of the notice period, he shall be liable to pay belated payment sur-charge from the day following the last day of the notice period. The surcharge shall be for a minimum period of fifteen days and where the delay exceeds fifteen days but does not exceed one month, it shall be for one whole month and where the delay exceeds one month, it shall be for the number of whole months and for any fraction of a month it shall be proportionate to the number of days.
(iii)....
(iv)....
(v) In the case of HT consumers, the surcharge shall be 1.5% per month for the notice period. However, for the consumers who are availing of extension of time beyond the notice period, on an application to the licensee, the BPSC shall be at 3% per month from the expiry of the due date allowed for payment for a full month irrespective of number of days delayed. Where no extension of time is granted or the delay continues after the expiry of extended time, the surcharge shall be at 1.5% per month.
(vi). ...
(vii). ...
(viii) In the case of short assessment permitted to be payable in instalments, the surcharge shall accrue only when there is default in the payment schedule and the surcharge shall be worked out from the day following the day on which the installment fell due and shall be payable along with the amount of installment due.
A reading of the above provisions makes it clear that where any HT consumer neglects to pay any bill by the due date, he shall be liable to pay the BPSC from the day following the due date for payment and in the case of HT consumers, the surcharge shall be 1.5% per month for the notice period and however for the consumers who are availing of extension of time beyond the notice period, on an application to the licensee, the BPSC shall be at 3% per month from the expiry of the due date allowed for payment for a full month irrespective of number of days delayed. In the case on hand, the Petitioner has admittedly not paid the bill amount by the due date. Instead of paying the bill amount as demanded, the Petitioner chose to file a civil suit as stated above, which was ultimately dismissed by the Trial Court and the judgment and decree was confirmed by the Appellate Court. The Petitioner had the benefit of interim orders passed by the Trial Court and paid 50% of the bill amount as per the Trial Court''s order and the remaining amount was paid in 9 instalments as permitted by the Respondent. In such circumstances the question is as to whether the Respondent is entitled to demand BPSC.
The contention of the Learned Counsel for the Petitioner based on Rule 5 (4)(viii) of the code is untenable. Admittedly, this is not a case of short assessment, but that does not mean that the Petitioner is not liable to pay the BPSC, since the Petitioner has not paid the bill amount by the due date and had prevented the Respondent from collecting the bill amount by obtaining interim orders from the civil court.
The Learned Counsel for the Respondent submitted that but for the interim orders granted by the Civil Court, the Respondent would have taken steps to collect the bill amount and by virtue of interim orders granted by the Civil Court, the Petitioner withheld the balance of the bill amount and enjoyed the benefit of the said amount and once the civil court has dismissed the suit, the parties to the suit should be restored back to their original position.
The said rival contentions have to be considered in the light of the law laid down by the Apex Court in the case of Adhoni Ginning Factory v. Andhra Pradesh Electricity Board reported in 1979 (4) S .C.C. 550. In the said decision rendered by the Supreme Court, it is held as follows:
... The injunction granted by this Court restraining the Government from realising the arrears of enhanced charges.... All that the injunction did was to restrain the Board from realising the arrears which meant that the Board was restrained from taking any coercive action such as disconnection of supply of electricity, etc., for the realisation of the arrears. The operation of G.O. No. 187 dated January 30, 1995 as such was not stayed. Thus the obligation of the consumers to pay charges at the enhanced rates was not suspended though the Electricity Board was prevented from realising the arrears. It was up to the consumers to pay or not to pay the arrears. If they paid the arrears they relieved themselves against the liability to pay surcharge. If they did not pay the arrears they were bound to pay the surcharge if they failed in the appeals before the Supreme Court....
Further, the Learned Counsel for the Electricity Board relied upon a judgment of the Apex Court in Kanoria Chemicals and Industries Ltd. and Others Vs. U.P. State Electricity Board and Others, wherein it is held as follows:
....It is equally well settled that an order of stay granted pending disposal of a writ petition / suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court ....
It is to be further noted that there is no provision for waiver of BPSC in the Code as notified by the Tamil Nadu Electricity Regulatory Commission. A reading of the above said decision rendered by the Apex Court makes it abundantly clear that an order of stay/injunction granted pending disposal of a writ petition / suit or other proceedings comes to an end with the dismissal of the substantive proceedings and that it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court and therefore in the considered view of this Court, the Electricity Board is entitled to claim BPSC. Admittedly, when the suit was dismissed and the appeal filed against the dismissal of the suit was also dismissed and the interim orders passed by the civil Courts came to an end, the Electricity Board is well within its right to make a demand for BPSC. Therefore, the impugned proceedings cannot be said to be erroneous or arbitrary or vitiated. Therefore, I find no merit in the contention of the Learned Counsel for the Petitioner. Further as pointed out above, the contention of the Learned Counsel for the Petitioner based on Rule 5(4)(viii) is untenable, as the instant case is not one of short assessment.
The Learned Counsel raised yet another contention namely that in the notice of demand dated 16.06.2005 for the sum of Rs. 15,15,464/-, the Respondent had not demanded BPSC and therefore the Learned Counsel submitted that the Respondent cannot subsequently demand BPSC. Simply because the Respondent had not included the amount due towards BPSC in the demand notice dated 16.06.2005, it cannot be said that the Respondent is estopped from claiming the same pursuant to the audit report pointing out the liability of the Petitioner to pay BPSC. The case of the Petitioner is covered by Rule 5(4)(ii) of the Code as already pointed out and admittedly the Petitioner had not paid the bill amount within the due date and had taken advantage of the interim orders granted by the Civil Court. Had the Petitioner paid the entire bill amount in time without taking recourse to the civil court, the Petitioner would not have made himself liable to pay the BPSC.
For the foregoing reasons, the writ petition fails and the same is dismissed. No costs. But however the Learned Counsel for the Petitioner submitted that in view of the financial crisis faced by the Petitioner and also considering the fact that the Petitioner is a sick textile unit, the Petitioner may be permitted to pay the BPSC amount of Rs. 18,69,335/- in 6 equal monthly instalments. Mr. M. Suresh Kumar, Learned Counsel for the Respondent fairly submitted that the Petitioner may be permitted to pay the said amount in three equal monthly instalments with a default clause.
Considering the said submissions made by the Learned Counsel on either side, the Petitioner is permitted to pay the amount of Rs. 18,69,335/- in three (3) equal monthly instalments. The first instalment shall be paid on or before 02.09.2006, the second instalment shall be paid on or before 02.10.2006 and the third instalment shall be paid on or before 01.11.2006 and if the Petitioner commits default in payment of any one of the instalments, the entire amount will become due.
No costs. Consequently, the connected MP is closed.