HON’BLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.9000 of 2004 DATE: 03.06.2014 Between:
M/s Charbhai Bidi Works, Bodhan Road, Malapalli Nizamabad, rep. by its GPA & others ... Petitioners And AP TRANSCO, rep. by its Managing Director Hyderabad & others … Respondents The Court made the following:
HON’BLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.9000 of 2004 ORDER:
Heard the learned counsel for the petitioners. None appears for the respondents nor counter-affidavit is filed even after ten years. Since this is a case of 2004, this matter is being disposed of after hearing the learned counsel for the petitioners.
2. Petitioners 1, 3 and 4 are the partnership firms, registered under the Indian Partnership Act. The 2nd petitioner is a partner of 1st petitioner firm and all the petitioners are engaged in manufacturing of bidis and are having offices and manufacturing units at Nizamabad, Adilabad etc. Petitioners 3 and 4 took premises on lease from the 1st petitioner and they applied for service connections to the respondents and they were released on 28.10.1994. The 1st petitioner was using contracted load of 15 KW and 25 KW under service connection Nos.24473 and 39572 under Category II, the 2nd petitioner drawing contracted load of 23 KW under SC No.39570 under Category I and petitioners 3 and 4 are drawing power through SC No.39571 under Category II with contracted load of 24 KW and they have been paying the bills raised by the respondents. While so, the 4th respondent issued letter D.No.187, dated 24.05.2001 informing the 1st petitioner that as per APTRANSCO norms, multiple LT service connections are not permissible and requested to apply for supply of power under HT category within 30 days. The 4th respondent also assessed HT charges payable for the period 28.10.1994 to 20.04.2001. The said proceedings of the 4th respondent were objected by the 1st petitioner vide its letter dated 11.06.2001, as one connection is a domestic connection and it cannot be clubbed with other connections. It was also pointed out that the firms owned by petitioners 3 and 4 are separate and distinct.
3. Learned counsel for the petitioners states that the service connection No.39571 supplying electricity to petitioners 3 and 4 was surrendered on 13.11.2002 and the same was accepted by the respondents vide letter dated 04.06.2003. Petitioners 2 and 4 (petitioners 1 and 2) through their letter dated 01.08.2001 requested the 4th respondent to transfer the service connections in their names. Without considering the said request, the 4th respondent issued a notice dated 30.07.2001 stating that if the application is not made for conversion of the four service connections, the power connections will be disconnected without any further notices. Challenging the same, the 1st petitioner filed WP No.17823 of 2001 and the same was allowed giving liberty to the respondents to issue fresh show cause notice to the petitioner setting out the proposal to club the establishments as one after recording reasons for such decision in exercise of discretion available under Clause 27 of the terms and conditions of supply. The said order was passed on 29.08.2001.
4. Pursuant to the said order of this Court dated 29.08.2001, the 4th respondent issued a notice dated 29.01.2002 informing the 1st petitioner that all the four service connections are in one premises and are in the name of the 1st petitioner only and also all the meters were fixed in one room and are being used for one purpose and the self generation system is covering the entire four service connections. Accordingly, he proposed to bring the service connections into one connection under HT category. To the said notice, petitioners submitted a representation to the 3rd respondent challenging the opinion of the 4th respondent. The 4th respondent after considering the representation of the petitioners passed an order on 12.07.2002 treating all the four service connections as one single HT service as on the date of release of additional three services i.e., dated 28.10.1994 and also directed the petitioners to pay back billing assessed amount. The petitioner preferred an appeal to the 2nd respondent and the 2nd respondent passed an order on 19.04.2004 dismissing the appeal with the following observations:
“The appeal filed by the appellant is gone through, and the following points are replied to the satisfaction of the appellant.
1. Retrospectivity in this case is a must since due to the releasing of the (3) Nos.LT services with a sanctioned contracted load of 72 KW in addition to the already existing one with a 15 KW in the same name, in the same premises was happened on 28.10.1994 and resulted in heavy loss of revenue to the NPDCL, due to avoiding HT supply;
2. Dependency upon some body’s suggestion cannot reduce the seriousness of the loss of revenue, since ignorance of law is not an excuse;
3. Back billing is not an imposition. It is mere an assessment through which the consumer is being requested to compensate the loss of revenue, which was caused to the department due to one reason or the other at a normal tariff rate.”
Challenging the same, the present writ petition was filed.
5. Learned counsel for the petitioners made the following submissions:
1. Though all the service connections were there in the name of the 1st petitioner as owner of the premises, the service connections were enjoyed by individual consumers, who are different entities, as they were registered firms under the Indian Partnership Act and all the service connections cannot be clubbed together.
2. T h e service connection enjoyed by the 2nd petitioner is a domestic service connection and it cannot be clubbed under HT category.
3. Even assuming that clubbing can be done, there cannot be any question of back billing with retrospective effect, as the proceedings were initiated only in 2001 and the connections were released on 28.10.1994.
4. The power of discretion under Clause 27 lies with the Board only and that discretion cannot be exercised by the 4th respondent.
5. Though the 4th respondent in his show cause notice dated 29.01.2001 directed the petitioners to submit a representation to the 3rd respondent, the 4th respondent himself passed an order on 12.07.2002 and there was no explanation filed before him, but filed before the 3rd respondent.
6. Finally he submitted that the 2nd respondent mechanically affirmed the orders of respondents 3 and 4 without adverting to the grounds raised by the petitioners properly.
6. After passing of the order by this Court on 29.08.2001 in WP No.17823 of 2001, the petitioner was issued a show cause notice by the 4th respondent stating that the premises was inspected by the ADE.DPE-I, Karimnagar on 20.04.2001 and four service connections were noticed to have been available in one premises within one compound wall and in the name of the 1st petitioner and he also proposed to assess the back billing at Rs.10,01,452/- for the period from 28.10.1994 to 20.04.2001 and requested the petitioner to make a representation to the 3rd respondent. The petitioner accordingly made a representation to the 3rd respondent on 27.02.2002 raising the following objections.
1. In the constructed residential house M/s Char Bhai Beedi works taken ground floor on lease under lease deed dtd.1.4.1992 and its sisters concerns viz., Hyderabad Beedi manufacturers and Arshad & Company taken upper floor portions on lease under separate lease deeds dt.1.1.1993 and 1.1.1994 respectively.
2. Consumption of energy under four services are separate and distinct;
3. Sri Abdul Jameel Khan for the purpose of convenience and on advise of Asst. Divl.Engineer/Operation/ Nizamabad, applied for four services in the name of Char Bhai Beedi Works and for purpose of convenience of recording the meter reading fixed in one room and bills are being paid by the respective consumers;
4. The SC.No.24473, 39572 are being used by M/s Charbhai beedi works and the SC.No.39570 is residence of Sri Abdul Jameel Khan and SC No.39571 is office of Hyderabad Beedi Manufacturers and Arshad & Company and requested for transfer;
5. Requested to drop the proceedings as they are separate establishments.
The said objections were nagatived and all the four service connections were treated as one single HT service as on the date of release of additional three services on 28.10.1994 by order of the 4th respondent dated 12.07.2002.
7. It is surprising to note that the 4th respondent himself passed an order when he directed the petitioner to submit a representation to the 3rd respondent and the petitioner submitted a representation to the 3rd respondent accordingly. Learned counsel for the petitioners states that no copy of the representation was marked to the 4th respondent, but the 4th respondent in his order dated 12.07.2001 adverted to the objections raised by the petitioner. Thus, the 4th respondent has exercised the powers vested in the 3rd respondent. The 3rd respondent passed final assessment order on 24.01.2004 confirming the initial assessment of Rs.10,01,451.69 made by the 4th respondent on the ground that in view of 4 Nos. LT services in single premises, there was loss of revenue, as all the four services were situated in the same premises with single gate and single administrative office. The 3rd respondent brushed aside the lease deeds executed by the petitioners on the ground that they are made for internal understanding. Challenging the orders passed by respondents 3 and 4, the petitioners preferred an appeal to the 2nd respondent. The 2nd respondent in his order dated 19.04.2004 while confirming the orders passed by respondents 3 and 4 opined that the 1st petitioner was given service connections with sanctioned contracted load of 15 KW on 10.05.1987 and subsequently, on his application, three more service connections consisting of two non domestic service and one domestic service was released on 28.10.1994. He stated that the sanctioned contracted load of all the four LT services put together comes to 87 KW, which is (87- 56) 31 KW more than that of 56 KW which is allowed under LT Category. He accordingly confirmed the back billing for Rs.10,01,452/- and held that the appeal preferred by petitioners 2, 3 and 4 have no legal value since they are not the registered consumers of the company. He also upheld the orders of the 4th respondent clubbing the services under HT billing system from 21.04.2001 onwards.
8. Clause 27 of the Terms and Conditions of the supply contained in BP Ms.No.690 dated 17.09.1975, reads as follows:
“27. For the purpose of these terms and conditions of supply, establishments
27.1 having distinct wet up and staff or;
27.2 owned or leased by different persons or
27.3 covered by different licenceses or registrations under any law where such procedures are applicable, will be deemed to be separate establishment. Provided that the BOARD may treat at its discretion, two or more separate establishments situated within a single premises owned or leased by the same person and requiring electricity for purposes covered under same category of tariff, as single establishment.”
9. A perusal of Clause 27.2 shows that if the premises is owned by different persons, they will be treated as separate establishments, but the Board may treat, at its discretion, two or more separate establishments situated within single premises owned or leased by the same person under the same category and such discretion has to be exercised by the Board only, but not by its subordinates. In this case, the 4th respondent invoked the said power in his order dated 12.07.2002, which is clearly beyond his powers. It is also pertinent to notice that there is one domestic connection, which cannot be clubbed with HT service category. Clubbing of all service connections tried to be justified on the ground that all the four LT services put together comes to 87 KW, which is more than that of 56 KW which is allowed under LT category. In view of separate establishments, all LT services cannot be put together except by the Board. Hence, clubbing of all four LT services is contrary to the terms and conditions of the supply of BP Ms.No.690 dated 17.09.1975.
10. The order of the 2nd respondent dated 19.04.2004 states that consumption of the LT services available in the premises will be billed duly clubbing the consumption under HT billing system from 21.04.2001 onwards and it is not known how the back billing can be justified in the face of such an order. The entire proceedings emanated from the inspection of the Assistant Divisional Engineer dated 20.04.2001 and any decision based on the same cannot have retrospective effect unless supported by terms and conditions of the supply. As already stated above when the order of the 2nd respondent states that HT billing will be done from 21.04.2001 onwards, there cannot be any back billing before that date.
11. In the circumstances, the order passed by the 2nd respondent in Proceeding No.SE/OP/NZB/F.B.B/D.No.9/04 dated 19.04.2004 upholding clubbing of all service connections under HT category and back billing for the period from 28.10.1994 to 20.04.2001 is set aside and the respondents are directed to refund the amount of Rs.5,00,726/- deposited on 26.02.2004, within a period of three months from the date of receipt of a copy of this order.
12. The writ petition is allowed accordingly. Pending miscellaneous petitions in this writ petition, if any, shall stand closed in consequence. No order as to costs.
A. RAMALINGESWARA RAO, J
Date: 03.06.2014 BSS HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO 3 WRIT PETITION No.9000 of 2004 Date: 03.06.2014 BSS