HON’BLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.7058 of 2004 DATE: 03.06.2014 Between:
Hindustan Zinc Ltd., P.O. Zinc Smelter Visakhapatnam, rep. by its Senior Manager ... Petitioner And Eastern Power Distribution Company of A.P. Ltd., Rep. by its Chairman & Managing Director, Visakhapatnam & others … Respondents The Court made the following:
HON’BLE SRI JUSTICE A.RAMALINGESWARA RAO WRIT PETITION No.7058 of 2004 ORDER:
Heard the learned counsel for the petitioner and the learned standing counsel for the respondents.
2. The petitioner is a Joint Venture Company, incorporated under the Companies Act, 1956, in which the Government of India and Public Sector institutions are holding 31.13% shares. The petitioner is running a Zinc Smelter Unit at Visakhapatnam and it is a consumer of erstwhile APSEB and after formation of APTRANSCO, the petitioner entered into an agreement with it. The petitioner has been paying electricity charges in accordance with tariff fixed from time to time. The petitioner is entitled to incentives as per the tariff order issued by the Andhra Pradesh Electricity Regulatory Commission (APERC) and this fact is not disputed by the respondents. The incentive for higher load factor achieved in the previous months will be reflected in the bill of succeeding month. Accordingly, during the month of January 2004, it has achieved the load factor of 100.84% and the petitioner is entitled for 25% discount on the excess component of energy and the same was permitted by the 1st respondent in the electricity bill dated 26.02.2004 issued in the month of February, 2004. The petitioner accordingly paid the said bill. However, the petitioner received the bill for the month of March, 2004, where in a sum of Rs.5,45,382.90 has been included under the head ‘other charges’. It is stated by the learned counsel for the petitioner that the present dispute is concerned with the said amount of Rs.5,45,382.90. He further states that pursuant to the interim orders of this Court dated 19.04.2004, the incentive was being allowed for the subsequent months. Learned counsel for the petitioner further states that on oral enquiry he came to know that because of some outstanding amounts in connection with the disputed dues, the incentive was stopped and he submits that such an action of the respondents is unwarranted, as they have separate remedy with regard to recovery of arrears, if any, and that cannot be linked to the payment of incentive, which he is entitled under the tariff orders issued by the APERC.
3. The respondents filed counter-affidavit through the 2nd respondent admitting that the petitioner is one of the consumer of the APEPDCL under Operation Circle, Visakhapatnam, with a Contracted Maximum Demand (CMD) of 10,000 KVA. The counter further states that the APTRANSCO, Hyderabad, vide Memo No.CE(Comml.)/AAO/Tariff/ 2001-2002/329/01, dated 26.04.2001, introduced scheme of incentive to Category-I HT consumers with certain conditions and the said conditions are as follows:
i. The eligibility for rebate (incentive) is subject to the condition that the consumer should not have any outstanding dues to the TRASCO/DISCOM.
ii. The consumption during the month should be above the average monthly consumption for the financial year 2000-2001;
iii. Also the current month consumption should be the above actual consumption for the corresponding month of the financial year 2000-2001.
iv. The load factor should be more than 40%.
Basing on the said scheme, the AP TRANSCO has issued working instructions vide Memo No.CE(Comml.)/AAO/(Tariff)/2001- 2002/329/01 dated 26.04.2001 for allowing discount for HT Category-I Consumers for the excess energy consumption over previous years, making it subject to the condition that the consumer should not have any outstanding dues. The said condition was laid down in para 3 of the Annexure II to the Tariff Orders of 2003-2004 communicated vide A P T R A S N C O, Hyderabad’s letter No.CE(Comml.)Tariff/2002- 2003/138/02 dated 1.4.2002, which was adopted in the Tariff orders of 2003-2004 “as it is” as per the working instructions communicated vide letter dated 31.03.2003. The counter further states that by oversight the incentive allowed for the month of January, 2004 in the bill of February, 2004, but the same was rectified in the month of March, 2004.
4. Thus, the counter does not dispute the eligibility of the petitioner for the incentive but it rests its defence on the alleged condition incorporated in para 3 of Annexure II to the working instructions of Tariff Orders 2002-2003 stating that incentives are not made available to the consumers who have outstanding dues.
5. Learned counsel for the petitioner states that the said condition is not available in the tariff order issued by the APERC, which is a statutory body and on the other hand, the APCPDCL in its Memo dated 12.12.2002 has decided to allow eligible incentive amounts to the HT Cat.I consumers as per the tariff order without linking with outstanding dues. Thus, it is clear that linking of outstanding dues is without authorisation of the tariff order issued by the APERC. As rightly pointed out by the learned counsel for the petitioner, separate remedies are available to the respondents for recovery of the outstanding dues from the consumers. Allowing incentives is in pursuance of the tariff order issued by the statutory body like APERC. Learned standing counsel for the respondents is unable to show any condition in the tariff order disentitling the petitioner for the incentive on the ground that outstanding amounts are there. In any event, learned counsel for the petitioner states that the said outstanding amounts are also subject matter of litigation in the proceedings before this Court and also before the Supreme Court.
6. In the facts and circumstances, I am of the view that the action of the respondents in linking the outstanding dues for allowing the incentives to the petitioner is contrary to the tariff order issued by the APERC and it is beyond their powers. Since there is no dispute with regard to eligibility of the petitioner to get incentives, the subsequent allowance of incentives pursuant to the interim orders of this Court dated 19.04.2004, can be held valid.
7. In the result, the writ petition is allowed directing the respondents to grant incentives to the petitioner in accordance with the tariff order for the year 2003-04 as published by the 1st respondent in Memo No.CGM/R&P/EPDCL/VSP/F-Tariff 2003-04/D.No.916/03 dated 24.05.2003. 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 4 WRIT PETITION No.7058 of 2004 Date: 03.06.2014 BSS