JUDGMENT Yatindra Singh, J.
1. This appeal revolves around interpretation of that part of Tariff order 2000-01, which relates to category HV-2 (Large and Heavy Power) consumer (the HV-2 consumer), who are getting power supply on independent feeder emanating from 400/220/132 KV Sub-station. Such a consumer is assured 500 hours of electric power supply in a month and in case of failure to fulfil this assurance, the consumer is also entitled to rebate. However for this benefit the consumer is liable to pay 15% surcharge on demand and energy charges. The main question in this appeal is, 'Whether such a consumer is further liable to pay additional surcharge of 15%, if it is getting electric power during restricted hours'.
THE FACTS
2. M/s Northern Coalfield Ltd (the NCL) has coal fields in district Sonebhadra in UP and district Sidhi in MP. It has taken two power connections from the UP Electricity Board (the Board). The first was for 2850 KVA load and was taken on 12.9.1989 for integrated water supply scheme at Khadia (IWSS Khadia connection). The second one was for 20 MVA load and was taken on 20.11.1999 for coal mining purposes at Bina (NCL Bina connection). These two connections are from 2 x 20 MVA sub-station at Bina (sub-station Bina) and are through different 33 KV Lines.
3. The Board was constituted under the Electricity (Supply) Act 1948; it was looking after generation and supply of electricity in this State. The Board has been replaced by the UP Power Corporation Ltd. (the Corporation) constituted under UP Electricity Reforms Act 1999 (the 1999 Act). The two connections taken by the NCL are now being managed by the Corporation.
4. The UP Electricity Regulatory Commission (the Commission) was constituted under the Electricity Commission Act, 1998 (the 1998 Act) enacted by the Parliament. However, our State enacted the 1999 Act for restructuring the electricity industry in this State. Under the 1999 Act, the rationalisation of generation, transmission, distribution, supply and tariff of the electricity is to be regulated by an independent electricity regulatory commission. The 1999 Act has adopted the Commission established under the 1998 Act. The 1999 Act is the State Act; the President has given his assent to it: it overrides the 1998 Act to the extent of repugnancy. At present, the Parliament has enacted the Electric Supply Act 2003 (the 2003 Act), but the dispute is to be decided within the parameters of the 1999 Act (as it stood at the relevant time) rather than the 2003 Act.
5.The Commission took up the question of revising the tariffs under section 24 of the 1999 Act and the tariff order 2000-01 was issued on 27.7.2000. The Corporation adopted the tariff by its notification on 9.8.2000 and these rates became applicable from that date. Tariff has been changed form 15.9.2001 for the subsequent period and the dispute in this writ petition is confined to the tariff from 9.8.2000 to 15.9.2001 for the HV-2 consumer. The relevant part of the tariff order dated 27.7.2000 and the notification dated 9.8.2000 are appended to this judgement as Appendix-I and Appendix-II respectively. The rates and the surcharge for the HV-2 consumers are indicated in a table in the tariff order 2000-01. This table is also reproduced in Appendix-1. It has two columns and four rows. It is being referred to as the Table or the column or the rows as the case may be. The third row of the Table provides 15% surcharge for getting power supply during restricted hours. The fourth row of the Table provides 15% surcharge for getting power supply on independent feeder emanating from 400/220/132 KV sub-station. The interpretation of these two rows is involved in this appeal.
6. The NCL filed an application before the Commission on 4.7.2004 for clarification/review of the order dated 27.7.2000. On this application, counter affidavit was filed by the Corporation. The judgement was reserved on 29.11.2004 however the Commission granted time to the Corporation to file additional submission by 6.12.2004. It was filed on 15.12.2004. A copy of the additional submission was received by the NCL on 28.12.2004. It could not be replied by the NCL, as by that time the application of the NCL was already dismissed on 23.12.2004. The NCL has filed the present appeal against the order dated 23.12.2004 under section 36 of the 1999 Act.
POINTS FOR DETERMINATION
7. We have heard counsel for the parties (see End note-1). The following points arise for determination:
(i) Whether the application filed by the NCL before the Commission is maintainable.
(ii)Whether the application of the NCL was barred by time in view of regulation no. 138 of UP Electricity Regulatory Commission (Conduct and Service) Regulations, 2000 (the 2000 Regulations).
(iii) Whether the Sub-station Bina is 132 KV sub-station.
(iv) Whether the Commission ought to have given opportunity to the NCL to file its reply to the additional submissions filed by the Corporation on 15.12.2004.
(v) Whether the NCL is getting power supply on independent feeder for its two connections.
(vi)Whether the connections to other consumers from IWSS connection have been given at the instance of the NCL and it is estopped from disputing the status of IWSS connection as independent feeder.
(vii)What is meant by 'restricted hours' and 'peak hours'?
(viii)Whether the NCL is liable to pay 15% surcharge on demand and energy charges for getting electric power during restricted hours.
POINTS-I & II: APPLICATION-MAINTAINABLE
8. The Tariff order 2000-01 was issued under section 24 of the 1999 Act (see Appendix-III or relevant part of section 24). Regulation 138 of the 2000 Regulations empowers the Commission to review its order within 90 days. The application filed by the NCL is beyond 90 days but, is it an application for review or an application under section 26 of the 1999 Act (see Appendix-III for relevant part of section 26)?
9. Section 2(h) of the 1999 Act defines the word 'licensee'; it means a person who holds a licence and includes the provisional licensee referred to in clause (a) of sub-section (3) of Section 13 {Section 13(3)(a)} of the 1999 Act. Section 13(3)(a) states that the Corporation shall be the provisional licensee. Thus the Corporation is a licensee under section 2(h) of the 1999 Act.
10. Section 15 of the 1999 Act is titled as 'Grant of licence by the Commission'. It empowers the Commission to lay down conditions for transmission or supply of electricity and to issue directions. The order and directions of the Commission can be enforced by the Commission as a decree or order passed by the civil court and the Commission has power to execute it (section 27 of the 1999 Act). The Commission may also take assistance from the police (section 27 (2) of the 1991 Act). The tariff order is not only part of terms and conditions of the licence but is also direction to the licensee; it is binding on the licensee: the licensee has to adopt the same tariff as mentioned in the tariff order.
11. The application filed by the NCL does not indicate under which provision it has been filed. It is titled as an application for clarification/review but according to the NCL, It is not liable to pay any surcharge under the tariff order 2000-01.
The Corporation by charging the surcharge is contravening the terms and conditions of the licence.
The application is for enforcement of the tariff order 2000-01.
12. The Commission is empowered under section 26 of the 1999 Act to issue an order requiring the licensee to do, or to abstain from doing, such things as may be specified in the order for the purposes of securing compliance with the terms and conditions of the licence. The Commission while passing the order has to consider the factors mentioned in sub-section (2) of Section 26 of the 1999 Act; it exercises a kind of supervisory power over the licensees. The points raised in the application show that it is within the ambit of section 26 of the 1999 Act; it is maintainable. Regulation 138 is not applicable.
13. The NCL can not file a civil suit: it is barred under section 48 of the 1999 Act. A writ petition is maintainable but there being an alternative remedy-the NCL has rightly filed the application before the Commission.
POINTS-III TO VI: NCL BINA-AN INDEPENDENT FEEDER; IWSS KHADIA-
NOT AN INDEPENDENT FEEDER Sub-Station Bina is 132 KV Sub station.
14. The Corporation had filed its objection along with affidavit before the Commission. In this objection it was stated that Bina sub-station is 132 KV substation. Nothing has been brought to our notice to show that affidavit filed by the Corporation in this regard is incorrect or Bina sub-station is not 132 KV sub-station. We hold that Bina sub-station is 132 KV sub-station.
15. The counsel for the NCL submitted that:
Bina sub-station is supplying power to many consumers.
The power supply from it can never be on independent feeder.
16. The word 'Independent Feeder has not been defined in the tariff order 2000-01. It has also not been used in any statutory provision prior to the tariff order 2000-01. The word 'Feeder' and Independent feeder' came to be defined in the Electricity Supply Code 2002 (the 2002 Code) and then in Electricity Supply Code 2005 (the 2005 Code). These codes have been issued by the Commission. The word 'Feeder' has been similarly defined in both the Codes and it is as follows.
'Feeder' means an HT or EHT distributor, emanating from a sub-station to which a distribution sub station or HT or EHT consumers are connected.
17. The word 'Independent Feeder' has been differently defined in the 2002 and 2005 Codes. The definition in the 2002 Code is as follows.
'Independent Feeder' means a feeder constructed at the cost of a consumer to supply electricity to only that consumer.
The definition in the 2005 Code is as follows:
'Independent Feeder' means a feeder emanating from a grid sub-station, for supplying electricity to a single consumer, or, a group of consumers having similar process, on the same or contiguous premises.
18. The definition of the word 'Independent Feeder' in the aforesaid codes is different. However, we have to interpret it in relation to tariff order 2000-01. In absence of any definition at that time we have to take its ordinary meaning. Independent feeder, in its ordinary sense, means a feeder that has no other consumer except the one for whom it is meant. In other words there should not be sub-station. An independent feeder does not cease to be independent because other feeders also emanate from that sub-station. The crucial question is whether there is more than one consumer on the same feeder or whether there is tapping of power from that feeder or not. If the answer is in affirmative then it is not an independent feeder. If the answer is in negative then it is an independent feeder.
NCL Bina Connection-Independent Feeder
19. There isn't any other consumer on NCL Bina connection. It is direct from Substation Bina. In view of this, the NCL Bina connection is an independent feeder emanating from 132 KV sub-station. It is covered under the fourth row of the Table. The NCL is liable to pay 15% surcharge on the demand and energy charges on this account on this connection.
IWSS Khadia Connection-Remand Not Necessary; Not an Independent Feeder
20. There is dispute between the parties whether there are some other consumers on IWSS Khadia connection or not. The NCL in paragraph 7 of the application before the Commission had stated that:
'Further, in case of power supply to IWSS, the respondent [Corporation] is providing power supply to Kota Basti (a private consumer) by tapping power from the same feeder. Hence, the existing arrangement cannot be treated as power supply through independent feeder to the applicant [NCL] as specified in the said rate schedule HV-2'.
21. The Corporation has replied paragraph 7 of the application filed by the NCL in paragraph 6 of its objection. It has been stated that the IWSS Khadia connection is an independent feeder but it is not specifically denied that the power is being supplied to Kota Basti sub-station also from the same feeder.
22. It appears that the Commission was having doubts whether IWSS connection is an independent feeder or not and though the judgement was reserved on 21.11.2004, yet the Commission gave time to the Corporation to explain this fact by 6.12.2004. The Corporation filed additional submission on 15.12.2004. Paragraph 4 of the additional submission is as follows:
'M/s IWSS is getting power through 33 KV IWSS feeder. This feeder emanates from 132 KV Bina substation and terminates at 33 KV substation in the premises of M/s IWSS. This feeder is tapped in between to feed power to 33 KV sub-station Kota. Kota substation was constructed to feed power mainly to the oustees (VISTHAPITO) [see Endnote-2] whose land was acquired for the NCL projects. The construction of 33/11 KV Kota substation and tapping of 33 KV Bina -IWSS trunk line has been done with the consent of M/s NCL'
23. In this additional submission, the Corporation admitted that the power is being supplied to Kota sub-station from the same feeder but according to them it is being done with the consent of the NCL. An estoppel is being pleaded against the NCL. The Commission accepted this assertion of the Corporation on the ground that it was not denied by the NCL.
24. The additional submission was filed after the judgement was reserved. It was received by the NCL after their application was dismissed. In case the Commission was relying upon any factual assertion made in the additional submission, then it ought to have given time to the NCL to reply the same. This ground was sufficient for us to allow the appeal and send the matter back to the Commission to reconsider the case regarding IWSS Khadia connection. However, we are not doing so as this appeal is on question of law as well as on the fact and we are deciding this point here.
25. The parties disagree whether any such consent for tapping the IWSS Khadia connection was given or not. The NCL specifically denied giving such consent in the rejoinder affidavit filed here. The Corporation was granted time to reply the same. It has filed two supplementary counter affidavits and a supplementary rejoinder affidavit has been filed. This point can be decided here.
26. There are four feeders from Kota Basti sub-station: one goes to the railway station, the second one to Khadia market, and the remaining two are spare. There is nothing to show that the NCL had given consent to give these connections or there was any understanding that despite tapping IWSS connection, it shall be treated as independent feeder. There are other consumers on IWSS connection. This connection is neither an independent feeder nor NCL is estopped from claiming it as such. The NCL is not liable to pay 15% surcharge on this account.
POINT-VII & VIII: LIABLE TO PAY SURCHARGE FOR GETTING POWER DURING RESTRICTED HOURS
27. The Corporation has issued the notification dated 9.8.2000 after the tariff order 2000-01. It is clear and indicates that the HV-2 consumer-getting power from independent feeder emanating from 400/220/132 KVA sub-station-has to pay 15% surcharge on demand and energy charges. It further shows that if such a consumer is getting power during restricted hours then it has to pay further surcharge of 15% (total 30%). Nevertheless the counsel for the NCL submitted that:
The tariff order does not contemplate payment of 15% additional surcharge on demand and energy charges by the consumers like the NCL if they are getting electric power during restricted hours;
The notification dated 9.8.2001 is not in conformity with the tariff order 2000-01;
In case of conflict, the tariff order shall prevail over the notification issued by the Corporation.
28. Indeed, a division bench of our court in LML Ltd Kanpur v.. State of UP: AIR 2001 Allahabad 321 (the LML case) has held as follow:
The scheme of the [1999] Act which we have referred to in detail clearly shows that a tariff approved by the Commission alone can be implemented by a licensee and it has no power to alter or vary the same. The circular of UPPCL [the Corporation] in so far as it is inconsistent with the tariff approved by the Commission is void and wholly inoperative in law.' This proposition is also not disputed by the parties. We have to interpret the tariff order 2000-01 independently to find out whether such surcharge is payable or not rather than the notification dated 9.8.2000.
29. The counsel for the parties relied upon paragraph 15 of the judgement in the LML case and submitted that the observations support their case. In the LML case, the following questions were involved:
. Whether the consumer was getting power supply from the independent feeder or not; and Whether the consumer-that was not getting power during restricted hours -was liable to pay 15% surcharge for getting power supply on independent feeder emanating from 132 KV sub-station.
30. The points involved here were not involved in the LML case. In that case the consumer was neither getting nor had used power during restricted hours. In this case the dispute is regarding surcharge for getting power during restricted hours. The observations in the LML case regarding this point are obiter. It is for this reason that we have not referred to them.
31. The tariff provided under the tariff order is contained in the Table. The third row of this Table states that the consumers getting power supply during restricted hours are liable to pay 15% surcharge on demand and energy charges. The fourth row of the table states that a consumer getting power supply on independent feeder emanating from 400/220/132 KV is liable to pay 15% surcharge. Thus a consumer-covered by both rows-is liable to pay total 30% surcharge. However, the counsel for the NCL submitted that:
. The third and fourth row of the Table should be interpreted in light of the paragraph immediately preceding the Table (the preceding Paragraph) and the third bulleted paragraph below the table (the third bulleted Paragraph) (for these paragraphs, kindly see Appendix-1), The first column in the third row in the Table should be read as 'for consumers getting power supply in restricted hours on feeder other than on independent feeder emanating from 400/220/132 KV sub station and The NCL is a continuous process industry. It falls into restricted/peak hour exempted category. The surcharge under third row of the Table is not applicable to it.
Neither any permission was taken by the NCL to use power during restricted hours nor in fact it was so insisted by the Corporation.
32. The preceding Paragraph is confusing. This confusion is further confounded due to,
(i) Use of the words 'restricted hours' or 'peak hours' in the tariff orders 2000-01 without defining them.
(ii)Continuing the restrictions on using electrical energy during certain hours in clause 8 of the UP Electricity (Regulation of Supply, Distribution and Consumption) Order, 1977 (1977 Order) but deleting the details of continuous process industries in 1984 from the 1977 order.
(iii)Removing the distinction between continuous and non-continuous process industries by Tariff order 2000-01 without properly explaining its effect on other matters.
33. In order to remove this confusion, we should first consider, What is meant by restricted hours and peak hours Whether there is any difference between the two.
Restricted/Peak hours
34. The State Government has issued many orders under section 22B of the 1910 Act. The Board has issued rate schedules under section 49 of the Electricity Supply Act 1948 (the 1948 Act). The Commission has issued tariff orders under the 1999 Act. In these, orders sometimes the words restricted hours are used; sometimes in its place 'Peak hours' are used; sometimes the words 'Restricted/Peak hours' are used; sometimes they are interchanged. In our opinion restrictions are imposed during certain hours as demand of electric power is at its peak during those hours. In our opinion these two phrases refer to the same hours but what are these hours?
35. The 1977 order introduced restrictions on use of electric power under clause eight. This order was issued under section 22B of the Indian Electricity Act, 1910 (the 1910 Act) as amended in our State which empowers the State Government to issue such order. This restriction on use of electrical power was initially between 18.00 hours to 22.00 hours. Later on, by the UP Electricity (Regulation of Supply, Distribution, Consumption and Use) (Fourth Amendment Order) 1979, it was changed to 18.00 hours to 22.00 hours from March to September and to 17.00 hours to 21.00 hours from October to February next year. The relevant part of clause 8 of the 1977 Order as amended is appended as Appendix-IV.
36. The 1977 order also provided details of continuous industries. The non-continuous process industries were restricted from using electric power during this time. The continuous process industries could use electric power during these hours but the rates of electric charges for them were higher than the rates prescribed for the non-continuous process industries. A non continuous process industry could use electric power during restricted hours after permission from the Board on the rates prescribed for the continuous process industry.
37. In the 1977 Order, initially the continuous process industries were defined in Annexure-ll to the 1977 order. Later on the same list of continuous process industries was inserted as schedule D by the UP Electricity (Regulation of Supply, Distribution, Consumption and Use (Third Amendment) Order, 1984. Subsequently this schedule D was also deleted by UP Electricity (Regulation of Supply, Distribution, Consumption and Use( Sixth Amendment) Order 1984 though clause eight of the 1977 order continued to provide details of restricted hours on use of electric energy.
38. Section 49 of the 1948 Act empowers the Board to supply electricity upon such terms and conditions as the Board may deem fit. The Board has also issued rate schedule 1997 and 1999. They were applicable w.e.f. 3.1.1997 and 23.6.1999 for the HV-2 consumer. These rates schedules also provide same list of continuous process industries that was earlier provided in the 1977 Order. They also provide same restricted hours on use of electric energy as was provided by the 1977 order namely from 18.00 hours to 22.00 hours each day between March to September and 17.00 hours to 21.00 hours between October to February next year. The relevant part of rate schedule applicable w.e.f. 3.1.1997 and 23.6.199 is appended as Appendix-V. Under these rate schedules issued by the Board, the continuous process industry consumer could use electric energy during restricted hours subject to payment of higher rates. A non-continuous process industry was prohibited from using electric power during these restricted hours. Nevertheless, the non-continuous process industry, subject to permission and payment of same rate as continuous process industry, could get and use electric power during these restricted hours. Considering these aspects, we are of the opinion that prior to Tariff Order 2000-01, the restricted/peak hours meant hours from 18.00 to 22.00 hours between March to September and 17.00 to 21.00 hours between October to February of next year.
39. The Tariff Order 2000-01 does not define the word restricted/peak hours. However it uses these words: some meaning has to be given to them. In our opinion they should have same meaning as given earlier in the orders issued by the State Government or in the rate schedule issued by the Board.
Liable To Pay Surcharge for Getting Power during Restricted Hours
40. The NCL is doing mining operation for excavating coal. The mining operation for coal was not included as continuous process industry in the 1977 Order or in the different rate schedules issued by the Board: it is deemed to be non-continuous process industry. Neverthless, it was agreed between the parties that the NCL would be exempted from restrictions. In short, the NCL was exempted from any restrictions on using electric power, but this was subject to payment of same rates as were applicable for continuous process industries.
41. Prior to Tariff order 2000-01, a distinction was made between non continuous process industry and continuous process industry. This distinction was removed under Tariff Order 2000-01. Every one, whether continuous process industry or non-continuous industry, has to pay same rate for electric charges. Let's consider the preceding Paragraph in light of what we have discussed above.
42. The information contained in the preceding Paragraph can be divided into the following three parts:
(i) A special rate of seasonal industries has been introduced.
(ii)To ensure availability of power to industries connected to independent feeders emanating from 132 KV, 220 KV, and 400 KV sub stations, they shall be allowed to operate during the peak hours as well. They will be able to do so by paying small additional charge of 15% of the amount of bill in a month.
(iii)These consumers will be ensured minimum 500 hours supply per month. In case of shortfall in the guaranteed hours of supply a rebate of 1% per 10 hours or part thereof shall be admissible on the total amount of the bill.
43. The first part of the preceding Paragraph namely 'A special rate of seasonal Industries has been introduced' is out of context from the rest of the paragraph. It ought to be under the heading 'Seasonal Industries'. This is also accepted by the counsel for the parties and we are ignoring this line while interpreting the approved tariff table as well as this paragraph.
44. The second part of the preceding Paragraph indicates that the consumers getting electric power on independent feeder emanating from 400/220/132 KV substation, don't have to take permission for use of electric power during restricted hours but this benefit is on payment of 15% surcharge. This is so mentioned in the third row of the table. The 15% surcharge is for the benefit availed by the consumers for getting electricity during restricted hours: they are liable to pay the same irrespective of whether they are getting power on independent feeder emanating from 400/220/132 KV sub-station or not.
45. The third part of the preceding Paragraph indicates that some benefit has been given to the consumers who are getting power supply from the independent feeder emanating from 400/220/132 KV sub-station. This benefit is that they are assured supply of minimum 500 hours in a month and in case the guaranteed power supply for 500 hours in a month is not given then the consumers are entitled to a rebate of 1% per 10 hours or part thereof. For this benefit, they have to pay 15% surcharge. This surcharge is not mentioned in the preceding Paragraph but is mentioned in the fourth row of the Table. The fact that this surcharge is not indicated in the preceding Paragraph is not important as the approved rates are in the Table and not in the preceding Paragraph. There is nothing in the preceding Paragraph to bar it.
46. It is not correct to say that third row of the approved Table does not apply to the consumers getting power supply on independent feeders emanating from 400/220/132 KV sub-station: it does apply to them. There is no justification to substitute the words in the first column of the third row as suggested by the counsel for the NCL.
47. The benefits given in the third and fourth row of the Table are different and it is for this that separate 15% surcharge is being levied. In case a consumer is availing both the benefits then it has to pay 15% + 15% i.e to say total of 30% surcharge on demand and energy charges. The consumers can not refuse payment of 15% surcharge for using the power supply during restricted hours merely on the ground that they are getting power supply on independent feeder emanating from 400/220/132 KV sub-station.
48. The NCL is not a continuous process industry. However, considering the importance of the NCL, it was agreed between the parties that it can use electricity during restricted hours but it has to pay higher rates as applicable to continuous process industry. Prior to 2000-01 there was no surcharge but different rates for electrical charges for those getting power during restricted hours and those not so getting. The fact that the NCL was exempted from restricted hours is not relevant for determining whether surcharge for getting electric power during restricted hour is payable or not. The only relevant thing is whether a consumer has got electric power during those restricted hours or not.
49. The third bulleted Paragraph states that the permission from the Corporation with intimation to the Commission is necessary for getting power supply during restricted/peak hours but this condition does not apply to the consumer getting power supply on independent feeder emanating from 400/220/132 KV sub-station in view of second part of the preceding Paragraph. They can always use power during restricted/peak hours. It is not necessary for them to obtain any permission. We have already held that NCL Bina connection is on independent feeder emanating from 132 KV sub-station and as such no permission was required. It not only got but in fact used power during restricted hours. The NCL is liable to pay 15% surcharge for getting electrical power during restricted hours on the NCL Bina connection.
50. In case the electric power is not being supplied on independent feeder emanating from 400/220/132 KV sub-station then permission of the Corporation is required. We have held that IWSS connection is not on independent feeder. It is not disputed that neither any permission was taken nor was any permission granted for using power during restricted hours for IWSS connection. In case it was not on independent feeder (as we have held) then it was necessary to obtain the permission. In these circumstances, whether the NCL is still liable to pay 15% surcharge for getting power during restricted hours on IWSS connection.
51. Surcharge of 15% is being levied for getting power during restricted hours and it is not being charged for taking permission. The permission is for the benefit of the Corporation so that it should know that the electric power shall be utilised during restricted hours. It does not mean that if no permission was taken but the power was supplied during restricted hours, then surcharge could not be charged. There can be two different ways of getting power during restricted hours, (i) With permission of the Corporation; (ii)Surreptitiously, without permission of the Corporation.
52. In case, the power is supplied with permission of the Corporation then there is 15% surcharge. In case the power is taken surreptitiously or by committing theft, then there is penalty for the same {kindly see Prachi Leathers v.. UPPCL 2003(6) AWC 5665}. Here the case of the Corporation is that the IWSS connection is on independent feeder emanating from 132 KV sub-station and as such permission was not required. This may be the reason that neither the Corporation insisted for the permission nor did the NCL ever take the same. Nevertheless the benefit for getting electric power during restricted hours was given to the NCL without imposing any penalty; the NCL not only got but has used electric power during restricted hours: the NCL is liable to pay 15% surcharge on this account on the IWSS connection.
SOME OBSERVATIONS
53. The Corporation had treated IWSS Khadia connection to be an independent feeder emanating from 132 KV sub-station but we have held otherwise. The Corporation may treat this connection as not an independent feeder emanating from 132 KV sub-station and may not grant any benefit on this account to the NCL. It will also be open to the Corporation to withdraw any benefit that NCL might have been given treating it to be an independent feeder. Nevertheless, as we have held that the NCL is liable to pay 15% surcharge for getting electric power during restricted hours, the Corporation may not levy any penalty on this account.
54. We have decided many questions in this appeal. Our conclusions are stated in the succeeding paragraph. Nevertheless, we had no occasion to consider the question whether or not a HV-2 consumer-which is continuous process industry or is getting electric power on independent feeder emanating from 400/220/132 KV sub-station-can opt out from getting electric power during restricted/peak hours thus avoiding payment of 15% surcharge under third row of the Table. We leave this question to be decided in an appropriate case.
CONCLUSIONS
55. Our conclusions are as follows:
(a) In case a licensee under the under the UP Electricity Reforms Act, 1999 violates the terms and conditions of the licence or does not follow the direction of the Commission then an application under section 26 is the proper remedy. A suit in such a situation is barred under section 48 of the 1999 Act.
(b) An independent feeder emanating from a sub-station does not cease to be an independent feeder merely because from that sub-station other consumers are being given power through other feeders.
(c ) A feeder is not an independent feeder if from the same feeder-in contradistinction to from the sub-station-other consumers are also supplied power or there is tapping of power from that feeder.
(d) The restricted hours and peak hours are the same hours. They mean from 18.00 to 22.00 hours between March to September and 17.00 to 21 hours between October to February of the next year.
(e)The distinction between continuous and non--continuous process industries has been abolished under tariff order 2000-01.
(f) Under Tariff Order 2000-01, a HV-2 consumer getting power supply on independent feeder emanating from 400/220/132 KV sub-station can operate during restricted/peak hours. It is not necessary for it to obtain permission of the Corporation.
(g) A HV-2 consumer is liable to pay 15% surcharge on demand and energy charges under Tariff Order 2000-01, if it is getting power during restricted hours. It is further liable to pay 15% surcharge on demand and energy charges if it is getting power on an independent feeder emanating from 400/220/132 KV sub-station.
(h) The NCL is liable to pay 15% surcharge on demand and energy charges for getting power during restricted hours on the NCL Bina connection. It is further liable to 15% surcharge on the NCL Bina connection as it is on independent feeder emanating from 132 KV sub-station.
(i) The NCL is liable to pay 15% surcharge on demand and energy charges for the IWSS Khadia connection for getting power during restricted hours but it is not liable to pay additional 15% surcharge on the IWSS Khadia connection as it is not an independent feeder emanating from 400/220/132 KV sub-station.
56. In view of our conclusions, the appeal is partly allowed. The NCL is liable to pay 30% surcharge on demand and energy charges for period from 9.8.2000 to 5.9.2001 for the NCL Bina connection. It is liable to pay only 15% surcharge on demand and energy charges for the same period for the IWSS connection. The parties shall bear their cost.