IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.14888 of 2009
Date of Decision: 25.09.2009
M/s Rana Polycot Limited
Petitioner
Versus
Punjab State Electricity Board and another
Respondents
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present: Mr.Ashok Aggarwal, Senior Advocate with
Mr.Rahul Sharma, Advocate for the petitioner
Mr.H.S.Sidhu, Advocate
.....
Jasbir Singh, J.
Vide electricity supply bill dated 24.4.2008, the petitioner was
directed to pay an amount of Rs.1,13,10,261/- towards voltage surcharge, to
be charged @ 10% over and above the electric consumption bill of a
consumer. Surcharge amount was claimed w.e.f. 19.4.2005 till 31.3.2007.
Vide letter dated 21.5.2008 (P7), the petitioner was directed to deposit the
above amount in five equal installments, failing which, it was intimated that
action shall be initiated as per law.
It is necessary to mention here that the above said amount was
claimed in terms of commercial circular, issued by the Punjab State
Electricity Board (in short, PSEB) on 28.11.2007 (P6).
The petitioner laid challenge to the above said demand before
the Zonal Level Dispute Settlement Committee (in short, ZDSC), South
Civil Writ Petition No.14888 of 2009 2
Zone at Mohali. Before ZDSC, it was grievance of the petitioner that
surcharge @ 10% upto demand recorded at 2500 KVA was abolished and it
was to be charged on the demand recorded over and above the same. ZDSC
opined that the amount was being claimed in terms of orders passed by the
Punjab State Electricity Regulatory Commission (PSERC), which was
notified vide circular dated 14.7.2006. Application filed by the petitioner
was dismissed on 30.4.2009 (P8). The petitioner went in appeal, which was
dismissed by the Punjab State Electricity Board Forum for Redressal of
Grievances of Consumers (in short, the Forum), on 18.7.2009 (P10). Instead
of making representation to the Ombudsman, constituted by the PSEB under
the provisions of Section 42(6) of the Electricity Act, 2003 (in short, the
Act), the petitioner has filed this writ petition. Besides laying challenge to
the electricity bill and the orders, mentioned above, the petitioner has laid
challenge to the commercial circular No.66/2007 dated 28.11.2007 (P6) in
this writ petition.
Counsel for the parties heard.
It is primary grievance of counsel for the petitioner that the
circular dated 28.11.2007 (P6), being non-statutory in nature, cannot be
applied retrospectively. It has further been stated that the petitioner has
enhanced his contract demand, for supply of electricity in terms of the
commercial circular issued by the PSEB on 24.6.2003 (P1), 11.10.2004 (P2)
and now vide the impugned circular, the petitioner cannot be put to
disadvantageous position, claiming surcharge @ 10%, on the electricity
consumed by the petitioner.
At the time of arguments, Shri H.S.Sidhu, Advocate was called
to assist this Court on behalf of the respondent-PSEB. He brought it to the
notice of this Court that similar controversy has already been decided in
Civil Writ Petition No.14888 of 2009 3
favour of the PSEB and against the consumer by a Learned Single Bench of
this Court in M/s Antarctic Industries & others v. Punjab State Electricity
Board and others (CWP No.8451 of 2007), decided on 27.4.2009. Counsel
for the petitioner made an attempt to show to this Court that the controversy
involved in that writ petition was somewhat different, however, he has
failed to do so.
It is apparent from the records and not disputed before this
Court that circular dated 28.11.2007 was issued by the PSEB, in terms of
tariff order, passed by PSERC, (which is a statutory body), for the year
2004-2005, which was notified vide CC No.30/06 dated 14.7.2006. That
circular is not under challenge. In above said circular in clause No.13.3,
regarding voltage surcharge, it was mentioned as under:-
“Large supply consumers with contract demand exceeding
2500 KVA and upto 4000 KVA catered at 11 KV shall to pay a
surcharge @ 10% on consumption charges including demand
charges, if any, or normal minimum as compensation for
transformation losses, incremental line losses etc.”
It is an admitted fact that the petitioner is getting high tension
(HT) supply @ 11000 voltage (11KV) and is a large supply industrial
consumer. It is also an admitted fact that when electricity is supplied
through 11KV system, there is a loss in transmission and it also involves
incidental charges. To cover that, surcharge @ 10% over and above actual
consumption, was envisaged by the PSEB.
Electricity Act, 2003 was notified on 26.5.2003. Section 62 of
the Act refers to the constitution of a Commission, to determine the tariff for
supply of electricity etc., by the distribution licencee. Section 64 deals with
the procedure to be followed by the Commission in determining the tariff
Civil Writ Petition No.14888 of 2009 4
for a particular year. For the State of Punjab, PSERC is the competent
Commission to decide tariff for supply of electricity to the consumers, by
the PSEB. In the case of M/s Antarctic Industries (supra), it was so held by
this Court, by observing as under:-
“On the same analogy, it has to be held that the
regulatory commission constituted under Section 82 of the
2003Act alone has the power to determine the tariff under
section 86(1)(a) of the Act and the State Government, the
licensee or a utility have no authority whatsoever to determine
or vary the tariff on their own. The tariff approved by the
commission is final. However, the tariff is required to be
determined by the State Commission in a transparent manner
and by following the procedure laid down under Section 64 of
the Act.”
In the above said judgment, it was further held by this Court
that in pursuance to the tariff orders for the years 2004-2005, 2005-2006,
2006-2007, PSEB has billed the consumers along with levy of surcharge. It
has also come on record that some consumers, similarly situated like the
petitioners, filed a review application to lay challenge to the tariff order
passed, however, their application was dismissed. Vide the judgment,
mentioned above, it was held by this Court that ‘there can be no agreement
or understanding between the licensee and its consumers to levy or waive
off the tariff de-hors the conditions and schedule to tariff determined by the
Regulatory Commission.’ Vide the impugned orders, it has specifically
been held that the surcharge is being claimed in terms of the tariff orders
passed by the PSERC from time to time. Vide the judgment in M/s
Civil Writ Petition No.14888 of 2009 5
Antarctic Industries (supra), it was also held that because the amount is
being claimed under order passed by a statutory authority, as such, the
concession given earlier, can be withdrawn. Same is the situation in this
case. It is also apparent from the records that vide judgment, mentioned
above, many writ petitions were disposed of. In some of those writ
petitions, challenge was also laid to the circular dated 28.11.2007 (P6). To
negative challenge to the circular mentioned above, it was observed as
under:-
“At this stage, it may also be noticed that some of the
writ petitioners are the arc furnace industries who have
challenged the commercial circular No.66/2007 dated
28.11.2007 whereby, according to them, the previous circular
No.52/2004 dated 11.10.2004 has been retrospectively
withdrawn from the date of its issue. Suffice it to mention here
that the contention has no factual or legal basis. The Tariff
Order for the year 2004-05 came to be issued on 30.11.2004.
The Circular No.55/2004 was issued a few days prior thereto,
i.e., on 11.10.2004 whereby on the demand of the Industries
Association that the 10% additional billing was causing
hardship to them, it was clarified that the consumption (KWH)
recorded at 11 KV corresponding to the demand recorded over
and above 25,000 KVA shall be increased by 10% in the total
average consumption. Since this exemption was not reflected
by the Board in the ARR or in its proposal for the General
Conditions of Tariff, the same was inadmissible as soon as the
Tariff Order for the year 2004-05 came into force. The
subsequent circular dated 28.11.2007 merely reiterates the
Civil Writ Petition No.14888 of 2009 6levy of 10% surcharge on the consumption charges leviable
with effect from 1.4.2004, as approved by the State Regulatory
Commission in its Tariff Orders for the year 2004 to 2007 for
the reason that the previous administrative circular dated
11.10.2004 of the Board had become defunct and inoperative
after the Tariff Order for the year 2004-05 came to be issued
on 30.11.2004. The subsequent circular has only rectified the
error and has, at the best, withdrawn an erroneously drawn
concession which was not admissible to the petitioners after
30.11.2004.”
In view of aforesaid authoritative pronouncement, this Court is
of the opinion that this writ petition has no substance and no case is made
out for interference. The same is accordingly dismissed.
25.09.2009 (Jasbir Singh) gk Judge