BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED : 28/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.10533 of 2005 and W.P.M.P.No.11259 and 11260 of 2005 Annamalai Rubber Products Rep.by its Partner, 29-C, Meenakshi Illam, Visalakshi Street, Thirunagar, Madurai-625 006. .... Petitioner Vs. The Tamil Nadu Electricity Board, Rep.by the Asst.Engineer (Distn) Kappalur, Madurai District. .... Respondent PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the respondent herein relating to his order in letter No.AEE/KPLR/cI/F.Loc/D.No.913/04 dated 27.12.2004, quash the same and forthwith restroe the service connection A.142 Shed No.91 SIDCO Industrial Estate Kappalur. !For Petitioner ... Mr.AR.L.Sundaresan ^For Respondent ... Mr.A.Baskar, Standing Counsel for TNEB. :ORDER
Heard the learned counsel appearing for the petitioner and the learned
counsel appearing for the respondent.
2. This writ petition is filed challenging the order of the respondents
dated 27.12.2004 and also to forthwith restore the service connection in A.142
at Shed No.91 SIDCO Industrial Estate, Kappalur.
3. The case of the petitioner is that the petitioner is in possession of
the building bearing No.91 SIDCO, Industrial Estate and was provided with
electricity service connection by the Tamil Nadu Electricity Board under Service
connection No.142, with effect from 23.07.1999. The load which was originally
50HP plus 800 watts was subsequently increased with additional load of 45 HP on
23.3.2000. While fixing the electronic metre, the Board has fixed VICTRI make
with 5 amps capacity. On 27.l2.2004, the petitioner was served with an order
from the respondent alleging that on an inspection on 24.12.2004, it was found
that the service connection had recorded only 40.46 per cent of the actual
consumption and 50.54 percent of the consumption was not recorded in the metre.
Therefore, the billing was to be revised under clause 19.16 of the terms and
conditions of electricity supply and revision. It is also stated that the
revision will have to be made for the period from 23.12.2001 and accordingly an
amount of Rs.19,19,964/- was directed to be collected from the petitioner and
the petitioner was called upon to pay the said amount within 30 days. This
impugned order is challenged on many grounds including that the petitioner was
not given an opportunity at the time of any inspection. That apart, it is the
case of the petitioner that even the respondents in the letter dated 28.03.2005
have stated that the CGS VICTRI metre will record eventhough current direction
of all current transformer is reversed. The electricity connection was
subsequently disconnected on 17.01.2005 and the industry was closed on account
of the power disconnection. The order is also challenged on the other ground of
violation of natural justice apart from the ground that it is not even stated as
to how the amount of Rs.19,19,964/- has been arrived at.
4. It is also the specific case of the petitioner that the respondent
seeks to place reliance on Clause 19.16 of the terms and conditions of
Electricity Supply which was framed under Section 49 of the Electricity Supply
Act, 1948. While, the said Act has been repealed after the Electricity Act, 2003
has come into effect with effect from 10.06.2003 and therefore, the impugned
proceedings under the clause 19.16 are not valid in law after the new Act has
come into force. The Board has framed Electricity Supply Code which has come
into effect after 01.09.2004 and as per the terms of the said Code especially
Clause 7(8) and 11 a method has been provided to find out the defective metre
and the quantity of electricity supply. When such procedures have not been
followed, the impugned order is liable to be set aside.
5. On the other hand, the respondent has filed counter affidavit denying
the allegations. According to the respondents, it was as per the Clause 19.16
for billing and payment framed by the Tamil Nadu Electricity Board, the revision
was made. According to the respondent, the revision was properly intimated to
the consumer regarding the less percentage of consumption. The service
connection was disconnected due to the reasons of non-remittance of monthly
consumption charges. According to the respondent, eventhough it is admitted
that the notification of the Electricity Supply Act, 2003 was published in the
Tamil Nadu Gazette in September 2004, the implementation of the rules and
regulations were not communicated at the time when the revision of billing for
service connection No.142 was made. It is also the case of the respondent that
when once the assessment is made under the Electricity Supply Code any
assessment made within 24 months before the Electricity Act 2003 came into force
and any revision made accordingly is permissible. Therefore, according to the
respondents, the impugned order is valid in law.
6. Mr.A.R.L.Sundaresan, learned Senior Counsel appearing for the
petitioner would submit that at the time when the inspection stated to have been
conducted by the respondents on 24.12.2004, the Electricity Act of 2003 has
already come into force which was on 10.06.2003. According to him, even the
Electricity Supply Code framed under the Electricity Act of 2003 has also come
into force from 01.09.2004 and therefore, applying the old Clause 19.16 under
the Electricity Act, 1948 and passing the impugned order based on the same
itself will make the impugned order void. According to the learned counsel,
Section 50 of the Electricity Act, 2003 which contemplates a duty on the part of
the State Commission to specify the Electricity Supply Code and it was based on
the said enabling provision the State Commission has also framed, the Tamil Nadu
Electricity Supply Code of 2004 which was published in the official Gazette on
01.09.2004. The said code while speaking about the installation of metre in
Rule 7 contemplates a periodical recalibration and standardisation of metres by
means of standard instruments by the licensee. As it is seen in Rule 7(8) of the
same Rule in respect of high tension service connections will be done in the
presence of the consumers electrical engineers or his representative. Further,
according to the learned Senior Counsel, the Clause 11 contemplates the
assessment of billing in cases where the metre is defective or there was no
metre. It is this Clause 11 contemplate the entire procedures to be followed in
cases where a defective metre has been found out. According to the learned
counsel, no one of the procedures contemplated under the said Tamil Nadu
Electricity Supply Code of 2004 has been followed and the decision has been
arrived at on assumption. According to the learned Senior counsel, while
repealing the earlier Act 1948, Section 185 of the Electricity Act of 2003
categorically states any action taken or purported to have been done under the
previous repealed laws shall be deemed to have been taken under the new Act
provided they are not inconsistent with the provisions of the new Act. On the
face of it, while the procedures contemplated under the Tamil Nadu Electricity
Code framed as per the new Act is totally different from that of the procedures
contemplated under the old Act of 1948, according to the learned counsel,
Section 185 cannot protect the impugned order.
7. On the other hand, Mr.A.Baskar learned counsel appearing for the
respondent would contend that any action taken within a period of 24 months
before the new Act has come into force is validated as per the Tamil Nadu
Electricity Supply Code 2004 and therefore, according to him, the impugned order
cannot be set aside.
8. I have heard the learned counsel for the petitioner as well as the
learned counsel for the respondent and perused the entire records.
9. Admittedly, the Electricity Act 2003 has come into effect with effect
from 10.06.2003, under Section 185 of the said Act, the previous acts including
the Electricity Supply Act, 1948 was stands repealed. However, Section 185(2)
saves certain action taken up by the authorities under the earlier Act, while
leaving the saving clause, Section 185(2) categorically states that the saving
under the earlier enactments shall be insofar as the same are not inconsistent
that the provisions of the present Act. In the present case while it is
admitted by the respondent that the impugned order was passed is based on the
clause 19.16 terms and conditions of supply of Electricity which was framed as
per the previous Act of 1948.
10. It is relevant to point out that the impugned order which is dated
27.12.2004 was admittedly passed based on the report of the officials of the
respondent dated 24.12.2004. On the said date namely 24.12.2004, admittedly,
the Tamil Nadu Electricity Supply Code of 2004 has come into effect from
01.09.2004. The said code framed by the Tamil Nadu Government in accordance
with the powers conferred under Section 50 of the Electricity Act of 2003
provides an exhaustive procedure of assessment of billing in cases where there
was no metre or defective metre. The relevant rule under the Tamil Nadu
Electricity Supply Code 2004 namely Rule 11 which formulates the procedure as
follows:
“11.Assessmnet of billing in cases where there is no meter or meter is
defective.-(1) Where supply to the consumer is given without a meter or where
the meter is fixed is found defective or to have ceased to function and no theft
of energy or violation is suspected, the quantity of electricity supplied during
the period when the meter was not installed or the meter installed was
defective, shall be assessed as mentioned hereunder.
2)The quantity of electricity supplied during the period in question shall
be determined by taking the average of the electricity supplied during the
preceding four months in respect of both high tension service connections and
low tension service connections, provided that the conditions in regard to use
of electricity during the said four months were not different from those which
prevailed during the period in question.
3) In respect of high tension service connections, where the meter fixed
for measuring the maximum demand becomes defective, the maximum demand shall be
assessed by computation on the basis of the average of the recorded demand
during the previous four months.
4) Where the meter becomes defective immediately after the service
connection is effected, the quantum of electricity supplied during the period in
question is to be determined by taking the average of the electricity supplied
during the succeeding four months period after installation of a correct meter,
provided the conditions in regard to the use of electricity in respect of such
low tension service connections are not different. The consumer shall be
charged monthly minimum provisionally for defective period and after assessment
the actual charges will be recovered after adjusting the amount collected
provisionally.
5)If the conditions in regard to the use of electricity during the periods
as mentioned above were different, assessment shall be made on the basis of any
consecutive four months period during the preceding twelve months when the
conditions of working were similar to those in the period covered by the
billing.
6)Where it is not possible to select a set of four months, the quantity of
electricity supplied will be assessed in the case of low tension service
connections by the engineer in charge of the distribution and in the case of
high tension service connections by the next higher level officer on the basis
of the connected load and the hours of usage of electricity by the consumer.
7)In case the consumer does not agree with the assessment made by the
engineer or the higher level officer, as the case may be, the matter may be
referred to the next higher level officer of the licensee. In case the consumer
is still not satisfied, the consumer is at liberty to approach the respective
Consumer Grievance Redressal Forum of the licensee.”
11. It is not even the case of the respondent in the counter affidavit
that this was the procedure available under the earlier Act of 1948 and the
rules framed thereunder by the Government of Tamil Nadu. Whileso, it is clear
that the impugned order passed under clause 19 of the earlier Rules cannot be
stated to have been saved by the saving clause under Section 185(2) of the
Electricity Supply Act, 2003. A reference to the report dated 24.12.2004 stated
to be the basis for passing of the impugned order also shows that the assessment
has been arrived at even after finding that MRT Security seals are intact but
stating that the CT wirings were checked and found that CT Secondary Wiring in B
phase was found reversed as M and L points were interchanged that was the reason
stated to have been found for less recording of the metres. Apparently, that is
not the procedure contemplated under the Tamil Nadu Electricity Supply Code of
2004 Rule 11 which I have enumerated above.
12. It is also relevant to point out that the inspection report does not
reveal that the inspection was done in the presence of the petitioner. In view
of the said factual position and also due to legal reasoning, I am of the
considered view that the impugned order passed by the respondent is opposed to
the Electricity Act, 2003 and the Tamil Nadu Electricity Code 2004 and
accordingly the same is set aside. The writ petition stands allowed. It is
open to the respondent Board to proceed as per the New Act and code if so
advised. There is no order as to costs. Consequently, connected W.P.M.Ps. are
also closed.
sms
To
The Tamil Nadu Electricity Board,
Rep.by the Asst.Engineer (Distn)
Kappalur,
Madurai District