ORDER
P.D. Dinakaran, J.
1. Petitioner seeks a writ of mandamus to direct the respondent-Board to treat the sanctioned maximum load of the petitioner’s Mill as 1350 K.V.A. with effect from 1-7-1995, and refund to the petitioner whatever the excess sum the respondent-Board collected from the petitioner, for any period, after 1-7-1995, taking such load at any higher figure.
2. Brief facts are :
Petitioner-Mill, having obtained electricity service connection, bearing H.T.S.C. No. 30, for a sanctioned load of 1750 K.V.A. are paying electricity charges every month for the entire 1750 K.V.A. even though they have not consumed the maximum sanctioned load of 1750 K.V.A. at any point of time. Therefore, the petitioner by letter dated 6-6-1995 informed the respondent-Board that they have not exceeded 1350 K.V.A. at any point of time and surrendered 400 K.V.A. Since the respondent-Board failed to record the surrender of 400 K.V.A. in spite of the request of the petitioner by their letter 6-6-1995, petitioner sent a legal notice on 6-7-1995, calling upon the respondent-Board to raise bill on them only on 1350 K.V.A. But the respondent did not reduce the sanctioned load of the petitioner, in spite of receipt of petitioner’s letter dated 6-6-1995 and the legal notice, dated 6-7-1995, and therefore the petitioner was paying excess sum of Rs. 40,000/- towards the 400 K.V.A. Hence the above writ petition.
3. The respondent-Board denied the contentions of the petitioner stating that as per G.O.Ms. 35-Energy (A2) Department, dated 1-3-1994, the respondent-Board is entitled to demand the consumption charges on the basis of the K.V.A. recorded in that month or at 100% of the sanctioned load, whichever is higher. According to the respondent, they could not take any action on the letter of the petitioner surrendering 400 K.V.A. as they had unearthed theft of electricity by the petitioner from the service connection in question to the tune of Rs. 9,43,87,324/- by means of employing two copper wires about 9 inches length to arrest the rotator of the meter disc, and also had obtained a confessional statement in that regard from the Manager as well as the electrician of the petitioner-Mill. A criminal case in Cr. No. 506/ 95 was also lodged against the petitioner-Company and its Directors. The respondent-Board raised a demand, dated 26-5-1995, on the petitioner for a sum of Rs. 9.43 crores towards the theft of energy. The petitioner had challenged the said demand in O.S. No. 160/1995 before the Civil Court, Salem, but subsequently withdrew the same on 7-3-1995 and challenged the demand notice through writ petitions before this Court, which is now the subject-matter in W.A. Nos. 343 and 344 of 1998. In view of the pendency of the above writ appeals, no decision could be taken on the request of the petitioner to surrender 400 K. V. A. as, per their letter dated 6-6-1995 and therefore, the petitioner are bound by the agreement dated 16-4-1992, agreeing to avail the sanctioned load of 1750 K.V.A. and are liable to pay the charges as per the recorded load or the sanctioned load, whichever is higher.
4. Mr. K. Ravi, learned Counsel for the petitioner, invited my attention to the definitions of ‘maximum demand’, ‘sanctioned demand or contracted demand’, ‘connected load’ and ‘contracted load’ as defined in the Terms and Conditions of Supply of Electricity of the respondent-Board, which read as follows :
“MAXIMUM DEMAND in a month means the highest value of the average kilovoamperes delivered at the point of supply of the consumer during any consecutive thirty minutes in the
month.”
“SANCTIONED DEMAND OR CONTRACTED DEMAND means the demand sanctioned by the competent authority of the Board specified in the agreement.”
“CONNECTED LOAD means the aggregate of the manufacturer’s rating of all the equipment connected in the consumer’s installation and of all the portable equipments.”
“CONTRACTED LOAD means the load which is specified in the agreement.”
5. Learned Counsel for the petitioner also invited my attention to Clause (22) of the Terms and Conditions of Supply, which reads as follows:–
22.00 CHANGE IN SANCTIONED DEMAND, CONTRACTED LOAD AND CONNECTED LOAD.
22.01 No High Tension consumer except those under L.T. IV Two Part Tariff System shall connect any additional load in the existing High Tension Service Connection without obtaining the prior approval of Chief Electrical Inspector to Government as required under Rule 63 of the
Indian Electricity Rules, 1956 and without prior intimation to the Tamil Nadu Electricity Board to enable the Board to take a revised Test Report from the consumer. Failure to observe the above requirements shall render the supply liable to be summarily disconnected and the supply shall remain disconnected until the additional loads are tested and a revised Test Report is signed by the High Tension Consumer.
22.02 In the case of Low Tension Service connections, other than service connections under the Low-Tension Tariffs I (Domestic), VII (Educational and other special institutions etc.). VII, VIII (Laboratories, Research Institutions, Studios and Cinema Theatres) and IX (other categories) when unauthorised additional load is detected, action will be taken as provided in the (Schedule Part I). In the case of service connection under L.T. Tariff IV (Two Part Tariff System) the consumer can connect additional load without exceeding the contracted demand and with prior intimation to the Board and such additional load will not be taken as violation. However on receipt of intimation RTR should be taken by AE/O to record the existence of such additional loads without much delay.
22.03 No additional load/demand will be sanctioned unless all outstanding dues in the same service connections have been paid.
22.04 No consumer shall extend supply to any other premises.
22.05 Any consumer, not covered by the Low Tension Tariff I (Domestic), VII (Educational and other special institutions, etc.), VII, VIIIA (Laboratories, Research Institutes, Studios and Cinema Theatres), additions or repairs to his installations only as provided hereunder.
Should the consumer, at any time after supply of electricity has commenced, desire to increase the number of size of lights, fans, motors, etc. in the premises or in any way alter the position of the writing therein, he shall send notice thereof in writing to the Board whose representative will call and inspect the proposed alterations, additions or repairs and, if necessary, change the meter and fuse and alter the service lines and the competent authority will accord sanction for the change in the connected load and then only the consumer shall change the connected load by connecting the additional load. A Test Report signed by his wiring contractor shall be submit-
ted by the consumer and the cost of the alterations, additions or repairs to the service line shall also be borne by him. Testing as per Clause 10 shall apply to the alterations, additions or repairs is made in the installation. Failure to give such notice may damage the supply system and will render the supply to the consumer liable to be summarily discontinued. During the period when such alterations, additions orrepairs are executed, the supply to the circuit, which is being altered, added to or repaired, must be entirely disconnected and it shall remain disconnected until the alterations, additions or repairs have been tested and passed by the Engineer of the Board.
22.06. In the case of Low Tension service connections, the Board is entitled to cancel the sanction of the unutilised sanctioned load after giving one month’s notice :–
a) If any part of the sanctioned load is not availed within 12 months from the date of service connection; or
b) If any part of the additional load sanctioned to an existing service connection is not availed within 12 months from the date of sanction.
6. By referring to Clause 22 of the Terms and Conditions of Supply, Mr. K. Ravi, learned Counsel for the petitioner contends that Clause 22 provides only for seeking additional load, but does not deal with the sanctioned load, nor bars the petitioner to surrender the sanctioned load. Once the petitioner proposed to surrender the excess load, it is the duty of the Board to consider the request of the petitioner and pass appropriate orders in the matter and consequently revise the agreement as well as the terms and conditions of supply. Since the respondent-Board had failed to pass appropriate orders on the request of the petitioner, the petitioner was constrained to approach this Court for issue of a Mandamus as prayed for.
7. Mr. K. Ravi, learned Counsel for the petitioner, also brought to my notice the report filed by the respondent-Board pursuant to the orders of this Court, dated 12-11-1998, made in W.M.P. Nos. 18919 of 1995 in W.P. No. 11875 of 1995, the relevant portion of which reads as follows :
(i) Theft of energy was detected by the respondent in the petitioner’s Mill on 11-5-1995 and the case is pending trial vide C.C. No. 20/96
on the file of the Judicial Magistrate, I Court, Salem.
(ii) A sum of Rs. 9,43,87,324/- was assessed towards penal levy by the respondent.
(iii) Only after the detection of the theft of energy, the petitioner has given letter dated 6-6-1995, for reduction of demand from 1750 KVA, without furnishing any details regarding the connected load of the motors and other equipments. No mention was made as to whether they intend to reduce the demand, without any corresponding removal, alterations of the equipment connected in the Mill.
(iv) This 1750 KVA was permitted by the respondent as per the agreement executed with TNEB by the petitioner, since 16-4-92. Until the theft of energy is detected the petitioner-Mill did not request for any reduction in demand.
(v) The reasons given by the petitioner, in the letter dated 6-6-95, for the reduction in demand is that they have so far not exceeded 1250 KVA. As the penal levy was worked out, taking into account, the sanctioned demand of 1750 KVA, the request made by the petitioner to reduce the demand, on the only ground that they did not exceed 1250 KVA was found not convincing and hence the respondent could not consider the request.
(vi) Since the petitioner has given the letter dated 6-6-95, after detection of the theft on 11 -5-95 and as the demand of 1750 KVA was permit-led to the Mill eversince 16-4-1992, the respondent had to conclude that the petitioner only with ulterior motive, to escape from criminal liability and to avoid the liability to pay the penal levy has come forward with the request to reduce the demand.
(vii) After detection of the theft of energy, criminal proceedings were taken and is in progress. The petitioner also filed a suit, and several writ petitions, challenging the show cause notice, the assessment order and the order of the appellate authority in respect of theft of energy detected on 11-5-95. The above theft of energy and the penal levy imposed are the subject-matter of WA Nos. 343 and 344 of 1998, which are pending. The petitioner is not so far exonerated from the proceedings in respect of theft of energy mentioned above.
(viii) Only in the above circumstances, the
request of the petitioner to reduce the demand to 1350 KVA was so far not considered by the respondent-Board.
(4) It is respectfully submitted to the kind consideration of the Hon’ble Court that the Advocate of the petitioner, in his letter dated 13-11-98, in para 5 has informed that they have also connected certain additional equipments as per the permission of the Electrical Inspector, Salem by an order dated 7-3-96. The very first para of the order of the Electrical Inspector letter dated 7-3-96, directs that the “the Mill has been permitted by the Electrical Inspector to commission the equipments subject to complying with the terms and conditions of the supplier”. The Clause 22.01 of the terms and conditions of supply of electricity stipulate taking of a revised test report from the consumer, after issue of the safety certificate. But as seen from the letter of the Advocate, the petitioner-Mill has connected the additional equipments and are using them, without the consent of the TNEB, thereby violating the provisions of the Terms and Conditions of Supply of Electricity and Rule 63 of I.B. Rules, 1956. Though the petitioner-Mill in their agreement executed with TNEB undertakes in Clause 3 of the agreement to comply with the terms and conditions of supply of electricity, they have violated the provisions therefor.
8. It is respectfully submitted to the Hon’ble Court, if the petitioner’s Mill give an application with reasons, that warrant sanction of reduction in demand, duly furnishing details of total connected load of equipments, the respondent-Board shall consider the same, subject to the provisions of the Terms and Conditions of Supply of Electricity and without prejudice to the outcome of the Writ Appeals Nos. 343 and 344 of 1998 pending before the Hon’ble Division Bench of the High Court, Madras.
9. It is respectfully submitted that, on sanction of any addition or reduction of demand by the competent authority of TNEB, the consumer shall have to execute a supplemental agreement with the TNEB and take a revised Test Report. The Billing for the demand permitted shall come into effect only from the date of the Revised Test Report.
10. For the foregoing reasons, it is respectfully submitted, that the demand of the petitioner’s Mill to make refund as alleged in the above writ
petition is unsustainable and liable to be dismissed.
“I respectfully submit that in the circumstances shared above, petitioner’s letter dated 6-6-95 could not be processed. It is further submitted that if the petitioner gives a fresh application with the requirements, stated in para 5, the same will be considered without prejudice to the right of the respondent TNEB and sanction will be accorded and will be given effect prospectively”.
11. Mr. K. Ravi, learned counsel for the petitioner contends since the respondent Board required the petitioner to make fresh applications to consider the reduction of the sanctioned load, if is evident that they have not taken any decision so far on the application dated 6-6-1995 made by the petitioner and therefore, the petitioner is entitled for the relief as prayed for in the above writ petition.
12. Per contra, Mr. N. Muthusamy, learned counsel appearing for the respondent-Board, in the light of the counter-affidavit and the report filed, contends that unless and until the terms of the agreement dated 16-4-1992, entered into between the petitioner and the respondent-Board, are mutually varied or modified, (sic) the petitioner is bound by the terms of the agreement dated 16-4-1992 as it stands as on date and liable to pay the demand as per the recorded load in the month or at 100% of the sanctioned load, whichever is higher. Learned counsel further contends that since the allegation regarding the theft of energy and the consequential demand to the tune of Rs. 9,43,87,324/-, is the subject-matter of W.A. Nos. 343 and 344 of 1998, which are still pending before this Court, the respondent- Board could not take any decision on the request of the petitioner dated 6-6-1995. In any event, as stated in the report dated 30-11-1998, the respondent-Board would consider the request of the petitioner if a fresh application for reduction of the sanctioned load is made by furnishing all relevant details, viz., details of total connected load of the equipments, machineries employed, etc.
13. I have given my careful consideration to the submissions of both sides.
14. It is not in dispute that the petitioner and the respondent-Board have entered into the agreement dated 16-1-1992 as per Clause 13of the Terms and Conditions of Supply of Electricity, which
reads as follows :
13.00 AGREEMENTS
13.01. All intending consumers shall execute an agreement governing the supply of electricity in the form prescribed by the Board from time to time of paying the current consumption Deposit and the service connection charges. The work of extension of supply will be taken up for execution only after the agreement is executed and the current consumption deposit and the service connection charges are*paid.
13.02. Every agreement is for a specific purpose and a specified location. The Engineer may at his discretion permit a consumer to change the point of supply from one place to another on such terms as may be prescribed by the Board including payment of charges incidental to such damage.
13.03. The agreement shall come into force from the date of commencement of supply (vide Clause 2.01(vi) and shall be in force till it is terminated. Every consumer shall pay to the Board, from the date of commencement of supply till the agreement is terminated, current consumption charges/minimum monthly charges/ fixed charges/special guarantee, if any, and other charges as provided in the Tariff Notifications, Terms and Conditions of Supply of Electricity and ‘Restriction and Control’ orders from time to time.
13.04. The agreement can be terminated by the consumer at any time by giving one month’s notice in writing to the Board expressing his intention to do so.
13.05. The Board can terminate the agreement of a consumer at any time by giving one month’s notice if the consumer has violated the terms of the agreement or the terms and conditions of supply of Electricity or the provisions of any law touching the agreement including Indian Electricity Act, 1910, Electricity (Supply) Act 1948 Indian Electricity Rules 1956 and the ‘Restriction and Control’ order.
13.06. If a service connection remains disconnected for a period of three months for nonpayment of dues to the Board, the Board will issue a notice requiring the consumer to get supply resumed within three months from the date of receipt of such a notice and intimating him that failure to avail supply within that periodwill result in termination of the agreement. After the expiry of the notice period of three months, the agreement shall stand terminated.
13.07. Notwithstanding the termination of the agreement as per Clauses 13.01, 13.05 and 13.06 the consumer shall be liable to pay the arrears of current consumption charges or any other sum due to the Board on the date of disconnection, minimum monthly charges and meter rent, if any, upto the date of termination of the agreement and belated payment surcharge/interest upto the date of payment.
13.08. In the case of the intending High Tension consumer where the capital cost to be incurred by the Board for extending supply is Rs. 10 lakhs or more, the agreement will be for a period of five years with a special guarantee as prescribed in Clause 13.09. This special guarantee is payable only if the agreement gets terminated due to any reason within the period of five years.
13.09. The special guarantee will be equal to
(A) x (B)
Rs. ………….
C
(sic)
Where A = 75% of the capatial cost incurred by the Board B = period from date of disconnection to the date of expiry of the 5 years period of agreements (expressed in months)
C = 60 months.
If the consumer has not availed himself of the supply B will be equal to 60 months. In the case of reduction of load requested for by any High Tension consumer during the special guarantee period of five years, the formula prescribed for termination of the agreement will be adopted for reduction of load also.
13.10. If the consumer at any time during the currency of the agreement, intends to sell or otherwise dispose of or lease out in whole or in part of the properties or business to which supply is given or has been centracted for, he should give the Engineer of the Board three months notice of his intention to do so and clear all dues upto the date of sale/disposal/lease.
It the consumer is covered under Clause 13.00 he should pay in addition, the special guarantee as per the formula mentioned in Clause 13.00 for the unexpired period of the agreement, unless the
purchaser or lessee of the property as the case may be, enters into an agreement with the Board agreeing to abide by special guarantee Clause for the unexpired period of agreement. If, in the case of such notice the above conditions are satisfied the agreement in so far as the consumer is concerned, will cease to operate with effect from the date specified in such notice, but without prejudice to any claim or right which may have accrued to the parties thereunder.
If the consumer fails to give advance intimation as aforementioned of his intention to sell or lease out or otherwise dispose of the properties or business to which supply is given or contracted for he will continue to be liable to pay the charges for consumption and other charges due to the Board under the agreement even beyond the date of sale or lease out or disposal otherwise of the properties or business.
In the case of lease of the property in part, the consumer may continue to take supply. Supply, if required by the lessee, will be given by the Board direct to the lessee.
13.11. If after termination of the agreement the consumer comes forward with a request to provide supply to his premises he will be treated as a new applicant for service connection.
13.12. If the Board is satisfied that the consumer is prevented from receiving or using electricity either in whole or in part owing to total lock-out, total strike, total closure for the time being due to labour problems, riots, insurrections, command of civil or Military authority or if the Board is prevented from supplying or is unable to supply electricity owing to lock-out or strike of its employees, or force meajeure, the consumer will be required to pay, during such periods, only for the actual recorded demand and consumption of electricity.
This concession is subject to the following conditions :–
i. The consumer must produce a certificate from the labour officer to that effect, indicating the period of lockout or strike or temporary closure and the date on which it was called off.
ii. The consumer must give prompt intimation of the commencement of the lock-out or strike so that the Maximum Demand meter can be reset. In the case of temporary closure the consumer must give intimation of the closure. The consumer
must give intimation to the Board immediately after lifting of the strike, lock-out temporary closure.
iii. In the case of temporary closure, benefit will be given only on restarting of the industry”.
12.13. The agreement, dated 16-4-1992 entered into between the parties is binding on them unless and otherwise the terms and conditions of the same are either modified or altered or amended bilaterally. No doubt, the petitioner by relying on Clause 13.04, could terminate the agreement by giving one months’ notice in writing. However, in my considered opinion the petitioner, being a High Tension consumer, cannot unilaterally issue a letter to surrender the sanctioned load in view of the specific provisions in this regard under Clause 13.04 to Clause 13.09, which read as follows :
“13.04. The agreement can be terminated by the consumer at any time by giving one month’s notice in writing to the Board expressing his intention to do so.
13.05. The Board can terminate the agreement of a consumer at any time by giving one month’s notice if the consumer has violated the terms of the agreement or the terms and conditions of supply of Electricity or the provisions of any law touching the agreement including India Electricity Act, 1910, Electricity (Supply) Act 1948 Indian Electricity Rules 1956 and the ‘Restriction and Control Order.
13.06. If a service connection remains disconnected for a period of three months for non payment of dues to the Board, the Board will issue a notice requiring the consumer to get supply resumed within three months from the date of receipt of such a notice and intimating him that failure to avail supply within that period will result in termination of the agreement. After the expiry of the notice period of three months, the agreement shall stand terminated.
13.07. Notwithstanding the termination of the agreement as per Clauses 13.04, 13.05 and 13.06 the consumer shall be liable to pay the arrears of current consumption charges or any other sum due to the Board on the date of disconnection, minimum monthly charges and meter rent, if any, upto the date of termination of the agreement and belated payment surcharge/interest upto the date of payment.
13.08. In the case of the intending High Tension consumer where the capital cost to be incurred by the Board for extending supply is Rs. 10 lakhs or more, the agreement will be for a period of five years with a special guarantee as prescribed in Clause 13.09. This special guarantee is payable only if the agreement gets terminated due to any reason within the period of five years.
13.09. The special guarantee will be equal to
(A) x (B)
Rs. …………
C
Where A = 75 % of the capital cost incurred by theBoard, B = period from date of disconnection to the date of expiry of the 5 years period of agreement (expressed in months) C = 60 months.
If the consumer has not availed himself of the supply, B will be equal to 60 months. In the case of reduction of load requested for by any High Tension consumer during the special guarantee period of five years, the formula prescribed for temination of the agreement will be adopted for reduction of load also”.
15. It cannot be disputed that the sanctioned load is arrived at only in the light of the machineries and equipments proposed used by the petitioner in its Mill as approved by the Electrical Inspector. Therefore, unless the details and specifications of such machineries and the equipment which were used by the petitioner Mill during the period in question, are assessed and certified b the Electrical Engineer and the respondent Board, the sanctioned load could not, be varied. In this connection it is pertinent to refer to the report of the respondent Board, submitted to this pursuant to the order dated 12-11-1998, made in W.M.P. No. 18919 of 1995, wherein it is stated that if the petitioner makes a fresh application with reasons for reduction in demand, the details of total connected load of the equipments, etc. the same would be considered and sanction would be accorded prospectively. In the absence of details and specifications with regard to the machineries and equipments installed by the petitioner Mill, total connected load of such equipments, which particulars are very much relevant to arrive at the sanctioned load, it is difficult to grant the relief to the petitioner as prayed for. Merely because the respondent Board
has not passed any orders on the representation of the petitioner dated 6-6-1995, the petitioner is not entitled for the relief sought for by, as the petitioner have failed to furnish the details and specification of the machineries and equipments installed by them from June 1995. However failure to furnish such details would not in any way take away the rights of the petitioner to make a fresh application to surrender 400 K. VA. That apart, even though the petitioner could rely upon Clause 13.09, which enables a High Tension consumer to request for reduction of load during the special guarantee period of five years in my considered opinion, under the facts and circumstances the representation of the petitioner dated 6-6-1995 could not be construed as a request for reduction of sanctioned load for want of relevant details of the machineries and equipments, etc. as referred to above and, therefore, the petition.
16. I find no merit in the writ petition. Accordingly the same is dismissed. However, the petitioner is permitted to make a fresh application, furnishing all the necessary details and particulars for reduction of load, within one month from the date of receipt -of copy of this order which shall be without prejudice to the rights of the respondent Board to recover the penal levy with regard to the alleged theft of energy as per law, and the respondent Board, on receipt of such application, shall consider the same and pass appropriate orders thereon, on merits and in accordance with law, within one month from the date of receipt of application. No costs.