IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.11.2008 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU Writ Petition Nos.16348, 16091, 16255, 16474, 16584, 16586, 16819, 16825, 16863, 16865, 16866, 16867, 16996, 17001, 17093, 17103, 17233, 17255, 17261 to 17264, 17390, 17572, 17630, 17699, 17701, 17940, 17988, 17999, 18120, 18178, 18256, 18259, 18317, 18795, 18796, 18833, 18851, 18935, 18959, 18970, 19051, 19056, 19095, 19529, 19655, 19994 and 22823 of 2008 & connected Miscellaneous Petitions W.P.No.16348 of 2008: M/s.Madras Cements Limited Alathiyur Works Cement Nagar PO Ariyalur District 621 730 ..Petitioner -vs- 1. State of Tamil Nadu rep.by the Secretary to Government Energy Department Secretariat, Fort St.George Chennai 600 009 2. The Tamil Nadu Electricity Board rep.by its Chairman No.800, Annasalai Chennai 600 002 3. The Superintending Engineer Tamil Nadu Electricity Board Perambalur Electricity Distribution Circle Perambalur ..Respondents Prayer in W.P.No.16348 of 2008: Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus calling for the records of the 2nd respondent comprised in Memo No.CE/Comml/EET/AEE2/F.TF.Con.Cas/D.64 dated 10.6.2008 and the consequential order of the 3rd respondent comprised in its letter No.SE/PDC/PBLR/AO/RCS/1A/F.HT.SC43TF. Con/D.245/2008 dated 30.6.2008 and quash the same and consequently direct the respondents to grant tariff concession to the petitioner by following the procedures laid down by the Honourable Supreme court in its Judgment dated 16.5.2008 passed in Civil Appeal No.3940/2008 without insisting upon the condition of obtaining of CEIG's Safety certificate before 14.2.1997 and refund the sums paid to the respondents towards tariff concession paid in terms of the petitioner's representation dated 25.6.2008. (Prayer amended as per order dated 13.11.2008 in M.P.No.3 of 2008 in W.P.No.16348 of 2008) For Petitioner in W.P.Nos.16474, 16584, 16586, 16863, 16865, 16866, 16867, 16996, 17261 to 17264, 17699, 17701, 17940, 18120, 18256, 18795, 19051, 19529 of 2008 : Mr.R.Muthukumarasamy, Sr.Counsel for Mr.R.S.Pandiaraj For petitioner in W.P.Nos.16348, 16091,16255, 17233, 17999, 18259,18833, 19056, 19655 and 22823 of 2008 : Mr.Rahul Balaji For petitioner in W.P.No.17572, 18178, 18851 of 2008 : Mr.T.R.Rajagopal, Sr.Counsel for Mr.P.Valliappan and Mr.R.Bharath Kumar For petitioner in W.P.No.17001/2008 : Mr.Srinath Sridevan For petitioner in W.P.No.17390/2008 : Mr.S.Sivanandan For petitioner in other W.Ps. : M/s.Kuppusamy, R.Bharath Kumar, D.Krishnakumar V.Selvaraj, Umapathy R.Parthiban, C.S.Krishnamoorthy and C.R.Krishnamurthy For Respondents in all cases : Mr.P.S.Raman, Additional Advocate General Assisted by Mr.Selvendran and Mr.P.Srinivas O R D E R
This batch of Writ Petitions were directed to be posted before this Court by the orders of the Hon’ble Chief Justice dated 10.11.2008.
2. Heard both sides and perused the records. Counter affidavits have been filed in all these cases by the Tamil Nadu Electricity Board.
3. In most of the Writ Petitions, the grievance of the petitioners was that subsequent to the judgment of the Supreme Court dated 16.5.2008 in Civil Appeal Nos.3940 of 2008 and batch of cases (since reported in 2008 (7) SCC 353, Tamil Nadu Electricity Board and another vs. Status Spinning Mills Limited and another), the Tamil Nadu Electricity Board had issued a circular dated 10.6.2008, which is not only uncalled for, but contrary to the directions issued by the Supreme Court. Apart from the challenge made to the circular dated 10.6.2008 issued by the Chief Engineer (Commercial) on behalf of the Chairman of the Tamil Nadu Electricity Board, the attack was also made on several individual orders passed by the respondent board, pursuant to the orders passed by the Supreme Court in the Tamil Nadu Electricity Board’s case referred to above.
4. Before dealing with the merits of the rival submissions, it is necessary to recapitulate certain facts which led to the issuance of the impugned circular. The Government of Tamil Nadu by the exercise of its power under section 4 of the Tamil Nadu Revision of Tariff Rates on Supply of Electrical Energy Act, 1978 granted certain tariff concession to various consumers of electricity supply and these orders were brought into effect from 1.2.1995.
5. Subsequently by G.O.Ms.No.17, Energy dated 14.2.1997, the concession granted regarding High Tension Tariff was sought to be withdrawn with effect from 15.2.1997. The relevant portion of the notification may be extracted below:
“High Tension Tariff – I:
Registered factories, tea, estates, textiles, railway tractions, fertilizers, Salem Steel Plant, Heavy Water Plant, Caustic Soda, Calcium, Carbide, Aluminium and Potassium Chlorate and all other industrial establishments.
Area Rate Per KWH Rate per KVA
of maximum
demand per
month
(1) (2) (3)
(in Paise) (in Rupees)
Chennai
Metropolitan — 290 125
Non-
Metropolitan — 280 125
a) New High Tension Industries set up in any area on or after 15th February 1997 shall not be eleigible for any tariff concession:
Provided that the High Tension Industries set up in any area other than Chennai Metropolitan area before 15th February 1997 shall continue to avail themselves of the said tariff concession until the expiry of the period of three years from the date on which the consumer is given service connection.”
(Emphasis Added)
6. The withdrawal of the notification came to be challenged in a batch of Writ Petitions and K.Govindarajan,J.allowed those Writ Petitions. That order also came to be reported in 1999 (II) CTC 108 (Madras Cements Ltd., vs. State of Tamil Nadu. Paragraph 37 of the said order contains the following directions:
“37. On the basis of the above, the following order is passed:
1.The petitioners who had informed about their readiness for getting power connection or made applications to the second respondent – Electricity Board on or before 14.21997, are entitled to enjoy the said tariff concession for the full period of three years, from the date of giving power concession as stipulated in G.O.Ms.No.29, Energy (A-2) dated 31.1.1995 and the respondents are directed to extend such concession to those petitioners in accordance with the said Government Order.
2.The Writ Petitions in which the G.O.Ms.No.17, Energy dated 14.2.1997 is challenged are dismissed.
3.The Writ Petitions in which the petitioners who have not made applications or sent intimation, regarding their readiness to the second respondent – Electricity Board to get power connections on or before 14.2.1997, filed claiming that they have altered their position by establishing the industry on or before 14.2.1997 only to get advantage of the said Government Order dated 31.3.1995, in which tariff concession was given, are also entitled for such tariff concession as stipulated in G.O.Ms.No.29, Energy dated 31.3.1995, provided if they are able to establish the same before the second respondent – Electricity Board.
7. The said order came to be challenged by the respondent Electricity Board. The Division Bench by its judgment (since reported in AIR 2005 MADRAS 400 Tamil Nadu Electricity Board, Chennai and another vs. M/s.K.S.V.Cotton Mills Pvt.Ltd.)) disposed of those appeals. The division Bench gave a further direction to the Electricity Board to deal with the claims for the tariff concessions in accordance with its judgment. It is against this order, the Board went on appeal before the Supreme Court referred to above.
8. The Supreme Court by its judgment reported in 2008 7 SCC 353 (cited supra) gave the following directions, which are found in paragraphs 52 and 53 of its order:-
“52. We have noticed hereinbefore that some of the industries had even installed generators. They had to do it. They inevitable had to do it because the Board would not supply power. Would it not be too much to contend that even those industries have not been set up as they have not become consumers? We think that for the said purpose, the proviso has to be read down. It must be made applicable to them who not only had started commercial production before the said date, namely 14.2.1997 but also had applied and were otherwise ready to take electrical connections having deposited the amount asked for. Those hard cases, even according to Mr.Ganguli, should be brought within the purview of the proviso. We, therefore, hold:
1. As the concession had been granted by the State, it had the power to withdraw the same.
2.It is not a case where in view of the doctrine of promissory estoppel, the State could not have in law amended the schedule.
3.In view of existence of public interest the doctrine of promissory estoppel would have no application.
4.Even otherwise the appellants having not preferred appeals against the judgment of the Division Bench of the High Court, the said questions cannot be permitted to be raised before us.
5.Proviso appended to the main provision should be read down as stated in paras 44 and 45 supra.
6.In view of our findings aforementioned, we have not gone into the merit of the matter involved in each case separately.
53. We direct accordingly. The matters would now be examined by the appropriate authority of the Board, as directed by the High Court in individual cases. The appeals are allowed with the aforementioned directions. No costs.”
9. Even before the appropriate authorities of the Board (in the present case the respective Superintending Engineers of various electricity distribution circles) could consider the merits of the individual claims, the Board came up with a Circular dated 10.6.2008. Since much of the arguments were addressed on the legality of the Circular, the Circular in extenso may be extracted below:
“Based on the above judgment the following instructions are issued:-
1. As per the Supreme Court order, the tariff concession as per the G.O.Ms.No.29, dt.31.1.95 is eligible to those industries who had not only started commercial production before 14.2.1997 but also had applied for service connection and were ready to avail electrical concessions having deposited the amount as on 14.2.1997. It may be noted that ready to avail electrical connection means that such HT Consumers now seeking tariff concession should have obtained CEIG Certificate before 14.2.97 which is pre-requisite condition under Rule 69 of I.E.Rule 1956 for availing electricity supply.
2. Inasmuch as the Supreme Court had ordered that these matters would now be examined by the Appropriate authority of the Board, as directed by the High Court, the matter shall be examined by the appropriate authority i.e.Superintending Engineers/Electricity Distribution Circle with available records (No fresh records need be called for) and ascertain as to whether the consumers had not only started the commercial production but also had applied for HTSC, paid all the deposit amount and ready with safety certificate issued by CEIG to avail supply before the cut off date, namely before 14.2.97.
3. On examination by the Superintending Engineer/ Distribution Circle, the consumer is found not eligible for tariff concession as per the Supreme Court order, a 15 days (Fifteen days only) notice shall be issued to those consumers who have given bank guarantee to pay tariff concession arrears as on date due to TNEB, failing which BG shall be invoked. In the case of consumers who have not given BG or wherever BG has lapsed, a 15 clear days (Fifteen days only) notice shall be issued to pay the tariff concession arrears as on date due to TNEB, failing which the HTSC shall be disconnected. No further time shall be given.
4. If service is disconnected, a civil suit may be filed to recover the tariff concession amount already availed by such consumers including other arrears if any.
5. All Chief Engineers/ Distribution and Superintending Engineers / Electricity Distribution Circles with whom applications of the HT Consumers who have sought tariff concession in the Courts are pending are hereby instructed to follow the above instructions scrupulously without fail. The action taken may be reported immediately to Head Quarters. (Emphasis added)
10. Based upon the said Circular, the respective appropriate authorities rejected the claims of the petitioners. The main ground upon which the claims of the petitioners were rejected was that they have not obtained the certificate from the Chief Electrical Inspector to the Government (CEIG) before 15.2.1997, which is the cut off date on which the tariff concession was withdrawn. In view of the rejection of the tariff concession, demand notices were also issued seeking surcharge for the belated payment of excess tariff availed by the petitioners. It is, this action of the respondents Board, which gave rise to the present round of litigation.
11. Mr.R.Muthukumaraswamy, the learned Senior Counsel appearing for Mr.R.S.Pandiyaraj, the learned counsel for some of the petitioners submitted that the Circular dated 10.6.2008 is unwarranted. The Supreme Court had given direction only to the appropriate authorities of the Board, i.e. the respective Superintending Engineers of various Electricity Distribution Circles, to examine the claim of the individual cases and in the guise of giving guidelines to the subordinate officers, the respondent Board has usurped the power vested on the appropriate authority. Further in the name of interpreting the judgment of the Supreme Court, the respondent Board had put spokes on the implementation of the Supreme Court’s order in its letter and spirit.
12. The objection taken by the petitioners was that nowhere the Supreme Court had directed, that the petitioners, before availing the tariff concession must possess the certificate issued by the CEIG, which according to the respondent Board’s Circular is a pre-requisite and such a requirement is in accordance with Rule 69 of the Indian Electricity Rules, 1956.
13. He also submitted that while the Supreme Court gave certain findings, it did not go into the merits of the individual matters separately. It only directed to examine such claims by the appropriate authority. This pre-supposes that the persons who are intending to avail tariff concession must submit necessary records to avail the concession. But in paragraph two of the impugned circular, the Board has forestalled the petitioners from producing records to the satisfaction of the authority. This situation has brought in by the Board was with a view to deny the tariff concession to which they are entitled to. In essence by the issuance of the Circular, the Board has adopted a device by which the applications for tariff concessions will be rejected en bloc without any consideration of individual claims. It is also submitted that the Board though can give guidelines to the subordinate officers to achieve certain amount of uniformity, but, in the guise of giving such guidelines, they cannot misinterpret the terms of the Supreme Court’s judgment and also deprive the individual initiatives to be made by the appropriate authorities in dealing with such claims.
14. Mr.R.Muthukumaraswamy, the learned Senior Counsel thereafter referring to certain passages from the Supreme Court’s order submitted that while the Supreme Court dealt with different types of consumers, but did not deal with any specific finding in respect of each case and has broadly laid down guidelines for the authorities to apply the tariff concession in each case.
15. According to the learned Senior Counsel, there were three types of consumers before the Supreme Court. They are:
a) Consumers who are operating the units with captive energy and who wanted to avail the tariff concession by seeking High Tension supply.
b) Consumers who have set up the industry and have also applied for connections for the High Tension supply, which is pending at various stages as on 15.2.1997.
c) Consumers, who had applied and also obtained the CEIG Certificate before 15.2.1997 but were not extended the tariff concession in their cases.
16. It was also submitted that the Supreme Court had taken pains to explain the various situations in its judgment, which are found reflected in paragraphs 41, 43, 44 and 52. Paragraphs 41, 43 and 44 may be usefully extracted below:
“41. There are cases before us wherefrom it appears that electrical connections had not been provided owing to default on the part of the Electrical Inspector who is an officer of the State and/or authorities of the Board, although prompt action had been taken in the matter of depositing of money and /or complying with directions by the consumers.
..
43. The proviso is an exception to the main clause whereas all industries which were set up on or after 15th February became wholly ineligible for any tariff concession but those who had set up prior thereto shall continue to avail themselves of the said tariff concession. Legally, those who had not become consumers of electrical energy, but where the potential consumers, they had not only applied for it but they are and, in fact, some of them have also been gone into commercial production. Once they have set up the high tension industries and who had gone up for commercial production must be held to have set up the high tension industries. Once they have set up the high tension industries after 31.3.1995 (sic 31.1.1995), they became entitled to the benefit of concessional tariff for a period of three years. Such concession was to be availed by them from the date of grant of service connection. If they had already been granted service connection, they would continue to avail themselves of the said tariff concession.
44. However, the difficulty arises only in cases where despite applying for grant of electrical connection, actual service connection had not been granted. If a literal interpretation of the proviso is taken recourse to, the same may result in an anomaly in the sense that in one case, connection may be granted in one day and in another case, connection may not be granted for a long time. Because of the acts of discrimination on the part of the officers of the Board or the State, the entreprenerus would suffer. It is in the aforementioned limited sense, the doctrine of promissory estoppel will have application. If doctrine of promissory estoppel applies, the right accrued in terms thereof cannot be withdrawn with a retrospective effect.
Therefore, the learned Senior Counsel submitted that if the spirit of the Supreme Court judgment is to be implemented, then all the petitioners will have to prove was that they have set up an industry and have also made an application for a service connection, which was not granted for various reasons before the cut off date, namely 15.2.1997.
17. The learned Senior Counsel also referred to the guidelines referred by the Electricity Board for the purpose of evolving the procedure for effecting High Tension Supply. The said guidelines, which are applicable at the relevant date, which was published in the Gazette (P.433) during June 1998 has also been produced in the typed set of papers. Para 9.00 of the guidelines prescribing Procedure for effecting High Tension Supply may be usefully reproduced below:
“9.00 Procedure for effecting High Tension Supply:
9.01 The application for H.T.Supply in the prescribed form both for new service and additional services shall be obtained from the Executive Engineer of the Division. The application duly filled in shall be sent to the Superintending Engineer. On receipt of the application, the same shall be registered and a serial number obtained in the order of the receipt in the Superintending Engineer’s office and an acknowledgement in the prescribed from shall be furnished to the consumer. The application for service connection for H.T.industries under “Red Category” shall be received only on production of letter of “consent to establish” issued by Tamil Nadu Pollution Control Board along with the application by the prospective consumer. (G.O.Ms.No.17 dated 10.4.84 communicated in circular memo No.SE/IEMC/EE3/AEE1/F.TNPCB/D.503/95 dated 19.9.95)
9.02: If the application on scrutiny is found incomplete it shall be returned to the party indicating the defect, omissions for rectification within 15 days. If the application is not resubmitted by the party within 20 days, the same shall be treated as cancelled. Registration of application for H.T.supply in the Superintending Engineer’s office shall be in accordance with the date of receipt of application in complete shape. Defective application may be registered only after they are received back in complete shape after rectification by the appellants (P.405/May 1989 Gazette)
9.03: The Application in complete shape shall be forwarded to the Executive Engineer of the Distribution concerned to report the feasibility within 30 days. The feasibility report of the Executive Engineer shall clearly state the works that are to be carried out to effect supply to the party including improvements, if any that are required to increase the transformer capacity at the sub-station, erection of new sub-station/E.H.T.Line and the time required for carrying out the improvement to High tension system, required to feed the H.T.supply and the time when the improvements of sub-station will materilise. The Executive Engineer shall clearly assess and make specific mention in the feasibility report whether it will be possible to effect supply within one and half years or not.
9.04: Based on the feasibility report, the Superintending Engineer concerned shall decide whether it would be possible to effect the supply to the party within one and half years or not. The Superintending Engineer shall return the applications to those parties to whom supply cannot be given within one and half years with a request to the applicants to renew their applications after a specific date. This date can be decided by the Superintending Engineer depending on the time when the augmentation of the Transmission and Distribution system required to effect the supply to the party will be ready.
9.05: Wherever in the opinion of the Superintending Engineer, it is possible to effect supply within one and half years, the Superintending Engineer may accord load sanction if the load is within his powers of sanction or arrange to obtain the administrative sanction for the load from the competent authority.
i) The Administrative sanction may be communicated to the applicant by the Superintending Engineer with a copy to the Executive Engineer concerned. On load sanction H.T.applicants are advised to pay the Earnest Money Deposit for the sanctioned load at appropriate tariff within 30 days of the communication. One month time extension may be granted by the Superintending Engineer /O & M concerned. Further extension of time for another 30 days may be granted by the Chief Engineer concerned. For further extension of time sought by the application the same shall be referred to the Head Quarters after collecting 2% of the Earnest Money Deposit per month or part thereof of extension of time sought as a non-refundable fee. The Executive Engineer concerned may be asked to prepare an Estimate and submit it within 30 days of communication of administrative sanction to the Superintending Engineer for sanction.
ii) Simultaneously, 180 days notice may be issued to the party requesting him to intimate the Superintending Engineer after the completion of civil works and proof of having received the equipment required for the installation. Further extension of time can be granted as per the guidelines issued in Per.B.P.(F.B.) No.133 dated 11.6.91.
9.06: On receipt of intimation of readiness as above, an Engineer of the Board shall inspect the premises and verify the correctness of the facts furnished by the applicant. An estimate of the items of work necessary to effect supply by Electricity Board shall be prepared within 30 days of communication of administrative sanction by this Engineer if it is within the powers or got sanctioned by the competent authority. On receipt of sanction of the estimate, the party may be advised to pay the Development charges, Current Consumption Deposit and Service connection charges and other charges etc. as may be prescribed by the Board from time to time within 30 days.
9.07: On payment of the above charges, work may be taken up such that the completion of Board’s side work is synchronised with the completion of work by the party.
9.08: If the party does not intimate either the state of readiness mentioned in para 9.05 within 180 days or if the party does not pay the Current Consumption Deposit within 30 days as mentioned in the earlier para, the application may be cancelled with intimation to the party and the Earnest Money Deposit may be refunded after deducting Rs.10,000 in the case of H.T. If the party backs out on entering readiness but before taking up of works and payment of development charges, the entire E.M.D. may be forfeited. If the party backs out after entering readiness and after payment of development charges and even if the work is not taken up, the entire E.M.D.and Development charges shall be forfeited.
9.09: On completion of the Board’s work, a 90 days notice may be issued to the party intimating him that the Board is ready to supply the power and requesting the consumer to avail of supply.
9.10: a) The intending consumer shall avail himself of the supply within three months of the date of communication informing him that the supply is available. If the intending consumer fails to avail himself of the supply within the above period of three months, a further three months notice shall be sent to the intending consumer to avail the supply. If he does not avail himself supply during this three months notice period, the application will be treated as lapsed and the agreement will be cancelled. The service connection charges and current consumption deposit will be forfeited and special guarantee if any, will also be recovered as per clause 13.10 of the Terms and conditions of supply.
b) However, Chief Engineers of the Distribution Regions are delegated with powers to condone the delay on specific request from the applicants and to accord approval to effect supply upto a maximum period of 3 months from the date of expiry of second 3 months notice of availability of supply without forfeiture of service connection charge, current consumption deposit and cancellation of application.
c) Chairman is delegated with full powers to condone the delay and accord approval for effecting supply beyond the expiry of second 3 months notice of availability of supply without forfeiture of service connection charges, current consumption deposits and cancellation of application.
d) If the intending consumer avails supply after the expiry of first 3 months notice period of availability of supply, he shall pay the monthly minimum charges at the notified tariff rate for the period from the day following the date of expiry of the first 3 months notice period till the date of availing supply.”
18. Therefore, the learned Senior Counsel submitted that High Tension Supply will be granted only by adopting the procedure set out in the guidelines issued by the Board. Once the consumer makes an application, it has to go through every process before getting the supply. In fact, the Supreme Court conscious of the time lag in getting High Tension supply in paragraph No.44 extracted above and had observed that in some cases, the connections may be granted immediately and in some cases, it may take time for the connections to be given. Because of the fortuitous circumstances under which a person get supply, the tariff concession extended to the consumers should not be depend upon such contingencies and all those persons, who have applied for HT Supply and were ready to take electricity connections and ready to deposit the amounts asked for, should be entitled to for the Tariff concession. If this interpretation is found acceptable, then the impugned circular issued by the respondent Board making it mandatory the production of CEIG certificate before 15.2.1997 as a pre-condition for availing the tariff concession must be held to be illegal.
19. The learned Senior Counsel further submitted that there can be only two categories of cases, namely units, which have commercial production with the captive generator or the units which are set up but yet to begin production due to want of H.T.supply, but otherwise made an application and are ready to get the supply within the time limit stipulated therein. Other learned counsels have adopted the same arguments in attacking the circular.
20. Mr.P.S.Raman, the learned Additional Advocate General appearing for the respondent Board submitted that Rule 63 of the Indian Electric Supply Rules, 1956 read with Section 37 of the Electricity Act, 1910 clearly stipulates an approval by the Inspector as a pre-condition for supplying electricity. Therefore, the readiness to receive electric supply means the certificate by the CEIG is mandatory. Therefore, there was nothing wrong in the Electricity Board giving a general circular while implementing the decision of the Supreme Court.
21. He further submitted that while the Supreme Court has upheld the retroactive operation of the withdrawal notification, it also curtailed the general right of the petitioners in setting up promissory estoppel as a ground for seeking a Tariff concession. It had allowed only a limited area for the authorities to implement the tariff concession. According to him, the industry must be not only set up but also must have a valid H.T.supply by the Board. In other cases there must be a commercial production, which must have started before 15.2.1997.
22. He also produced a chart to show that the readiness that is referred to in the decision of the Supreme Court is not a mere registration of an application. It requires crossing several stages before they could prove their bona fide of keeping their readiness. In that context, he had listed out the stages under which a consumer had to cross before he can avail the tariff concession in accordance with the decision of the Supreme Court. According to him, the stages by which an applicant has to go through are as follows:
i) Date of registration of application
ii) Date of load sanction
iii) Date of issue of 180 days notice to report readiness
iv) Date of issue of notice for payment of MCD, Development charges & CCD
v) Date of readiness reported by applicant
vi) Date of receipt of MCD, Development charges & SC Charges
vii) Date of execution of agreement
viii) Date of application made to CEIG by applicant
ix) Date of safety certificate from CEIG
x) Date of completion of work
xi) Issuance of 90 days notice to avail supply
xii) Date of effecting supply.
23. He countered the arguments of the petitioners by stating that the readiness does not mean the readiness of keeping the installation in their premise, but beyond that. That stage will come only when the Board inspects the premises and also collects the necessary charges and after executing an agreement and getting the certificate of the CEIG, the supply could be made. The points in which the Board can think of granting tariff concession are cases where such certificates were in existence before 15.2.1997.
24. He strenuously contended that there is an obligation for the Board as well as the consumers to perform certain duties before getting H.T.Supply and that stage can said to be crossed only if the parties fulfilled para 9.10 of the guidelines. In all other cases, it cannot be said that the consumers were ready to receive supply as noted by the Supreme Court in paragraph 52 of its order.
25. On a careful examination of the rival contentions, it can be said that the impugned order of the Board does not scrutiny of law. It is in clear violation of the Supreme Court’s directions. There can be no quarrel with the proposition that an higher authority can issue guidelines to his subordinates, but such guidelines cannot take away the effect of right of the parties granted by Court. Also in the guise of granting such guidelines, they cannot take away the right which is granted by this Court. No where in the order of the Supreme Court there is any reference to approval of the Board’s argument regarding compliance of Rule 63 as a pre-requisite for getting tariff concession.
26. On the contrary, the Supreme Court itself had dealt in paragraph No.44 that in some cases the connection may be forthcoming in a quick time frame, but in other cases it may take a long time due to various factors and on that ground only the entrepreneurs cannot be made to suffer. For H.T.Supply, the grant of CEIG certificate comes only after all the formalities are complied with by the consumers as well as by the Board and to reach that process, there are several stages will have to be crossed by a consumer. While on the part of the consumer even if his obligations are fulfilled in accordance with the guidelines, still the Board may take its own time to fulfill its own obligations.
27. Only after completion of the process found in para 9.09, the question of safety certificate will arise. It is only at this stage, the CEIG can visit and grant necessary certificate as required under Rule 63.
28. Though the learned Additional Advocate General contended that the CEIG certificate can be obtained even by submission of an application to the authorities, a reading of Rule 63(2) of the Indian Electricity Rules does not give such a picture. Even as a matter of practice it is given only when the stage for H.T.Supply is ready. In other respects, even if the entire unit is kept ready for going into operation, the said authority may not visit. In fact, some the learned counsel for the petitioners submitted that at the relevant point of time, there was only one Chief Electrical Inspector for the whole State and it was impossible for himself to visit all the plants within a time frame. Even in cases where he had visited some plants and found satisfied with the arrangement, there was an administrative delay for the grant of certificate. In those cases also, the Board had denied the tariff concession by passing a stereotyped order. Therefore, the argument of the learned Additional Advocate General that obtaining of certificate by the CEIG as a pre-condition is unwarranted and it does not draw any sustenance or support from the decision of the Supreme Court.
29. The other directions issued by the Board to the appropriate authorities that they should not receive any fresh records from the consumers goes beyond one’s comprehension. If an authority has to decide, as per the directions of the Supreme Court, the claims of each individual on its merits then it requires examination of relevant records. No one can forestall relevant records being produced before the appropriate authority. It is one thing to state that no records can be produced and the other thing is to reject the creditworthiness of such record on its being examined by the appropriate authority.
30. In the impugned circular, the Board has made an embargo on its officers from receiving any record. It means that the appropriate authority cannot adjudicate the claims of the individuals even when such records are necessary to avail tariff concession as interpreted by the Supreme Court vide its decision noted above.
31. In the light of the above circumstances, the impugned circular dated 10.6.2008 cannot act as a guideline. On the contrary, it is a wrong interpretation of the decision of the Supreme Court and it prohibits the appropriate authorities to decide the claims of each consumer on their own merits. Therefore, the impugned circular will have to be necessarily set aside. Accordingly the impugned circular dated 10.6.2008 will stand set aside.
32. If the matters are delegated to the appropriate authorities again, it may give rise to the further contention as to which point, the stages of readiness can be inferred. To avoid further litigation, this Court is obliged to answer that question. As seen from the procedure set out by the respondent Board that the process of making an application for getting H.T.supply involves several stages. Though the contention of the learned Additional Advocate General that a mere application sent by the parties without there being any further development can be said to be readiness is acceptable, at the same time the readiness cannot be the stage which is indicated in the impugned circular, namely obtaining of the certificate from the Chief Electrical Inspector of the Government (CEIG).
33. Making an application to the respondent Board followed by several stages indicated in paragraphs 9.1, 9.2, 9.3, 9.4 and 9.5 were all stages in which the consumer will fulfill before he is guaranteed any assurance of H.T.Supply. If a consumer or an applicant for H.T.Supply fulfills these obligations and thereafter if the Board requests him after estimating the cost and the sanction is made, an advice slip is given for the payment of development charges, current consumption deposit, service connection charges and other charges prescribed by the Board, then the ball will be sent to the court of the Board.
34. In case the consumer fulfills his obligations as found in paragraph 9.5 of the guidelines, then it is the obligation of the Board to take further steps in fulfilling their obligation. A contention is raised about a consumer not fulfilling his obligation, which may result in a piquant situation. In such case, it is not as if the respondent Board is without any remedy. In cases where the application of the consumer is not fulfilled upto the stage of para 9.5, the Rule provides for rejecting such applications summarily. It is only in cases where there are live applications, then the Board takes further steps to fulfill its obligations of completing their works. After completing the work as per para 9.09 gives a notice of 90 days’ to the notice of the consumer, who will have to keep himself ready for receiving the supply. Therefore, readiness that is indicated in the order of the Supreme Court and read along with the guidelines prescribed by the Board for H.T.Supply means the readiness upto the stage where the consumer has to fulfill his obligations. Once that obligation is discharged, then it is for the Board to prove that they had taken all necessary steps towards the supply of H.T. and also discharges their part of the obligation under the Rules. It is only when the obligations of both sides are fulfilled, the question of entry of CEIG appears. When a CEIG inspects the plant and grant a certificate, then only the actual supply commences. But, that may not be the relevant criteria to determine whether the consumer was in a state of readiness to receive the supply.
35. Therefore, the argument of the learned Additional Advocate General that the entire process including the process by which the Board will have to fulfill its obligations, has to be completed as a criteria for determining the tariff concession, cannot be accepted.
36. Though arguments were advanced that a consumer will have to reach the stage of para 9.10, this Court is unable to agree with the said submission. Agreeing with the said submission will make most of the consumers ineligible to avail the tariff concession.
37. In the light of the above, it is held that the following criteria should be fulfilled for availing tariff concession:-
a) The consumer must have set up an industry as directed by the Supreme Court.
b) He must have discharged his obligation in making an application for the electric H.T.supply and reach the stage of 9.05 of the guidelines of procedure for effecting of High Tension Supply issued by the Tamil Nadu Electricity Board.
If these two conditions are fulfilled, then the fact that there was a delay in fulfilling the obligation of the Board or getting a certificate from CEIG cannot be a relevant factor to deny tariff concession claims made by the petitioners.
38. In all these Writ Petitions, the individual merits are not gone into. The respective appropriate authority will consider the claims of each individuals on the basis of the directions of the Supreme Court and as well as the directions referred herein within a period of 12 weeks from the date of receipt of a copy of this order and communicate the result to each petitioners. While doing so, the appropriate authority shall not be influenced by the impugned circular dated 10.6.2008, which is set aside by this Court. The appropriate authorities shall allow each consumer to produce such of those records, which are relevant for arriving at a proper determination of the case involved. All the Writ Petitions are allowed to the extent indicated above. After considering the claims for tariff concession and in case any of the petitioner’s case is rejected, the Board will be at liberty to pursue its claim for recovery of amounts against those consumers.
39. In the following cases, relief is granted by this Court without driving the petitioners for further determination due to the peculiar facts of those cases.
40. In W.P.No.17001 of 2008, (India Cements Limited), the petitioner therein had fulfilled their obligations. The inspection by the CEIG was also done on 12.2.1997. Subsequently on 13.2.1997, the CEIG had informed rectification of certain defects as pointed out in the Inspection Report and the Report was also furnished. The petitioner also furnished itemwise rectification report on the same day i.e.on 13.2.1997. Thereafter, on 13.2.1997, the petitioner paid a sum of Rs.56.74 Lakhs and also about the inspection being carried out by the CEIG. In the meanwhile, the notification withdrawing the tariff concession was published. But, unfortunately the certificate obtained from the CEIG was furnished to the company on
18.2.1997. On 3.3.1997, an agreement for the service connection was also entered into and a service connection was also effected. In this case, by the impugned order, the claim of the petitioner was refused solely on the ground that the CEIG certificate was not obtained before 15.2.1997. Such a stand taken by the Electricity Board cannot be countenanced by this Court. In the light of the above findings, W.P.No.17001 of 2008 will stand allowed and the petitioner is entitled to avail the tariff concession.
41. In W.P.No.17093 of 2008, the petitioner (M/s.Jay Jay Lines (P) Limited) had obtained a CEIG Certificate under Rule 65 of the Indian Electricity Rules as early as 4.10.1996. Even in that case, the respondent Board has mechanically denied the tariff concession. Therefore, W.P.No.17083 of 2008 will stand allowed and the petitioner is eligible for tariff concession in accordance with the directions issued by the Supreme Court.
42. In W.P.No.19095 of 2008, (M/s.Varalakshmi Starch Industries Private Limited-the petitioner), the learned counsel for the petitioner produced a letter dated 23.4.1998 from the Chief Electrical Inspector to the Government showing that the industry was given the certificate as early as 3.2.1997 and the installation made by them was a permanent one. Therefore, in that case, the impugned order rejecting the case of the petitioner was contrary to the directions issued by the Supreme Court. Hence, W.P.No.19095 of 2008 will stand allowed and it is hereby declared that the petitioner is also entitled to avail the tariff concession as directed by the Supreme Court.
43. In W.P.No.18259 of 2008, (M/s.Marshal Textiles Private Limited). The learned counsel for the petitioner contended that this was a unit where commercial production was already carried on with captive generator and therefore, they stand on a different category. In that case, for the commercial production, if records are produced before the
authorities and if the petitioner was able to show the application made for H.T.Supply, they should be allowed to avail the tariff concession given by the Government. Therefore, in W.P.No.18259 of 2008, the third respondent the Superintending Engineer, Gobi Electricity Distribution system, Gobi shall consider the request of the petitioner in the light of the facts set out and in the light of the directions issued by the Supreme Court, within a period of eight weeks from the date of receipt of a copy of this order.
44. In W.P.No.17572 of 2008, it is stated that the petitioner (M/s.Manneswara Textiles Private Limited) has commenced commercial production with the captive generator. They have also made an application for H.T.Supply within the time frame indicated. Therefore, in W.P.No.17572 of 2008, the 3rd respondent-the Superintending Engineer, Coimbatore Electricity Distribution Circle (North)., Tatabad, Coimbatore will consider the application of the petitioner for tariff concession in
the light of the facts set out therein and without reference to the impugned order dated 11.7.2008 and dispose of the said application within a period of eight weeks from the date of receipt of a copy of this order.
45. In W.P.No.18317 of 2008, the petitioner (M/s.Nallam Textiles Private Limited) states that commercial production was started as early as 27.2.1993 with the help of the captive generators. An application for H.T.Supply has also been made and the amounts were deposited as demanded. Therefore, in W.P.No.18317 of 2008, the third respondent – Superintending Engineer, Erode Electricity Distribution Circle, Erode will consider the application of the petitioner in the light of the peculiar facts of the case within a period of eight weeks and without being influenced by the impugned circular and pass appropriate orders and communicate the same to that petitioner.
46. All the Writ Petitions are disposed off accordingly. However, there shall be no order as to costs. All the connected Miscellaneous Petitions are closed.
ajr
To
1. The Secretary to Government
Energy Department
Secretariat, Fort St.George
Chennai 600 009
2. The Chairman,
Tamil Nadu Electricity Board
No.800, Annasalai
Chennai 600 002
3. The Superintending Engineer
Tamil Nadu Electricity Board
Perambalur Electricity Distribution Circle
Perambalur