IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2538 OF 2010
(Arising out of S.L.P. (C) No.4610 of 2009)
Punjab State Electricity Board .......Appellant
Versus
M/s. Vishwa Caliber Builders Pvt. Ltd. .......Respondent
JUDGMENT
G.S. Singhvi, J.
1. Leave granted.
2. This is an appeal for setting aside order dated 30.7.2008 passed by the
Division Bench of Punjab & Haryana High Court whereby it dismissed the
writ petition filed by the appellant against the order of Ombudsman,
Electricity, Punjab (hereinafter described as “the Ombudsman”) who, in
turn, reversed the decision of the Disputes Settlement Authority (for short,
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“the DSA”) and directed refund of the amount recovered from the
respondent towards Advance Consumption Deposit (ACD), service
connection charges and load surcharge.
3. The respondent, who owns a shopping complex at Mata Rani Chowk,
AC Market, Ludhiana submitted application dated 23.5.1995 to the
competent authority of the appellant for sanction of NRS connection with a
load of 2548 KW and deposited ACD amounting to Rs.5,25,600/-. The
Engineer-in-Chief/Commercial Sales Director, Punjab State Electricity
Board sanctioned registration of the application of the respondent subject to
the condition that connection would be released only after shifting of 8
MVA load from 66 KV sub station, G.T. Road, Ludhiana to the proposed 66
KV sub station, Feroze Gandhi Market and Transport Nagar, Ludhiana.
However, due to non-availability of the transformer, steps for shifting 8
MVA load from 66 KV sub station, G.T. Road, Ludhiana, could not be
taken. After some time, the respondent applied for release of connection
with 1500 KW from the existing system. The request of the respondent was
accepted by the Chief Engineer concerned and accordingly a connection was
released in favour of the respondent with effect from 25.3.1996. On
11.5.1999, new transformer was installed at 66 KV sub station, G.T. Road,
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Ludhiana. Thereafter, Memo dated 11.8.1999 was issued to the respondent
to give consent for release of the balance load. The latter submitted consent
letter dated 1.9.1999 with a stipulation that six months’ period may be
allowed for building up the balance load. On being asked by the Senior
Executive Engineer, the respondent submitted an affidavit dated 16.10.2000
for release of the balance load.
4. Since, the respondent failed to avail the balance load within six
months, the competent authority of the appellant forfeited the ACD on the
premise that the application made by the applicant had lapsed. This was
followed by notice dated 13.12.2001 vide which the respondent was
informed that it can submit fresh A&A form for availing the balance load.
To the same effect, reminder dated 23.5.2002 was also issued to the
respondent. However, the representative of the respondent declined to
submit fresh A&A form by contending that the same is not applicable to
NRS connection.
5. The electricity connection installed in the premises of the respondent
was checked on 27.8.2004 by a team of officers of the Board which found
that as against the sanctioned load of 1500 KW, the respondent was using
total load of 1981.637 KW. Upon receipt of the report of the checking team,
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demand notice dated 25.1.2005 was issued to the respondent requiring it to
deposit Rs.15,41,492/- which included Rs. 3,37,400/- as ACD, Rs.4,81,637/-
as service connection charges and Rs.7,22,455/- as load surcharge.
6. The respondent challenged the aforesaid notice by filing a petition
before the DSA, which was dismissed vide order dated 20.2.2006. The
operative portion of that order reads as under:
“Keeping in view the petition, reply, rejoinder, evidence
adduced, written arguments and oral discussion DSA concluded
that charging of load surcharge for 432 KW load is correct. As
per SR No.35.1.2, the petitioner did not apply for any extension
in time after the expiry of six months for building up of his
load, in such cases where the consumer does not come up with
the request for extension in time beyond six months for
building up of balance load/demand, the load/demand not
availed shall be deemed to have elapsed. In this case above
mentioned regulation is applicable for calculating the penalty.
Thus, Rs.7,22,455/- charged, as load surcharge are recoverable.
As far as ACD of Rs.3,37,400/- is concerned the Board has
already received ACD of full load in 1995. So only the
difference of rate of ACD of 1052.920 KW load is recoverable.
DSA also decided that Rs.4,81,637/- charged as SCC are also
recoverable from the petitioner.
Correct surcharge as per Board’s instructions be also
recovered.”
7. The respondent carried the matter before the Ombudsman, who ruled
that the load of 1918.637 KW should be accepted as the built up load and the
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same should be deemed as regularized with effect from 1.3.2000. The
relevant portions of order dated 5.9.2007 passed by the Ombudsman are
extracted below:
“There is merit in the petitioner’s presumption having
complied with procedural formalities of balance load and
their request for extension to build up total load within six
months of their consent letter dated 01.09.1999. There offer
to be charged for minimum monthly charges on full load of
2548 KW clear their antecedents. Checking report dated
27.08.2004 confirms that load was built up to 1981 KW if
not upto 2548 KW. The respondents themselves confirm on
the basis of consumption data that load in excess of 1500
KW was running for some years. Despite the petitioners
consent letter dated 01.09.1999 to pay minimum monthly
charges on 2548 KW billing continued to be done on the
load of 1500 KW by the respondents.
Both the parties can not be absolved of the acts of omission
and commission in complying with deadlines and the rules
and regulations framed by the Respondents. Under the
circumstances, I am of the opinion that the load of 1981.637
KW detected as on 27.08.2004 should be accepted as the
built up load and deemed to be regularized w.e.f.
01.03.2000 as per the commitment of the petitioner. It will
mean that there was no unauthorized or excess load as on
the checking date of 27.08.2004. The load surcharge of
Rs.7,22,455/- service connection charges of Rs.4,81,637/-
and ACD of Rs.3,37,400/- levied on account of excess load
found during checking are not recoverable from the
petitioner.
The minimum monthly charges on the regularized load of
1981.637 KW are to be charged from the date of this
offered consent i.e.1.3.2000. It will also mean that the
balance load of 566.363 KW not build up till 27.08.2004
will lapse. The service connection charges & ACD
6deposited at initial stage shall be dealt with in accordance
with SR 35.5. & 35.6 of Electricity Supply Regulations.
For any further enhancement of extension of load beyond
1981.637 KW, the rules and regulations governing the
extension of load as per Sales Regulations will apply. The
respondents shall refund any balance amount after
adjustment of minimum monthly charges with interest as
per the Board’s instructions within two months of the
receipt of this order.”
8. The writ petition filed by the appellant was dismissed by the High
Court by observing that having failed to fulfill its obligation to release
connection with a load of 2548 KW, the appellant cannot put the respondent
in a disadvantageous position and make it liable for the load which was not
utilized.
9. Shri Jagjit Singh Chhabra pointed out that there is no provision in the
Electricity Act, 2003 (for short, `the Act’) and the regulations framed by the
appellant for regularization of unauthorized use of electricity and argued that
the Ombudsman did not have the jurisdiction to ordain deemed
regularization of extra load with effect from 1.3.2000 and the High Court
committed serious error by refusing to interfere with patently illegal order of
the Ombudsman. Learned counsel further argued that the appellant’s
inability to arrange for transfer of 8 MVA load from 66 KV sub station, G.T.
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Road, Ludhiana to the proposed 66 KV sub station at Feroze Gandhi Market
and Transport Nagar, Ludhiana could not have been made basis by the
Ombudsman for declaring that use of electricity by the respondent over and
above the sanctioned load of 1500 KW did not amount to unauthorized use
of electricity. Shri Chhabra then submitted that in terms of Clause 37.1.2 of
the Sales Regulations framed by the appellant, the respondent could have
availed the balance load within six months of the submission of A&A form,
which it failed to do and both the Ombudsman and the High Court
committed serious error by ignoring that without getting sanction for the
balance load by complying with the requirement of the relevant regulations,
the respondent was not entitled to take supply with a load of 1981.637 KW
and that it was a clear case of theft of electrical energy to the extent of
481.637 KW.
10. We have considered the arguments of the learned counsel and agree
with him that in the absence of any provision in the Act or the regulations
framed by the appellant, the Ombudsman committed jurisdictional error by
directing regularization of unauthorized use of electricity by the respondent
and refund of the alleged excess amount charged by the appellant. The fact
that the appellant could not release connection with a load of 2548 KW on
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account of non-availability of transformer necessary for transfer of 8 MVA
load from 66 KV sub station, G.T. Road, Ludhiana had no bearing on the
issue of consumption of electricity by the respondent beyond the sanctioned
load. Undisputedly, in terms of the request made by the respondent, the
Chief Engineer had sanctioned connection on the existing system with a load
of 1500 KW, but the respondent used excess load to the tune of 481.637 KW
and this amounted to unauthorized use of electrical energy. It is also not in
dispute that after installation of new transformer, the respondent could not
avail the balance load within the stipulated time of six months and when the
concerned authority issued notice dated 13.12.2001 and reminder dated
23.5.2002, its representative refused to submit fresh A&A form necessary
for release of the balance load. This being the position, the fault, if any, for
non-release of the balance load lay at the doors of the respondent and the
Ombudsman committed serious error by directing the appellant to refund the
alleged excess amount collected from the respondent on account of use of
electricity over and above the sanctioned load.
11. In the result, the appeal is allowed. The impugned order of the High
Court as also order dated 5.9.2007 passed by the Ombudsman are set aside
and the one passed by the DSA is restored. The respondent is allowed three
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months time to deposit the amount payable in terms of demand dated
25.1.2005. The appellant and, if necessary, its successor shall be entitled to
charge interest at the prevailing banking rate on the amount which was not
paid by the respondent or which may have been refunded by the appellant in
terms of the directions given by the Ombudsman and/or order passed by the
High Court.
………………………..J.
[G.S. Singhvi]
…………………………J.
[Asok Kumar Ganguly]
New Delhi
March 19, 2010.