IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 21.1.2011
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
Writ Petition No.1327 of 2011
and
M.P.Nos.1 & 2 of 2011
Sologuard Medical Devices
Pvt. Ltd.,
Seevaram Nagar,
Perungudi,
Chennai.96. ... Petitioner
-Vs.-
1.Tamil Nadu Electricity Board,
represented by its Chairman,
144, Anna Salai,
Chennai-600 002.
2. Tamil Nadu Generation &
Distribution Corporation Limited,
rep. By the Deputy Financial
Controller, 5th Floor,
NPKKR Maligai,
144 Anna Salai,
Chennai-600 002.
3.The Superintending Engineer,
Salem Electricity Board,
CEDC, South,
KVSS Complex,
K.K. Nagar, Chennai.78. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records of the impugned demand of the vide the communication in ref. third respondent comprised in its Lr.No.SE/CEDC/AO/HT/AS/A.3/F.Pk.Hr.Penalty 388/D.834/10, dated 23.11.2010 on the alleged account of charges for excess energy consumption exceeding the quota fixed for the months of December 2008 to May 2010 and consequential demand of the 2nd respondent by including 1/3rd of such demand being Rs.5,64,941/- in the petitioner's monthly CC bill for December 2010 and quash the same as arbitrary and illegal.
For petitioner : Mr.Satish Parasaran
For respondents : Mr.A.Selvendran
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O R D E R
Writ Petition is filed praying to issue a Writ of Certiorari calling for the records of the impugned demand of the vide the communication in ref. third respondent comprised in its Lr.No.SE/CEDC/AO/HT/AS/A.3/F.Pk.Hr.Penalty 388/D.834/10, dated 23.11.2010 on the alleged account of charges for excess energy consumption exceeding the quota fixed for the months of December 2008 to May 2010 and consequential demand of the 2nd respondent by including 1/3rd of such demand being Rs.5,64,941/- in the petitioner’s monthly CC bill for December 2010 and quash the same as arbitrary and illegal.
2. Mr.A.Selvendran, learned counsel takes notice on behalf of the respondents. By consent of both parties, the writ petition is taken up for final disposal.
3. The writ petition is filed challenging the proceedings dated 23.11.2010 wherein a demand was made as penal charges for exceeding the quota during the evening peak hours. The operative portion of the demand is as follows:-
” You are requested to pay the amount of Rs.16,94,823/- (Rupees sixteen lakhs ninty four thousand eight hundred and twenty three only) within 15 (fifteen) days from the date of receipt of this letter towards charges for excess consumption of power over and above the quota fixed during evening peak hour energy and demand for the month of 1.12.2008 to May 10 to you HT A/C.No.388 of M/s. Sologuard Medical Devices Private Ltd.”
4. The issue was considered by the Tamil Nadu Electricity Regulatory Commission in M.P.No.42 of 2008 and by order dated 28.11.2008, the Electricity Board was permitted to impose penalty for exceeding peak hour quota. That order was subsequently clarified by M.P.Nos.4 and 7 of 2010 by order dated 4.5.2010. The individual consumers, association of consumers and high tension consumers preferred appeal to the Appellate Tribunal for Electricity, New Delhi. The Appellate Tribunal, New Delhi, in its Judgment dated 11.1.2011 in Appeal Nos.111, 114, 119, 120, 127, 128, 129, 139, 131 and 141 of 2010 clarified the issue in para 45(3(D) as follows:-
“(D) Only in the impugned order dated 4.5.2010 the State Commission made it clear that Excess Demand Charges and Excess Energy Charges for evening peak hour restriction were also applicable w.e.f. 28.11.2008. This retrospective effect cannot be given by the State Commission. Therefore, the excess demand charges and excess energy charges for evening peak restriction has to be given effect to only from 4.5.2010, the date of the Impugned Order wherein the position was clearly stated.”
5. It, therefore, follows that in respect of the bill under challenge, the penalty for exceeding the quota during evening peak hours for the period December 2008 to 4th May, 2010 shall stand set aside. Insofar as the period from 5.5.20109 onwards, the petitioner is entitled to submit his explanation to the demand notice dated 23.11.2010, treating the demand notice as show cause notice and the authority shall consider and dispose of the same on its own merits and in accordance with law within four weeks thereafter. The petitioner is liable to pay all other admitted amount as per bill. The Writ Petition is ordered as above. No costs. Consequently, connected miscellaneous petitions are closed.
Index: Yes/ No 21.1.2011
Internet: Yes/
ra
To
1.Tamil Nadu Electricity Board,
represented by its Chairman,
144, Anna Salai,
Chennai-600 002.
3. Tamil Nadu Generation &
Distribution Corporation Limited,
rep. By the Deputy Financial
Controller, 5th Floor,
NPKKR Maligai,
144 Anna Salai,
Chennai-600 002.
3.The Superintending Engineer,
Salem Electricity Board,
CEDC, South, KVSS Complex,
K.K. Nagar, Chennai.78.
R.SUDHAKAR,J.
ra
Order in
W.P.No.1327 of 2011
21.1.2011