PUNJAB STATE ELECTRICITY REGULATORY COMMISSION

SCO NO. 220-221, SECTOR 34-A, CHANDIGARH

 

 

                                                Petition No.19 of  2009   

                                                        Date of hearing: 29.12.2009                                                                      

                                                      Date of Order: 04.01.2010

 

 

In the matter of:            Petition as per Orders dated 9.9.2009 passed by Hon’ble Punjab & Haryana High Court, Chandigarh in R.A.No.324 of 2009 in CWP No.6250 of 2008

AND

    In the matter of:         M/s GlaxoSmithKline Consumer Healthcare Ltd., Patiala Road, Nabha, District Patiala.

                                                            VERSUS

Punjab State Electricity Board, The Mall, Patiala and others.

 

 

Present:                         Smt. Baljit Bains, Member

                                     Shri Satpal Singh Pall, Member  

                

 For the petitioner:         Shri Puneet Jindal, Advocate                           

 

For Respondents :        Shri Kulwinder Singh, Dy.Director/TR-4

                                                Shri Bhajan Singh, Sr.XEN Nabha       

 

           

ORDER

 

 

1.         This petition has been filed by M/s GlaxoSmithKline Consumer Healthcare Limited  challenging the levy of  voltage surcharge(surcharge). The petitioner has sought  directions to the Punjab State Electricity Board (Board) to recover charges from the petitioner as per Tariff Orders of  2004-05, 2005-06, 2006-07 and Reg.4.2.1 of Electricity Supply Regulations (ESR 4.2.1) dated 31.12.2004 and for setting aside CC No.66/2007 dated 28.11.2007 issued  by the Board.

2.         The facts giving rise to the  present petition are that the Board levied  surcharge on the petitioner subsequent to  CC No.66/2007 dated 28.11.2007 issued  on the basis of Tariff Orders for  2004-05, 2005-06 and 2006-07 and General Conditions of Tariff approved by the Commission. Thereafter the  petitioner filed Civil Writ Petition No.6250 of 2008 against the levy of surcharge in the Hon’ble High Court of Punjab and Haryana with the following prayers:-

 

i)                    An appropriate writ, order or direction especially in the nature of certiorari quashing the letter dated 17.3.2008 (Annexure P-9), whereby arrears of alleged voltage surcharge from April 2004 till March 2007 have been imposed against petitioner presumably on the basis of instructions/ CC 66/2007 dated 28.11.2007 (Annexure P-8) being totally illegal, arbitrary;

ii)                   Writ in the nature of prohibition restraining the respondent No.1, 3 & 4 from imposing and levying voltage surcharge from the petitioner from the month of April 2008 onwards.

iii)                 Writ in the nature of Mandamus directing the respondents to refund/adjust the amounts of voltage surcharge wrongly got recovered/paid by the petitioner from the month of April 2007 till March 2008.

 

3.         This writ petition was dismissed by the Hon’ble High Court in Order dated 27.4.2009 upholding the levy of surcharge as well as  validity of the CC 66/2007 dated 28.11.2007. The Hon’ble High Court  in the said  order held  that the petitioners are liable to pay the surcharge from  1.4.2004 onwards. Para 34 of the order on the issue is reproduced for ready reference:-

 

“The Tariff Order for the year 2004-05 came to be issued on 30.11.2004.            The Circular No.52/2004 was issued a few days prior thereto, i.e., on 11.10.2004 whereby on the demand of the Industries Association that the 10% additional billing was causing hardship to them, it was clarified that the consumption (KWH) recorded at 11 KV corresponding to the demand recorded over and above 25,00 KVA shall be increased by 10% in the total average consumption. Since this exemption was not reflected by the Board in the ARR or in its proposal for the General Conditions of Tariff, the same was inadmissible as soon as the Tariff Order for the year 2004-05 came into force. The subsequent circular dated 28.11.2007 merely reiterates the levy of 10% surcharge on the consumption charges leviable with effect from 1.4.2004, as approved by the State Regulatory Commission in its Tariff Orders for the year 2004 to 2007 for the reason that the previous  administrative circular dated 11.10.2004 of the Board had become defunct and inoperative after the Tariff Order for the year 2004-05 came to be issued on 30.11.2004. The subsequent circular has only rectified the error and has, at the best, withdrawn an erroneously drawn concession which was not admissible to the petitioners after 30.11.2004.”

 

 

4.         In the light of the above judgement of the Hon’ble  High Court the Board asked various consumers to deposit the arrears of  surcharge with effect from 1st April, 2004. The petitioner was also in letter dated 15.9.2009 asked to deposit  arrears of  surcharge with effect from 1st April, 2004.

 

5.         The petitioner thereafter  filed LPA No. 606 of 2009 against the order of the learned Single Judge. When the case was being heard by the Division Bench, the counsel for the appellant  read out para 22 of the writ petition alongwith Annexure P-7 as well as corresponding para of the  written statement to argue  that the appellant never exceeded the limit of 2500 KVA to attract the levy of surcharge. Whereupon Hon’ble Division Bench observed that this plea as  being canvassed by the petitioner in the present LPA has not been noticed in the common judgement passed by the Single Judge. The Hon’ble High Court in its Order dated 30.7.2009 dismissed the LPA as  withdrawn  with liberty to seek review of the Order dated 27.4.2009.  

           The petitioner filed Review petition in the  Hon’ble High Court in which Single Bench  passed the following order dismissing the Review Application:-

 

            “Having heard ld. Counsel for the review-applicants, suffice it to say that in my order under review upholds the supremacy of power of the ‘Regulatory Commission’ to determine the yearly tariff and the authority of the PSEB’s sale circulars has been annulled. That being so, nothing precludes the Review-applicants to approach the ‘Regulatory Commission’  in order to establish that the PSEB’s sale circular dated 28.11.2007 runs contrary to the Tariff Order dated 30.11.2004 of the ‘Regulatory Commission’ for the year 2004-05 and can not  be given effect and that the PSEB’s sale circular issued later on, can not take away the benefits/exemption, if any, granted and/or protected by the ‘Regulatory Commission’ vide its order dated 30.11.2004, referred to above.” 

            As a sequel to the Order of the Hon’ble High Court on the Review Application, the petitioner filed this petition.

 

6.         The petition was heard on 11.11.2009 and 29.12.2009 when the counsel of the petitioner made detailed submissions. In brief, it was argued that the petition should be adjudicated in totality. No surcharge could be levied on the petitioner on  the basis of Tariff Order of 2004-05 or subsequent Tariff Orders as directions in all the said orders were to continue levy of surcharge and there was no such levy prior to 2004-05. Further CC No.66/2007 issued by the Board was not in consonance with the Tariff Order of 2004-05. Moreover the General Conditions of Tariff approved by the Commission and made effective by the Board  from 1.4.2006 had not been framed in accordance with prescribed procedure. It was vehemently argued that according to Para  9.11 of the Tariff Order of 2004-05, surcharge is attracted only in those cases where the actual energy recorded at 11 KV is found exceeding 2500 KVA and not on the basis of contract demand. In the case of the petitioner right from April, 2004 onwards till date the maximum recorded demand never exceeded 2500 KVA and hence it does not fall in the category of consumers for which surcharge is prescribed. For this contention CC No.52/2004 dated 11.10.2004 issued by the Board and ESR 4.2.1 were relied upon.

7.         Counsel representing the Board, on its part, relied upon the order of Hon’ble High Court dated 27.4.2009 upholding the levy of voltage surcharge and also validity of the circular No.CC 66/2007 dated 28.11.2007.

8.         The contentions put forth by the counsel of the  petitioner and counsel for the Board have been carefully considered. It is to be taken note of that present petition has been filed in pursuance of the order of the Hon’ble High Court dated 9.9.2009 dismissing the Review Application of the petitioner with the following observations

                 that being so, nothing precludes the Review Applicant to approach the Regulatory Commission in order to establish that the PSEB’s Sale Circular dated 28.11.2007 runs contrary to the Tariff Order dated 30.11.2004 of the ‘Regulatory Commission’ for the year 2004-05 and can not be given effect and that the PSEB’s Sale Circular issued later on, can not take away the benefits exemption, if any, granted and/or protected by the ‘Regulatory Commission’ vide its order dated 30.11.2004, referred  to above

with this clarification, the Review Applications are dismissed”.

 

9.         The Review Application was filed before the Hon’ble High Court requesting for review of Hon’ble High Court’s Order dated April 27, 2009 in a bunch of Writ Petitions including the one filed by the petitioner. The issues being raised and prayers being made by the petitioner have already been adjudicated upon by the Hon’ble High Court in its order cited supra and stand concluded. Therefore, all the issues which have been decided by the Hon’ble High Court are beyond the ambit of the present petition. Further on perusal of the Review Application filed by the petitioner in the Hon’ble High Court, it is observed that similar pleas had been canvassed in para 3  (i  to xv) of the Review Application which was dismissed. In this view of the matter, the only issues which remain for the consideration of the Commission in the present petition are (i) whether sale circular No. CC 66 of 2007 is contrary to the Tariff Order of 2004-05 and (ii) whether any benefit or exemption was available or protected by the Tariff Order of 2004-05 in the case of the petitioner.

10.       The first issue has already been deliberated and decided by the Hon’ble High Court in its order dated April 27, 2009 referred to above. The CC No.66 of 2007 was first challenged in CWP No.6250 of 2008. In para 34 of the order of the Hon’ble High Court in this case, it has been held

   since this exemption was not reflected by the Board in the ARR or its proposal for the
General Conditions of Tariff the same was inadmissible as soon as Tariff Order for the year 2004-05 came into force. The subsequent circular dated 28.11.2007 merely reiterates levy of 10%  surcharge on the consumption charges leviable with effect from 1.4.2004 as approved by the State Regulatory Commission…..”

In other words, this circular has been considered valid and operative by the Hon’ble High Court. Accordingly, it can not be said to be contrary to the Tariff Order of 2004-05 as it  only reiterated the levy of surcharge approved by the Commission in the Tariff Order.

11.       As regards the other issue  (ii) apparently no special benefit or exemption is available to any category of consumers in the Tariff Order of 2004-05. The Board’s proposal for levy of surcharge of 17.5% and 10% as applicable to different categories of consumers was considered by the Commission and discussed in  Para  9.11 of the Tariff Order. The Commission approved to continue the proposed levy of surcharge. The only recourse, for the petitioner was to impugn the Tariff Order before the Appellate  Tribunal. In the absence of  any such remedy having been availed of by the petitioner, the Tariff Order has attained finality. This view has been upheld by the Hon’ble High Court in para 29 of its order dated April 27, 2009. Thus no benefit/exemption is admissible to the petitioner according to Tariff Order of 2004-05.  Further, again in para 34 of the said order levy of 10% surcharge on the consumption charges  with effect from 1.4.2004 has been upheld.

12.       As regards the other contentions of the petitioner that the petitioner never exceeded the limit of 2500 KVA which could have attracted the levy of surcharge in view of CC No.52/2004 dated 11.10.2004 and ESR 4.2.1, it is observed that this issue was raised in LPA No. 606/2009. The Hon’ble High Court in its Judgement dated 30.7.2009   dismissed the LPA as withdrawn. Apart from this, in order dated April 27, 2009, the Hon’ble High Court has held that the administrative circular dated 11.10.2004 had become defunct and inoperative after the Tariff Order for the year 2004-05 came to be issued on 30.11.2004. Accordingly CC No.52/2004 dated 11.10.2004 and ESR 4.2.1 which was issued in pursuance to this circular is of no help to the petitioner.

            In view of what is stated above, and the orders of the Hon’ble High Court dated April 27, 2009, July 30, 2009 and September 9, 2009, the petition is dismissed.

 

 

  Sd/-                                                                                                         Sd/-

(Satpal Singh Pall)                                                                             (Baljit Bains)                            

 Member                                                                                            Member                                     

Chandigarh

Dated: 04.01.2010