SCO NO. 220-221, SECTOR 34-A,
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.,
VERSUS
Punjab State Electricity Board,
The Mall,
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.
“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
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
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
10. The first issue has already been
deliberated and decided by the Hon’ble High Court in its order dated
“ 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
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
In view of what is stated above, and
the orders of the Hon’ble High Court dated
Sd/- Sd/-
(Satpal Singh Pall) (Baljit Bains)
Member Member
Dated: 04.01.2010