SCO NO. 220-221, SECTOR 34-A,
Petition No.20 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.319 of 2009 in CWP No.5928 of 2008
AND
In the matter of: M/S R.N.Gupta and Co. Ltd.
VERSUS
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 Harjit Singh Gill, Sr.XEN, Focal Point,
Shri S.P.Singh, Reveneue Accountant, Focal
Point,
ORDER
1. This petition has been filed by M/S R.N.Gupta and Co. Ltd. challenging the levy of voltage surcharge. The petitioner has sought directions to the Punjab State Electricity Board (Board) to recover charges (voltage surcharge) from the petitioner according to Reg. 4.2.1. of the Electricity Supply Regulations (ESR) issued by the Board on 31.12.2004 and to declare CC No.66/2007 dated 28.11.2007 issued by the Board as illegal and ineffective and refund the amount charged from the petitioner towards voltage surcharge.
2. The facts giving rise to the present petition are that the Board levied voltage surcharge on the petitioner as per CC No.66/2007 dated 28.11.2007 and on the basis of General Conditions of Tariff approved by the Commission and made applicable with effect from 1.4.2006. The petitioner filed Civil Writ Petition No.5928 of 2009 in the Hon’ble High Court of Punjab and Haryana against the levy of voltage surcharge with the following prayers:-
i) Appropriate, writ, order or direction especially in the nature of certiorari quashing the Bill dated 12.3.2008 (Annexure P-5) imposing voltage surcharge @ 10% of Rs.2,16,305/- against the Petitioner and Instructions/ CC 66/2007 dated 28.11.07 (Annexure P-4) being totally illegal, arbitrary.
ii) Writ in the nature of prohibition restraining the respondent No.1 & 3 from imposing and levying voltage surcharge in violation of Feasibility Clearance granted by the Chief Engineer/Commercial read with 4.2.1 of Electricity Sales Regulations.
iii) Writ in the nature of Mandamus directing the respondents to refund/adjust the amounts of voltage surcharge recovered/paid by the Petitioner under protest.
3. The writ petition was dismissed by Hon’ble
High Court vide Order dated 27.4.2009 alongwith other writ petitions which were
bunched upholding the validity of CC 66/2007 dated 28.11.2007, which has been
impugned in this petition filed before the Commission. It was held by the Hon’ble
High Court in that order that the
petitioners are liable to levy of voltage surcharge. In
“Tariff Order for the year 2004-05 came to be issued on 30.11.2004. 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. The petitioner filed Review Petition No.319 of 2009 before the Hon’ble High Court which was dismissed with the following observations:-
“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. With this clarification, the review applications are dismissed”.
5. Thereafter the present petition was filed before the Commission. The petition was fixed for arguments on 29.12.2009. The counsel of the petitioner made detailed submissions.
The counsel of the petitioner submitted that in January, 2007 the petitioner company applied for enhancement of contract demand from 2490 KVA to 3290 KVA. The competent authority ordered extension of contract demand of the petitioner company on 11 KV voltage supply on the condition of payment of voltage surcharge as per E.S.R. No.4.2.1 for availing contract demand above 2500 KVA. Since the petitioner never utilized its demand beyond 2293 KVA, it was not liable to pay any surcharge in accordance with CC No.52/2004 and E.S.R. No.4.2.1. The levy of surcharge in view of a later circular No. CC 66/2007 dated 28.11.2007 was illegal and uncalled for.
6. The counsel of the Board submitted that
General Conditions of Tariff were approved by the Commission and made
applicable with effect from 1.4.2006 by the Board. The petitioner’s request for
enhancement of contract demand was considered in accordance with the said
General Conditions of Tariff. Shri Avinash Gupta S/o Shri Roshan Lal Gupta,
Director of the Petitioner Company had filed an Affidavit agreeing to pay
charges as per Board’s CC No.44/2003 and if any amendment in future. The condition of levy of
surcharge as per CC No.66/2007 is clearly mentioned in the A&A Form
executed by the petitioner. Further CC No.52/2004 has already been held defunct
and inoperative by the Hon’ble High Court in its Judgement dated
7. After due consideration of the submissions of both the counsel, it is observed that admittedly, in the case of the petitioner enhancement of contract demand was applied and sanctioned subsequent to the approval of General Conditions of Tariff made applicable with effect from 1st April, 2006. An Affidavit was also filed on behalf of the petitioner before the release of enhanced demand, agreeing to the levy of surcharge. CC No.66/2007 was issued by the Board to clarify the operation of the General Conditions of Tariff as well as Tariff Order of 2004-05. The validity of the circular had already been upheld by the Hon’ble High Court in its Judgement cited supra in the case of the petitioner and others. As regards the mention of E.S.R.No.4.2.1 on the feasibility clearance report, it is observed that there is no denying the fact that the Board should have taken care not to take note of the Regulation which was not applicable in view of the General Conditions of Tariff issued subsequently. It also needs a mention here that CC No.52/2004 in pursuance to which E.S.R. No.4.2.1 was issued has been considered as defunct by the Hon’ble High Court in the petitioner’s own case. Moreover, this omission stands rectified by the Board at the time of sanction of enhancement of the contract demand while executing the A&A Form. Thus according to the applicable General Conditions of Tariff as well as CC No.66/2007 held valid by the Hon’ble High Court surcharge is attracted in a case where contract demand exceeds the limit of 2500 KVA irrespective of the fact whether maximum recorded demand exceeds the limit or not.
In view of the above discussions and
order of the Hon’ble High Court dated
Sd/- Sd/-
(Satpal Singh Pall) (Baljit Bains)
Member Member
Dated: 04.01.2010