PUNJAB STATE ELECTRICITY REGULATORY COMMISSION

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

 

                                                                Petition No. 21 of 2009

                                                                                    Date of Order : 10.09.2010

 

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. 1826 of 2009

                                                            AND

In the matter of:          M/s Supreme Tex Mart Ltd.

                                                        VERSUS

                                    Punjab State Electricity Board, The Mall, Patiala

                                    (Now PSPCL) and others

 

Present :                     Shri Jai Singh Gill, Chairman

                                    Shri Satpal Singh Pall, Member

 

For the petitioner:      Shri Puneet Jindal, Advocate

 

For Respondents:     Shri Karan Sethi, Advocate

                                    Shri J.P.Singh, Dy.C.E.

 

ORDER

 

1.         This petition has been filed by M/s Supreme Tex Mart Ltd. challenging the voltage surcharge levied upon it. The petitioner has sought directions to the Punjab State Electricity Board (Board, now PSPCL) to recover charges from the petitioner only as per Tariff Orders of 2004-05, 2005-06, 2006-07 and Reg. 4.2.1 of Electricity Supply Regulations (ESR 4.2.1) and for setting aside CC No. 66/2007 dated 28.11.2007 issued by the Board and further to refund the amount recovered from the petitioner by way of surcharge.

 

2.         The facts giving rise to the present petition are that PSPCL levied voltage surcharge on the petitioner with effect from 14.8.2008 on the basis of the General Conditions of Tariff approved by the Commission and Commercial Circular (CC) No. 66 of 2007 dated 28.11.2007 issued to give effect to them. The petitioner filed Civil Writ Petition No. 1826 of 2009 in the Hon’ble High Court of Punjab and Haryana with the following prayers:

(i)         Appropriate writ, order or direction especially in the nature of certiorari quashing the Bills issued from 1.8.2008 onwards imposing voltage surcharge @ 10% against the petitioner and also quashing Instructions/CC No.66/2007 dated 28.11.2007 (Annexure P-10) being totally illegal and 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 para 4.2.1 of Electricity Supply 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 along with others was dismissed by Hon’ble High Court in its order dated 27.4.2009 wherein the validity of CC 66 of 2007 was also upheld. The Hon’ble High Court further held that the petitioners are liable to levy of voltage surcharge. In para 34 of that order, it has been observed :-

           “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 2500 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 Application No. 319 of 2009 before the Hon’ble High Court which was dismissed on 9.9.2009 with the following observations :-

           “Having heard learned 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    cannot be given effect and that the PSEB’s sale circular issued later   on, cannot 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 parties submitted their pleadings and the case was fixed for arguments on 13.01.2010. The learned counsel for the petitioner has referred in detail to the entire background in which the question of voltage surcharge has been dealt with by the then Board since the early 1990s. He has indicated that through CC No.25/99 issued in 1999, no voltage surcharge was to be applicable in case of LS consumers existing before 1995.  Even in respect of others, CC No.52 of 2004 provided for levying surcharge to the extent of 10% only on that portion of the consumption that exceeded 2500 KVA.  However, the policy of the Board with regard to the levy of surcharge was abruptly changed in the General Conditions of Tariff that were issued in 2006 and in the subsequent CC/66 of 2007 whereby surcharge was imposed w.e.f. 1.4.2004 and was to be retrospectively recovered.  The learned counsel has urged that both the General Conditions of Tariff as well as CC/66 of 2007 have been issued without the explicit approval of the Commission and no proper notice in this respect has been given to the consumers at large.  The learned counsel has further urged that the Board cannot take the plea that the levy of surcharge has been approved by the Commission in the Tariff Order of 2004-05 and reiterated in the subsequent Tariff Orders of 2005-06 and 2006-07. In this regard, it is clarified that the Public Notice issued when the ARR of 2004-05 was submitted made no mention of any proposal to levy a voltage surcharge. Thus, any tacit approval of levy of surcharge in the Tariff Order of 2004-05 cannot be legally sustained. In so far as the subsequent Tariff Orders are concerned, the learned counsel has pointed out that these merely reiterated the position as in the Tariff Order of 2004-05. Referring to the arbitrary nature of the surcharge being levied, the learned counsel has pointed out that no details have ever been provided as to the actual line and transformation losses incurred while effecting supply at 11 KV and thus the levy of a surcharge at 10% is completely unjustified. Moreover, it is also contended that as per Section 86 of the Electricity Act, 2003, surcharge can only be levied under Section 42 which is applicable in the case of Open Access consumers which the petitioner clearly is not. In the particular case of the petitioner, it is also pointed out that the connection was released under an industrial policy of the State Government whereby a package of concessions was made available to large industrial units being established in the State. There was no mention in the State Government’s policy as to levy of any surcharge nor was there any mention thereof in the feasibility clearance granted in the case of the petitioner. Thus, surcharge cannot at a later stage be imposed when no prior notice to that effect was given to the petitioner. The counsel for the petitioner has finally submitted that the electric connection with a contract demand of 4000 KVA was released to the petitioner on 14.08.2008, but, actual utilization by the petitioner never exceeded 2500 KVA. Accordingly, in terms of para 4.2.1 of the Electricity Supply Regulations of the Board and CC No. 52 of 2004, there was no liability on the petitioner to pay any surcharge.

 

 6.        Shri Karan Sethi appearing for PSPCL sought time for filing written arguments which were submitted on 21.01.2010. He has urged that the Tariff Orders of the Commission for the years 2004-05, 2005-06 and 2006-07, the General Conditions of Tariff and CC/66 of 2007 have all been properly issued after observing the requisite procedure therefor. Moreover, the similar arguments were preferred before the Hon’ble High Court and after consideration thereof, the Court has upheld the validity both of the General Conditions of Tariff and CC No.66 of 2007. In addition, a similar view has been taken by the Commission in Petitions No. 19 and 20 of 2009 where similar issues had been raised. As regards the contention that the petitioner was not informed as to the proposal to levy surcharge when his application for release of connection was being processed, the learned counsel has clarified that the A&A Form signed on 1.3.2007 clearly indicates that the petitioner has agreed to abide by the General Conditions of Tariff and that the liability of payment of surcharge has been clearly stipulated as one of the conditions in the A&A Form which has been duly signed by the petitioner.

 

7.         The Commission has given due consideration to the submissions of the learned counsel for the parties. On behalf of the petitioner, considerable stress has been laid on the imposition of the surcharge being a violation of the earlier policy of the Board as laid down in CC No. 25 of 1999 and CC No.52 of 2004. It has also been contended that the change of policy in this respect as incorporated in the Tariff Order of 2004-05 and reiterated in the subsequent Tariff Orders cannot be accepted as the proposal to impose the surcharge was neither explicitly brought to the notice of the Commission nor did it form a part of the public notice that was issued before finalizing the order. It has also been urged that the General Conditions of Tariff even if they are considered as approved by the Commission are unsustainable as proper procedure under Section 181 of the Electricity Act, 2003 has not been followed. Similarly, imposition of surcharge and its proposed retrospective recovery suffers from the shortcoming that the circular has been issued without any approval of the Commission in this respect. The Commission notes, on the other hand, that these issues amongst others were also raised before the Hon’ble High Court which in its order dated 27.4.2009 found no infirmity in the Tariff Orders issued by the Commission and upheld both the General Conditions of Tariff as well as CC No.66 of 2007. In the light of these findings of the hon’ble court, these issues need no further examination or comment. The petitioner filed a review application which was dismissed by the Hon’ble High Court with the observation that nothing precludes the review applicant in approaching the Commission to establish that CC No. 66 of 2007 was contrary to the Tariff Order of 2004 and that a circular issued later on cannot take away the benefits/exemption, if any, granted and/or protected by the Commission in the Tariff Order of 2004-05.

 

8.         Taking into account  the order passed by the Hon’ble High Court in the review the only issues which are open for consideration of the Commission are :

            (i)         Whether sale circular No. 66 of 2007 is contrary to the Tariff                              Order of 2004-05?

(ii)        Whether CC 66 of 2007 cannot take away the benefits/exemption, if any, granted and/or protected by the Commission in the Tariff Order of 2004-05 ?

 

 9.      As regards the first issue, it cannot be said that CC 66 of 2007 was in any way contrary to the Tariff Order of 2004-05 as it only reiterated the levy of surcharge approved by the Commission in that Order. The second issue is not relevant in the instant case as the proposal for levy of surcharge of 10% & 17.5% as applicable to different categories of consumers was considered by the Commission and discussed in para 9.11 of the Tariff Order of 2004-05 wherein the proposed levy of surcharge was approved. The petitioner has not been able to substantiate that any benefit/exemption granted under the Tariff Order of 2004-05 has been taken away by CC No. 66 of 2007. The contention that imposition of surcharge is in contravention of CC No. 52 of 2004 and of para 4.2.1 of the Electricity Supply Regulations is not helpful to the petitioner as CC No.52 of 2004 on the basis of which ESR 4.2.1 was issued, has been held by the Hon’ble High Court to be defunct and inoperative once the Tariff Order for the year 2004-05 came to be issued. In these  circumstances, the Commission inescapably concludes that the order passed by the Hon’ble High Court in the review application provides no relief to the petitioner.

 

10.     The final plea of the petitioner that no notice for the levy of surcharge was given to him when the application for grant of connection was being processed has to be examined in the context of the conclusion drawn in the foregoing paras. The petitioner admittedly applied for the connection after approval of the General Conditions of Tariff which had been circulated through CC No. 36 of 2006 and came into effect from 1.4.2006. The Board had subsequently issued CC No. 66 of 2007 to clarify certain aspects of the General Conditions of Tariff as well as the Tariff Order of 2004-05. It was stated therein that the surcharge has already been levied w.e.f. 11.4.2007 and that arrears from 1.4.2004 are to be recovered in the manner prescribed. The condition of levy of surcharge in accordance with CC No. 36 of 2006 is clearly mentioned in the A&A Form which has been signed by the petitioners. A perusal of the General Conditions of Tariff also indicates that surcharge is attracted in a case where approved contract demand exceeds 2500 KVA irrespective of the fact whether the maximum recorded demand exceeds that limit or not. In this situation, where the A&A Form that indicated the likelihood of levy of surcharge has been signed by the petitioner, the Commission is unable to accept the plea that due notice was not given for the levy of surcharge upon the petitioner.

           In the light of the above conclusions, there is no merit in this petition which is dismissed.

 

 

         Sd/-                                                                                                      Sd/-

(Satpal Singh Pall)                                                                        (Jai Singh Gill)

 Member                                                                                          Chairman

 

Place: Chandigarh

Date:  September  10, 2010