SCO NO. 220-221, SECTOR 34-A,
Petition No.22 of 2009
Date of hearing: 13.1.2010
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.323 of
2009 in CWP No.7643 of 2008
AND
In the
matter of: M/s JMP Ltd., 9th Mile Stone,
VERSUS
(now
Powercom) and others.
Present: Shri Jai Singh Gill, Chairman
Shri Satpal Singh Pall, Member
For the petitioner: Shri Punit Jindal,
Advocate
For
Respondents : Shri Karan Sethi,
Advocate
Shri J.P.Singh, Dy.C.E.
Shri
Parminder Singh, Addl.S.E. (East Division Jallandhar)
ORDER
1. This
petition has been filed by M/s JMP Ltd
challenging the voltage surcharge levied upon it. The petitioner has sought directions to the Punjab State Electricity
Board (Board now PSPCL) to recover the 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 the PSPCL in its letter
issued in April 2007 levied surcharge on the petitioner on the basis of Tariff
Order of 2004-05, 2005-06 and 2006-07 and General Conditions of Tariff approved
by the Commission. Subsequently the
Board issued CC No.66/2007 dated 28.11.2007 in which it was stated that this charge had already been levied
w.e.f. 11.4.2007 and the arrear of the same has to be recovered from 1.4.2004
to 13.4.2007 in the manner narrated
therein. Thereafter the petitioner filed Civil Writ Petition No.7643 of 2008 in
the Hon’ble High Court of Punjab and Haryana against the levy of surcharge with
the following prayers:-
i)
An appropriate
writ, order or direction especially in the nature of quashing the letter dated 28.4.2008,
whereby arrears of alleged voltage surcharge from April 2004 till March 10, 2007
have been imposed against petitioner presumably on the basis of instructions/
CC 66/2007 dated 28.11.2007 being
totally illegal, arbitrary;
ii)
Writ in the
nature of certiorari quashing the order/proceedings dated 24.9.2007 of the
Zonal Dispute Settlement Committee communicated to Petitioner vide letter dated
16.11.2007, whereby levy of voltage surcharge for the electricity consumption
bill dated 3.5.2007 has been upheld and suitable direction to refund the amount
got deposited from the Petitioner as voltage surcharge @ 10% for the month of
April 2007.
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 June 2007.
3. The
writ petition alongwith other petitions was dismissed by the Hon’ble High Court in its
Order dated 27.4.2009 wherein validity
of CC 66 of 2007 was 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 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 Application No.323
of 2009 before the Hon’ble High Court which was dismissed on 9.9.2009 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. It is stated therein
that the petitioner is an old consumer of the Board who had enhanced contract demand from 1415 KVA to 3400
KVA at 11 KV voltage supply on 17.11.1992. Subsequently, however, contract
demand was first reduced to 3068 KVA and further to 2480 KVA. It is prayed in
the petition that CC No.66/2007 dated 28.11.2007 may be declared as illegal, ineffective and any recovery made
on the basis of the said circular in excess of the amount payable as per ESR 4.2.1 be ordered to be refunded to the
petitioner with interest @ 18%.
6. The petition was heard on
13.1.2010. 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. The counsel for
the petitioner has finally submitted that 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.
7. 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. Shri Sethi also argued
that the contention raised by the petitioner that in view of CC No.52 of 2004 and ESR 4.2.1.,
the petitioner ought to be charged on prorate basis for the load utilized in
excess of 2500 KVA, is not tenable.
8. 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 2004-05 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.
9. 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 ?
10. 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.
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:
Date: