Condition 2.2.9: Condition 12.3.3.3: = For regularization of additional loads - the department has to make physical inspection and has to calculate the power consumption of voltages of each and every apparatus connected for electricity in the presence of consumers and after hearing their objection - has to demand for payment of additional charges for regularization despite of Electronic meter's findings of additional loads = ASST.DIV.ENG,APEPDCL,SRIKAKULAM DIST,&ANOT VS SRI LAKSHMI MODERN RICE MILL,SRIKAKULAM= published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=WA&mno=1194&year=2013

Condition 2.2.9: Condition 12.3.3.3: = For regularization of additional loads - the department has to make physical inspection and has to calculate the power consumption of voltages of each and every apparatus connected for electricity in the presence of consumers and after hearing their objection - has to demand for payment of additional charges for regularization despite of Electronic meter's findings of additional loads =

The petitioner secured electricity connection under Category III with a contracted load of 74.5 HP.

Petitioner claims that he is regular in making payments of electricity bills.

While so, a notice was issued to the petitioner dated 11.06.2008 purporting that the authorities of the respondents have visited the premises of the petitioner in December, 2007 for routine inspection and have found that the petitioner had connected load of 110 HP while contracted load was only 74.5 HP.

The notice also pointed out to the petitioner that he can regularize the additional load within 30 days from the date of issuance of the notice

as per Condition 2.2.9 of General Terms and Conditions of Supply (for short “GTCS”) the connected load has to be measured by aggregating the manufacturer’s ratings of all the apparatus and if necessary by converting the ratings from KVA into HP.

Condition 2.2.9:

“connected load” means the aggregate of the manufacturer’s rating of all the apparatus including portable apparatus on the consumer’s premises. This shall converted to kW by multiplying the kVA with power factor of 0.90. If some or any of the apparatus is rated by manufacturers in HP, the HP ratings shall be converted into kW by multiplying it by 0.746.”

Condition 12.3.3.3:

“Cases where the total Connected Load is above 75 HP/56 kW or Cases where the total connected load is above 150 HP under LT Category III (B). These services will be billed at the HT category 1 tariff rates from the consumption month in which the un-authorized additional load is detected till such additional load is removed and got inspected by the Designated officer of the Company.”

the appellants must have material based on inspection that additional load is connected and the consumption of load by such additional apparatus, therefore, needs to be added to the permitted load and only thereafter the notice as per Appendix IX has to be issued. Thus, the inspection or verification of the said apparatus attached is necessary.

THE HON’BLE SRI JUSTICE N.V.RAMANA

AND

THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR

W.A.No.949 of 2012 and W.A.Nos.1266, 1192, 1202, 1186, 1181, 1175, 1177, 1201, 1194, 1178, 1184, 1212, 1211, 1179 and 1207 of 2013

COMMON JUDGMENT: (per the Hon’ble Sri Justice N.V.Ramana)

These batch of appeals are preferred by the respondents in the writ petitions against the order of learned single Judge allowing the respective writ petitions under the respective impugned orders.

Since the batch of writ petitions were filed on similar factual background raising common question of law, it would be suffice to notice relevant facts in one of the writ petitions for the sake of convenience. Hence, the facts in writ petition No.9861 of 2010, which is the subject matter in writ appeal No.949 of 2012, are noted as follows:

The petitioner secured electricity connection under Category III with a contracted load of 74.5 HP.

Petitioner claims that he is regular in making payments of electricity bills.

The notice also pointed out to the petitioner that he can regularize the additional load within 30 days from the date of issuance of the notice. The said notice is later followed by demand notice dated 15.01.2009 requiring the petitioner to pay additional charges of Rs.54,000/- based on the additional load.

Petitioner claims that he was not put on notice nor was aware of the inspection and that no enquiry was conducted regarding alleged excess load and that only after enquiry the respondent can determine the issue regarding the recovery of amount for such additional load.

Therefore, petitioner and others approached this Court in writ petition No.1037 of 2009 and batch questioning the orders of respondents calling upon the consumers to get the excess load regularized and the said batch was disposed of by this Court on 08.06.2009 holding that the respondents are bound to supply relevant material in support of their claim that the consumer has exceeded the contracted load and allow the consumer to submit objections and then determine the excess load if any and consequences thereof.

This Court, therefore, set aside the demands made as they were not preceded by notice and adequate opportunity and liberty was granted to the respondents to initiate further action after following the procedure.

Writ petitioner, therefore, alleged that in spite of the said order, no material is furnished by the respondents and the impugned demand notice dated 11.03.2010 was issued. The petitioner is, therefore, questioning the said notice in the present writ petition.

Learned single Judge considered the writ petition after hearing both sides, accepted the contention of the petitioners that

Learned single Judge, therefore, accepted the contention of the petitioners that for the aforesaid purpose the respondents are bound to conduct physical verification of the petitioner’s business premises and, only thereafter, determination of the additional load can be made.

Consequently, learned single Judge set aside the impugned demand and remitted the matter for fresh consideration to the respondents to conduct physical verification and thereafter determine excess load if any connected by the petitioner. The said order is questioned in these appeals.

Learned counsel for the appellants submits that at the time of inspection of units of each of the petitioners when the excess load was found connected, they recorded the same in HT TVR electronic meters. Notices were given to the respective consumers. It is submitted that process of physical verification was thus completed at that stage itself and after lapse of several years; the direction of learned single Judge with regard to physical verification is neither necessary nor practicable. It is also stated that most of the petitioners/consumers have subsequently obtained sanction for additional load and as such it is impossible to verify as to what was the load connected on the date of inspection. It is also contended that since the electronic meters were installed in the year 2006-2007, the said meters were fixed under transformer attached to the petitioners’ unit, automatically records the connected load, as such physical verification in every case is not required.

Learned counsel for the respondents/writ petitioners on the other hand contended that Condition 2.2.9 of GTCS itself stipulates verification of different apparatus connected to the load, as such physical verification is envisaged by the terms and conditions itself.

It is also contended that after installation of electronic meters, no amendments have been made to the GTCS and it cannot be said that mere reading in the said electronic meter is sufficient to conclude that additional load is connected while the writ petitioners have denied any additional load and disputed that any additional apparatus were connected to the load and they contended there was no enquiry or adjudication before issuing impugned demand notice.

In the light of these rival contentions, it has to be seen as to whether the direction of learned single Judge impugned herein, holding that physical verification of the additional load found connected in the petitioners premises is necessarily to be completed before issuance of demand, is sustainable?

(2) whether the impugned demand can be sustained by the appellants?

Before we consider the said aspects, it is appropriate to notice Condition 2.2.9 and 12.3.3.3 of G.T.C.S., which are extracted herein.

Condition 2.2.9:

Condition 12.3.3.3:

Notice relating to exceeding of contracted load is also prescribed under Appendix IX, which is extracted herein.

Appendix IX

Notice for Development Charges

Lr.No._________________ Dated:_______________

From To

____________________ __________________

Sub: Notice of SC No.________ Category __________ of ___ (Dist).

1. Inspection undertaken

Your service connection bearing No._____ Category _____, village/Section _________ was inspected on _______ at _______ hours by _____________ with designation ___________.

2. Incriminating Points observed

The Contracted Load _______ HP/kW

The Connected Load as per the inspection ____ HP/kW

Excess of Connected Load over the Contracted Load ____ HP/kW

You are hereby requested to regularize the additional Connected Load duly paying the required Service Line Charges, Development Charges and Security Deposit amounting to Rs._______, within 30 days from the Date of Service of this notice.

For the regularization of the above additional load, you are requested to pay the following charges within 30 days.

Service Line charges
Development charges
Security Deposit

In case there is no representation from you within 30 days from the date of service of this order, your service shall be disconnected immediately on expiry of the notice period and your service will remain under disconnection until the payments are received and additional Connected Load is regularized.

__________________________________

Signature of the Designated Officer

Copy to:

Designated officer for payment of assessed amount

Section Officer.

A conjoint reading of the extracted conditions above, show that the appellants must have material based on inspection that additional load is connected and the consumption of load by such additional apparatus, therefore, needs to be added to the permitted load and only thereafter the notice as per Appendix IX has to be issued. Thus, the inspection or verification of the said apparatus attached is necessary.

It is however to be remembered that many of the petitioners, have approached this Court by writ petition No.1037 of 2009 and batch against all the said impugned demands, which were subject matters of writ petitions, were based upon inspection carried out by the respondents.

Learned counsel for the appellants, therefore, contends that in all these cases notices were issued and demands were raised only after inspection, as such once again ordering physical inspection as ordered in the impugned judgment may not be necessary.

We have perused the judgment of this Court dated 08.06.2009 in writ petition No.1037 of 2009 and batch and evidently the only contention raised on behalf of the writ petitioners/ consumers in the said batch was that they are not supplied with the material and no opportunity was given to substantiate their objections. In these circumstances, this Court directed the appellants to furnish all the relevant material to show that consumer has exceeded contracted load. For the sake of convenience, the operative paragraph of the said order is extracted herein.

“Though, literally construed, Condition No.12.3.3 does not envisage a prior opportunity, in my considered opinion, the said condition is required to be read down to the effect that if the respondents come to the conclusion that the consumer has connected additional load, a notice to that effect is to be given, along with all the relevant material to show that the consumer has exceeded the contracted load, and objections be invited. After considering the objections, if any, filed by the consumer, the respondents shall have to determine the issue regarding the factum of connection of additional load. Interpreting this Condition in any other manner would only lead to arbitrariness and unilateral adjudication of the dispute by the licensee.

In this view of the matter, as, admittedly, the impugned demands are not preceded by notice and an opportunity of filing objections by the petitioners, they are quashed. The respondents are given liberty to initiate action afresh after following the procedure referred to above.

The writ petitions are disposed of accordingly.”

It is, thus, evident that the issue of physical verification did not arise in the said batch of cases. The present batch of cases were filed alleging that in spite of the aforesaid directions, appellants have not supplied the adequate material to the writ petitioners. Learned single Judge under the impugned order, however, went further and directed the appellants to conduct physical verifications before issuing notice and demand. In our view, the direction issued under the impugned order goes beyond even the earlier orders passed by this Court in writ petition No.1037 of 2009 and batch, apart from the fact that physical verification at this distance of time would serve no purpose and would ultimately frustrate the demand of the appellants. We find substance in the contention of the learned counsel for the appellants that before issuing notice and demand, which were impugned in the earlier batch as well as in the present batch, physical inspection was already made. Even otherwise we find that aspect of physical verification would no more, survive in view of the judgment of this Court in writ petition No.1037 of 2009 and batch, hence, that part of the order impugned herein has, therefore, necessarily to be set aside. However, the second limb of contention of the writ petitioners that they were not supplied with any material in support of the appellants’ claim, as directed in the earlier batch of cases referred to above, appears to be sustainable.

Learned counsel for the appellants is unable to substantiate that they have furnished the material to each consumer to whom notice alleging exceeding of load was given. In other words, the directions issued in writ petition No.1037 of 2009 and batch, extracted above, remain
un-complied with by the appellants. In the circumstances, we modify the impugned order by setting aside the direction to the extent directing the appellants to conduct physical verification.

Accordingly, we dispose of these batch of writ appeals with a direction that the appellants shall furnish material on the basis of which each writ petitioner/consumer was given notice and demand and then after considering the objections of the respective consumers, pass appropriate orders with regard to each such consumer. The appellants shall, therefore, determine the amount payable by the each consumer, if any, based on the said exercise and pass appropriate orders. The miscellaneous petitions, if any, filed in the writ appeals shall stand closed. There shall be no order as to costs.

______________________

JUSTICE N.V.RAMANA

_________________________________

JUSTICE VILAS V.AFZULPURKAR

1^st July, 2013

Ksp

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