Madras High Court
M/S. Atc Telecom Infrastructure ... vs The Chairman & Managing Director on 1 December, 2021
W.P.No.28105 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2021
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.P.No.28105 of 2017
and W.M.P.No.30198 of 2017
M/s. ATC Telecom Infrastructure Private Limited,
“Celestiel Point” No.45, Damodaran Street,
T.Nagar, Chennai - 600 017.
Represented by its Deputy Manager – Legal,
N.Senathipathi ... Petitioner
Versus
1.The Chairman & Managing Director,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO),
Anna Salai, Chennai.
2.The Junior Engineer,
Operation & Maintenance,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO),
Kodavasal, Thiruvarur – 612 601.
3.The Executive Engineer/O & M,
Operation & Maintenance,
Tamilnadu Generation and Distribution
Corporation (TANGEDCO),
Kodavasal, Thiruvarur – 612 601.
1/10
https://www.mhc.tn.gov.in/judis
W.P.No.28105 of 2017
4.The Assistant Accounts Officer
Tamilnadu Generation and Distribution
Corporation (TANGEDCO),
Revenue Branch, Thiruvarur. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
for the issuance of Writ of Certiorari, to call for the records pertaining to the
demand letter dated 06.09.2017 bearing No.JE/O&M/KDL/F.BOAB
Audit/D.No.173/17-18 of the second respondent and quash the same.
For Petitioner : Mr.J.Ravikumar
For Respondents : Mr.L.Jai Venkatesh
Standing Counsel
ORDER
This Writ Petition has been filed seeking for issuance of a Writ of
Certiorari, to call for the records pertaining to the demand letter dated
06.09.2017 bearing No.JE/O&M/KDL/F.BOAB Audit/D.No.173/17-18 of the
second respondent and quash the same.
2.It is the case of the petitioner that the petitioner Company is engaged
in the business of establishment, maintenance and provision of
telecommunication infrastructure, such as Towers and allied equipments and
also licensing of antennae sites on multi operator sharing basis, to various
telecom service providers like wire-lines and wire-less communications which
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W.P.No.28105 of 2017
includes Cellular service provider. The petitioner was provided with electricity
service connection bearing No.567-06-954 for its Telecom Tower at
No.254/63, Mela Aghraharam, Kodaivasal Village, Thiruvarur District. The
petitioner has been paying the consumption charges periodically and promptly
as per the demand of the respondent based on Meter reading. While so, during
the period of 2017, the petitioner noticed an arrear demand slip alleging
defective meter during the period between 25.10.2008 and 26.06.2010, in the
online portal of the respondents for the petitioner's service connection.
However, the respondent has not issued any notice. Therefore, the petitioner
approached the fourth respondent and collected the detailed statement on
04.08.2017. After receiving the same, the petitioner wrote a detailed objection
to the respondents. Thereafter, the second respondent issued a demand letter
dated 06.09.2017, demanding a sum of Rs.2,64,976/-. Aggrieved over the
same, the present Writ Petition has been filed.
3.The learned counsel for the petitioner would submit that, in terms of
Section 56(2) of the Electricity Act, 2003, the period of limitation for
collecting the arrears was prescribed as two years from the date when such
sum becomes first due. In the present case, since the demand was made
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W.P.No.28105 of 2017
beyond the period of limitation and therefore, the impugned demand cannot be
sustained and the same is liable to be quashed.
4.Per contra, the learned Standing Counsel appearing for the
respondents would submit that admittedly, the petitioner has not paid the
shortfall for the period between 25.10.2008 and 26.06.2010 and therefore, the
second respondent has rightly issued the demand notice by furnishing all the
details. He would also submit that during audit inspection, it was found that
the petitioner was due to pay the arrears and as per audit report, the demand
has been made and without making the payment, the petitioner has approached
this Court and hence, he prayed to dismiss Writ Petition.
5.Heard the learned counsel for the petitioner as well as the learned
Standing Counsel appearing for the respondents and perused the materials
available on records.
6.It is relevant to extract Section 56(2) of the Electricity Act, 2003,
which reads as under:
“56 (2) Notwithstanding anything contained in any
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W.P.No.28105 of 2017
other law for the time being in force, no sum due from
any consumer, under this section shall be recoverable
after the period of two years from the date when such
sum became first due unless such sum has been shown
continuously as recoverable as arrear of charges for
electricity supplied and the licensee shall not cut off
the supply of the electricity.”
7.A perusal of the above, it is clear that no sum due from any consumer,
under this section shall be recoverable after the period of two years from the
date when such sum became first due unless such sum has been shown
continuously as recoverable as arrear of charges for electricity supplied.
Therefore, the provision of Section 56 does not empower the respondents to
recover any amount if the period of two years has elapsed no electricity
supply be cut off for non-payment of those dues. In other words, what is
sought to be contended is that if the demand or part of the demand is time
barred the provisions of Section 56 would be attracted.
8.In the present case, admittedly, the impugned demand has been made
after the prescribed period of two years. Therefore, it is clearly barred by
limitation by virtue of Section 56(2). Further, it is not the case of the
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W.P.No.28105 of 2017
respondents that such sum has been shown continuously as recoverable as
arrear of charges for electricity supplied in the books of account. In this
regard, it is also worthwhile to refer a decision of the Hon'ble Supreme Court
in C.A.No.1672 of 2020 dated 18.02.2020, wherein, it was made it clear that
no claim can be made beyond the period of two years. The relevant portion of
the judgment is extracted hereunder:
"9. Applying the aforesaid ratio to the facts of
the present case, the licensee company raised an
additional demand on 18.03.2014 for the period July,
2009 to September, 2011.
The licensee company discovered the mistake of
billing under the wrong Tariff Code on 18.03.2014.
The limitation period of two years under Section 56(2)
had by then already expired.
Section 56(2) did not preclude the licensee
company from raising an additional or supplementary
demand after the expiry of the limitation period under
Section 56(2) in the case of a mistake or bona fide
error. It did not however, empower the licensee
company to take recourse to the coercive measure of
disconnection of electricity supply, for recovery of the
additional demand.
As per Section 17(1)(c) of the Limitation Act,
1963, in case of a mistake, the limitation period begins
to run from the date when the mistake is discovered for
the first time.
In Mahabir Kishore and Ors. v. State of
Madhya Pradesh,5 this Court held that :–
Section 17(1)(c) of the Limitation
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W.P.No.28105 of 2017
Act, 1963, provides that in the case of a
suit for relief on the ground of mistake,
the period of limitation does not begin to
run until the plaintiff had discovered the
mistake or could with reasonable
diligence, have discovered it. In a case
where payment has been made under a
mistake of law as contrasted with a
mistake of fact, generally the mistake
become known to the party only when a
court makes a declaration as to the
invalidity of the law. Though a party
could, with reasonable diligence,
discover a mistake of fact even before a
court makes a pronouncement, it is
seldom that a person can, even with
reasonable diligence, discover a mistake
of law before a judgment adjudging the
validity of the law.”
(emphasis supplied)
In the present case, the period of limitation
would commence from the date of discovery of the
mistake i.e. 18.03.2014. The licensee company may
take recourse to any remedy available in law for
recovery of the additional demand, but is barred from
taking recourse to disconnection of supply of electricity
under sub-section (2) of Section 56 of the Act. "
9.In the light of the above discussion, the impugned demand made by
the second respondent cannot be sustained and hence, the same is liable to be
set aside.
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W.P.No.28105 of 2017
10.In view of the above, this Writ Petition is allowed and the impugned
demand notice issued by the second respondent, insofar as the audit amount of
Rs.2,64,976/- is quashed.
11.Further, at the time of admission, this Court directed the petitioner to
pay a sum of Rs.1,00,000/- towards the demand made by the second
respondent. The learned counsel for the petitioner submitted that the same was
complied with. If any such amount was paid as per the order of this Court
dated 03.11.2017, the respondents shall adjust the said deposit made by the
petitioner in the future electricity charges. No costs. Consequently, connected
miscellaneous petition is closed.
01.12.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
rst
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W.P.No.28105 of 2017
To:
1.The Chairman & Managing Director,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO),
Anna Salai,
Chennai.
2.The Junior Engineer,
Operation & Maintenance,
Tamil Nadu Generation and Distribution
Corporation (TANGEDCO),
Kodavasal, Thiruvarur – 612 601.
3.The Executive Engineer/O & M,
Operation & Maintenance,
Tamilnadu Generation and Distribution
Corporation (TANGEDCO),
Kodavasal, Thiruvarur – 612 601.
4.The Assistant Accounts Officer
Tamilnadu Generation and Distribution
Corporation (TANGEDCO),
Revenue Branch, Thiruvarur.
https://www.mhc.tn.gov.in/judis
W.P.No.28105 of 2017
KRISHNAN RAMASAMY.J.,
rst
W.P.No.28105 of 2017
and W.M.P.No.30198 of 2017
01.12.2021
https://www.mhc.tn.gov.in/judis
