Madras High Court
M/S. Tarsun Steels India (P) Ltd vs The Chairman And Managing ... on 20 October, 2022
W.P.No.21686 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.10.2022
CORAM
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
W.P.No.21686 of 2016 &
W.M.P.No.18535 of 2016
M/s. Tarsun Steels India (P) Ltd.,
H.T.Sc.No.361, Palladam,
S.F.156/1B, Trichy Road,
Madhapur Village, Palladam,
Tiruppur – 641 664
rep. By its Managing Director,
S.Thangarajan ...Petitioner
Vs.
1. The Chairman and Managing Director,
Tamilnadu Generation and Distribution
Corporation Limited,
144, Anna Salai, Chennai – 600 002
2. The Superintending Engineer,
Tirupur Electricity Distribution Circle,
TANGEDCO, Tirupur.
...Respondents
Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari by calling for the records of the 2nd
respondent in Lr.No.SE/TEDC/TRP/DFC/AO/HT/F.MRTREV/HTSC
361/D1038/16 dated Nil and quash the same as illegal, arbitrary and
untenable under Law and against the provisions of Tamilnadu Electricity
1/17
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W.P.No.21686 of 2016
Supply Code 2004.
For Petitioner : Mr.AR.L.Sundaresan
Senior Counsel assisted by
Mr.A.R.Karthick Lakshmanan for
Mr.K.Seshadri
Counsel for the petitioner
For Respondents : Mr.L.Jaivenkatesh
ORDER
The present Writ Petition has been filed challenging the demand
notice issued by the 2nd respondent for the payment of short levy
consumption charges of Rs.4,90,62,768.67.
2. It is the case of the Writ Petitioner that the 1st respondent
sanctioned H.T.Service Connection in H.T.Sc/No.361 for sanctioned
demand 3600 K.V.A., to run said industry. The petitioner - Industry
provided with electronic L&T meter, which records Load Survey data, billing
data and tamper data, therefore, there would be no chance of defect and
furthermore, the meter is tamper proof meter. The respondents would take
meter reading on 26th of every month, after verifying the correctness of the
reading.
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W.P.No.21686 of 2016
3. While the matter stood thus, on 19.01.2015, the officials from the
respondents' office inspected the petitioner-industry and checked the
function of the main meter located inside the factory and checked the meter
fixed outside the premises on the public road and found no defect in the
meter. Inspite of the fact that there was no defect in the meters, the 2nd
respondent compared the readings with the meter located in the sub-station,
which is 6.5 kms away from the petitioner-industry and based on the
readings in the meter located in sub-station, the bills for the period from
26.09.2013 to 19.01.2015 have been revised and claimed the said huge
amount, as short levy. It is the further contention that the 2nd respondent
has not given any opportunity to explain the petitioner's position before
issuing the impugned demand.
4. As there was power cut till 05.06.2015, the consumption was low
in the petitioner's industry. Based on the low consumption, the bills have
been revised under the impugned order. The 2nd respondent, revised the
bill, as if the meters were not recording the reading properly. If the meters
become defective, the authorities should have removed and sent the same
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W.P.No.21686 of 2016
for testing by the acredited testing laboratory. No procedure were followed,
as contemplated under Supply Code, 2004, therefore, a Writ Petition has
been filed in W.P.No.26819 of 2015, whereas this Court, on the date of
admission, on 28.08.2015, was pleased to direct the petitioner to submit his
reply to the impugned demand notice treating it as show cause notice and
directed the 2nd respondent to pass orders within a period of two weeks
thereafter. Even after reply, the 2nd respondent without examining any
officers, direted the petitioner to furnish certain documents. Again on
28.01.2016, the 2nd respondent directed the petitioner to attend the enquiry
on 11.02.2016 and after attending the enquiry, the 2nd respondent has
issued impugned demand notice dated Nil (but it was signed on
04.06.2016) after a lapse of 9 months. Hence the same is challenged in the
present Writ Petition on the ground that none of the procedures
contemplated in the provisions available in the Supply Code is followed
before levying the amount, as short levy, without testing the meters.
5. In the counter, it is the contention of the respondents that the
petitioner purchased both main and check meters, due to non availability of
the meters at TANGEDCO. The same electronic L&T meters are provided
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W.P.No.21686 of 2016
to the petitioner-industry, HT SC No.361. The L&T electronic TOD meters
are capable to record load survey data, billing data, tamper data, daily
energy and power off time (No supply). The energy quota fixed to the
petitioner was 13,50,000 unit per month and quota demand was 2592 KVA.
For the restriction and control period of October 2013 to May 2014 and
October 2014 to May 2015, the petitioner had not followed the power cut
instruction and violated the conditions of supply during the power cut period
for ten times and penalties were paid by the petitioner.
6. Further, it is the contention in the counter that on 19.01.2015,
during inspection, special tests were carried out in the existing main
metering and check metering arrangement, it was found that the energy
recorded in the main HT TOD meter (L&T Sl.No.13190786) and check HT
TOD Meter (L&T Sl.No.13190278) were 38.88% lower than the substation
meter installed for Alagumalai feeder, which feeds supply to this HT service
only. The CMRI data of main and check meters were analyzed from the date
of effecting service by MRT along with the representative of L&T meter
manufacturing company. It is found that there are data shifts from
September 2013 and also as it shows multiple power failures occurred in
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W.P.No.21686 of 2016
the main and check meter, even though supply was continuously available
in the 33 KV Alagumalai feeder.
7. According to the respondents, in view of the above, the meter did
not record actual energy. The meter recorded 61.12% of energy only.
Petitioner's bills were revised for remaining 38.88% unrecorded energy of
83.227 Lakh units for the period from 01.09.2013 to 19.01.2015 for an
amount of Rs.4,90,62,769/- (Rupees Four Core Ninety Lakh Sixty Two
Thousand Seven Hundren and Sixty Nine Only).
8. Also, it is the contention of the respondents in the counter that the
revision of bills to the petitioner are based on the average consumption
from July 2015 to October 2015, as per Regulation 11 of Supply code, the
petitioner has not followed the Restriction and Control conditions and
exceeded the permitted demand and during the restriction and control
periods for ten times. The production statement given by the petitioner was
compared with the consumed energy on the day from CMRI downloaded
data from 01.09.2013 to 19.01.2015, hence opposed the Writ Petition.
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W.P.No.21686 of 2016
9. The learned Senior Counsel for the petitioner would submit that the
petitioner provided with a main meter inside the premises and check meter
outside the premises. The officials of the respondents inspected on
19.01.2015, thereafter, demand notice was issued claiming huge amount
holding that during the inspection, it was found that energy recorded in the
main HT TOD meter (L&T Sl.No.13190786) and check HD TOD meter
(L&T Sl.No.13190278) were 38.88% lower than the substation meter
installed for Alagumalai feeder, which feeds supply HT Service only and
levied a sum of Rs.4,65,47,061/-.
10. It is the contention of the learned Senior Counsel for the petitioner
that there is a difference of percentage between the meters fixed in the
petition premises and the meter fixed in the sub-station of the respondents,
accordingly, the impugned order has been passed by levying such huge
amount. It is his contention that Installation of Meter is explained in
Regulation 7 of Tamilnadu Electricity Supply Code 2004. As per Regulation
7, the licensee shall ensure that such meter is of high quality, high precision
and accuracy and shall arrange to recalibrate the same at consumer cost.
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W.P.No.21686 of 2016
11. Sub Regulation 9 of Regulation 7 states that if the consumer
considers that the meter is defective, the meter has to be tested by the
Third Party testing laboratory accredited by National Accreditation Board for
Testing and Calibration Laboratories (NABL). Till the Third Party Meter
Testing Arrangement is established, the licensee shall have the special test
conducted by the Chief Electrical Inspector to Government of Tamil Nadu.
12. The further contention of the learned Senior Counsel for the
petitioner is that Regulation 23 Chapter 4 of the Supply Code deals with
Tampering of Meters etc., According to him, in case of suspected theft of
tampering meter, such tampered meter shall be taken out and sealed at the
time of inspection, as prescribed in sub regulation (3), shall be sent to the
third party accredited meter testing laboratory, as arranged by the licensee
or supplier concerned, therefore, without following provisions to findout as
to whether there was any defective in the meters fixed in the petitioner-
Industry, the respondents merely on the basis of their inspection, came to
the conclusion that there was a difference in a reading recorded in the meter
fixed in the writ petitioner-Industry and sub station.
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W.P.No.21686 of 2016
13. It is the further contention of the learned senior counsel for the
petitioner that it is admitted case of the respondents that at the time of
inspection, the meter fixed at the premises of the writ petitioner neither
found defective nor tampered, such being the case, merely because some
difference recording was shown in sub meter fixed at the sub station, which
is situated nearly 7 kms away, the respondents cannot term that the meter
reading recorded at the Industry of the writ petitioner is not correct. Hence it
is the contention of the learned senior counsel for the petitioner that the
entire demand raised in the impugned order is without any basis and not
following any procedure, as mandated in the Electricity Supply Code.
14. Whereas the learned counsel appearing for the respondents
would submit that on 19.01.2015 during inspection, they found that the
meter fixed at the writ petitioner-Industry is not according to the original
reading by comparing meter fixed at the sub-station. The levy has been
fixed from 01.09.2013 to 19.01.2015. The 2nd respondent revised the bills
from 01.09.2013 to 19.01.2015 based on the average consumption of
13,23,195 units per month for no restriction and control period including the
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W.P.No.21686 of 2016
evening and night peak hours and 11,81,850 units per month for restriction
and control period excluding evening and night peak hours, therefore, it is
his contention that impugned order does not suffer from any irregularity,
hence pleaded to dismiss the present Writ Petition.
15. I have heard the contentions on either side and perused the entire
materials placed on record.
16. The impugned order has been passed by raising demand of
Rs.4,65,47,061/- mainly on the ground that main and check meters installed
at the writ petitioner-Industry found incorrect recording from 01.09.2013 to
19.01.2015, therefore, revised bills from 01.09.2013 to 19.01.2015, has
been passed based on the average consumption per month. The impugned
order itself would indicate that during the inspection, on 19.01.2015, the 2nd
respondent along with the Execution Engineer / Enforcement / Coimbatore
and Executive Engineer / O&M/ Palladam, has not noticed tampering or
defective in the meter, whereas, they have noticed only a change of energy
recorded in the main and check meters were 38.88% lower than the
substation meter installed for Alagumalai Feeder, which feeds supply to this
HT service only and it is not the case of the 2nd respondent that the meter
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W.P.No.21686 of 2016
installed in the petitioner-Industry was found tampered or defective at the
time of inspection.
17. It is relevant to note that when the impugned order is passed
based on the allegation of incorrect recording of the meter, the proper
procedure to take a decision is to test the meter as per Law. The Sub
Regulation 3 of Regulation 7 of the Electricity Supply Code 2004 deals with
Installation of Meter where the consumer elects to purchase his own meter,
licensee shall ensure that such meter is of high quality, high precision and
accuracy and shall arrange to recalibrate the same at consumer cost.
18. Sub-Regulation 4 of Regulation 7 makes it mandatory that after
installation, the security seals shall be affixed in the presence of the
consumer or his representative on the meter box cover, current transformer
chamber, terminal cover of the meter, test block, cut outs, air-break switch
and gate and such other part of die (installation as the licensee may decide).
After such safety measures adopted by the licensee, then, it is the duty of
the consumer to see that the meter and the seals are not stolen, damaged
or tampered with. Only after then the consumer shall run his wiring from
such point of supply. Sub-Regulation 5 of Regulation 7 states that the
quantity of electricity recorded by such meter shall be taken as the quantity
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W.P.No.21686 of 2016
actually supplied by the licensee.
19. It is not the case of the 2nd respondent that they have not taken
any safety measure while fixing the meter, at the initial stage, it is also not
their case that at time of inspection, on 19.01.2015, the meters were either
found defective or tampered. It is also relevant to note that if the consumer
considers that meter fixed is a defective or tampered, there is a special
mechanism under Sub-Regulation 9 of Regulation 7 in such a case,
licensee to have a special test carried out on the meter at any time and the
cost of such test shall be borne by the licensee or the consumer if the meter
is found defective or correct as a result of such a test. [The aforementioned
special test for the disputed energy meters including the
suspected/defective meters shall be carried out in the Third Party testing
laboratory accredited by National Accreditation Board for Testing and
Calibration Laboratories (NABL) and till such time the Third Party Meter
Testing Arrangement is established, the licensee shall have the special test
conducted by the Chief Electrical Inspector to Government of Tamil Nadu].
Therefore, the said Sub-Regulation 9 of Regulation 7 makes it clear that
whenever there is a complaint with regard to defective meters, proper test
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W.P.No.21686 of 2016
has to be conducted by the licensee that too with the 3rd party testing
laboratory. Till such test is conducted by the 3rd party testing laboratory, the
licensee shall have the special test conducted by the Chief Electrical
Inspector to Government of Tamil Nadu.
20. Admittedly, in this case, it is not the case of the consumer that the
meters are defective, similarly, it is not the case of the respondents that they
have also found that the meters are incorrect or defective, but the impugned
order has been passed only on the ground that the meter fixed at the
premises of the petitioner are found recording incorrect energy, therefore
according to respondents, it is only the meter is over tampered and not
reflecting right energy supply, if such being the contention of the
respondents, on the date of inspection, on 19.01.2015, they ought to have
sealed meter, subjected the meter for analysis by the accredited laboratory.
21. Sub-Regulation 9 of Regulation 23 deals with the Tampered
Meters, in case of suspected theft through a tampered meter, such
tampered meter taken out and sealed at the time of inspection, as
prescribed in sub regulation (3), shall be sent to the third party accredited
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W.P.No.21686 of 2016
meter testing laboratory as arranged by the licensee or supplier concerned
or to the Chief Electrical Inspector to the State Government till such time the
third party meter testing arrangement is established by the licensee or
supplier concerned, as the case may be. Only after testing in the
laboratory, where it is established that there is a case of any theft or
tampering, the procedure for assessment could be followed by the
respondents, as per Supply Code.
22. Though Regulation 23 made applicable to the Tampering,
Distress or Damage to the Electrical Plant, Meters etc., the same principle
is also applicable to the present case for the simple reason that levy has
been made only on the ground of defective recording in the meter, without
establishing defect found in the meter, merely on the basis of recording
shown in the meter of the licensee, namely, the 2nd respondent, which has
been fixed in their sub-station, which is admittedly at the distance of 6.5
kms from the petitioner-Industry, hence this Court is of the view that without
establishing the fact that the meter, in fact, is found defective or recording
incorrect details by subjecting meters to the laboratory, as contemplated in
the Regulations, the respondents cannot by mere inference on the basis of
their own recording sub-station, can come to the conclusion that there were
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excess energy used by the petitioner.
23. It is also relevant to note that the distance between the sub-station
and the petitioner-Industry is 6.5 kms, as per the 2nd respondent. Therefore,
possibility of leakage or pilferage in the above distance is also cannot be
ruled out. Therefore, merely on the basis of their own recording in their sub-
station, the petitioner cannot be clothed with liability to pay huge amount on
the ground that the energy consumed is not been properly reflected in the
meter without establishing any tampering in their meter.
24. It is further to be noted that the meter has been installed only for
the purpose of calculating the energy used and supplied. While installing
the sub-station meter, the same should have been made in the presence of
consumer and the licensee have not installed the meter in the presence of
consumer and if at all the respondents intends to rely on recording of their
sub-station meter, the installation should have been made in the presence
of Writ Petitioner, which also not been done in this case.
25. In such view of the matter, the impugned order passed by revising
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W.P.No.21686 of 2016
the bills based on their own calculations without examining the meter by
subjecting the same in a 3rd party test laboratory accredited by the National
Accreditation Board or by the Electricial Inspector of the Government of
Tamilnadu, revision made by the 2nd respondent cannot be sustained in the
eye of law. Further, it is also submitted on behalf of the petitioner that a
deposit is made pursuant to the earlier direction of this Court while admitting
the Writ Petition, if it is so, the same shall be adjusted in future bills.
Accordingly, the impugned order is setaside and the Writ Petition is
allowed. Consequently, connected miscellaneous petition is closed. No
costs.
20.10.2022
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Judgment
ssd
N.SATHISH KUMAR, J.,
ssd
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W.P.No.21686 of 2016
W.P.No.21686 of 2016 &
W.M.P.No.18535 of 2016
20.10.2022
https://www.mhc.tn.gov.in/judis
