M/S. Agarwal Foundries Basheera ... vs Central Power Distribution ...
2022 Latest Caselaw 5291 Tel

        THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                            AND
         THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

            WRIT APPEAL Nos.688, 745 and 959 of 2007

COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)

       This order will dispose of writ appeal Nos.688, 745

and 959 of 2007.


2.     Writ appeal Nos.688 and 745 of 2007 have been filed

by Agarwal Foundries as the appellant, whereas writ

appeal No.959 of 2007 has been filed by Central Power

Distribution Company of Andhra Pradesh Limited (now

Telangana) and two of its officers who are the respondents

in writ appeal Nos.688 and 745 of 2007. In writ appeal

No.959 of 2007, Agarwal Foundries is the respondent. All

the appeals arise out of the common judgment and order

dated 26.07.2007 passed by the learned Single Judge

partly allowing writ petition No.11973 of 2004 and

dismissing writ petition Nos.11715 of 2007, both filed by

Agarwal Foundries as the writ petitioner.

3. Writ appeal No.688 of 2007 arises out of writ petition

No.11973 of 2004 whereby the learned Single Judge held

that appellant Agarwal Foundries would be liable to pay

surcharge only from the date of delivery of judgment

i.e., 26.07.2007 in the event power consumption exceeds

the permissible limit. Writ appeal No.745 of 2007 has

been filed by Agarwal Foundries as the appellant against

dismissal of W.P.No.11715 of 2007.

4. On the other hand, writ appeal No.959 of 2007 has

been filed by Central Power Distribution Company of

Andhra Pradesh Limited (now Telangana) along with two

other officials as the appellant against the order of the

learned Single Judge partly allowing W.P.No.11973 of 2004

holding that surcharge levied upto the date of judgment

i.e., 26.07.2007 cannot be sustained.

5. We have heard Mr. M.P.Chandramouli, learned

counsel for the appellant, Agarwal Foundries in

W.A.Nos.688 and 745 of 2007 which is also the respondent

in W.A. No.959 of 2007. We have also heard Mr. R.Vinod

Reddy, learned counsel for the respondent, Central Power

Distribution Company of Andhra Pradesh Limited (now

Telangana) and two others in W.A.Nos.688 and 745 of

2007 who are the appellants in W.A.No.959 of 2007.

6. As noted above, Agarwal Foundries as the writ

petitioner had filed the related two writ petitions i.e.,

W.P.Nos.11973 of 2004 and W.P.No.11715 of 2007 before

the learned Single Judge. In W.P.No.11973 of 2004, the

prayer made was for declaration that the action of the

Central Power Distribution Company of Andhra Pradesh

Limited (now Telangana) (briefly, 'Power Distribution

Company' hereinafter) in levying voltage surcharge for the

High Tension (HT) Service Connection RRD No.620 on the

demand charges and on the consumption of energy by the

writ petitioner and consequent thereupon raising bill dated

26.06.2004 with voltage surcharge as wholly arbitrary,

illegal and without jurisdiction. Writ petitioner further

sought for a direction to the respondents to issue a revised

bill without voltage surcharge for the billing months of May

and June, 2004 and thereafter for future months.

7. In W.P.No.11715 of 2007, the prayer made was for a

declaration that the action of the Chief General Manager

(Commercial), Power Distribution Company in stipulating a

condition for payment of charges with interest for availing

the 33 KV independent feeder from 220/132/33/KV

Shapurnagar substation for sanctioning additional

contracted maximum demand of 4499 KVA to the writ

petitioner as wholly arbitrary, illegal and without

jurisdiction.

8. Writ petitioner is a small scale industry and a

manufacturer of mild steel ingots. It has an induction

furnace which needs HT power supply. Writ petitioner

obtained power supply from the Power Distribution

Company as well as from private power producers. Initially

writ petitioner received electricity from 11 KV line. In July,

2000 on its request, the contracted load of the writ

petitioner was enhanced to 1501 KVA and the supply was

channelled through a 33 KV feeder. A portion of 33 KV line

was installed and erected by the writ petitioner on its own

cost though with the permission of the Power Distribution

Company.

9. The extent of power consumption by the writ

petitioner fluctuated from time to time; on certain

occasions consumption exceeded 5000 KVA.

10. A tariff order was passed by the then Andhra Pradesh

Electricity Regulatory Commission on 23.03.2004 dealing

with various aspects of power supply, consumption and

tariff. In the said order, general conditions of HT electricity

supply were indicated. Amongst others, it prescribed the

limits of supply that could be consumed by the consumers.

The Regulatory Commission mandated a distinction

between HT consumers availing supply through common

feeder on the one hand and HT consumers consuming

electricity through independent feeders on the other hand.

Consumers of the first category were permitted fluctuation

upto 33000 volts if the contracted maximum demand was

1501 KVA to 5000 KVA. If the contracted maximum

demand exceeded 5000 KVA, such excess consumption

would attract levy of surcharge. For the second category of

consumption, the maximum limit was stipulated at 10000

KVA.

11. On the ground that consumption by the writ

petitioner exceeded 5000 KVA at times, surcharge was

levied by the Power Distribution Company as and when

consumption exceeded the said limit. Such surcharge was

levied on the premise that writ petitioner was supplied

power through a common feeder. In this connection, a bill

dated 26.06.2004 was issued to the writ petitioner in

which surcharge was levied.

12. Aggrieved, W.P.No.11973 of 2004 came to be filed

before this Court.

13. Writ petitioner applied for sanction of load of 4499

KVA in addition to the existing contracted maximum

demand of 1501 KVA. Power Distribution Company

sanctioned the same vide proceedings dated 07.04.2005

which was made subject to certain conditions. One of the

conditions was that the writ petitioner should meet the

cost of the existing 33 KV line from the point of its origin to

get the status of an independent feeder. Several

correspondences were exchanged thereafter between the

parties. Writ petitioner insisted that it was already being

supplied power through an independent feeder of 33 KV

and therefore, it was not necessary to bear additional

expenses. Ultimately, vide proceedings dated 28.04.2007,

Chief General Manager of the Power Distribution Company

directed the writ petitioner to pay the charges in the form

of cost of 33 KV feeder from 220/132/33 KV Shapurnagar

substation as a condition precedent for sanction of

additional 4499 KVA, totalling to 6000 KVA (4499 KVA +

1501 KVA). The aforesaid proceedings dated 28.04.2007

came to be challenged before this Court by Agarwal

Foundries in W.P.No.11715 of 2007.

14. Primary contention of the writ petitioner was that it

was already being supplied power through an independent

feeder. Therefore there was no basis for Power Distribution

Company in treating it as common feeder. Reference was

made and reliance was placed on letters of various

authorities of the Power Distribution Company certifying

the feeder to be an independent one. Therefore, it was

contended that the Power Distribution Company was not at

all justified in treating the feeder line as a common feeder.

15. On behalf of the respondent i.e., Power Distribution

Company, two affidavits were filed in the two writ petitions

contesting the same. In the affidavits, Power Distribution

Company explained the distinction between common

feeder, independent feeder and dedicated feeder. It was the

stand of the Power Distribution Company that the feeder

through which the writ petitioner was supplied electricity

was not an independent or dedicated feeder. It was a

common feeder. If that be the position, the maximum load

that could be supplied to the writ petitioner was 5000 KVA.

The load could not exceed 5000 KVA. In the event there

was demand and consumption beyond 5000 KVA, it would

attract surcharge in terms of the tariff order dated

23.03.2004. Therefore, Power Distribution Company

sought for dismissal of both the writ petitions contending

that the writ petitions were misconceived.

16. In the course of hearing, learned counsel for the writ

petitioner submitted that right from the initial stage when

the 11 KV feeder was converted to 33 KV feeder, it was

treated as an independent one for the writ petitioner. Writ

petitioner had not only incurred the expenditure in laying

the line but had also paid supervising and other related

charges. Learned counsel for the writ petitioner contended

that action of the Power Distribution Company in levying

surcharge against the writ petitioner whenever the

maximum demand exceeded 5000 KVA or requiring the

writ petitioner to pay cost of the feeder line that emanated

from the 220 KV substation was wholly unreasonable,

arbitrary and irrational.

17. On the other hand, learned counsel appearing for the

Power Distribution Company submitted that the writ

petitioner was supplied power through a common feeder

which could neither be treated as an independent nor as a

dedicated feeder. Letters addressed by some of the officials

to the writ petitioner contrary to the factual situation or the

tariff order would not confer any right on the writ

petitioner. Supporting the action of the Power Distribution

Company, it was submitted that the writ petitions were

misconceived and therefore, those should be dismissed.

18. Learned Single Judge by the common judgment and

order dated 26.07.2007 held that because of uncertainty

due to communications of various officials of the Power

Distribution Company, writ petitioner was under the

impression that it could cross the 5000 KVA mark without

paying any extra levy beyond the normal charge. Therefore,

the surcharge levied till the date of the judgment was set

aside by the learned Single Judge. However, it was directed

that the writ petitioner would be liable to pay surcharge

whenever it crosses the maximum demand of 5000 KVA

post the date of the judgment. On the other hand, learned

Single Judge on the basis of the materials on record held

that the feeder through which the writ petitioner was

supplied electricity was neither an independent nor a

dedicated one. Therefore, the conditions mentioned in the

proceedings dated 28.04.2007 would have to be complied

with. Consequently, W.P.No.11973 of 2004 was partly

allowed whereas W.P.No.11715 of 2007 was dismissed.

19. Mr. M.P.Chandramouli, learned counsel for the

appellant Agarwal Foundries submits that it was crystal

clear from the communication of various officials of the

Power Distribution Company that for all intent and

purpose the authorities had treated the feeder through

which electricity was supplied to the writ petitioner as an

independent one. Therefore, question of levying any

surcharge in the event of demand exceeding 5000 KVA did

not arise at all. Learned Single Judge failed to appreciate

this aspect of the matter. He submits that learned Single

Judge had further failed to consider the unanimous view of

all officials of the Power Distribution Company that the

feeder through which electricity was supplied to the writ

petitioner was an independent one. Therefore, question of

writ petitioner bearing any additional cost in terms of the

proceedings dated 28.04.2007 did not arise.

20. Per contra, Mr. R.Vinod Reddy, learned counsel

representing the Power Distribution Company submits that

learned Single Judge was justified in holding that the

concerned feeder was a common feeder and not an

independent or a dedicated feeder. Therefore, the writ

petitioner was bound by the conditions stipulated in the

proceedings dated 28.04.2007. In so far levy of surcharge

is concerned, he submits that there was no basis for the

learned Single Judge to interfere with the levy of surcharge

prior to the date of judgment. He therefore submits that

while learned Single Judge was justified in dismissing

W.P.No.11715 of 2007, he erred in partly allowing

W.P.No.11973 of 2004. According to him, both the writ

petitions should have been dismissed.

21. Submissions made by learned counsel for the parties

have received the due consideration of the Court.

22. At the outset, we may advert to the tariff order dated

23.03.2004 passed by the then Andhra Pradesh Electricity

Regulatory Commission, relevant portion of which is

extracted as under:

GENERAL CONDITIONS OF H.T. SUPPLY The foregoing tariffs are subject to the following conditions: (1) A. VOLTAGE OF SUPPLY The voltage at which supply has to be availed by:

(i) HT consumers, availing supply on common feeders shall be:

For Total Contracted Demand with the Licensee and all

other sources like A.P.G.P.C.L., Mini Hydel, Wind Power, MPPs, Co-generating Plants etc. Upto 1500 KVA 11000 Volts

1501 KVA to 5000 KVA 33000 Volts Above 5000 KVA 132000 Volts or 222000 Volts as may be decided by Licensee

(ii) HT Consumers availing supply through independent feeders from the substations shall be:

For total Contracted Demand with the licensees and all other sources like APGPCL, Mini Hydel, Wind Powers,

MPPs, Co-generating plants etc. Upto 2500 KVA 11000 Volts 2501 KVA to 10,000 KVA 33000 Volts Above 10000 KVA 132000 Volts or 220000 Volts

The relaxations are subject to the fulfilment of following conditions:

(a) The consumer should have an exclusive dedicated feeder from the sub-station;

(b) The consumer shall pay full cost of the service line as per standards specified by APTRANSCO/DISCOM including take off arrangements at substation;

(c) The consumer shall not use captive generation except as permitted by the APERC.

23. From the above, it is evident that for HT consumers

availing supply of electricity through common feeder shall

be 11000 volts upto 1500 KVA; 33000 volts between 1501

KVA to 5000 KVA; and 132000 volts or 220000 volts as

may be decided by the licencee, in the event electricity

supply exceeded 5000 KVA. On the other hand, in respect

of HT consumers availing electricity supply through

independent feeders from the substations, it shall be

11000 volts upto 2500 KVA; 33000 volts between 2501

KVA to 10000 KVA; and 132000 volts or 220000 volts as

the case may be in the event supply exceeded 10000 KVA.

However, there would be relaxation in the event of the

consumer using exclusive dedicated feeder from the

substation.

24. Learned Single Judge summarised the facts as well

as the rival contentions in the following manner:

As pointed out in the preceding paragraphs, the petitioner was initially supplied power through 11 KV feeder. At the request made by the petitioner, the maximum demand was enhanced to 1501 KVA. This required the supply through 11 KV feeder. Through their letter dated 06-09-2000, the Superintending Engineer, Operation, permitted the petitioner to erect the required length of 33 KV line, at its own cost, to connect an existing line, at a distance of about 300 meters. Apart from that, the petitioner was required to pay supervising charges of 10% of the cost. According to the tariff order dated 03.06.2000, the limits were fixed for the fluctuation of maximum demand/consumption of power.

This, in turn, depended upon the nature and character of the feeder, through which the consumer is supplied

the power. In case, the power supply is through a common feeder, the fluctuations can touch 5,000 KVA. If it exceeded that, it invited surcharge. On the other hand, if the supply is through an exclusive feeder, the fluctuation can touch 10,000KVA.

The consumption of power/the maximum demand, by the petitioner exceeded 5,000 KVA, occasionally. Therefore, the respondents started levying surcharge, as and when the limits were exceeded. The petitioner raised an objection to the levy of surcharge and challenged the action of the respondents. Simultaneously, it has taken steps to get the contracted maximum demand, enhanced to 6,000 KVA. Sanction was accorded for such enhancement, by imposing a condition, that the petitioner shall meet the expenditure to get the feeder, emanating from 220/132/33KV Shapurnagar Sub- station, up to the transformer of the petitioner, classified as an independent feeder. This is resisted by the petitioner, on the ground that it is already being fed through an independent feeder, and the question its being required to pay the said amount.

It is no doubt true that several authorities of the respondents-company have addressed letters, suggesting that the petitioner is being supplied through an independent feeder. Reference in this context may be made, to the letter dated 11-08-2003, addressed by the Director, Commercial, the letter dated 31.07.2003, addressed by the Superintending Engineer, Operation/Ranga Reddy Circle (North) etc. The controversy does not, however, rest with that. Since serious consequences flow, either from the point of view of the petitioner, or that of the respondents, it needs a close scrutiny. The supply of electricity, generated at a

station, undergoes several transformations, by the time it reaches a consumer. It has to be stepped down, at various levels. The stepping down takes place at three levels, in the context of supply to industries. In a substation of very high magnitude of 220 KV, the stepping down takes place to 132 KV and thereafter, to 33 KV. Normally, substations of 33 KV are located at different places. There, the further stepping down of 11 KV takes place. A feeder, in the parlance of electric supply, is the line, through which the power, in a stepped down version, flows from a substation. For instance, from 33 KV sub-station, the feeders of 11 KV emanate. Similarly, the feeders with the capacity of 33 KV have to emanate from a sub-station of higher capacity. The question of a feeder, carrying the power of the same intensity, as that of the sub-station; does not arise.

25. After analysing the difference between common

feeder, independent feeder and dedicated feeder, learned

Single Judge came to the conclusion that the line that

supplied electricity to the writ petitioner could not be

construed to be an independent or dedicated feeder,

meaning thereby that it was a common feeder. It was held

thus:

From the facts placed before this Court, it is evident that the 33 KV feeders emanate from 220/132/33 KV substation, at Shapurnagar. Before the 33 KV feeder reaches the premises of the petitioner, it serves the

needs of 33 KV substation, at Jeedimetla. It is also stated that some more consumers are served through the feeder. The line exclusively erected by the petitioner is only a small portion of 300 metres, at the end. The petitioner does not dispute that, except for the portion of 300 metres, rest of the line running into few kilometers, was erected by the respondents. Even if, it can be said that the petitioner is the exclusive beneficiary of that portion of the line, which it had erected, same cannot be said about the remaining portion.

To understand the issue from the common parlance, the petitioner can avail the benefit of the Clause-A(ii), if only it is being served directly and exclusively, through a line, which emanated from the sub-station at Shapurnagar, and when no other consumers are permitted to draw power from it. Such a situation does not exist in the present case. Therefore, the stand taken by the respondents, that the line that supplies power to the petitioner is not an independent or dedicated feeder cannot be found fault with.

26. After holding so, learned Single Judge posed the

questions as to whether levy of surcharge on the writ

petitioner could be sustained? and whether the writ

petitioner was liable to comply with the conditions

stipulated in the proceedings dated 28.04.2007?

27. After referring to three letters dated 31.07.2003,

11.08.2003 and 13.07.2004 addressed by the Director

(Commercial) and the Superintending Engineer (Operation)

of the Power Distribution Company, learned Single Judge

took the view that as the authorities were under the

impression that the line was an independent feeder and

there was much uncertainty as a result of which the writ

petitioner was under the impression that it could consume

electricity beyond 5000 KVA without paying additional levy

in the form of surcharge. On this basis, learned Single

Judge held that the surcharge levied upto the date of

judgment could not be sustained. However, learned Single

Judge held that the feeder through which electricity was

supplied to the writ petitioner was neither an independent

nor a dedicated feeder; therefore, the writ petitioner was

bound to comply with the conditions stipulated in the

proceedings dated 28.04.2007. It was held as follows:

Thus, the authorities treated the feeder, serving the petitioner, as an independent one. In fact, the Superintending Engineer addressed another letter, dated 13-07-2004, to the Chief General Manager, recommending that it is not a case for levy of surcharge on the petitioner. When such was the uncertainty, the petitioner naturally reeled under the impression that it can cross 5000 KVA mark. Further, it is not as if the petitioner did not pay for the power

consumed by it. Therefore, the surcharge levied, up to the date of the judgment, cannot be sustained. Henceforth, the petitioner shall be liable to be levied the surcharge wherein it crosses the maximum demand of 5,000 KVA, unless any change takes place.

As regards the second aspect, it has already been held that the feeder is not an independent or dedicated one for the petitioner, and in that view of the matter, the conditions pointed in the proceedings dated 28-04-2007 have to be complied with.

In the result, W.P.No.11973 of 2004 is allowed, with an observation that the petitioner shall be liable to be levied surcharge henceforth, in the event of exceeding the limits; and W.P.No.11715 of 2007 is dismissed.

28. We are afraid we cannot subscribe to the view taken

by the learned Single Judge. Learned Single Judge fell in

error in holding that writ petitioner should not pay any

surcharge till the date of the judgment, which is clearly

contrary to the tariff order dated 23.03.2004.

29. Writ petitioner had to demonstrate that it had an

existing/vested right in not paying any additional levy in

the form of surcharge on demand and consumption

exceeding the contracted maximum demand of 5000 KVA

which the writ petitioner failed to do. Letters issued by

officials of the Power Distribution Company would not

come to the aid of the writ petitioner. If the surcharge is

leviable post the date of judgment, there can be no valid

reason not to levy and pay the surcharge prior to the date

of judgment.

30. In so far the question as to whether the feeder line

through which the writ petitioner was supplied additional

electricity was an independent or dedicated feeder or a

common feeder, learned Single Judge held that it was

neither an independent feeder nor a dedicated feeder.

Being a common feeder, the writ petitioner was bound to

comply with the condition stipulated in the proceedings

dated 28.04.2007.

31. The writ petitions raised not only disputed questions

of fact but also questions of highly technical nature. Unless

the writ petitioner is prima facie able to show or

demonstrate infringement of any of its legal rights, vested

or otherwise, such type of grievance should ordinarily not

be entertained in a proceeding under Article 226 of the

Constitution of India, whereby and whereunder the writ

court exercises supervisory jurisdiction. Therefore, we are

of the unhesitant view that both the writ petitions ought to

have been dismissed by the learned Single Judge.

Consequently, that portion of the common judgment and

order dated 26.07.2007 holding that surcharge levied upto

the date of judgment would not be sustained and that writ

petitioner would only be liable to pay the surcharge levied

only after the date of judgment are hereby set aside and

quashed.

32. In the light of the above, W.A.No.959 of 2007 is

allowed and W.A.Nos.688 and 745 of 2007 are dismissed.

However, there shall be no order as to cost.

Miscellaneous applications, pending if any, shall

stand closed.

______________________________________ UJJAL BHUYAN, CJ

______________________________________ C.V.BHASKAR REDDY, J

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