Telangana High Court
M/S. Jeevaka Industries Ltd., Medak ... vs The A.P.E.R.C., Hyderabad, And 3 Otrs. on 23 April, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.13573 of 2011
ORDER:
Heard Mr. D.V.Nagarjuna Babu, learned counsel
appearing on behalf of petitioner and Mr.P.Prasad,
learned Standing Counsel for TSERC, appearing on
behalf of respondent No.1, Sri R.Vinod Reddy, learned
Standing Counsel for TSSPDCL, appearing on behalf of
respondent Nos.2 to 4.
2. The petitioner approached the Court seeking the
prayer as follows:
"......to issue a writ or order or direction more
particularly on in the nature of Writ of Mandamus
declaring (a) the order passed by the 1st
respondent in O.P. Nos. 1 to 4/2004 dated
24.08.2005; (b) Condition No.5.3.3 of the General
terms and conditions of supply of the 1st
respondent and (c) the action of the respondents 2
to 4 in levying and collecting development charges
for the release 200 KVA CMD (Additional Load) to
the Petitioner and as highly illegal, arbitrary,
unjust and contrary to Sections 43, 46, 181 and
182 of the Electricity Act, 2003 and consequently
set aside the order dated 24-08-2005 of the 1st
respondent in O.P.Nos. 1 to 4/2004 and pass such
other order or orders as this Honourable Court
may deem fit and proper in the circumstances of
the case."
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WP_13573_2011
PERUSED THE RECORD
3. It is represented by the learned counsel appearing
on behalf of the petitioner and Mr.R.Vinod Reddy,
learned Standing Counsel appearing on behalf of
respondent Nos. 2 to 4 that, the subject issue in the
present writ petition is squarely covered by the order of
this Court dated 05.10.2010 passed in WP.No.4010 of
2005 and batch and the relevant portion of the above
said judgment reads as under:
"From the above, it is clear that Clauses 5 to 11
stand deleted from the date of Regulation 3 of 2004
i.e. with retrospective effect. It is settled principle of
law that a subordinate legislation can never be made
with retrospective effect even assuming that the said
deletion amounts to amendment of the
rules/regulations. Further, the Distribution Companies
were directed to file all relevant data with the
Commission within 60 days of the issue of the order,
till a separate regulation under Section 46 of the Act is
made. Since the clauses in question are not notified as
required under Section 181 and were not placed before
the Legislature of the State for its approval, the
deletion shall be treated as nonest in the eye of law.
Therefore, applying such a law and making demands
for payment of notional developmental charges for
new connections and for additional loads is arbitrary
and illegal.
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4. It is further represented by the learned counsel
for the petitioner and the learned Standing Counsel
appearing on behalf of respondent Nos. 2 to 4 that, the
order dated 05.10.2010 passed in W.P.No.4010 of 2005
and batch had been confirmed by the Division Bench of
this Court dated 19.04.2022 passed in W.A.No.857 of
2011 and batch, and in particular, paragraph Nos. 16 to
19 of the said Judgment reads as under:
"16. In the considered opinion of this Court, once
Regulation No.4 of 2013 has already been issued
repealing Regulation No.3 of 2004, the appellant
company cannot demand the charges based upon the
order passed by the Regulatory Commission in Review
Petitions. The Review Petitions were preferred in
respect of Regulation No.3 of 2004, the Regulation
No.3 of 2004 has already been repealed and therefore,
the present writ appeals have become infructuous and
there cannot be any demand on the basis of
Regulation No.3 of 2004, which is not in existence at
all.
17. In the considered opinion of this Court, even
though it is presumed for a moment that the
Commission was having power to review the
Regulation, the procedure prescribed was required to
be followed and the same was not done at all. Meaning
thereby, there was total non-compliance of Section
181 of the Electricity Act, 2003 and therefore, the
Order passed in Review Petitions could not be given
effect to, as has been done in the present cases.
18. The learned Single Judge was, therefore,
justified in allowing the writ petitions and once
Regulation No.4 of 2013 has been framed and
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published in the Official Gazette, the question of
permitting the appellant company to raise the
demand based upon the repealed Regulation
No.3 of 2004, which has been struck down by
this Court, does not arise.
19. In the light of the aforesaid, all the writ appeals
deserve to be dismissed and are accordingly
dismissed."
5. Mr.R.Vinod Reddy, learned Standing Counsel for
TSSPDCL, appearing on behalf of respondent Nos.2 to 4
submits that the Writ petition could be allowed with the
stipulations that the respondent Nos.2 to 4s may be directed
to adjust the development charges already paid by the
petitioner in their future bills.
6. Taking into consideration the submissions of both
the learned counsel on record and the order passed by
this Court vide its order dated 05.10.2010 passed in
W.P.No.4010 of 2005 and batch which had been
confirmed by the Division Bench of this Court vide its
judgment dated 19.04.2022 passed in W.A.No.857 of
2011 and batch, the Writ Petition is allowed directing
the respondent Nos.2 to 4 to adjust the development
charges already paid by the petitioner herein in their
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future bills to be levied by the respondent Nos.2 to 4
herein. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________________
MRS JUSTICE SUREPALLI NANDA
Date: 23rd April, 2024
ksl.
