Judgment:
S. Parvatha Rao, J.
1. The petitioner questions the demand of Rs. 13,450/- made by the 1st respondent in his notice in Lr. No. ADE/ C&O;/SRNR/D. No. 1125/89 dated 8-11-1989 'as surcharge for non-installation of capacitor(s) of required rating, for the period from 8/88 to 9/ 89 as per B. P. Ms. No. 502 dated 5-7-1980'.
2. The petitioner is a firm, which set-up a powerloom for weaving cloth. It applied for supply of energy by the Andhra Pradesh State Electricity Board ('the Board' for short) under Low Tension (L.T) with a contracted load of 60 H.P. The Board under an agreement has been supplying energy to the petitioner's unit under Service Connection No. 150. The supply of energy was released on 9-1-1989. The petitioner states that at the time of release of supply, it installed the requisite capacitors. The partner, who gave the affidavit in support of the Writ Petition, goes to the extent of stating that 'the same was entered into the records of the respondents on 17-4-1979' (though the date was noted as 17-4-1979 in the affidavit, the learned counsel for the petitioner states that the correct date is 17-4-1989). The petitioner states that the Officials of the 1st respondent inspected its unit on 28-9-1989, but that no responsible person representing the petitioner was present at that lime. Thereafter, the impugned letter dated 8-11-1989 making the impugned demand was issued.
3. The petitioner questions the demand of the impugned surcharge -- firstly, on the ground that in fact the petitioner had installed the capacitor at the time the energy was released to its unit on 9-1-1989; secondly, on the ground that at any rate the demand could not have been made from August, 1988 when in fact the energy was released only from 9-1-1989; and, thirdly, on the ground that no opportunity was given to the petitioner before imposing the impugned surcharge.
4. The Writ petition was admitted on 22-12-1989 and on the same day in W. P. M. P. No. 23192 of 1989 this Court granted interim stay staying all further proceedings pursuant to the letter dated 8-11-1989. The respondents have not filed any petition to have that stay vacated. In fact they have not filed any counter-affidavit till 4-12-1996. In the counter-affidavit dated 24-11-1996 given by the then Divisional Engineer/ Operations, Champapet (filed on 4-12-1996) it is stated that the service connection of the petitioner was inspected by the Divisional Engineer (Technical Audit Cell) on 28-9-1989 and thereafter the notice in the letter dated 8-11-1989 was issued 'for non-installation of the capacitor'. He asserts that the surcharge was in fact levied from 9-1-1989 to 28-9-1989 i.e., from the date of release of supply to the inspection date. He also denies that the erection of the capacitor was entered by the ADE/Operation/Saroornagar on 17-4-1989 and states that no such entry was recorded. He also places the burden on the petitioner to establish by evidence that he erected the capacitor in the premises at the time of release of power supply on 9-1-1989. He also asserts that no record was placed before the respondents by the petitioner showing that the capacitor was erected at the time of release of the supply on 9-1-1989 and that, therefore, the petitioner is liable to pay the surcharge of Rs. 13,450/- 'for non-erection of capacitor' for the period from 9-1-1989 to 28-9-1989. He filed additional counter-affidavit dated 31-3-1997 stating that the relevant records, including the inspection report dated 28-9-1989, were not traceable.
5. The learned counsel for the petitioner relies on Condition No. 38.9 (b) of the Terms and Conditions of Supply of Electrical Energy by the Andhra Pradesh State Electricity Board ('the Conditions' for short), which reads as follows :--
38.9(b) :-- 'Supply to new consumers with induction motors with connected load shall not be released unless L. T. shunt capacitors of the appropriate rating are installed.'
He submits that in view of this provision the stand taken by the respondents that at the time when the energy was released to the petitioner's unit the petitioner did not instal capacitor is without any basis. It will be for the respondents to establish that they released the supply even though the petitioner did not instal capacitor in spite of the said condition. On that basis he submits that placing the burden on the petitioner to establish that it had not installed the capacitor at the time the energy was released to it is not right. We are inclined to agree with the learned counsel for the petitioner. In view of the said Condition it would be difficult for us to accept the stand taken by the respondents that even at the time when the energy was released to the petitioner's unit the petitioner had not installed the required capacitor. In view of the said Condition it is for the respondents to establish by producing the relevant records that the energy was released even though the petitioner had not installed the capacitor and how and under what circumstances such release was effected even though the petitioner had not installed the capacitor. In the absence of any records before us it is not possible for us to proceed on the basis that the energy was released to the petitioner contrary to the Conditions and, in particular, Condition No. 38.9(b), which mandates and imposes a duty on the concerned Officers of the Board not to release supply 'unless L. T. shunt capacitors of the appropriate rating are installed'.
6. The next question is whether the capacitor was not there on the date when the inspection was made. The petitioner does not dispute that the inspection was in fact made on 28-9-1989. In the affidavit filed in support of the Writ Petition it is only stated on behalf of the petitioner that no responsible person on behalf of the petitioner was present at the time of inspection. It is interesting also to notice that it was not asserted on behalf of the petitioner in the affidavit filed in support of the Writ Petition that the capacitor in fact was present in the installed position at the time when the inspection was made on 28-9-1989. It is only stated that the capacitor was in fact installed at the time when the electrical energy was released to the petitioner-unit on 9-1-1989 and also that 'as on today the capacitors are very much in existence' i.e., on the date when the affidavit was shown to on 14-12-1989. From this we are inclined to infer that on the date of the inspection on 28-9-1989 there was no capacitor installed in the petitioner unit -- it may be that the capacitor originally installed became faulty and was therefore removed. We enquired the learned Standing Counsel for the Board -- Mr. K.N. Jwala -- whether it would be to the advantage of the petitioner if the capacitor is removed or the petitioner's unit functions without a capacitor. The learned Standing Counsel, after enquiring from an Assistant Divisional Engineer of the Board present in Court, states that the installation of a capacitor is beneficial both to the consumer as well as to the Board inasmuch as it protects the equipments of both, and also safeguards the transformer and consequently the supply of energy in a regular way. We need not go into this aspect of the matter in view of the fact that Condition No. 38.9 (a) which is attracted to the facts of the present case, was amended under B. P. Ms. No. 812 dated 19-7-1989 i.e., prior to 28-9-1989 the date of inspection, and as it stood amended is as follows to the extent relevant :--
38.9(a) :-- '..... If the existing consumers fail to instal capacitors of required rating within such time as may be fixed by the Board, such of those consumers as may be specified by the Board are liable to pay surcharge as may be fixed by the Board from time to time. If the capacitors already installed are found, during inspection, to be damaged or become defective or cease to function, the consumer shall be served with a notice to get the same replaced/rectified or corrected within 30 days of the inspection and intimate the fact of replacement/rectification to the concerned Section Officer, Operation, of the Board, who will inspect the capacitors again to verify their satisfactory performance. In the event of failure on the part of the consumer to comply, with the above notice, the Board may levy a surcharge of 25% per month on the bill amount or as may be prescribed by the Board from time to time, from the date from which the capacitor was defective or ceased to function till such time the capacitor is replaced/rectified or corrected. Provided further that such retrospective levy of surcharge shall be limited to one year from the date of inspection. The consumer aggrieved by the retrospective levy may appeal to the concerned Superintending Engineer, Assessments, whose decision shall be final. The failure on the part of the consumer to comply with the above notice, shall be treated as violation of Terms and Conditions of supply and Board reserves the right to terminate the contract and collect the sum equivalent to the minimum charges for the balance initial period of agreement.'
This mandates that the consumer shall be served with a notice to get the capacitor replaced/rectified or corrected within 30 days of the inspection and intimate the fact of replacement/rectification to the concerned Section Officer, Operation, of the Board etc. In the view we had taken that it is not established that petitioner did not instal the capacitorat the time when the energy was released to its unit, it can only be that at the time when the inspection was made the capacitor, which was originally installed, became defective and was therefore removed -- at any rate there was no capacitor on the date of the inspection: we do not see why the said condition is not attracted to such a situation also. If we are right in this, then the respondents ought to have given 30 days notice to the petitioner requiring it to instal a new capacitor. It may be that to satisfy themselves the respondents could have required the production of the earlier capacitor, which might have been removed because of its malfunctioning. In the present case we see that in the affidavit in support of the Writ Petition it has been asserted that as on the date of that affidavit i.e. 14-12-1989 the petitioner's unit had a capacitor. That has not been denied in the counter-affidavits filed and it is not the case of the respondents that the petitioner's unit had been working without a capacitor after the letter dated 8-11-1989 was served on the petitioner or that the petitioner had not in fact installed a capacitor subsequently. Condition No. 38.9(a), after the amendment, enables the respondents to levy surcharge only in the event of the petitioner failing to instal a capacitor after a 30 days notice was served on it as mandated under that Condition.
7. In view of the failure of the respondents in producing the relevant records before us and in the light of the above discussion, we have to allow this writ petition and it is accordingly allowed. No costs.