Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the second respondent in its Lr.No.SE/CEDC/CUD/DFC/AO/R/AS/RCS/A4/F.ACCD/12 dated 18.5.2012 with respect to the petitioner's HT Service Connection No.128, quash the same and consequently direct the respondents 1 and 2 to refund the sum of Rs.44,06,402/- to the petitioner.
O R D E R
1. This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the second respondent in its Lr.No.SE/CEDC/CUD/DFC/AO/R/AS/RCS/A4/F.ACCD/12 dated 18.5.2012 with respect to the petitioner's HT Service Connection No.128, quash the same and consequently direct the respondents 1 and 2 to refund the sum of Rs.44,06,402/- to the petitioner.
2. Heard Mr.Vijay Narayanan, learned senior counsel representing Mr.K.Harishankar, learned counsel appearing for the petitioner; M/s.G.Vasudevan, P.Gunaraj, S.K.Rameshwar and M.Varunkumar learned counsel appearing for the respondents 1 and 2 and Mrs.Narmatha Sampath, learned counsel appearing for the third respondent.
3. The petitioner is a company engaged in manufacture of Poly Vinyl Chloride (PVC) at SIPCOT Industrial Estate Phase-II, Cuddalore and owns HT Service Connection No.128 and the respondent Board is supplying the power.
4. Petitioner was allotted the industrial plot on 17.11.2005. A lease deed was executed on 26.5.2006 for a period of 99 years and the entire consideration except Rs.100/- was paid. The premises was occupied, industry has been set up and the statutory authorities have given the consent for running the industries. Petitioner has made the earnest money deposit as required and has also paid the additional security deposit in terms of Regulation 5(5)(ii)(a) of the Tamil Nadu Electricity Supply Code, 2004 as the consumption of electricity is on monthly basis. In view of the TNERC's order in its Notification dated 16.12.2011 whereby Regulation 5 of the Tamil Nadu Electricity Supply (Seventh Amendment) Code, 2011 inserting clause (5)(vii)(a), the respondent Board passed the impugned order demanding additional current consumption deposit in a sum of Rs.1,32,19,206/- for the year 2011-2012 and that is challenged before this court.
5. The impugned demand of additional current consumption deposit is made on 18.5.2012 in terms of Regulation 5(5)(vii)(a) and calculation sheet enclosed to that demand mentions that the revised additional current consumption deposit is four times of the monthly average of the electricity charges for the preceding twelve months prior to April and after giving credit to the current consumption deposit already available, and Rs.1,32,19,206 is demanded. This is demanded in spite of no objection certificate issued by the Project Officer of M/s.SIPCOT which was earlier accepted and thereafter it is seen that based on another letter from M/s.SIPCOT the consent letter has been withdrawn and the petitioner was called upon to treat that Form-V as cancelled and invalid for Additional Current Consumption Deposit for the period 2011-2012. A direction was issued to pay the additional current consumption deposit or or before 4.6.2012. On 4.6.2012, petitioner has paid Rs.44,06,042/- as first instalment under protest. Thereafter, petitioner filed the present writ petition challenging the demand in terms of Regulation 5(5)(vii)(a) of the Tamil Nadu Electricity Supply Code. The petitioner also prayed for refund of the above amount stating that the said provision does not apply to the present petitioner.
6. In the present case, it is not in dispute that the petitioner is original allottee of the SIPCOT industrial plot for 99 years lease and the entire amount has been paid and the building and superstructure belongs to the petitioner. Therefore, petitioner falls within the definition of owner of the premises.
7. On the issue relating to claim of additional current consumption deposit, it has already been held in W.P.No.15238 of 2012 etc. batch by a common order dated 23.7.2012 that as long as the Petitioner is the owner of the building and structure, he will fall within the definition of owner as per Section 2(51) of the Electricity Act, 2003 and Regulation 2(l) of the Tamil Nadu Electricity Distribution Code, 2004. Relevant portion of the decision in paras 34 to 41 reads as follows:-
"34.This demand made by the respondent electricity Board is challenged by the HT consumers who are under 99 years lease granted by the SIPCOT stating that they are the owners of the premises. According to the petitioners, consequent to the 99 years lease executed by M/s.SIPCOT for which full consideration has been paid and since they are the owners of the superstructure, namely, the industry for which electricity supply is granted, they are the owners of the premises. It is stated that the word owner of the premises as stated in Clause (vii)(a) of the Regulation 5(5) cannot be interpreted to mean that the owner of the premises in these cases, is SIPCOT. On the contrary, each one of the HT industries who have put up building and superstructure on the leased out property will be the owners of the premises. Therefore, there is no need to get a consent in Form 5 of Annexure III to the Distribution Code from M/s.SIPCOT.
35.Sri Rahul Balaji, learned counsel appearing for the petitioner in W.P.No.18802 of 2012 brought to the attention of the court the definition of the term consumer's premises defined under Regulation 2(l) of the Tamil Nadu Electricity Distribution Code, 2004 as the area served by a service connection and the word premises defined under Section 2(51) of the Electricity Act, 2003 as any land, building or structure . Regulation 2(l) of the Tamil Nadu Electricity Distribution Code, 2004 reads as follows:-
"(l) "Consumer's premises" means the area served by a service connection;"
Section 2(51) of the Electricity Act, 2003 reads as follows:-
"(51)"premises" includes any land, building or structure;"
36.Therefore, on a reading of the above provisions, it is clear that the term premises under the Electricity Act, 2003 and under the Tamil Nadu Electricity Distribution Code, 2004 would also mean the building or structure to which the service connection is granted. According to the learned counsel for the petitioners, the factory building to which electricity service connection is given would satisfy the requirement of premises under the Act and the Regulations. In view of the above, the Regulation 5(5)(vii)(a) of the Tamil Nadu Electricity Supply Code, 2004 will not apply to the case of the petitioners. The petitioners will be deemed to have the benefit of paying additional current consumption or security deposit in terms of Regulation 5(5)(ii)(a) of the Tamil Nadu Electricity Supply Code, 2004 only. The amended Regulation will have no implication insofar as petitioners are concerned.
37.Mr.G.Vasudevan, learned counsel appearing for the respondent Electricity Board vehemently contended that the Board is entitled to collect the security deposit at four times as the land belongs to M/s.SIPCOT and the 99 years lease does entitle the petitioners to claim the land as owner of premises. The developed plot has not been transferred in its entirety, as M/s.SIPCOT continues to retain its control over the land. Therefore, the no objection certificate should be given by the SIPCOT, if not, the amended Regulation 5(5)(vii)(a) will apply.
38.It is also contended by the respondents counsel that without challenging the Regulation 5(5)(vii)(a), the petitioners cannot seek the benefit of exemption from payment of additional security deposit as per the amended regulation.
39.Having considered the rival submission, the point in issue is the interpretation of the term owner of premises . The term consumer's premises as defined in Regulation 2(l) of the Tamil Nadu Electricity Distribution Code, 2004 and the word premises as defined under Section 2(51) of the Electricity Act, 2003 and its application and effect on the petitioners industries. The land in this case has been transferred by M/s.SIPCOT to the benefit of HT industries on a 99 years lease and the entire consideration has been paid and the possession has been handed over to the petitioners industries with a clause that the lease can be renewed for a further period of 99 years. It only thereafter, the industry is set up at a great cost by way of investment.
40.The objection of the respondents is that the land does not vest absolutely with the HT industries and after the lease period the land will have to go back to the SIPCOT, and hence M/s.SIPCOT is the owner. In this case, for the purpose of Regulation 5(5)(vii), we are concerned with the issue whether additional current consumption deposit is payable by the HT industries only on the ground that they are not the absolute owners of the land as contended by the respondents.
41.The definition of the term consumer's premises under Regulation 2(l) of the Tamil Nadu Electricity Distribution Code, 2004 and the word "premises" in Section 2(51) of the Electricity Act, 2003 include land, building or structure . In the present cases the building or structure admittedly belongs to the petitioners industries concerned. It is to the petitioners industries that the power supply is granted by the electricity Board. Therefore, the term owner of premises will include owner of land, owner of building or structure. It does not state that owner of land alone is the owner of premises. This definition recognizes the ownership right of the petitioners based on right over building or superstructure. Hence, the definition has to be interpreted purposefully and harmoniously. Therefore, Regulation 5(5)(ii)(a) will only apply.
8. The counsel appearing for the respondent Board states that the counter filed by the second respondent Superintending Engineer in W.P.No.15523 of 2012 may be treated as common counter to this case also. Para 9 and 11 of the counter-affidavit reads as follows:-
"9.It is respectfully submitted that while clarification issued by our Head Quarters on 25.5.2012 sought by the Superintending Engineer/Tiruvannamalai the adequacy of security deposit while reviewing the Additional current consumption deposit, which is equivalent to four times of the monthly average of the electricity charges for the preceding twelve months prior to April 2012 is in order as per the amendment clause 5(vii)(a), as the industry is situated in the SIPCOT land on 99 years long term lease."
"11.It is respectfully submitted that in fact, the several Lessee of SIPCOT H.T. consumers commits default in payment of the electricity charges/Theft of energy deducted b the Anti Power Theft Squad and hence the TANGEDCO is unable to realize huge arrears pending from the aforesaid H.T. Consumers. Many Writ Petitions are pending before the Hon'ble High Court against the insisting of arrears left by the erstwhile H.T. Consumers of SIPCOT premises from the intending consumers who taken over the possession of aforesaid H.T. Premises."
9. In the counter-affidavit it is stated that the additional current consumption deposit is insisted only to ensure that there is no loss caused to the Board due to default made by the occupier of the SIPCOT property. This contention does not apply to the facts of the present case and has already been dealt with in the order cited above.
10. Admittedly, the writ petitioner is allottee of the property of the SIPCOT on 99 years lease and the petitioner is not subsequent occupier. The petitioner is the owner of building and structure and therefore, the Amended Regulation will not be attracted.
11. In view of the finding in the common order passed in writ petition No.15238 of 2012 etc. batch as above holding that Regulation 5(5)(vii)(a) of the Tamil Nadu Electricity Supply Code, does not apply to the case similar to the present case, the impugned demand is set aside. The respondent Board is directed to adjust the excess deposit made towards monthly current consumption charges, which, as rightly pointed out by the learned counsel for the respondent Board, is stated in para 11 of the counter, where it is stated that the respondent Board is entitled to adjust the excess amount deposit under Regulation 5(5)(v) of the Tamil Nadu Electricity Supply Code.
12. The Writ Petition is allowed as above. Consequently, connected miscellaneous petitions are closed.