Judgment:
This petition is filed seeking a Writ of Mandamus declaring the action of respondents in treating the petitioner’s CMD as 500 KVA with effect from the consumption month of October, 2009, as illegal and arbitrary and contrary to Condition 5.9 of the General Terms and Conditions of Supply (GTCS) and also the principles of natural justice.
2. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. Perused the record.
3. The petitioner applied for high tension power supply connection with a Contracted Maximum Demand (CMD) of 500 KVA in two phases of 250 KVA each. The 2nd respondent sanctioned the same and the petitioner paid the requisite amounts for release of the load. The first phase of 250 KVA was released on 18.12.2009. The second phase load was to be released nine months after the release of first phase. Accordingly, the due date of release of second phase was on 22.09.2009. As per Condition 5.9.2 of the GTCS after completing the pre-requisite formalities in respect of execution of the agreement and security deposit etc., the licencee shall make arrangements to supply electricity and issue notice to consumer indicating that its readiness to provide power supply within the time period specified in Regulation 3 of 2004. Thereafter, the consumer shall avail the power supply within three months from the date of receipt of notice. After expiry of the three months period or date of release of power supply whichever is earlier, the consumer is liable to pay all the charges as per tariff order and GTCS. If, for any reason, the consumer fails to avail the power supply within the stipulated period, he is liable to pay minimum charges from the date of expiry of three months period. While so, the 3rd respondent issued bill for the month of October, 2009 dated 26.10.2009 wherein it was mentioned that petitioner’s CMD is 500 KVA as against 250 KVA. The recorded CMD of the petitioner for the consumption month of October, 2009 is 25.32 KVA, but the 4th respondent had taken the petitioner’s maximum demand for billing purpose at 400 KVA i.e., 80% of 500 KVA. On enquiry, the petitioner was informed that as per the sanction dated 22.12.2008, the second phase load was to be released by 22.10.2009 and, therefore, the petitioner’s CMD is treated as 500 KVA from that date, though second phase of 250 KVA has not been actually released to the petitioner. The petitioner addressed a letter dated 22.10.2009 to the 5th respondent stating that unless three months notice is issued duly informing the petitioner about their readiness to release the second phase load, the respondents cannot hypothetically presume that the second phase load of 250 KVA has been released. As per the agreement already entered, the petitioner’s CMD is only 250 KVA. The second phase load will be taken into consideration after actual release or expiry of three months as stipulated in 5.9 of the GTCS. Without taking any action as envisaged in 5.9 of GTCS, the respondents cannot treat the petitioner’s CMD as 500 KVA.
4. The respondents filed a counter contending that the petitioner applied for HT power supply with a CMD of 500 KVA and paid all the charges for release i.e., first phase of 250 KVA by 18.12.2008 and second phase of 250 KVA by 18.09.2009. Accordingly, the first phase was released on 18.12.2008 and the second phase was released on 22.09.2009, as the pre-requisite formalities have already been complied with. As the date of release of the second phase power supply was already fixed, question of issuing notice does not arise. As the second phase was released on 22.09.2009, the CC bill for the month of October, 2009 was issued for the total CMD of 500 KVA as per HT agreement. The respondent is entitled to raise the CC bills for 80% of the CMD or the recorded maximum demand (RMD) whichever is higher as per the tariff conditions.
5. While admitting the writ petition, this Court on 12.11.2009 granted interim direction to the respondents not to disconnect petitioner’s power supply for non-payment of excess billing charges by treating the petitioner’s CMD as 500 KVA instead of 250 KVA.
6. It is not disputed that the petitioner applied for HT supply with a CMD of 500 KVA to be released in two phases i.e., first phase of 250 KVA by 18.12.2008 and the second phase of 250 KVA by 18.09.2009. It is also not disputed that the requisite formalities of paying the necessary charges and security deposit and undertaking have all been complied with. It is further admitted that the first phase of 250 KVA was released on 18.12.2008 and the second phase of 250 KVA was released nine months later by 18.09.2009. According to respondents 1 to 3, the second phase was also released on 22.09.2009 and, therefore, the consumption bill for October, 2009 was issued for total CMD of 500 KVA. The contention of the petitioner is that before issuing the said bill for October, 2009 showing the CMD as 500 KVA, the respondents have not issued any notice expressing the readiness to release the second phase of 250 KVA and without issuing such notice, the respondents are not entitled to issue the bill treating the total CMD as 500 KVA. The petitioner filed the bill dated 10.10.2009 issued for the month of September, 2009 showing the CMD as 250 KVA and in the next bill dated 09.11.2009 issued for October, 2009, the CMD was shown as 500 KVA. It is not disputed by the respondents that before issuing the said bill no notice was issued. The contention of the respondents is that since the date of release of the supply of the second phase 250 KVA was already fixed in the sanction proceedings itself, the question of issuing notice does not arise. The sanction proceedings dated 02.12.2008 would show that the first phase of 250 KVA CMD was released immediately and the second phase was to be released within nine months after release of first phase. The sanction proceedings or the agreement does not specify any dates before which the first phase or the second phase are to be released. It is not disputed that the first phase was released on 18.12.2008. The second phase was, therefore, to be released on or after 18.09.2009 without specifying any upper time limit. In fact, the second phase, according to the respondents, was released on 22.09.2009. Admittedly, no intimation was given to the petitioners that the second phase was released on the said date.
7. Clause 5.9.2.1 of the GTCS states as follows:
“The company shall, after the consumer has completed all the pre-requisite formalities in respect of execution of Agreement and security deposit, etc., make arrangements to supply electricity in the manner prescribed and issue a notice to the consumer indicating that it is ready to provide supply within the time period specified in the APERC (Licensees’ duty for supply of electricity on request) Regulation, 2004 (No.3 of 2004) read with Section 43 of the Act. Such supply should be availed by the applicant within a period of three months from the date of issue of the notice. Every consumer shall pay to the company from the date of commence of supply of energy or from the date of expiry of three months’ notice whichever is earlier, Maximum Demand charges, energy charges, surcharges, meter rents and other charges, as provided in the Tariff Order and the GTCS. In case the consumer fails to avail supply within the three months’ notice period, he shall have to pay monthly minimum charges and/or the fixed charges as specified in the Tariff Order in force, as the came may be, from the date of expiry of the period of the above said notice.”
A perusal of the above condition would disclose that the licencee shall issue a notice to the consumer indicating that it is ready to provide supply within the time period specified in the APERC Regulation 3 of 2004 and such supply shall be availed by the applicant within three months from the date of issue of notice. In case the consumer fails to avail supply within the three months’ notice period, he shall have to pay monthly minimum charges or the fixed charges as specified in the tariff order from the date of the above said notice. The above condition, therefore, contemplates issuance of a notice by the Company expressing its readiness to release the power supply and imposes a protection on the consumer to avail the supply within the said period of three months and in default thereof the consumer is liable to pay the minimum charges and or the fixed charges as per tariff order from the date of expiry of period of notice. Admittedly, no such notice is issued by the respondents to the petitioner before release of the supply of second phase 250 KVA.
8. The learned counsel for the petitioner would rely upon a judgment dated 09.09.2008 in W.P.No.3691 of 2002 wherein this Court was dealing with a similar situation arising under the erstwhile Condition 26.4 of the terms and conditions then existing read with Clause 6 of the HT agreement. Clause 26.4 is identical to the present Condition 5.9.2.1 of the GTCS governing the case on hand. In the above case also, it was contended that as per Condition 26.4 of the terms and conditions and Clause 6 of the HT agreement, the APSEB is bound to issue a notice that the board is ready to give supply and it is only when the consumer fails to avail the supply within three months from the date of the notice, electricity charges can be levied. On the other hand, it was contended by the APSEB that as per the agreement, the board is required to release additional CMD of 570 KVA within six months after the release of first phase and, therefore, immediately after expiry of six months, the petitioner is liable to pay the demand. The question that fell for consideration in the above case was whether the requirement of three months’ notice period under 26.4 of the terms and conditions is mandatory. After analyzing the provisions contained in Condition 26.4, this Court held that requirement of 3 months notice before release of power supply or additional power supply is in the interest of the board itself. It was, therefore, held that the impugned order cannot be sustained as it is contrary to Condition 26.4 of the terms and conditions and Clause 6 of the HT agreement. The above decision and the ratio laid down therein squarely apply to the facts of the present case as well, as the present Condition 5.9.2.1 of the GTCS is in parimateria with Condition 26.4 of the erstwhile terms and conditions. Further, when Condition 5.9.2.1 prescribes the procedure to be followed before release of the supply, the same ought to be followed by the respondents. The above Condition 5.9.2.1 does not contemplate any exceptions nor envisage any situation where issuance of the prescribed notice can be dispensed with. The above condition does not contemplate that in the event of date being fixed for release of power supply, the prescribed notice is not required to be issued. The contention of the learned counsel for the respondents that since the date of release of the second phase is already fixed, there is no need to issue notice, is untenable. In fact, no specific date is mentioned for release of the second phase and what all mentioned in the sanction proceedings dated 02.12.2008 is that first phase of 250 KVA would be released immediately and second phase of 250 KVA would be released nine months after release of first phase without prescribing any upper time limit before which it is to be released.
9. In the circumstances, the respondents are held not entitled to claim the tariff treating the CMD as 500 KVA without issuing notice as contemplated under Condition 5.9.2.1. The demand contained in the impugned bill is accordingly set aside with liberty to the respondents to make a fresh demand after issuing the prescribed notice.
10. The writ petition is disposed of accordingly. Miscellaneous petitions, if any, stand closed. There shall be no order as to costs.