IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22-02-2013 CORAM THE HON'BLE MR.JUSTICE VINOD K. SHARMA WRIT PETITION NO:4302 of 2008 and M.P.No.1 of 2008 The Superintending Engineer, Chennai Electricity Distribution Circle/West, Tamil Nadu Electricity Board, 33/11 K.V. Thirumangalam S.S. Complex, Anna Nagar, Chennai-600 040 .. Petitioner vs 1. G. Shankar 2. The Hon'ble Tamil Nadu Electricity Ombudsman, No.17, Third Main Road, Seethammal Colony, Alwarpet, Chennai-600 018. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the proceedings of the second respondent in O.P.No.2 of 2006 dated 12.5.2006 and quash the same. For petitioner : Mr.G. Vasudevan For 1st respondent : Mr.N.L. Rajha ORDER The Superintending Engineer, Chennai Electricity Distribution Circle/West has invoked the writ jurisdiction of this court to challenge the order passed by the Tamil Nadu Electricity Ombudsman dated 12.5.2006 in modifying the demand of belated payment surcharge from 18% to 12%.
2. The first respondent is a consumer of electricity having A/c No.1113 for supply of electricity to the factory situated at Padi, Chennai-50. The Government of Tamil Nadu enacted Tamil Nadu Electricity (Taxation on Consumption) Act, 1962 and the electricity tax was levied under the Act upto 15.6.2003.
3. By way of Act 32 of 1991 (Amendment Act). Sec.3-A was introduced by the amendment Act, which enabled the Electricity Board to levy additional tax on consumption of energy calculated at such rates as specified on the price of energy consumed by the consumer.
4. Number of consumers challenged the constitutional validity of the Act, on the ground of enforcement of the provision with retrospective effect.
5. This Court was pleased to grant interim order staying the operation of Sec 3-A of the said Act. The stay was allowed to continue during the pendency of the writ petition.
6. Thereafter, vide judgment dated 21.10.2003, this court was pleased to dismiss the writ petition. After the dismissal of the writ petitions, demand was raised by the petitioner on the first respondent for payment of Rs.11,75,448/-(Rupees eleven lakhs seventy five thousand four hundred forty eight only) towards the arrears of electricity tax. It was also directed to pay it with October, 2004 bill.
7. It is not in dispute that the demand tax was paid by the petitioner. It seems that after the amount was deposited, the Tamil Nadu Electricity Board arose from its slumber, and decided to impose belated payment surcharge on the ground that the tax had become due and payable when sec.3-A was introduced, therefore, the payment of tax in the month of October 2004 was a belated payment, which was to carry interest at the rate of 18% under the terms of sale called belated payment surcharge.
8. The respondent No.1 being aggrieved by the decision of Tamil Nadu Electricity Board, approached Tamil Nadu Electricity Ombudsman, who vide impugned order, reduced the belated payment surcharge from 18% to 12%.
9. The learned counsel for the petitioner challenged the impugned order, on the ground that the Tamil Nadu Electricity Ombudsman committed an error in reducing the belated surcharge from 18% to 12% by ignoring clause 20.1 of the terms and conditions of supply having statutory force of law imposing belated surcharge at 18% for any delay in payment. The contention of the learned counsel for the petitioner, is that once the imposition of surcharge was based on statutory law, condition of supply it was not open to the second respondent to interfere with the order, imposing belated surcharge @ 18%.
10. It is also the contention of the learned counsel for the petitioner, that the first respondent cannot take advantage of the pendency of the writ petition as by filing a writ petition, it had taken the risk of making payment with interest.
11. On consideration, I find that this writ petition is totally misconceived. It is not in dispute that the operation of the order was stayed by this court. Therefore, there was no liability on the respondent to make payment as there was no demand against him, which could be said to have been delayed.
12. It is also not disputed that the demand for payment of tax was raised along with bill for the month of October 2004, only after the dismissal of the writ petition by this court. The first time the demand raised by the petitioner was only after the dismissal of the writ petition, further, it is also not disputed that the respondent has paid the demand amount within the period stipulated by the Board. Therefore, there was no question to invoke clause 20(1) of the terms and conditions of the Supply.
13. In fact, no such demand for surcharge could have been raised. But keeping in view the fact that the first respondent has not challenged the order passed by the second respondent and rather supported the order it is not necessary to go into the question whether surcharge could be claimed or not. However, keeping in view the fact that there was no delay as tax was paid on demand within stipulated period the impugned order does not call for any interference.
14. In view of the proved facts referred to above, no fault can be found with the order passed by the second respondent by reducing the belated surcharge from 18% to 12%. No merit. Dismissed. No costs. sr