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2007 DIGILAW 2608 (ALL)

PAWAN KUMAR AGARWAL v. STATE OF UTTAR PRADESH

2007-10-12

R.K.AGRAWAL, SABHAJEET YADAV

body2007
JUDGMENT Honble R.K. Agrawal, J.—By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Pawan Kumar Agarwal, seeks the following reliefs : (a) issue a writ, order or direction in the nature of certiorari quashing the condition No. 3 in the order dated 6.7.2007 passed by the respondent No. 3 (Annexure 3) to the writ petition; (b) issue a writ, order or direction in the nature of mandamus commanding the respondents, to provide the electricity connection in accordance with the U.P. Electricity Supply Code from the 33 KV Fatehpur Feeder and do not insist the petitioner to get the said connection from an independent feeder i.e. 133/33KV Sub Station, Malwan, Fatehpur; (c) Issue any other and further order which this Honble Court deems fit and proper under the circumstances of the case; (d) To award cost of the petition to the petitioner." 2. Briefly stated, the facts giving rise to the present petition are as follows : According to the petitioner, he proposed to set up an industry for the purpose of weaving and dying textiles in the name and style of M/s Luxmi Cotsyn Ltd., at Malwan, District Fatehpur. For running the unit, the petitioner applied for a new electricity connection on 31.10.2006 for a total load of 3000 KVA. Vide letter dated 6.7.2007, it was stipulated in condition No. 3 by the Chief Engineer (Commercial), Purvanchal Vidyut Vitran Nigam Limited, Varanasi (hereinafter referred to as "the Nigam") that the electricity connection can be given from an independent feeder for which the expenses have to be borne by the petitioner. The expenditure for getting the aforesaid connection from an independent feeder would come to a whopping sum of Rs. 19 lacs. Relying upon Clause 3.4 of the U.P. Electricity Supply Code, 2005 (hereinafter referred to as "the Code"), which deals with the supply through independent feeder, the petitioner requested the authorities to grant electricity connection from 33 KV, Fatehpur feeder and not from an independent feeder. When the request was not acceded, the petitioner approached this Court by filing the present writ petition. 3. When the request was not acceded, the petitioner approached this Court by filing the present writ petition. 3. A supplementary affidavit was filed by the petitioner stating that M/s Shyam Ferrous Ltd., Malwa which was granted 3000 KVA load electricity connection for induction furnace from 33 KV Fatehpur feeder, had been permanently disconnected vide ceiling certificate dated 1.8.2006 and at that place no electricity connection has been given to any other consumer. It was further stated that the Committee of the Nigam, after considering the relevant facts, found that the electricity connection sought by the petitioner is technically feasible and can be given from the Fatehpur feeder. 4. A counter-affidavit has been filed by Sri P. Ram, Executive Engineer, on behalf of the respondent Nos. 2 and 3. It was stated that the power theft is rampant in the State and release of power supply through the mixed feeder from which a number of industries had already been given connection, to the consumer of higher load is also a cause for power theft and, therefore, a policy decision was taken that contracted load of more than 1000 KV would be provided through an independent feeder by making a provision in Clause 3.4 of the Code. It was stated that the said clause was applicable to other industries also, other than those mentioned in the said clause, and, therefore, the condition of giving the electricity connection from the independent feeder was in accordance with the said clause. It was stated that the cost of providing the connection from the independent feeder is not relevant and as per Clause 3.4 electricity connection of more than 1000 KVA had to be given through the independent feeder. 5. In rejoinder, the petitioner averred that in case of a higher load consumer, dual meter is installed under the exclusive control of the Nigam to check power theft. It was further stated that some steel plants having higher load than 1000 KVA, have been granted electricity connection from the mixed feeder and as such the action of the respondents is discriminatory. 6. As the counter-affidavit and rejoinder affidavit have been exchanged between the parties, with the consent of the learned Counsel for the parties, the writ petition is being finally heard and decided at the admission stage itself in accordance with the Rules of Court. 7. 6. As the counter-affidavit and rejoinder affidavit have been exchanged between the parties, with the consent of the learned Counsel for the parties, the writ petition is being finally heard and decided at the admission stage itself in accordance with the Rules of Court. 7. We have heard Sri S.K.Tyagi, learned Counsel for the petitioner, and Sri H.P. Dubey, learned Counsel appearing for the respondents. 8. The learned Counsel for the petitioner submitted that in view of the specific provision contained in Clause 3.4 of the Code which is statutory in nature and binds the respondents, the respondent No. 3 cannot insist upon the petitioner for getting the electric connection through an independent feeder. He further submitted that the feasibility of providing the connection from 33 KV Fatehpur Feeder has been examined and it has been found that it is technically feasible to provide connection to the petitioner from that Feeder. 9. Sri H.P. Dubey, learned Counsel for the respondents, however, submitted that the connection of 3000 KVA is being granted only through an independent feeder, which would also be clear from the provision of Clause 3.4 of the Code. According to him, various industries mentioned in sub-clause (a) of Clause 3.4 of the Code are illustrative in nature and is not restrictive and, therefore, the condition No. 3, i.e. for getting the connection through an independent feeder, as provided in the letter dated 6.7.2007, is perfectly justified. 10. Having given our anxious consideration to the various pleas raised by the learned Counsel for the parties, for a proper adjudication of the issue raised herein, we deem it proper to reproduce Clause 3.4 of the Code, which deals with supply through independent feeders : "3.4 Supply through Independent feeders (a) Load for Arc/Induction furnaces, Rolling Mills, Re-rolling Mills and Mini steel plants, of 1000 KVA and above, shall be released only through an independent feeder and all necessary charges including the feeder cost shall be paid by the consumer. (b) In other cases including townships/complexes, domestic or non-domestic or institutions, the supply may be given at independent feeder for load above 500 KVA, including those industries mentioned in 3.4(a) above but having load less than 1000 KVA, at the request of the consumer/applicant, if he is willing to bear all applicable charges, subject to technical feasibility and availability of bay/corridor at the substation : Provided that for releasing the supply to consumer/applicant on independent feeder, having load below 500 KVA, it shall depend on nature and purpose such as emergency services, and such other reasons where continuity of supply is required by consumers, if the licensees so determines, the supply can be released depending on system constraints, technical feasibility, cost parameters, as well as safeguarding the provisions of duty of supply on request as per the Act. (c) Deleted. (d) The licensee shall allow tapping of feeders supplying Arc/Induction furnaces, Rolling Mills, Re-rolling Mills and Mini steel plants, with either of these plants, and this shall not be construed as change in process. The tapping of the independent feeder shall be permitted by licensee to other connection having a similar process subject to the following conditions : (i) Construction of separate feeder from the substation is not possible on account of non-availability of corridor, right of way and bay at the respective sub-station. (ii) Consent of original consumer has been obtained by prospective consumer for cost sharing of common portion of feeder with the prospective consumer. (iii) Quality of supply is not likely to be affected and if technically feasible. (iv) The outdoor metering at the tapping point, and the additional cost due to changes in system shall be done at the cost of prospective consumer. However the cost credit due to removal of the existing system shall not be given to the consumers. (v) Deleted. Note.—Process of use of electricity means the sub-category mentioned under applicability clause of appropriate tariff schedule as per the latest applicable Tariff Order of the Commission." 11. Except for the aforesaid provisions, there is no other provision which deals with supply from independent feeder. From a perusal of sub-clause (a) of Clause 3.4 of the Code, we find that it is mandatory for supplying electricity through independent feeder to the Arc/Induction furnaces, Rolling Mills, Re-rolling Mills and Mini steel plants where the load applied is 1000 KVA and above. From a perusal of sub-clause (a) of Clause 3.4 of the Code, we find that it is mandatory for supplying electricity through independent feeder to the Arc/Induction furnaces, Rolling Mills, Re-rolling Mills and Mini steel plants where the load applied is 1000 KVA and above. However, under sub-clause (b), an option has been given for those consumers who have applied for load above 500 KVA, to opt for supply through independent feeder. It is not compulsory. The submission of Sri Dubey that under sub-clause (a) the industries mentioned are illustrative and not restrictive, is wholly misplaced. Sub-clause (a) deals with specific industries of 1000 KVA and above load whereas sub-clause (b) deals with consumers including industries mentioned in sub-clause (a) and all other industries which have applied for load above 500 KVA and an option has been given to the consumers to get the supply through an independent feeder. But, if a consumer which falls under sub-clause (b), does not want supply of electricity through an independent feeder, the respondents cannot compel or insist upon supplying the electricity though an independent feeder. Of course, the requirement is that it is technically feasible to supply the same from any other feeder which, in the present case, has been found by the respondents themselves. 12. In the present case, we find that the respondents themselves have found that it is technically feasible to supply the electricity to the petitioner through the 33 KV Fatehpur Feeder, thus, there is no valid ground for insisting the electric connection to be given through an independent feeder. 13. The plea of rampant theft cannot be taken as a ground for supplying electricity only from an independent feeder as there is ample provision in the Code to check electricity theft and the respondents have very wide power to prevent the same. It may be mentioned here that the Code is statutory in nature and its provisions are to be adhered to. 14. In view of the foregoing discussions, we are of the considered opinion that the respondents cannot insist upon the petitioner to take the electric supply through an independent feeder and should grant the electricity connection from the 33 KV Fatehpur Feeder. The condition No. 3 imposed in the sanction letter dated 6.7.2007, is wholly illegal and without the authority of law and is hereby quashed. The condition No. 3 imposed in the sanction letter dated 6.7.2007, is wholly illegal and without the authority of law and is hereby quashed. As the matter has been considerably delayed, we direct the respondent Nos. 3 and 4 to provide the electric connection to the petitioner of sanctioned load of 3000 KVA from 33KV Fatehpur Feeder, on fulfillment of all formalities, within two weeks. 15. The writ petition succeeds and is allowed. However, the parties shall bear their own costs. ————