JUDGMENT :- 1. M/s Perambalur Sugar Mills Limited is a Government of Tamil Nadu Undertaking, represented by the Chief Executive. Writ Petition No.6119/2008 is filed by the Petitioner sugar mills for issuance of a writ of Certiorarified Mandamus to call for the records of the 2nd respondent in Lr.No.TNERC./DT/TC/F.TR/C.111/D 467/2005, dated 31.05.2005 and the connected proceedings DRP 6/2007 dated 11-9-2007 and quash both as illegal and direct the respondents three to five to refund the excess tariff collected in HT SC No.27 for the period from 98-99 till December 2005. Writ Petition No.7773/2009 is filed by the petitioner sugar mills for issuance of a writ of Certiorarified Mandamus to call for the records of the 4th respondent in Lr.No.CEF/Rev/Dir/Tf.Cell/AEE/F.Perambalur/D.17/07, dated 8.2.2007 and quash the same as illegal and consequential direct the respondents three to five to refund the excess electricity charges collected from the petitioners for HT SC No.27 as Commercial tariff instead of Industrial Tariff for the period from 1998-99 to ending December 2005, Rs.8,15,339/-. 2. (i) The learned counsel appearing for the petitioner briefly stated that the petitioner is having two HT Service Connections, namely, HT SC No.15 with the capacity of 500 KVA for the purpose of sugar machinery operations and the second HT Service Connection, i.e. HT SC No.27 with the capacity of 800 KVA for drawal of water from Vellar river exclusively to be utilised for industrial purpose only. This can be seen from the separate agreement dated 17.3.1996 entered into between the Chief Executive Officer of the petitioner mills and the District Collector, Trichy for drawal of water from Vellar river on behalf of the Governor of Tamil Nadu. (ii) As per the said agreement, after execution of the same, the petitioner mill is liable to pay for both service connections, namely, HT SC No.15 for 500 KVA and HT SC 27 for 80 KVA as per Tariff-I during crushing period, i.e., during season and Tariff-III during off-season i.e.,during non-crushing period. Since the petitioner's main activity is production of sugar which is an industrial activity, the industrial activity is coming within the purview of HT SC 15 for KVA 500. Since the petitioner's main activity is production of sugar which is an industrial activity, the industrial activity is coming within the purview of HT SC 15 for KVA 500. Further, it is stated that when HT SC 27 for 80 KVA is used for drawal of water for sugar industry from Vellar river in Pennakonam village at Perambalur District, as it is incidental to the industrial purpose for HT SC 27 for 80 KVA, the petitioner mill is liable to be charged under Tariff-I which is an Industrial Tariff. Whileso, the respondent wrongly started charging under Commercial Tariff-III for HT SC 27 which is totally against the agreement dated 17.3.1996. It is also an admitted case that till 09.7.1998 when the respondents have charged the petitioner mill for HT SC 27 under Industrial Tariff-I, they cannot change the Tariff rate from Industrial Tariff to Commercial Tariff all of a sudden from 10.7.1998 for HT SC 27 alone as the petitioner mill is using the electricity from HT SC No.27 for drawal of water for sugar production mill as well as office and quarters, sugar mills from the Vellore river. Till January 96 when they were charging under Industrial Tariff, from January 1996, they have started charging under Commercial Tariff. Therefore, a representation 24.3.1998 was given to the 5th respondent. The agreement dated 17.03.1996 also says that the petitioner mill is entitled to draw 32 lakhs litres (three thousand and two hundred cubic litres) of water per day subject to annual limit of 1,150 thousand cubic litres from Vellar river in Pennakonam Village in Perambalur Taluk for industrial purpose. The charging of electricity under a different heading, namely, commercial purpose, is totally contrary to the agreement and on that basis, the learned counsel for the petitioner claimed refund of Rs.63,719/- that has been charged as excess from January 1996-June 1997. But the said representation dated 24.3.1998 was rejected by the 5th respondent by his letter dated 12.10.1998. (iii) Thereafter, the petitioner made a request to the Tamil Nadu Electricity Regulatory Commission to change HT Tariff for SC No.27, from Tariff III to Tariff-I and pass suitable instructions on the basis of the representation made by the petitioner mill dated 26.8.2004. But the said representation dated 24.3.1998 was rejected by the 5th respondent by his letter dated 12.10.1998. (iii) Thereafter, the petitioner made a request to the Tamil Nadu Electricity Regulatory Commission to change HT Tariff for SC No.27, from Tariff III to Tariff-I and pass suitable instructions on the basis of the representation made by the petitioner mill dated 26.8.2004. Then the Tamil Nadu Electricity Regulatory Commission, after perusal of the documents submitted by the petitioner, accepted the case of the petitioner by its order dated 31.5.2005 stating that the HT SC 27 may be charged under Tariff-I as the same was done earlier. Yet, the respondent-Tamil Nadu Electricity Board failed to understand the order of the Tamil Nadu Electricity Regulatory Commission dated 31.5.2005 on the presumption that there is no specific direction for refund of the excess amount already collected for the period January 1996 – June 1997 for refund of the excess amount. Though the petitioner wrote a letter to the 5th respondent by communication dated 8.8.2006 claiming electricity tariff-I as per the order of the Tamil Nadu Electricity Regulatory Commission with the prayer to refund of Rs.8,15,339/- which was collected as excess from the petitioner mill, the said claim of refund was rejected by the 5th respondent in its order dated 8.8.2006. Again, one more representation dated 20.1.2007 was given to the Chief Engineer, Tamil Nadu Electricity Board, Anna Salai, Chennai. But, the 4th respondent informed the petitioner by their letter dated 08.2.2007 that there was no such order by the Tamil Nadu Electricity Regulatory Commission in its order dated 31.5.2005 and accordingly, rejected the case of the petitioner. (iv) At this juncture, the learned counsel appearing for the petitioner submitted that when there was an order passed by the Tamil Nadu Electricity Regulatory Commission on 31.5.2005 that the current charge for HT SC 27 is Tariff-I, then it is the duty of the respondent to refund or adjust the excess charges collected from the year 1998 to December 2005 during the crushing period. However, in view of the controversy, the petitioner mill approached the Tamil Nadu Electricity Regulatory Commission by letter dated 20.2.2007 to give suitable direction to T.N.E.B., to give effect to the change from Tariff-III to Tariff-I from the date of wrong adoption of Tariff-III, for which a direction was given to the petitioner to file a Miscellaneous Petition as per the procedure followed by the third respondent. Accordingly, the petitioner also filed D.R.P.No.6/2007 praying for the following relief: "(a)The tariff clarification by TNERC dated 31.5.2005 Applicable for HT 27 is covering the period 1998-99 to December 2005 also. (b)The excess tariff collection for HT 27 during crushing period over and above Tariff-I A by TNEB is liable for refund or adjustment to the petitioners. (c)setaside the proceedings of Member Accounts in Letter No. CFC/Rev/Dir/Tf.cell/AEE/F.Perambalur/D.17/07. 8.2.2007. (d)consequently, direction for refund of Rs.8,15,339/- based on the claim of petitioner as per the working sheet enclosed herein by respondents-TNEB to the petitioners." The Tamil Nadu Electricity Board has filed its counter in which it was stated that the Tamil Nadu Electricity Regulatory Commission has not ordered to adopt Tariff I-A for any earlier period. Therefore, the order passed by the Tamil Nadu Electricity Regulatory Commission has only prospective operation. On that basis, the counter further stated that the petitioner is not eligible for HT Tariff I-A before the TNERC's direction dated 23.11.2005. Further, it was stated that the petitioner became eligible for HT Tariff-I-A after the direction of Tamil Nadu Electricity Regulatory Commission. On that basis, the respondent took a stand that the petitioner was not legally entitled to claim HT Tariff-I-A before the order dated 23.11.2005 passed by the Tamil Nadu Electricity Regulatory Commission. Attacking that stand, the learned counsel for the petitioner further stated that the order of the second respondent-Tamil Nadu Electricity Regulatory Commission has clearly mentioned that the Service Connection HT SC No.27 of the petitioner mill is to draw water from the Vellar river only for industrial use under HT tariff-I during crushing season as was done earlier. Therefore, the stand taken by the respondents is not only against the order passed by the Tamil Nadu Electricity Regulatory Commission but also against the original agreement entered between the petitioner and the District Collector dated 17.3.1996 which also says that the petitioner mill is entitled to draw water from Vellar river for their industrial purpose. Therefore, the stand taken by the respondents is not only against the order passed by the Tamil Nadu Electricity Regulatory Commission but also against the original agreement entered between the petitioner and the District Collector dated 17.3.1996 which also says that the petitioner mill is entitled to draw water from Vellar river for their industrial purpose. (v) Finally, it was argued that when HT SC No.27 is used for drawal of water from Vellar river for industrial purpose, the correct rate of tariff is Tariff-IA. Therefore, the excess charges collected by charging the petitioner mill under Tariff-III has to be refunded as per section 72 of the Contract Act, 1982 because what the respondent have collected from the petitioner mill under HT SC 27 was due to their wrong tariff application. On that basis, the learned counsel for the petitioner prayed to allow these writ petitions. 3. The learned counsel appearing for the Tamil Nadu Electricity Board by relying upon the counter filed by them before this Court submitted that the present writ petitions are not maintainable since the petitioner is challenging the order passed by the Tamil Nadu Electricity Regulatory Commission. As against the order passed by the Tamil Nadu Electricity Regulatory Commission an effective, efficacious and alternative remedy is available under Section 11 of the Electricity Act, before the Appellate Tribunal. Therefore, the petitioner should be directed to approach the Appellate Tribunal which has been constituted and is functioning now. Since the Appellate Tribunal is functioning, the present writ petitions cannot be converted into appeals. On this basis, the learned counsel for the respondent Electricity Board prayed to dismiss the writ petitions. 4. (i) The contentions of the learned counsel for the respondent Electricity Board do not find merit. Two writ petitions W.P.No.6119/2008 and W.P.No.7773/2009 came to be filed by the petitioner seeking appropriate relief. W.P.No.6119/2008 is filed challenging the order passed by the second respondent-Tamil Nadu Electricity Regulatory Commission dated 31.5.2005 and its connected proceedings dated 11.9.2007 in DRP.No.6/2007 with the prayer to issue direction to the respondent-TNEB to refund the excess tariff-III collected for the period 1998-99 till December 2005. W.P.No.6119/2008 is filed challenging the order passed by the second respondent-Tamil Nadu Electricity Regulatory Commission dated 31.5.2005 and its connected proceedings dated 11.9.2007 in DRP.No.6/2007 with the prayer to issue direction to the respondent-TNEB to refund the excess tariff-III collected for the period 1998-99 till December 2005. The other W.P.No.7773/2008 is filed on 13.4.2009 challenging the order passed by the 4th respondent-TNEB dated 8.2.2007 refusing to refund the excess electricity charges collected from the petitioner for the period from (i) 98-99 to 99-2000, (ii) April 2002 to December 2003 and (iii) January 2004 to December 2005. (ii) When both the matters are taken up for final disposal almost three years have gone by. One of the issues raised in the present writ petitions is that the respondent electricity Board has failed to give effect to the order dated 31.5.2005 passed by the Tamil Nadu Electricity Regulatory Commission. Therefore, I do not agree with the contentions made by the respondent to relegate the petitioner before the appellate authority, after a huge lapse of time, as the delay will defeat the relief sought for. However, when I come back to the merits of the case, it can be seen that the petitioner sugar mill is a Government of India Undertaking which has obtained two HT Service Connections, namely, HT SC No.15 with 500 KUA and HT SC No.27 with 80 KVA. In fact, an agreement dated 17.3.1996 was also entered into by the petitioner mill with the District Collector for availing water from Vellar river exclusively for industrial purpose. When the main activity of the petitioner sugar mill is production of sugar which is an industrial activity, the production of sugar is coming within the purview of Tariff-I. However, when the petitioner mill has used the HT Service Connection No.15, the respondent also charged the petitioner mill under Tariff-I. However, when the petitioner mill used the HT SC 27 for drawing water from Vellar river to the petitioner sugar mill, the said water was not only used for the industrial purpose, but they have utilised for quarters, Administrative Office, Post Office and Bank building. Therefore, the stand taken by the respondent that the Electricity Board has charged the HT SC No.15 under Commercial Tariff is totally untenable as it is against their own agreement entered into between the petitioner and the District Collector on 17.3.1996. Therefore, the stand taken by the respondent that the Electricity Board has charged the HT SC No.15 under Commercial Tariff is totally untenable as it is against their own agreement entered into between the petitioner and the District Collector on 17.3.1996. In the said agreement the petitioner mill was permitted to draw 32 lakhs of litres of water per day for industrial purpose. It is also appropriate to extract paragraphs 2 and 12 of the said agreement and the same are as follows: "(2) The licensee is permitted to draw Thirty two lakhs litres (three thousand and two hundred cubic litres) of water per day subject to an annual limit of 1150 (one thousand and one hundred and fifty) thousand cubic litres, from Vellar river in Pannakonam village limits in Perambalur Taluk the use in the M/s Perambalur Sugar Mills Limited, Eraiyur village, for industrial purposes. The water drawn by the licensee shall not exceed the limit permited. (12)water shall not be used for any purpose other than those specified viz., for maintaining supplies to the Sugar Mills. If this condition is found to be disregarded penalties ranging from 5 to 20 times the normal tariff will be imposed and supply is also liable to be cut off." From a mere reading of the above two paragraphs of the agreement, I can understand that the agreement was executed between the petitioner and the Tamil Nadu Electricity Board granting permission to the petitioner mill to draw water from the Vellar river in Pennakonam village, Perambalur Taluk for industrial purposes. It is now well settled that once a contract is entered between two parties, no party to the contract can be allowed to wriggle out of the terms and conditions accepted and agreed upon by the two parties, for the reason that the respondents had entered the said contract with open eyes and fully conscious and aware of what benefits they would be entitled to by executing the contract. Paragraph 12 of the agreement makes it clear that the water shall not be used for any purpose otherwise than those specified and if this condition is found disregarded, penalty will be imposed and supply will also liable to be cut-off. Paragraph 12 of the agreement makes it clear that the water shall not be used for any purpose otherwise than those specified and if this condition is found disregarded, penalty will be imposed and supply will also liable to be cut-off. When there has been enough penal clause inserted in the said agreement for violation of the terms and conditions of the agreement, it is always open to the respondent Tamil Nadu Electricity Board to issue notice and cut off the electricity supply. But without resorting to any one of the clauses which are available to them, they cannot change the Tariff from Industrial Tariff to Commercial Tariff. Even it is not the case of the respondent Board that for violation of any one of the conditions by the petitioner mill, the respondent electricity Board has changed the Tariff from Industrial Tariff to Commercial Tariff. (iii) This could be further seen from the order dated 31.5.2005 passed by the Tamil Nadu Electricity Regulatory Commission. The relevant portion of the said order is extracted hereunder: "I am directed by the Commission to communicate the following: (1)The Service Connection No.27 is at Vellar river to pump water for industrial use. (2)The use of water (drawn from the river for industrial purpose) to the quarters, administrative office, etc. at the premises are incidental and also to the industrial activity. (3)Hence, SC.No.27 may be charged; under HT Tariff I during crushing season as was done earlier." Para(3) of the said letter dated 31.05.2005 shows that Service Connection No.27 may be charged under HT Tariff I during crushing season. This goes to the root of the matter that even prior to the period from January 1996–June 1997, the respondent Tamil Nadu Electricity Board has charged HT SC 27 only under HT Tariff-I during the crushing season. Therefore, the petitioner sugar mill is entitled to get back the amount of Rs.8,15,339/- by way of refund. It is needless to mention that though the respondent Tamil Nadu Electricity Board has been charging the petitioner mill for both HT SC No.15 and HT SC No.27 under industrial tariff, it is not open to them to change the tariff for the said period, that too, without any notice. 5. In that view of the matter both these Writ Petitions are allowed by setting aside the orders challenged. 5. In that view of the matter both these Writ Petitions are allowed by setting aside the orders challenged. However, it is open to the respondent-Tamil Nadu Electricity Board to adjust the abovesaid amount towards the petitioner's future consumption charges, instead of refunding the same to the petitioner. No costs. Consequently, connected pending miscellaneous petitions are disposed of.