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Uttarakhand High Court · body

2015 DIGILAW 146 (UTT)

ALP OVERSEAS PVT. LTD. v. EXECUTIVE ENGINEER UPCL

2015-03-17

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) All these writ petitions are preferred assailing the orders passed by the Electricity Consumer Grievance Redressal Forum, Kumaon Zone, Haldwani dated 14.12.2011 as well as orders passed by the Ombudsman Electricity, Dehradun dated 26.09.2013. 2. JUDGMENT : Hon’ble Alok Singh, J. (Oral) All these writ petitions are preferred assailing the orders passed by the Electricity Consumer Grievance Redressal Forum, Kumaon Zone, Haldwani dated 14.12.2011 as well as orders passed by the Ombudsman Electricity, Dehradun dated 26.09.2013. 2. Undisputedly, vide order dated 18th January, 2010, annexure No.9 to the writ petition, Uttarakhand Electricity Regulatory Commission was pleased to permit the licencee / Electricity Company for the power cut or restricted supply from 21.01.2010 to 31.03.2010 with the stipulation that power cut / restriction in electricity supply shall be published in atleast one English Newspaper and two Hindi Newspapers, having wide circulation in the State; Electricity Regulatory Commission was further pleased to direct that industrial units shall be entitled to use 15% of the contracted load during the restricted period; however, if under the agreement, industrial unit is permitted to use the sanctioned load of electricity during restricted period, then such industrial unit shall pay the enhanced tariff for the continuous supply for the restricted period; it was further stipulated in the order of the Electricity Regulatory Commission that whosoever is found using more than 15% of the contracted load during the restricted period without valid agreement to use contracted load during restricted period, then such consumer shall pay enhanced tariff as fixed by the Electricity Regulatory Commission and such consumers shall also pay penalty for use beyond 15% of the contracted load as per the tariff (penalty) fixed by the Electricity Regulatory Commission; Electricity Company has published restricted hours in the newspaper dated 18th January, 2010 saying restricted hours for induction furnaces and rolling mills would be between 5:00 p.m. to 12:00 in the mid night; petitioners were using load more than 15% of the contracted load during the restricted hours, therefore, bills were issued to the petitioners to pay enhanced rates as per the tariff fixed by the Electricity Regulatory Commission for using the continuous electricity beyond 15% of their contracted load during the restricted hours; such bills were cleared / paid by the petitioners; however, thereafter subsequent bills were issued to the petitioners asking the petitioners to pay penalty as well since petitioners were never permitted for continuous use of the electricity beyond 15% on the enhanced rate during the restricted hours; feeling aggrieved, petitioners have, first of all, approached the Electricity Consumer Grievance Redressal Forum and after dismissal of the complaint, approached Ombudsman, Electricity, however, claim of the petitioners was rejected by the Ombudsman, Electricity too; therefore, petitioners have approached this Court by way of present writ petitions. 3. Mr. Sharad Sharma, learned Senior Counsel assisted by Mr. Piyush Garg, learned counsel for the petitioners has vehemently argued that as per Clause 11 (a) of the order dated 18th January, 2010, passed by the Electricity Regulatory Commission permitting the Electricity Company for the restricted supply / power cut from 21.01.2010 to 31.03.2010; Electricity Company was supposed to publish period of restricted supply of electricity alongwith all the terms and conditions in the newspapers, however, except the publication of the restricted hours, terms and conditions for using electricity during the restricted hours and penalty for violating the restricted hours have not been published, therefore, Electricity Company cannot recover the penalty, over and above, the excessive charges recovered from the petitioners for using electricity beyond 15% of the sanctioned load during the restricted hours. 4. Undisputedly, tariff is fixed by the Electricity Regulatory Commission under Section 62 of the Electricity Act. As per the Electricity Act, 2003, every licencee / electricity company can charge the tariff strictly as per the tariff fixed by the Electricity Regulatory Commission and it is not open to the Electricity Company to charge something less or more than the tariff fixed by the Electricity Regulatory Commission. 5. Undisputedly, as per the tariff fixed by the Electricity Regulatory Commission, enhanced charges for using the electricity during the restricted period are prescribed for such consumers who have opted for the continuous supply during the restricted hours. Tariff order further provides that such consumers who have not opted for the continuous supply during the restricted period on payment of the enhanced rates (tariff) as fixed by the Electricity Regulatory Commission, shall also pay penalty thereon which shall be levied in accordance with the tariff order, over and above, enhanced rates for restricted hours. 6. It is not a case of the petitioners/ industrial units/ consumers that they did not know the tariff fixed by the Electricity Regulatory Commission. Rather case of the petitioners is that they have paid the enhanced rate for using electricity beyond 15% of the contracted load as per the tariff fixed by the Electricity Regulatory Commission for the restricted hours. It is not disputed that none of the petitioners has ever opted for continuous supply of the electricity during the peak hours too on payment of enhanced charges. Therefore, all the petitioners fall within the definition of non continuous consumers. It is not disputed that none of the petitioners has ever opted for continuous supply of the electricity during the peak hours too on payment of enhanced charges. Therefore, all the petitioners fall within the definition of non continuous consumers. As per Clause 11 (j) of the order dated 18th January, 2010, if non continuous consumer is using beyond 15% of the contracted load, he shall also pay penalty, over and above, the enhanced rates (tariff) for using the electricity beyond 15% of the contracted load during the restricted hours. Tariff and penalty for using electricity during restricted hours were already known to the petitioners, therefore, it was not required to be published. Only those terms and conditions are required to be published which were stipulated while permitting the restricted hours. Since, no new term and condition was stipulated while permitting the restricted hours, therefore, there was no need to publish already existing tariff fixed by the Commission. Therefore, imposition of penalty cannot be faulted with. 7. In the result writ petitions fail and are hereby dismissed.