Disposed

M/s.Future pet(S.C No.09054107507), v. Andhra Pradesh Electricity Regulatory Commission

Telangana HC21 Sept 2013WP/21464/2013

Case brief

AI extract

What is this about?

Common order disposing of writ petitions challenging penalties imposed by APCPDCL under restriction and control measures. The Court directed the utility to apply principles of natural justice, allow representation by consumers within four weeks, and refrain from coercive action during this review.

What did the court decide?

The Company was directed to consider consumer representations on penalty calculations within three weeks and refrain from coercive action pending review.

M/s.Future pet(S.C No.09054107507), Vs Andhra Pradesh… — Consumer Protection | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION NOs.10772, 15006, 15210, 15323, 18446, 19116, 19294, 19312, 19314, 19326, 19460, 19463, 19475, 19848, 19849, 19868, 20637, 20699, 20703, 20824, 21464, 21469, 22159, 22170, 22274, 22279, 24480 AND 24716 OF 2013

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DATED 21st S EPTEMBER, 2013

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Between : M/s.Asian Plastics, Plot No.3 & 4, Block No.A-28/1, Road No.15-D, IDA, Nacharam, Hyderabad, represented by its Managing Partner S.Nagaraj, s/o.Shyam Sundaresham, aged about 36.

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… Petitioner

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and

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Central Power Distribution Company of A.P. Ltd, Mint Compound, Hyderabad, represented by its Chairman and Managing Director, and others.

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… Respondents

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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C O M M O N O R D E R

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The petitioner concerns in this batch of cases share a common grievance. Hence, this conjoined disposal.

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The petitioner concerns avail power supply from the Central Power Distribution Company of Andhra Pradesh Limited (APCPDCL). They are aggrieved by the imposition of penalties by the APCPDCL on their power consumption, pursuant to the Restriction and Control (R&C) measures introduced in the State of Andhra Pradesh by the Andhra Pradesh Electricity Regulatory Commission (APERC). Except for the petitioner concerns in W.P.Nos.10772, 15006, 15210, 15323 and 18446 of 2013, the petitioner concerns in the other cases also challenge the proceedings of the APERC, permitting imposition of penalties up to five times the normal consumption charges. The periods in respect of which these grievances are canvassed range between September, 2012 and June, 2013. Significantly, R&C measures were brought in by the APERC in September, 2012. Interim orders were granted in all the cases staying disconnection of power supply to the petitioner concerns by the APCPDCL. In most of the cases, these interim orders were conditional upon payment of part of the penalties demanded by the APCPDCL. However, in some of the cases, no conditions were imposed. In W.P.Nos.19314, 19326, 21464,

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21469, 22159, 22170 and 22279 of 2013, taking note of the fact that the petitioner concerns in these cases had earlier filed writ petitions which were disposed of by this Court directing the APCPDCL to pass appropriate orders upon their representations/objections after collecting 50% of the penal amounts due and the fact that the APCPDCL had failed to comply despite due payment, this Court granted unconditional interim stay of disconnection.

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Vacate stay petitions, duly supported by counter affidavits, were filed by the APCPDCL in W.P.Nos.19294, 19312, 20824, 21464 and 22170 of 2013. The APERC filed a counter only in W.P.No.19116 of 2013 but as the issue raised is common to all the writ petitions, Sri Putluri Srinivasa Rao, learned standing counsel for the APERC, states that this one counter would suffice.

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The petitioner concerns raised various issues - some common to all of them and some individual in nature. The collective complaint in all the writ petitions is that the APCPDCL is not applying and levying penalties in terms of the R & C measures logically. It is pointed out that demand charges are levied on peak and off-peak hour basis. But, a period of 24 hours x 30 days is taken into consideration for both peak and off-peak hours. The petitioner concerns contend that when the day is being segregated into two parts, the charges should also be segregated accordingly and not be applied on 24 hours basis. Various other contentions are raised in the context of the calculation of penal amounts by the APCPDCL. Some of the petitioner concerns raised a plea that they fall either in the category of continuous process industries or HT consumers (Category III-A) and that they would be entitled to certain benefits/exemptions in terms of the R&C measures. It is their complaint that the APCPDCL failed to extend such benefits/exemptions to them and, on the other hand, levied penal charges upon them at five times the normal charges.

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In those cases where the petitioner concerns challenged the APERC’s proceedings permitting imposition of five times penalty, it is stated that the terms and conditions of supply would normally allow

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assessment of charges as per actual consumption and only in cases of overdrawal of power or theft of power, imposition of penalties is authorised upto a maximum of two times the normal charges. It is therefore contended that imposition of five times penalty is without the sanction of law and is wholly irrational.

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In this regard, it is pertinent to note that the APERC issued proceedings dated 08.08.2013 reducing the maximum penalties to be imposed under the R & C measures to a uniform 2.5 times across the board, thereby reducing it from the originally permitted maximum of five/six times.

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Further, in the light of the judgment of this Court in SRIRAMAGIRI SPINNING MILLS LTD. V. STATE OF ANDHRA PRADESH^[1] , following the judgment of the Supreme Court in THE ADONI COTTON MILLS v. A.P. STATE ELECTIRICITY BOARD^[2] , holding that imposition of higher rates so as to sanction the rigour of ration, by making persons exceeding the quota liable to pay such higher rates, is legal and valid, it is not open to the petitioner concerns to dispute or question the power of the APERC in doing so. Sri Srinivasa Rao Velivela, learned counsel for the petitioner concerns in this batch of cases, fairly concedes that he is not pressing this challenge in the light of this settled dictum.

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It is the further case of the petitioner concerns that they all submitted representations/objections to the APCPDCL airing their grievances. However, they complain that the APCPDCL failed to take the same into consideration and was insisting upon payment of the penalties under threat of disconnection of power supply.

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In its counter the APERC, speaking through its Secretary, stated as follows: R & C measures were introduced in the State originally on 07.09.2012 and were thereafter amended from time to time depending on the need/necessity, keeping in view the availability of electricity. These R & C measures were put in place only to streamline the existing supply of electricity so as to ensure equitable distribution amongst the

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consumers. The APCPDCL and the other distribution companies in the State approached the APERC owing to shortage of power seeking permission to impose restrictions on power supply. Taking note of the energy deficit in the State, the R & C measures were approved under orders dated 07.09.2012. Levy of penalties thereunder was limited to cases of violation of the conditions imposed vis-à-vis power consumption. There is no relation between the tariff orders determining the retail tariff for power supply by licensees and the R & C measures which were intended to ensure equitable distribution of the available power and protect the grid from overdrawal of power. Imposition of penalties was justified in the context of the case law cited. It was pointed out that some of the grievances ventilated by the petitioner concerns had to be addressed by the APCPDCL and did not fall within the APERC’s domain. The APERC accordingly prayed for dismissal of the writ petitions.

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The APCPDCL, while reiterating some of the contentions raised by the APERC, stated in its counters that it had approached the APERC on behalf of the four distribution companies in the State seeking permission to impose restrictions on power supply under Section 23 of the Electricity Act, 2003 (for brevity, ‘the Act of 2003’) read with Clause 16 of the General Terms and Conditions of Supply. It stated that it was brought to the notice of the APERC that there would be an energy deficit during 2012-13 owing to load growth, outages of thermal generating plants and non-availability of hydel-capacity and gas. The proposals submitted by it were considered and the APERC issued orders on 07.09.2012 introducing R & C measures. These measures are stated to be sourced in Section 23 r/w Section 86 (1) (k) of the Act of 2003. For the purpose of implementation of these measures, consumers were classified into (i) H.T consumers and (ii) L.T industrial consumers. Clause 11 of the orders dated 07.09.2012 provided for imposition of penalties for non-compliance. Revised orders were issued by the APERC on 14.09.2012 and again on 01.11.2012.

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The APCPDCL further pointed out that the petitioner concerns were not challenging the power of the APERC to introduce the measures and were only questioning its power in imposing five times penalty. Justification was offered as to the quantification of the penalties to this extent. The APCPDCL also addressed some of the individual concerns raised in the writ affidavits and sought dismissal of the writ petitions. Petitions were also filed by it to vacate the interim orders.

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Sri Srinivasa Rao Velivela, learned counsel for the petitioner concerns, contended that the APCPDCL was issuing supplementary bills in respect of the penalties imposed long after the event and no data was being furnished to the consumers as to the basis on which the excess consumption of power was being calculated and subjected to penalty. He asserted that the meter reading index data was available only with the APCPDCL and in the absence of the same the consumer had no possibility of verifying the correctness of the calculation made by the APCPDCL. He further stated that the representations/objections of the petitioner concerns had not been considered by the APCPDCL and asserted that without addressing these individual complaints, it was not fair and justified on the part of the APCPDCL to press for payment of penalties under threat of coercion.

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Per contra, Sri O.Manohar Reddy, learned standing counsel for the APCPDCL, stated that as and when a consumer approaches it, the APCPDCL would furnish the meter reading index data and that the same is not a confidential document inaccessible to the consumer.

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As the challenge to the power of the APERC to impose penalties no longer survives for consideration in the light of SRIRAMAGIRI SPINNING MILLS LTD.¹ and the submission of Sri Srinivasa Rao Velivela, learned counsel, that he is not pressing the same, the only issue that remains for consideration is as to the imposition and application of penalties by the APCPDCL under the R & C measures and the consequential quantification thereof against each of the petitioner concerns. The objections raised by the petitioner concerns

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are admittedly still awaiting the consideration of the APCPDCL. As these objections partake of a technical nature, it is appropriate that they are addressed in the first instance by the APCPDCL itself. It would not be feasible for this Court to undertake such a technical evaluation in exercise of its extraordinary jurisdiction under Article 226 of the Constitution.

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As the learned standing counsel for the APCPDCL fairly states that the meter reading index data would be made available to the petitioner concerns on application, it is for them to obtain the same and thereafter submit fresh representations/objections, if any, in the context of the calculations made by the APCPDCL on the basis of such data. These representations/objections shall be submitted, along with copies of the earlier representations/ objections, to the Divisional Engineer (DE)/Additional Divisional Engineer (ADE) concerned of the APCPDCL. Upon submission of such representations/objections, the APCPDCL shall consider the same in accordance with the rules and pass appropriate reasoned orders thereon and communicate the same to the petitioner concerns. This exercise shall be completed expeditiously and in any event, not later than three weeks from the date of receipt of a copy of the representation/objection. Pending such exercise, the APCPDCL shall not take any coercive action against the petitioner concerns in respect of the penalties in question. In the event, the petitioner concerns fail to submit their representations/objections pursuant to this order within four weeks from today, it shall be open to the APCPDCL to take necessary further action in the matter in accordance with the rules.

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The writ petitions are disposed of with the above directions. Pending miscellaneous petitions in these writ petitions shall stand closed in the light of this final common order. No order as to costs.

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--------------------------------------SANJAY KUMAR, J.

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21^st SEPTEMBER, 2012. PGS

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[1] 2013 (3) ALD 298 [2] (1976) 4 SCC 68

M/s.Future pet(S.C No.09054107507), v. Andhra Pradesh Electricity Regulatory Commission

Case brief

What is this about?

What did the court decide?

M/s.Future pet(S.C No.09054107507), v. Andhra Pradesh Electricity Regulatory Commission

Case brief

What is this about?

What did the court decide?

What the court decided

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