Allowed

M/s Suguna Metals Pvt. Ltd., v. The Telangana State Electricity Regulatory Commission

Telangana HC14 Nov 2024WP/951/2024

Case brief

AI extract

What is this about?

The High Court held that demanding levy and collection of illegal development charges for additional power load is void. Laches was not a bar to the writ petition when fundamental rights were involved. The court directed respondents to adjust the charges in future bills.

What did the court decide?

Respondents directed to consider the petitioner's representation for refund of development charges by adjusting the amount in future bills within 4 weeks.

M/s Suguna Metals Pvt. Ltd., Vs The Telangana State… — Service and Employment | Telangana HC (2024)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY, THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MRS JUSTICE SUREPALLI NANDA

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WRIT PETITION NO:951 OF 2024

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Between:

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M/s Suguna Metals Pvt. Ltd., Survey Nos. 141 to 143, Lakshmidevipally Village, Parigi lVlandal, Vikarabad Dist. Telagana State, rep. by its Direclor, Bharath Kumar.

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.....PETITIONER

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AND

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The Telangana State Electricity Regulatory Commission, rep. by its Secretary, Singareni Bhavan, Red Hills, Hyderabad, Telangana Sate.

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The Transmission Corporation of Telangana Limited, rep by its Chairman and Managing Director. Vidyut Soudha, Hyderabad.

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The Southern Power Distribution Company of Telangana Limited, rep. by its Chairman and l,4anaging Director, Mint Compound, Hyderabad, Telangana State.

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The Superintending Engineer, Operation the Southern Power Distribution Company of Telangana Limited, Vikarabad District, Vikarabad, Telangana State.

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The Senior Accounts Officer, Operation the Southern Power Distribution Company of Telangana Limited, Vikarabad District, Vikarabad, Telangana State

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The State of Telangana, rep- by its Pd. Secretary, Energy Departrnent, Telangana Secretar at Hyderabad, Telangana State.

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.....RESPONDENTS

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Petition Under Article 226 of the Constitution of lndia^praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ or order of direction more particularly one in the nature of Writ of Mandamus declaring levy and coltection of development charges for the release of additional load of 1 774 KVA by respondents 3 to 5 as illegal, arbitrary, unjust, irrational, without any power or authority and void apart from being

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violative of Articles 1+, 19(1Xg), 21 ,265 and^{3004 of the Constitutionof lndia and} consequently, direct the respondents 3 to^{5 to refund the development charges} collected for the release of additional^{load of 1774KVA togetherwith interest at} the rate of 24percent^per annum.

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|.A.NO:1 OF 2024

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Petition Under Section 151 CPC^praying that in the circumstances^statedin the affidavit filed in support of the^{petition,the High Court may be pleasedto stay} the recovery of the development charges^{to the tuneof Rs.21,28,800} I^{from the} petitioner including disconnection of power supply of the^{petitionerpending} disposal of the above writ^petition.

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Counset for the Petitioner : SRI D.V.NAGARJUNA^{BABU,SENIOR COUNSEL} SRI G.CHANDRA SHAKHAR RAO

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Counsel for the Respondent Nos.'l & 2 : SRI^{P.PRASAD (SC FOR TSERC)}

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Counsel for the Respondent Nos.3 to 5 : SRI^{R.VINOD REDDY}

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Counsel for the Respondent No.6 : AG.P FOR^ENERGY

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The Court made the following ORDER

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a-\

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HON'BLE MRS JUSTICE SUREPALLI NANDA -

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WRIT PETITION No.^gs,- OF 2024

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ORDER:

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Heard D.V.Nagarjuna Babu, learned senior designated counsel representing, Sra G.Chandrasekhara Rao, teaned counsel appearing on behalf of the petitioner on record, Sri P.Prasad, learned standing counsel for TSERC appearing on behalf of the respondent No. 1 , Sri R.Vinod Reddy, learned standing counsel appearing on behalf of the respondent Nos. 3 to 5 and learned Assistant Government Pleader for Energy appearing on behalf of the respondent No.6.

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The petitioner approached the Court seeking prayer as under:

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"....to issue a writ or order of direction rnore particularly one in the nature of Writ of Mandamus declaring levy and collection of development charges for the release of additional load of t774 KVA bY respondents 3 to 5 as illegal arbitrary unjust irrational without any^power or authority and void apart from being violative of Articles 14,^19(1)(g), 21, 265 and 300A of the Constitution of India and consequently direct the respondents 3 to 5 to refund

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the development charges collected for the release of additional load of L774 KVA together with interest at the rate of 24 percent per annum and pass....."

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The case of the oetitioner in brief as oer the averments made in the affidavit filed bv the^petitioner in suooort of the oresent Writ Petition is as under:-

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a) It is the case of the petitioner that, tlre petitioner is a private limited company and established a composite industrial unit which is engaged in the manufacture of M.S Billets, TMT Bars etc. For the purpose of running the industrial unit, the petitioner obtained a High Tension Power Supply Service Connection No. VKB-1247 from the 3'd respondent distribution company

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b) It is further the case of the petitioner that the^7th respondent ln exercise of the power conferred under section 46, framed Regulation No. 3/2004- called the A.P Electricity Regulation Commission (Licensee's Duty for the Supply of Electricity on Request) Regulation 2OO4 and the said regulation came into force on 05.06.2004. Further, Clauses 5 to 11 oF Regulation No. 3/2004 deals with the right of the

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wP 951_2024 distribution licensees to recover expenditure and the

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operation of the said clauses were^{suspended by the 1st} respondent.

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c) It is further the case of the^{petitioner that, the petitioner} had applied for an additional load of^{1774 KvA over and} above the then existing C.M.D of 8225^{of KVA totalling to} 9999 KVA and the same^{was sanctioned by the 3'd} respondent. However, for the^release of^{the said load, the 3d} respondent demanded a sum of Rs. 98,00,000/-^towards development charges by^{placing reliance on the orderspassed} by the 1tt respondent commission in^{R.P. Nos. 1, 2, 3 and 4} /^{20Q4 dated24.08.2005.}

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d) Aggrieved by the same, the^{petitioner filed a letter before} Respondent Nos. 3 to 5 seeking refund of^development charges, which are to the tune of^Rs. 21,28,800/-^leviedand collected for the release of additional^load of^{1774 KVA by} way of adjusting the same in future bills^{payable by the} petitioner. However, the same was not considered by the respondents. Hence this, Writ Petition.

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PERUSE D THE RECO RD:

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The counter affidavit has been filed on behalf of the respondent Nos. 3 to S and retevant paragraph Nos. 11 and L2 of the counter affidavit is extracted

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hereunder:-

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In reply to para 12 it is submitted that power supply was release to the petitioner initially with a CMD of 4900KVA. Later, the petitioner sought For additional load and the same was extended from time to time as per the request of the petitioner. In the instant case, the petitioner has requested for an additional load of 1900 KVA vide application dated HT Registration No. Hf 27149L2 Dt.27.04.20L1. Accordingly, an estimate was prepared including development charges of Rs. 21,28,800/- and communicated to the petitioner. Accordingly, the petitioner has paid the same for additional load of 1900 KVA. Now the petitioner is requesting for refund of the same. It is pertinent to note here that the respondent company has to collect development charges either in the form of actual expenditure incurred or a fixed amount to provide infrastructure to the consumers at the time of release of power supply. If the petitioner's request for refund of development charges is considered, the respondent company is denied of development charges i.e., either

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,a ,tt -zo)l or fixed amount which is the actual expenditure the basic infrastructure for required for^providing extending^power supply.

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It is submitted that the^{Development charges which} were paid by the^petitioner are^{much prior to the} incorporation of clause 5 to 11 of^{Regulation 3 of 2004,} The petitioner is put to strict^proof of^{their contention} that they are entitled to^{refund/adjustmentof the} Development charges. laim of toner I not vered bv the orders oassed bv the Honorable Court in WP. No. 4O1O/^{2O5 and} batch. T e TSSPDCL as Der the orders^{in WP} No. 4(Jtol2 5 and batch h ve alreadv adiu sted the in futu iil of he n umers. ita e h were n led for nd th amounts would have alreadv been^{adiusted in} their bills. The^petitioner has approached^this Honourable court after more than 13^{yearsfrom the} date of orders dated 05.10.2010^{in WP. No. 4010of} 2005 and batch. As the claim^{is made} after^{such a long} period the same is barred by latches and the^petitioner cannot be granted any relief by this^{HonorableCourt} and the Writ Petition has to be dismissed^{on the ground} of latches.

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Sri D.V.Nagarjuna Babu, Iearned senior designated

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counsel appearing on behalf of the petitioner placing

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reliance on the order of this Court, dated 23.o4.2(J24 passed in W.P.No.24136 of 2O23, contends that the subject issue in the present Writ petation is squarely covered by the orders of this Court, dated 23.o4.2(J24 in W.P.No.24L36 of 2023.

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6 Sri R.Vinod Reddy, learned standing counse! appearing on behalf of the respondent Nos. 3 to 5 on the other hand placing reliance on the averments made at para Nos. 11 & 12 of the counter affidavit filed on behalf of the respondent Nos. 3 to 5 (referred to and extracted above), however submits that the present Wrat Petition is not covered by the orders of this Court, dated O5.1O.2O1O passed in W.P.No.4O1O of 2OO5 & batch and order of this Court dated 23.04.2O24 passed in W.P.No.24136 of 2023 on the ground that the petitioner had approached this Court after more than 13 years from the date of orders dated O5.1O.2O1O passed in W.P. No.4O1O of 2OO5 & batch, since the claim of the petitaoner is made after a long period, the same is barred by latches, the petitioner cannot be

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granted any relief and the Writ Petition has to be dismissed.

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The relevant paragraph Nos. 3 to 6 of the order of this Court, dated 23.O4.2024^passed in^W.P.No.24t36 ol 2O23 is extracted hereunder:-

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It is represented by the learned counsel for^the petitioner and Mr.R.Vinod Reddy, learned Standing Counsel, appearing on behalf of respondent^Nos. 2 to⁴ that, the subject issue in the^present writ^{petition is} squarely covered by the order of this Court dated 05.10.2010^passed in WP.Nos.4010, 4013, 4328,24082 and 25597 of 2005 batch and the relevant^portion of^the above said^judgment reads as under:

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"From the above, it is clear that Clauses 5 to 11 stand deleted from the date of Regulation 3 of²⁰⁰⁴ i.e.^with retrospective effect. It is settled^principle of law that a subordinate legislation can never be made^with retrospective effect even assuming that the said deletion amounts to amendment of the ru les/regulations. Further, the Distribution Companies were directed to file all relevant data with the Commission within 60 days of the issue of the order, till a separate regulation under Section 46 oF the Act is made. Since the clauses in question are not notified as

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requlred under Section 181 and were not placed before the Legislature of the State for its approval, the deletion shall be treated as nonest in the eye of law. Therefore, applying such a law and making demands for payment of notional developmental charges for new connections and For additional loads is arbitrary and illegal

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It is further represented by the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of respondents that, the order dated 05.10.2010 passed in W.P.No.4010 of 2005 and batch had been confirmed by the Division Bench of this Court dated 19.04.2022 passed in W.A.Nos.B57, 866,872,875 of 2011 and batch, in particular paragraph Nos. 16 to 19 of the said Judgment reads as under

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"16. In the considered opinion of this Court, once Regulation No.4 of 2013 has already been issued repealing Regulation No.3 of 2004, the appellant company cannot demand the charges based upon the order passed by the Regulatory Commission in Review Petitions. The Review Petitions were preferred in respect of Regulation No.3 of 2004, the Regulation No.3 of 2004 has already been repealed and therefore, the present writ appeals have become infructuous and there cannot be any demand on the basis of Regulation No.3 of 2004, which is not in existence at all.

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In the considered opinion of^{this Court, even though} it is presumed for a moment that the^{Commission was} having power to review the^{Regulation,the procedure} prescribed was required to be followed and the same was not done at all. Meaning thereby,^{there was total} non-compliance of Section 181 of^{the Electricity Act,} 2003 and therefore, the Order^{passed in Review} Petitions could not be^{given effect to, as has beendone} in the present cases.

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The learned Single Judge^{was, therefore, justified in} allowing the writ^petitions and^{once Regulation No.4 of} 2013 has been framed and^{publishedin the Official} Gazette, the question of^{permittingthe appellant} company to raise the demand based^{upon the repealed} Regulation No.3 of 2004, which^{has been struck down} by this Court, does not arise.

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In the light of the aforesaid, all the^{writ appeals} deserve to be dismissed and^{are accordingly dismissed."}

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5 Mr.R.Vi nod Reddn. learned^S ndino Coun sel for L a n f res o n Nnq 2 t^ 4 Cubmits^{th.t t} h Writ^iiat t atn could b allowed with the stipulation that the^resDondents mav be darected to diust the develo Dment charoes alr adv oaid bv the oetitioners in their future bills,

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Taking into consideration the submissions of both the learned counsel on record and the order passed by this Court vide its order dated OS.1O.2010 passed in W.P.No.4010 of 2005 and batch and the same having been confirmed by the Division Bench of this Court vide its Judgment dated 19.04.2022 passed in W.A.Nos.g57 of 2011 and batch the Writ petition is allowed directing the respondents to adjust the development charges already paid by the petitioner herein in their future bills to be levied by the respondents herein. However, there shall be no order as to costs.

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Ab are oerusal of the aver ents ade at Dara o.l2 f the ou nter davi led b h oft res ondent Nos. 3to5 ( referredtoa nd extracted above) indi ates s ecific oleas taken an ect of the Detitione r as under:-

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a) That the petitioner is not entitled to refund,/adjustment of the development charges.

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b) If the petationer had been entitled to refund/adjustment of the development charges, the

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amounts would have already been adjusted^{in their} bills

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c) On the ground that the^petitioner approached^this Court after more than 13^years from the date of^the orders dated 05.1O.2O1O in^{W.No.4O1O of 2OO5 & batch,} the claim of the^petitioneris time barred.

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Thas Court opines that such^{pleas put-forth on} behalf of the respondents are untenable,^{in view of the} fact that admittedly, the^prayer sought for by the petitioner in the present Writ Petition Pertains to adjustment of the development charges^{paid by the} petitioner which are to the tune of Rs.21,28,8OO1- tor the monthly bills payable to the^petitioner for^the month of November, 2O23.

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The D e of the resD()nd nt Nos- 3 to 5 that t^he claim of the oetitioner is time barred is ntenable and r he obse A x Cou the iudoment reDorted in 2()22 SCC Online SC 232 in Sunil Kumar Rai & Others Vs State of Bihar & Others

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da d 2!.O2 .2022 atParas 7,8, 10, and 11 observed as

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under :

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Para 7i Article 32 of the Constitution provides for a Fundamental Right to approach the Supreme Court for enforcement oF the Fundamental Rights. The founding fathers contemplated that the very right to approach this Court when there is a violation of Fundamental Rights, should be declared as beyond the reach of Parliament and, therefore, it is as a part of judicial review that the right under Article 32 has been put in place and invoked from time to time. That in a given case, the Court may refuse to entertain a petition under Article 32 of the Constitution is solely a part of selfrestraint which is exercised by the Court having regard to various considerations which are germane to the interest of justice as also the appropriateness of the Court to interfere in a particular case. The right under Article 32 of the Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court. This is, no doubt, subject to the power of the Court to relegate the party to other proceedings.

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Para 8 : At the heart of the Constitution lies certain principles which have, in fact, been recognised as part oF the basic structure. Article 14 of the Constitution proclaims right to equality. The right against unfair State action is part of Article 14. Unequals being treated equally is tabooed under Article 14 of the Constitution. A person entitled to be treated as a member of Scheduled Tribe under Article 342, cannot be treated on par with a person who is brought in by an incompetent Body, viz., the State in the manner done. Article 21 of the Constitution again is the fountain head of many rights which are part of the grand mandate which has been from time to time unravelled by this Court giving rise to the theory of unenumerated rights under the Constitution. While liberty is a dynamic concept capable of encompassing within it a variety of Rights, the

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irreducible minimum and at the^{very core of liberty,is} freedom from unjustifiable custody.

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We may take up the first^{preliminary objectionby} the State, namely, that the^{petitioners have approached} this Court with considerable delay. The^impugned Notification is issued in August, 2016. A^personcannot be said to be aggrieved^{merely upon the issuanceof an} instrument or of a law by itself. In fact, the Court^may refuse to examine the legality or the^{validity of a law or}

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order on the basis that^{he may have no locus standi or} that he is not an aggrieved^person. No doubt,^the Courts have recognized challenge to^even a^legislation at the hands of a^public interest litigant.^{However, we} may only indicate, ordinarily, the Court^{may insist on a} cause of action and therefore, a^person must^{be an} aggrieved party to maintain a^{challenge. We must not} be oblivious to the fact that based on the^{Notification,it} appears that FIRs came to be lodged by^persons claiming to be members of the Scheduled^Tribe community and seeking to invoke the^{1989 Act. The} FIR5 lodged in the^year 2020 occasioned the^petitioners to approach Courts seeking^protection under^Section 438 of the Cr.P.C. Two of the^petitioners have^not secured such^protection. Petitioner No.^1, it^{appears was} not arrested. But even assuming for a^moment, that^the petitioners have come with some delay, we find reassurance from the opin ion of this Court in the judgment reported in Assam Sanmilita Mahasanqha v. Union of India 20 15 )3SCC1 , wherein this Court^has inter alia held as follows:-

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".....Further, in Olga Tellis^v. Bombay Municipal Corpn., it has now^been tv held that I! n mental nn waived at 2 . Given i rrr nzr rta nt velo me^{nlc in tho} law the^firYra has come for this Court to sav that at least when it comes to violation s of the fundamen I rioht to life and oersonal libertv, dela v or laches bv itself w thout more

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would not be sufficie nt to shut the doors of the court on anv oetitioner."

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Therefo re, we do no think we should be detained bv the obiecti n. We would think that delav bv itself cannot be used as a weaDo to Veto an action under Article 32 when violation of Fr r ndr menta! Rinht< ic rlarr at stak

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Duly taking into consideration the observations of this Court in the judgment, dated 23.04.2O24 passed in W.P.No.24136 of 2O23 and the orders of this Court dated O5.1O.2O10 passed in W.P.No.4O1O of 2OO5 and batch and order of the Division Bench of this Court, dated 19.04.2O22 in W.A.Nos.857, 866, 872 ot 2011 & batch and the judgment of the Apex Court in Sunil Kumar Rai & Others Vs. State of Bihar & Others reported an 2022 SCC Online SC 232, dated 2L.O2.2O22 the present Writ Petition is disposed of, directing the respondents to consider the representation of the petitioner dated L2.LL.2023 for refund of the development charges collected from the petitioner for the release of additional load of L774 KVA together with interest at the rate of 24o/o P.A by adjusting the same for the monthly bills payable by the petitaoner in

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future. within a period of four (4) weeks from^{the date} of receipt of the copy of the order in accordance to law in conformity with principles of natural^justice in the light of the order dated 05.10.2010^{passed in} W.P.No.4O1O of 2OO5 and batch which had been confirmed by the Division Bench of this Court dated 19.04.2022 passed in W.A.Nos. 857, 866, 872, 875 of 2O11 and batch and the orders of this Court dated 23.04.2024 passed in W.P.No.24136 of 2O23 and the judgment of the Apex Court in Sunil Kumar Rai & Others Vs. State of Bihar & Others reported in 2O22 SCC Online SC 232, dated 21.O2.2022 and duly communicate the decision to the petitioner. However, there shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this Writ

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Petition, shall stand closed

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SD/. L. LAKSHMI BABU ASS TANT REGISTRAR

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,TRUE COPY//

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ECTION OFFICER

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To 1. The Secretary, Telangana State^{Electricity Regulatory Commission, Singareni} Bhavan, Red Hills, Hyderabad,^{Telangana Sate.}

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The Chairman and M-anaqinq^{Director, Transmission Corporationof} Telangana Limited, Vidyut Soudha,^{HyderabadThe Chairmanand Managing} Directlor, Southern Poiler Distribution^{Company of TekanganaLimited, Mint} Compound, Hyderabad, Telangana^State.

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The Superintehding Engineer,^{Operationthe Southern Power Distribution} Compahy of Telangana Limited,^{Vkarabad Drstrict.Vikarabad' Telangana} State.

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The Senior Accounts Officer, Operation^{the ScuthernPower Distribution} Company of Telangana Limited, Vikarabad^{DrstrictVikarabad, Telangana} State.

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The Principat^{Secretary, Energy Department,Telangana Secretariat Stateof} Telangana at Hyderabad,^{TelanganaState'.} ^ ^ .

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o o-ne ic to^{snr 'c.cnnruoRASHAKHAR RAO, Advocate} LoJy^ql ; o; cc to snt^{P.PRASAD(sc FoR TSERC)Advocate [oPUCl} A One CC to^{SRI R.VINOD REDDY, Advocate (OPUC)}

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