M/s. Oswal Agro Mills Ltd. Vs Punjab State Electy Board .

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 662-663 2013 (Arising out of S. L. P. (C) Nos. 32975-32976 of

2009)

Ms. Oswal Agro Mills Ltd. … Appellant

Versus

Punjab State Electricity Board and Others. … Respondents

JUDGEMENT

A. K. PATNAIK, J.

Leave granted.

2. The facts very briefly are that the appellant owns a

sugar mill situated at Phagwara, and the respondent

no.1-Board is supplying electricity to the sugar mill.

In 1989, the appellant installed a TG Set of 3187.500

KW capacity to meet some of its electricity demand

and applied for approval of its TG Set to the

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respondent no.1. By memo dated 08.12.1992, the

Chief Engineer, Commercial of the respondent no.1

granted permission to the appellant for installation of

2 No. TG Sets subject to some conditions. On

09.12.1992, however, the Flying Squad, Jalandhar of

the respondent no.1 visited the sugar mill of the

appellant and checked the electricity connection at

the sugar mill. Pursuant to the report submitted by

the Flying Squad, the Sub-Divisional Officer

(Suburban), Phagwara of the respondent no.1 issued

a demand notice dated 10.12.1992 to the appellant

stating inter alia that the TG Set and stand-by load

had not been sanctioned by the respondent no.1 and

the appellant was liable for an excess unsanctioned

load of 4904.127 KW for load surcharge at the rate of

Rs.1,000/- per KW, which worked out to

Rs.49,04,127/-.

3. The appellant made a representation to the Sub-

Divisional Officer (Suburban), Phagwara, and to the

Chief Engineer, Commercial of respondent no.1

against the demand of load surcharge of

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Rs.49,04,127/-. When there was no response from

the aforesaid two authorities of the respondent no.1,

the appellant filed a Writ Petition CWP No.370 of

1993 before the High Court of Punjab and Haryana at

Chandigarh challenging the demand of load

surcharge of Rs.49,04,127/-. The Division Bench of

the High Court held in its order dated 30.03.1993

that the respondent no.1 could charge for the excess

load which was to be the sum of the rated capacities

of all the energy consuming apparatus in the

consumer’s installation, but from the order impugned

by the High Court or from the documents filed by the

respondent no.1 before the High Court along with its

written reply, there is nothing to show that the TG

Set having the capacity of 3187.5 KW was an energy

consuming apparatus. The Division Bench further

held in its order dated 30.03.1993 that for the

purpose of charging for the excess load, the load of

the stand-by machinery was to be excluded and,

therefore, the load to the extent of 2226.330 KW of

the stand-by apparatus in the order impugned before

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the High Court could not be included. For the

aforesaid reasons, the Division Bench quashed the

demand of load surcharge of Rs.49,04,127/- leaving it

to the respondent no.1 to pass afresh appropriate

order, if so advised, with liberty to the appellant to

challenge the same, if required.

4. Thereafter, by a fresh demand notice dated

01.06.1993, the Sub-Divisional Officer (Distribution),

Suburban Sub-Division, Phagwara, raised the very

same demand of Rs.49,04,127/- for the unauthorized

TG Set load of 3187.500 KW and stand-by load of

2226.330 KW totalling to 6520.155 KW at the rate of

Rs.1,000/- per KW. The appellant filed a second Writ

Petition CWP No.7299 of 1993 challenging the

aforesaid demand. The learned Single Judge, who

heard and disposed of the writ petition, held in his

order dated 01.04.2009 that the finding of the

Division Bench of the High Court in earlier Writ

Petition CWP No.370 of 1993 that the stand-by load

of 2226.330 KW could not be included in the demand

for excess load was binding on the respondent no.1

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and hence the demand of excess load on account of

the stand-by load could not be raised again by the

respondent no.1. Regarding the connected load of

the TG Set, the learned Single Judge of the High

Court referred to the earlier order dated 21.08.2008

of the learned Single Judge in which it was recorded

that the learned counsel for the appellant had very

fairly stated that he would accept the decision of the

Dispute Settlement Committee of the respondent

no.1 and as the Dispute Settlement Committee had

decided the matter against the appellant, the

addition on account of the load connected on the TG

Set could not be faulted with. Aggrieved, the

appellant filed Letters Patent Appeal No.304 of 2009

before the Division Bench of the High Court, but by

the impugned order dated 01.05.2009 the Division

Bench dismissed the appeal after holding that there

was no infirmity in the findings returned by the

learned Single Judge on the basis of the statement

made by the counsel for the appellant and the report

submitted by the Dispute Settlement Committee.

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The appellant filed a Review Application RA No.6 of

2009 before the Division Bench, but by the impugned

order dated 31.07.2009 the Division Bench dismissed

the Review Application. Aggrieved, the appellant has

filed this appeal by way of special leave under Article

136 of the Constitution challenging the orders of the

Division Bench of the High Court in the Letters Patent

Appeal and the Review Application.

5. Learned counsel for the appellant submitted that the

only ground on which the learned Single Judge in

CWP No.7299 of 1993 declined to quash the demand

for the excess connected load of the TG Set was that

the learned counsel for the appellant had agreed

before the learned Single Judge on 21.08.2008 that

he would accept the decision of the Dispute

Settlement Committee of the respondent no.1 on this

aspect of the matter. He submitted that a reading of

the order dated 21.08.2008 of the learned Single

Judge would show that the learned counsel for the

appellant had only agreed to accept the decision of

the Dispute Settlement Committee of the respondent

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no.1 on the question whether with the aid of a device

called a bus coupler, inter-transferability of load

could be effected between the TG Set of the

appellant and the energy supplied by the respondent

no.1. He submitted that the learned counsel for the

appellant, therefore, had not agreed before the

learned Single Judge on 21.08.2008 to accept the

decision of the Dispute Settlement Committee of the

respondent no.1 with regard to the legality of the

demand for the excess load on account of the TG Set.

He further submitted that it will be clear from the

memo dated 08.12.1992 issued by the Chief

Engineer, Commercial, that the respondent no.1 had

permitted installation of the two TG Sets subject to

certain conditions and, therefore, the load of the TG

Set had been permitted/sanctioned by the competent

authority of the respondent no.1-Board and the

appellant could not be charged any load surcharge at

the additional rate of Rs.1,000/- per KW for 3187.500

KW connected load of the TG Set under the

Commercial Circular No.12 of 1989.

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6. Learned counsel appearing for the respondents, on

the other hand, submitted that the memo dated

08.12.1992 of the Chief Engineer, Commercial of the

respondent no.1 would show that the appellant was

permitted installation of 2 No. TG Sets subject to

certain conditions which were to be complied with by

the appellant and if the conditions were to be

complied with, the appellant was liable for

prosecution under Section 58 read with Section 43 of

the Indian Electricity Act, 1910 and the unauthorized

TG Sets were to be disconnected after giving 24

hours notice and were not allowed to be run till its

sanction is obtained from the competent authority of

the respondent no.1. He submitted that the

permission was only given for installation of TG Set

and not for the bus coupler and yet on 09.12.1992

when the Flying Squad of the respondent no.1

entered the sugar mill of the appellant, they found

that the TG Turbo Bus and the supply of the

respondent no.1 were electrically connected through

LT Bus Coupler and there was inter-transferability of

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load. He submitted that, therefore, the TG Set of the

appellant was found as unauthorized load for which

the appellant was liable for load surcharge at the

additional rate of Rs.1,000/- per KW. He submitted

that the learned Single Judge and the Division Bench

of the High Court were, therefore, right in rejecting

the challenge of the appellant to the demand of

Rs.26,77,797/- towards load surcharge for the TG Set

at the rate of Rs.1,000/- per KW.

7. The first question that we have to decide is whether

on 21.08.2008 the learned counsel for the appellant

had agreed before the learned Single Judge to accept

the decision of the Dispute Settlement Committee of

the respondent no.1 on the legality of the demand of

the unauthorized load of the TG Set and, therefore,

the learned Single Judge and the Division Bench of

the High Court were right in taking a view that the

appellant was not entitled to challenge the demand

of load surcharge for the authorized load in respect of

the TG Set. The order dated 21.08.2008 of the

learned Single Judge in CWP No.7299 of 1993, which

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records the submission of the learned counsel of the

appellant, is extracted hereinbelow:

“Present: Mr. Rahul Sharma, Advocate For the petitioner.

Mr. H.S. Riar, Advocate

with Mr. DPS Kahlon, Advocate for the Respondents.

Arguments in part heard.

The dispute in this petition primarily relates to the question, whether with the aid of a device called a bus coupler, inter- transferability of load could be effected between the captive generation apparatus of the petitioner and the energy supplied by the respondent-board. This is a disputed question of fact.

At this stage learned counsel for the petitioner has very fairly stated that he would accept the decision of the Dispute Settlement Committee of the respondent-board on this aspect of the matter. Let the Dispute Settlement Committee of the respondent- board, after hearing both the parties, give an opinion on the question whether the bus coupler installed by the petitioner would permit inter-transferability of the load between the Turbo Generator Set of the petitioner and the PSEB. Let representatives of both the parties appear before the Dispute Settlement Committee in this regard on 28.08.2008.

The matter is adjourned for two weeks i.e. 8.9.2008. Copy of this order be given to both the learned counsel under the signatures of the Reader of this Court.

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Sd/- Ajay Tewari

Judge August 21, 2008.”

8. It will be clear from the aforesaid order dated

21.08.2008 that the learned Single Judge was of the

opinion that the dispute between the parties was on

the question whether with the aid of a device called a

bus coupler, inter-transferability of load could be

effected between the captive generation apparatus

of the appellant and the energy supplied by the

respondent no.1 and he was also of the opinion that

this dispute was on a question of fact and accordingly

learned counsel for the appellant had stated very

fairly that he would accept the decision of the

Dispute Settlement Committee of the respondent

no.1 on this aspect of the matter. Hence, learned

counsel for the appellant had not agreed before the

learned Single Judge of the High Court that he would

accept the decision of the Dispute Settlement

Committee of the respondent no.1 on the legality of

the demand for the extra load on account of the TG

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Set. In fact, we find from the proceedings of the

Dispute Settlement Committee that the Dispute

Settlement Committee has also not decided on the

legality of the demand for the extra load on account

of the TG Set, but has only decided that with the aid

of a device called a bus coupler, inter-transferability

of load could be effected between the captive

generation apparatus of the appellant and the energy

supplied by the respondent no.1. In our considered

opinion, therefore, the legality of the demand for the

extra load on account of the TG Set should have been

decided by the learned Single Judge or the Division

Bench after taking into account the finding of the

Dispute Settlement Committee that with the aid of a

device called a bus coupler, inter-transferability of

load can be effected between the TG Set of the

appellant and the energy supplied by the respondent

no.1.

9. The next question that we have to decide is whether

the appellant is liable for the demand of load

surcharge for the unauthorized load in the notice

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dated 01.06.1993 issued by the Sub-Divisional Officer

of the respondent no.1 keeping in view the finding of

the Dispute Settlement Committee of the respondent

No.1 that with the aid of bus coupler, inter-

transferability of load can be effected between the

captive generation apparatus of the appellant and

the energy supplied by the respondent no.1 board.

The justification of the demand made by the

respondent no.1 is given in the demand notice dated

01.06.1993 of the Sub-Divisional Officer of the

respondent no.1 in which demand for load surcharge

has been raised. Relevant extract from the demand

notice dated 01.06.1993 containing the justification

of the demand is extracted hereinbelow:

“1. Total load running on PSEB System as checked by enforcement staff on 9.12.92: 1106.325 KW.

2. As agreed by your representative Sh. Ramesh Chand who was present at the time of spot checking, the TG Set load which also includes the running stand bye load which was taken on the basis of details of load given to the Board as per A/A form along with test reports submitted earlier and not on the basis of R.C. Set Capacity: 3187.500 KW

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Stand by Load on T.G. Set: 2226.330 KW

Total: 6520.155 KW

In addition to above, as per checking of enforcement staff on 9.2.92 and your representative Sh. Ramesh Chander Sharma present at the time of checking the total load was accepted so this load is unauthorized. It is also made clear that under PSEB Circular No.12/89 General Condition 14 and as per 8.. of Tariff Schedule, the standby load until sanctioned by the Board is unauthorized. Your attention is invited to your registered letter No.2922 dt. 26.8.89 addressed to Member Commercial, PSEB, Patiala in which you had mentioned that new schedule of tariff for Sugar Mills would tend to increase difficulties and also admitted that keeping this in view approximately Rs.35/40 lacs required to be deposited for running the 4434 KW on T.G. Set, expenses of which are not bearable. Keeping this in view the Board has issued Special instruction to the sugar mills vide Circular No.CC23/90 along with some condition, the compliance of which is not fulfilled by you. As a result of this a load of 4904.127 KW was declared unauthorized after checking by the XEN Enforcement on 9.12.92. Keeping in view the unauthorized load you are requested to deposit Rs.49,04,127/- as per Board Circular No. CC 12/89 clause No.2 C 23/90 @ Rs.1000/- per KW. Since it is your 2nd default you have already deposited Rs.33,347/- on 23.5.91 towards first default.”

10. It is apparent from what has been extracted from

the demand notice dated 01.06.1993 of the Sub-

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Divisional Officer of the respondent no.1 that the

unauthorized load comprised the TG Set load

3187.500 KW and the standby load of 2226.330 KW.

So far as the standby load of 2226.330 KW is

concerned, the demand for unauthorized load has

been set aside by the learned Single Judge by the

order dated 01.04.2009 in CWP No.7299 of 1993 and

the order dated 01.04.2009 has not been challenged

by the respondents either before the Division Bench

of the High Court or before this Court. In fact, we find

that the Sub-Divisional Officer of the respondent no.1

has issued a fresh demand notice dated 12.06.2009

to the appellant pursuant to the order dated

01.04.2009 of the learned Single Judge in CWP

No.7299 of 1993 restricting the demand of

Rs.26,77,797/- for the unauthorized load on account

of the TG Set. Hence, we are to examine whether the

reasons given in the demand notice dated

01.06.1993 of the Sub-Divisional Officer of the

respondent no.1 for the unauthorized load of the TG

Set are legal.

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11. From the aforesaid extract of the demand notice

dated 01.06.1993 of the Sub-Divisional Officer of the

respondent no.1, we find that the reason for the demand

for unauthorized load for the TG Set is that respondent

No.1- Board has issued special instruction to sugar mills

vide Circular No.CC23/90 along with some conditions,

compliance of which have not been fulfilled by the

appellant and as a result the load on account of TG Set

was declared unauthorized after checking by XEN

Enforcement on 09.12.1992. We have examined the

Circular No.CC 23/90 and we find that by the said Circular

issued by the Chief Engineer, Commercial of the

respondent No.1, all concerned were informed that

respondent no.1 has decided to regularize the load of the

sugar mills fed from TG Sets after recovering ACD worked

out according to the capacity of TG Sets. In para 3 of the

Circular, the working details for regularizing load of sugar

mills from the supply of respondent no.1-Board and TG

Sets have been given and at the end of the Circular it is

mentioned that necessary action for regularizing total load

of the sugar mills may be taken accordingly. Pursuant to

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the said Circular, the appellant applied for regularization

of load of two TG Sets and by memo dated 08.12.1992

issued by the Chief Engineer, Commercial of the

respondent no.1, the appellant was permitted to install

two TG Sets subject to certain conditions. The memo

dated 08.12.1992 issued by the Chief Engineer,

Commercial of the respondent no.1 is extracted

hereinbelow:

“PUNJAB STATE ELECTRICTY BOARD From

The Chief Engineer / Commercial, Tariff & Billing Directorate, PSEB, The Mall, Patiala 147001

To, M/s Oswal Agro Mills Ltd. Sugar Divn. G.T. Road, Phagwara (Pb.)

Memo No.64192/Com/54/Indl./Jall. Dated 8.12.92

Sub: Permission for installation of 2 no. TG Sets of 3730 KVA & 500 KVA capacity.

Reference your letter regarding permission for installation of 2 No. TG Sets.

You are hereby permitted to install 2 No. TG sets of 3750 KVA Capacity of make Jyoti Vadodars, 420 Volts of 1500 RPM KVA Tg Set of Crompton make

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400 volts & 375 RPM, subject to the following conditions:-

i. All relevant provisions of the I.E. Rules, 1956 shall be complied with by you and test report of the installation shall be furnished.

ii. That the Generating set will be operated whenever called upon to do so by the Pb. State Elecy. Board for meeting your demand or for giving suitable relief to the Board’s system by meeting the demand of the other consumers also, depending upon the prevailing situation.

iii. Full proof arrangements to be approved by SE/DS concerned shall be provided to avoid mixing of Board’s supply with that to be generated by the generating sets. It shall be ensured that the nature of the PSEB supply is isolated ruing change over to TG sets supply.

iv. That after obtaining receipts of this permission you will give notice not less than 7 (seven) days to the concerned District Magistrate in terms of Section 30 of the Indian Elecy. Act, 1910 intimating the nature and purpose of supply.

v. That the separate notice of not less than 7 (days) shall also be given to Chief Electrical Inspector to Govt. Punjab as laid down in Section 30 of the Indian Electricity Act, 1910. Notice shall also be accompanied by the following documents:-

a. Particulars of the Electrical installation and plan thereof.

b. A copy of the notice sent to the District Magistrate.

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c. An attested copy of the consent received from the Punjab State Electy. Board.

d. Original Challan of the prescribed inspection fee under the following Head of Account;

-043 – Taxes and Duties on Electricity fee under the Indian Electricity Rules.”

e. Test report from Licensed Wiring Contractor in token of his having carried out the job and tested the installation for safety.

f. A single line key diagram indicating the arrangement of connecting the generator installation to the existing electrical installation.

vi. That suitable energy meter shall be installed to comply with the requirement of Rule-6 of Punjab Electricity Duty Rules 1958. The meter shall be got tested from the nearest PSEB laboratory.

vii. That in case you fail to comply with the above provision you shall make yourself liable for prosecution under Section 58 read with Section 43 of Indian Electricity Act, 1910. The unauthorized T.G. Sets shall be disconnected after giving 24 hours notice and shall not be allowed to run till its sanction is obtained from the competent authority. In case you do not disconnect the TG Sets or apply for regularization of TG Sets your

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connection shall be disconnected after giving 24 hours notice in writing for contravening the provisions of the said Act and Clause 19 of the PSEB, abridged conditions of supply. Supply in such cases shall not be restored unless you disconnect the TG Sets and furnish test report for sanction electric installation or comply with the above provisions.”

Thus, on 09.12.1992 when the Flying Squad, Jalandhar, of

respondent no.1 visited the sugar mill of the appellant, the

Chief Engineer, Commercial of respondent no.1 had

already permitted installation of TG Sets in the sugar mill

of the appellant. If the appellant had refused to comply

with the conditions mentioned in the Circular No.CC 23/90

for regularization of the load of the sugar mill fed from the

TG Sets, the Chief Engineer, Commercial, would not have

granted such permission in the memo dated 08.12.1992.

Alternatively, even if the appellant had refused to comply

with some conditions in the Circular No.CC 23/90, the

Chief Engineer, Commercial did not consider such refusal

to disentitle the appellant for regularization of the

installation of the TG Set and permitted the installation of

the TG Sets by the memo dated 08.12.1992.

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12. We further find from the aforesaid extract from the

demand notice dated 01.06.1993 that for the

unauthorized load, a demand has been made at the rate

of Rs.1,000/- per KW in accordance with Clause 8-b of the

Schedule of Tariff applicable to the sugar mill of the

appellant as notified in the Commercial Circular No.12/89.

Clause 8-b of the Schedule of Tariff as notified in the

Commercial Circular no.12/89 is extracted hereinbelow:

“SCHEDULE OF TARIFF:

i. Schedule L.S. – Large Industrial Power Supply 1 to 7.

8. …………….. ‘8-b. If the connected load of a consumer exceeds the sanctioned connected load, the excess load shall be unauthorized load. Such excess of the connected load shall be charged load surcharge at an additional rate of Rs.1000/- per KW for each subsequent default.”

It will be clear from Clause 8-b of the Schedule of Tariff

that if the connected load of a consumer exceeds the

sanctioned connected load, the excess load shall be

unauthorized load and such excess connected load shall

be charged at additional rate of Rs.1000/- per KW for each

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subsequent default. If, therefore, any load is sanctioned

by the appropriate authority of respondent no.1-Board,

such load cannot be held to be unauthorized load or

excess load liable to surcharge at the rate of Rs.1000/- per

KW. As we have already found, on 08.12.1992, the Chief

Engineer, Commercial, has sanctioned or permitted or

regularized the installation of two TG Sets and hence the

load of 3187.500 KW of the TG Set detected on

19.12.1992 was a sanctioned load and was not an

unauthorized load for which the appellant can be charged

load surcharge at the rate of Rs.1000/- per KW under

Clause 8-b of the Schedule of Tariff.

13. Once we hold that the load of the TG Sets was

sanctioned and authorized, the appellant could not be held

liable for load surcharge under clause 8-b of the Schedule

of Tariff for the load of the TG Set, even if by the aid of

bus coupler, inter-transferability of load could be effected

between the TG Set of the appellant and the energy

supplied by the respondent no.1-Board. For the

consumption of energy from the supply of the respondent

no.1, the appellant was liable for every unit of energy

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consumed to the respondent no.1. For demand of energy,

the appellant being a sugar mill was also liable for

demand charges with minimum contract demand of not

less than the capacity of the distribution transformer(s)

installed by the appellant and not 60% of the connected

load as stated in the Commercial Circular Nos.12/89 and

23/90. What the learned Single Judge and Division Bench

of the High Court failed to appreciate is that the appellant

was separately liable for energy charges and demand

charges to the respondent no.1 for consumption of energy

and demand of energy respectively under the Schedule of

Tariff and the levy of load surcharge at the additional rate

of Rs.1000/- per KW was only meant for a load of the

consumer which was unauthorized or not sanctioned and if

a particular load of a consumer is sanctioned or

authorized, load surcharge at additional rate of Rs.1000/-

per KW could not be levied under Clause 8-b of the

Schedule of Tariff.

14. Learned counsel for the respondents vehemently

submitted that the permission to install the TG Sets

granted by the memo dated 08.12.1992 by the Chief

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Engineer, Commercial of the respondent no.1 was subject

to various conditions mentioned in the memo dated

08.12.1992 and these conditions have not been fulfilled by

the appellant. Learned counsel for the respondents is

right that since the permission to install the TG Sets was

granted by the memo dated 08.12.1992 subject to various

conditions, the load of the TG Sets installed could not be

said to be sanctioned or authorized if the conditions in the

memo dated 08.12.1992 were not fulfilled. It was,

therefore, open to the respondents to treat the load of the

TG Set as unauthorized on the ground that the conditions

in the memo dated 08.12.1992 permitting the installation

of the TG Sets were not fulfilled. But neither in the first

demand notice dated 10.12.1992 nor in the second

demand notice dated 01.06.1993 of the Sub-Divisional

Officer of the respondent no.1 raising the demand for

unauthorized load for the TG Set, there is any mention

that the demand for unauthorized load was being raised

because the appellant had not fulfilled the conditions

mentioned in the memo dated 08.12.1992 of the Chief

Engineer, Commercial of the respondent no.1. In the

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demand notice dated 10.12.1992 of the Sub-Divisional

Officer of the respondent no.1, the only reason given for

raising the demand for unauthorized load was that the TG

Set load “has not yet been sanctioned by the Board”.

After the High Court quashed the first demand notice

dated 10.12.1992 in CWP No.370 of 1993, leaving it to the

respondent no.1 to pass afresh an appropriate order, the

Sub-Divisional Officer issued the second demand notice

dated 01.06.1993, but in this lengthy second demand

notice also it has not been stated that the demand for

unauthorized load for the TG Set was being made because

the appellant has not fulfilled the conditions mentioned in

the memo dated 08.12.1992 of the Chief Engineer,

Commercial of the respondent no.1. In fact, in the two

demand notices dated 10.12.192 and 01.06.1993 no

reference at all has been made to the memo dated

08.12.1002 of the Chief Engineer, Commercial of the

respondent no.1.

15. In the result, these appeals are allowed. The

impugned orders of the learned Single Judge and the

Division Bench of the High Court are set aside and the

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demand raised against the appellant in the demand notice

dated 01.06.1993 and the demand notice dated

12.06.2009 for unauthorized load of the TG Set is

quashed. The parties shall bear their own costs.

..……………..……………………….J. (A. K. Patnaik)

...…………..………………………..J.

(Sudhansu Jyoti Mukhopadhaya)

New Delhi, January 23, 2013.

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