IN THE COURT OF OMBUDSMAN, ELECTRICITY PUNJAB,
66 KV GRID SUBSTATION, PLOT NO. A-2, INDL. AREA,
PHASE-I, S.A.S. NAGAR, MOHALI.
APPEAL No.12/2014
Date of order: 03.07./2014
M/S VERMA BANSAL & ASSOCIATES,
PLOT NO. 22, INDUSTRIAL AREA,
PHASE-IX, MOHALI.
……………..PETITIONER
.
Account No.59/456
Through:
Sh. R.S. Dhiman, Authorised Representative
Sh. Naresh Kumar, Bansal.
VERSUS
PUNJAB STATE POWER CORPORATION LIMITED.
…….….RESPONDENTS.
Through
Er. A.K. Sharma,
Addl.Superintending Engineer
Operation Division,
P.S.P.C.L. Mohali.
Er. Jaspal Singh,AEE/Commercial.
Petition No. 12/2014 dated 27.02.2014 was filed
against order dated 26.02.2014 of the Grievances Redressal Forum
(Forum) in
case
No. CG-157 of 2013 directing that the revised
notice of Provisional Assessment should be issued by Addl.
S.E./Operation, PSPCL Mohali and final assessment be made as
2
per provisions of Electricity Act-2003 (EA-2003) & Supply Code2007. It was also directed that the final order of assessment be
issued after referring to the various pleadings made by the petitioner
as per Supply Code/ESIM.
2.
Arguments, discussions and evidences on record were
held on 03.07.2014.
3.
Sh. R.S. Dhiman, authorised representative alongwith
Sh. Naresh Bansal attended the court proceedings on behalf of the
petitioner.
Er.
A.
.K.
Sharma,
Addl.
Superintending
Engineer/Operation Division, PSPCL Mohali alongwith Sh. Jaspal
Singh, AEE/Commercial appeared on behalf of the respondent,
Punjab State Power Corporation Limited (PSPCL).
4.
Sh. R.S. Dhiman, the petitioner’s counsel (counsel)
submitted that the petitioner purchased plot No. 22, Industrial Area,
Phase-IX Mohali in the year 2004 which was transferred in her
name through memo No. PSIEC/Estate/14.46 dated 21.12.2013. A
Medium Supply electricity connection having sanctioned load of
44.760 KW bearing Account No. MS-59/456 was already running in
this plot in the name of Sh. Harpal Singh. The petitioner was paying
electricity bills regularly. The factory’s premises remained locked for
most of the time between 2010 to June, 2011. Virtually, there was
no work in the factory and almost all the bills were paid on the basis
of Monthly Minimum Charges (MMC). In mid of 2011, a partnership
firm was formed by the petitioner and according to business plans of
new partnership Firm, construction of the plot was started.
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Accordingly, the petitioner undertook construction work of repairs,
renovation and modification of the building
according to
his
requirements. During construction of the plot, a load of 1.273 KW
was used by the petitioner, out of the total sanctioned load of 44.760
KW. Addl. S.E./Enforcement, Mohali checked this connection on
08.06.2012
and it was reported in its Enforcement Checking
Register (ECR) dated 08.06.2012 that the petitioner was indulging in
unauthorized use of electricity (UUE) as the total load of 1.273 KW
found connected by him was being used for construction of building
and advised to take action against the petitioner under Regulation 36 of the Supply Code.
On the basis of enforcement report, a
provisional order of assessment for Rs. 78149/- was issued to the
petitioner by the Addl. SE/Operation, Mohali through its memo No.
6309 dated 14.08.2012 calculating the tariff applicable under NRS
category.
The
Settlement
petitioner
Committee
filed
(DSC)
objections
which
before
upheld
the
Dispute
charges.
Accordingly, final order of assessment for the same amount i.e. Rs.
78149/- was issued by the Addl. SE/Operation, Mohali on
25.09.2012 and the amount was deposited as per advice of the Sr.
Xen.
Thereafter, the audit party checked and
petitioner’s accounts and pointed out that
overhauled the
a sum of Rs. 2,81,286/-
are more chargeable as the connection was required to be charged
at double rate of the tariff applicable for temporary connections.
Accordingly, the demand was raised against the petitioner by the
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Addl. SE/Operation in its memo No. 1477 dated 10.06.2013. As this
notice was issued under Section-126 of the EA-2003 treating the
use of electricity as un-authorised, the petitioner filed an appeal
before the Addl. D.C. Mohali.. During proceedings before the ADC,
the respondents explained that the disputed amount was charged by
applying tariff for temporary connections instead of MS
tariff.
Declaring it a case of change of tariff, and not of un-authorised use
of electricity, the ADC dismissed the appeal and directed the
petitioner to approach the appropriate departmental Dispute
Settlement Committee for redressal of his grievances.
The case
was represented before the Forum which decided that fresh notice
may be issued. The decision of the Forum is based on the premise
that it is a case of un-authorised use of electricity under section-126
of EA-2003 while the petitioner’s plea all along has been that it is not
so. The case squarely falls within the ambit of Electricity Supply
Instructions Manual (ESIM) 8.3, which is extracted hereunder:“consumers temporarily requiring additional load for
construction purposes will be allowed to use load from the existing
connection provided the total connected load in case of SP, MS or
DS/NRS consumers with load upto 100 KW will not exceed
sanctioned load. In case of LS, BS and DS/NRS consumers, having
load in excess of 100 KW, the sanctioned Contract Demand (CD)
will not be exceeded.”
A simple reading of this instruction will show that use of
some load by a consumer from his regular connection for
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construction purpose is perfectly lawful provided the total load
remains within the sanctioned limit.
In the present case, the
petitioner’s connected load was only 1.273 KW which is well within
the sanctioned limit of 44.760 KW whereas the petitioner was paying
Minimum Monthly Charges ((MMC) for full load. The petitioner was
using only 1.273 KW for construction purposes and the balance of
the load was not in use at all.
This fact is also evident from
Checking report itself wherein only 1.273 load was found connected.
There was no industrial activity at that point of time due to
construction/renovation of the building. As such, the presumption of
Forum that the petitioner was indulging in
un-authorised use of
electricity under section-126 of EA-2003 is wrong and misplaced.
There is no other such Regulation of PSPCL directing the consumers
to take any kind of approval from the department before use of load
for construction purposes.
He next submitted that
later on the
respondents PSPCL have clarified the issue vide Commercial
Circular No. 37/2013 to avoid such type of disputes according to
which, the consumers can use their load for construction purposes.
ADC, Mohali has rightly held that the petitioner’s case is not one of
un-authorised use of electricity under section-126 of EA-2003 and
has refused to entertain the petitioner’s appeal. The Forum on the
other hand, has again thrown it in the domain of section-126 of EA2003 by directing Addl. SE/Operation Mohali to issue a revised
notice and then a final order of assessment after hearing the
petitioner. Addl. SE/Operation, Mohali has already declared it a case
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of un-authorised use of electricity.
Though the applicability of
section-126 of EA-2003 to the petitioner’s case is not admitted, the
respondents brazen attitude towards the petitioner is evident from
the fact that charges for un-authorised use of electricity have been
computed on the full sanctioned load of 44.760 KW at double rate
applicable for temporary connection instead of the actual load of
1.273 kW found connected by the Addl. S.E./Enforcement especially
when the petitioner is paying
regular bills on MMC for not
consuming energy even a single unit for industry. Thus, the demand
raised is against the Rules, departmental instructions and is illegal.
However, in case, it is found to be chargeable under any provision
of law, the same could be charged only on the connected load i.e.
1.273 KW found at the time of checking. In the end, he prayed that
the charges raised against the petitioner by wrongly treating its case
under section-126 of EA-2003 instead of ESIM 8.3 may be
set
aside and allow the petition. .
6.
Er. A. K. Sharma, Addl. Superintending Engineer,
Mohali representing the respondents submitted that the connection
of the petitioner was checked by Addl. S.E./Enforcement, Mohali
on 08.06.2012
vide Enforcement Checking Register (ECR) No.
97/27. It was reported that the entire load checked at site was being
used for construction of building and no industrial activity was in
progress.
The supply was being used for temporary connection
purpose i.e. for construction of building and the case was declared
as Un-authorised Use of Electricity (UUE) under Regulation 36 of
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the Supply Code. On the basis of enforcement report, Addl.
SE/Operation, Mohali issued Provisional Order of Assessment for
UUE through its memo No. 6309 dated 14.08.2012 for an amount of
Rs. 78,149/- under section 126 of Electricity Supply Act ( EA2003). After hearing the case on 24.08.2012, Addl. SE/Operation,
Mohali issued Final Order of Assessment
amount of Rs. 78,149/-.
on 25.09.2012 for an
The petitioner deposited the assessed
amount in installments.
He next submitted that the Audit Party vide its Half
Margin No. 88 dated 29.05.2013
observed that penalty against
checking of Enforcement Wing dated 08.06.2012 was required to be
calculated by applying temporary tariff instead of NRS tariff. The
audit pointed out difference of Rs. 2,81,286/- recoverable from the
petitioner.
Thereafter, the AEE/Commercial, Mohali
issued the
notice No. 1477 on 10.06.2013 asking the petitioner to deposit the
amount of Rs. 2,81,286/-.
The petitioner did not agree with the
demand
filed
so
raised
and
Dy.Commissioner, (ADC)
an
appeal
before
Asstt.
Mohali under section 127 of EA-2003.
ADC, Mohali observed that the petitioner had already deposited the
amount of penalty charged for UUE and additional amount of Rs.
2,81,286/- has been raised as per audit report and as such, the
case relates to calculation of Tariff and directed the petitioner to file
fresh appeal with DSC.
He next submitted that in accordance with the provision
of ESIM-8, in case any consumer is found using his load for the
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purpose other than it was sanctioned, his load is to be treated as
UUE and tariff at double rate of applicable slab is to be charged. In
the present case, the petitioner was found using load for purposes
other than for which it was sanctioned. Therefore, this case clearly
falls under the ambit of un-authorised use of electricity and has been
correctly charged. Regulations provides that the consumers using
load for other purposes are required to give pre-intimation to the
department so that the supply being used for temporary purposes
can be metered and billed accordingly in accordance with rules. But
no such intimation was given by the petitioner in the present case.
The petitioner had concealed the fact of consuming power for
temporary purposes just to avoid payment of bills at higher rate. The
case was represented before the Circle Dispute Settlement
Committee
which was rejected.
An appeal was filed before the
Forum, but the petitioner could not get any relief. He requested that
the appeal of the petitioner may be dismissed.
6.
I have carefully gone through the written submissions
made in the petition, written reply of the respondents, oral arguments
of the petitioner and the representative of PSPCL as well as other
material brought on record. It is apparent from the submissions of
both the parties that the connection of the petitioner was checked by
Enforcement vide ECR No: 97/27 dated 08.06.2012 wherein only a
part load of 1.273 KW, out of the total sanctioned load of 44.76 KW
was found being used for construction purposes. Thus full
sanctioned load was not being used by the petitioner. Prior to the
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date of checking, the petitioner was being issued electricity bills on
the basis of MMC which were duly paid by him. After checking,
provisional assessment order for Rs. 78149/- under section 126 of
Electricity Act 2003 was made. The assessed amount as per Final
Assessment order was deposited by the petitioner. Thereafter, the
respondents overhauled the account of the petitioner on the basis of
audit report dated 29.05.2013 and raised an additional demand of
UUE of Rs. 2,81,286/- on account of difference of tariff between
NRS category and Temporary
category . Not agreeing with the
demand, an appeal was filed in the special court of ADC Mohali
which decided that the petitioner has already deposited the amount
against final assessment order and as such at present this case
relates to calculation of tariff only and directed the petitioner to file
fresh appeal with DSC. In compliance, an appeal was filed in Forum
which was decided by Forum on 26.02.2014. Thus segregating the
issue of calculation of tariff from UUE under section 126 of EA-2003,
this decision is against Forum’s decision dated 26.02.2014 on the
sole issue of calculation of tariff.
Additional S.E., representing
PSPCL justified the overhauling of the account relying upon clause-8
of ESIM and during the course of proceedings, he argued that
demand for the disputed period had correctly been raised for
difference of tariff as applicable in the case of temporary supply for
unauthorized use of electricity under Section 126 of the Electricity
Act. Contrary to this, the petitioner’s representative argued that the
respondents have unnecessarily made, a case of UUE whereas this
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is not a case of UUE at all. The petitioner is having a sanctioned
load of 44.76 KW for industrial purpose which was not being used
due to construction work being carried out in the premises. Out of
this sanctioned load only 1.273 KW of load was being used for
construction purposes. The use of load for temporary purposes is
duly permitted as per provisions of ESIM 8.3 provided the total
sanctioned load remained within the sanctioned limit.
The
petitioner’s load remained within the sanctioned load after installation
of temporary load hence there is no violation of ESIM 8.3 and thus
charging him for UUE is illegal and violative to existing rules
especially when the petitioner is paying electricity bills in thousands
of rupees every month on the basis of MMC for consuming few units
of energy. He also argued that no Rule of the respondents provides
for separate connection for construction purposes in case the
consumer is already having a permanent connection.
During further arguments, the ASE could not bring any
rule/codal provisions, regulation or commercial instructions on record
justifying the charging of tariff applicable for temporary load on full
sanctioned load.
In the absence of any such codal provisions, the
respondents cannot charge temporary tariff at double rate on full
sanctioned load. To conclude, it is directed that tariff applied may be
recalculated in two parts. 1st part comprising of MMC on the basis
of sanctioned load for industrial purposes minus load used for
temporary purposes viz (44.76 KW – 1.273 KW) under schedule of
tariff for MS category. 2nd part being consumption charges on actual
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consumption as recorded by meter at applicable tariff schedule for
temporary supply at double rate, or monthly minimum charges for
1.273 KW load at double rate under relevant schedule, whichever is
higher. I also further hold that the respondents are at liberty to take
any other action, if required, under the provisions of section 126 of
Electricity Supply Act-2003.
The judgment announced by ADC
Mohali is not interfered in any manner.
The respondents are
directed that account of the petitioner be overhauled accordingly and
amount excess / short, after adjustment, if any, may be recovered /
refunded from / to the petitioner with interest under the relevant
provisions of ESIM - 114.
7.
The appeal is partly allowed.
Place: S.A.S. Nagar.
Dated: 03-07-2014
( MOHINDER SINGH ),
Ombudsman,
Electricity Punjab,
S.A.S. Nagar (Mohali)