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Judgment
Regard being had to the similitude in the controversy involved in the present cases, the writ appeals were analogously heard and by this Common Judgment, they are being disposed of by this Court.
The present writ appeals are arising out of a common order, dated 15.04.2015 passed in W.P.Nos.23048 of 2012 and batch allowing the writ petitions preferred by different small scale industrial units.
The facts of W.A.No.104 of 2018 are as follows:-
The facts of the case reveal that the respondent No.1 in the present writ appeal (writ petitioner) has preferred a writ petition stating that it is a Private Limited Company and has established a composite industrial unit in Kothur Industrial Estate, Teegapur Village, Shadnagar Mandal, Mahabubnagar District. The unit is engaged in the production of M.S. Ingots and other allied products and as the electricity is one of the raw material used in the production of M.S.Ingots, the petitioner company obtained High Tension Power Supply connection with contracted maximum demand of 5400 KVA. Subsequently, the petitioner company applied for additional load of 4600 KVA and the same was sanctioned on 04.05.2005 on a demand of Rs.69,00,000/- (Rupees sixty nine lakhs only) towards development charges. The petitioner company came up before the learned Single Judge for issuance of an appropriate writ, order or direction directing the respondents not to collect the development charges for the additional contracted demand of 4600 KVA CMD as it was contrary to the Andhra Pradesh Electricity Regulatory Commission (Licensee’s Duty for Supply of Electricity on Request) Regulation, 2004. The learned Single Judge by common order, dated 15.04.2015 passed in W.P.Nos.23048 of 2011 and batch has allowed the writ petitions keeping in view the earlier common order passed in identical cases i.e., W.P.No.4010 of 2005 and batch, dated 05.10.2005.
In order to adjudicate the controversy involved in the present cases, statutory provisions as contained in the Electricity Act, 2003 are required to be looked into.
The Electricity Act, 2003 came into force with effect from 26.05.2003 and the earlier Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 were repealed. Section 185(2)(d) of the Electricity Act, 2003 provides that the rules made under Section 69(1) of the Electricity (Supply) Act, 1948 shall continue to have effect until such rules are rescinded or modified, as the case may be and therefore, by virtue of the aforesaid statutory provision of law, the terms and conditions of supply framed by erstwhile Andhra Pradesh Electricity Board under Section 69(1) of the Electricity (Supply) Act, 1948 continued to be in force till new terms and conditions were framed in terms of the provisions of the Electricity Act, 2003. The appellants before this Court i.e., Central Power Distribution Company is the licensee under the provisions of the Electricity Act, 2003.
Section 43(2) of the Electricity Act, 2003 casts a duty upon every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1). Section 46 of the Electricity Act, 2003 empowers the State Commission to make Regulations in respect of the charges payable by the consumers for getting electricity supply and also empowers the distribution licensee to recover expenses in providing any electric line or electrical plant used for the purpose of giving supply of electricity.
The relevant provisions as contained in the Electricity Act, 2003, which are necessary to decide the present writ appeals are reproduced as under:-
“2(46). "Notification" means notification published in the Official Gazette and the expression "notify" shall be construed accordingly;
Duty to supply on request. – (1) Save as otherwise provided in this Act, every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply:
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission:
Provided further that in case of a village or hamlet or area wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
Explanation.--For the purposes of this sub-section, "application" means the application complete in all respects in the appropriate form, as required by the distribution licensee, along with documents showing payment of necessary charges and other compliances.
(2) It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section (1):
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
(3) If a distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default.
Power to recover expenditure.-- The State Commission may, by regulations, authorise a distribution licensee to charge from a person requiring a supply of electricity in pursuance of section 43 any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of giving that supply.
Agreements with respect to supply or purchase of electricity.-Where the Appropriate Commission has allowed open access to certain consumers under section 42, such consumers, notwithstanding the provisions contained in clause (d) of sub-section (1) of section 62, may enter into an agreement with any person for supply or purchase of electricity on such terms and conditions (including tariff) as may be agreed upon by them.
Powers of Appropriate Commission.-- (1) The Appropriate Commission shall, for the purposes of any inquiry or proceedings under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) discovery and production of any document or other material object producible as evidence;
(c) receiving evidence on affidavits;
(d) requisitioning of any public record;
(e) issuing commission for the examination of witnesses;
(f) reviewing its decisions, directions and orders;
(g) any other matter which may be prescribed.
(2) The Appropriate Commission shall have the powers to pass such interim order in any proceeding, hearing or matter before the Appropriate Commission, as that Commission may consider appropriate.
(3) The Appropriate Commission may authorise any person, as it deems fit, to represent the interest of the consumers in the proceedings before it.
Powers of State Governments to make Rules.-- (1) The State Government may, by notification, make rules for carrying out the provisions of this Act.
(2) In particular and without prejudice to the generality of foregoing power, such rules may provide for all or any of the following matters, namely:--
(a) the payment of fees for application for grant of licence under sub-section (1) of section 15;
(b) the works of licensees affecting the property of other persons under sub-section (2) of section 67;
(c) such other matters which may be prescribed under clause (c) of sub-section (2) of section 68;
(d) the salary, allowances and other terms and conditions of service of the Chairperson and Members of the State Commission under sub-section (2) of section 89;
(e) the form and manner in which and the authority before whom oath of office and secrecy should be subscribed under sub-section (3) of section 89;
(f) any other matter required to be prescribed by the State Commission under clause (g) of sub-section (1) of section 94;
(g) the manner of applying the Fund under sub-section (3) of section 103;
(h) the form in which and time at which the State Commission shall prepare its annual accounts under sub-section (1) of section 104;
(i) the form in which and time at which the State Commission shall prepare its annual report under sub-section (1) of section 105;
(j) the form in which and time at which the State Commission shall prepare its budget under section 106;
(k) manner of service of provisional order of assessment under sub-section (2) of section 126;
(l) manner of holding inquiry by an adjudicating officer under sub-section (1) of section 143;
(m) the form in which and the time at which notice to the Electrical Inspector under sub-section (1) of section 161;
(n) the manner of delivery of every notice, order or document under sub-section (1) of section 171; and
(o) any other matter which is required to be, or may be, prescribed.
Powers of State Commissions to make regulations.—(1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for all or any of the following matters, namely:
(a) period to be specified under the first proviso to section 14;
(b) the form and the manner of application under sub-section (1) of section 15;
(c) the manner and particulars of application for licence to be published under sub-section (2) of section 15;
(d) the conditions of licence section 16;
(e) the manner and particulars of notice under clause (a) of sub-section (2) of section 18;
(f) publication of the alterations or amendments to be made in the licence under clause (c) of sub-section (2) of section 18;
(g) levy and collection of fees and charges from generating companies or licensees under sub-section (3) of section 32;
(h) rates, charges and the terms and conditions in respect of intervening transmission facilities under proviso to section 36;
(i) payment of the transmission charges and a surcharge under sub-clause (ii) of clause (d) of sub-section (2) of section 39;
(j) reduction of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 39;
(k) manner and utilisation of payment and surcharge under the fourth proviso to sub-clause (ii) of clause (d) of sub-section (2) of section 39;
(l) payment of the transmission charges and a surcharge under sub-clause (ii) of clause (c) of section 40;
(m) reduction of surcharge and cross subsidies under second proviso to sub-clause (ii) of clause (c) of section 40;
(n) the manner of payment of surcharge under the fourth proviso to sub-clause (ii) of clause (c) of section 40;
(o) proportion of revenues from other business to be utilised for reducing the transmission and wheeling charges under proviso to section 41;
(p) reduction of surcharge and cross-subsidies under the third proviso to sub-section (2) of section 42;
(q) payment of additional charges on charges of wheeling under sub-section (4) of section 42;
(r) guidelines under sub-section (5) of section 42;
(s) the time and manner for settlement of grievances under sub-section (7) of section 42;
(t) the period to be specified by the State Commission for the purposes specified under sub-section (1) of section 43;
(u) methods and principles by which charges for electricity shall be fixed under sub-section (2) of section 45;
(v) reasonable security payable to the distribution licensee under sub-section (1) of section 47;
(w) payment of interest on security under sub-section (4) of section 47;
(x) electricity supply code under section 50;
(y) the proportion of revenues from other business to be utilised for reducing wheeling charges under proviso to section 51;
(z) duties of electricity trader under sub-section (2) of section 52;
(za) standards of performance of a licensee or a class of licensees under sub-section (1) of section 57;
(zb) the period within which information to be furnished by the licensee under sub-section (1) of section 59;
(zc) the manner of reduction of cross-subsidies under clause (g) of section 61;
(zd) the terms and conditions for the determination of tariff under section 61;
(ze) details to be furnished by licensee or generating company under sub-section (2) of section 62;
(zf) the methodologies and procedures for calculating the expected revenue from tariff and charges under sub-section (5) of section 62;
(zg) the manner of making an application before the State Commission and the fee payable therefor under sub-section (1) of section 64;
(zh) issue of tariff order with modifications or conditions under sub-section (3) of section 64;
(zi) the manner by which development of market in power including trading specified under section 66;
(zj) the powers and duties of the Secretary of the State Commission under sub-section (1) of section 91;
(zk) the terms and conditions of service of the secretary, officers and other employees of the State Commission under sub-section (2) of section 91;
(zl) rules of procedure for transaction of business under sub-section (1) of section 92;
(zm) minimum information to be maintained by a licensee or the generating company and the manner of such information to be maintained under sub-section (8) of section 128;
(zn) the manner of service and publication of notice under section 130;
(zo) the form of preferring the appeal and the manner in which such form shall be verified and the fee for preferring the appeal under sub-section (1) of section 127;
(zp) any other matter which is to be, or may be, specified.
(3) All regulations made by the State Commission under this Act shall be subject to the condition of previous publication.
Rules and regulations to be laid before State Legislature:- Every rule made by the State Government and every regulation made by the State Commission shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.”
The Regulatory Commission, as constituted under the Electricity Act, 2003, is empowered to make Regulations and the Regulatory Commission, after following due process of law, has framed Regulation No.3 of 2004 i.e., Andhra Pradesh Electricity Regulatory Commission (Licensee’s Duty for Supply of Electricity on Request) Regulation, 2004. The aforesaid Regulation No.3 of 2004 came into force with effect from 05.06.2004 and the Clause 5 of the Regulation No.3 of 2004 empowers the distribution licensee to recover the expenditure. Regulation No.3 of 2004 provides that no development charges were permitted to be collected from the consumers for new connections or for the additional load consumed than the contracted demand.
Clauses 5 to 11 of the Regulation No.3 of 2004 are reproduced as under:-
“5. Right of the Distribution Licensee to recover expenditure:-
(1) The Distribution Licensee shall, unless otherwise specified in this Regulation or otherwise by an order of the Commission fulfil the obligation to supply electricity to the premises, without claiming any payment or reimbursement by the applicant for any expenditure, if such expenditure has been incurred or is to be incurred by the Distribution Licensee in terms of or under any scheme approved by the Commission or when such expenditure is otherwise allowed to be recovered by the Distribution Licensee as a part of the revenue requirements of the Distribution Licensee.
(2) Subject to the provisions or Act and this Regulation and subject to such directions, orders or guidelines the Commission may issue from time to time, every Distribution Licensee is authorised to recover from an applicant, requiring supply of electricity, any expenses that the Distribution Licensee shall be required to reasonably incur in addition to those specified in sub-clause (1) above to provide any electric line or electrical plant specifically for the purpose of giving such supply to the applicant.
(3) Before taking up the erection of electric line or electrical plant required for extending supply to the applicant, the Distribution Licensee shall estimate the charges for erecting such electric line or electrical plant and present the same to the applicant.
(4) In the event the electricity supply is required by two or more applicants in the same area through extension of common Electric Line and Electric Plant and the expenditures in respect thereof are not covered by sub-clause (1) above, the Distribution Licensee shall apportion such expenditure amongst all such applicants.
(5) The Commission may from time to time and by a general or special order the extent to which the Distribution Licensee shall install, establish or extend the Distribution Main, the electric Line and Electric Plant as a part of a scheme to be implemented by the Distribution Licensee or otherwise to be undertaken and the expenditure to be covered as a part of the revenue requirements of the Distribution Licensee to be recovered from the Tariffs to be determined by the Commission.
Specific provision for Low Tension Supply
The following provisions shall apply for low-tension
(a) In case of applications for Low Tension supply where such supply requires only laying the service line from the existing distributing main to the consumer’s premises, the Distribution licensee shall estimate the cost of service line and the cost of terminal and metering arrangements at the premises of the consumer, but not including the cost of meter.
(b) In case of applications where there is a need to erect new electrical plant such as the distribution transformer (DTR) along with switch-gear etc., for extending supply to the applicant for Low Tension connection, the licensee shall estimate the cost of electrical plant as follows:
Cost of the works of erection of DTR including switch-gear (in Rupees) = P
Rated capacity of DTR (KVA) = Q
Cost per KVA (in Rupees) = P/Q]
Contracted load (HP)/Demand (KVA) of the applicant = K
Amount payable by applicant towards electrical plant (in Rupees) = K*(P/Q)
Provided that the Distribution licensee shall estimate the cost of electrical plant based on the latest cost data as published by the Distribution licensee.
(c) In case of applications where there is a need to erect or extend the 11 KV line in order to erect a distribution transformer and extend supply to the applicant, the Distribution licensee shall estimate the cost of such section of 11 KV line on a per kilometre basis based on the latest cost data as published by the Distribution licensee.
Specific Provision for High Tension supply
The following provisions shall apply for high-tension supply
(a) In case of applications for new connections, where such supply requires only extension of High Tension line from the existing distributing main to the consumer’s premises, the Distribution licensee shall estimate the cost of service line and the cost of terminal and metering arrangements at the premises of the consumer, but not including the cost of meter and Current Transformer and/or Potential Transformer used for metering; the Distribution Licensee shall estimate the cost of service line on per kilometre basis and the cost of metering arrangements based on the latest cost data as published by the Distribution Licensee.
(b) In case of applications where there is a need to erect a new power transformer or augment the capacity of existing power transformer with or without bay extension at a 33/11 KV substation for extending supply to the applicant, the Distribution Licensee shall estimate the cost of the works involved in the same way as indicated in sub-clause 6(b) above.
(c) In case of applications where there is a need to erect a new 33/11 KV substation in order to extend supply to an individual applicant, the Distribution licensee shall estimate the cost of such subsection as per the latest cost data published by the Distribution licensee.
Specific provision for Extra High Tension Supply The following provisions shall apply for extra high tension supply
(a) In case of applications for new connections, where such supply requires only extension of Extra High Tension line from the existing transmission substation to the consumer’s premises, the Distribution licensee shall estimate the cost of service line and the cost of terminal and metering arrangements at the premises of the consumer, but not including the cost of meter and Current Transformer and/or Potential Transformer used for metering. The Distribution licensee shall estimate the cost of line on per kilometre basis and the cost of metering arrangements based on the latest cost data as published by the transmission licensee.
(b) In case of applications where it is required to erect a new power transformer or augment the capacity of existing power transformer with or without bay extension at a transmission substation, for extending supply to the applicant, the licensee shall estimate the cost of the works involved in the same way as indicated in sub-clause 6(b) above.
Standard cost data
(1) The Distribution licensee shall on an annual basis publish a cost data book by 1st April of the year, which shall be the basis of making the initial estimate for erection of electric line or electrical plant in order to extend supply to the applicant.
(2) The Distribution licensee shall make available the copies of the cost data book to the general public on demand at a reasonable charge.
Security for providing electric line or electrical plant
The Distribution licensee is authorised to demand security from the applicants for the purpose of erecting electric line or electrical plant for extending supply, as per the Regulation prescribed under Section 47 of the Act.
Manner of accounting and adjustments
(1) The Distribution licensee shall maintain records of all expenditure actually incurred by him in extending supply to the applicant and shall carry out the adjustments for security, recovery of excess expenditure or refunds thereof, in accordance with the Regulation prescribed under Section 47 of the Act.
(2) The Distribution licensee shall account, under appropriate account heads, all charges recovered by him for erection of electric line for extending supply to the applicant seeking new connection. The amounts so recovered shall be deducted from the Gross Fixed Assets to arrive at the value of Net Fixed Assets.
(3) The Distribution licensee shall complete the finalisation of expenses and adjustment for differences and present the detailed statement of expenses to the consumer within a period of one month from the date of release of supply.”
The Central Power Distribution Company, which is the appellant before this Court, after the Regulations were framed and were notified by publishing them in Official Gazette, preferred a Review Petition before the Andhra Pradesh Regulatory Commission and a common order was passed on 19.02.2005 in R.P.Nos.1 to 4 of 2005 permitting the Central Power Distribution Company to collect charges, which they were collecting prior to coming into force of Regulation No.3 of 2004. The common order, dated 19.02.2005 is reproduced as under:-
“1. These petitions are filed under Section 94 (2) of the Electricity Act, 2003.
Four separate review petitions - R.P.Nos.1, 2, 3 and 4 of 2005 have been filed, one each by the abovementioned four petitioners seeking similar relief on similar and identical grounds. Each of the petitioners in their respective review petitions has sought for amendment of Andhra Pradesh Electricity Regulatory Commission (Licensee's Duty For Supply Of Electricity On Request) Regulation, 2004 (Regulation 3 of 2004) published in the A.P. Official Gazette on 05.03.2004 (hereinafter, Regulation No.3 of 2004), specifically the provisions relating to recovery of expenditure for providing electric line or electrical plant.
Pending disposal of all the four review petitions, each of the four petitioners filed interlocutory applications - I.A.Nos.25, 26, 27 and 28 of 2005 - for stay of operation of the relevant provisions of Regulation No.3 of 2004 relating to recovery of expenditure for providing electric line or electrical plant.
One of the main grounds advanced by the petitioners during the course of hearing is that implementation of provisions of Regulation No.3 of 2004 is resulting in discrimination between the same class of consumers, in respect of recovery of charges from them for supply of electricity on demand.
On due consideration, the Commission is of the opinion, that a prima-facie case is made out by the petitioners. Therefore, the Commission is of the view that it is essential in the interest of justice that the clauses 5 to 11 of Regulation No.3 of 2004 are required to be suspended with immediate effect to avoid any possible discrimination in implementation of provisions of Regulation No.3 of 2004 entitling the petitioners to collect charges during the period of suspension of the provisions of the Regulation as they were collecting prior to the coming into force of the Regulation No3 of 2004. However, during the period of suspension, the charges collected by each of the petitioners for supply of electricity on demand to any consumer shall be subject to the final result of the main review petitions (R.P.Nos.1, 2, 3 and 4 of 2005). In the result, all these applications are allowed suspending the operation of the clauses 5 to 11 of Regulation No.3/2004 till disposal of the main review petitions.”
Finally, the review petitions were allowed by order, dated 24.08.2005 deleting clauses 5 to 11 of the Regulation No.3 of 2004 and it was also observed that they shall continue to remain applicable till a separate Regulation under Section 46 of the Electricity Act, 2003 is issued by the Commission. It is an undisputed fact that after deleting clauses 5 to 11 of the Regulation No.3 of 2004, the procedure prescribed for enforcing the Regulation was not followed at all.
Before the learned Single Judge, it was vehemently argued that Regulatory Commission does not have the power to review Regulations as has been done in the matter and the learned Single Judge has allowed the writ petitions. The other important aspect of the cases is that while deleting Clauses 5 to 11 of the Regulation No.3 of 2004, they were deleted with retrospective effect.
The learned Single Judge has held that the Commission does have the power to review its decision and in the instant case while allowing the review petitions filed by the appellant company, no publication was carried out as required under Section 181(3) of the Electricity Act, 2003. Not only this, Section 182 of the Electricity Act, 2003 was also not complied with and in those circumstances, the learned Single Judge has passed the following order:-
“From the above, it is clear that Clauses 5 to 11 stand deleted from the date of Regulation 3 of 2004 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 rules/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 required under Section 181 and were not placed before the Legislature of the State for its approval, the deletion shall be treated as non est 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.
The writ petitions are accordingly allowed. No order as to costs.”
Another important aspect of the cases is that after the Order was passed by the learned Single Judge, the Andhra Pradesh Electricity Regulatory Commission has realised its mistake and as a liberty was granted to issue fresh Regulation, the same has been done by issuing Regulation No.4 of 2013 published in the Official Gazette on 29.07.2013. The relevant portion of the Notification dated 29.07.2013 is reproduced as under:-
“In this regard, the Commission notified Regulation No.3 of 2004. However by a common order dated 24-08-2005, in R.P Nos.1 to 4 of 2005 filed by the Distribution Licensees, the Commission deleted clauses 5 to 11 of the said Regulation No.3 of 2004 permanently with effect from the date of the said Regulation came into force. The Hon'ble High Court passed its order in W.P.Nos.4010, 4013, 4328, 24082 and 25597 of 2005 on 05-10-2010, declared that the said order is non-est in the eye of law and directed the Commission to make a fresh regulation under Section 46 of the Act.”
The Central Power Distribution Company, even though in the year 2013, Regulation No.4 of 2013 has been issued, has filed writ appeals in 2018 with 422 days delay and the same has been condoned. It is true that certainly writ appeals were filed but the fact remains that the Regulation No.4 of 2013 has already been published in the Official Gazette repealing the earlier Regulation No.3 of 2004.
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.
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 been done in the present cases.
The learned Single Judge was, therefore, justified in allowing the writ petitions and once Regulation No.4 of 2013 has been framed and published in the Official Gazette, the question of permitting the 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.
In the light of the aforesaid, all the writ appeals deserve to be dismissed and are accordingly dismissed.
Miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.