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2015 Supreme(AP) 846
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Dilip B. Bhosale and A. Ramalingeswara Rao, JJ.
A.P. Electricity Regulatory Commission, Hyderabad and others - Petitioner
Versus
Central Power Distribution Company of A.P. Ltd., Hyderabad and others - Respondents
Writ Appeal Nos. 115, 116, 118, 219, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 256, 264, 265, 266, 267, 268, 271, 274, 277, 283, 284, 285, 287, 288, 289, 290, 292, 293, 295, 296, 300, 301, 302, 303, 305, 310, 311, 312, 315, 316, 317, 325, 326, 328, 329, 330, 331, 334, 336, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 552, 557, 613, 620, 627, 628, 657, 660, 670, 671, 672, 676, 681, 691, 699, 700, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 953, 954, 955, 976, 977, 978, 979, 980, 981, 1008, 1119, 1122, 1123, 1124, 1125, 1359, 1360 Of 2014; And WA (Sr). Nos. 5289, 5312, 26452, 26467, 26474, 26484, 26495, 26521, 26522, 26523, 26526, 26527 and 26534 of 2014
Decided on : 1-5-2015
Advocate Appeared:
For the Petitioner:Srinivasa Rao Putluri, Advocate.
For the Respondents: Manohar Reddy, (SC for AP TRANSCO).
Headnote:
Consumer Protection – Electricity Act, 2003 – Section 111 – A.P. Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2004 – Regulation 2(c) – Consumption Charges – Types of charges – Tariff – Issue regarding violated by the Commission while issuing the Tariff Order – Consumers are subjected to twin tariff system under which they have been paying two types of charges viz., maximum demand charges and energy charges – Tri-vector HT meters installed in the premises of the consumers record the above two factors – Maximum demand is measured in terms of kilo volt amperes per hour (Kvah) and energy is measured in terms of kilo watts per hour (Kwh). One kilo Watt is one unit – While so, Commission issued a Tariff Order effective for years approving the proposal for Kvah based billing instead of Kwh based billing – It was made applicable to all HT consumers and LT consumers for whom the tri-vector meters have been provided. For example, in respect of industries – Held, It is clear that the tariff should be contained in the Tariff Order and should be read in the context in which it was made, but not in relation to other units of measurement mentioned in other provisions of Regulations – A provision cannot be held to be bad merely because it is in conflict with or is not in consonance with definitions contained in other provisions – Hence, approach made by learned single Judge, in our opinion, is not correct – Issue before this Court is not with regard to any procedure violated by Commission while issuing Tariff Order, as it is admitted case of Writ Petitioners also that due procedure was followed while issuing the Tariff Order – Only point raised by learned counsel for the Writ Petitioners is that change in methodology of billing is in conflict with existing units of measurement obtaining in various other Regulations – Our enquiry is confined only to the issue whether determination of tariff schedule by Commission includes not only rates, but also methodology of billing – If Commission is held to be having power to indicate the methodology of billing while determining the rates, which are included in the tariff schedule, the petitioners cannot challenge Tariff Order as bad when the Commission has followed the procedure – When Commission is empowered to take a decision on tariff, it includes billing methodology as well as fixation of rates by duly following the procedure – There is nothing wrong in Commission fixing a particular methodology for billing while fixing rates in tariff schedule – We cannot hold that billing methodology is bad merely on the basis that the units of measurement existing in other Regulations are different – We do not consider that change in billing methodology is in conflict with the provisions of Act of 2003 or Constitution – Its rationality was thoroughly examined before introduction and hence cannot be held to be arbitrary – It is in vogue in some states – Appeals are allowed. (Paras 32 to 37)
A. Ramalingeswara Rao, J
These Writ Appeals are being disposed of by this common judgment with the consent of the parties appearing before us at the admission stage.
2. W.P. No. 4330 of 2012 and batch was disposed of on 06.12.2013 by a common order by the learned single Judge. Based on the said common order dated 06.12.2013, another learned single Judge disposed of another batch of cases in W.P. No. 31478 of 2013 and others on 02.01.2014, 24.1.2014 and 28.1.2014 and the present Writ Appeals are filed against all the said orders. These Writ Appeals are filed by the Andhra Pradesh Electricity Regulatory Commission, Hyderabad (for short, the Commission), as well as by the Distributing Companies in Andhra Pradesh and Telangana States. All these Writ Appeals are based on common questions of fact and law.
3. The Writ Petitions were filed by the HT consumers of the Licensees of the Commission. The consumers are subjected to twin tariff system under which they have been paying two types of charges viz., maximum demand charges and energy charges. The tri-vector HT meters installed in the premises of the consumers record the above two factors. The maximum demand is measured in terms of kilo volt amperes per hour (Kvah) and the energy is measured in terms of kilo watts per hour (Kwh). One kilo Watt is one unit.
4. While so, the Commission issued a Tariff Order on 30.03.2011 effective for the years 2011-2012 approving the proposal for Kvah based billing instead of Kwh based billing. It was made applicable to all HT consumers and LT consumers for whom the tri-vector meters have been provided. For example, in respect of industries, the tariff approved is as follows:
"(A) Industry - General
Demand Charges & Energy Charges
Voltage of Supply
Demand Charges Rs/Kva/month of Billing Demand
Energy Charges Paise/Kvah
132 kV and above
250
297
33 kV
250
325
11 kV
250
352
*Rs. 1.00/Kvah Time of Day Tariff is leviable on energy consumption during the period from 06:00 PM to 10:00 PM, in addition to the normal energy charges at respective voltages
Important
The billing demand shall be the maximum demand recorded during the month or 80% of the contracted demand whichever is higher.
Energy charges will be billed on the basis of actual energy consumption or 50 Kvah per Kva of billing demand whichever is higher.
FSA will be extra as applicable as notified by the Commission from time to time."
5. The said policy continued for 2011-12, 2012-13 and 2013-14. The same was challenged by the petitioner in W.P. No. 20403 of 2012 for the year 2011-12 initially and when the same was pending, another Writ Petition No. 20387 of 2012 was filed challenging the Tariff Order for the year 2012-13. Several other Writ Petitions as stated above were also filed challenging the Tariff Order for the year 2013-2014. When the said Writ Petitions were pending, the Commission issued Regulation No. 7 of 2013, amending Regulation 2(c) enabling computation of the consumed energy in Kvah and Kwh also. As a result of such amendment, the consumption charges defined in A.P. Electricity Regulatory Commission (Electricity Supply Code) Regulation, 2004 (for short, Electricity Supply Code) was amended and the amended provision reads as follows:
"2(c) "Consumption Charges" means energy charges for consumption of electrical energy (calculated on the basis of Kwh or Kvah rate as applicable), and includes Demand/Fixed charges, Fuel Surcharge Adjustment (FSA) charges, customer charges, wherever applicable."
6. The Commission filed a counter-affidavit raising a preliminary objection that the Writ Petitions challenging the Tariff Order were not maintainable and an appeal would lie before the Appellate Tribunal for Electricity within 45 days from the date on which a copy of the order is made availabl
