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High Court of Judicature at Madras
VINOD K. SHARMA, J.
Smitha Gaulechcha
Versus
The Chairman Tamil Nadu Electricity Board Anna Salai & Others
W.P. No. 5807 of 2009 & M.P. No. 2 & 3 of 2009
Decided on: 05-03-2013
Penalty - Excess Use of Electricity - Tamil Nadu Electricity Board Circular - Regulation 38 of Tamil Nadu Electricity Distribution Code, 2004 - Sections 32 and 33 of Indian Electricity Act 2003
Fact of the Case:
The petitioner, a woman entrepreneur, started a small scale unit and was penalized for alleged excess use of electricity during a power cut period. The petitioner challenged the penalty on the grounds of lack of jurisdiction and arbitrariness.
Finding of the Court:
The court found that the imposition of penalty was without jurisdiction and arbitrary, as the Board did not have the authority to impose a penalty for excess use of electricity as per the circular. The court also noted that the energy cut was not rightly imposed, considering the actual facts and total sanctioned load of the petitioner.
Issues: The issues revolved around the jurisdiction of the Board to impose a penalty for excess use of electricity, the arbitrary imposition of the energy cut, and the petitioner's right to challenge the penalty.
Ratio Decidendi: The court held that the imposition of penalty was without jurisdiction and arbitrary, as the Board only had the power to either disconnect electricity or approach the Tamil Nadu Regulatory Commission, as per the circular. The court also emphasized the need to consider the actual facts and total sanctioned load of the petitioner before imposing an energy cut.
Final Decision: The writ petition was allowed, and the impugned order imposing the penalty was set aside.
1. The petitioner has approached this Court with the prayer for issuance of a writ in the nature of Certiorari, to quash the imposition of penalty of Rs.1,22,000/- (Rupees one lakh twenty two thousand only) on the petitioner on alleged excess use of electricity by violating quota fixed for use of the electricity during power cut period.
2. The petitioner is woman entrepreneur who started small scale unit in the year 2008 under the name and style of "Mercury Cable". The petitioner took lease of the Industrial shed bearing No.7, III Lane, Wood wharf, Wall Tax Road, Chennai 600 079 and procured the machinery and erected it over a period of time and trial production was started on job work basis.
3. During the period, regular business was not carried on therefore, the consumption of units was meagre. In the month of November, 2008, Tamil Nadu Electricity Board issued a circular imposing restriction and control measure of LTCT service energy quota by imposing 20% energy cut on the consumption.
4. The relevant clause of circular reads as under:
"2. The following is the monthly base energy quota fixed for your LTCT industrial/commercial service No.1080252200
Base energy consumption (in units) based on the average three consecutive months advantageous to the consumer 1061 having quota @ 80% of the above (in units) 849.
3. The unutilized quota in any quota period will not be carried over to the subsequent period.
4. In respect of monitoring energy quota, meter reading will be taken on weekly basis or at such intervals as the Board may deem fit. You should restrict the usage of energy within the quota fixed. At the end of the month, the excess units if any consumed over the energy quota fixed will be deducted from the quota for the next month. 7 TNEB is approaching Tamil Nadu Electricity Regulatory Commission for disconnection and for levy of fixing the excess energy charges to be levied in case the energy quota is exceeded."
5. Under circular, consumption unit of the petitioner was restricted to 849 energy units in respect of the lease property. The petitioner was served with the impugned order showing that excess units of electricity in violation of quota fixed was used thereby penalty was imposed on the petitioner for Rs.1,22,490/- (Rupees one lakh twenty two thousand four hundred and ninety only).
6. The impugned order has been challenged by the petitioner; Firstly, on the ground that imposition of penalty is totally without jurisdiction as under the circular, there was no authority with the respondent Board to impose any penalty for excess use of electricity, as the only stipulation in the circular was to approach Tamil Nadu Regulatory Commission. Secondly, that the action is totally arbitrary, as the respondents mechanically imposed cut on the petitioner without realizing the petitioner commenced commercial production only on 3.12.2008 and therefore, the quota could not be fixed based on three months average of the previous period, when the factory was not in production.
7. The contention of the learned counsel for the petitioner is that it was for this reason representation was made to the respondents against imposition of penalty, pointing out that factory came to production only on 3.12.2008 therefore, quota was required to be fixed based on connected load, but the respondent arbitrarily have not dealt with the representation and imposed penalty.
8. Writ petition is opposed by the learned counsel appearing for the respondent Board by placing reliance on Regulation 38 of the Tamil Nadu Electricity Distribution Code, 2004 which gives power to the Board to impose restriction on the use of electricity.
9. Regulation 38 reads as under:
"38. RESTRICTIONS ON USE OF ELECTRICITY:
The consumer shall curtail, stagger, restrict, regulate or altogether cease to use electricity when so directed by the Licensee, if the power position or any other emergency in the Licensee’s power system or as per the directives of SLDC/ SSLDC warrants
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