ORDER :

SUREPALLI NANDA, J.

WRI T PETI TI ON No.21052 OF 2011

Heard Sri M.P.Chandramouli, learned senior designated counsel appearing on behalf of the petitioner and Sri R.Vinod Reddy, learned standing counsel appearing on behalf of the respondents.

2. The petitioner approached the Court seeking prayer as under:

“........to issue a writ in the nature of Writ of Mandamus or any other appropriate writ direction or order declaring the action of the respondents in Levying and Demanding Penal Charges from the petitioner for the billing month June 2011 relying on Clause-5 of the Tariff Order for the FY 2011-2012 and as illegal without jurisdiction and void and pass…..”

3. The case of the petitioner, in brief, as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present w rit petition, is as under:

a) It is the case of petitioner that, the petitioner is FerroAlloy Industry and the Tariff applicable is under H.T.I.B. As per Clause 5 of the Tariff Order for HT.I Category, it is evident that in any month if the recorded maximum demand (RMD) of the consumer exceeds his contracted maximum demand (CMD), depending upon the percentage of excess RDM the consumer if liable has to pay the penal charges as prescribed. Moreover, if the RMD is 100 to 120 % over CMD the demand charges are levied 2 times the normal charges and there is no penal levy on energy charges. However, as the petitioner is a ferro alloy unit there is no demand charges and when there is no demand charges there cannot be any penal charges.

b) However, the respondents, for the billing month of June 2011 levied penal charges on the full energy at 1.15 times of normal charges i.e., on 42,39,326 units and levied a sum of Rs.16,85,132.08 ps. This levy is in addition to the usual levy of Rs.1,12,34,213.90. The petitioner herein had paid the normal demand charges but had not paid the penal charges. Aggrieved by the said excess charges the petitioner filed representations dated 28.06.2011 and dated 04.07.2011. In reply to the same, the 2^nd respondent vide reply dated 16.07.2011 stated that the RMD for the month of 06/2011 is 6506.4 KVA which exceeded CMD 5400 KVA by 1106.4 KVA and this excess KVA is more than 120% of CMD as such 15% extra of normal rate i.e., R 0.40 ps for unit is levied as penal charges.

c) Subsequently, the petitioner sent another representation dated 20.07.2011, stating that there was already penalty stipulated in condition number- I for the ferro alloy units, that when there are no demand charges and penalty, there cannot be any penalty on the energy and that the RMD is not more than 20% and therefore the penal charges as per condition No:5 cannot be invoked. However, the said representation was not considered and the field staffs threatened disconnection of power supply. Aggrieved by the said action of the respondents, the present Writ Petition is filed.

4. The interim prayer sought for by the petitioner in W.P.M.P.No.25622 of 2011 in the present Writ Petition is extracted hereunder:-

“ …pleased to stay the demand of Rs.16,85,132.08 ps as penal charges levied in the C,C,bill dated 26.06.2011 and pass such other and further orders..”

5. This Court on 27.07.2011 in W.P.M.P.No.25622 of 2011 in W.P.No. 21052 of 2011 passed orders in favour of the petitioner observing as under:-

There shall be interim stay as prayed for Post the WPMP after four weeks.

6. PERUSED THE RECORD :

A. The specific averments of the petitioner at para No.5 of the affidavit filed by the petitioner in support of the present Writ Petition are extracted hereunder:-

5. I submit that referring to my representation dated 04.07.2011, the 2^nd respondent gave a reply dated 16.07.2011 stating that the RMD for the month of 06/2011 is 6506.4 KVA which exceeded CMD 5400 KVA by 1160.4 KVA and this excess KVA is more than 120% of CMD as such 15% extra of normal rate i.e., R 0.40 ps for unit is levied as penal charges. On receipt of the said reply, I filed further representati