Madras High Court
The Chairman & Managing Director vs –
Author: M.Dhandapani
Bench: M.Dhandapani
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W.P. Nos.27115/2021, etc. Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
25.09.2024 07.11.2024
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NOS.27115, 27131, 27120, 27122, 27124, 27177,
27126 & 27130 OF 2021
W.P. NO. 22186 OF 2022
W.P. NOS. 34600, 34604, 34605, 34610, 34621, 34614,
34618 & 34625 OF 2023
AND
W.M.P. NOS. 28598, 28599, 28587, 28590, 28594, 28603 & 28585 OF 2021
W.M.P. NOS. 4999, 3295, 2864, 4278, 4279, 4280, 4273, 5019,
21191, 21195 & OF 2022
W.M.P. NOS. 34553, 34573, 34523, 34528, 34531, 34535, 34536,
34554, 34558, 34562, 34564, 34569, 34570, 34572 & 34573 OF 2023
W.P. NO.27115 OF 2021
1. The Chairman & Managing Director
TANGEDCO, NPKRR Maligai
144, Anna Salai, Chennai 600 002.
2. The Superintending Engineer
Chennai Electricity Distribution Circle/South-II
TANGEDCO, 110 KV SS Complex
K.K. Nagar, Chennai 600 078.
3. The Chief Engineer/Distribution
Chennai Region
TANGEDCO, 110 KV SS Complex
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144, Anna Salai, Chennai 600 002.
4. The Chief Engineer/Commercial
TANGEDCO, NPKRR Maaligai
TANGEDCO, 110 KV SS Complex
144, Anna Salai, Chennai 600 002. .. Petitioners
- Vs –
1. Tamil Nadu Electricity Ombudsman
4th Floor, SIDCO Corporate Office Building
Thiru-Vi-Ka Industrial Estate
Guindy, Chennai 600 032.
2. M/s.Navin Housing Properties Pvt. Ltd.
C/o Stephen & Stephen Advocates Associates
BRIO Hall, 4/23E, Kamaraj Nagar
4th Main Road, Thiruvanmiyur
Chennai 600 041. .. Respondents
W.P. No.27115 of 2021 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari calling for the records relating to
the impugned order of the 1st respondent dated 24.09.2021 in A.P. No.32/2021
and quash the same.
For Petitioners : Mr. P.Kumaresan, AAG
Assisted by Mr.L.Jai Venkatesh in WP
27115, 27131, 27120, 27122, 27124,
27177, 27126 & 27130/2021
Mr. Rahul Balaji in WP 22186/2022
Mr.Richardson Wilson in WP 36400,
34604, 34605, 34610, 34021, 34614,
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34618 & 34625/23
For Respondents : Mr. D.Stephen for R-2 in WP 27115,
27131, 27120, 27122, 27124, 27177,
27126 & 27130/2021
No Appearance for R-1 in WP 27115,
27131, 27120, 27122, 27124, 27177,
27126 & 27130/2021
Mr. L.Jai Venkatesh in WP
22186/2022
Mr.R.S.Pandiyaraj in WP 34600,
34604, 34605, 34618 & 34625/23
Mr.Rahul Balaji for R-1 in WP
34621/23
Mr. S.Giridharan for R-2 in WP
34621/23
Mr. N.L.Rajah, SC, for
Mr.Arun Anbumani in WP 34614 &
34610/23
COMMON ORDER
Two sets of writ petitions have been filed, viz., one challenging the order
passed by the Tamil Nadu Electricity Ombudsman (for short ‘TNEO’) and the
other by the Tamil Nadu Electricity Regulatory Commission (for short ‘TNERC’), in
and by which both the authorities have directed the refund of the excess charges
collected from the respective petitioners, who are respondents herein, with
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regard to installation of Distribution Transformers. The said orders are put to test
by the petitioners by filing the present writ petitions.
Facts in the writ petitions assailing the order of TNEO :
2. It is the case of the petitioners that the respective 2 nd respondents had
developed a group housing project consisting of multiple apartments, viz.,
dwelling units and had sought new LT Domestic connection vide application
application on various dates, as stated in the affidavit and the respective
Assistant Engineer had arrived at the total required load and sanction was also
accorded.
3. It is the further case of the petitioners that based on the above order,
estimate was given by the Assistant Engineer vide slip for the respective 2 nd
respondents to pay the sum as mentioned in the slip towards for laying cable,
erection of four pole structure, erection of distribution transformer, DT metering,
laying of UG cable and erection of LT switch gear along with GST charges. The
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W.P. Nos.27115/2021, etc. Batchsaid amount was also paid by the 2nd respondent on 3.9.2020 and service
connections were effected to the entire dwelling units.
4. It is the further case of the petitioner that after payment of the charges
on 3.9.2020 and availing connection, the respective 2nd respondents preferred a
complaint before the Consumer Grievance Redressal Forum, Chennai, EDC/South
2 challenging the levy of estimate charges as mentioned in the respective slips.
It was the case of the respective 2nd respondents herein before the Consumer
Grievance Redressal Forum, Chennai, that inclusion of price/cost of transformers,
equipment, cable, line cost in the category of estimate charges is contrary to
TNERC Regulations when the respective 2nd respondents had already provided
sufficient space for development of substation and for erection of transformers.
It was the further contention of the respective 2nd respondents that the
petitioners herein did not seek the approval for levy of estimate charges from
TNERC and, therefore, the respective 2nd respondents had no other option, but to
pay the estimate charges due to the undue delay in processing the application of
the 2nd respondent.
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5. It is the further case of the petitioners that counter affidavit was filed in
the said petition claiming that the estimated charges collected is as per
Regulation 45 (1) and Regulation 29 (16) of the Tamil Nadu Electricity Distribution
Code (for short ‘Distribution Code’).
6. It is the further case of the petitioners that the respective 2 nd
respondent preferred an appeal before the 1st respondent herein in which
counter was also filed by the petitioners herein and after hearing both the
parties, the 1st respondent passed the respective order as impunged in the
respective writ petitions directing the petitioners to revise the estimate and to
refund the excess charges including the equipment cost to the respective 2nd
respondents within a period prescribed in the said order. Further direction was
also given by the 1st respondent to revise the estimate for all such similar cases
and refund the excess charges collected to the consumer. Aggrieved by the said
order in and by which order of refund of excess charges was made to the 2 nd
respondent herein as also to the persons, who have not approached the 1st
respondent, the present set of writ petitions have been filed.
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Facts in the writ petitions assailing the order of TNERC :
7. It is the case of the petitioners that the respective respondents are the
owners of the flat and they had applied for domestic service connection for their
newly constructed apartment. It is the further case of the petitioners Regulation
29 (12) of the Distribution Code, erection of Distribution Transformers and allied
structures inside the consumers premises is mandatory for which the consumers
have to provide necessary space for erection. Towards the same, estimate was
sanctioned and the respective respondents were directed to pay the charges
towards meter, caution deposit, current caution deposit, development charges,
as per the loads applied. It is the further averment of the petitioners that the
petitioners is the distribution Licensee and is entitled to collect the charges
incurred in the erection of Distribution Transformers within the premises of the
consumer for the purpose of effecting electricity connection.
8. It is the further averment of the petitioners that the original applicant is
a consumer of electricity, who has either purchased or constructed flats in a
housing project and for effecting supply to the respondent’s premises as per the
Distribution Code, erection of a Distribution Transformer (for short ‘DT’) is
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necessary and, therefore, a demand for erection of a DT was made. However,
against the said demand, the respective respondents had filed petitions before
TNERC which was allowed by TNERC against which review was filed by the
petitioners which was also dismissed.
9. It is the further averment of the petitioner that a number of DTs are
being erected to meet the load requirements of the entire project where there
are multiple towers and upon allocation of space, the DT is erected as per
Regulation 29 (11) of the Distribution Code. It is the further averment of the
petitioner that even as per Regulation 29 (11) the cost of installation for the DT to
the meter including the cost of HT line within the premises of the consumer is
chargeable on the consumer.
10. It is the further averment of the petitioner that TNERC has no
jurisdiction to entertain the petition and adjudicate the disputes in exercise of
powers conferred u/s 86 (1)(f) of the Electricity Act as TNERC is only vested with
power to adjudicate upon disputes between licensees and generating companies
and to refer any disputes for arbitration. However, in the present case, the
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dispute is between the licensee and the consumer, which cannot be adjudicated
by TNERC.
11. Laying emphasis on Section 42 (5) of the Electricity Act, which provides
for the distribution licensee to establish a forum for redressal of grievances of the
consumer, TNERC has framed Regulations and, accordingly, the Consumer
Redressal Forum has been created under Regulation 3 and under Regulation 4,
the forum has jurisdiction to entertain complaints between the consumer and the
Distribution Licensee and grievance against its orders is appealable before the
Tamil Nadu Electricity Ombudsman by filing appeal. It is the further averment of
the petitioner that the orders of the Electricity Ombudsman is not appealable
before the State Electricity Commission but only before this Court under Article
226 and before the Apex Court under Article 32 of the Constitution.
12. It is the further averment of the petitioners that the respective
respondents, being consumers of electricity, if aggrieved by the demand raised by
the petitioner against the estimate for erecting Distribution Transformer, ought
to prefer a petition before the Consumer Grievance Redressal Forum and an
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appeal before the Electricity Ombudsman. However, the petition before the
TNERC is wholly not maintainable as the consumer cannot approach the State
Commission under Section 142 of the Electricity Act as against the petitioner,
which is a Distribution Licensee.
13. It is the further averment of the petitioner that the DT which is
installed for housing complex project is exclusively for the said project and is not
utilised for common purpose and, therefore, erection of such DT u/r 29 (11) of
the Distribution Code and clause 44 of the Distribution Code would have to be
borne by the owners as the cost incurred for erection is to be collected from the
person requiring the supply of electricity. It is the further averment of the
petitioner that electrical line includes any apparatus required for supplying
electricity and a DT would also be deemed to be an apparatus, which is required
for supplying the electricity through the electrical line.
14. It is the further averment of the petitioners that Regulation 29 (11)(c)
of the Distribution Code mandates the consumer to bear the cost of installation
works and, therefore, the petitioner had claimed estimate charges for laying the
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cable, erection of four pole structure, erection of distribution transformer, DT
metering, laying of underground cable and erection of LT switchgear. It is the
further averment of the petitioners that identically placed consumers had
approached the Electricity Ombudsman where relief was granted in their favour
against which W.P. Nos.27115/2021, etc., batch was preferred before this Court
in which an order of interim stay has been granted.
15. It is the further averment of the petitioners that the present orders
suffers the vice of jurisdiction as held by the Apex Court in Maharashtra
Electricity Regulatory Commission – Vs – Reliance Energy Ltd. & Ors. (2007 (8)
SCC 381), wherein it was held that TNERC has no jurisdiction to decide a
consumer–licensee dispute and the present batch of writ petitions are squarely
covered by the said decision and the jurisdiction is only vested with Electricity
Ombudsman u/s 42 of the Electricity Act.
16. It is the further averment of the petitioners that the DT is erected for
the use of the apartments in a group housing scheme, which is not for the benefit
of general public or persons outside the housing project and such being the case,
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mandating the petitioners to bear the entire cost of erection of such DT is wholly
arbitrary and unjust. Therefore, for all the aforesaid reasons, the present batch
of writ petitions have been filed on the ground that TNERC has no jurisdiction to
entertain the dispute.
17. Learned Addl. Advocate General appearing for the petitioners in both
the batch of petitions submitted that the DT being erected in a group housing
scheme for the use of the apartment houses is specifically for the specific
community and it is not used by the general public and, therefore, the cost
towards such erection cannot be directed to be borne by the petitioners. In this
regard, learned Addl. Advocate General, drawing the attention of this Court to
Rule 29 (11) of the Distribution Code submits that the DT would also fall within
the equipment which is used for the supply of electricity through the electrical
lines and, therefore, read along with clause 44 of the Distribution Code, the
charges for the installation of the apparatus for the DT would squarely fall on the
shoulders of the consumers in a housing community and the petitioners cannot
be burdened with the cost of erection of the DT.
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18. It is the further submission of the learned Addl. Advocate General that
the respondent failed to consider Regulation 29 (16) of the Distribution Code,
which specifically provides for the consumer to bear the cost of the service line
that is to be paid for the provision of electrical supply to the consumer. Learned
Addl. Advocate General also invited the attention of this Court to Regulation 45
(1) of the Distribution Code, which casts responsibility on the consumer to pay
the actual cost of meter board, labour, transport and overhead charges.
19. It is the further submission of the learned Addl. Advocate General that
the DT, which is laid within the premises of the gated community is for the
specific use of the consumers within the community and, therefore, essentially, it
is for the said consumers to bear the cost of the DT, as the other general public
cannot use the DT and get electrical connection through the said Dt. Therefore,
when the DT is exclusively used for the consumers within the community, the
cost for erection and installation of the DT has to be borne by the consumers,
who would be using the DT.
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W.P. Nos.27115/2021, etc. Batch
20. Insofar as the batch of petition sin W.P. Nos.36400/2021, etc. Batch,
where order has been passed by TNERC, in addition to the aforesaid submissions,
it is the specific submission of the learned Addl. Advocate General that the order
passed by TNERC is without jurisdiction as TNERC is not vested with jurisdiction to
decide with respect of dispute between a consumer and a distribution licensee.
However, in the case on hand, the respective respondents being individual
consumers, who have dispute against the petitioners, which is a distribution
licensee, the proper forum for the respective respondents, who are consumers,
to ventilate their grievance is before the Consumer Grievance Redressal Forum
and order passed by the forum is appealable before the Electricity Ombudsman.
Therefore, the respective respondents in the batch of petitions have to be
relegated to approach the Consumer Grievance Redressal Forum by setting aside
the impugned orders passed by TNERC. Accordingly, learned Addl. Advocate
General prays that this Court may pass appropriate orders with regard to both
the batch of petitions in favour of the petitioners.
21. Per contra, the respective learned counsel appearing for the respective
respondents, viz., the builder, who had sold the apartments to the consumers,
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who are consuming electricity as individuals and the respective individual
consumers, who had approached the TNERC, squarely fall within individual
consumers and merely because the apartments are within a community, the
same, by no stretch can be treated to be not individual apartments.
22. It is the further submission of the learned counsel that Section 42 of
the Electricity Act casts a casts a duty on the distribution licensee to develop and
maintain an efficient, coordinated and economical distribution system for the
supply of electricity and Section 43 mandates the distribution licensee to supply
electricity to the owner of the premises. Therefore, the present respondents,
being the owner of the premises are to be provided electricity connection as
mandated u/s 43 of the Electricity Act.
23. It is the further submission of the learned counsel that Section 46 of
the Act permits the State Commission, by regulations, authorising the licensee to
charge from a person requiring a supply of electricity the expenses reasonably
incurred for providing electrical line or electrical plant and Regulation 44 of the
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Distribution Code permits the licensees to collect the charges from the person for
the supply of electricity any expenses reasonably incurred.
24. It is the further submission of the learned counsel that Regulation 3 (4)
of the Distribution Code casts a duty on the distribution licensee to develop and
maintain an efficient, coordinated and economical distribution system and
Regulation 29 (17) prescribes that the entire service line would be the property of
the licensee and it would be their duty to maintain the service line.
25. Placing great emphasis on the aforesaid Sections and Regulations of
the Act and the Distribution Code, it is the submission of the learned counsel that
onus is on the distribution licensee to develop the network with equipments to
extend the supply and TNERC, which the statutory authority has, u/s 46 of the
Act, has rejected the request of the petitioners for collection of estimate charges.
It is therefore the submission of the learned counsel that the entire service line,
being the property of the licensee and the licensee having to maintain it at their
cost, the collection of equipment costs is in violation of Regulation 29 (17) of the
Distribution Code.
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26. It is the further submission of the learned counsel that Regulation 44 of
the Distribution Code permitting the licensee to collect reasonable expenses
incurred would not take within its ambit the provisioning of a DT as the DT would
be the property of the licensee, it is the duty of the licensee to make provisioning
of the DT and no amount can be collected from the consumers, who are
individual owners.
27. It is the further submission of the learned counsel that Regulation 29
(11) of the Distribution Code specifically provides the consumers to provide only
space for the installation of the DT and it is the duty of the licensee to bear the
cost of the transformer and allied structure material. The said provision having
been not challenged by the petitioners, the petitioners cannot turn back and
claim that the individual owners being within a housing community would not be
entitled to the benefit of provision of DT at the cost of the licensee. Further, the
said stand, if otherwise allowed, would be nothing but perpetuating inequality
between two sets of individual consumers, who are provided with LT electrical
supply.
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W.P. Nos.27115/2021, etc. Batch
28. It is the submission of the learned counsel that all the aforesaid
materials have been considered in proper perspective by TNEO, while passing the
impugned order and, therefore, the W.P. Nos.27115/2021, etc., batch, assailing
the impugned orders therein does not require any interference.
29. It is the further submission of the learned counsel that insofar as W.P.
Nos.36400/2021, etc., batch, in which the order passed by TNERC is challenged
on the ground that TNERC is not having jurisdiction to entertain the petitions
between the consumers and licensees, it is submitted that though the order has
been passed by TNERC, which is impugned and prayer is made to set aside the
same and direct the respondents therein to approach the Consumer Grievance
Redressal Forum and, thereafter, TNEO, according to the respondents, TNEO,
with regard to similar issue, having already held that the petitioners have no
authority to claim the charges towards installation of DT, which orders have been
challenged in W.P. Nos.27115/2021, etc., batch, the petitioners in W.P.
No.36400/2021, etc. batch, also being identically placed, this Court, sitting under
Article 226 of the Constitution of India could very well extend the very same relief
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W.P. Nos.27115/2021, etc. Batch
to the respondents so as to avoid multiplicity of proceedings and, accordingly,
prayed this court to pass appropriate orders.
30. In support of their aforesaid submissions, learned counsel for the
respondents placed reliance upon the following decisions :-
i) J.Jayalalithaa & Ors. – Vs – State of Karnataka & Ors.
(2012 (2) SCC 401);
ii) State of U.P. – Vs – Singhara Singh & Ors. (1963 SCC
OnLine SC 23)
31. This Court gave its careful consideration to the submissions advanced
by the learned counsel appearing on either side and perused the materials
available on record as also the decisions relied on by the learned counsel for the
parties.
32. The main contention raised with regard to claim of charges from the
consumers towards installation of DT by the petitioners within a community
revolves around Section 45 (1) of the Electricity Act and Regulation 29 (16) of the
Distribution Code on which it is contended that the said provisions provide for
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charging the consumers with the charges towards installation of DT. However,
countering the same, the respondents rely upon the very same Regulation 29 (16)
and 29 (11) of the Distribution Code as also Regulation 26 (i), (iii) and (iv) of the
Distribution Code, which has since been amended by TNERC vide notification
dated 9.6.2020 to claim that the charges for erection/installation of DT would be
that of the licensee and it cannot be passed on to the consumers. Therefore, for
better appreciation, the relevant provisions are extracted hereunder :-
“26 . Categories of Supply :
* * * * * * *
(i) Space for erection of a Distribution Transformer by the
licensee shall be provided by the consumer free of cost and such
space for erecting the Distribution transformer shall either be
provided within the consumer’s premises or in a private land
within a radius of 50 meters from the consumer’s premises. The
site provided for erection of Distribution transformer should have
free access for inspection and maintenance.
* * * * * * *
(iii) Installation of Distribution Transformer with associated
equipments/accessories, viz., AB switch, HG fuse, DT
structure/pole shall be carried out by the licensee at the licensee’s
cost.
(iv) The cost of installation works from the Distribution
Transformer to the consumer’s meter including portion of any HT20
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W.P. Nos.27115/2021, etc. Batchline within the consumer’s premises when the Distribution
transformer is erected in the consumer’s premises, shall be borne
by the consumer. …..
29. Service Lines :
* * * * * * *
(11) In storeyed building and for any building/premises
requiring LT service connection(s) having either (a) total area of
900 square metre and above (excluding the stilt floor/basement
floor) or b) the ttotal demand of all the LT services in the building
exceeds 112 kW, sufficient space shall be made available free of
cost to the licensee for installing transformers, switchgears, etc.,
as stated below :
* * * * * * *
(16) Having agreed on the position of point of supply, the
Engineer will render to the intending consumer an estimate for
the cost of laying the service line. Amny work of laying the service
line will be taken up only after the intending consumer pays the
estimated amount in advance in full . The charges payable by the
intending consumer for service line shall be as estimated by the
licensee from time to time.”
33. There is no quarrel with the aforesaid provisions, as found in the
Distribution Code. The entire argument of the petitioner hinges on Regulation 29
(16), which provides that the estimate offered by the Engineer should be paid in
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advance in full to the licensee and that the said payment is relatable to Section 45
(1) of the Electricity Act, which provides that “subject to the provisions of this
section, the prices to be charged by a distribution licensee for the supply of
electricity by him in pursuance of Section 43 shall be in accordance with such
tariffs fixed, from time to time and conditions of his licence”.
34. There is no ambiguity with Section 45(1) of the Electricity Act as it
relates to the prices to be charged by a distribution licensee for the supply of
electricity in accordance with the tariffs. Tariffs with regard to the supply of
electricity is fixed by the petitioners on the approval of the appropriate authority.
Section 45 (1) clearly speaks only about the tariffs and it not relatable to any
other charges. Therefore, there is a clear prescription that Section 45 of the
Electricity Act is relatable to tariffs for the electricity supplied and not for erection
of DT.
35. In this background, a perusal of Regulation 29 (16) of the Distribution
Code would show that the words used therein relate to agreement on the
position of point of supply, meaning thereby, that it is relatable only to the place
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from where the distribution licensee would provide the consumer with supply
and from the said place to the place of the consumer, the charges for taking the
supply and any materials thereon, would be chargeable on the consumer. This
clearly shows that the DT would stand installed at the place and from that place,
electrical line would be drawn to the premises of the consumer, the cost of which
would have to be borne by the consumer. Therefore, neither Section 45 (1) of
the Electricity Act nor Regulation 29 (16) of the Distribution Code speaks in
explicit terms that the amount for the erection and installation of the DT should
be borne by the consumer. Rather, as stated above, Regulation 29 (16) is only to
the effect that the charges for providing the electrical connection from the DT,
which is the point of supply, to the premises of the consumer is to be borne by
the consumer and nothing more.
36. Further, a perusal of Regulation 26 (i), (ii) and (iv) of the Distribution
Code, which have been extracted above, clause (i) of Regulation 26 only
mandates that space, free of cost, shall be provided by the consumer to the
licensee for erection and installation of the DT. Clause (iii) of Regulation 26 of the
Distribution Code in specific terms provide that installation of DT with associated
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equipments/accessories, viz., AB switch, HG fuse, DT structure/pole shall be
carried out by the licensee at the cost of the licensee. There is a clear
prescription that the erection and installation of the DT at the place provided by
the consumer shall be by the licensee and at the cost of the licensee.
37. When it is an individual consumer in a general space, the line is drawn
from the post and provided to the consumer, as the line is taken from the DT to
the pole from where it is provided to the consumer. However, in the case of
individual houses within a community, which is also a place of public living, the
line is drawn from the mains to the DT, which is to be established at the place
where the bunch of houses in the community are put up and from which DT, the
electrical supply is provided to each of the individual consumer.
38. Only from the said place where the DT is installed/erected by the
licensee, the supply would be provided to the doorsteps of the consumer by
receiving the requisite amount of charges for providing the electrical supply.
Regulation 44 of the Distribution Code provides the licensee with power “to
collect charges from a person requiring supply of electricity any expenses
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reasonably incurred in providing any electric line or electrical plant used for the
purpose of giving that supply”. From Regulation 44, it is amply clear that the
expenses reasonably incurred could only be taken to mean that the expenses,
which are incurred for the purpose of providing electrical supply from the DT to
the doorsteps of the consumer. Installation of DT for providing electrical supply
rests with the petitioners and only to the extent of provision of space for
installation of DT, that too within a community, the consumer is burdened with
the responsibility to give space free of cost. Giving any wider interpretation to
the term “expenses reasonably incurred” to take within its fold even the expenses
towards the installation/erection of DT would be nothing but importing
something which is not provided in the Distribution Code. Further, when it is the
duty of the petitioners to provide electrical supply to the consumer’s premises, it
necessarily means that the infrastructure for providing the same like installation
of DT should be made by the petitioners and it cannot be transposed to the head
of the consumers. When there is no ambiguity in the provision, it has to be
understood in its literal sense and nothing can be added or subtracted to it.
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W.P. Nos.27115/2021, etc. Batch
39. In this regard, useful reference can be had to the decision of the Apex
Court in Jayalalithaa’s case (supra), where the Apex Court has held that “when
the statute provides for a particular procedure, the authority has to follow the
same and cannot be permitted to act in contravention of the same. In other
words, where a statute requires to do a certain thing in a certain way, the thing
must be done in that way and not contrary to it at all. Other methods or mode of
performance are impliedly and necessarily forbidden”.
40. In the present case, there is clear prescription under Regulation 26 (iii)
of the Distribution Code that the cost towards the installation/erection of DT,
including the provisioning of AB switch, HG fuse, DT structure/pole shall be borne
by the licensee. The said provision has been brought in by way of amendment to
the Distribution Code vide notification dated 9.6.2020. The said Regulation has
not been challenged by the petitioners and when such being the position, the
provision putting the charges towards installation of DT on the licensee, calling
upon the individual consumers to pay the charges towards the installation of DT
is wholly impermissible.
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W.P. Nos.27115/2021, etc. Batch
41. Though a contention has been raised on behalf of the petitioners that
the DT provided in a community, where there are dwelling units, is only for the
exclusive purpose of the community alone and, therefore, it is the individual
consumers, who have to bear the cost collectively towards the installation of the
DT, however, it is to be pointed out that the collectiveness of individual
consumers in the community cannot be the basis to claim that the charges
towards the installation of the DT should be borne by the consumers. Even if a
DT is provided in a public space, it is for the use of the public, from where the
connection is provided to individual household. Merely because the place from
where individual lines are drawn is a community, it cannot be the basis to hold
that it is in a way different, as a community is also a public space where the public
live and, therefore, the same analogy as is given for public space outside a
community is to be given even with respect to the consumers living within a
community consisting of individual households, which is also a public space. The
mere fact that the community is a closed one cannot be taken to mean that it
divests itself of the public character, when the individuals in the community, as
individual consumers, use the supply from the DT for their individual households
and, therefore, necessarily, the same is also a public space and the rigours of
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W.P. Nos.27115/2021, etc. Batch
Regulation 26 (iii) of the Distribution Code would squarely be applicable to a
community as well.
42. It is not the case of the petitioners that the consumers in the
community are not individual households. When even the petitioners fairly agree
that the consumers are individuals and individual connections are sought, merely
because their stay is in a community, which is developed in a particular manner, it
cannot be put against them to collect the charges for installation of DT from the
said consumers. Even the consumers in the community are general public, who
are to benefit from the DT by getting supply from the same.
43. Pausing for a moment and visualising a scenario that instead of a
community development, the individual consumers had built the house
individually, in that scenario, can the petitioners claim the charges for installation
of DT should be borne by the said consumers, when it is not charged from other
persons, who have built houses and are similarly placed. The similarity in the
utilisation of the electrical supply and living should form the basis for collection of
charges and not the character of the community.
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W.P. Nos.27115/2021, etc. Batch
44. Even in the grounds raised by the petitioners, advertence is made to
Regulation 29 (11)(c) of the Distribution Code which provides that the cost of
installation works from the Distribution Transformer to the consumer’s meter
including portion of any HT line within the consumer’s premises when the DT is
erected in the consumer’s premises shall be borne by the consumer. The
aforesaid Regulation clearly prescribes that the charges are collectable only with
respect to the supply from the DT to the consumer’s premises and not for the
installation of the DT. Installation of DT is very much the duty of the petitioners,
as the State is bound to give to its citizens electrical supply, which is evident from
the objects and reasons of the Electricity Act. When such is the position, giving a
different interpretation to the Regulations in the Distribution Code with regard to
collecting the charges towards installation of DT is wholly against the intent and
purpose of the notification issued by TNERC and also the objects and reasons
spelt out in the Electricity Act.
45. In the aforesaid backdrop, the contention of the petitioners that the
charges towards the installation of DT is collectable from the individual
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W.P. Nos.27115/2021, etc. Batch
consumers in a community is against the letter and spirit of the provisions of the
Distribution Code and rightly appreciating the aforesaid provisions, TNEO had
allowed the claim for refund of the charges collected from the respective
respondents as also others, who are similarly placed, and, therefore, no
interference is warranted with the orders passed by TNEO.
46. However, it is to be made clear that while the charges towards the
installation of the DT, which is spelt out in Regulation 26 (iii) of the Distribution
Code is to be borne by the licensee, however, insofar as the charges for getting
electrical supply from the said DT, the consumers have to bear the charges for
drawing the electrical line from the DT to the premises of the said consumers.
47. Insofar as the writ petitions filed by the individual consumers before
TNERC, which had passed the impugned orders in W.P. Nos.36400/2023, etc.
Batch, are concerned, it is the stand of the petitioners that Section 86 (1)(f) of the
Electricity Act clearly prescribes that the disputes between the licensee and the
generating companies alone is adjudicatable before TNERC and the disputes
between consumers and distribution licensees are adjudicatable only before the
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W.P. Nos.27115/2021, etc. Batch
Consumer Grievance Redressal Forum and any order passed by it is appealable
only before TNEO.
48. A perusal of Section 86 (1)(f) of the Electricity Act clearly shows that
the disputes between the licensee and the generating companies are alone
adjudicatable before the TNERC. However, erroneously the petitions have been
filed before TNERC, which has also adjudicated the issue, which is impermissible.
Therefore, to that extent, the impugned orders passed by TNERC with respect to
collection of charges for installation/erection of DT at the hands of the consumers
is without jurisdiction and cannot be permitted.
49. However, it is to be noted that the orders passed by TNEO which have
been impugned in W.P. Nos. 27115, 27131, 27120, 27122, 27124, 27177, 27126 &
27130/2021, have been approved by this Court by declining to entertain the
contentions advanced by the petitioners. Similar issue has been raised in the
second batch of writ petitions in W.P. Nos. 22186/2022 and 34600, 34604, 34605,
34610, 34021, 34614, 34618 & 34625/2023, though, erroneously before the
TNERC, however, it is to be noted that TNEO, in the orders impugned in W.P. Nos.
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W.P. Nos.27115/2021, etc. Batch
27115, 27131, 27120, 27122, 27124, 27177, 27126 & 27130/2021 had extended
the benefit to similarly placed persons and directed the petitioners to refund the
excess amount collected from the respective respondents/consumers.
50. The case of the petitioners in W.P. Nos. 22186/2022 and 34600, 34604,
34605, 34610, 34021, 34614, 34618 & 34625/2023 being similar and already
there is a direction by TNEO to extend the benefit to similarly situated persons,
though the order of TNERC, which is impugned in W.P. Nos 22186/2022 and
34600, 34604, 34605, 34610, 34021, 34614, 34618 & 34625/2023 is identical, but
impermissible, this Court, relegating the said petitioners to approach TNEO,
would be nothing but protracting the litigation further, though an affirmative
ratio had been laid down by TNEO, which has since been confirmed by this Court.
Therefore, no useful purpose would be served in setting aside the orders
impugned in W.P. Nos.22186/2022 and 34600, 34604, 34605, 34610, 34021,
34614, 34618 & 34625/2023 and directing the respondents/consumers therein to
approach the TNEO as the order passed in W.P. Nos. 27115, 27131, 27120,
27122, 27124, 27177, 27126 & 27130/2021 is squarely applicable to the
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W.P. Nos.27115/2021, etc. Batch
petitioners in W.P. Nos.22186/2022 and 34600, 34604, 34605, 34610, 34021,
34614, 34618 & 34625/2023.
51. Therefore, in the aforestated facts of the issue, to render substantial
justice, this Court, exercising its inherent jurisdiction under Article 226 of the
Constitution, is inclined to grant similar relief to the petitioners in W.P.
Nos.22186/2022 and 34600, 34604, 34605, 34610, 34021, 34614, 34618 &
34625/2023, by adopting the order passed by TNEO in W.P. Nos. 27115, 27131,
27120, 27122, 27124, 27177, 27126 & 27130/2021, which has since been
confirmed by this Court, as the respective respondents/consumers in W.P.
Nos.22186/2022 and 34600, 34604, 34605, 34610, 34021, 34614, 34618 &
34625/2023 are similarly placed, which course alone would meet the ends of
justice and would be rendering complete justice.
52. Accordingly, all these writ petitions are disposed of with the following
directions :-
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W.P. Nos.27115/2021, etc. Batch
i) The charges towards the installation/erection of DT
would be borne by the licensee, viz., the petitioners
herein as per the provisions of the Distribution Code;
ii) The respective respondents, who are the owners of
the premises shall provide the necessary space, if not
provided, for the installation of DT by the licensee free
of cost as provided under the Distribution Code;
iii) The excess charges collected by the petitioners from
the respective respondents/consumers in the writ
petitions towards the installation of DT shall be
refunded back to the respective
respondents/consumers.
iv) The respective respondents/consumers shall be liable
to pay the charges towards the supply of electrical line
from the DT to the premises of the respective
consumers upon payment of the requisite charges for
the electrical line provided in the Distribution Code.
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W.P. Nos.27115/2021, etc. Batch
v) The petitioners are directed to refund the amount
collected from the respective respondents/consumers
with regard to the charges collected towards the
installation of DT within a period of twelve weeks from
the date of receipt of a copy of this order.
vi) Consequently, connected miscellaneous petitions are
closed. However, there shall be no order as to costs.
07.11.2024
Index : Yes / No
GLN
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W.P. Nos.27115/2021, etc. Batch
To
1. The Chairman & Managing Director
TANGEDCO, NPKRR Maligai
144, Anna Salai, Chennai 600 002.
2. The Superintending Engineer
Chennai Electricity Distribution Circle/South-II
TANGEDCO, 110 KV SS Complex
K.K. Nagar, Chennai 600 078.
3. The Chief Engineer/Distribution
Chennai Region
TANGEDCO, 110 KV SS Complex
144, Anna Salai, Chennai 600 002.
4. The Chief Engineer/Commercial
TANGEDCO, NPKRR Maaligai
TANGEDCO, 110 KV SS Complex
144, Anna Salai, Chennai 600 002.
5. Tamil Nadu Electricity Ombudsman
4th Floor, SIDCO Corporate Office Building
Thiru-Vi-Ka Industrial Estate
Guindy, Chennai 600 032.
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W.P. Nos.27115/2021, etc. Batch
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NOS.27115 OF 2021,
ETC., BATCH
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W.P. Nos.27115/2021, etc. Batch
Pronounced on
07.11.2024
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