Appeal No. 41 of 2007

Between

M/s.Siva Swati Textile Private Limited,

Veluru Donka, GANAPARAVARAM-522 619,

Guntur Dist.(A.P.) … Appellant

And

1. The Assistant Divisional Engineer/Operation/ Chilakaluripeta.

2. The Divisional Engineer/Operation/ Narasaraopeta.

3. The Senior Accounts Officer /Operation/ Guntur.

4. The Superintending Engineer/ Operation / Guntur.

… Respondents

The appeal / representation dated 15.12.2007 (received on 15.12.2007) of the appellant has come up for final hearing before the Vidyut Ombudsman on 12.05.2008 in the presence of Sri. A.Narendra Kumar for the appellant and respondent Nos. 1 to 4 and having stood over for consideration till this day, the Vidyut Ombudsman passed / issued the following:

A W A R D

Aggrieved by the order passed by the Forum for Redressal of Consumer Grievances of APSPDCL in CG No.36 / 2007-08 / Guntur Circle (for short the “Forum”) on 19.11.2007, the appellant herein filed appeal / representation dated 15.12.2007 mentioned supra, stating that: -

(a) on 20.05.2005, the appellant applied for HT service connection and for release of supply in a phased manner. Based on the feasibility report issued on 22.07.2005, the appellant requested respondent No.4 to release 500 kVA in the month of October 2005, another 500 kVA in the month of December 2005, another 500 kVA in the month of February 2006 and lastly 800 kVA in the month of April 2006. Turnkey proposal with changes along with estimate was sanctioned on 29.09.2005, supervision charges were paid on 02.12.2005 and by letter dated 03.12.2005 it was requested for release of 1^st phase supply of electricity.

(b) However, service was released on 12.12.2005 by respondent No.2 as per the release order dated 12.12.2005 and after entering into revised agreement. Second phase of 500 kVA was released on 02.03.2006, 3^rd phase of 500 kVA on 21.05.2006 and lastly 800 kVA on 21.09.2006, after entering into revised agreement every time.

(c) Neither respondent No. 4 nor respondent No.2 communicated any rules / regulations with regard to release of HT service. But in the month of August 2006, CC bill for an amount of Rs.3,37,400/- was included as differential phased demand charges.

(d) on receipt of the said bill, the matter was brought to the notice of respondent No.3 with a request to waive the same as the delay in release of supply was due to formalities of department. Representations dated 28.08.2006, 30.08.2006 and 02.12.2006 were also submitted.

(e) as per clause 26.4 of the Terms and Conditions of Supply (“TCS old”) the appellant should be given 3 months notice stating that the supply is ready for release. If appellant fails to take the supply within the stipulated date, the appellant is required to pay charges as demanded by APSPDCL. Notice as mentioned in the above clause was not issued to the appellant. The Forum below in its order dated 19.11.2007 stated that a consumer should give 3 months notice in advance, otherwise the consumer should pay 3 months demand charges in lieu as per the proceedings dated 06.01.2006 of APERC.

(f) The service of the appellant was released prior to the proceedings of APERC and as per law, such proceedings will be effective from the date of its issuance, but not to the service released prior to such proceedings.

(g) In view of the above mentioned TCS-old including the short fall in billing for the month of August 2006 without releasing the supply as per the phased manner requested by the appellant is not correct. Hence, this appeal.

2. In terms of Clauses 8(1)(c) and 11 (1) of the APERC Establishment of Forum and Vidyut Ombudsman for Redressal of Grievances of Consumers Regulation, 2004 (for short “Regulation No. 1 of 2004”), the Vidyut Ombudsman is required to promote settlement by mutual agreement between the parties. In pursuance of the same, respondents were intimated of the filing of the appeal / representation by notice dated 19.12.2007. However, inspite of the best efforts made by the Vidyut Ombudsman, the matter could not be settled by mutual agreement between the parties. In view of the same the respondents were directed to file written submissions.

3. Accordingly, respondents submitted separate, but identical para wise remarks stating that:

(a) the appellant entered into HT Agreement from time to time for each phase of demand wherein the conditions are specifically mentioned. It is not correct that the appellant was not informed of the rules and regulations for release of HT service. As per clause No.5.9.4.3 in para 4 of the General Terms and Conditions of supply (“GTCS – new”) it was mentioned that “in case of consumers who were sanctioned phased contracted demand and supply released for initial or intermediary phased demands, the consumer may seek deferment or cancellation of such of the phased demands which are scheduled beyond minimum period of agreement by giving three months notice in advance or in lieu thereof pay three months charges towards such deferment or cancellation of such phased demands.” As per this clause an amount of Rs.3,34,000/- was included in the CC bill of August 2006.

(b) the claim of appellant that, it should give three months notice in advance is in respect of change of phased demands which are scheduled beyond the minimum period of agreement and not for the change of schedule demands within the agreement period. Hence the contention of the appellant is not correct.

(c) The GTCS-new will apply to all the services, which are existing irrespective of the date of release of the supply as notified by the DISCOM from time to time.

(d) The appellant executed the work by itself taking approval for execution of work under turn key basis. The supply released to the appellant only on receiving the intimation that it is ready to take supply. Accordingly 1^st phase of demand is released on 12.12.2005. Hence, issue of separate notice to the appellant does not arise.

(e) short fall was included in the CC bill of August 2006 according to GTCS-new of APSPDCL.

(f) The Forum in its order dated 19.11.2007, upheld the action of the respondents and further issued instructions to issue a revised bill and regulate the surcharge as per clause 6.1(ii) of APERC Regulation No. 7/2004.

4. On 17.04.2008, the appellant submitted another representation reiterating its earlier contentions and further stating that

(a) the para-wise remarks submitted by the respondents reveal that they have not supplied GTCS and the orders issued by concerned authorities at the time of release of HT service connection to the appellant.

(b) As per clause 26(4) of TCS-old, inclusion of shortfall amount is not correct .

(c ) Turnkey proposal was accorded sanction only on 05.10.2005. After testing, 1^st phase of 500 kVA was released on 12.12.2005 by respondent No.2. The delay is due to administrative reasons and by the respondents. Similarly, release of other phases of demand were also delayed by the respondents for the reasons best known to them, eventhough the work was completed by 03.12.2005.

5. The point that arises for consideration is whether the order dated 19.11.2007 passed by the Forum below is correct.

6. Perused the record, heard the arguments of the parties.

7. The facts like submission of application for release of supply (HT service connection) in phased manner by the appellant, execution of the work by the appellant on turnkey basis, delay in release of different phases, etc are not in dispute. Thus, the only issue that falls for consideration of the Vidyut Ombudsman relates to the demand billed by the respondents in the CC bill for the month of August 2006 of the appellant.

8. The Forum below in its order dated 19.11.2007 referred to proviso(2) of clause 5.9.4.3 of General Terms & Conditions of Supply (GTCS) as approved by the APERC on 06.01.2006 and observed that the respondents ought to have released HT supply with a demand of 1000kVA instead of 500kVA. The Forum also found fault with the respondents stating that they have not claimed short billed amount from the dates as requested by the appellant for release of different phases viz., October 2005, December 2005, February 2006 and April 2006 and further stated that the short billed amount of Rs.3,25,600/- as claimed by the respondents is much less than what is actually due from the appellant.

9. The observation(s) of the Forum mentioned above are not correct. As seen from GTCS, Clause 5.9.4.3 of GTCS deals with ‘Termination of LT Agreement and HT Agreement on account of disconnection. ‘ Under the said clause, power is vested in a distribution licensee to terminate LT or HT Agreement of a consumer who fails to regularise power supply which is disconnected for non-payment of amount due to such licensee. In this case, eventhough the issue before the Forum did not relate to termination of agreement of the appellant, much less for failure to regularise power supply which is disconnected for non-payment of amount due by the appellant, proviso (2) of the said clause states that a consumer who seeks deferment of (sanctioned) phased demand(s) beyond the minimum period of agreement (i.e, 2 years), has to give 3 months notice in advance or pay 3 months charges in lieu of such notice towards deferment of such phased demand. In this case, it is not brought on record that the appellant sought for deferment of phased demands. On the other hand, perusal of the record reveals that the delay in release of different phased demands is due to administrative reasons on the part of respondent(s) concerned. Estimate for erection of 33kV line was sanctioned vide CE/Z/VJY/Memo No.1025 dated 29.09.2005 as mentioned by the Forum. Therefore, it is but natural that supply was released on 12.12.2005. This indicates that release of first phase of demand itself is delayed by 2 months by the respondent (s) concerned. Similarly, subsequent release of phased demands also naturally got delayed. Whatever it may be, it is not in dispute that the deferment (at the instance of appellant for argument sake) or delay (by the respondent(s) concerned) of phased demands is not beyond the minimum period of agreement. In the present case the minimum period of agreement is 2 years. Therefore, proviso(2) of clause 5.9.4.3 of GTCS is not relevant to the facts of this case. It is needless to state here that giving 3 months notice in advance or payment of 3 months charges towards deferment of phased demands, in lieu of notice, will arise in case such deferment of phased demands is beyond minimum period of agreement i.e, 2 years as stated supra.

10. In view of the above, the Vidyut Ombudsman is of the opinion that in this case the respondents cannot demand short billed amount from the appellant. Even if it is admitted that deferment of phased demands is at the behest of appellant, the appellant is not required to give notice to the respondents for the simple reason that such deferment is not beyond ‘minimum period of agreement’. For the said reason, the respondent(s) is not correct in levying demand charges in the CC bill for the month of August 2006 and the same is without any basis.

11. Moreover, according to clause 5 (Date of coming into force of the Agreement) of the ‘Agreement for Supply of Electricity at High Tension’ viz., Appendix – IIA of GTCS, a consumer shall take electrical energy from the Company (DISCOM) within 3 months, from the date of issue of intimation in writing to the consumer by the Authorised Officer of the Company that supply of electrical energy is available. Therefore, it is clear that it is the responsibility of the respondents to intimate in writing to the appellant that supply of electrical energy is available and respondents have not placed on record that they have issued such notice to the appellant. For that reason also, the respondent(s) is not correct in levying minimum charges in the CC bill for the month of August 2006.

12. Accordingly, the order dated 19.11.2007 of the Forum below as well as the CC bill issued by the respondents for the month of August 2006, which includes short billed amount, are set aside. The respondents are directed to calculate energy consumption charges of the appellant as per the actual dates of release of different phased demands and accordingly raise revised bill within one month from the date of receipt of this order. The appellant has to pay the amount due to the respondents within one month from the date of such revised bill. If the appellant had already paid any amount which is in excess of the revised bill to be raised by the respondents as per the directions of the Vidyut Ombudsman as mentioned above, the respondent(s) concerned is further directed to adjust such excess amount in the future bills of the appellant. The appeal / representation is accordingly allowed.

This order is corrected and signed on this 6^th day of June 2008.