VIDYUT
OMBUDSMAN
5th Floor, Singareni Bhavan, Red Hills,
Hyderabad –500 004.
Dated:
03-08-2006
Present: S. Surya Prakasa Rao, Ombudsman
Khurda Road … Appellant
and
1. Senior Accounts Officer /
Operation / Srikakulam
This representation (appeal) dated
10-05-06 made by the senior Divisional Engineer (G), East Coast Railways Khurda
Road, (here in after called the appellant or consumer) against the order
dated:17-04-06 of the Forum for redressal of grievances of consumers, EPDCL,
(herein after called the Forum or CGRF) in CG.No.9/2006 (Srikakulam Dt.) coming
up for before the Ombudsman for consideration and having stood over till this
the day, the Ombudsman issues the following:
ORDER
2. The facts on record in this case are narrated here in. The appellant
has been availing HT supply at 11kV to the Palasa railway station from 1965,
under HT category II from the erstwhile APSEB.
Pursuant to a meeting between the officials of the APSEB and the South
Eastern (SE) Railways (Presently East Coast Railways) on 17-12-1993, the
erstwhile APSEB issued instructions in Memo Dated 21-01-1994 to re-classify the
HT services of railway stations of SE Railways from HT category II to HT
category VI where the colony load forms more than 50% of the total connected
load duly following the procedure specified therein. Accordingly the HT service
of Palasa railway station was re-classified under HT category VI with effect
from July 1994. However pursuant to an Audit objection and after verification
of connected load on 05-02-2005, the SE/Operation/SKLM (respondent No.2) issued
a notice on 01-04-2005, again re-classifying this HT service back to HT
category II with effect from July 1998 on the ground that the connected load
for the purposes other than Domestic purpose exceeded the limits prescribed by
the APSEB in B.P.Ms.No.26 dated 24-06-1998.
In the said B.P. the APSEB specified the percentages for loads used for
purposes other than Domestic purpose as follows:
·
Water supply, sewerage
and Street Lighting - 10% of total
load
·
Non-domestic/Commercial/General
purpose - 10% of total load
This means
that the Domestic load shall not be less than 80% as against “above 50%”
allowed in the Memo dated 21-01-1994.
The connected loads as per the inspection done on 25-02-2005 are as
follows:
|
Domestic
Load |
132
KW |
53.66% |
|
Station,
Offices & others |
82
KW |
33.34% |
|
Street
lighting |
8 KW |
13.00% |
|
Pumping |
24
KW |
|
|
|
246 KW |
100.00% |
In the said
notice, the SE/Operation/SKLM demanded the consumer to pay Rs.1.39 Crores
(approximately) towards shortfall of electricity charges between HT category II
and HT category VI for the period from 7/98 to 3/05. Aggrieved by this notice,
the consumer filed a complaint before the CGRF, EPDCL Visakhapatnam on
16-01-2006, (along with complaint pertaining to Ichapuram Railway station). The
learned Forum in its order dated 17-04-2006 in CG.No.9/2006, in so far as
Palasa railway station is concerned, directed the licensee to reclassify the
service under HT category – II from the date of release of additional load
i.e., from 27-09-2001 instead of from July 1998. Not satisfied by the said
decision of the Forum, the appellant filed this appeal.
3. In this appeal the
consumer raised the following prime contentions:
a)
The shortfall demand is
raised after a lapse of about 7 years.
b)
No joint survey was
made before reclassification to HT cat –II.
c)
The joint survey was
conducted in August 2005. Hence Railways are agreeable in principle for
re-classification from September 2005.
d)
Based on the guidelines
of Railways, the load is planned to be increased both at the stations, service
buildings etc, and Residential quarters in a phased manner and maximum load was
reached in 2005 as verified during the joint survey done in August 2005.
e)
The findings of the
Forum that the additional load released on 27-09-2001 is purely for commercial
activity and therefore the usage of Non - Domestic load has increased from
27-09-2001, are not correct and hence they do not agree for the same.
4. As required under clause 8(1)(C) of the APEPC Regulation
No.1 of 2004, the Ombudsman conducted a meeting between the parties herein on
08-06-2006 at srikakulam to arrive at a mutually acceptable settlement.
Pursuant to the deliberations in this meeting, the appellant addressed a letter
dated 14-06-2006 to the Respondent No.2, reiterating his stand for
reclassification under HT category II from the date of joint inspection in
August 2005. Responding to this letter of the appellant, the respondent No. 2
(SE/Operation/SKLM) in his letter dated 13-07-2006 addressed to the Ombudsman,
stated that they are not agreeable to the proposal of the appellant since the
conditions specified in B.P. Ms. No 26 dated 24-06-1998 are not satisfied and
hence the re-classification is applicable from 24-06-1998.
5. As no settlement was reached the parties herein were heard on 25-07-2006
at Hyderabad after issue of notice on 04-07-2006. Sri. Somnath Sahu, Asst Divisional Electrical
Engineer, Khurda Road, representing the appellant reiterated their written
submissions and confirmed that Railways are agreeable for the re-classification
from September 2005 i.e. after the joint verification of connected load in
August 2005. Sri.S.Purushotham Senior Section Officer, Palasa who also attended
the hearing on behalf of appellant on 25-07-2006, said that they were not
informed of the purpose of the visit of licensee’s officers on 05-02-2005 and
the data was not actually verified. Sri. Sahu said that, had they been given
notice in 1998 if self, they would have segregated the Domestic load and
availed separate HT connection then it self and stated that after receipt of
notice dated April 1, 2005, they have applied for separate connection for
colony. He also drew my attention to section 56(2) of the Electricity Act 2003,
(though it was not mentioned in the written submissions) and said that they are
not required to pay the arrears for the past period as per this provision of
the Act. Responding to my question on
the details of connected loads used for Domestic purpose and Non-Domestic
purpose, the appellant said that they did not bring the data for this hearing.
Sri. Y.Prakasa Rao,
SE/Operation/Srikakulam (respondent. No.2) has re-iterated the stand taken in
their written reply dated 13-07-2006 and asserted that the respondents are
entitled to re-classify the service from 24-06-1998 i.e. from the date of issue
of B.P. Ms. No. 26 dated 24-06-1998. Responding to my question to furnish the
source of the enabling power to re-classify the service with retrospective
effect, Sri. H.Gopala Rao, SAO (respondent.
No.1) stated that they have such power and offered to furnish the details of
relevant provision later. In response to the observation of the appellant on
the verification of load on 05-02-2005 they furnished a copy of the said
report, which was signed by the representatives of the East Coast
Railways. The respondents have refuted
the contention of appellant in respect of application of section 56(2) of the
Act and said that they have raised a demand afresh and are not pursuing a
demand made earlier. Responding to my question the respondents have informed
(orally) the details of connected load used for Domestic purpose and
Non-Domestic purpose as verified during the joint inspection done in August
2005, as follows:
Domestic
Load 405KW
Non-Domestic
Load 95 KW
Pumping 40
KW
6. In the light of the rival contentions narrated herein above, the limited
issue for consideration in this appeal is:
“Whether the respondents are
entitled to reclassify the service retrospectively from July’98, pursuant to
the B.P.Ms.No.26
dated 24-06-1998 of erstwhile APSEB? If not from what date such
re-classification is to be done.”
7. The following questions
arise in deciding the issue framed in Para 6 above.
a)
Whether the amendment
issued by the APSEB in BP Ms No. 26 dated 24-06-1998 can be construed to have
cancelled the special dispensation allowed by the APSEB itself to the S.E.
Railways in Memo dated 21-01-1994, in the absence of specific reference to such
dispensation in the said B.P?
b)
If not, whether the
APSEB or its successor - in - interest is not required to issue notice or
intimation of withdrawing the special dispensation before re-classification to
a category which has a higher tariff?
c)
On issue of such notice
whether the APSEB or its successor entity is entitled to reclassify the service
with retrospective effect?
8. These
Questions are discussed in detail here under:
a) At the out set it is to be stated that the HT category VI is meant for
those consumers who are having service connection under categories I to V and
who want to have a separate connection for the residential colony / Town ship
attached to his establishment for domestic purpose like lights and fans etc,
and any other Non-Domestic supply in the residential area. (Vide condition 5 of
General conditions of HT supply in the Tariff notifications / Tariff orders
issued from time to time). Thus in the case of Railway stations having
substantial load used for Domestic purpose, the Railway authorities in the
normal course, should have segregated their colony load and taken a separate
connection under HT category VI for the colony load If they desired a lesser
tariff for colony consumption. However, as a matter of consideration under
bilateral arrangements agreed upon between South Central (S.C.) Railways and
APSEB (as seen from Memo dated 23-03-1993 of APSEB) a special dispensation was
permitted to the Railway stations of S.C. Railways, for classification under HT
category VI if the connected load of the colony forms more than 50% of the total connected load. This facility
was later extended to the Railway stations of South Eastern (S.E.) Railways
also, vide APSEB Memo dated 21-01-1994. This special dispensation implies the
following reliefs to the HT services of Railway stations of S.C. Railways and
SE Railways in the state:
i) They need not take separate HT connection for
colony thus saving the capital expenditure required for installing necessary
infrastructure.
ii) The
station load also is charged at the HT category VI tariff rate instead of at HT category II tariff rate, a part
from the colony load.
Thus, this has to be
recognized as a specific arrangement (special dispensation) pursuant to an
understanding between APSEB and the S.E. Railways and cannot be considered as a
normal classification under HT category VI.
Hence any changes in the HT category VI tariff conditions cannot be
automatically applied to the services covered under this special arrangement.
The amendment issued in B.P.Ms.No. 26, dated 24-06-1998 has to be understood in
this background in so far as railway stations of S.E.Railways being billed
under HT category VI pursuant to the Memo dated 21-01-1994 are concerned.
Further the said amendment also contains executive instructions in Para 4
therein which is extracted here under:
“4. All
the zonal chief Engineers and Superintending Engineer, Operation, are requested
to take necessary action accordingly, that all the H.T. category – VI services
in their Zones/Circles should not exceed the ceiling limits of the load.”
It
is clear from the above directions of APSEB that the zonal CEs / SEs have to
ensure that the non-domestic load in the HT category VI services are with in
the limit specified, (There is no directive to re-classify the services
unilaterally). In any case, no mention
is made in the said B.P. about cancellation of the specific arrangements agreed
for the treatment of Railway Stations loads.
Thus
in my view the said B.P. issued by APSEB does not automatically cancel the
special dispensation earlier approved by the same authority (APSEB).
(b) When an understanding / agreement was
reached between two parties and if any one party to such understanding wants to
deviate from the same, it has to inform the other party, of its intention of
such deviation. In this case the EPDCL
should have informed the SE Railways of its intention to withdraw the
facilities earlier extended pursuant to the Memo dt. 21-01-1994. Thus it is
imperative that a notice is to be issued to the SE Railways, unless the
competent authority (APSEB) expressly cancels such special dispensation.
(c) It is not clear whether there is any
enabling provision empowering the licensee to re-classify a service with
retrospective effect on issue of notice for such re-classification. As stated
in para 5 above, the respondents furnished a copy of the Memo dated 08-07-1997 of the APSEB in which
the procedure for back billing in the cases of meter defect and in the cases of
wrong connection was prescribed. This Memo of APSEB is not relevant for
reclassification issue and hence it is of no help to the respondents. However
there was a mention of clause 35 of the Terms & Conditions of Supply (TCS)
read with clause 5 of the agreement, in the order of the Forum. Neither the
appellant nor the respondent have advanced any arguments for or against the
said provisions in these proceedings before the Ombudsman. It is necessary to
examine the said provisions before taking a view on the aspect of retrospective
application of revised classification. The above referred provisions are
extracted here under.
“35. Reclassification of consumer and Revision
of bills:
Where
a consumer has been classified under a particular category and is billed
accordingly and it is subsequently observed that the classification is not
correct, the Board may alter the classification and suitably revise the bills
if necessary even retrospectively.”
Clause 5 of
the HT Agreement:
“ 5. Obligation to comply with requirement of Acts and
Terms and Conditions of Supply:
I/We
further undertake to comply with all the requirements of the Indian Electricity
Act, 1910, the Electricity (Supply) Act,1948, the Rules there under, provisions
of the tariffs scale of Miscellaneous and General charges and the terms and
conditions of supply prescribed by the Board from time to time and agree not to
dispute the same.”
It may be
seen that as per clause 35 of the TCS, the APSEB Board was empowered to revise
the bills if necessary (emphasis mine) even retrospectively. The
consumer, by virtue of clause 5 of the agreement, is obliged to abide by the
TCS prescribed by the Board (APSEB) from time to time. A plain reading of
clause 35 of TCS gives an impression that the said provision would apply for
the wrong classifications in-advertantly done and detected later. The usage of
words “if necessary” conveys the requirement of application of mind before
resorting to re-classification retrospectively and not necessarily in every
case. Further even if such consideration (application of mind) took place, whether
such retrospective application can be done in the cases of classification done
pursuant to the orders of the competent authority, is a moot question.
The TCS of
erstwhile APSEB and agreements entered into by consumers thereon were
considered to be statutory in nature by virtue of the statutory power vested in
the erstwhile APSEB under section 49 of the Electricity (supply) Act 1948 to
fix its own TCS. However after the enactment of the A.P. Electricity Reform Act
1998, these TCS are subject to the Regulatory jurisdiction of the Hon’ble APERC
by virtue of the Licence conditions stipulated in the Distribution and Retail
supply licences granted by the Hon’ble Commission to the DISCOMs as successor
entities of APSEB/TRANSCO. Hence the licensee’s cannot continue to exercise the
statutory power vested in the erstwhile APSEB, as its successor entities in the
Regulatory regime under the APERC. In
view of this, I have no hesitation to take a view that section 35 of the TCS
does not enable the respondents to revise the bills retrospectively for the
consumer or a class of consumers with whom the predecessor entity (APSEB) had
an express understanding for special dispensation in the matter of tariff
classification.
9. Having taken a view that the
respondents are not entitled to re-classify the Railway Stations
retrospectively as explained above, I do not consider it necessary to examine
the aspect of the share of connected loads for Domestic purpose and for other
purposes. It is to be noted that when once the special dispensation is sought to be
withdrawn by a notice, the question of any computations of percentage of loads
used for Domestic and Non-Domestic purposes out of the composite loads of a
Railway station does not arise. The composite HT service of a Railway station
simply falls under HT category II from the date such notice is issued
withdrawing the earlier special dispensation. The consumer has to segregate the
Domestic load and avail separate connection under HT category VI if he wish to
avail benefit of lesser tariff fixed for Town ship / Colony. This is what is now in process as mentioned
by the appellants during the hearing.
10.
Nevertheless it is
necessary to explain why the order dated 17-04-2006 of the learned Forum is not
acceptable. The learned Forum appears
to have based its decision on the pattern of recorded demand and energy, which
showed a perceptible increase from September/October 2001 onwards. It is
pertinent to note that neither the “recorded demand” nor the “level
of energy” consumed was the prescribed basis for classification under HT
category VI as per B.P.Ms.No.26 dated 24-06-1998 or as per the subsequent
Tariff Notifications/Tariff Orders. The share of “connected load” used
for Domestic purpose and for other purposes is to be the basis. In this case the split up of the connected
loads between Domestic and other purpose is available pursuant to the
inspections done only at 3 points of time viz.;
i)
In June 1994, vide
ADE/Operation/Palasa letter dt 25-06-1994
ii)
On 05-02-2005, vide
ADE/Operation/Palasa letter dated 05-02-2005
iii)
On 30-08-2005 joint
verification accepted by appellants.
The split up of connected loads for Domestic and for
other purposes on these 3 dates was as follows:
|
Date of Inspection |
Domestic Loads |
Pumping Street Lights
Load |
Non-Domestic Load |
Total Loads |
|
June, 1994 |
65.00HP |
67.00 KW |
257.67 KW |
|
|
+ 7.5 kVA |
66.00 HP |
|||
|
+ 1.0 HP |
7.5 kVA |
|||
|
05-02-2005 |
70 KW |
24 KW |
||
|
+12 KW |
+ 8 KW |
|||
|
30-08-2005 |
40 KW |
95.152 |
540.282 KW |
It may be
seen from the above data that between July 1994 and August 2005, the connected
load for domestic purpose has increased by over 120% while the Non-Domestic load
has increased only by about 25%. Hence the observation of the learned Forum
that the additional load released on 27-09-2001 is for non-domestic purpose,
does not appear to be based on the connected load data and it appears to be
based on the pattern of level of total demand and total energy used, which is
not a relevant consideration for the purpose of classification under HT
category VI. The order dated 17-04-2006 of the learned Forum of EPDCL is
therefore liable to be set aside.
11. Concluding
the above discussion, I decide the following award in this appeal. The HT service of the Palasa railway station
shall be billed under HT category VI up to 31st March 2005. From 1st
April 2005 (i.e. from the date of issue of notice) it shall be billed under HT
category II. The demands raised on the consumer shall be revised accordingly.
12. The
respondents shall be required to implement this award only after the appellant
gives consent for this award to the respondent in terms of clause 12 of the
APERC Regulation No.1 of 2004.
This Order is signed by me on this 3rd
day of August, 2006
VIDYUT OMBUDSMAN
To
Copy
to
The
Secretary,APERC, Hyderabad.
The
Chairperson,
Forum
for redressal of grievances of consumers,
EPDCL,
Visakhapatnam