BEFORE THE VIDYUT OMBUDSMAN

Present

K.Rajagopala Reddy, Director (Law) and

Vidyut Ombudsman

 

 

Dated :  11-09-2008

 

Appeal No. 18 of 2007

Between

M/s. Hindustan Petroleum Corporation Limited,

Represented by Chief Manager – VSPL,

VR-ATP Area, Naval Base Post,

Visakhapatnam – 530014.                                                                            … Appellant

And

 

1.   The Superintending Engineer/Operation/APEPDCL/ Rajahmundry

2.      The Chief General Manager/ RAC/ APEPDCL / Visakhapatnam

3.   The Chief General Manager/ O&CS/ APEPDCL / Visakhapatnam

4.   The Chairman & Managing Director/APEPDCL/ Visakhapatnam

…  Respondents

 

The representation / appeal dated 23.05.2007 filed by the appellant (received on 25.05.2007) came up for final hearing on 30.08.2008 in the presence of Sri B.Srinarayana, Advocate, Sri B.V.Rama Rao, Senior Legal Advisor, Sri V.V.Krishnam Raju, Deputy General Manager on behalf of the appellant and Sri.Y.Kalidas, Senior Accounts Officer and    Sri M.Rajgopal, Junior Accounts Officer on behalf of respondent No. 1 and having stood over for consideration till this day, the Vidyut Ombudsman passed / issued the following:

 

 

O R D E R

 

            In its order dated 18.12.2006 in appeal No. 17 of 2006 , the Vidyut Ombudsman ordered that in respect of HT Service Connection No. 388  of the appellant herein, the assessment notice dated 17.09.2005 issued by the ADE / operation / Rural / RJM for the back billing amount of Rs.1,78,45,850/- payable for the period from March 1999 to August 2005 shall not be enforced till the respondent No.1 issues orders as mentioned in para 12 therein in accordance with law.

 

2.            Thereafter, respondent No.1 issued letter dated 21.03.2007 to the appellant directing it to pay an amount of Rs.1,81,34,479/-. By letter dated 03.04.2007 the appellant submitted objection for the said assessment and sought opportunity of personal hearing.  Thereafter after giving opportunity of personal hearing, respondent No.1 issued Proceedings No.SE/O/RJY/SAO/JAO / HT /D.No.71 /07, dated 30.04.2007, wherein the objections of the appellant were rejected and demand for payment of above mentioned amount towards shortfall amount for difference of tariff is reiterated.

 

3.            Aggrieved by the said proceedings dated 30.04.2007 of respondent No.1, the appellant filed appeal / representation dated 23.05.2007 (received on 25.05.2007) stating that:

(a)               notwithstanding anything contained to the contrary in any other law in force, no sum can be recovered after a period of two years as laid down        u/s 56(2) of the Electricity Act, 2003.  As the said provision has over-riding effect on any other law, clause No. 35 of General Terms and Conditions of Supply relied upon by respondent No.1 is against the provisions of the Electricity Act, 2003.

(b)               respondents have no authority in law to raise back billing to arrive at arrears in total disregard to the provisions of Section 56(2) of the Electricity Act, 2003.

(c)               for the reasons mentioned above, it is prayed that the Vidyut Ombudsman may quash the proceedings dated 30.04.2007 issued by respondent No.1 and pass such other order as the Vidyut Ombudsman deem fit and proper in the circumstances of the case.

 

4.         Sri M.Ravindranath Reddy, Advocate entered appearance on behalf of the appellant and filed vakalat on 16.08.2007.

5.         In terms of clause 8(1)(c) and clause 11 of Regulation No.1 of the Hon’ble APERC, the Ombudsman is required to endeavour to promote settlement by mutual agreement between the parties.  By notice dated 31.10.2007, the respondents are intimated of the filing of the appeal and were instructed not to take further action against the appellant on the subject matter in the appeal.

 

6.         On 28.03.2008, the appellant as well as his counsel and                           Sri N.Hanumantha Rao, SE / RJY were present.  On behalf of the appellant, his counsel Sri B.Srinarayana, Advocate filed memorandum on the said date stating that:

            (a) during the pendency of the proceedings before the Vidyut Ombudsman, the appellant filed W.P.No. 2697 of 2008 before the Hon’ble High Court of Andhra Pradesh challenging the Lr.No.ADE/O/R/RJY/ Sub.Engr .F.BB.Doc.No.   /2005-06/D.No.1144 dated 17.09.2005 as confirmed by the orders dated 03.06.2006 by the Forum for Redressal of Consumer Grievances of Eastern Power Distribution Company Ltd, Visakhapatnam  in C.G.No.40 of 2006 and the orders dated 18.12.2006 of the Vidyut Ombudsman in appeal No. 17 of 2006 in so far as they are against the unit of the petitioner at Rajahmundry.

 

            (b)             Hon’ble High Court of Andhra Pradesh by its order dated 12.02.2008 granted interim relief staying all further proceedings.

 

            (c)             In view of the same the appellant prays that the proceedings in the present appeal may be deferred till the disposal of W.P.No.2697 of 2008 referred to above.

 

7.         During the hearing on 28.07.2008, the counsel for the appellant filed another memorandum stating that:

            (a)             W.P.No.2697/2008 came up for hearing before the Hon’ble High Court on 16.04.2008 along with four other writ petitions.  After hearing the arguments, the High court was pleased to pass elaborate order in W.P.No.2185 of 2008. Following the said judgement of High court, W.P.No.2697/2008 is also disposed on 16.04.2008 itself “setting aside the original proceeding of the respondents dated 17.09.2005”.

           

(b)            In view of the above, the it is prayed that the Vidyut Ombudsman may set aside the proceedings No. SE/O/RJY/SAO/JAO/HT/D.No.71/07 dated 30.04.2004 issued by respondent No.1 and allow the appeal.

           

8.         A copy of the memorandum dated 28.07.2008 filed by the Counsel for the appellant referred to above was sent to respondent No.1 on 29.07.2008 along with the notice of next date of hearing.

 

9.         On 30.08.2008, the counsel for appellant and Sri B.V.Rama Rao, Senior Legal Advisor, Sri V.V.Krishnam Raju, DGM were present.  On behalf of respondent No.1 Sri Y.Kalidas, Senior Accounts Officer and Sri M.Rajgopal, Junior Accounts Officer were present.  Senior Accounts Officer filed a letter of authorisation issued by respondent No.1 authorising the former to appear before the Vidyut Ombudsman.  Senior Accounts Officer also filed a counter stating that in view of the disposal of the writ petition filed by the appellant, the present appeal is to be dismissed as infructuous.  It is further mentioned that the appellant cannot maintain two parallel proceedings i.e., one before the Vidyut Ombudsman and another in the High Court.

 

10.       Along with the counter, Senior Accounts Officer also filed Lr.No.SE/O/ RJY/SAO/JAO/HT/F.Doc/ / D.No.149/08, dt: 28.08.2008 written by respondent No.1 addressed to Vidyut Ombudsman reiterating the events that had taken place eversince inspection of the service of the appellant in the year 2005.  It is further mentioned that the Chief General Manager / Comml, RAC  & Planning has instructed to disconnect the power supply duly following the departmental rules in vogue and the respondent No.1  himself issued notice to the appellant vide Lr.No. SE/O/RJY/SAO/JAO-H1/F.RJY 385 D.No.148/08 dt:27.08.2008 demanding payment of Rs.1,81,34,479/- within 15 days from the date of receipt of the said notice, failing which it is informed that service will be disconnected.

 

11.       The point that arises for consideration of the Vidyut Ombudsman is whether the appellant is entitled for the relief claimed by it in the appeal / representation dt: 23.05.2007, viz., to quash proceedings No. SE/O/RJY/ SAO/JAO/HT/D.No.71/07, dt: 30.04.2007 issued by respondent No.1.

 

12.            Perused the record.  Heard the arguments.  In the present appeal, the appellant challenged the proceedings of respondent No.1 dt:30.04.2007 demanding payment of certain amount by the appellant towards shortfall amount due to difference in tariff on certain grounds mentioned in paragraph 3. However, during the pendency of the proceedings before the Vidyut Ombudsman, the appellant approached the Hon’ble High Court challenging recategorisation of its electrical service connection from HT Cat-I (Industry) to HT Cat-II(Non-Industrial).  The Hon’ble High Court in its order dt: 16.04.2008 categorically stated that it is mandatory for the respondents to issue a notice before changing the classification of the service connection of the appellant herein.  The Hon’ble High Court further held that such notice was not given to the appellant and therefore, declared the change of category of the appellant from HT Cat-I to HT Cat-II as void.  However, the Hon’ble High Court directed the respondents to issue notice and decide the claim of the appellant that it should be categorised under HTCat-I.

 

13.       In the light of the above categorical observations of the Hon’ble High Court, the Vidyut Ombudsman is of the opinion that the impugned proceedings  dt: 30.04.2007 of respondent No.1 demanding payment from the appellant towards shortfall amount due to difference in the tariff has lost its significance for the simple reason that unless the appellant has given a notice of proposed change of category from HT Cat-I to HT Cat-II and a final decision is taken, the further question of payment of any amount towards shortfall amount due to difference in tariff will not arise.

14.            Moreover, it is a matter of record that in obedience of order of the Hon’ble High Court, respondent No.1 issued notice dt:07.05.2008 afresh to the appellant to show-cause as to why (a) service connection should not be changed from HT Cat-I to HT Cat-II from the date of release of supply i.e., 06.03.1999 and (b) difference in tariff amount of Rs.1,81,34,479/- for the period from 06.03.1999 to August 2005 should not be collected.  It is also on record that final orders dt:09.06.2008 were passed by the respondent No.1 in this regard.  Whatever it might be, it is evident that the proceedings initiated by the respondent herein afresh in obedience of directions of the Hon’ble High Court, have superceded the earlier proceedings in this regard including the proceedings of the respondent No.1, dt: 30.04.2007 which is under challenge before the Vidyut Ombudsman in the present appeal.

 

15.       Even otherwise, the impugned proceedings dt:30.04.2007 is not an independent proceedings, but culmination of assessment notice dt:17.09.2005 issued by the ADE/Operation/Rural/RJY.  As mentioned supra the said proceedings of ADE dt: 17.09.2005 was challenged by the appellant before the Hon’ble High court of Andhra Pradesh, which declared the action of changing appellant’s category from Cat-I to II as void by order dt:16.04.2008.  For that reason also, it is clear that the proceedings dt: 30.04.2007 of respondent No.1 is of no consequence as respondent No.1 cannot take any further action in pursuance of the said proceedings.

 

16.       In view of above, the Vidyut Ombudsman is of the opinion that the impugned order dt: 30.04.2007 of respondent No.1 which is being questioned in the present appeal / representation has been superceded by subsequent developments warranting no interference by the Vidyut Ombudsman.  Accordingly, the appeal / representation of the appellant dt: 23.05.2007 is disposed off.

 

           

This order is corrected and signed on the 11th day of September, 2008.

 
 
VIDYUT OMBUDSMAN

 

VIDYUT OMBUDSMAN

4th Floor, Singareni Bhavan, Red Hills, Hyderabad-500 004

 

From

 

K.Rajagopala Reddy,

Director(Law) and Vidyut Ombudsman,

‘Singareni Bhavan’ 4th Floor,

Red Hills, Lakdikapool, Hyderabad.

 
To

 

M/s. Hindustan Petroleum Corporation Limited,

Represented by Chief Manager – VSPL,

VR-ATP Area, Naval Base Post,

Visakhapatnam – 530014.

 

 

Lr.No.VO/Appeal No.18 / 2007 dated  11.09.2008

 

Sir,

 

Sub:-            Appeal No.18 of 2007 – Representation of M/s. Hindustan Petroleum                               Corporation of India Ltd. – Reg.

 

                              *****

 

            A copy of the Order passed by Director(Law) and Vidyut Ombudsman, on 11.09.2008, in Appeal No.18 of 2007 is forwarded herewith.

 

Yours faithfully,

 

 

Director (Law) & Vidyut Ombudsman

 

Encl: as above

 

 

Copy to:

 

1.  The Superintending Engineer/Operation/APEPDCL/ Rajahmundry

2.   The Chief General Manager/ RAC/ APEPDCL / Visakhapatnam

3.   The Chief General Manager/ O&CS/ APEPDCL / Visakhapatnam

4.   The Chairman & Managing Director/APEPDCL/ Visakhapatnam

5.  The Chairperson, Forum for Redressal of Consumer Grievances of APEPDCL.

       Visakhapatnam.

6.  The Secretary, APERC, Hyderabad.

7.  The JD/IT, APERC – with a request to keep this order in the Commission’s Website.

8.  Sri M.Ravindranath Reddy & Sri M.Srinarayana Advocates, 203, Lingapur House,   

     Himayath nagar, Hyderabad – 29.