Amareshwar Sahay, J.@mdashThe prayer of the petitioner in this writ application is for direction upon respondents Damodar Valley Corporation (hereinafter called as D.V.C. in short for convenience) to give incentive to the petitioner in terms of Clause 9.1 of the new HT Supply Tariff effective from 01/09/2000 for the energy consumed by the petitioner during off peak hours, i.e. 00.00 hours to 16.00 hours of the day by charging energy charges at the 65% of the normal energy rate without installation of T.O.D. Meter and on the basis of reading recorded by the existing Electric Mechanical Meter with Printo-Maxi Graph (PMG) at an interval of 15 minutes by manually calculating the rebate and for quashing the letter dated 14/03/2000, issued by respondent No. 3 The Chief Engineer (Commercial), D.V.C. asking the petitioner to pay the retrenched amount of Rs. 16,86,645/- adjusted by the petitioner towards rebate in terms of Clause 9.1 of the new tariff.
2. The case of the petitioner, as made out, is that the petitioner is engaged in manufacturing of Steel Ingots, M.S. Rounds, Ferro Alloys etc. and its manufacturing plant is situated in Ramgarh Industrial Area at Marar in the District of Hazaribagh. The manufacturing unit of the petitioner falls under the area of D.V.C. In the year 1989, the petitioner entered into an agreement with D.V.C. for supply of electrical energy in bulk at 33,000 volts. At the time of entering into the agreement, the contract demand of the petitioner was 4000 KVA, which was subsequently increased to 5000/- KVA from 01/11/1993 and it further increased to 8000/- from 01/09/1995 but subsequently, it was reduced to 6000/- KVA from 08/01/1999.
3. The D.V.C. issued of letter dated 12/05/2000 to the petitioner, intimating revision of power supply tariff. The petitioner by its letter dated 30/08/2000 to the D.V.C. requested to install a TOD Meter in its premises for availing concessional tariff for off peak hours. In terms of Clause 9.1 of the new electricity tariff for HT supply, which was made effective from 01/09/2000 the HT consumer having contract demand below 100 MVA was to fulfill certain conditions to avail incentive for energy consumed by it during off peak hours. The off peak hours has been defined u/s 9.1 (g) which is for a period of continuous 16 hours in a day starting from 00.00 hours to 16.00 hours.
4. According to the petitioner, in spite of the request made by him, no T.O.D. Meter was installed. On 07/09/2000, the D.V.C. informed the petitioner that it has formulated a new scheme under which all existing meters will be replaced with new generation micro-processor based solid state tariff meter.
5. The petitioner by letter dated 12/09/2000 requested the D.V.C. to install the new generation electronic meter so that it can avail the concessional tariff without installation of separate TOD meter but the D.V.C. did not install the new generation Electronic Meter in the premises of the petitioner. The petitioner wrote a letter to the Chairman making a grievance in that regard on 24/11/2000. According to the petitioner, the function of TOD meter was to register energy and demand during the different time periods and the electro mechanical meter with PMG already installed in the premises of the petitioner was also recording energy and demand at an interval of 15 minutes during the different time periods though out the day and, therefore, the basic data for calculation of concessional tariff was also available in the Electro Mechanical meter with PMG presently installed in the premises of the petitioner and, therefore, the concessional tariff was possible to be granted by manual calculation from the chart roll of the PMG without installation of TOD meter and, therefore, he wrote a letter on 14/12/2000 to the Chairman, D.V.C. bringing those facts to his notice and stating that the petitioner was entitled to rebate of Rs. 11,00,000/- for the period from September to November, 2000, which has been denied to it in absence of TOD meter.
6. The grievance of the petitioner is that the respondents sat tight over the matter and did not respond to the genuine demand of the petitioner for grant of incentive. The petitioner further wrote a letter to the authority of DVC on 31/01/2001 informing that it is entitled for a rebate of Rs. 16,86,645/- for the period from September to November 2000 for ''off-peak'' hours energy consumption by calculating the same on the basis of reading recorded by existing system. Since the respondents did not respond, the petitioner while making payment of bills for the month of December, 2000 on 07/03/2001, a sum of Rs. 16, 86, 645 from the said bills was deducted towards rebate by way of incentive.
7. On 14/03/2001, the respondent No. 3 wrote a letter to the petitioner stating that the petitioner failed to deposit a sum of Rs. 6.95 lakhs demanded from it on 19/11/1998 towards installation of TOD meter and thus the petitioner was asked to pay the deducted amount of Rs. 16,86,645/- to avoid any penal action.
8. Further according to the petitioner, the DVC did not install the TOD meter or the electronic meter in spite of the request made by the petitioner. The petitioner claims that it is entitled to the rebate calculated for the month of September to December 2000 totaling a sum of Rs. 16,86,645/- and further rebate of Rs. 3,72,579 and Rs. 3, 95,195/- for the period January and February, 2001 respectively on the basis of the meter reading recorded from the existing meter installed at the premises of the petitioner. The petitioner says that the said benefit was not being given to the petitioner by the DVC. The petitioner claims that installation of TOD meter cannot be a condition precedent for granting concessional tariff for off peak hours consumption of energy by the petitioner in terms of Clause 9.1 of the new tariff of 2000 and, therefore, action of the respondents is arbitrary and unreasonable.
9. On the other hand, the case of the respondent D.V.C. is that incentive scheme was applicable only to those consumers who had installed T.O.D. meter and who did opt to avail the concessional tariffs, in terms of Clause 9.1(f) of the Tariff Schedule, which clearly speaks that the consumer who opts to avail all the above concessional tariffs, will have to bear total cost of TOD Meter to be installed by D.V.C. for registering energy and demand during different periods.
10. In this view of the matter D.V.C. requested the petitioner to deposit a sum of Rs. 6.95 lacs for installation of TOD Meters vide its letter dated 19.11.1998 but the petitioner, in place of acting on the said letter sent by DVC, started unilaterally retrenching energy bills himself illegally.
11. Further case of the respondent DVC is that the petitioner - M/s. Bihar Foundry & Castings Ltd. is not entitled to get any TOD incentive in view of Clause 9.1 of the Tariff Schedule which is part of the agreement. Installation of TOD Meter is a pre-condition for allowing TOD incentive and since the petitioner did not fulfill those conditions, therefore, is not entitled to get any TOD incentive. Further, registration of off-peak consumption in an electro mechanical meter is not technically possible. DVC has denied any lapse on his part in not installing TOD Meter in the premises of the petitioner on the ground that the petitioner did not deposit a sum of Rs. 6.95 lacs as required for installation of TOD Meter.
12. During the pendency of the instant Writ Petition, the petitioner had filed an Interlocutory Application being I.A. No. 826 of 2005 for staying the demand of Rs. 93,97,753/- raised by D.V.C. for the period September, 2000 to March, 2003 and prayed for restraining the respondent - DVC from disconnecting the power supply to the factory premises of the petitioner during the pendency of the writ petition for non payment of the aforesaid amount of Rs. 93,97,753/- raised by D.V.C. for the period September, 2000 to March, 2003.
This Court, by Order dated 29.03.2005, directed the respondents not to take any coercive steps against the petitioner during the pendency of the writ petition.
13. Admittedly, now a TOD Meter has already been installed by the DVC in the premises of the petitioner and since thereafter, the DVC is raising Bills as per Clause 9.1 of the Tariff Schedule.
14. In view of this changed situation when T.O.D. Meter has already been installed in the premises of the petitioner in April, 2003 and, therefore, the first prayer of the petitioner for direction to the respondent - DVC to install DVC meter in its premises, does not survive. Now only question to be decided is as to whether the petitioner is entitled to the incentive of Rs. 93,97,753/- under Clause 9.1 of the Supply Tariffs for the period September, 2000 to March, 2003.
15. According to Mr. Pradip Modi, learned Counsel appearing for the petitioner, the incentive Scheme have given benefits to the consumers, has to be construed liberally and no hyper technical view should be taken. He further submitted that Clause 9.1 of the Tariff was not mandatory in nature rather, the same is directory only.
16. To consider as to whether the said incentive as provided under Clause 9.1 of the Tariff Schedule is mandatory or directory, let us examine the said provision itself, which is quoted hereinbelow for reference:
9.1 Incentive Scheme for Consumers having Contract Demand (C.D.) below 100 MVA
a) Incentive Scheme is in the form of a confessional tariff which is optional and applicable to those consumers who are having CD below 100 MVA and maintain an average load factor of 70% and above on actual maximum demand recorded during the month or Contract Demand which is higher.
b) Confessional tariff at 65% of the energy charge of the prevailing DVC tariff shall be applicable, without prejudice to the payment of FCS, for the additional energy drawal by the eligible consumers in a month during the off-peak hours above a calculated quantum during the same period on the basis of 70% load factor on Contract demand or actual maximum demand recorded during the month whichever is higher and power factor of 0.92.
c) Maximum Demand charge shall be computed on the basis of the maximum demand registered during peak hours or contract demand whichever is higher plus 60% of the excess maximum demand registered during off-peak hours. If both the maximum demands registered during peak hours/off-peak hours in a month do not exceed the contract demand, the maximum demand charge will be levied on the maximum demand registered during peak hours or off-peak hours whichever is higher.
d) The consumer must restrict its drawal to 125% of the contract demand during off-peak hours. If maximum demand during off-peak hours exceed 125% of Contract demand in a month, Maximum Demand charge for the entire month will be calculated on the basis of penal demand charge on whole of the maximum demand registered during off-peak hours.
e) Minimum billing demand of 75% of contract demand shall remain unchanged.
f) The consumer who opt to avail of the above confessional tariff will have to bear the total cost of TOD meters to be installed by DVC for registering energy and demand during different time periods.
g) i). Off-peak hours for applicability of confessional energy rates will be : For A Period of Continuous Sixteen Hours in A Day Starting From 00.00 Hours to 16.00 Hours.
ii). Peak hours of the day will be : For A Period of Continuous Eight Hours in A Day Starting From 16.00 Hours to 24.00 Hours.
The above incentive scheme including the parameters therein will be reviewed at the time of next tariff revision.
The above confessional tariff is applicable to those consumers who are having TOD meters at present. For those consumers who do not have TOD meters at present and desire to avail of the incentive scheme, the above confessional tariff will be implemented after receipt of necessary confirmation from them and installation/programming of TOD meters.
17. From perusal of the aforesaid provisions as contained in Clause 9.1 of the tariff quoted hereinabove, it is clear that the incentive scheme is in the form of a concessional tariff which is optional and a detailed mode for calculation of the incentive has been prescribed therein. It has been specifically provided that the above concessional tariff was applicable only to those consumers who were having T.O.D. meters, and not otherwise. In order to avail the incentive scheme, precondition was to get the T.O.D. meter installed.
18. The language used in the aforesaid provision leaves no doubt that for availing concessional tariff, installation of T.O.D. Meter at the premises of the consumer was a condition precedent and only those consumers who were having T.O.D. Meters installed at their premises, were only entitled to get such incentive concessional tariff.
Admittedly, for one reason or the others, prior to April, 2003, no T.O.D. meter was installed in the premises of the petitioner and, therefore, the petitioner was not entitled to such incentive concessional tariff prior to April, 2003.
19. In view of the discussions and findings above, I hold that the petitioner, wrongly and illegally deducted a sum of Rs. 93,77,753/- from the energy bills raised by the D.V.C. The petitioner was not entitled to concessional tariff prior to April, 2003 under Clause 9.1 of the incentive scheme.
20. For the reasons stated above, I do not find any merit in this writ petition. Accordingly, this writ petition is dismissed. The interim order of stay dated 29/03/2005 is hereby vacated.
In the facts and circumstances of the case there shall be no order as to cost.
