Sunil Ambwani, Actg. C.J.
1. Heard learned counsel appearing for the appellants. Mr.Bipin Gupta appears for Rajasthan Electricity Regulatory Commission and Ms.Parinitoo Jain for Ajmer Vidhyut Vitaran Nigam Limited, Ajmer.
2. The appellants are industrial consumers of electricity distribution companies, namely, Jaipur Vidhyut Vitaran Nigam Limited, Ajmer Vidhyut Vitaran Nigam Limited and Jodhpur Vitaran Nigam Limited (for short, 'the respondent-Discoms/Discoms'). They filed writ petitions for replacement of meters, as stipulated in Rajasthan Electricity Regulatory Commission (Metering) Regulations, 2006 (for short, 'Regulations of 2006'), and to ensure that they are not deprived of the benefits of 3rd digit power factor incentive, on account of the failure of the Discoms in replacing meters of the required specifications. They also prayed for restraining the Discoms from making any recovery from the petitioners, of the differential amount between the 2nd digit power factor incentive and the 3rd digit power factor incentive, in the bills issued to them, with detailed calculation of excess power factor incentive allowed to the EHT consumers. Learned Single Judge dismissed all the writ petitions, with the findings that if there was any doubt or ambiguity as to the consequence of failure of the Discoms to replace the existing meters by standard meters within the prescribed period, there being further stipulation that the consumers, if they wanted to avail the benefit of incentive earlier, could procure such meters themselves, and got them installed by the Discoms. The petitioners having failed to do so, the benefit of 3rd digit power factor was not available to them, in the period under dispute.
3. The facts giving rise to the writ petitions were that the Discoms, as licensees under Sections 14 & 15 of the Electricity Act, 2003 (for short, 'the Act') to transmit, distribute and trading in electricity, are required to install a correct meter, in accordance with the Regulations, provided the licensee may require the consumers to give security for the price of a matter, and enter into an agreement for hire thereof, unless the consumer elects to procure the meter. The Central Electricity Authority, in exercise of its powers under Section 55(1) and Section 73(e) read with Section 177(2) of the Act, has framed the Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006.
4. The Rajasthan Electricity Regulatory Commission, Jaipur constituted by the State Government under Section 82 of the Act, in a Suo Motu petition No.130/2007, in the matter of Rationalisation of Retail Tariffs for Vitaran Nigams in Rajasthan, on examination of the Aggregate Revenue Requirement for 2006-07 of the three Discoms determined by the Commission vide order dated 21.7.2006, found that they were running in revenue deficit of Rs.306.85 crores for Ajmer Vidhyut Vitaran Nigam Limited, Rs.51.68 crores, for Jaipur Vidhyut Vitaran Nigam Limited, Rs.280.08 crores for Jodhpur Vidhyut Vitaran Nigam Limited. Since they did not file the tariff petitions, the Commission required them to file tariff petitions to provide for cross subsidy targeted to each consumer category, with or without State Government subsidies, fuel price adjustment, time of day/peak load hour tariff, rational classification of tariff category, as well as rationalisation of tariffs. Since no tariff petition was filed within 30 days, the Commission took upon itself the suo motu determination of tariff, in accordance with Para 8.1 (7) of the Tariff Policy, extending the date of submission of tariff petitions upto 23.9.2006. Despite losses and the directions issued by the Commission, the Discoms did not file tariff petitions.
5. The Rajasthan Electricity Regulatory Commission published the notices in the newspapers in December, 2006 and January-February, 2007, to which various persons/firms/organizations, inviting their comments/suggestions and objections. Having considered these comments/suggestions or objections, the Commission made a detailed order on 31.8.2007 on various factors. In these appeals, we are concerned with the recommendations of the Rajasthan Electricity Regulatory Commission, Jaipur on power factor clause, which is quoted as follows :-
"Power Factor Clause :
126. Sh. D.S. Agarwal on behalf of Rudraksh Tradelink, RCCI & Rajasthan Steel Chamber and Sh.P.N.Bhandari on behalf of HZL, J.K. Laxmi Cement & Binani Cement, in their written statements as well as during the hearing raised the issue of power factor clause stating that the existing provision of allowing incentive - disincentive on account of power factor is not fair and requires relook in view of the fact that with the electronic meters now available/used have better accuracy class and can read power factor upto third decimal place. It was pleaded by them that the energy efficiency measures of whatever manner, if attempted, should be encouraged and corresponding incentive be provided to the consumers. They proposed that the incentive should be provided for each 0.1% improvement in average power factor beyond 90.0% and surcharge may be levied for fall of each 0.1% of average power factor below 90.0% and there should not be any band, as prevailing at present (90.0 to 95%) within which no incentive - disincentive is applicable.
127. The Nigams in reply to above, have stated that the consumers are required to maintain an average power factor within a band of 90.0% to 95.0% and no incentive or disincentive should be allowed within this power factor band. However, they have shown their no objection if the present step of 1% is reduced to 0.1% of power factor for the purpose of allowing incentive/disincentive, beyond the present band of 90.0 to 95.0%, provided proper meters are installed at consumer's premises.
128. On hearing the both sides, the Commission considers that the arguments given by the objectors in allowing the incentive disincentive with more fine tuning by reducing the existing steps of 1% (0.01) to new steps of 0.1% (0.001), has some force. It will encourage the consumers to improve their power factor to the extent possible so as to get more & more incentive and penalise for corresponding short fall in the power factor in identical steps. This attitude will not only be beneficial to the consumers but simultaneously it will improve the system.
129. The Commission, therefore decides that incentive be provided for each 0.1% (0.001) improvement in average power factor beyond 95.0% (0.950) and surcharge be levied for fall of each 0.1%(0.001) of average power factor below 90.0% (0.900) beyond the prevailing band of 90.0% to 95.0% (0.900 to 0.950), within which no incentive-disincentive is applicable. This facility shall, however, be applicable only where the installation of the meters at the consumer's premises, comply with the requirements of the CEA (Installation & Operation of Meters) Regulations, 2006. Wherever the meters of required specifications are not provided, the existing incentive scheme may continue till these are replaced by the licensee within the time frame specified in RERC (Metering) Regulations, 2007 notified on 29.5.07 (1 year for EHT/HT consumers). In case the consumer is willing to avail the benefit of higher power factor prior to this, he may arrange for the proper metering system at his own cost for which no meter rent shall be chargeable by the licensee."
6. The order passed by the Rajasthan Electricity Regulatory Commission, Jaipur is appealable under Section 111 to the Appellate Tribunal. No one, including the Discoms, filed any appeal, and thus, the order dated 31.8.2007 attained finality.
7. It is not disputed that the meters were not replaced by the Discoms within a period of one year, still the Discoms continued, to extend the benefit of 3rd digit power factor incentive for almost two years, until an objection was raised by the internal audit, on which it was decided to discontinue the benefit, and to recover the differential amount between 2nd and 3rd digit power factor incentives, already given to the petitioners in their running bills, giving rise to the challenge to the reversal of credit of the differential amount in their running bills. S.B. Civil Writ Petition No.521/2010 (Birla Cement Works v. Rajasthan Electricity Regulatory Commission & Anr.), was filed with the following prayers :-
"(i) Direct the Commission to look into the issue why the Discoms have not followed its directions regarding replacement of meters as stipulated in the RERC Regulations 2007.
(ii) Direct the Commission to ensure that on account of the delay of the Discoms in the replacement of meters, the Discoms does not deprive the facility of 3rd digit for power factor incentive.
(iii) Direct the Discom not to mix up the issue of replacement of meters with power factor incentive.
(iv) Direct the Commission not to discriminate against the petitioner in the matter of allowing power factor incentive on the basis of class of meters installed by the Discoms at the petitioner's premises.
(v) Direct the Commission to ensure that the Discom does not penalise the petitioner for the lapse of the Discom in not replacing the meters as per the time schedule.
(vi) Restrain the respondents from recovery of any amount of incentive so far paid on the 3rd digit power factor incentive and by appropriate injunction the respondents may be directed to allow 3rd digit incentive in the existing meter of the petitioner and the same be calculated every month on the basis of time honored calculations.
(vii) any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly also be issued in favour of the petitioner consumer."
8. It was submitted before learned Single Judge that the liability of installing correct meter, as per the Regulations, and also under the Rajasthan Electricity Commission Regulations, is that of the licensee i.e. the Discoms. Clause 15(1) of the Regulations provides that correct meter instrument of required specifications, shall be installed by the licensee within specified time. If the Discoms were not able to install meters within the time schedule of one year, the consumers cannot be made to suffer. It was submitted that the consumers have no access for operations & maintenance of the meter, which is the exclusive responsibility of the licensee. If the meters are not complying with the Regulations, they are to be replaced by the licensee on its own, or on the request of the consumer. The consumer meters are owned by the licensee, except where the consumer elects to procure the meter, which has to be tested, installed and sealed by the licensee. The consumer however, can claim the meter procured by him as his asset, only after it is permanently removed from the system. The consumer's meter, in clause 7(c) of the Central Electricity Authority Regulations, has to be installed by the licensee, either at the consumer premises or outside, provided the licensee ensures a real time display unit, at the consumer premises to indicate the consumption. In any case, the meter is under the control and supervision of the licensee, so long as it is installed, and is functioning.
9. It was submitted that the prevalent practice of the Discoms was to round off the figures upto three digit, while calculating the power factor incentive, but this practice was discontinued vide order dated 21.4.2004. The consumers and industrial associations approached the Coordination Committee of the Discoms, on which it was decided by the Coordination Committee on 29.5.2004, that the procedure prescribed by order dated 21.4.2004, is not to be followed, and instead, the procedure that was being followed, prior to the issuance of the order, will continue.
10. By an order dated 5.6.2004, the order dated 21.4.2004 was withdrawn. This position continued upto three years, until the Regulatory Commission issued the clarifications regarding power factor surcharge vide its order dated 31.8.2007. The Jaipur Vidhyut Vitaran Nigam Limited issued an order on 26.3.2007 to withdraw the order dated 5.6.2004, with directions that the power factor incentive/surcharge has to be calculated by taking average power factor upto two places of decimals, ignoring third and subsequent digits after decimal. In the meantime, the Regulatory Commission clarified on 26.12.2006 that the rounding off formula cannot be made applicable. The order was further clarified on 19.5.2007, on which the matter was taken to the Coordination Committee, for deliberation, and on that basis, fresh orders were issued by the Discoms on 27.6.2007. The order of the Regulatory Commission dated 31.8.2007 was not given effect to, for a period of three years. The 3rd digit power factor incentive was allowed to the consumers in the past also.
11. It is submitted that while the meter is governed by Metering Regulations, the power factor incentive is allowed from time to time by tariff orders. In none of the tariff orders, the grant of power factor incentive was made subject to the condition of meter replacement. There was no condition in tariff order for replacement of meters with advance meters, for grant of power factor incentive. A consumer has no role in replacement of meter. The Discoms could not have denied the incentive, without any lapse on their part. It was further submitted that the order passed by the Regulatory Commission dated 31.8.2007 cannot have the effect of amending, either the tariff or Metering Regulations, for which an elaborate procedure has been prescribed, and for which service of notice and hearing, is provided. Power factor incentive is allowed to each consumer for quality of electricity consumption. If his parameters of consumption are good, he gets incentive, but if quality goes down, he has to even pay the power surcharge. Incentive is thus, based entirely on the personal efforts of performance by each consumer, which could be denied to the consumers on the ground that they had not get their meters replaced.
12. Learned counsel appearing for the appellants had relied upon Bakul Cashew Co. & Ors. v. Sales Tax Officer, (1986) 2 SCC 365 in support of their arguments that subordinate legislation cannot be allowed to operate retrospectively, unless the legislation authorizes it to do so. They have also relied on LML Limited v. State of Uttar Pradesh & Ors. (2008) 3 SCC 128 to submit that if the licensee violates the tariff provisions, appropriate legal action can be taken, but that, for a mistake on the part of the Discoms, the consumer should not suffer.
13. Mr. Bipin Gupta, appearing for the Rajasthan Electricity Regulatory Commission submitted that the writ petitions were filed without availing the statutory alternative remedies of Corporate Level Settlement Forum, or Ombudsman, or the Regulatory Commission itself. Some of the consumers had approached the Ombudsman under Section 42 of the Act, and their claim was rejected. The Regulatory Commission has got ample powers under Section 86 read with Section 142 of the Act, to examine the individual grievances, and pass appropriate orders.
14. Mr. Bipin Gupta had explained to learned Single Judge, and has advanced the same arguments in defence of the judgment, by which the writ petitions were dismissed, that the power factor incentive has been denied in Tariff Order 2004, issued by the Regulatory Commission on 17.12.2004. In case of large industrial service (Schedule LP/HT-V) of the Tariff for Supply of Electricity, the term 'power factor' is clear and unambiguous. Clause (e) of Part (V) relating to large industrial service (Schedule LP/HT-V) of the Tariff for Supply of Electricity 2004, provides as follows:-
"(e) Power Factor clause
Consumer having sanctioned Connected Load more than 25HP (18.65KW) shall maintain an Average Power Factor of not less than 0.90 (90%). In case the Average Power Factor falls below 0.90 (90%), a surcharge at 1% of Energy Charges for every 0.01 (1%) fall in average power factor below 0.90 (90%), shall be charged.
Also an incentive of 1% of Energy Charges shall be provided if average power factor is above 095 (95%) for each 0.01 (1%) improvement above 0.95 (95%).
If the average power factor falls below 0.70 (70%), the installation shall be disconnected and will not be reconnected till the average power factor is improved to the satisfaction of the Jaipur Discom."
15. The term "power factor" means energy being a vector quantity is made up two elements i.e.active energy and reactive energy. The consign of angle between active and reactive energy is called power factor. The quantity of active/reactive energy consumption by any consumer depends upon the apparatus installed by him. The resistive apparatus does not consume reactive energy. All motion load consumes reactive energy also, with active energy. Thus, the active and reactive energy together make resultant energy, which flows through the Discoms system to consumer. In tariff structures of the Discoms, energy charges are only for active energy, therefore, the power factor incentive/surcharge has been incorporated in the Rules. When power factor is lower than 0.9, surcharge is levied, and because of this surcharge, consumer tries to keep lower reactive energy, and thereby, improve the power factor. Keeping in view the aforesaid power factor, the Regulatory Commission had passed the order dated 31.8.2007 making the installation of .2s class meters mandatory for grant of 3rd digit power factor incentive. A bare reading of power factor clause would indicate that every industrial concern was required to maintain power factor of 0.90 (90%). This requirement was mandatory, because maintaining of power factor at 0.90 indicates that healthy system is being maintained. If the power factor falls below 0.90 (90%), a surcharge at 1% of average charges for every 0.01 (1%) below 0.90 (90%) is charged. Thus, there was penalty provision of charging surcharge in the ratio, as indicated. Similarly there is provision of giving incentive of 1% of energy charge provided average power factor is above 0.95 (95%) for each 0.01 (1%) improvement above 0.95 (95%).
16. Mr.Bipin Gupta submits that the Discoms, despite specific order dated 31.8.2007, wrongly gave the benefit of 3rd digit power factor incentive, without change of meters. The illegality was discovered in the internal audit, on which the recovery of incentive was ordered to be made, giving rise to the grievances of the appellants. He submits that the delay in replacement of meters was on account of scarcity of the meters, of the kind, in the market. If any consumer wanted to avail the incentive, he could have installed his own meter. Since they failed to install such meters, they were not made entitled to the benefit. The installation of .2s class equipment, in every situation, was a condition precedent for grant of 3rd digit power factor incentive. In all cases of industrial consumers, where the .2s class equipment was not installed, the 3rd digit power factor incentive could not be measured, calculated and passed on to such consumers.
17. Mr.Bipin Gupta has relied upon Chandi Prasad Uniyal & Ors. v. State of Uttarakhand & Ors., (2012) 8 SCC 417, in which it was held that any amount received without any authority of law, and which, according to Mr.Bipin Gupta, will also include incentive, can be reversed and recovered, failing which it will amount to unjust enrichment. In M/s. Tata Steel Limited v. Jharkhand State Electricity Board & Ors., AIR 2008 Jharkhand 60, it was held that Section 56(2) of the Electricity Act, providing for limitation, is not applicable, if any lesser amount is charged, by mistake. In T.N. State Electricity Board v. Central Electricity Regulatory Commission & Ors., (2007) 7 SCC 636, it was held that the courts should refrain from searching the wisdom of the legislature. In Ram Talkies & Ors. v. Government of Andhra Pradesh & Anr., (2003) 1 SCC 40 it was held that levy has to be collected from the date, when it was originally imposed.
18. Ms. Parinitoo Jain, adopting the arguments of Mr.Bipin Gupta, submits that the remedy of the petitioners was to approach the Regulatory Commission. There was no necessity to seek any direction from the Court. The Ajmer Vidhyut Vitaran Nigam Limited, on the direction of the Regulatory Commission, has changed almost all the meters of the petitioners. For the period, during which the meters could not be changed, the Discoms, in further compliance of the directions of the Regulatory Commission, started giving power factor incentive, as per the existing scheme dated 5.7.2007, which was made effective from May 2005, in terms of the decision of the Coordination Committee. She submits that in the absence of CTPT, the meter was not complete, and could not function and record consumption properly. Section 56(2) of the Act is in respect of any default in payment, and not for reversing the credit, which was wrongly given, and was reversed, when it was discovered in the internal audit.
19. Learned Single Judge, having considered the arguments and the defence, upheld the directions of the Regulatory Commission dated 31.8.2007, and the reversal of the credit, which was wrongly given to the appellant, giving the benefit of 3rd digit power factor incentive. Relying on Transmission Corporation of Andhra Pradesh Limited & Anr. v. Sai Renewable Power Limited & Ors., (2011) 11 SCC 34, on the powers of the electricity Regulatory Commission to review the tariff, it was held that the Regulatory Commission did not act outside its authority, in subjecting the grant of 3rd digit power factor incentive to the installation of the meters at the consumer's premises, to be valid. It was further held that the 3rd digit power factor incentive could be denied on the failure of the Discoms to replace/install the meters of required specifications within the time frame, as an option was given to the industrial consumers to procure such meters themselves, and the appellants had failed to do so.
20. Learned Single Judge rejected the argument of legitimate expectation, and promissory estoppel, as well as the limitation within which the credit could be reversed. He relied upon Collector of Central Excise, Jaipur v. Raghuvar (India) Limited, (2000) 5 SCC 299 in which the argument of limitation on the notice of demand of recovery issued by the Assistant Collector under Section 11A of the Electricity Act, was not accepted, on the ground that MODVAT credit in respect of certain inputs could be reversed, if they were wrongly and undeservedly given by readjustment, and if need be, to recover the amount equivalent to such credit wrongly availed of and disallowed by proper officer. Learned Single Judge further relied on Central Excise v. Hari Chand Shri Gopal, (2011) 1 SCC 236 and Indian Oil Corporation Limited v. Commissioner of Central Excise, Vadodara, (2012) 5 SCC 574, in holding that unless the conditions for exemptions are satisfied, the appellant was not entitled to exemption. He then relied upon Novopan India Limited, Hyderabad v. Collector of Central Excise and Customs, Hyderabad, 1994 Supp.(3) SCC 606, in which it was held in case of any ambiguity, the taxing statutes should be construed in favour of the assessee, assuming that the said principle is good and sound, does not apply to construction of an exception, or an exempting provision, as they have to be construed strictly. He also relied upon State of Gujarat & Ors. v. Essar Oil Limited & Anr., (2012) 3 SCC 522 in which it was held that the principle that in case of ambiguity, the taxing statute should be construed in favour of the assessee, does not apply to the construction of an exception or an exempting provision.
21. We have heard the arguments of learned counsel appearing for the parties at length.
22. The appellants have raised the same issues, which were raised before learned Single Judge. Instead of confining their arguments to any error in law, which learned Single Judge may have committed, they submit that learned Single Judge failed to consider that the replacement of meter was not the responsibility of the consumers. The meters are in exclusive supervision and control of the Discoms, which can only be replaced, in accordance with the statutory Regulations, framed for such purpose. The meters installed by the Discoms were capable of reading upto 3rd decimal place, and for which the power factor incentive was rightly given to the petitioners. It was the duty of the Discoms to replace the meters within a period of one year, and during which, if any benefit of incentive was given, it could not be reversed.
23. The appellants submit that Section 56(2) of the Electricity Act prohibits recovery of dues after two years, and thus, the credit of 3rd digit power factor incentive in power factor could not be reversed. The bar of limitation under sub-section (2) of Section 56 provides that no sum due from any consumer, under Section 56, shall be recoverable after the period of two years, from the date when such sum became first due, unless such sum has been shown continuously, as recoverable as arrear of charges for electricity supplied, and the licensee shall not cut off the supply of the electricity.
24. We are not impressed with any of the submissions raised by learned counsel appearing for the appellants, at the Bar, firstly, on the ground that they had not availed alternative remedies before approaching the High Court, and further, that they were not entitled to claim higher power factor incentive, until the meters, which were capable of recording 3rd digit power factor accurately for incentive, were installed. The Discoms had placed sufficient material before learned Single Judge to establish that the incentive for 3rd digit power factor, by way of encouraging energy efficiency measures, was earlier provided between 90.0 to 95.0%, with the step of 1%. On the request of power consumers, the step was reduced to 0.1% of power factor, for allowing incentive/disincentive beyond the band of 90.0% to 95.0%, provided the meters for recording such accuracy in power factor were installed at consumer's premises. The meters, which were installed earlier, were not of .2s class, to accurately measure the step of 3rd digit, for grant of incentive. The Elec
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tricity Regulatory Commission had considered the objections, and found that the incentive/disincentive with more fine tuning, by reducing the existing steps of 1% (0.01) to include steps of 0.1% (0.001), was possible, but such incentive could not be given, until the replacement of the meters with required specifications, was made by the licensee within the time frame, with an option to give the benefit of such higher power factor to a consumer, provided he arranges for the proper metering system at his own cost. 25. We do not find any error in the observations of learned Single Judge, accepting the arguments of the Rajasthan Electricity Regulatory Commission and the Discoms, that though the meters installed by Discoms are in exclusive supervision and control of such Discoms, and could be installed only by them, an option was given to the consumers, that they could avail the benefit of incentive of 3rd digit, provided they had procured the meters themselves, for installation by the Discoms. 26. It is not being denied that the meters of required specifications, were in short supply, and thus, those who wanted to avail the benefit of 3rd digit, could have procured the meters for installation by the Discoms. The procurement of meter and its installation are two different steps. An option was given to the consumers to procure the meters, to be checked and installed by the Discoms. Those, who did not procure the meters of the required specifications, were not entitled to 3rd digit power factor incentive, as the existing meters could not have measured the 3rd digit with accuracy, even if it was recording it, for providing incentive. There was no promise held out to the appellants, for grant of incentive, without installation of the meters of the required specifications, which could have accurately measured the 3rd digit power factor, nor the provisions of the Electricity Act, 2003 provide, or the Tariff assured 3rd digit power factor incentive to the industrial consumers, without installation of .2s meters. They were already getting 2nd digit power factor incentive, and if they wanted to avail the 3rd digit power factor incentive, it was obligatory for them to have procured the meters, until the Discoms could arrange to replace the meters with required specifications. 27. In our view, Section 56(2) is not attracted in the present case, as the Discoms are not recovering any amount from the appellants. They have only reversed the credit for the period, for which the appellants were not entitled to the benefit of 3rd digit power factor incentive. Subsection (2) of Section 56 is attracted, where the recovery is being made on default of payment, and not on reversal of the credit, which was erroneously given to the consumer. 28. On the aforesaid discussion, we do not find any error on facts or in law in the judgment of learned Single Judge. 29. All the Special Appeals are consequently dismissed.