TaxTMI 
TaxTMI 
2008 (9) TMI 1051
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.... of Rs.850 per KVA [non-refundable]. It is further prayed to quash and set aside Circular No. ACE[R&C]/EE­C/DE­2/370, dated 29^th March 2007 issued by the Managing Director of GETCO, respondent No.2 herein, raising such illegal demand. 3 Respondent No.1, a Company incorporated under the provisions of the Companies Act, 1954, is engaged in the business of supplying and transmitting electricity to various consumers in the State of Gujarat. Respondent No.2 is a transmission corporation and is monitoring, inter alia, respondent No.1. 4 The grievance of the petitioners is against respondent No.1 for raising unjust demand to pay pro-­rata charges of Rs.850/­ per KVA [non-refundable] from the members of the petitioner­-Association and the amount so paid to respondent No.2 and being collected by respondent No.1, according to the petitioner, is unjustifiable, in as much as, no reasons for charging the said amount are assigned and, till date, breakup of cost for charging the said amount is not provided to the petitioner. 4.1 When a member of the petitioner-­Association submitted an application for new connection/additional power to the existing power supply i....
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....or erection of new sub­station and augmentation of existing sub­station, the respondents have to incur expenses. Not only that, but, according to the respondents, to streamline the recovery and to avoid disparity amongst beneficiaries of different areas of the State and even beneficiaries of the same area embedded on different GETCO sources, pro­-rata charges are recovered as a policy decision from all beneficiaries evenly and there is no discrimination. The purpose and rational behind recovery of pro­-rata charges is to recover the cost involved from the actual beneficiaries instead of loading in the actual transmission charges to be reflected on all existing beneficiaries. It is further submitted that, after considering objections, pro-­rata charges have been reduced to Rs.850 per KVA, instead of recovering pro­rata charges depending upon voltage level, and such recovery is in accordance with the miscellaneous charges provided in Chapter V of Notification No.9 of 2005. It is, therefore, submitted that the exercise of powers by the respondents are in consonance with the provisions of Notification No.9 of 2005 published in the official gazette on 31.3.2005. ....
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....ore particularly Chapter V is rational in making provisions for high tension/extra high tension supply. According to the learned Senior Counsel, in absence of challenge to power making regulations, mere submission that the notification is to be quashed and set aside as being arbitrary and illegal exercise of power has no substance warranting exercise of power by this Court under Article 226 of the Constitution of India. 8 Having heard the learned counsel for the parties and considering the facts of the case and on perusal of the record and the relevant provisions of the Electricity Act, 2003, the Rules made thereunder and the Regulations framed by GERC, in my opinion, the contentions raised by the learned counsel for the petitioner do not deserve acceptance by this Court, in as much as, Notification No.9 of 2005 issued by GERC is well within the powers conferred by Section 181 read with Sections 45 and 46 of the Electricity Act, 2003. Sections 46 of the Electricity Act, 2003 reads as under: "46. Power to recovery expenditure:­ The State Commission may, by regulations, authorise a distribution licensee to charge from a person requiring a supply of electricit....
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....and clauses [i] and [ii] deal with applications for erecting a new HT line or EHT line from the sub­station or extend the existing HT or EHT line so as to provide electricity supply to the applicant, which also empowers the distribution licensee to prepare estimate of the cost of afore­mentioned work including the cost of terminal and other arrangements to be met with like metering, etc. Clause [ii] of Regulation 5 of Chapter V is pertaining to applications in case where there is a need to erect a new sub­station for supply of electricity to the applicant and the rest of the procedure is the same and the distribution licensee on its own or in coordination with Transmission Licensee has to prepare an estimate of the cost of the necessary works and when the applications are with regard to capacity of existing sub­station to be augmented, differential cost of existing and new such electrical plan will form basis of calculation of pro­-rata charges. Therefore, both the above­-said clauses have provision for preparing an estimate of cost and to charge accordingly. 10.1 The above aspects clearly take care of two types of supply of electricity, namely, for high ....
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....or providing transmission line and sub­stations to meet power requirement of the new applicants as well as existing consumers considering rapid industrial and increasing power demand. As provided in the earlier circular No.676 dated 5.7.1997, the developmental charge was Rs.900/­ per KVA and, thereafter, it was reduced, after considering the representation, to Rs.850/­ per KVA as per the notification. Thus, the justification to charge Rs.850/­ on pro­-rata basis has genesis with the object sought to be achieved and to streamline recovery and to avoid disparity amongst beneficiaries of different areas of the State and even certain beneficiaries of the same area embedded on different GETCO sources, so that the charges can be recovered evenly from all the beneficiaries. 13 A reliance has been placed on the decision of the Apex Court in the case of Municipal Corporation of Delhi and others vs. Mohd. Yasin, reported in AIR 1983 Supreme Court 617 by the learned counsel for the respondents wherein his submission finds favour in paragraph 9 that 'others besides those paying the fees are also benefited does not detract from the character of the fee and in fact the....