Madras High Court
Opg Business Centre Private ... vs 4 The Superintending Engineer on 10 August, 2021
W.P.No.16614 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Writ Petition No.16614 of 2021
and W.M.P.No.17606 of 2021
OPG Business Centre Private Limited
Rep.by its Director, Old No.4, New No.7
Thiru.Vi.Ka.3rd Street, Royapettah High Road
Mylapore, Chennai 600 004. …. Petitioner
-Vs-
1 The Chairman
Tamil Nadu Generation and Distribution
Corporation Limited 144 Anna Salai
Chennai- 600 002.
2 Chief Engineer / NCES
Tamil Nadu Generation and Distribution
Corporation Limited 2nd Floor Eastern Wing
144 Anna Salai Chennai- 600 002.
3 Tamil Nadu Electricity Regulatory Commission
Rep by its secretary 4th Floor
SIDCO Corporate Office Building
Thiru.Vi.Ka. Industrial Estate Guindy
Chennai- 600 032.
4 The Superintending Engineer
TANGEDCO Tirunelveli Electricity
Distribution Circle Maharaja Nagar
Tirunelveli- 627 011. …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for the
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W.P.No.16614 of 2021
issuance of a Writ of Mandamus directing the respondents to allow the petitioner
company to give effect to the petitioners termination letter dated 02.03.2020 and
terminate the current arrangement of sale of electricity generated to the TANGEDCO
and allow the petitioner request in letter dated 01.07.2021 and 05.07.2021 seeking
change in Utility i.e to move from the category of sale to Board to the category of
sale of power to captive consumption / Third Party in terms of its right of open access
to utilise the electricity generated and also release all dues pending for power
supplied to the Respondents from the petitioner's generating units bearing HTSC
Nos.79224722948 and 79224722949 which stood at Rs.1,78,58,620.46/- (Rupees One
Crore Seventy Eight Lakhs Fifty Eight Thousand Six Hundred Twenty and Paise Forty
Six Only) as on June 2021 together with the mandated interest on delayed payment.
For Petitioner : Mr.Rahul Balaji
For Respondents : Mr.M.Abul Kalam, Standing Counsel
ORDER
Since the issue involved in the present writ petition is squarely covered by the
earlier orders passed by this Court, the main writ petition itself is taken up for final
hearing on the consent given by either side.
2. This writ petition has been filed for the issue of a Writ of Mandamus
directing the respondents to allow the petitioner to give effect to the termination
letter dated 02.03.2020 and terminate the current arrangement of the sale of
electricity generated to TANGEDCO and allow the petitioner to change the utility and
move from the category of 'Sale to the Board' to the category of 'Sale of Power to
Captive Consumption / Third Parties' in terms of the right to open access and for a
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W.P.No.16614 of 2021
further direction to the respondents to make the payment that is due and payable to
the petitioner along with interest.
3. The petitioner Company has two Wind Energy Generators bearing HTSC
Nos.79224722948 and 79224722949 at Radhapuram, Tirunelveli District. The
petitioner Company entered into two Energy Purchase Agreements dated 16.03.2019
with the respondent TANGEDCO to sell electricity generated by it. Due to huge
pending dues payable to the petitioner by the TANGEDCO and the petitioner not being
able to carry on with the existing arrangements, the petitioner issued Termination
Letter dated 02.03.2020 requesting the respondents to terminate the purchase
agreements and to process the application submitted by the petitioner for open
access to enable the petitioner to utilize the energy for captive consumption or supply
the same to third parties. The petitioner was also claiming for a sum of
Rs.1,78,58,620.46/- (Rupees One Crore Seventy Eight Lakhs Fifty Eight Thousand Six
Hundred Twenty and Paise Forty Six Only) towards the amount due and payable by
the respondents for the energy generated by the petitioner and supplied to
TANGEDCO under the purchase agreements. Since there was no response on the side
of the respondents, the petitioner also made a further request through two letters
dated 01.07.2021 and 05.07.2021 and this also did not evoke any response and
therefore, left with no other option, the present writ petition has been filed before this
Court seeking for appropriate directions.
4. The issue involved in the present writ petition is squarely covered by the
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W.P.No.16614 of 2021
judgment of the Division Bench in W.A.No.4189 of 2019 etc., batch by order dated
18.02.2020, wherein the Hon'ble Division Bench had reiterated the right available
under the agreement. The relevant portions in the judgment are extracted
hereunder.
“ 2.The writ petitioners/respondents harvest wind energy
and generate electricity. The writ petitioners/respondents entered
into agreements with the appellants (TANGEDCO) for sale of
electricity to the appellants by executing an Energy Purchase
Agreement (EPA). The energy was to be sold to the appellants at a
tariff rate of Rs.2.90 per unit. The writ petitioners have
approached the appellants herein for converting the Energy
Purchase Agreement into Energy Wheeling Agreement for captive
consumption. This was done because the appellants were not
paying the amounts due to the writ petitioners/ respondents for
the electricity purchased by them. Since there was no payment
being made, the writ petitioners thought it advantageous to them
to convert the Energy Purchase Agreement to one of Energy
Wheeling Agreement, so that they can either use the electricity
either for captive consumption or sell to other units. The
appellants did not pass any order.
3.The respondents/writ petitioners, therefore, approached
the Court for a writ of mandamus directing the appellants herein,
to convert the Energy Purchase Agreement into one of Energy
Wheeling Agreement and also for a direction to make payments for
the electricity purchased by the appellants.
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W.P.No.16614 of 2021
4......
5.The fact that the appellants have purchased electricity from
the respondents/writ petitioners is admitted. The amount that is
due and payable by the appellants to the writ
petitioners/respondents is also admitted. On one hand, the
appellants are not making any payment to the respondents and on
the other hand, the respondents are not being permitted to convert
the Energy Purchase Agreement to Energy Wheeling Agreement.
The attitude of the appellants, to say the least, is oppressive. More
than two years have passed, but no payments have been made by
the appellants. What is further to be noted is that during the
pendency of the writ petitions, the learned Single Judge, on
26.04.2019, had passed the following order:-
“Mr.T.Chezhiyan, learned Counsel appearing for
the petitioner referring to Clause 8(2) of the Renewable
Energy Purchase Agreement dated 17.03.2017 in
W.P.No.5196/2019 which is given as under:
''8 (2) The parties to the agreement
shall be given the option to exit for violation of
the agreement after serving a notice of three
months on the other party.''
vehemently submitted that since the TANGEDCO has
blindly violated the said condition from July, 2017 in
W.P.No.5196/2019, from September, 2017 in
W.P.No.8459/2019, from July, 2017 in
W.P.No.8463/2019, from August, 2017 in
W.P.No.11725/2019 and from June, 2017 in
W.P.No.6694/2018, the petitioners have issued
notices for termination of the PPA Agreement seeking
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W.P.No.16614 of 2021
for payment of complete dues from the respondents,
but, till date, no reply whatsoever has been given.
That shows that they impliedly agree with Clause
8(2) of the Renewable Energy Purchase Agreement
dated 17.03.2017. Therefore, the learned Counsel for
the petitioners requested this Court to allow all these
writ petitions thereby allowing the petitioners to exit
from the agreement, enabling them to consume the
powers generated for their own use.
2. Mr.P.H.Aravindh Pandian, learned
Additional Advocate General assisted by
Mr.S.K.Raameshuwar, learned Standing Counsel for
the respondents 1 to 3, after some arguments on all
the issues raised by the petitioners, he requested this
Court to give a final chance to clear all the dues to
the petitioners.
3. This Court also directs the respondents
to pay all the arrears payable to the petitioners,
namely, Rs.1,08,42,430/- in W.P.No.5196/2019,
Rs.2,74,51,898/- in W.P.No.11725/2019,
Rs.4,57,44,703/- in W.P.No.8459/2019, Rs.42,35,590/-
in W.P.No.8463/2019, Rs.27,41,183/- in
W.P.No.1275/2018 and Rs.44,45,446/- in
W.P.No.6694/2018 etc. on or before 29.04.2019 and
the Superintending Engineer is also directed to file an
Affidavit of Undertaking that he would continue to
make the payment to the Generators within 30 days
on receipt of the bill failing which the petitioners are
at liberty to invoke Clause 8(2) of the said
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W.P.No.16614 of 2021
agreement.
4. Post the matter on 29.04.2019 at 2.15
p.m. for further hearing.”
Despite this direction, which is an agreed order, the payments have
not been made by the appellants.
6.The Hon'ble Supreme Court in Surya Constructions vs.
State of Uttar Pradesh and Others, reported in 2019 SCC Online
447, decided on 08.03.2019, observed as under:-
1.Leave granted.
2.Having heard learned counsel for all the parties, we
find that the present is a case in which payment for extra
work by the Uttar Pradesh Jal Nigam has not been made
though such work was expressly sanctioned and done to
their satisfaction. The appellant before us has had to run
from pillar to post to get the money owed to them. By an
order dated 21.10.2013, the High Court asked the
appellant to make a representation and finally, in a
contempt petition moved on 07.02.2014, directed the
Uttar Pradesh Jal Nigam to answer this representation.
The representation so made was answered by the Uttar
Pradesh Jal Nigam as follows:
“Due to aforesaid facts and description it is
clear that Rs. 113.29 lacs has to be released
by Government/Mela Administration against
the Budget presented by U.P. Jal Nigam, Magh
Mela 2008-09. There is no money available
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W.P.No.16614 of 2021
under account of Magh Mela 2008-09 of U.P.
Jal Nigam. And could not obtained the rest of
amount from the Mela
Administration/Government. Therefore,
payment regarding M/s. Surya Construction,
323/3, Alopibagh, Allahabad will be paid after
availability of the money from the
Government.”
3.It is clear, therefore, from the aforesaid order dated
22.03.2014 that there is no dispute as to the amount
that has to be paid to the appellant. Despite this, when
the appellant knocked at the doors of the High Court in a
writ petition being Writ Civil No. 25216/2014, the
impugned judgment dated 02.05.2014 dismissed the writ
petition stating that disputed questions of fact arise and
that the amount due arises out of a contract. We are
afraid the High Court was wholly incorrect inasmuch as
there was no disputed question of fact. On the contrary,
the amount payable to the appellant is wholly
undisputed. Equally, it is well settled that where the
State behaves arbitrarily, even in the realm of contract,
the High Court could interfere under Article 226 of the
Constitution of India [‘ABL International Ltd. v. Export
Credit Guarantee Corporation of India Ltd.’ ((2004) 3 SCC
553)].
4.This being the case and the work having been
completed long back in 2009, we direct the Uttar
Pradesh Jal Nigam to make the necessary payment
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W.P.No.16614 of 2021
within a period of four weeks from today. Given the
long period of delay, interest at the rate of 6 per cent
per annum may also be awarded.
5.The appeal stands disposed of accordingly.”
8.Yet another contention was raised by the learned counsel
for the appellants stating that the facts in W.A.No.4204 of 2019
stands on a different footing. He would state that in that case, the
writ petitioner had made a request for change over from Energy
Purchase Agreement under the REC scheme to the Energy
Wheeling Agreement under the Preferential tariff scheme and the
appellants had categorically informed that under the Central
Electricity Regulation Commission (Terms and Conditions for
recognition and issuance of Renewable Energy Certificate for
Renewable Energy Generation) (Fourth Amendment) Regulations,
2016, the writ petitioner was not entitled to in law for a change
over and in view of the position that there has no been no
registration with the National Load Despatch Centre under the
captive scheme in accordance with the amendment regulation, the
writ petitioner's units were commissioned between 2010 and 2016,
but they had not got themselves registered with the NLDC. He
would, therefore, submit that the order of the learned Single Judge
is in direct violation of the statutory provisions.
9.We are afraid we cannot accept this contention. In the
regime entered into by the writ petitioner, they were selling the
electricity at a rate less than Rs.2.90 and they were also getting
certificates, which could be traded. They are not even getting the
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W.P.No.16614 of 2021
payment for the electricity purchased, which was at a much lower
rate than the other writ petitioners and thereby putting them in a
situation which is worser than the other writ petitioners. The
appellants, after agreeing to pay the amount before the Court on
26.04.2019 cannot be permitted to take advantage of their own
wrong. “
5. It is clear from the above order that, the Division Bench had recognized the
right and had permitted the appellants therein for a change over. The Division Bench
has further directed TANGEDCO to make payments for the electricity purchased. The
present case will also squarely fall within the dictum of the Hon'ble Division Bench.
6. In view of the above, there shall be a direction to the first respondent to act
upon the letters given by the petitioner on 01.07.2021 and 05.07.2021 and permit the
petitioner to change the utility and also release all the dues that are pending for the
power supplied by the petitioner to the respondent from the generating units bearing
HTSC Nos. 79224722948 and 79224722949. This process shall be completed by the
first respondent within a period of six weeks from the date of receipt of a copy of this
order. The petitioner is directed to make a fresh representation to the first
respondent along with all the relevant documents and also a copy of this order.
7. The learned Standing Counsel appearing on behalf of the TANGEDCO
submitted that, pursuant to the order passed by this Court recently, commenting upon
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W.P.No.16614 of 2021
the functioning of the TANGEDCO and the difficult position in which it is placed, the
Chairman of TANGEDCO has taken steps to immediately revamp the entire functioning
of the TANGEDCO. The learned counsel submitted that, the first respondent will
submit the plan of action before this Court by explaining the steps to be taken by
TANGEDCO to revive its functioning and to augment its income. This Court
appreciates the initiative taken by the first respondent.
8. As general directions, this Court would direct the first respondent to
specifically identify the areas where there are pending issues. If the issues can be
resolved by discussing it with the industry, immediate steps shall be taken to convene
a meeting and resolve the disputes through dialogue. Wherever there are issues
which requires a judicial intervention and determination of rights between the parties,
those issues shall be identified and brought to the notice of this Court and this Court
will give priority in disposing of those writ petitions covering the issues. This Court is
more interested in ensuring that TANGEDCO revives its entire functioning and
develops an attitude of resolving disputes through dialogue rather than approaching
Courts at the fall of the hat. It is important that the TANGEDCO starts focussing on
augmenting its income and improving its standards rather than spending most of its
time before the Courts. These general directions shall be kept in mind by the first
respondent and an action plan shall be submitted before this Court. The same will be
recorded while closing this writ petition.
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W.P.No.16614 of 2021
9. This writ petition is disposed of with the above directions. No costs.
Consequently, connected miscellaneous petition is also closed. Post this writ petition
under the caption “For Filing Report” on 07.09.2021 at 2.15 P.M.
10.08.2021
Index :Yes/No
Internet : Yes/No
KST
Note : Issue Order copy on 11.08.2021
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W.P.No.16614 of 2021
To
1 The Chairman
Tamil Nadu Generation and Distribution
Corporation Limited 144 Anna Salai
Chennai- 600 002.
2 Chief Engineer / NCES
Tamil Nadu Generation and Distribution
Corporation Limited 2nd Floor Eastern Wing
144 Anna Salai Chennai- 600 002.
3 The Secretary, Tamil Nadu Electricity Regulatory Commission
Rep by its secretary 4th Floor, SIDCO Corporate Office Building
Thiru.Vi.Ka. Industrial Estate Guindy
Chennai- 600 032.
4 The Superintending Engineer
TANGEDCO Tirunelveli Electricity
Distribution Circle Maharaja Nagar
Tirunelveli- 627 011.
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W.P.No.16614 of 2021
N.ANAND VENKATESH, J.
kst
W.P.No.16614 of 2021
& WMP No.17606 of 2021
10.08.2021
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