Madras High Court
M/S.Sriee Balamurugan Paper ... vs Tamil Nadu Generation And ... on 6 December, 2021
W.P.No.16941 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2021
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
W.P.No.16941 of 2017
and
W.M.P.Nos.18396 to 18398 of 2017
M/s.Sriee Balamurugan Paper Boards
HTSC No.336
S.F.No.96/2A & 2B, Yenipalikkadu,
Southapuram Post, Pallipalayam,
Tiruchengode Taluk, Namakkal.
Represented by its Managing Partner
B.Ravikumar ...Petitioner
Vs
1.Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
10th Floor, 144, Anna Salai, Chennai 600 002.
Represented by its
Chairman and Managing Director
2.The Director-Distribution,
TANGEDCO,
10th Floor, Anna Salai, Chennai 600 002.
3.The Chief Financial Controller-Revenue
TANGEDCO,
7th Floor, 144, Anna Salai, Chennai 600 002.
4.Tamilnadu Electricity Regulatory Commission,
1/8
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W.P.No.16941 of 2017
19-A, Rukumini Lakshmipathy Salai,
Egmore, Chennai 600 008.
Represented by its Secretary.
5.The Superintending Engineer,
Mettur Electricity Distribution Circle,
TANGEDCO,
Mettur Dam. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
prayed for the issuance of Writ of Certiorarified Mandamus calling for the
records of the 3rd respondents Memo.No.CFC/FC/REV/AS.3/D.325/17, dated
15.03.2017 and the consequential and further proceedings in
(i) Memo.No.CFC/REV/FC/REV/AS.3/F.CGP/D.203/17, dated 18.03.2017; (ii)
Circular Memo No.CFC/REV/FC/REV/AS.3/F.CGP/D.329/17 Dated
30/31.03.2017; (iii) Lr.No.CFC/REV/FC/REV/DFC/AO.4/F.CGP Status/
D.259/2017 dated 31.03.2017; (iv) Memo.No.CFC/REV/FC/FC/REV/
F.CGPStatus/D.334/17 dated 07.04.2017; issued by the 2nd respondent
(v) Memo.No.CFC/REV/FC/REV/AS.3/F.CGP/D.338/17, dated 15.04.2017
(vi) Memo.No.CFC/REV/FC/REV/AS.3/F.CGP/D.340/17, dated 15.04.2017
issued by the 3rd respondents and L.R.NO.SE/-
MEDC/DFC/AOR/AAO/AS/HT/F.CGP Status/D.No.250/2017 dated
05.05.2017 issued by the 5th respondent and quash the same as being contrary
to law and direct the respondents to strictly comply with the statutory
provisions of Electricity Act 2003, Electricity Rules, 2005 and the binding
judgments of the Hon'ble APTEL, in the matter of determination and
verification of status of the Captive Generating Plants by approaching the
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W.P.No.16941 of 2017
Tamilnadu Electricity Regulatory Commission for directions and determination
of the status of the Captive Generating Plants as stipulated under the provisions
of Electricity Rules, 2005 and confirmed by the binding judgments of the
Hon'ble APTEL.
For Petitioner : Mr.S.P.Parthasarthy
For R1, 2, 3 & 5 : Mr.L.Jai Venkatesh
Standing Counsel
ORDER
This writ petition was filed, challenging the various circulars/memos
mentioned above, issued by the 3rd respondent/The Chief Financial Controller-
Revenue of the TANGEDCO.
2. When the matter is taken up for hearing, the learned counsel for the
petitioner submits that initially, a similar issue was under challenge before the
Appellate Tribunal for Electricity, New Delhi. The said Tribunal has passed the
following order :
“17. Summary of Findings:-
Based on issue-wise discussion & analysis, stated supra,
we sum up our findings as under:-
17.1 Issue No.1:- We hold that the second
Respondent/TANGEDCO can be entrusted with the
exercise of collecting & verifying data for the purpose of
verification of captive plant status only. However, any
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W.P.No.16941 of 2017
coercive action to be initiated against the CGP /captive
users regarding its captive status or for recovery of CSS,
as per law, it shall be decided by the first Respondent /
State Commission.
17.2 Issue No.2:- We hold that for the purpose of granting
open access for captive purpose, the document as
recorded at Para 11.3 shall be adequate/sufficient.
Needless to mention that these documents, as specified
therein, are within the framework of TNERC Grid
Connectivity & Intra State Open Access Regulations,
2014 and also do not violate the provisions of Rule 3 of
the Electricity Rules, 2005.
17.3 Issue No.3:- We hold that as per provisions stipulated
under the Rule 3 of the Electricity Rules, 2005, the SPV
& AOP are two distinct entities and cannot be equated at
par for computation of annual power consumption for
determining the captive status.
17.4 Issue No.4:- We hold that the verification for
determining ownership & consumption for CGP /captive
users under Rule 3, being an independent exercise, has to
be done on annual basis, at the end of financial year.
Judgment of Appeal No.131 of 2020 17.5 Issue No.5:-
We hold that the directions contained in Paras 6.6.3 and
7.8.2 of the impugned order passed by the State
Commission are in disregard to Rule 3 of the Electricity
Rules and hence, cannot be sustained.
17.6 Issue No.6:- We hold that as per settled principles of
law, there cannot be retrospective application of the
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W.P.No.16941 of 2017
procedure formulated under the impugned order for
verification of status of CGP/captive users. However, it is
clarified that for the past years, the second
Respondent/TANGEDO can verify data for the purpose
of determination of captive plant status on the basis of
data already furnished by CGP/Captive users while
availing the open access.
17.7 Issue No.7:- We set aside the directions contained in
Para 7.6.9 of the impugned order wherein the State
Commission has held that, in the event, the weightage
average of shareholding of captive users changes within a
financial year, then the same has to be intimated within ten
days to the second respondent/TANGEDCO, otherwise
the said licensee would proceed to verify captive status
without considering weightage average shareholding.”
3. Against the above said order, an appeal was preferred before the
Hon'ble Supreme Court and the same has been pending. Therefore, the
learned counsel for the petitioner submits that the issue in the present case as
well as the issue pending before the Supreme Court in Diary No.21493 of
2021 is one and the same. In the event any order is passed in the appeal by
the Hon'ble Supreme Court, the same would squarely apply to the present
Writ Petition as well. Therefore, the learned counsel would pray that this Writ
Petition may be closed by recording that whatever the order is to be passed
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W.P.No.16941 of 2017
by the Hon'ble Supreme Court in the above appeal would also apply to the
present Writ Petition as well.
4. In view of the above submission made by the petitioner that the issue
in the present writ petition as well as the issue in the appeal pending before
the Hon'ble Supreme Court in Diary No.21493 of 2021 is one and the same
and any order, which is going to be passed by the Hon'ble Supreme Court in
the appeal, will hold good in respect of the present Writ Petition as well.
5. With the above observation, this Writ Petition is disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
06.12.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non Speaking Order
jd/sp
To
1.The Chairman and Managing Director,
Tamil Nadu Generation and Distribution
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W.P.No.16941 of 2017
Corporation Limited (TANGEDCO),
10th Floor, 144, Anna Salai,
Chennai 600 002.
2.The Director-Distribution,
TANGEDCO,
10th Floor, Anna Salai,
Chennai 600 002.
3.The Chief Financial Controller-Revenue
TANGEDCO
7th Floor, 144, Anna Salai
Chennai 600 002.
4.The Secretary,
Tamilnadu Electricity Regulatory Commission,
19-A, Rukumini Lakshmipathy Salai,
Egmore, Chennai 600 008.
5.The Superintending Engineer,
Mettur Electricity Distribution Circle,
TANGEDCO,
Mettur Dam.
https://www.mhc.tn.gov.in/judis
W.P.No.16941 of 2017
KRISHNAN RAMASAMY,J.
jd/sp
W.P.No.16941 of 2017
and
W.M.P.Nos.18396 to 18398 of 2017
06.12.2021
https://www.mhc.tn.gov.in/judis
