Madras High Court
M/S.Suryadev Alloys & Power Pvt. ... vs Tamil Nadu Generation And ... on 9 December, 2021
W.P.No.11673 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
W.P.No.11673 of 2017
and
W.M.P.Nos.12702 to 12704 of 2017
M/s.Suryadev Alloys & Power Pvt. Ltd.,
497 & 498, 8th Floor, Isana Building P.H.Road,
Arumbakkam, Chennai 600 106.
Represented by its General Manager,
Mr.S.Balachandar ...Petitioner
Vs
1.Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
Represented by its
Chairman and Managing Director,
144, Anna Salai, Chennai 600 002.
2.The Chief Financial Controller
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
144, Anna Salai, Chennai 600 002.
3.The Superintending Engineer,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
Chennai EDC North,
1/7
https://www.mhc.tn.gov.in/judis
W.P.No.11673 of 2017
144, Anna Salai,
Chennai 600 002.
4.Tamil Nadu Electricity Regulatory Commission (TNERC),
Represented by its Secretary
19-A, Rukumani Lakshmipathy Salai (Marshall's Road),
Egmore, Chennai 600 008.
...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
prayed for the issuance of Writ of Certiorarified Mandamus striking down the
impugned Memos Circular Memo No.CFC/FC/REV/AS.3/D.325/17 dated
15.03.2017 culminating in Circular Memo
No.CFC/REV/FC/REV/AS.3/F.CGP/D.203/17 dated 18.03.2017 issued by the
2nd respondent, quash the same and direct the 4th respondent to expediently
verify and determing the Captive Status of the petitioner company.
For Petitioner : M/S.Surana and Surana
For R1, 2, 3 : Mr.L.Jai Venkatesh
Standing Counsel
ORDER
This writ petition was filed, challenging the various circulars/memos
mentioned above, issued by the 2nd respondent/The Chief Financial Controller
of the TANGEDCO.
https://www.mhc.tn.gov.in/judis
W.P.No.11673 of 2017
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
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,
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W.P.No.11673 of 2017
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
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
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W.P.No.11673 of 2017
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 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.
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W.P.No.11673 of 2017
5. With the above observation, this Writ Petition is disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
09.12.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non Speaking Order
jd
To
1.Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
Represented by its
Chairman and Managing Director,
144, Anna Salai, Chennai 600 002.
2.The Chief Financial Controller
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
144, Anna Salai, Chennai 600 002.
3.The Superintending Engineer,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO)
Chennai EDC North,
144, Anna Salai,
Chennai 600 002.
4.Tamil Nadu Electricity Regulatory Commission (TNERC),
Represented by its Secretary
19-A, Rukumani Lakshmipathy Salai (Marshall's Road),
Egmore, Chennai 600 008.
https://www.mhc.tn.gov.in/judis
W.P.No.11673 of 2017
KRISHNAN RAMASAMY,J.
jd
W.P.No.11673 of 2017
and
W.M.P.Nos.12702 to 12704 of 2017
09.12.2021
https://www.mhc.tn.gov.in/judis
