Madras High Court
M/S.Selvam Broilers P Ltd. vs Tamil Nadu Generation And ... on 4 January, 2022
W.P.No.14172 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2022
CORAM
THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY
W.P.No.14172 of 2017
and
W.M.P.Nos.15359 to 15361 of 2017
M/s.Selvam Broilers P Ltd., HTS No.205
No.46 Co-operative Colony, P.B.No.18
Gandhi Nagar, Namakkal - 637 001
Rep by its Authorized Signatory J.Blaji ...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,
19-A, Rukumini Lakshmipathy Salai,
Egmore, Chennai 600 008.
Represented by its Secretary.
1/8
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W.P.No.14172 of 2017
5.The Superintending Engineer,
Namkkal Electricity Distribution Circle,
TANGEDCO,
Namkkal, ...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 relating to the Circular
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/-NEDC / DFC / HT
/ AS / ASST / F.CGP Status / D/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 Tamilnadu Electricity Regulatory
Commission for directions and determination of the status of the Captive
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W.P.No.14172 of 2017
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 to R3 & R5 : 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
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W.P.No.14172 of 2017
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, 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
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W.P.No.14172 of 2017
exercise, has to be done on annual basis, at the end of
financial year.
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
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W.P.No.14172 of 2017
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 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.14172 of 2017
5. With the above observation, this Writ Petition is disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
04.01.2022
Index: Yes/No
Internet:Yes/No
Speaking order/Non Speaking Order
rst
To
1.The Chairman and Managing Director,
Tamil Nadu Generation and Distribution
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.
https://www.mhc.tn.gov.in/judis
W.P.No.14172 of 2017
KRISHNAN RAMASAMY,J.
rst
5.The Superintending Engineer,
Namakkal Distribution Circle,
TANGEDCO,
Namakkal.
W.P.No.14172 of 2017
and W.M.P.Nos.15359 to 15361 of 2017
04.01.2022
https://www.mhc.tn.gov.in/judis
