Madras High Court
Santhosh Textile Process vs Tamil Nadu Electricity ... on 20 June, 2022
W.P. No.533 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.06.2022
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P. No.533 of 2015
and M.P. No.1 of 2015
Santhosh Textile Process,
HTSC No.56,S.F.No.165,
Santhosh Garden,
Kulathupudur, Andipalayam (P.O),
Tirupur-641 687
Rep. by its Authorised Signatory,
M.Maruthupandian …Petitioner
Vs.
1.Tamil Nadu Electricity Regulatory
Commission repd. by its Secretary,
19-A, Rukmini Lakshmipathy Salai,
(Marshall's Road), Egmore,
Chennai- 600 008.
2.Tamil Nadu Generation and Distribution,
Corporation Limited (TANGEDCO),
Rep. by its Chairman and Managing Director,
144, Anna Salai, Chennai-600 002.
3.The Superintending Engineer,
TANGEDCO, Tirupur Elec. Distribution Circle,
Tirupur. …Respondents
1/8
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W.P. No.533 of 2015
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus calling for the
records of the 3rd respondent in his impugned demand notice
Lr.No.SE/TEDC/TPR/AAO/DFC/F.HT/BOAB/D.4581/14 dated 01.11.2014
along with the BOAB Audit Slip No.52 and the impugned demand notice
Lr.No.SE/TEDC/TPR/AAO/DFC/F.HT/BOAB/D.14 dated 22.12.2014
along with BOAB Audit slip no.203 both seeking refund of the encashment
amount already paid to the petitioner towards unutilised banked wind
energy for the periods 2012-13 and 2011-12 respectively quash the same as
illegal, arbitrary, without the authority of law, against the violation of
principal of natural justice and against Electricity Act 2003 and
consequently direct the 3rd respondent to give refund/ adjustment of
Rs.16,60,476/- already illegally collected from the petitioner.
For Petitioner : Mr.S.P.Parthasarathy
For Respondent 1 : No appearance
For Respondents : Mr.Abul Kalam
2 and 3 for TANGEDCO
******
ORDER
The writ petition is filed praying for a writ of Certiorarified
Mandamus calling for the records of the 3rd respondent in his impugned
demand notice Lr.No.SE/TEDC/TPR/AAO/DFC/F.HT/BOAB/D.4581/14
dated 01.11.2014 along with the BOAB Audit Slip No.52 and the impugned
demand notice Lr.No.SE/TEDC/TPR/AAO/DFC/F.HT/BOAB/D.14 dated
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W.P. No.533 of 2015
22.12.2014 along with BOAB Audit slip no.203 both seeking refund of the
encashment amount already paid to the petitioner towards unutilised banked
wind energy for the periods 2012-13 and 2011-12 respectively quash the
same as illegal, arbitrary, without the authority of law, against the violation
of principal of natural justice and against Electricity Act 2003 and
consequently direct the 3rd respondent to give refund/ adjustment of
Rs.16,60,476/- already illegally collected from the petitioner.
2. The petitioner is a continuous process industry having High
Tension Electricity Supply in H.T.Sc.No.56 under the 3rd respondent,
Tiruppur EDC.
3. The power scenario in State of Tamil Nadu was very bad during
the period 2007 onwards. As the respondent/ Board was unable to manage
the demand, they imposed a number of restrictions and control measures to
various categories of consumers with effect from 01.11.2008, insofar as
H.T. consumers are concerned, the following restrictions were imposed,
namely:
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W.P. No.533 of 2015
a. There was allocation only to the extent of 60%.
b. There were peak-hour restrictions and scheduled load shedding.
c. There was compulsory power holidays, in the case of petitioner, it
is stated to be on Fridays and Sundays.
4. Rule 3(1)(a)(ii) of the Electricity Rules, 2005 requires that to
qualify as a "captive generation power plant" under Section 8 read with
Clause 8(2), power of not less than 51% of aggregate electricity generated
on such plant determined on annual basis, must be consumed for captive
use. During the period 2011-12 and 2012-13, the petitioner having not
complied with the above requirement, consequently, impugned notices were
issued seeking refund of the amount already paid to the petitioner towards
unutilised banked energy.
5. It is submitted by the learned counsel for the petitioner that the
above issue is no longer res-integra and stands resolved by a judgment of
this Court in W.P.No.6112 of 2017 dated 25.01.2002 wherein reference was
made to the order passed by the Tamil Nadu Electricity Regulatory
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W.P. No.533 of 2015
Commission in D.R.P.No.18 of 2013 wherein similar demands were set
aside on the premise that non-compliance with the requirement of 51% of
electricity consumption for captive use under Rule 3(1)(a)(ii) of Electricity
Rules, 2005 was only in view of the restrictions and control measures
implemented by the respondent/ Board, over which the petitioner had no
control nor can be found fault with. Relevant portion of the order of this
Court wherein the order of Tamil Nadu Electricity Regulatory Commission
was referred to is extracted below:
"5..... At this juncture, it would be appropriate to extract
the order passed by the Tamil Nadu Electricity Recovery
Commission in D.R.P.No.18 of 2013. The relevant portion of
the said order is reproduced hereunder:
"11.15.8. The Commission is of the ell considered view
that when the Government of Tamil Nadu, on the one hand,
directed all the generating stations to operate at their
maximum capacity to receive the power, and at the same time
limited the allocation to the extent of 60% / 70% level with
peak hour restriction and scheduled load shedding vide its
letter dated 22.10.2008, we find that a consumer cannot be
penalised. When a consumer is not given even 51% of his
requirement, as stated supra, the Distribution licensee in our
view cannot expect fulfilment of the conditions of 51% of
consumption as required under Rule 3(1)(a).
11.15.9. Rule 3(1)(a) stipulates a power plant to satisfy
both the conditions stated therein to qualify as a Captive
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W.P. No.533 of 2015
Generating Plant "it is applicable under normal circumstances
when the distribution/ transmission grid is open to the captive
user without any restriction and not when there is no fault on
the part of the captive user in consuming power on its side and
at a time when stringent measure was imposed both in the form
of restricted Quota as well as grid restrictions. We find no
merit in insisting on adherence of conditions under Rule 3 of
the Electricity Rules, 2005 for a captive generating plant in
such conditions.
In view of the above order, the impugned demand notice
is set aside."
6. It is submitted by Mr.Abul Kalam, learned Standing Counsel for
the respondents that the issue stands covered.
7. Following the above order passed by this court, this writ petition
stands allowed. No costs. Consequently, connected miscellaneous petition is
closed.
20.06.2022
Speaking (or) Non Speaking Order
Index : Yes/ No
mka
https://www.mhc.tn.gov.in/judis
W.P. No.533 of 2015
To:
1.The Secretary,
Tamil Nadu Electricity Regulatory Commission,
19-A, Rukmini Lakshmipathy Salai,
(Marshall's Road), Egmore,
Chennai- 600 008.
2.The Chairman and Managing Director,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
144, Anna Salai, Chennai-600 002.
3.The Superintending Engineer,
TANGEDCO, Tirupur Electricity Distribution Circle,
Tirupur.
https://www.mhc.tn.gov.in/judis
W.P. No.533 of 2015
MOHAMMED SHAFFIQ, J.
mka
W.P. No.533 of 2015
and M.P. No.1 of 2015
20.06.2022
https://www.mhc.tn.gov.in/judis
