Madras High Court
The Ramco Cements Limited vs The Chairman on 19 October, 2022
Writ Petition Nos.28157 and 28158 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19/10/2022
CORAM
THE HONOURABLE Mr.JUSTICE N. SATHISH KUMAR
Writ Petition Nos.28157 and 28158 of 2017
and
M.P.Nos.30287 to 30292 of 2017
The Ramco Cements Limited
rep. By its Sr.DGM – Legal
Mr.T.Mathivanan
Auras Corporate Centre, 5th Floor
98 A Dr.Radhakrishnan Road
Mylapore
Chennai 600 004. ... Petitioner
Vs
1. The Chairman
Tamil Nadu Generation and Distribution Corporation Ltd
144 Anna Salai
Chennai 600 002.
2. The Director Finance
Tamil Nadu Generation and Distribution Corporation Ltd
144 Anna Salai
Chennai 600 002.
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Writ Petition Nos.28157 and 28158 of 2017
3. The Chief Financial Controller
Tamil Nadu Generation and Distribution Corporation Ltd
144 Anna Salai
Chennai 600 002.
4. The Superintending Engineer
Udumalpet Electricity Distribution Circle
Udumalpet.
5. The Superintending Engineer
Virudhunagar Electricity Distribution Circle
Virudhunagar.
6. The Chief Engineer/NCES
TANGEDCO
144 Anna Salai
Chennai 600 002.
7. The Tamil Nadu Electricity Regulatory Commission
rep. By its Secretary
19 A Rukmini Lakshmipathi Salai
Egmore
Chennai 600 008. ... Respondents
COMMON PRAYER: Petition filed under Article 226 of the Constitution of
India praying for the issuance of a writ of certiorarified mandamus to call for
the records of the third respondent bearing
Lr.No.CFC/FC/REV/AAO/HT/D.419/2014 dated 11/7/2014 and quash the
same and consequently, direct the fourth respondent to make payment of total
amount of Rs.73,32,652/- and 37,54,062/-, respectively.
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Writ Petition Nos.28157 and 28158 of 2017
For Petitioner ... Mr.Rahul Balaji
For respondents ... Mr.Abul Kalam
Standing Counsel
-----
COMMON ORDER
Writ Petitions have been filed to quash the order of the third respondent
bearing Lr.No.CFC/FC/REV/AAO/HT/D.419/2014 dated 11/7/2014 and
consequently, direct the fourth respondent to make payment of total amount of
Rs.73,32,652/- and 37,54,062/-, respectively.
2. The case of the petitioner is that the writ petitioner has entered into
Energy Wheeling Agreements with the first respondent. The petitioner has a
Wind Energy Generator (WEG). According to the Tariff orders issued by the
Commission, it was ordered that if wind energy is not utilised fully during a
month, balance of it will be transferred to a banking account and accordingly,
during the lean sessions of wind energy, such banked energy is allowed for
adjustment from the banking account after paying notified banking charges to
the respondent by the WEG owners. When the petitioner has raised an invoice
for sale of unutilised banked units, till date, no payment has been made by the
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Writ Petition Nos.28157 and 28158 of 2017
respondents. Hence, the petitioner has filed the instant writ petitions, praying
for the relief as stated therein.
3. Heard Mr.Rahul Balaji, learned counsel appearing for the petitioner
and Mr.Abul Kalam, learned Standing Counsel for the respondents.
4. Mr.Rahul Balaji, learned counsel appearing for the petitioner
submitted that payments have not been made, as per Circular, dated
11/7/2014. When the very Circular is put in challenge before this Court in
W.P.No.27613 of 2017, this Court, vide, order, dated 29/7/2022, has ordered as
follows:- Paragraph Nos.4 and 5 of the said order, reads thus:-
“4. This question was considered by the
Tamil Nadu Electricity Regulatory Commission
(TNERC) in DRP.No.1 of 2016 and the TNERC in
its order dated 03.08.2021 concluded as follows:-
“6.9 At this juncture, it would be
relevant to refer the Clause 10 of the
Energy Wheeling Agreement executed
between the parties:~
“10. Agreement Period:
a. This agreement shall come into force
from the date of execution and shall
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Writ Petition Nos.28157 and 28158 of 2017
remain in full force for a period of
twenty (20) years.
b. In case of any breach or violation of
any of the clauses in this agreement, by
any party, the other party shall be at
liberty to terminate this agreement after
giving three months notice.
c. It is agreed that the change of
utilisation of wind energy, from captive
consumption to sale may be done after
giving three months notice by the Wind
Energy Generator to the Board and
after executing energy purchase
agreement on the terms applicable as
per Order Nos.2 and 3 dated
15.05.2006.?”
Though the petitioner in HT SC.1797
M/s.R.K.K.R. Steels is the 100% user of
the power generated from
WF.HT.SC.D.112, the disconnection
and Account closure of the user end
HT.SC.1797 was not immediately
informed to first respondent by the
second respondent. This might be one of
the reasons that, the first respondent
has not issued any notice to terminate
the Energy Wheeling Agreement. In the
absence of any such notice from the
respondents towards -termination of
EWA-, the Energy Wheeling Agreement
cannot be considered as void.
6.10. The petitioner has executed the
EWA based on the Commission-s
T.O.No.3 of 2006 dated 15.05.2006,
hence the provisions of banking referred
in that order is applicable to the
petitioner-s case as below:~
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Writ Petition Nos.28157 and 28158 of 2017
“ 10.4 Banking
xxx xxx xxx
The Commission fixes the banking
charges as 5% for WEG. The Licensee
shall pay at a rate of 75% of normal
purchase rate for the unutilised portion
of energy banked by the NCES based
wind electric generators......? “
The same has been well inserted into the
Energy Wheeling Agreement of the
petitioner as below ~
“ 5. Banking:
a. The Wind Energy Generator shall
bank the energy generated in the Wind
Mill and the Banking period shall be
one year from April to March.
b. The unutilised portion of banked
energy if any shall be purchased by the
Licensee at the rate of 75% of the
normal purchase rate.
c. The Banking shall be done slot wise
to enable unit~to~unit adjustment.“
It is evident from the Wind Energy
Statement issued by the first respondent
during the period from 04/2014 to
07/2015 that the entire energy
generated by the petitioner was
accepted by the first respondent into its
grid. In this circumstance, the unutilised
portion of power generated becomes
eligible for payment under para 10.4 of
the T.O.No.3 of 2006 and clause 5(b) of
the Energy Wheeling Agreement.”
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Writ Petition Nos.28157 and 28158 of 2017
5. In view of the above opinion expressed by
the TNERC, the TANGEDCO demand is opposed
to the finding of the Commission and hence the
demand will have to be set aside. The writ petition
is therefore allowed. The demand made is set
aside and the TANGEDCO is directed to re-
calculate the value of the un-utilised and banked
units and make payment to the petitioner. Such
exercise shall be carried out within a period of 4
months from the date of receipt of a copy of the
order. No costs. Consequently, the connected writ
miscellaneous petitions are closed.”
5. Considering the above judgment and also considering the fact that
unutilised portion of power generated becomes eligible for payment, this Court
is of the considered view to direct the respondent to make payment to the
petitioner, and the same will serve the ends of justice.
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Writ Petition Nos.28157 and 28158 of 2017
6. Accordingly, these writ petitions are allowed and the order dated
11/7/2014, passed by the third respondent is quashed. The respondents are
bound to return the amount of Rs.73,32,652/- and 37,54,062/-, respectively,
towards the banked unutilised energy to the petitioner, within a period of three
months, from the date of receipt of a copy of this order. No costs.
Consequently, the connected Miscellaneous Petitions are closed.
19/10/2022
Index : Yes / No
Internet: Yes
Speaking/non speaking order
mvs.
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Writ Petition Nos.28157 and 28158 of 2017
To
1. The Chairman
Tamil Nadu Generation and Distribution Corporation Ltd
144 Anna Salai
Chennai 600 002.
2. The Director Finance
Tamil Nadu Generation and Distribution Corporation Ltd
144 Anna Salai
Chennai 600 002.
3. The Chief Financial Controller
Tamil Nadu Generation and Distribution Corporation Ltd
144 Anna Salai
Chennai 600 002.
4. The Superintending Engineer
Udumalpet Electricity Distribution Circle
Udumalpet.
5. The Superintending Engineer
Virudhunagar Electricity Distribution Circle
Virudhunagar.
6. The Chief Engineer/NCES
TANGEDCO
144 Anna Salai
Chennai 600 002.
7. The Secretary
Tamil Nadu Electricity Regulatory Commission
19 A Rukmini Lakshmipathi Salai
Egmore
Chennai 600 008.
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Writ Petition Nos.28157 and 28158 of 2017
N. SATHISH KUMAR, J
mvs.
W.P.Nos.28157 and 28158 of 2017
19/10/2022
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