Madras High Court
M/S. Sri Vinayaga Alloys P Ltd vs Tamil Nadu Generation And ... on 10 March, 2023
2023:MHC:1074
W.P.Nos.11552 to 11558 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.11552 to 11558 2017
and
W.M.P.Nos.12543 to 12563 of 2017
W.P.No.11552 of 2017:
M/s. Sri Vinayaga Alloys P Ltd.,
HTSC.119,
28/2, A1, Salem Main Road,
Akkamapet, Sankari Post,
Salem – 637 301
repd, its Manager V.Cheliyan ... 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, 144, Anna Salai
Chennai 600 002.
3.The Chief Financial Controller – Revenue
TANGEDCO, 7th Floor, 144, Anna Salai
Chennai 600 002.
Page 1 of 9
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 2017
4.Tamil Nadu Electricity Regulatory Commission,
19-A, Rukumini Lakshmipathy Salai,
Egmore, Chennai – 600 008.
Represented by its Secretary
5.The Superintending Engineer,
Mettur Electricity Distribution Circle,
Mettur Dam – 1. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records of the
3rd respondents relating to the bearing 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.CGP Status/D.334/2017 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.CEF/REV/FC/REV /AS.3/F.
CGP/ D.340/17 dated 15.04.2017 issued by the 3rd respondent and
L.R.No.SE/MEDC/ DFC/AOR/AAO/AS/HT/F.CGP Status/D.No.104/2017
dated 16.04.2017 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
Tamil Nadu Electricity Regulatory Commission for directions and
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 2017
determination of the status Captive Generating Plants as stipulated under the
provisions of Electricity Rules, 2005 and confirmed by the binding judgments
of the Hon'ble APTEL.
For Petitioners : Mr.M.Saravana Kumar
(in all WPs)
For R1 to R3 & R5 : Mr.I.Syed Sibghatulla
[For TANGEDCO]
(in WP.Nos.11552 & 11554 of 2017)
For R1 to R3 & R5 : Mr.Venkata Seshaya
[For TANGEDCO]
(in WP.Nos.11553, 11555, 11557
of 2017)
For R1 to R3 & R5 : No Appearance
(in WP.Nos.11556 & 11558 of 2017)
For R4 : Mr.Abhinav Parthasarathy
(in All WPs)
COMMON ORDER
These writ petitions have been filed, challenging the various
circulars/memos mentioned above, issued by the 3rd respondent/The Chief
Financial Controller-Revenue of the TANGEDCO.
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 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
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 2017
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.
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
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 2017
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
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 2017
well as the issue pending before the Hon'ble 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 these
Writ Petitions as well. Therefore, the learned counsel would pray that these
Writ Petitions 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
these present Writ Petitions as well.
4. In view of the above submission made by the petitioner that the issue
in these present writ petitions 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 these present Writ Petitions
as well.
5. With the above observation, these Writ Petitions are disposed of. No
costs. Consequently, connected Miscellaneous Petitions are closed.
10.03.2023
Jeni
Index : Yes
Speaking order
Neutral Citation : Yes
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 2017
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, 144, Anna Salai
Chennai 600 002.
3.The Chief Financial Controller – Revenue
TANGEDCO,
7th Floor, 144, Anna Salai
Chennai 600 002.
4.The Secretary
Tamil Nadu Electricity Regulatory Commission,
19-A, Rukumini Lakshmipathy Salai,
Egmore, Chennai – 600 008.
5.The Superintending Engineer,
Mettur Electricity Distribution Circle,
Mettur Dam – 1.
https://www.mhc.tn.gov.in/judis
W.P.Nos.11552 to 11558 2017
S.M.SUBRAMANIAM, J.
Jeni
W.P.Nos.11552 to 11558 2017
10.03.2023
https://www.mhc.tn.gov.in/judis
