Madras High Court
Tamil Nadu Generation And Distribution ... vs The Ministry Of Power on 29 January, 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :20.12.2024
PRONOUNCED ON :29.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
W.P.No.13624 of 2024
and WMP.No.14776 of 2024
Tamil Nadu Generation and Distribution Corporation Limited,
The Chief Engineer,
Non-Conventional Energy Source,
2nd Floor, Eastern Wing, NPKRR Maaligai,
No.144, Anna Salai,
Chennai – 600 002.
... Petitioner
Vs.
1.The Ministry of Power,
Represented by its Secretary,
Union of India, Shram Shakti Bhawan,
Rafi Marg, New Delhi – 110 001.
2.The Chief General Manager,
P.F.C Consulting Limited,
9th Floor, A Wing Statesman House,
Barakhamba Lane, Connaught Place,
New Delhi – 110 001, India.
3.The Southern Regional Load Dispatch Centre,
Represented by its Executive Director,
No.29, Race Course Cross Road, Bangalore – 560 009.
1/18
https://www.mhc.tn.gov.in/judis
4. Welspun Renewables Energy Private Limited,
C/o. The Tata Power Company Limited,
Corporate Center B, 34 Sant Tukaram Road,
Carnac Bunder, Mumbai – 400 009.
5. Welspun Solar Tech Private Limited,
C/o. The Tata Power Company Limited,
Corporate Center B, 34 Sant Tukaram Road,
Carnac Bunder, Mumbai – 400 009.
... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Mandamus, directing the respondents 1 and 2 to reject the
tampered invoices Nos.WREPL/PPT-50, MW/LPS/FY24/CUF01,
WREPL/IYRM–50, MW/LPS/FY24/CUF 01,
WREPL/KYTR49MW/LPS/FY24/CUF 01, WSTPL/Musiri 50
MW/LPS/FY24/CUF01 and WSTPL/TTPET/ 50MW/LPS/FY24/CUF 01,
dated 19.12.2023 tampered as 19.02.2024 uploaded by the respondents 4 and
5 in the PRAAPTI PORTAL.
For Petitioner : Mr.J.Ravindran
Additional Advocate General
Assisted by Mr.D.R.Arunkumar
standing counsel
For Respondents :Mr.A.R.L.Sundaresan,
Additional Solicitor General -I
Assisted by Mr.K.Ramanamoorthy
for R1 (CGC)
Mr.C.S.Vaidyanathan,
Senior Advocate,
2/18
https://www.mhc.tn.gov.in/judis
for M/s.Shri Venkatesh for R4
Mr.Sathish Parasaran
Senior Advocate
for M/s.Abinav Parthasarathy for R5
No Appearance for R2 and R3
ORDER
This writ petition is filed seeking to issue a Writ of Mandamus,
directing the respondents 1 and 2 to reject the tampered invoices
Nos.WREPL/PPT-50, MW/LPS/FY24/CUF01, WREPL/IYRM – 50,
MW/LPS/FY24/CUF 01, WREPL/KYTR49MW/LPS/FY24/CUF 01,
WSTPL/Musiri 50 MW/LPS/FY24/CUF01 and WSTPL/TTPET/
50MW/LPS/FY24/CUF 01, dated 19.12.2023 tampered as 19.02.2024
uploaded by the respondents 4 and 5 in the “ PRAAPTI PORTAL”.
2. The petitioner is purchasing solar power from private
generating companies like respondents 4 and 5 under long term Power
Purchase Agreement (hereinafter referred as PPA) based on tariff order issued
by Tamil Nadu Electricity Regulation Commission, vide order No.7 of 2014,
dated 12.09.2014 and order No.2 of 2016, dated 28.03.2016. As per the tariff
https://www.mhc.tn.gov.in/judis
order, the purchase of power is at the rate of Rs.7.01/6.28 per unit
without/with AD benefit and Rs.5.10/4.56 per unit without/with AD benefit
respectively. The petitioner entered into the Power Purchase Agreement with
respondents 4 and 5 on various dates.
3. The petitioner issued a circular on 14.06.2017, vide letter
No.CE/NCES/SE/SOLAR/EE/SCB/AEE3/F.Policy issue-PLF/D.540/17 to
regulate the payment regarding the energy exported by generators when the
Capacity Utilisation Factor (CUF) exceeds 19%. In the said circular, the
petitioner clarified that any excess power supplied by the generating company
to the petitioner in excess of 19% of CUF will not be taken into consideration
for payment. The said circular was challenged by the generators before the
Tamil Nadu Electricity Commission (TNERC) in M.P.No.11 of 2019 and the
same was dismissed. Aggrieved by the same, the generators preferred an
appeal before the “APTEL”. The said appeal was allowed by the “APTEL”
by directing the petitioner to make payment at the rate of the relevant tariff
order/EPA(Energy Purchase Agreement) for energy procured from the Solar
Power Generators up to CUF of 19% and additional payment for the excess
https://www.mhc.tn.gov.in/judis
energy supplied by the generators at the rate of 75% of the tariff as applicable
under the provisions of EPAs within six months from the date of judgment.
The said order was challenged by the petitioner before the Supreme Court in
Civil Appeal Nos.1271 of 2023 and 1354 of 2023 and the same were
dismissed on 03.03.2023 by confirming the order passed by “APTEL”.
Thereafter, the petitioner paid a sum of Rs.81.33 Crores towards 75% of the
tariff rate for the excess energy supplied by the respondents 4 and 5 to the
petitioner over and above 19% of CUF. The said payment was made on
12.05.2023 within expiry of six months from the date of order passed by the
Apex Court. Thereafter, the respondents 4 and 5 sent letters on 14.12.2023,
19.12.2023 and 20.12.2023 along with invoices claiming alleged Late
Payment Surcharge amount, for the period 2015-2016 to 2021-2022 to the
tune of Rs.31,13,97,373/- and in the same letter they also agreed to waive
50% of the amount and claimed Rs.15,56,98,687/-.
4. It is the case of the petitioner that as per the order passed by
the “APTEL” and confirmed by the Apex Court, no Late Payment Surcharge
[LPS] needs to be paid by the petitioner as claimed by the
https://www.mhc.tn.gov.in/judis
respondents 4 and 5. Therefore, the petitioner sent a letter to the respondents
4 and 5 on 05.01.2024 rejecting their claim for Late Payment Surcharge.
Thereafter, the respondents 4 and 5 uploaded the said invoices in PRAAPTI
PORTAL by modifying the date as if invoices were raised on 19.02.2024. It
is further stated by the petitioner that once the invoices are uploaded in the
above said portal by the generators like the respondents 4 and 5, the
consumer/beneficiary DISCOM like TANGEDCO is liable to pay the amount
within a period of 75 days from the date of uploading of invoices. In case of
non payment of the amount within trigger date under Regulation 7 of Late
Payment Surcharge Rules, the procurement of power by the petitioner from
the Central Grid will get suspended and the entire State will be plunged into
darkness. It is further stated by the petitioner that original invoices were
raised as early as 19.12.2023 and the same ought to have been uploaded
within ten days from the date of invoices, but in order to invoke LPS Rules,
the respondents 4 and 5 have tampered the invoices by altering the date as
19.02.2024 and uploaded them in the PRAAPTI PORTAL. Therefore, the
petitioner seeks a direction to the respondents 1 and 2 to reject the tampered
invoices.
https://www.mhc.tn.gov.in/judis
5. The learned Additional Advocate General appearing for the
petitioner submitted that the respondents 4 and 5 originally raised the
invoices on 19.12.2023 claiming LPS and the same was rejected by the
petitioner by letter dated 05.01.2024 by relying on order passed by the
“APTEL” and confirmed by the Apex Court. Thereafter, the respondents 4
and 5 tampered with the invoices by altering the date as 19.02.2024 and
uploaded it in the “PRAAPTI PORTAL”. Therefore, the invoices uploaded in
“PRAAPTI PORTAL” by tampering dates are deserved to be rejected by the
petitioner. The learned Additional Advocate General further submitted that
“APTEL” in its order dated 28.11.2022, only directed the petitioner to pay as
per the agreed rate under PPA/EPA for the energy supply by the generators up
to CUF of 19%. In case of excess supply by the generators beyond the CUF
of 19%, the petitioner was directed to pay at the rate of 75% of the agreed
tariff under PPA/EPA and there was no direction by “APTEL” to pay Late
Payment Surcharge and therefore, the invoices raised by the respondents 4
and 5 are not sustainable.
https://www.mhc.tn.gov.in/judis
6. The learned Senior counsel appearing for the respondents 4
and 5 by taking this Court to the Energy Purchase Agreement entered into
between the petitioner and the respondents 4 and 5, the order passed by
APTEL and confirming order of Apex Court submitted that the petitioner was
directed to pay 75% of the agreed tariff as per EPA, in case of excess supply
beyond CUF of 19%. The learned Senior Counsel further submitted that
under clause 6 of Energy Purchase Agreement, the petitioner/distribution
licensee shall make payment to the Solar Power Generators within 60 days
from the date of receipt of the bill in complete shape and any delayed
payment beyond the period of 60 days shall attract interest at the rate of 1%
per month for the period beyond 60 days. Since there is a clear direction by
“APTEL” to the petitioner to make payment at the rate of 75% of the tariff as
applicable under the provisions of EPAs, the petitioner is bound to pay Late
Payment Surcharge on the 75% of the tariff.
7. Alternatively, the learned Senior Counsel appearing for the
respondents 4 and 5 submitted that in case of dispute between the generator
https://www.mhc.tn.gov.in/judis
companies and distribution licensee, there is an alternative remedy of
approaching the State Electricity Regulatory Commission under Section
86(1) (f) of Electricity Act and the petitioner having disputed its liability to
pay Late Payment Surcharge instead of availing the alternative remedy of
approaching State Electricity Regulatory Commission under Section 86(1)
(f) of Electricity Act, straight away approached this Court by invoking
writ jurisdiction and in view of effective alternative remedy available before
the expert body/State Electricity Regulatory Commission, the present writ
petition filed by the petitioner is not maintainable.
8. The learned Additional Solicitor General appearing for the
first respondent would submit that any order passed by this Court on the
dispute between the petitioner and the respondents 4 and 5 will be
implemented by the first respondent.
9. The respondents 4 and 5 are Solar Power Generators. The
petitioner is a distribution licensee in the State of Tamil Nadu and it entered
into Energy Purchase Agreement with respondents 4 and 5. Clause 6 of
https://www.mhc.tn.gov.in/judis
Energy Purchase Agreement between the petitioner and the respondents 4 and
5 reads as follows:
6.Billing and Payment:
(a) The SPG shall raise a monthly bill along with the
supporting documents every month to the distribution
licensee for the net energy sold/exported after deducting the
charges payable to the distribution licensee such as for
startup/standby power, Grid availability charges and
reactive power or any other lawful charges recoverable by
the licensee. The bill shall be with a certification as to
whether the SPG has availed Accelerated Depreciation
benefit or not.
(b) The Distribution Licensee shall make payment to
the SPG for the solar energy purchased/exported at the
metering point within 60 days from the date following the
date of receipt of the bill in complete shape. Any delayed
payment beyond sixty days shall attract interest at the rate of
1% per month for the period beyond sixty days.
(c) Stand-by (back up) Letter of Credit shall be
opened by Distribution Licensee for an estimated value of
https://www.mhc.tn.gov.in/judis
one month bill, which will be valid for a period up to one
year. The Letter of Credit so opened shall be renewed year
after year for the value based on average value of previous
12 months bills. The LC will be revolved in the event of
invocation due to non-payment of energy charges within the
stipulated time frame. All the charges relating to
establishment, amendment and operation of Letter of Credit
shall be to the account of the beneficiary that is, SPG.
(d) The Distribution Licensee wherever necessary,
shall raise a bill at the end of a billing period of one month
for the power drawn by the SPG in excess over the exported
power and the SPG shall make payment to the Distribution
Licensee at HT temporary supply tariff within the time
stipulated to the HT consumers in the Commission's Supply
Code, 2004.”
10. A perusal of above clause in the Energy Purchase Agreement
would make it clear that distribution licensee is expected to pay the amount
due to the generators within 60 days from the date of receipt of bill in
complete shape and any delayed payment shall attract interest at the rate of
1% per month for the period beyond 60 days.
https://www.mhc.tn.gov.in/judis
11. Narration of facts mentioned above would make it clear that
the petitioner issued a circular stating that any excess power supplied by
Solar Power Generators beyond CUF of 19% will not be considered for
payment. The said circular was challenged by the power generators before
State Electricity Regulatory Commission and the same was dismissed. The
order passed by State Electricity Regulatory Commission was challenged
before “APTEL” by the power generators. The operative portion of the order
of “APTEL” reads as follows:
“84. We are inclined to adopt the above
mechanism prescribed by MoP for the generators covered in
the present Appeals. Accordingly, TANGEDCO is directed to
make compensation to the SPGs at the rate of 75% of the
PPA/EPA tariff for excess power consumed, i.e., over and
above 19% of CUF in addition to the tariff payment as per
the corresponding Tariff Order for the power procured up to
19% of CUF from the SPGs covered by these captioned
Appeals.
85. The TANGEDCO is directed to make payments
including the payment at the rate of the relevant Tariff
https://www.mhc.tn.gov.in/judis
Order/EPAs for energy procured from the solar projects of
the Appellants up to CUF of 19% and additional payment for
the excess energy procured from or supplied by the
Appellants at the rate of 75% of the tariff as applicable under
the provisions of the EPAs and in accordance with the
conclusions made in the following paragraphs in a time
bound manner, however, within six months of this judgment.”
12. A perusal of the above order passed by “APTEL” would
make it clear that as far as excess power supplied by Solar Power Generators
to the petitioner is concerned, the petitioner is liable to pay 75% of the tariff
as applicable under the provisions of Energy Purchase Agreement. The
Energy Purchase Agreement between the petitioner and the respondents 4 and
5 would make it clear that the petitioner shall make payment within 60 days
from the date of receipt of invoice and any delayed payment beyond 60 days
shall attract interest at the rate of 1%. When “APTEL” directed the petitioner
to pay 75% of the tariff as applicable under the provisions of Energy
Purchase Agreement, it necessarily means that the said 75% of the tariff shall
be paid with Late Payment Surcharge, if any.
https://www.mhc.tn.gov.in/judis
13. As rightly contended by the learned Senior counsel
appearing for the respondents 4 and 5, the petitioner while challenging the
order passed by the “APTEL”, before the Supreme Court, raised a specific
ground with regard to the applicability of Late Payment Surcharge. The
ground (HH) raised by the petitioner in Civil Appeal before the Supreme
Court challenging the “APTEL” order reads as follows:
“HH. Because the Respondent No.1 over and
above the 75% amount which has been ordered to be paid
by the Hon'ble APTEL has maliciously also applied Late
Payment Surcharge from April, 2018 to December 2022 on
the 75% amount ordered to be paid by the Hon'ble APTEL.
The Table highlighting the same has already been annexed
with the present Civil Appeal.”
Therefore the question of applicability of Late Payment
Surcharge was specifically raised by the petitioner before the Apex Court
while challenging the order passed by the “APTEL” and the said appeal filed
by the petitioner was dismissed by the Apex Court by confirming the order
https://www.mhc.tn.gov.in/judis
passed by the “APTEL”. Therefore, the point raised by the petitioner in the
present writ petition was already raised by it before the Apex Court in Civil
Appeal Nos.1271 of 2023 and 1354 of 2023 and the same was negatived by
the Apex Court by dismissing of the Civil Appeals. In such circumstances,
the petitioner is not entitled to contend that Late Payment Surcharge is not
applicable to the payment made by the petitioner towards excess energy
supplied by the generators beyond Capacity Utilization Factor of 19%. The
petitioner is not entitled to raise the point which was unsuccessfully raised
before the Apex Court, in this writ petition.
14. As far as the contention raised by the learned Additional
Advocate General appearing for the petitioner that the invoices uploaded by
the respondents 4 and 5 in “PRAAPTI PORTAL” are tampered invoices and
therefore the respondents 1 and 2 shall not take any further action, pursuant
to the tampered invoices of the respondents 4 and 5. Merely because the
date of invoice was changed at the time of uploading, the invoices cannot be
termed as tampered invoices. There is no correction with regard to the
material details like payment due to the respondents 4 and 5. The only
https://www.mhc.tn.gov.in/judis
contention of the petitioner is that date of invoice was changed as 19.02.2024
instead of 19.12.2023. It is seen from the pleadings of the parties and also the
typed set of papers that invoice was originally raised by the respondents 4
and 5 on 19.12.2023 and the same was sent to the petitioner. Thereafter, by
communication dated 05.01.2024, the petitioner disputed its liability to pay a
Late Payment Surcharge. In these circumstances, the invoices were uploaded
in “PRAAPTI PORTAL” on 19.02.2024, mentioning the date of invoice as
19.02.2024. The date of invoice is material only for the purpose of
determining the trigger date. However, with regard to the LPS claim by the
respondents 4 and 5 is concerned, there is no change in the invoice. In fact,
the respondents 4 and 5 have not claimed any amount for a period from
19.12.2023 to 19.02.2024 and the same runs to the advantage of the
petitioner. In such circumstances, the said submission made by the learned
Additional Advocate General is not acceptable to this Court.
15. In view of the discussions made earlier, this Court is not
inclined to entertain the prayer for issue of Writ of Mandamus and
accordingly, the writ petition stands dismissed. The petitioner is granted two
https://www.mhc.tn.gov.in/judis
weeks time from the date of receipt of order to make payment as per
impugned invoices. No costs. Consequently, connected miscellaneous
petition is closed.
29.01.2025
Index : Yes / No
Speaking order : Yes / No
Neutral Citation : Yes / No
ub
To
1.The Ministry of Power,
Represented by its Secretary,
Union of India, Shram Shakti Bhawan,
Rafi Marg, New Delhi – 110 001.
2.The Chief General Manager,
P.F.C Consulting Limited,
9th Floor, A Wing Statesman House,
Barakhamba Lane, Connaught Place,
New Delhi – 110 001, India.
3.The Southern Regional Load Dispatch Centre,
Represented by its Executive Director,
No.29, Race Course Cross Road,
Bangalore – 560 009.
4. Welspun Renewables Energy Private Limited,
C/o. The Tata Power Company Limited,
Corporate Center B, 34 Sant Tukaram Road,
Carnac Bunder, Mumbai – 400 009.
5. Welspun Solar Tech Private Limited,
C/o. The Tata Power Company Limited,
Corporate Center B, 34 Sant Tukaram Road,
Carnac Bunder, Mumbai – 400 009.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
ub
Pre-delivery order made in
29.01.2025
https://www.mhc.tn.gov.in/judis
