Telangana High Court
M/S Sify Technologies Limited vs The State Of Telangana on 18 June, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.30530 of 2023
ORDER:
Heard Mr.I.Ganesh, the learned counsel appearing on behalf of the petitioner, learned Government Pleader for Energy appearing on behalf of respondent No.1, and Mr.R.Vinod Reddy, learned Standing Counsel appearing on behalf of respondent Nos.2 to 6.
2. The petitioner approached the Court seeking prayer as under:
"........to issue a writ in the nature of a writ of mandamus or any other appropriate writ, direction, order, or orders declaring the action of the Respondents in not conceding the Petitioner's request for fixing ABT Meters and CT & PTs at its premises for availing Open Access Power of 9.90 MW and the Respondent's inaction on the application of the Petitioner to avail Open Access power as wholly arbitrary illegal without jurisdiction and void and violative of the statutory mandates and the provisions of the Constitution of India under Article 14, 19 (i) (g) and consequently direct the Respondents to allow open access power of 9.90 MW and pass such other and further orders as this Hon'ble Court deems fit and proper in the circumstances of the case."2
SN,J WP_30530_2022
3. The case of the petitioner, in brief, as per the averments made by the petitioner in the affidavit filed in support of the present writ petition is as follows:
1) The Petitioner is the consumer of the 3rd Respondent DISCOM under HT Category with a CMD of 9900 KVA with service No.CBC-3332. In order to achieve their committed sustainable goals and Net Zero Goals and to procure Cheaper power than DISCOM, have made an application to the Chief General Manager IPC & RAC SPDCL on 06-02-2023 requesting to suggest the required infrastructure to be installed at the Petitioner plant premises to procure power from IEX. The Petitioner also requested permission to install ABT meters and permit Open Access and parallelly the Petitioner addressed the Chief Engineer, TSTRANSCO informing about the letter addressed to the Chief General Manager IPC and requested him to suggest the required infrastructure to be installed at the factory premises to avail Open Access Power. But there was no response from both the officials.
2) It is submitted that, the Petitioner addressed another letter to the Chief Engineer, TS SLDC, TS TRANSCO informing the inaction of the Chief General Manager and Chief Engineer 3 SN,J WP_30530_2022 TSSPDCL and requested his intervention in granting permission for availing the Open Access Power and was given letter dated 14-07-2023 stating that, the consumer has to meet certain criteria as per the prevailing regulations and as per the above Regulations necessary infrastructure such as ABT Meters, CT: PTs are required for Open Access and the Petitioner was requested to approach TS SPDCL for further information. Thereafter the Petitioner addressed a letter dated 02-08-2023 to the Chief General Manager IPC, RAC of TS SPDCL referring to the earlier letter dated 06-02-2023 and 27-06-2023 and the letter received from the Chief Engineer SLDC dated 14.07.2023 requested him to expedite the action for grant of Open Access and also permission to install ABT meters etc. However, there was no response to the said request raised by the petitioner. Hence the petitioner approached this Court by way of filing the present Writ Petition. Hence, this Writ Petition.
4. The rival submissions of both the learned counsel for the petitioner as well as respondents in the docket 4 SN,J WP_30530_2022 order passed by this Court on 22.04.2024 is extracted as under:
The learned Senior Counsel appearing on behalf of the petitioner placed judgment of the Apex Court (2015) 2 SCC 438 in Brihanmumbai Electric Supply & Transport Undertaking v. Maharashtra Electricity Regulatory Commission and mainly relied on para No.26.
The respondent Nos.3, 4 and 6 filed counter affidavit.
The learned Standing Counsel Mr.Vinod Reddy, appearing on behalf of respondent Nos.3, 4 and 6 relied on para Nos. 2, 3, 4 and 7 of the counter affidavit filed on behalf of the respondent Nos. 3, 4 and 6 and contends that there is no availability of distribution corridor for providing installation of ABT meters at the premises of the petitioner.
The learned Senior Counsel appearing on behalf of the petitioner disputed the same and filed reply affidavit of the petitioner and in particular, para 4, read as under:
"4. I submit that the respondents have not denied the several averments made by the petitioner on the other hand made false and allegations. I submit that the respondents have conveniently ignored the fact that the petitioner is requiring open access within the DISCOM supply. The petitioner is the existing consumer of the DISCOM and he is only switching the power supplier within the Contracted Maximum Demand. The DISCOM is also purchasing power exchange and supplying to its consumers the petitioner wants the power directly from the IEX and there are already existing supply lines. Therefore, the contentions, raised in para 4 have no application to the case of the petitioner".5
SN,J WP_30530_2022 Learned Senior Counsel appearing on behalf of the petitioner placed the judgment dated 28.09.2018 passed in W.P. No. 25144 of 2017 which has been confirmed by the Division Bench of this Court and contends that the pleas put forth by the respondents in the counter affidavit are untenable and dubious and the petitioners are entitled for the relief as prayed for."
PERUSED THE RECORD
5. The Counter affidavit has been filed on behalf of respondents and in particular paragraph Nos.4 and 7 of the said Counter affidavit, extracted as under:
"4. It is submitted that, as per Clause 8 of CERC Open access Regulations 2008. While processing the applications for Standing Clearance, the concerned RLDC or SLDC as the case may be, shall verify the following namely:
(i) Existence of infrastructure necessary for time-
block wise energy metering and accounting in accordance with the provisions of the Grid code in force;
(ii) Availability of surplus transmission capacity in the intra- State/interstate network, as the case may be; and
(iii) Submission of declaration according to the clause (1) of this regulation.
Further, as per the clause 5.2 of the APERC Regulation 2 of 2005 (Adopted by TSERC vide Regulation No.1 of 2014), for Short-Term Open Access transactions, the Nodal Agency for receiving and processing applications shall be the State Load Dispatch Centre (SLDC). The SLDC shall, however, allow Short-Term Open Access transactions only after consulting the concerned 6 SN,J WP_30530_2022 transmission and/or distribution licensee(s) whose network(s) would be used for such transactions.
7. It is further, submitted that as per the instructions of the Telangana government, the whole of Telangana state is being provided with 24Hrs power supply to all the services from Jan- 2018 including agricultural services, Mission Bhagiratha Scheme, Lift Irrigation Scheme like Kaleshwaram, Palamuru, Chevella Pranahitha at large on "No Loss No Profit Basis". The aforementioned prestigious projects of the Government need uninterrupted power supply and the said project completely saturated the network of TSSPDCL. To abide by the policy of the State Government to provide 24 hours of reliable power supply to all the consumers including agricultural services, this respondent had to make necessary arrangements for adequate power procurement from various sources and as a result of which the network became completely loaded. In view of the same, there was no availability of distribution corridor for providing installation of ABT meters at the Premises of the petitioner."
6. The learned counsel appearing on behalf of petitioner filed reply affidavit to the counter filed by the respondents and in particular paragraph No.4 of the said reply affidavit filed by the petitioner reads as under:
"4. I submit that the respondents have not denied the several averments made by the petitioner on the other hand made false and baseless allegations. I submit that the respondents have conveniently ignored the fact that the 7 SN,J WP_30530_2022 petitioner is requiring open access within the DISCOM supply. The petitioner is the existing consumer of the DISCOM and he is only switching the power supplier within the Contracted Maximum Demand. The DISCOM is also purchasing power from the exchange and supplying to its consumers the petitioner wants to purchase the power directly from the IEX and there are already existing supply lines. Therefore, the contentions raised in para 4 have no application to the case of the petitioner."
7. The specific view taken by the Apex Court in the Judgment reported in (2015) 2 SCC 438 in Brihanmumbai Electric Supply & Transport Undertaking v. Maharashtra Electricity Regulatory Commission and in particular paragraph No.26 of the said judgment reads as under:
"As has already been mentioned, the various Petitions filed by the different licensees of the Maharashtra seeking for the exemption from the Renewable Purchase Obligation were taken-up together by the State Commission. While disposing such Petitions by the order dated 7.10.2009, the State Commission modified the RPS percentage requirements for the Financial Year 2007-08, 2008-09 and Financial Year 2009-10 to be the lower of the RPS target or the actual achievement of RPS target in the following terms:
"Further, considering year-to-year shortfall in RE capacity addition, the Commission is of the view that it would not be practical to expect that such shortfall can be made good on cumulative basis by the end of FY 2009-10. Hence, the Commission believes that in pursuance of Clause 2.6.12 of RPS Order (Case 6 of 2006), it would be most appropriate to 8 SN,J WP_30530_2022 modify the RPS percentage requirement for FY 2007-08, FY 2008-09 and FY 2009-10 to be lower of (a) RPS target as specified under Cl. 2.6.7 (b) actual achievement of RPS target in respect of each "Eligible Person."
8. This Court on an earlier occasion in similar circumstances in its order dated 28.09.2018 passed in W.P.No.25144 of 2017 filed by the petitioner thereunder questioning the action of the respondents thereunder in not permitting the petitioner therein to avail open access power to its factory, observed at paras 12 and 13 as hereunder:
"12. Once the respondents have developed and are maintaining distribution network as per the provisions of the Act, and have introduced 'open access' governed by Regulation 2 of 2005 of APERC, they cannot deny such open access to the petitioner by giving dubious reasons in counter- affidavit and discriminate the petitioner vis-à-vis other HT industries in the area.
13. Accordingly, the Writ Petition is allowed, the proceedings dt.04.08.2017 of the 2nd respondent is set aside, and 1st respondent is directed to permit the petitioner to avail open access to its factory, if necessary, by fixing ABT meter. No costs."9
SN,J WP_30530_2022
9. Taking into consideration the view taken by this Court in its order dated 28.09.2018 passed in W.P.No.25144 of 2017 this Court opines that, the plea as put forth by the respondent company that the company has studied the technical feasibility analysis upon receiving the request from the petitioner and upon verifying the technical feasibility in accordance with the aforesaid clauses of Central Electricity Regulatory Commission(Open Access in inter-State Transmission) Regulations, 2008 observed that the distribution corridor is not available to allow Open access to the petitioner and the same was orally informed to the petitioner herein is not tenable at this stage and hence, rejected. This Court is of the opinion that, once the respondents have developed and are maintaining distribution network as per the provisions of the Act, and have introduced open access governed by Regulation 2 of 2005 of APERC, they cannot deny such open access to the petitioner by giving frivilous reasons by way of filing counter affidavit and more so 10 SN,J WP_30530_2022 when the petitioner admittedly is requiring open access within the DISCOM supply and has specifically pleaded at para No.4 of the reply affidavit filed by the petitioner that since petitioner is an existing consumer of the DISCOM, the petitioner is only switching the power supplier within the Contracted Maximum Demand.
10. Taking into consideration the aforesaid facts and circumstances of the case and duly considering the earlier order of this Court dated 28.09.2018 passed in W.P.No. 25144 of 2017 and duly considering the specific averments made by the petitioner at para No.4 of the reply affidavit filed by the petitioner (referred to and extracted above), the Writ Petition is allowed as prayed for. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall also stand closed.
___________________________ MRS. JUSTICE SUREPALLI NANDA Dated:18-06-2024 ksl