Madras High Court
M/S. India Pistons Ltd vs The Chairman on 22 July, 2022
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.P. No.21274 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.07.2022
CORAM
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.P. No.21274 of 2010 and M.P.No.1 of 2010
and
W.P.No.21275 of 2010 and M.P.No.1 of 2010
M/s. India Pistons Ltd.,
Huzur Gardens
Sembium, Chennai 600 011 ... Petitioner in both the petitions
Vs.
1.The Chairman
TNEB Chennai EDC/North
No.141 Anna Salai,Chennai – 600 002.
2.The Superintending Engineer,
TNEB Chennai EDC/North, No.141 Anna Salai,
Chennai – 600 002.
3.Accounts Officer,
TNEB Chennai EDC/North, No.141 Anna Salai,
Chennai – 600 002. ... Respondents in both the petitions
Prayer in W.P.No.21274 of 2010 : 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 Respondent Board with respect to the bill for the
month of August 2010 dated 31st August 2010 pertaining to HT A/c 1020
belonging to the petitioner and quash the same insofar as it relates to the
illegal penalty of Rs.30,81,157.67/- levied by the Respondent Board and
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W.P. No.21274 of 2010
forbear the Respondent Board, their men, agents and representatives from
levying penalty on HT A/c 1020 belonging to the petitioner Company on the
basis of exceeding quota during the normal and peak hours without first
reducing the power purchased by the petitioner from third parties and pass
orders.
Prayer in W.P.No.21275 of 2010 : 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 Respondent Board with respect to the bill for the
month of August 2010 dated 31st August 2010 pertaining to HT A/c 1658
belonging to the petitioner and quash the same insofar as it relates to the
illegal penalty of Rs.42,009.75 levied by the Respondent Board and forbear
the Respondent Board, their men, agents and representatives from levying
penalty on HT A/c 1658 belonging to the petitioner Company on the basis of
exceeding quota during the normal and peak hours without first reducing the
power purchased by the petitioner from third parties and pass orders.
For Petitioner : Mr.Krishna Srinivasan for
in both W.Ps. M/s.S.Ramasubramanian and
Associates
For Respondents : Mr.L.Jaivenkatesh
in both W.Ps. Standing counsel
COMMON ORDER
These writ petitions are filed challenging the bills for the month of August 2010 dated 31st August 2010 pertaining to HT A/c 1020 and HT A/c 1658 belonging to the petitioner and quash the same insofar as it relates to the illegal penalty of Rs.30,81,157.67/- and Rs.4,20,019.75/- levied by the Respondent Board.
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2. The short question that arises for consideration is whether it is permissible for the Respondents to impose 20% power cut on the power purchased from third parties.
3. This Court has disposed of a number of matters based on the order passed by the Appellate Tribunal for Electricity in Appeal No.36 of 2012 wherein it was held that the imposition of 20% power cut on the power purchased from third parties was illegal and bad while holding that the power so purchased from 3rd parties shall be treated as additionality. It was submitted by the learned counsel for the petitioner that the issue stands resolved by a series of orders passed by this Court and seeks to place reliance on W.P.No.17010 of 2010 wherein while considering a similar issue it was held as under:
"2. The respondents TANGEDCO could not supply the power sanctioned to the petitioner as there was a shortage in power supply. Therefore, the petitioner purchased the power from third parties. When the TANGEDCO raised a bill, it imposed 20% power cut not only for the power supplied by the TANGEDCO, but also for the power purchased from third parties.
3. The issue was challenged before the Appellate Tribunal for 3/7 https://www.mhc.tn.gov.in/judis W.P. No.21274 of 2010 Electricity with regard to imposition of 20% power cut on the power purchased from the third parties. The Appellate Tribunal for Electricity in Appeal No.36 of 2012, dated 31.10.2012, has set aside the imposition of 20% power cut on the power purchased from the third parties and held that it shall be treated as additionality. The relavant portion of the judgment is extracted as follows:-
"5.1 Summary of Our Findings:-
(i) The quota for use of power from TNEB after imposition of restriction and control measures has been fixed based on the consumption of consumers for the period October 2007 to October 2008 when there was no restriction and control over use of electricity. The third party purchase through open access was not available to the Appellants during that period.
The third party purchase of power through Intra-State open access was introduced after 1.11.2008 for consumers with connected load of 1 MV and above. Subsequently, TNEB permitted third party purchase by memos dated 30.12.2008 and 17.07.2009 respectively for consumers with connected load upto 500 KW and 250 KW. The third party power purchase by the consumers could not be deducted from the base demand/energy computed on the basis of the actual consumption for past period to fix the TNEB's quota of supply as third party purchase was meant to bridge the gap between the consumers' sanctioned demand and TNEB's quota and should be treated as on additionality. TNEB's proposed power cut could not be imposed on the power procured by the consumer from third party purchase through open access.
(ii) TNEB issued two memos dated 30.12.2008 and 17.7.2009 permitting to go upto the sanctioned demand by third party purchase to HT consumers with connected load upto 500 KW and 250 KW respectively. In the memo dated 17.7.2009 issued by the Chairman, TNEB it has been specifically stated that the purchaser can use the purchased power over and above the original quota fixed for him under restriction and control take a contrary stand to its own memos dated 30.12.2008 and 17.7.2009.
(iii) In the order dated 7.9.2010, the State Commission after 4/7 https://www.mhc.tn.gov.in/judis W.P. No.21274 of 2010 taking note of the memo dated 17.7.2009 from Chairman, TNEB directed the TNEB to act in accordance with its own stand. Thus, the State Commission has erred in deciding the date of effect of its order to 17.8.2010.
(iv) The procurement of power through open access from third party is protected under the Electricity Act, 2003 and the State Commission could not restrict the operation of its order effective from 17.8.2010 as the same has to be made effective from the date when third party purchase through open access was permitted by the Electricity Board.
(v) The date of effect of the order for third party purchase should not have been mixed up with the advance declaration by wind energy generators as they are two distinct issues."
4. Considering the above position, this Court has already disposed of several matters approving the order passed by the Appellate Tribunal for Electricity. Therefore, this Court is also inclined to follow the same and accordingly, the impugned Bills dated 31.08.2010 in respect of H.T.A/c.No.1020 and H.T.A/c.No.1658 belonging to the petitioner are set aside. Liberty is granted to TANGEDCO to work out the bill in line with the judgment of the Appellate Tribunal for Electricity in Appeal No.36 of 2012 dated 31.10.2012.
5. With the above directions, these writ petitions stand allowed. No 5/7 https://www.mhc.tn.gov.in/judis W.P. No.21274 of 2010 costs. Consequently connected miscellaneous petitions are closed.
22.07.2022 Speaking (or) Non Speaking Order Index : Yes/ No smn To:
1.The Chairman TNEB Chennai EDC/North No.141 Anna Salai, Chennai – 600 002.
2.The Superintending Engineer, TNEB Chennai EDC/North No.141 Anna Salai, Chennai – 600 002.
3.Accounts Officer, TNEB Chennai EDC/North No.141 Anna Salai, Chennai – 600 002.
MOHAMMED SHAFFIQ, J.
6/7https://www.mhc.tn.gov.in/judis W.P. No.21274 of 2010 smn W.P. Nos.21274 and 21275 of 2010 and M.P.No.1 (2) of 2010 22.07.2022 7/7 https://www.mhc.tn.gov.in/judis