Madras High Court
The Chairman And Managing Director vs M/S.Gbr Metals Pvt.Ltd on 17 July, 2019
Author: Vineet Kothari
Bench: Vineet Kothari
1/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch
[The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.]
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 17-07-2019
CORAM
THE HON'BLE DR.JUSTICE VINEET KOTHARI
AND
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
W.A.Nos.1241, 1247, 1249, 1253, 1256, 1259, 1261, 1266, 1269, 1271 &
1272 of 2019
W.A.No.1241/2019 :
1.The Chairman and Managing Director,
Tamil Nadu Generation and Distribution Corporation Ltd.,
144, Anna Salai,
Chennai-600 002.
2.The Chief Financial Controller/Revenue,
TANGEDCO, No.144, Anna Salai,
Chennai-600 002.
3.The Superintending Engineer,
Chennai Electricity Distribution Circle/North,
TANGEDCO, No.144, Anna Salai,
Chennai-600 002. .... Appellants
-vs-
1.M/s.GBR Metals Pvt.Ltd.
2.The Tamil Nadu Electricity Regulatory Commission,
rep.by its Secretary,
No.19A, Rukmani Lakshmipathi Salai,
Egmore,
Chennai- 600 008. .... Respondents
http://www.judis.nic.in
2/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch
[The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.]
Appeal under Clause 15 of the Letters Patent against the Order,
dated 03.01.2019, passed in W.P.No.21304 of 2018 on the file of this Court.
For Appellants : Mr.P.H.Arvind Pandian,
Addl.Advocate General,
assisted by Mr.S.K.Rameshuwar
For Respondent 1 in W.A.Nos.1247,1249,1259,1269,1271 &
1272/2019 : Mr.K.Seshadri.
For Respondent 1 in W.A.No.1266/2019 :
Mr.M.Krishnappan,
Senior Counsel,
for Mrs.R.Swarnalatha.
COMMON JUDGMENT
(By Dr.Vineet Kothari,J.) These Writ Appeals have been filed by Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) against the Industrial Units viz., M/s.GBR Metals Pvt. and Others, aggrieved by the order of the learned Single Judge, dated 03.01.2019, passed in a batch of Writ Petitions viz., W.P.No.20954 of 2018 and Others filed by M/s.Arun Smelters (P) Ltd. v. TANGEDCO and Others. The learned Single Judge disposed of the said Writ Petitions with the following observations :
http://www.judis.nic.in 3/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] ''21.Para 5.8.4.86(4) of the order in T.P.No.1 of 2017 issued by the Regulatory Commission for Determination of Tariff for Generation and Distribution relating to Wheeling Charges for Open Access Customers, states that the normative distribution system loss at the voltage on which open access transmission is undertaken, shall be borne by the consumer in kind. It is also seen that the Regulatory Commission in the review application in R.A.No.4 of 2017, has only accepted the loss component but not revised or amended the said para to enable TANGEDCO to convert kind into cash. Such rectification of loss components by the Regulatory Commission in R.P.No.4 of 2017 dated 13.03.2018 on the voltage drawn and injection voltage, cannot be treated as an authorisation to encash loss components. The fact remains that the appeal filed by the Tamil Nadu Spinning Mills Association before the Appellate Tribunal for Electricity, New Delhi in Appeal No.356 of 2017 is pending. Further, even in the review petition filed by TANGEDCO, the Regulatory Commission has passed the order on 13.03.2018 rendering the revision subject to the outcome of the appeal filed by the Tamil Nadu Spinning Mills Association in Appeal No.356 of 2017 before the Appellate Tribunal for Electricity, New Delhi. Therefore, the matter has not been concluded and only upon the http://www.judis.nic.in 4/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] outcome of the appeal in Appeal No.356 of 2017, the things would be settled and only thereafter, a proper decision could be taken by the Electricity Board. This Court finds force in the submission made by the learned senior counsel for the petitioners that before passing the impugned orders, TANGEDCO ought to have waited till the disposal of the appeal in Appeal No.356 of 2017. In these circumstances, the respondents are not permitted to raise bills from 11.08.2017 to compensate the loss instead of unit to unit adjustment from 13.03.2018, on which date the revision is permitted by the Regulatory Commission. The claim of excess payment shall be considered for adjustment towards future liabilities. However, it is made clear that the respondents shall proceed with the matter on the basis of the outcome of the decision of the Appellate Tribunal for Electricity, New Delhi in Appeal No.356 of 2017, in accordance with law.
22.With the above observations, the orders impugned in these writ petitions are set aside and the writ petitions are allowed. No costs. Consequently, the connected miscellaneous petitions are closed.”
2. Mr.P.H.Arvind Pandian, learned Additional Advocate General, appearing for the Appellants-TANGEDCO, has submitted that as against the original order passed by Tamil Nadu Electricity Regulatory http://www.judis.nic.in 5/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] Commission (TNERC) on 11.08.2017, Tamil Nadu Spinning Mills Association (TASMA) has also filed an appeal before the Appellate Tribunal for Electricity (APTEL), New Delhi, vide Appeal No.356 of 2017, which is still pending. Subsequently, TNERC had issued another order on 13.03.2018 in I.A.No.1 of 2017 in R.P.No.4 of 2017 filed by TANGEDCO on the file of TNERC. The operative portions of the said order are quoted below for ready reference :
''5.8. At this juncture, the Commission wish to state here that an Appeal (No.356 of 2017) has been preferred by Tamil Nadu Spinning Mills Association before the Hon'ble APTEL against the Tariff Order dated 11.08.2017 passed by this Commission in T.P.No.1 of 2017 on the following issues :
A. Relinquishment of Rs.2500 crores subsidy to be paid by the Tamil Nadu Government to the TANGEDCO.
B. Approving increase in Line loss which is increased by almost 3%.
C. Calculation of line losses for OA consumers connected to different voltages.
D. Scheduling and System Operation charges. E. MD Integration time reduced to 15 minutes from 30 minutes- MD charges may increase to HT services.
F. Cross Subsidy Surcharges.
http://www.judis.nic.in 6/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] 5.9. The revision on the applicable line loss for open access transactions as stated in para 5.7 supra are rendered by the Commission subject to the outcome of said Appeal No.356 of 2017 filed by TASMA pending before the Hon'ble APTEL.
5.10. With the above, the petition is disposed of.
6. Appeal :-
An appeal against this order shall lie before the Appellate Tribunal for Electricity under Section 111 of the Electricity Act,2003 within a period of 45 days from the date of receipt of a copy of this order by the aggrieved person.''
3. It appears that consequent to the said order of TNERC, dated 13.03.2018, the authorities of the Appellant TANGEDCO started issuing Bills against the Industrial Units/Consumers of power for the transmission losses in accordance with the said aforesaid Clarification issued by TNERC, dated 13.03.2018. It is also stated that the said order, dated 13.03.2018, was not appealed against before the Appellate Tribunal for Electricity (APTEL) by any of the parties concerned. Even though the said order, dated 13.03.2018, makes itself subject to the outcome of the Appeal No.356 of 2017 filed by Tamil Nadu Spinning Mills Association before APTEL, effect http://www.judis.nic.in 7/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] to the said order appears to have been given in the meanwhile, without waiting for the decision of APTEL in Appeal No.356 of 2017, thereby entailing the present writ litigation before this Court, resulting in the order of the learned Single Judge, which is impugned before us in the present batch of appeals.
4. Having heard the learned counsels for both sides, we are of the opinion that the filing of present set of Writ Petitions filed by the writ petitioners was premature. They should have waited for the disposal of Appeal No.356 of 2017 by APTEL, filed by Tamil Nadu Spinning Mills Association. If the Respondents-writ petitioners-Industrial Units were aggrieved by the subsequent order, dated 13.03.2018, passed by TNERC at the instance of TANGEDCO, they should have taken the matter further by way of separate appeals or sought intervention in the pending Appeal before APTEL, in which event, all such appeals could have been disposed of by the competent forum, namely, APTEL. The Appeal, namely, Appeal No.356 of 2017 has been pending since 2017 and about two years have passed since then.
5. In view of the fact that all the issues raised in the present litigation before this Court can very well be decided by the Appellate http://www.judis.nic.in 8/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] Tribunal, namely, APTEL, under the provisions of the Electricity Act,2003, we refrain from expressing any opinion on the rival contentions. We, therefore, relegate the parties to the said Appellate Forum, namely, Appellate Tribunal for Electricity (APTEL). If the Respondents-writ petitioners-Industrial Units intend to challenge the order of TNERC, dated 13.03.2018, before APTEL, they are given liberty to file appeals against the said order even now. If such appeals are filed within three months from today, without raising any objection as to limitation, we request the learned APTEL to entertain such Appeals and decide the same on merits, along with Appeal No.356 of 2017, filed by TASMA.
6. In view of the urgency of the matter and the issues involved before APTEL affecting large number of Industrial Units, to avoid any further confusion, we request the learned APTEL to decide the pending appeals, if any filed as stated above, and Appeal No.356 of 2017 within a period of six months from today, after giving an opportunity of hearing to all the parties concerned.
7. We make it clear, that, in the meanwhile, the Appellant-
TANGEDCO will not insist upon the Respondents-Industrial Units for any recovery of the dues on account of the alleged Clarification issued by http://www.judis.nic.in 9/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] TNERC on 13.03.2018, nor the Respondents-Industrial Units shall be entitled to any refund or adjustment in this regard of the amounts already paid by them in pursuance of the order, dated 13.03.2018. All these inter se Billing and Recovery or Refund will abide by the final orders, to be passed by APTEL within six months, as indicated above.
8. With the above observations, these Writ Appeals stand disposed of. No costs. Consequently, the connected C.M.P.Nos.8545, 8546, 8560, 8564, 8569, 8581, 8583, 8590, 8592, 8602, 8603, 8607, 8608, 8650, 8651, 8673, 8674, 8677, 8678, 8682 and 8684 of 2019 stand closed.
9. Registry is directed to forward a copy of this judgment to Appellate Tribunal for Electricity, New Delhi, for information.
Index : Yes/No (V.K.,J.) (C.V.K.,J.)
Internet : Yes/No 17-07-2019
Speaking/Non-speaking Order
dixit
To
The Tamil Nadu Electricity Regulatory Commission, rep.by its Secretary, No.19A, Rukmani Lakshmipathi Salai, Egmore, Chennai- 600 008.
http://www.judis.nic.in 10/10 Judgment dt.17.07.2019 in W.A.No.1241/2019 & Batch [The Chairman and Managing Director, TANGEDCO v. M/s.GBR Metals Pvt. Ltd.] DR.VINEET KOTHARI, J.
and C.V.KARTHIKEYAN, J.
dixit W.A.No.1241 OF 2019 & BATCH 17-07-2019 http://www.judis.nic.in