Madras High Court
Sambandam Spinning Mills Limited vs Tamil Nadu Generation And Distribution ... on 1 August, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 1.8.2012 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition Nos.16203 to 16205, 16277, 16278, 16308 to 16310, 16645, 16750, 17024, 18228, 18852, 18988, 19483, 19850 and 20558 of 2012 and M.P.No.1 of 2012 in W.P.Nos.16645, 17024, 18228 and 19850 of 2012 and M.P.Nos.1 and 2 of 2012 in W.P.Nos.16203 to 16205, 16277, 16278, 16308 to 16310, 16750, 19483 and 20558 of 2012 and M.P.Nos.1 to 3 of 2012 in W.P.No.18852 and 18988 of 2012 W.P.No.16203 of 2012:- -------------------- Sambandam Spinning Mills Limited, Unit I, HT SC No.34. Represented by its Chairman and Managing Director M.S.Devarajan, P.B.No.1, Kamaraj Nagar Colony, Salem-636 014. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16204 of 2012:- -------------------- Sambandam Spinning Mills Limited, Unit III, HT SC No.256. Represented by its Chairman and Managing Director M.S.Devarajan, P.B.No.1, Kamaraj Nagar Colony, Salem-636 014. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16205 of 2012:- -------------------- Sambandam Siva Textiles Private Limited, HT SC No.177, Represented by its Director M.S.Devarajan, P.B.No.1, Kamaraj Nagar Colony, Salem-636 014. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16277 of 2012:- -------------------- Rasi Tex (In) Pvt. Ltd. HTSC No.192, Cuddalore Main Road, Manivilunthan South (PO), Attur (TK), Salem 636 121, represented by its General Manager, T.S.R.Muthuraj. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16278 of 2012:- -------------------- Thangavelu Textiles Mills (P) Ltd., HTSC No.149, 111/1, Thathampatty, P.B.No.3, K.N. Colony, Salem, Represented by its Manager, M.Ravichandran. .. Petitioner vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16308 of 2012:- -------------------- M/s.Kandagiri Spinning Mills Limited, HT SC No.72, Represented by its Chairman and Managing Director, P.B.No.3, Udayapatty Post, Salem 636 140. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16309 of 2012:- -------------------- M/s.Kandagiri Spinning Mills Limited, HT SC No.257, Represented by its Chairman and Managing Director, Perumapalayam Pirivu Road, Attur Main Road, Mettupatti Post, Salem 636 111. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16310 of 2012:- -------------------- M/s.Kandagiri Spinning Mills Limited, Unit II, HT SC No.132, Represented by its Chairman and Managing Director, P.B.No.3, Udayapatty Post, Salem 636 140. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.16645 of 2012:- -------------------- Pallava Textile Limited, 27-C Sankari Bye-Pass Road, Pallipalayam, Erode, Represented by its Manager, N.Ramesh. .. Petitioner vs. 1. Tamil Nadu Electricity Board, Represented by its Chairman, 800, Anna Salai, Chennai-600002. 2. The Superintending Engineer, Mettur Electricity Distribution Circle, Tamil Nadu Electricity Board, Mettur Dam. .. Respondents W.P.No.16750 of 2012:- -------------------- Attur Steels Pvt. Ltd., HTSC No.223, S.No.225/1, Narasingapurm, Attur Taluk 636 108, Represented by its Authorised Signature A.M.Balaji. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 4. The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO). 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.17024 of 2012:- -------------------- Sri Venkatramana Paper Mills Pvt. Ltd., Represented by its Authorised Signatory, 15, Sreevatsa Square, 2nd Floor, MTP Road, Thudiyalur, Coimbatore 641 034. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Superintending Engineer, Gobi Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), Gobichettypalayam. 5. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.18228 of 2012:- -------------------- L.Mohanasundaram. .. Petitioner Vs. The Assistant Engineer (O & M), Erode Electricity Distribution Circle, Tamil Nadu Electricity Board, Nasiyanur, Erode District. .. Respondent W.P.No.18852 of 2012:- -------------------- Thirumathi Muthammal Textiles Pvt. Ltd., Represented by its Factory Manager, No.51 A, Alexandria Road, Cantonment, Trichy 620 001. .. Petitioner Vs. 1. TANGEDCO, Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Additional Chief Engineer, Pudukottai Electricity Distribution Circle, TANGEDCO, Pudukottai. 4. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.18988 of 2012:- -------------------- M/s.Sri Vari Papers Pvt. Ltd., Represented by its Director Nagarpalayam, Gobichettipalayam 638 452. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited, Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, TANGEDCO, 144, Anna Salai, Chennai-600 002. 3. The Superintending Engineer, Gobi Electricity Distribution Circle, TANGEDCO, Gobichettipalayam. 4. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.19483 of 2012:- -------------------- Indus Steels and Alloys Ltd., Thally Road, Uliveeranapalli Village, Denkanikottai Taluk, Belagondapalli 635 114, Krishnagiri District, Represented by its Manager, C.Raju. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Superintending Engineer, Krishnagiri Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO). 4. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.19850 of 2012:- -------------------- Sree Ayyanar Spinning and Weaving Mills Ltd., Mill Premises, Mallanginar, Pin Code 626 109, Near Virudhunagar, Represented by its Manager Finance N.Selvaraj. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited, Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Superintending Engineer, Virudhunagar Electricity Distribution Circle, TANGEDCO, Virudhunagar. 4. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents W.P.No.20558 of 2012:- -------------------- V.B.Medicare (P) Ltd., HTSC No.296, No.59, 61 Sipcot - II stage, Krishnagiri Road, Hosur, Represented by its Senior Manager A.V.S.Ganesan. .. Petitioner Vs. 1. Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO), Represented by its Chairman and Managing Director, 144, Anna Salai, Chennai-600 002. 2. The Chief Engineer/Commercial, Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO), 144, Anna Salai, Chennai-600 002. 3. The Superintending Engineer, Krishnagiri Electricity Distribution Circle, Tamil Nadu Generation and Distribution Corporation Limited, (TANGEDCO). 4. State Load Dispatch Centre, Represented by its Superintending Engineer, 144, Anna Salai, Chennai-600 002. .. Respondents Writ Petition No.16203 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.34/D.156/2012 dated 15.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.34 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16204 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.256/D.157/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.256 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16205 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.177/D.158/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.256 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16277 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.2/F.T.Party 192/2012 dated 20.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.192 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16278 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AO/REV/HT/A.3/F.THIRD PARTY 149/2012 dated 21.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.149 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16308 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.72/D.159/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.72 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16309 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.257/D.161/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.257 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16310 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.132/D.160/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.132 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.16645 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the second respondent in his Lr.SEM/AEEDEV/AEG/F.HT.189(Addl)/PR.1608-6/12 dated 07.05.2012, quash the same as illegal, arbitrary, without authority of law, and contrary to the provisions of Electricity Act, 2003. Writ Petition No.16750 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AO/REV/HT/A.2/F.THIRD PARTY-223/2012 dated 28.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.223 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.17024 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to consider the petitioner's application dated 25.06.2012 seeking No Objection Certificate for purchase of power from (Indian Energy Exchange) IEX/Third party sources and consequently direct the respondents to grant such No Objection Certificate and to desist from denying any other facility to the petitioner for their HT SC No.68 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.18228 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the entire records relating to the impugned order passed by the respondent in Letter No.AE/O&M/Nasi/Ko.Spl/No.64/2012, dated 22.05.2012 and quash the same. Writ Petition No.18852 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing Lr.No.ACE/PEDC/PDKT/AEE/GL/F.HTSC 80/D.No.440/12 dated 04.05.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.80 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.18988 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the second respondent culminating in his impugned memo in Memo.No.CE/Coml/EET/AEE2/F. Litigant Consumer/D.277/12, dt.12/15.05.2012, quash the same and consequently direct the respondents not to deny any facility to the petitioner for their HT SC No.74 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005 including issuance of no due certificate and no objection certificate. Writ Petition No.19483 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing Lr.No.SEK/Gen/AE-1/F.HTSC No.225/D.330/12 dated 19.07.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.225 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.19850 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to forthwith process the petitioner's application dated 27.04.2012 for setting up a dedicated feeder line and to issue concurrence, No Objection Certificate, approval, permission, sanction to wheel the power it has contracted to purchase for their HT SC No.28 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. Writ Petition No.20558 of 2012 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing Lr.No.SEK/Gen/AE-1/F.HTSC No.296/D.343/12 dated 20.07.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.296 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005. <>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<> For Petitioners in W.P.Nos.16203 to 16205, and 16308 to 16310 of 2012 : Mr.N.L.Rajah, <>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<> For petitioners in W.P.Nos.16277, 16278, 16645, 16750, 19483 and 20558 of 2012 : Mr.AR.L.Sundaresan, Senior Counsel, for R.S.Pandiyaraj <>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<> For Petitioners in W.P.Nos.17024, 18852, 18988 and 19850 of 2012 : Mr.Rahul Balaji <>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<> For petitioner in W.P.No.18228 of 2012 : Mr.C.Prakasam <>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<> For Respondents in all W.Ps. : M/s.G.Vasudevan, P.Gunaraj, S.K.Rameshwar and M.Varunkumar <>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<>-=-<> ----- COMMON ORDER
Writ Petition No.16203 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.34/D.156/2012 dated 15.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.34 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
2. Writ Petition No.16204 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.256/D.157/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.256 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
3. Writ Petition No.16205 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.177/D.158/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.256 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
4. Writ Petition No.16277 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.2/F.T.Party 192/2012 dated 20.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.192 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
5. Writ Petition No.16278 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AO/REV/HT/A.3/F.THIRD PARTY 149/2012 dated 21.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.149 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
6. Writ Petition No.16308 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.72/D.159/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.72 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
7. Writ Petition No.16309 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.257/D.161/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.257 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
8. Writ Petition No.16310 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AOR/HT/A.3/F.NOC.132/D.160/2012 dated 16.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.132 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
9. Writ Petition No.16645 of 2012 is filed praying to issue a Writ of Certiorari, calling for the records of the second respondent in his Lr.SEM/AEEDEV/AEG/F.HT.189(Addl)/PR.1608-6/12 dated 07.05.2012, quash the same as illegal, arbitrary, without authority of law, and contrary to the provisions of Electricity Act, 2003.
10. Writ Petition No.16750 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing LRNO.SE/SEDC/AO/REV/HT/A.2/F.THIRD PARTY-223/2012 dated 28.06.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.223 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
11. Writ Petition No.17024 of 2012 is filed praying to issue a Writ of Mandamus, directing the respondents to consider the petitioner's application dated 25.06.2012 seeking No Objection Certificate for purchase of power from (Indian Energy Exchange) IEX/Third party sources and consequently direct the respondents to grant such No Objection Certificate and to desist from denying any other facility to the petitioner for their HT SC No.68 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
12. Writ Petition No.18228 of 2012 is filed praying to issue a Writ of Certiorari, calling for the entire records relating to the impugned order passed by the respondent in Letter No.AE/O&M/Nasi/Ko.Spl/No.64/2012, dated 22.05.2012 and quash the same.
13. Writ Petition No.18852 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing Lr.No.ACE/PEDC/PDKT/AEE/GL/F.HTSC 80/D.No.440/12 dated 04.05.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.80 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
14. Writ Petition No.18988 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the second respondent culminating in his impugned memo in Memo.No.CE/Coml/EET/AEE2/F. Litigant Consumer/D.277/12, dt.12/15.05.2012, quash the same and consequently direct the respondents not to deny any facility to the petitioner for their HT SC No.74 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005 including issuance of no due certificate and no objection certificate.
15. Writ Petition No.19483 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing Lr.No.SEK/Gen/AE-1/F.HTSC No.225/D.330/12 dated 19.07.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.225 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
16. Writ Petition No.19850 of 2012 is filed praying to issue a Writ of Mandamus, directing the respondents to forthwith process the petitioner's application dated 27.04.2012 for setting up a dedicated feeder line and to issue concurrence, No Objection Certificate, approval, permission, sanction to wheel the power it has contracted to purchase for their HT SC No.28 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
17. Writ Petition No.20558 of 2012 is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records of the third respondent culminating in his impugned proceedings bearing Lr.No.SEK/Gen/AE-1/F.HTSC No.296/D.343/12 dated 20.07.2012, quash the same and direct the respondents not to deny any facility to the petitioner for their HT SC No.296 on grounds which are not specifically authorized under the TNERC Open Access Regulations, 2005.
18. The relief sought for in all the writ petitions is one and the same challenging the memo issued by the Chief Engineer/Commercial, for Chairman-cum-Managing Director, TANGEDCO and consequential letters issued by the respondents Electricity Board. By consent, all the writ petitions are taken up together for final disposal.
19. Heard Mr.N.L.Rajah, learned counsel appearing for the petitioners in W.P.Nos.16203 to 16205 and 16308 to 16310; Mr.AR.L.Sundaresan, learned senior counsel representing Mr.R.S.Pandiyaraj, learned counsel appearing for the petitioners in W.P.Nos.16277, 16278, 16645, 16750, 19483 and 20558 of 2012; Mr.Rahul Balaji, learned counsel appearing for the petitioners in W.P.Nos.17024, 18852, 18988 and 19850 of 2012; and Mr.C.Prakasam, learned counsel appearing for the petitioner in W.P.No.18228 of 2012 and M/s.G.Vasudevan, P.Gunaraj, S.K.Rameshwar and M.Varunkumar, learned counsel appearing for the respondents Electricity Board.
20. The present batch of writ petitions are classic cases where citizens who have approached the court for redressal of their grievance are denied certain benefits on the ground that they are litigating consumers, a new concept conceived by the Distribution Agency, namely, the respondent Electricity Board. To understand the problem which is presented before this court by all the petitioners, the impugned orders under challenge in W.P.Nos.16203 to 16205, 16277, 16278, 16308 to 16310, 16645, 16750, 18228 18852, 19483 and 20558 of 2010 are extracted hereunder:
1. W.P.No.16203 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate cannot be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Sl.No WP.No. Amount Rs. Purpose ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1 22854/2005 Rs.9,26,064.00 Against levying the self generation tax ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2 1601/2012 Rs.6,48,676.00 Against levying the E.Tax arrears ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3 5094/2012 Rs.5,97,853.20 Against levying Excess charges for exceeding quota ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 4 27999/2010 Nil Against levy of cross subsidy ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 5 5912/2012 Nil Against the imposing of power holiday ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 6 8930/2012 Nil For adjusting higher to lower slot of wind energy ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Hence the No Objection certificate will be issued only on clearance of the above court cases by this office as per the prevailing practices of the TANGEDCO.
2. W.P.No.16204 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate cannot be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Sl.No WP.No. Amount Rs. Purpose ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1 22854/2005 Rs.2,01,654.00 Against levying the self generation tax ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2 1603/2012 Rs.66,930.00 Against levying the E.Tax arrears ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3 28000/2010 Nil Against levy of cross subsidy ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 5 5919/2012 Nil Against the imposing of power holiday ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Hence the No Objection certificate will be issued only on clearance of the above court cases by this office as per the prevailing practices of the TANGEDCO.
3. W.P.No.16205 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate can not be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Sl.No WP.No. Amount Rs. Purpose ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1 22854/2005 Rs.2,72,224.00 Against levying the self generation tax ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 2 1602/2012 Rs.6,12,561.00 Against levying the E.Tax arrears ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3 5093/2012 Rs.1,66,628.40 Against levying Excess charges for exceeding quota ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 4 28001/2010 Nil Against levy of cross subsidy ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 5 5914/2012 Nil Against the imposing of power holiday ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Hence the No Objection certificate will be issued only on clearance of the above court cases by this office as per the prevailing practices of the TANGEDCO.
4. W.P.No:16277 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate can not be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date:
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Sl.No WP.No. Amount Rs. Purpose
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1 Rs.12,51,763.00 Against levying the self generation tax
----- 21678/2011 ---------------------------------------------------------------------
2 Rs.2,64,985.00 Against levying of peak demand E.Tax
---------------------------------------------------------------------------------------------
3 Rs.2,35,709.00 Electricity Tax arrears on Night Hour Rebate and Power Factor Incentive
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Hence the No Objection certificate will be issued only on clearance of the above court case by this office as per the prevailing practices of the TANGEDCO.
5. W.P.No.16278 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate can not be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date:
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Sl.No WP.No. Amount Rs. Purpose
----------------------------------------------------------------------------------------------
1 24291/2008 Rs.1,97,800/- Against levying of peak demand E.tax
----------------------------------------------------------------------------------------------
2 1702/2012 Rs.1,73,353/- Electricity Tax arrears in Night Hour Rebate and Power Factor Incentive.
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Hence the No Objection certificate will be issued only on clearance of the above court cases.
6. W.P.No.16308 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate can not be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date:
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Sl.No WP.No. Amount Rs. Purpose
----------------------------------------------------------------------------------------------
1 22840/2005 Rs.7,74,546.00 Against levying the self generation tax
----------------------------------------------------------------------------------------------
2 1876/2012 Rs.2,22,042.00 Against levying the E.Tax arrears
----------------------------------------------------------------------------------------------
3 7243/2012 Rs.6,18,096.60 Against levying Excess charges for exceeding quota
----------------------------------------------------------------------------------------------
4 28352/2010 Nil Against levying of cross subsidy
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5 6127/2012 Nil Against the imposing of power holiday
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6 10308/2012 Nil For adjusting higher to lower slot of wind energy
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Hence the No Objection certificate will be issued only on clearance of the above court cases by this office as per the prevailing practices of the TANGEDCO.
7. W.P.No.16309 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate can not be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date.
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Sl.No WP.No. Amount Rs. Purpose
----------------------------------------------------------------------------------------------
1 22840/2005 Rs.2,95,598.00 Against levying the self generation tax
----------------------------------------------------------------------------------------------
2 1878/2012 Rs.83,210.00 Against levying the E.Tax arrears
----------------------------------------------------------------------------------------------
3 28354/2010 Nil Against levying of cross subsidy
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4 6124/2012 Nil Against the imposing of power holiday
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Hence the No Objection certificate will be issued only on clearance of the above court cases by this office as per the prevailing practices of the TANGEDCO.
8. W.P.No.16310 of 2012:
Referring to your letter under reference cited, I would like to inform you that as per the prevailing procedure of the TANGEDCO, the No Objection certificate can not be issued to the litigant consumers for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date.
----------------------------------------------------------------------------------------------
Sl.No WP.No. Amount Rs. Purpose
----------------------------------------------------------------------------------------------
1 22840/2005 Rs.6,42,628.00 Against levying the self generation tax
----------------------------------------------------------------------------------------------
2 1877/2012 Rs.5,74,151.00 Against levying the E.Tax arrears
----------------------------------------------------------------------------------------------
3 7245/2012 Rs.8,22,157.20 Against levying Excess charges for exceeding quota
----------------------------------------------------------------------------------------------
4 28353/2010 Nil Against levying of cross subsidy
----------------------------------------------------------------------------------------------
5 6181/2012 Nil Against the imposing of power holiday
----------------------------------------------------------------------------------------------
6 10310/2012 Nil For adjusting higher to lower slot of wind energy
----------------------------------------------------------------------------------------------
Hence the No Objection certificate will be issued only on clearance of the above court cases by this office as per the prevailing practices of the TANGEDCO.
9. W.P.No.16645 of 2012:
On verification of the audit files, it is found that the audit arrear amount pending in M/s.VSM Weaves India Ltd., (HT Sc.No.227) which is sister concern of M/s.PALLAVA TEXTILE LIMITED, HT Sc.No.189, Since the directors in both units are mostly one and the same. The details are detailed below:
Audit arrear pending (M/s.V.S.M. Weaves India Limited):-
Audit Slip No.40, dt.22.09.11 Rs.19,45,207.00 Audit Slip No.49, dt.23.09.11 Rs. 3,17,132.00 -------------------- Rs.22,62,339.00 Less (-) 25% collected as per court order Dated 05.01.2012 in WP.No.276 of 2012 Rs.4,86,302.00 -------------------- Rs.17,76,037.00 -------------------
Hence, you are requested to pay the above audit amount Rs.17,76,037/- before effecting the HT additional demand of 1200 KVA to M/s.PALLAVA TEXTILE LIMITED, HT Sc No.189.
Your cooperation is solicited.
Receipt of the letter may be acknowledged.
10. W.P.No.16750 of 2012:
Referring to your letter under reference cited, I regret to inform you that as per the prevailing procedure of the TANGEDCO, the No Due certificate can not be issued to the litigant consumers, who are in arrears for any purpose. The following cases has been filed by you against the Board and the same is pending before Honble High Court, Chennai till date.
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Sl.No WP.No. Amount Rs. Purpose
----------------------------------------------------------------------------------------------
1 17954/2008 Rs.7,09,774/- Against levying of peak demand E.Tax
----------------------------------------------------------------------------------------------
2 1599/2012 Rs.45,729/- Electricity Tax arrears on Night Hour Rebate and Power Factor Incentive
----------------------------------------------------------------------------------------------
3 18535/2009 Rs.11,20,380/- Excess demand charges evening peak hour for the month 07/2009 and 08/2009
----------------------------------------------------------------------------------------------
4 40182/2005 Rs.4,34,867/- Against Act 12/2003 E.Tax arrears
----------------------------------------------------------------------------------------------
5 24158/2008 Rs.7,63,913/- Against levying of 50% of BPSC amount
----------------------------------------------------------------------------------------------
Hence your request is not feasible of compliance.
11. W.P.No.18228 of 2012:
VERNACULAR (TAMIL) PORTION DELETED
12. W.P.No.18852 of 2012:
It is informed that, your request for no objection certificate to purchase third party power could not be processed by this office since an amount of Rs.38,01,842/- is pending to be remitted by you towards penal levy.
13. W.P.No.19483 of 2012:
Referring to the above , it is informed that a tariff concession case is pending for an amount of Rs.6021299/- and E-Tax on demand is Rs.846111/-. As per the rules in force, NOC could not be issued for the litigant consumers.
Hence , it is informed that NOC will be issued only after clearing the pending arrears.
14. W.P.No.20558 of 2012:
Referring to above, it is informed that peak hour charge case is pending for an amount of Rs.29,77,220/-. As per the rules in force, NOC could not be issued for litigant consumers. Hence it is informed that NOC will be issued only after clearing the pending arrears.
21. The petitioners in all these cases are companies, industrial units, who have availed high tension electricity service connection supplied by the Distribution Licensee, namely, the respondent Electricity Board. Earlier, the respondent Electricity Board was a State undertaking and had absolute monopoly and the terms and conditions of the supply were regulated by the Board and by the Government from time to time, in terms of The Indian Electricity Act, 1910; The Electricity (Supply) Act, 1948 and The Electricity Regulatory Commissions Act, 1998. After the advent of the Electricity Act, 2003; The Tamil Nadu Electricity Distribution Code, 2004 and The Tamil Nadu Electricity Supply Code, 2004, the generation, distribution and supply of electricity are regulated under the new provisions.
22. Under the New Act, the respondent Board, inter alia has to get the approval of the Tamil Nadu Electricity Regulatory Commission for imposing restrictional control measure and for implementation of the provisions of the Act, Rules, Regulations and the Code. The Act also provided for an open access system so as to enable the HT consumer to avail the transmission and distribution facility in respect of wind energy generated by their own unit or by a third party and power generated by independent power producing companies. The method by which the power which is sourced from the third party or by the self generation by utilising the transmission facilities provided by the Distribution Licensee, viz., the Board is regulated by an order passed by the TNERC which is called The Tamil Nadu Electricity Regulatory Commission Intra State Open Access Regulations 2005.
23. Paras 4, 12 and 13 of The Tamil Nadu Electricity Regulatory Commission Intra State Open Access Regulations 2005 read as follows:-
4. Eligibility for Open Access and conditions to be satisfied:
(1)Subject to the provisions of these regulations, the Licensees, generating companies including persons who have established captive generating plants, generation plants and electricity traders shall be eligible for open access to the intra state transmission system of the State Transmission Utility or any transmission Licensee on payment of transmission and other charges as may be determined by the Commission.
(2)Subject to the provisions of these regulations, the Licensees, generating companies including persons who have established a captive generating plant and consumers shall be eligible for open access to Distribution System of a Distribution Licensee on payment of the wheeling charges as may be determined by the Commission.
(3)A person having been declared insolvent or bankrupt or having outstanding dues against him for more than two months billing of transmission or distribution Licensee at the time of application shall not be eligible for open access.
(4)In the case of a person, to whom open access has already been allowed, is declared insolvent or bankrupt or is having outstanding dues for more than two months billing of transmission or distribution Licensee, he shall not be eligible for open access from the day he is adjudged as insolvent or bankrupt or failed to clear the amount outstanding for more than two months billing. 12. Procedure for Long-Term Open Access Customer
(a)Application for long-term open access shall be submitted by a Open access customer along with the agreement, commitment letter from the supplier, details of terminal beneficiary etc., to the State Transmission Utility (STU). The application shall contain details such as capacity needed, point of injection, point of drawal, duration of availing open access, peak load, sustained load and such other additional information that may be specified by STU. If the terminal beneficiary happens to be a consumer of a distribution Licensee in the State, an undertaking from such consumer that he will abide by the terms and conditions under these regulations on the payments to be made by him for the various charges covered in these regulations shall be obtained and attached to the application. A customer intending to avail open access shall also submit a copy of his application to the distribution Licensee of the State involved in this open access transmission..... 13.Procedure for Short-Term Open Access Customer
(a)An application for short-term open access shall be submitted by a Open access customer, along with the agreement, commitment letter from the supplier, details of terminal beneficiary, etc., to the State Load Dispatch Center (SLDC). The application shall contain details such as capacity needed, point of injection, point of drawal, duration of availing open access, peak load, sustained load and such other additional information that may be specified by the SLDC. A customer intending to avail open access shall also submit a copy of his application to the distribution Licensee of the area in which the direct/embedded customer is located.
24. In terms of the above 2005 Regulation, the petitioner industries in addition to purchasing power from the Board are also utilising their own wind energy or purchasing power generated by independent power producers. For this facility, as per Regulations 12 and 13, the petitioners who intend to avail open access will have to make an application to the Distribution Licensee, namely, the Board. The Board issues a "No Objection Certificate". This No Objection Certificate is being issued month after month based on an application or on the basis of a request letter by the industries concerned. Respondent Board has been issuing "No Objection Certificate" as late as May, 2012. In almost all the earlier letters granting NOC, the Board while referring to the pending litigation filed by the petitioner companies on various issues, did not decline to grant NOC. However, for some strange reason, the Board has taken a different stand now to decline the issuance of NOC on the ground that the consumers/writ petitioners are litigating consumers and that resulted in passing of the impugned orders. The Board declined to grant NOC only on the ground that as per the prevailing policy of the Board, the petitioners in each one of the cases, who are termed as litigant consumers, are not eligible for such benefit, unless and until the court cases are completed. Challenging the same, the present horde of writ petitions have been filed.
25. The learned counsel appearing for the petitioners in W.P.Nos.16203 to 16205 and 16308 to 16310 of 2012 submitted as follows:-
(1) The order under challenge on the face of it amounts to contempt as the NOC is refused only on the ground that the petitioners have approached the High Court on one or other issue, which are pending.
(2) The respondent Board intends to deter the petitioner industries from going to court by stating that NOC will be given only if the court cases are closed. This will amount to denying the petitioners, their right to seek judicial review of administrative action which are contrary to law.
(3) Access to justice is a constitutional right available to every citizen and that cannot be curtailed by the executive by issuing such erratic and the unlawful proceedings. The respondent Board is a party respondent in all pending litigations referred to in each proceedings and can seek modification or for dismissal of the petition if it has been filed contrary to law. The petitioners are entitled to seek appropriate relief as per law, if the respondents demand something contrary to law or if the action is not in conformity with the statute. Learned counsel for the petitioners state that if a mere filing of a case against the Board is a ground to deny any benefit it is nothing but action in terroram not authorised by law.
(4) He relied upon the following decisions of the Supreme Court:-
(i) Arunima Baruah vs. - Union of India and others reported in (2007)6 Supreme Court Cases 120 and
(ii) Bhagubhai Dhanabhai Khalasi and another vs. - State of Gujarat and others reported in (2007)4 Supreme Court Cases 241.
(5) The respondent Board instead of defending the pending High Court cases in the manner known to law are trying to short circuit the issue by forcing the petitioners to either withdraw the cases or pay (i.e.) the illegal demand made in the earlier proceedings which are the subject matters of pending lis in the writ petitions. This novel method is adopted by the respondent Board, as the petitioners will have no other option but to pay the alleged unlawful demand so as to get the "No Objection Certificate" and avail the open access facility. What the respondents cannot do directly, is sought to be achieved indirectly. The impugned proceedings are on the face of it arbitrary and capricious. They have been issued in a cursory manner relying on a term or concept "litigant consumer" which has no statutory force or legal basis.
26. Mr.AR.L.Sundaresan, learned senior counsel representing Mr.R.S.Pandiyaraj, learned counsel appearing for the petitioners in W.P.Nos.16277, 16278, 16645, 16750, 19483 and 20558 of 2012 contends that the impugned proceedings/letters curtail the petitioners right to pursue legal remedy. The impugned letters are based on the memo issued by the Chief Engineer/Commercial, for Chairman-cum-Managing Director, TANGEDCO, copy of which is produced before this Court. He, therefore, contends that the memo and the impugned letters challenged are per se contemptuous and an affront to judicial process in resolution of disputes. He relied upon the following two decisions of the Apex Court:-
(i) Pratap Singh and another vs. - Gurbaksh Singh reported in AIR 1962 SC 1172 and
(ii) Govind Sahai and another vs. - State of U.P. and another reported in AIR 1968 SC 1513.
27. Sri Rahul Balaji, learned counsel appearing for the petitioners in W.P.Nos.17024, 18852, 18988 and 19850 of 2012 challenged the impugned memo.No.CE/Coml/EET/AEET/AEE2/F.Litigant Consumer/ D.277/12 dated 12/15.05.2012 issued by the respondent Board, namely, Tamil Nadu Generation and Distribution Corporation Ltd. (Technical Branch), and the gist of the instructions given by the Chief Engineer/Commercial representing for and on behalf of the Chairman-cum-Managing Director, TANGEDCO is as follows:-
The Chief Engineers and Superintending Engineers of Distribution are instructed
(i) To adhere to the instructions issued from this office dated 05.09.2011, 02.12.2012 and 03.03.2012 scrupulously without requesting clarification from Head Quarters each and every time for processing the requests of the Litigant Consumers with pending arrears due to TANGEDCO. These instructions are also applicable for processing the No Objection Certificate for open access to avail Power from Captive Power Plants, Wind Energy Generators, Purchase from third party/Power Exchange or any other sources.
(ii) To instruct again to communicate the above said instructions up to the section level for adherence of the same and report the confirmation on the same.
(iii) To act urgently to obtain stay or to file appeal for the Court direction accordingly as per the instructions cited above, whenever the consumer produces any Court direction for the TANGEDCO to avoid contempt action of Court. The Superintending Engineers and Executive Engineers/O&M are held fully responsible in case of non adherence to the above said instructions in vacating the stay or filing appeal for HT and L.T. service respectively.
(iv) To act as per the instructions cited above to realise the arrears from all the litigant consumers (both HT and LT), even if they are not applying for new/additional load, re-connection, name transfer, etc.,
(v) The Regional Chief Engineers should review the court cases monthly and initiate appropriate action to realise the huge arrears from the litigant consumers by all means.
28. The main grievance of the petitioners is that in clause (i) of the Memo dated 12/15.05.2012 extracted above gives a specific instructions to the Chief Engineers and Superintending Engineers of Distribution circles to deny the issue of No Objection Certificate for the reason stated therein. Sri Rahul Balaji, learned counsel appearing for the petitioners in W.P.Nos.17024, 18852, 18988 and 19850 of 2012 submitted that insofar as grant of NOC for availing open access to procure power from captive power plants, wind energy generator or from any other third party power or source, the Board has by the impugned memo issued directions to the Chief Engineers and Superintending Engineers that the arrears amount involved in pending court cases should be realised before processing the request of the consumer for issuance of "No Objection Certificate" with a specific direction to follow all instructions scrupulously. He submitted that they have no grievance if the respondent Board approaches the court to vacate the interim orders or file an appeal to the higher court and obtain stay of the order of the learned single Judge. But the direction of the Board that before processing any request for issuance of no objection certificate or for any other facility, like additional industrial load or line, the amounts, which are subject matter of pending court cases should be recovered, cannot be made as a condition precedent. Such a memo will strike at the root of the Judicial process and the principle of access to justice. The petitioners constitutional right to seek legal remedy is curtailed. The memo issued by the respondent Board is a clear case of executive excess undermining the authority of the Constitutional Court. Such a memo cannot be justified remain as it tends to challenge the power of the Court to review administrative actions or rather aberrations. He also stated that such a memo/direction issued by the Board is an arbitrary and capricious act and should be struck down by this court.
29. According to Sri Rahul Balaji, learned counsel appearing for the petitioners in W.P.Nos.17024, 18852, 18988 and 19850 of 2012, the respondents Board in spite of issuing NOC earlier and receiving the application for grant of NOC is now refusing to grant NOC, by stating that the petitioners are litigant consumers. There appears to be no justification while refusing to grant NOC for the present month, when admittedly the NOC was granted for the earlier months, the authorities are acting arbitrary. Even though the petitioner is shown to be a litigant consumer, the refusal to grant NOC without indicating a legally tenable reason shows the respondents unreasonable act which will cripple the petitioner's industry if not set aside. Petitioners will not able to avail the open access facility and the unit will fail. When the Board is unable to provide the sufficient power for running of the industrial units, and when the petitioner industries seek third party power by availing the open access facility, the non issuance of NOC will virtually ruin the industry. On this premise the Writ Petition No.17024 of 2012 is filed for a mandamus to issue NOC.
30. In the W.P.No.18988 of 2012, the impugned offending memo dated 12/15.05.2012 as above issued by the respondent Board have been challenged on the above stated legal plea.
31. M/s.G.Vasudevan, P.Gunaraj, S.K.Rameshwar and M.Varunkumar, learned counsel appearing for the respondent Board contended that the concept of litigant consumer is not a new issue as contended. They pointed out that in the memo of the year 2005, the Board conscious of the huge amounts that is locked up in court proceedings wanted to ensure better recovery for the cash trapped Board. It is contended that many of the companies or group of companies, the writ petitioners herein, have approached this court and obtained interim orders even without prima facie case. The Board thereby is denied of its lawful dues due to pendency of the litigation. Hence, the present action was taken by a collective decision to be uniformly implemented.
32. They reiterated the statement made in the counter-affidavit filed by the third respondent Additional Chief Engineer in W.P.No.16308 of 2012. Paras 8 to 11 of the counter reads as follows:-
8.The respondent respectfully submit that the petitioner industry have filed some of the writ petitions against the demand raised by the 3rd respondent in accordance to the tariff order and other orders issued by the respondents due to misinterpretation. Due to such practices of the petitioner industry, the huge of the TANGEDCO money is locked without waying to realize the revenue. In these conditions, the No objection certificate can be issued only on merit basis in respect of the organization. Since the huge arrears amount of Rs.20,38,936/- is pending to be collected from the petitioner industry, the No objection certificate could not be issued to the petitioner industry and other consumers of the TANGEDCO those who are having pending arrears.
Similarly as per the TNERC supply code regulation 5(2)(iv) that No addition or reduction of load in case of LT service and no addition or reduction of demand in case of HT services, may be sanctioned unless the out standing dues in the same service connection has been paid. & 27(1) of Distribution Code 2004.
In view of the above provision, the Additional demand and reduction of demand can be effected only on clearance of the pending dues payable by the consumer so as to realize the TANGEDCO's money and the same way the above impugned letter have been issued by the 3rd respondent. Since the respondent company are suffering to heavy losses nearly 53000 crores, all the possible steps are being taken to compensating above losses by way of realize the outstanding arrears.
9.The respondent respectfully submit that the terminology used in the past records litigant consumer means, the consumer having arrears as per the instruction of Head quarters office and to vacate the stay and appeal of judgment passed by various court order to realize the arrears from the consumers.
10.The respondent respectfully submit that the terminology - litigant consumer has been used without taking literary meaning and it implications; not meant from preventing the consumer approach the Hon'ble court those who are having arrears.
11.The respondent respectfully submit that we have sought for instruction to change the term Litigant consumer in any kind of issues in forthcoming matter.
33. Intra State Open Access Regulations 2005:
At the outset we shall consider the issue as to whether the respondents can refuse to grant "No Objection Certificate" to the petitioners in terms of the Intra State Open Access Regulations 2005. The eligibility criteria for open access and the conditions to be satisfied has already been extracted above both for long term open access and for short term open access. The reason given by the respondents board that "No Objection Certificate" will be granted only after court cases are completed or if the arrears are settled, would be opposed to the said Regulations. There is no such condition prescribed therein.
34. If at all the respondent electricity department can take shelter under Regulation No.4 of the Intrastate Open Access Regulation 2005 which specifies the eligibility criteria to avail open access facility, Sub Regulation (3) and (4) of Regulation 4 provides that a person who has been declared as insolvent or bankrupt or having outstanding dues against him for more than two months billing of transmission or distribution Licensee at the time of application shall not be eligible for open access. In the same way, even if open access has already been allowed, if it is found that the person is declared insolvent or bankrupt or is having outstanding dues for more than two months billing of transmission or distribution Licensee, he shall not be eligible for open access from such date. This provision may apply to a case of an insolvent or a bankrupt person on which there can be no quarrel. The above said persons, insofar as outstanding dues in billing of transmission or distribution Licensee become ineligible.
35. However, in all the cases that are filed before this Court, the no objection certificate is not denied for the reasons stated in Sub Regulation (3) and (4) of Regulation 4 (Regulation 2005). On the contrary, the reason that is stated is that the writ petitioners, litigating consumers, have approached the court and filed writ petitions against the electricity board and therefore, there is no provision for grant of no objection certificate to a litigant consumer. On the face of eligibility specified in Regulation 4, the reasons given by the respondents Board referring to grant no objection certificate to avail the open access facility and such other facilities appears to be totally misconceived and contrary to Regulation 4 of 2005 Regulation.
36. The term "litigant consumer" is now bone of contention between the writ petitioners and the respondent department. The non issuance of "No Objection Certificate" on the premise the writ petitioners are litigant consumers requires a judicial inquisition, whether the term "litigant consumer" is a legally permissible concept or a precept which is totally undemocratic and constitutionally invalid is the question that is posed before this Court.
37. India after independence has crossed 65 years and in the year immediately after independence, the judiciary through its several landmark decisions paved the way for a change that changed the lives of citizens who were agrarian in their avocation. At the time of independence, India though fertile in culture and abundant in natural wealth was impoverished in several ways. The Democratic Government has been taking several welfare measures from time to time for the upliftment of the people so as to provide them the basic necessities like, food, clothing and shelter. By the hard work of the people of this country and the welfare policies of the Government agricultural output increased, industries developed and business enterprises thrived. The youth of this country had the opportunity to get good education from good institution which resulted in employment in India and abroad. It gave a new lease of life to the citizens. As a result, the awareness of the people to their rights and liberties evolved. Whether it is a case of administrative excess, social injustice or discrimination on any account, the courts have risen to the occasions. The Hon'ble Supreme Court and the High Courts while considering the conflict between the State and the people, gave to life to the Constitution and resolved the disputes keeping in mind the directive principles. The march of law has been consistently towards achieving the constitutional goal as enshrined in the Preamble of the Constitution and the directive principles contained therein. The growth of parliamentary democracy coupled with the sound judicial system has enabled our country to be recognized as a highly potential economic super power. This overall development that we have now achieved is because of the growth of the country based on the checks and balance between the Three Organs of the State, viz., the Executive, the Legislature and the Judiciary. The role of the judiciary to review the executive's action in furtherance to the above object can be better amplified by the following decisions of our Apex Court.
38. JUDICIAL REVIEW OF EXECUTIVE ACTION:
In these cases, the respondents have not been able to establish that the petitioner in each one of this case is barred by law to approach this Court. In a surprising turn of events, in a manner shocking the judicial conscience, the respondents have sought to deny certain benefits to the petitioners on the premise that they are litigant consumers. The administrative action of the respondents, which has no legal basis, requires to be reviewed by judicial process when that act amounts to curtailing the citizen's right, on the premise that litigant consumers will not be entitled to certain benefits. Such glaring administrative actions not supported by statutory mandate have been held to be bad and judicial review of such administrative actions have been recognized by Courts all over the world. (See: Block v. Community Nutrition Institute, 467 U.S. 340, 345 (1984)).
It is not proper on the part of the respondents to plead that the impugned proceedings were issued only for ensuring recovery of outstanding dues. Admittedly, such of those claims are subject matter of pending litigation. The respondents can hardly justify a recovery action contrary to statute. At best such an action can be termed as arbitrary and capricious. These memos issued by the respondents clearly establish that the action taken is not in consonance with law and that it jeopardizes the citizen's right to seek legal redress. Therefore, the Court has ample powers to review such an administrative action which is in conflict with law and is also not supported by law. (See: Chantell Sackett v. Environmental Protection Agency, 566 U.S. No.10-1062 (2012))
(i) In Minerva Mills Ltd. and others vs. - Union of India (UOI) and others reported in AIR 1980 SC 1789 = (1980) 3 SCC 625 = 1981 (1) SCR 206, the Five Judges Bench of the Supreme Court consisting Y.Chandrachud, A.Gupta, N.Untwalia, P.Bhagwati, and P.Kailasam,JJ., held in para 93 as follows:-
"93. It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. But then the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded. Now there are three main departments of the State amongst which the powers of Government are divided; the Executive, the legislature and the Judiciary. Under our Constitution we nave no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that "the concentration of powers in any one organ may" to quote the words of Chandrachud, J. (as he then was) in Smt. Indira Gandhi's case (supra) "by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which we are pledged." Take for example, a case where the executive which is in charge of administration acts to the prejudice of a citizen and a question arises as to what are the powers of the executive and whether the executive has acted within the scope of its powers. Such a question obviously cannot be left to the executive to decide and for two very good reasons. First, the decision of the question would depend upon the interpretation of the Constitution and the laws and this would pre-eminently be a matter fit to be decided by the judiciary, because it is the judiciary which alone would be possessed of expertise in this field and secondly, the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the legality of executive action and the validity of legislation passed by the legislature. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution.
The power of judicial review is an integral part of Indian Constitutional system and without it, there will be no government laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. The above judgment held that judicial review is a basic feature of the Indian Constitution and if it was taken away then the constitution would cease to be what it is. (emphasis supplied)
(ii) In L. Chandra Kumar - vs - Union Of India And Others reported in AIR 1997 Supreme Court 1125, the Supreme Court held in paragraph 78 as follows:-
78... the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. This will apply even to administrative or executive actions which are alleged to be in breach of law or the constitution.
39. Applying the above principles to the facts of the present case, it is evident that the respondents executive in this case are irked by the writ petitioners approaching the Constitutional Court for legal redress. Therefore, they have refused to grant No Objection Certificate on the premise that the Writ petitioners are litigating consumers. This action of the respondents board is challenged by the writ petitioners before this Court to determine the legality of the executive action by using the power of judicial review. It is not in dispute that the memorandum under challenge and the consequent letters issued by the respective field formation of the electricity board is based on this concept of litigant consumers. As to how, the respondents electricity board can issue such a memorandum and letters calling upon the writ petitioners to clear all the arrears for the purpose of getting No Objection Certificate, despite knowing fully well that those payments which are now sought to be recovered are subject matter of pending litigation before this court. This Court is unable to accept such a concept by the respondents electricity Department which has know legal or statutory basis. Can the No Objection Certificate be denied on the premise that the petitioners in each one of the cases are litigating their rights before this Court? My answer to this question is clear No. Each citizen of this country has right to approach the court of law to vindicate his rights.
40. Access to Justice:
Access to justice is a right of individual or groups to obtain quick, effective and fair judicial remedy to protect their rights, prevent or solve disputes. It is also a tool to control the abuse of power. Access to justice is a process or a mechanism by which aberrations of all kinds that ails the society is controlled. The Supreme Court in Para 10 of the decision in Bhagubhai Dhanbai Khalasi and another vs. - State of Gujarat and others reported in (2007)4 Supreme Court Cases 241 held as follows:-
10. A party having a grievance must have a remedy. Access to justice is a human right. When there exists such a right, a disputant must have a remedy in terms of the doctrine ubi jus ibi remedium.
41. The Supreme Court in Para 10 of the decision in Arunima Baruah vs. - Union of India and others reported in (2007)6 Supreme Court Cases 241 held as follows:-
10. On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. (See Dwarka Prasad Agarwal v. B.D.Agarwal and Bhagubhai Dhanabhai Khalasi v. State of Gujarat). A person who has a grievance against a State, a forum must be provided for redressal thereof. (See Hatton v. United Kingdom. For reference see also Zee Telefilms Ltd. v. Union of India).
42. The Supreme Court in Imtiyaz Ahmad vs. - State of Uttar Pradesh and others reported in (2012)2 Supreme Court Cases, 688 in paras 25 and 26 held as follows:-
25. Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man's access to justice. A person's access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivises people to look for short cuts and other for a where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to the rule of law.
26. It may not be out of place to highlight that access to justice must not be understood in a purely quantitative dimension. Access to justice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individual's access to courts, or guaranteeing representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and inequitable (see United Nations Development Programme, Access to Justice practice Note (2004) The Apex Court in the above decision (Imtiyaz Ahmad vs. - State of Uttar Pradesh and Others reported in (2012)2 Supreme Court Cases 688), while underling the principles of access to justice as a right guaranteed under the Constitution has referred to the international covenants which recognise the right of access to justice as a basic human right, besides, being a fundamental right of an individual. World over this principle has been recognized and implemented. It will be useful to quote the relevant portion of the decision of the Apex Court on this issue:-
35. The right of access to justice has been recognised as one of the fundamental and basic human rights in various international covenants and charters. [See Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR).] The right of access to justice is also recognised under Article 67 of the Statue of the International Criminal Court (Rome Statute).
36. In the context of the European Union, Article 47 of the Charter of Fundamental Rights of the European Union, 2007 provides for the right to an effective remedy and to fair trial. With respect to the Council of Europe, the European Convention on Human Rights and Fundamental Freedoms, 1950, Article 6 significantly protects this right to access justice.
37. The European Court of Human Rights has held that a broader interpretation must be given to Article 6(1) of ECHR laying emphasis on right to a fair administration of justice in Delcourt v. Belgium.
..... In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and purpose of that provision.
38. Article 8 of the Universal Declaration of Human Rights provides that:
8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
40. The principle of access to justice or courts is recognised as a right in South Africa's Constitution as well:
34. Access to courts. - Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
43. The Apex Court in Tashi Delek Gaming Solutions Ltd., and another - vs. - State of Karnataka and others reported in (2006)1 Supreme Court Cases 442 held in para 37 as follows:-
37.... A person must be held to have access to justice if his right in any manner whether to carry on business is infringed or there is a threat to his liberty. Access to justice is a human right."
44. The American Constitution also recognizes similar rights. The Fifth Amendment provides right to legal remedy as a constitutional right.
45. The Apex Court in State of Haryanana vs. - Darshana Devi and others reported in 1979 AIR 855 = 1979 SCR(3) 184 held as follows by quoting the Australian Law:-
Access to court is an aspect of Social Justice and the State has no rational litigation policy if it forgets this fundamental. Our perspective is best projected by Cappelletti, quoted by the Australian Law Reform Commission:
The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right' of a system which purports to guarantee legal right(1)
46. The Supreme Court in Ram Prasad Narayan Sahi and another vs. - State of Bihar and others reported in 1953 SCR 1129 = AIR 1953 SC 215 held in para 18 as follows:-
18...... The meanest of citizens has a right of access to a Court of law for the redress of his just grievance and it is of this right that the appellants have been deprived by this Act. It is impossible to conceive of a worse form of discrimination than the one which differentiates a particular individual from all his fellow subjects and visits him with a disability which is not imposed upon anybody else and against which even the right of complaint is taken away. (emphasis supplied)
47. Access to justice is a doctrine that is universally accepted and applied. This is based on a principle that a democratic country is governed by rule of law and the Courts are the custodians of public repose in judicial resolution of disputes. To deny a right on the ground that the party seeking a benefit has approached a legal forum on an another issue, will be opposed to the aforesaid doctrine. Right to seek Justice is a right given by the people to themselves by the Constitution. That right cannot be allowed to be curtailed by the executive, by calling them litigant consumers. The concept of litigant consumer as coined by the respondent is an anathema to our Constitution and the Laws. The writ petitions that are filed are justified as the petitioners are praying to safeguard their Constitutional Rights.
48. Of late, it appears that the Executive is intolerant to citizens knocking the doors of justice and they feel that orders of court are affront to their executive power. In other words, the executive notion of access to justice is a mere nomenclature in the judicial dictionary. But in reality the executive should not feel that it is a super power. It is unfortunate that in a land where it is recognized that even a King is not above the law, the executive feels otherwise. The orders under challenge are executive orders and the earlier orders which are subject matter of pending litigation are also executive orders. In the light of the clear statement of law, the executive cannot take offence against the assessee for seeking recourse to legal remedy. The right to challenge executive action cannot be curbed by the respondent Board nor does any law, that respondents may fall back on. It is akin to a negative covenant in an agreement. Hence, seeking review of executive orders cannot be a ground to deny other benefits.
49. According to the respondents board, an assessee, who is a HT Consumer, if he is disputing a claim in court of law, is a litigant consumer and therefore, he will not be granted further benefits. The term litigant consumer as considered by the respondents, cannot be accepted in a democratic country like our, because judiciary is one of the pillars of democracy and to deny access to the judicial forum is wholly unconstitutional. The citizen's right is paramount and the Three Organs of the State function for the benefit of the citizen. The law is meant to regulate the different facets of citizen's life (i.e.) individual, social, business, trade, occupation, society and environment, etc. All the laws should comply to the constitutional mandate. The Indian Constitution recognizes the right of a citizen to seek legal remedy as a fundamental right. Article 21 gives every citizen of the country a right to have access to justice and vindicate his right, if he is offended. Thus, the constitutional right cannot be whittled down by the executive or administrative authority by terming a citizen as litigant consumer and deny him other benefits if he is otherwise lawfully entitled to.
50. We are a democratic nation governed by the rule of law. Access to justice is a right constitutionally guaranteed and it is a basic human right to resolve conflict. No authority purporting to act under any law or by usurping a power that he does not have, can deny the citizen, his right to seek legal remedy or deny the benefit on the ground that he is litigant. If access to justice is denied it will lead to anarchy. This is evident from respondent's injunctive proceedings for settling their dispute in a manner otherwise than through judicial process. The constitutional mandate of check and balance of power provides that an exercise of arbitrary power by the executive should be checked by an independent judiciary. That role of the judiciary cannot be slaughtered at the altar of executive exigency terming the petitioner as litigant consumer. Democratic governance is undermined when access to justice is denied to its citizens. A strong, impartial and independent judiciary is a corner stone of progression of a country and for a health democracy. Petitioner's right to seek legal recourse cannot be obstructed by an executive fiat terming the assessee as litigant consumer as it will be opposed to the Constitution and not authorised by law. Hence, the petitioners are entitled to succeed and the impugned proceedings denying benefits on the percept of litigant consumer is wholly unjustified and invalid by constitutional mandate.
51. CONTEMPT: The refusal of No Objection Certificate (NOC) only on the basis that the petitioners have approached the High Court will tantamount to impropriety and interfering with the course of justice and such an action will be a clear interference of the constitutional provision, which rests the authority to resolve disputes on the Judiciary. The Executive does not have the power to injunct a citizen from approaching the Court, as that would not only prejudice the party litigant, but will also amount to interfering with the course of justice, for which the authority is liable to be proceeded for acts in contempt of court. This view of mine is fortified by the decisions of the Apex Court and this principle has been widely applied in Courts throughout the world.
(i) In Pratap Singh V Gurubaksh Singh reported in AIR 1962 SC 1172, the Apex Court held as follows:-
13. In that decision, Das,J. And Subba Rao,J., (as he then was), took the view that the action of the officers, who initiated disciplinary proceedings, against the person, who had filed a suit, amounted to contempt...... "14. As emphasized by Das.J., in Pratap Singh case, 'any conduct which interferes with, or prejudices parties, litigant, during the litigation, is undoubtedly Contempt of Court.'
(ii) Oswald, in his book 'Contempt of Court', Third Edition, says:
"To speak generally, Contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation."
52. On the above principle also, the impugned orders passed by the respondent Board denying certain facility or refusing to grant no objection certificate or such other legally permissible rights on the ground that the consumer is litigant consumer, are invalid in law and accordingly, they are liable to be set aside.
53. Legitimate Expectation:-
The doctrine of legitimate expectation is one of the most important principles that an individual will expect out of an executive action. It will be unjust to an individual if the decision maker disregards a previous promise or an announced policy particularly when the individual has rearranged his or her affairs on the basis of the promise, policy or undertaking. In the case of R (A) v Secretary of State for Home Department (2006) EW HC 526 (Admin) (Collins J) held that Legitimate Expectation is grounded in fairness because the courts expect government departments and indeed all officials who make decisions affecting members of the public to honor statements of policy. To fail to do so will mean that the decision maker has failed to have regard to a material consideration. Further, in R v Minister of Agriculture, Fisheries and Food Exparte Hamble (Offshore) Fisheries, (1995)2 All ER 714 (Sedley J) suggested that A legitimate expectation creates a binding obligation that could only be overridden if the objectives of the statute could not otherwise be achieved, a matter to be assessed by the court. In the case of R v Secretary of State for Home Department Exparte Khan (1985)1 All ER 40 it has been held that Legitimate Expectation will also entitle the claimant to a fair hearing and perhaps reasons to be given before the benefit is refused or withdrawn. If a citizen has been lead to believe by a statement or other conduct of the government that he is singled out for some benefit or some advantage of which it would be unfair to deprive him of the same.
54. In the present crop of cases, it is stated and not refuted that the Board had issued NOC month after month pursuant to an application or request letters by the industries concerned. This has happened as late as May 2012. In almost all the letters granting NOC the Board referred to the pending litigation of the petitioner companies on various issues, but did not decline to grant NOC. However, for some strange reason the board has taken a different stand by refusing to grant NOC for the subsequent months. The present stand taken by the board has no legal basis nor just in equity and is opposed to the doctrine of legitimate expectation. The denial of the NOC and refusal of sanction for open access for purchase of power from third parties, virtually cripples the business of the petitioners. On the above principle also, the action of the respondents board refusing to grant No Objection Certificate can be held as arbitrary.
55. For all the foregoing reasons, the impugned letters and the memo of the respondent Board in each one of the writ petitions are set aside. The Superintending Engineer/Additional Chief Engineer or appropriate authority is directed to issue no objection certificate to the petitioners for availing open access facility, additional demand or dedicated feeder line, as the case may be.
56. All the Writ Petitions are allowed as above. No costs. Consequently, connected miscellaneous petitions are closed.
ts To
1. The Chairman and Managing Director, Tamilnadu Generation & Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002.
2. The Chairman, The Tamilnadu Electricity Board, 144, Anna Salai, Chennai-600 002.
3. The Superintending Engineer, Chennai Electricity Distribution Circle/Central, Tamilnadu Electricity Board, Chennai-600 034.
4. The Chief Engineer/Commercial Tamilnadu Generation & Distribution Corporation Limited (TANGEDCO), 144, Anna Salai, Chennai-600 002.
5. The Superintending Engineer, State Load Dispatch Centre, 144, Anna Salai Chennai 600 002