Madras High Court
Mas Solar Systems Pvt Ltd vs The Chief Engineer/Distribution on 21 June, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.10699 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.06.2024
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.10699 of 2021
and
W.M.P.No.11331 of 2021
MAS Solar Systems Pvt Ltd.,
Rep. by Managing Director,
Anbazhagan,
153, SIDCO Industrial Estate,
Malumichampatti P.O
Coimbatore – 641 050 .... Petitioner
Vs
The Chief Engineer/Distribution,
TANGEDCO Ltd.,
Tatabad, Coimbatore – 641 012. .... Respondent
Prayer:- Writ Petition filed under Article 226 of Constitution of India for
the issuance of Writ of Certiorarified Mandamus, to call for the records of
the respondent's letter dated 06.03.2021 in
Lr.No.CE/D/CBE/EE/Schemes/AEE/Sch/F.MAS Solar D.No.080/21 and
all connected proceedings thereto and quash the same and consequently
direct the respondent/TANGEDCO, to pay the sum of Rs.1,13,45,735/- to
the petitioner company for expenses incurred.
For Petitioners : Mr.Venkatesh Mahadevan
For Respondent : Mr.P.Kumaresan
Additional Advocate General
Assisted by Mr.L.Jaivenkatesh
Standing Counsel
https://www.mhc.tn.gov.in/judis
Page 1 of 14
W.P.No.10699 of 2021
ORDER
This Writ Petition has been filed challenging the order passed by the respondent dated 06.03.2021, thereby directed the petitioner to remit a sum of Rs.63,44,228/- within a period of seven days from the date of receipt of the letter, failing which, it will be included for recovery in the HT/LT services pertaining to the petitioner.
2. The petitioner is a Private Limited Company and it is dealing with manufacture Solar Power Systems, Solar Heating Systems, Solar Photo Voltaic Power System, Solar Energized Products etc. While being so, the respondent had identified that all the villages have been electrified as early as 1992, through their grid. However, it is not feasible for certain habitations in Tamil Nadu since they were located in remote/forest areas. Therefore, the respondent launched a project to electrify households in remote habitations through solar power system by providing Roof Top Solar Panels in each of such un-energy electrified households. Accordingly, the respondent had identified 2665 households in 65 habitations covered in eight Districts, viz., Coimbatore, Tiruppur, Nilgiri District in Coimbatore Region, Dharmapuri & Tirupattur Districts in Vellore Region and Erode & Salem Districts in Erode Region, to be electrified only through Non-conventional mode of electrification. In https://www.mhc.tn.gov.in/judis Page 2 of 14 W.P.No.10699 of 2021 order to implement the same, the respondent had floated the tender in which the petitioner's bid was finally accepted for non-conventional electrification of households in 65 habitations in Coimbatore, Erode and Vellore regions. The petitioner was awarded a contract on 18.01.2016 to electrify 2665 households in 65 habitations through LED based SPV Home Lighting System which were exclusively located within the forest/reserved forest area. However, due to various reasons, the petitioner could not able to electrify all households. Therefore the contract was terminated on 26.07.2017. Thereafter, the respondent issued the impugned communication dated 06.03.2021, thereby claiming security deposit as well as liquidated damages to the tune of Rs.63,44,228/-.
3. The learned counsel appearing for the petitioner would submit that after awarding contract, it stipulates three stages, the first one is inspection, the second is transport of materials into households and third one is completion of Roof Top Solar Panels in each of such un- energy electrified households. Most of the villages were in forest/ reserved forest area, the representative of the petitioner as well as the representative of the respondent, while inspecting the villages, were https://www.mhc.tn.gov.in/judis Page 3 of 14 W.P.No.10699 of 2021 directed by the concerned Forest Officer to get the appropriate permissions from the Forest Department to conduct the site visits as well as the supply, installation and commissioning of LED based SPV lighting system as per the tender. Therefore, the petitioner submitted a representation before the Principal Chief Conservator of Forest, Saidapet, Chennai, seeking permission for site visit, transport of materials and installation of Solar Power Lighting System in households situated within the forest areas. However, the petitioner was replied that the request for “identification of area” comes under the jurisdiction of the Conservator of Forest, Coimbatore Circle, Coimbatore, Chief Conservator of Forests and Fields Director, Aanamalai Tiger Reserve, Pollachi and Chief Conservator of Forest and Field Director, Mudhumalai Tiger Reserve, Ooty and directed the petitioner to approach them. Further, by the communication dated 06.06.2016, the petitioner was directed to apply to the concerned District Forest Officers. Therefore, the petitioner also requested the respondent to get necessary permission to enter in the reserve forest area for inspection.
4. Accordingly, the respondent also issued a letter dated https://www.mhc.tn.gov.in/judis Page 4 of 14 W.P.No.10699 of 2021 06.07.2016 to their concerned officials seeking permission. However, by a letter dated 12.09.2016, the Deputy Director, Mudumalai Tiger Reserve, informed that 150 households covered under 4 villages within Mudumalai Tiger Reserve were to be re-located to Ayyakolli Village and the petitioner was advised to undertake the project of electrifying households through SPV Home Lighting Systems after they were relocated. Therefore, because of the respondent failed to obtain the statutory and mandatory clearances and approvals from the Forest Department, the petitioner could not able to commence the work as per the contract awarded in favour of the petitioner. Without considering the above, the respondent had cancelled the tender awarded in favour of the petitioner by its order dated 26.07.2017.
5. He further submitted that by communication dated 19.04.2019, the respondent had claimed liquidated damages to the tune of Rs.53,90,879/-. On response from the petitioner, the respondent, by its another communication dated 31.07.2019 reduced the claim to the tune of Rs.18,71,591/-. Whereas, finally by the impugned order dated 06.03.2021, the respondent claiming a sum of Rs.63,44,228/- from the petitioner. In fact, the petitioner was informed before claiming the https://www.mhc.tn.gov.in/judis Page 5 of 14 W.P.No.10699 of 2021 security deposit as well as the liquidation damages and hence it cannot be said that the petitioner was not given an opportunity of hearing before passing order. On the other hand, the petitioner claimed a sum of Rs.1,13,45,735/- for the materials purchased by the petitioner and also claiming compensation from the respondent for without getting any clearance from the Forest Department before floating the tender.
6. The respondent filed a counter and the learned Additional Advocate General appearing for the respondent submitted that totally 2705 households in 67 habitations were identified in eight Districts and in order to electrification through Roof Top Solar Photovoltaic cells, the respondent floated tender on 13.03.2015 for supply, installation and commissioning of LED based SPV for electrification and un-electrified habitations. On receipt of the tenders from various persons, the petitioner was awarded the contract on 18.01.2016 at the rate of Rs.12,485/- per system for a total value of Rs.3,32,72,525/-.
7. Even according to the petitioner, the petitioner had completed survey inspection for 1095 households as on 18.03.2016. https://www.mhc.tn.gov.in/judis Page 6 of 14 W.P.No.10699 of 2021 Thereafter, 1427 households were completed survey inspection as on 09.04.2016 and 1781 households were completed survey inspection as on 09.06.2016. Out of which, only 150 households in habitations of Mudumalai Village in Nilgiris District is pending for approval since the Forest Department decided to relocate them to Ayyankolli Village. Even then, the petitioner failed to commence the project. Further he submitted that as per the condition imposed in Clause 1.4 of the agreement, the terms and conditions and specifications are intended to be strictly enforced. No escalation of cost in the tender by the bidder will be permitted throughout the period of agreement or throughout the period of completion of contract whichever is later on account of any reasons whatsoever. Further, the bidder shall make all arrangements as part of the contract for supply, installation and commissioning of LED based SPV Home Lighting Systems and train the beneficiaries at various locations at their own cost.
8. He also pointed out another condition that any offer received by the respondent after the due date and time specified for submission of the tender offer will be declared late, rejected and returned unopened to the tenderer. He further submitted that by the https://www.mhc.tn.gov.in/judis Page 7 of 14 W.P.No.10699 of 2021 communication dated 19.04.2017 from the petitioner, it was categorically stated that after issuance of letter to the respondent dated 20.06.2016, with the help of the respondent, the petitioner had completed 2292 numbers of households on 19.12.2016 in site survey. Even then, the petitioner failed to commence the project. Therefore, the respondent constrained to terminate the contract on 26.07.2017. Subsequently, the respondent floated fresh tender. Now the entire project has been completed due to which the respondent sustained heavy loss because of escalation of cost of materials. Therefore, the respondent raised demand to the tune of Rs.63,44,228/-.
9. Heard the learned counsel appearing for the petitioner and the learned Additional Advocate General appearing for the respondents and perused the materials available on record.
10. The petitioner was awarded a contract on 18.01.2016 by the respondent for supply, installation and commissioning of LED based SPV Home Lighting System in Coimbatore, Erode and Vellore region to 2665 households in 65 habitations at the rate of Rs.12,485/- per system for a total value of Rs.3,32,72,525/-. Admittedly, the entire habitations https://www.mhc.tn.gov.in/judis Page 8 of 14 W.P.No.10699 of 2021 were located in the reserved forest area. Therefore, after awarding the contract in favour of the petitioner, in order to complete the entire project there were three stages. Firstly, the petitioner shall have to inspect and survey the households. After completion of inspection and survey, they have to bring all materials to the households which were located in the reserved forest area. Thereafter, they have to complete the project on Roof Top Solar Panels in each such un-energy electrified households. Accordingly, the petitioner had completed the inspection and survey on in respect of 1598 households. In order to inspect the remaining households, the petitioner and even the respondent were denied permission by the Forest Department.
11. A perusal of the records reveals that the petitioner, by its communication dated 13.04.2016, addressed to the Principal Chief conservator of Forests (Head of Forest Force), Chennai, sought for permission to inspect and survey the households in order to supply, installation and commissioning of LED based SPV Home Lighting System in Coimbatore, Erode and Vellore region. However, the petitioner was informed to approach the Conservator of Forest, Coimbatore Circle, Coimbatore, Chief Conservator of Forests and Field https://www.mhc.tn.gov.in/judis Page 9 of 14 W.P.No.10699 of 2021 Director, Aanamalai Tiger Reserve, Pollachi and Chief Conservator of Forest and Field Director, Mudhumalai Tiger Reserve, Ooty. However, the permission was not granted to the households. On the request made by the petitioner, the respondent also sought for permission by its communication dated 06.07.2016 to the Chief Conservator of Forests and Field Director, Mudhumalai Tiger Reserve, Ooty, to issue permission for site visit for surveying, transporting of materials, installation and commissioning of LED based SPV Home Lighting in the area mentioned in the contract.
12. That apart, by the communication dated 12.09.2016, the Deputy Director, Mudhumalai Tiger Reserve, Ooty, have to be reloacted to Ayyankolli Village. Therefore, after relocating them, they directed the petitioner to carryout the electrification through SPV Home Lighting System. Therefore, the petitioner could not able to commence the installation of SPV Home Lighting System. Because of non- commencing the work, the contract was terminated by an order dated 26.07.2017.
13. A perusal of the records reveals that the respondent informed the petitioner that the Forest Authorities had granted permission https://www.mhc.tn.gov.in/judis Page 10 of 14 W.P.No.10699 of 2021 by its communication dated 24.09.2019 to take up work of electrification of un-electrified habitations in Aanamalai Reserve through Roof Top Solar approval. It was informed to the petitioner after terminating the contract by an order dated 26.07.2017. Some of the habitations of Jambuttumalai Village and Pallikadu Village of Salem District by their representations dated 16.02.2016 and 17.02.2016 addressed to the respondent sought for electricity connection by installation of HT/LT line since they were having electricity connection such as television, mixie, grinder, fan etc. Therefore, they refused to take electrification through SPV system. Therefore, the petitioner was not even entertained in the village for inspection and survey, installation and to execute the contract. Therefore, the petitioner sought for compensation for the loss incurred by them by purchasing materials, survey and inspection of some of the habitations.
14. That apart, by three communications, the respondent claimed security deposit as well as the liquidated damages in different amounts. By the communication dated 19.04.2019, the respondent claimed liquidated damages to the tune of Rs.53,90,879/-. By another communication dated 31.07.2019, the respondent reduced the security https://www.mhc.tn.gov.in/judis Page 11 of 14 W.P.No.10699 of 2021 deposit and liquidated damages to the tune of Rs.18,71,591/-. Whereas, the impugned demand dated 06.03.2021 came to be issued thereby claiming security deposit as well as the liquidated damages to the tune of Rs. 63,44,228/-. Therefore, there is absolutely no justification for these amount for security deposit as well as the liquidated damages. That apart, in view of the reasons stated above, the respondent cannot claim any security deposit as well as the liquidated damages from the petitioner. In fact, admittedly, the petitioner made inspection, survey and had so many steps to execute the contract also by purchasing materials. Therefore, the impugned demand raised by the respondent cannot be sustained and it is liable to be quashed.
15. Accordingly, the order passed by the respondent dated 06.03.2021, is hereby quashed. Insofar as the claim made by the petitioner, it involved deposit, which is a question of fact and as such, it can be adjudicated before a Competent Court, if so advised. In view of the interim order passed by this Court, the petitioner had made a deposit to the tune of Rs.20,00,000/- in favour of the respondent. Therefore, the respondent is directed to return the deposit made by the petitioner within a period of two weeks from the date of receipt of a copy of this order. https://www.mhc.tn.gov.in/judis Page 12 of 14 W.P.No.10699 of 2021
16. In the result, this writ petition stands allowed. Consequently, connected miscellaneous petition is closed. No costs.
21.06.2024 Internet : Yes Index : Yes/No Speaking/Non-speaking order Neutral Citation : Yes/No Lpp To The Chief Engineer/Distribution, TANGEDCO Ltd., Tatabad, Coimbatore – 641 012.
https://www.mhc.tn.gov.in/judis Page 13 of 14 W.P.No.10699 of 2021 G.K.ILANTHIRAIYAN, J.
Lpp W.P.No.10699 of 2021 21.06.2024 https://www.mhc.tn.gov.in/judis Page 14 of 14