Madras High Court
Jay Jay Mills India P Ltd vs The Chairman on 3 January, 2022
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
W.P.No.28546 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2022
CORAM:
The Hon'ble Mr.Justice Krishnan Ramasamy
W.P.No.28546 of 2018
Jay Jay Mills India P Ltd., HTSC No.306,
Plot No.K32, 4th Cross Street,
SIPCOT Industrial Growth Centre,
Perundurai- 638 052.
rep. by its Authorized Signatory
Mr.C.Manohkaran
...Petitioner
Vs
1. The Chairman,
Tamil Nadu Generation and Distribution
Corporation Limited,
144, Anna Salai,
Chennai 600 002.
2. Director Finance
Tamil Nadu Generation and Distribution
Corporation Limited,
144, Anna Salai,
Chennai 600 002.
3. The Superintending Engineer,
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W.P.No.28546 of 2018
TANGEDCO,
Erode Electricity Distribution Circle,
948, EVN Road, Erode-9.
4. The Superintending Engineer,
TANGEDCO
Ududmalpet Electricity Distribution Circle,
Ududmalpet.
5. The Superintending Engineer,
TANGEDCO
Tirunelveli Electricity Distribution Circle,
Tirunelveli.
6. The Superintending Engineer,
TANGEDCO
Tirupur Electricity Distribution Circle,
Tirupur.
7. Tamil Nadu Electricity Regulatory Commission
Rep. by its Secretary,
19-A, Rukmini Lakshmipathy Salai,
(Marshall's Road)
Egmore, Chennai- 600 008.
...Respondents
Prayer: Writ Petition filed Under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, to call for the records
of the 3rd respondent's impugned demand notice bearing
Lr.No.SE/EEDC/ED/DFC/AO/A4/F.HTSC No.306/D.No.201/2017 dated
01.09.2017 and quash the same as arbitrary, without jurisdiction, contrary to
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W.P.No.28546 of 2018
Rule 3(1)(b) of the Electricity Rules, 2005 and Electricity Act, 2003 and goes
against the express orders of this Hon'ble Court in WP(MD) No.9320 of 2017
dated 25.05.2017 and consequently direct the 3rd respondent to give
refund/adjust of Rs.8,07,588/- illegally collected from the petitioner against his
future CC bills and make payment of Rs.32,01,274/- towards the balance
untilised banked wind energy of 12,59,105 units in petitioner's WEG No.831
after adjustment for the period 2016-2017.
For Petitioner : Mr.S.P.Parthasarthy
For R1 to R6 : Mr.Abul Kalam,
Standing Counsel
For R7 : No appearance
O R D ER
This Writ Petition has been filed to quash the impugned demand notice
dated 01.09.2017 passed by the 3rd respondent and consequently direct the 3rd
respondent to give refund/adjust of Rs.8,07,588/- illegally collected from the
petitioner against his future CC bills and make payment of Rs.32,01,274/-
towards the balance untilised banked wind energy of 12,59,105 units in
petitioner's WEG No.831 after adjustment for the period 2016-2017.
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W.P.No.28546 of 2018
2. The case of the writ petitioner is that the petitioner owns Wind Mill
bearing WEG No.4286 and 4288 at Tirunelveli District coming under the 5th
respondent and WEG No.830 and 831 at Tirupur District initially coming
under the 4th respondent and presently coming under the 6th respondent,
producing electricity there from and exporting to the captive consumption of the
petitioner through the grid of the respondent TANGEDCO.
2.1. As per the terms and conditions of wind purchase agreements, the
petitioner is supposed to utilize 51% of the total generating unit under the
captive consumption. According to the petitioner, he has captively consumed
51% of wind mills put together. However, the 3rd respondent has issued
demand notice dated 01.09.2017 to one of the wind mills, i.e., bearing No.831
stating that it has not achieved 51% but only achieved 15.38%.
2.2. According to the writ petitioner, the petitioner has achieved 51%
captive consumption in aggregate as stated above, in respect of all the wind
mills put together. However, the 3rd respondent has taken each wind mill
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W.P.No.28546 of 2018
separately and calculated the captive consumption independently which ought
not to have been done. Further, the learned counsel for the petitioner submitted
that the issue involved in the present Writ Petition came for consideration
before the Tamil Nadu Electricity Regulatory Commission which was
constituted for the purpose of resolving the dispute and the TNERC has decided
that, in the event, more than one wind mill produced the electricity and
achieved captive consumption, in such case, all the units have to be taken into
consideration together for the purpose of determining the captive consumption.
Therefore, the learned counsel for the petitioner submits that this Writ Petition
has to be decided on the same line, as decided by the Tamil Nadu Electricity
Regulatory Commission.
3. Per contra, Mr. Abul Kalam, the learned Standing Counsel for the
respondents 1 to 6 has also submitted that this issue is also covered by the
order passed by the Tamil Nadu Electricity Regulatory Commission in
M.P.No.24 of 2020 dated 07.12.2021.
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W.P.No.28546 of 2018
4. Heard the learned counsel for the petitioner as well as the respondent.
This Court also perused all the order passed by the Tamil Nadu Electricity
Regulatory Commission and it is relevant to extract the portion of the order for
the purpose of deciding the present issue hereunder:-
"9.9.7 Accounting of aggregate generation and consumption
9.9.7.1 Verification criteria of consumption shall be based on
the aggregate energy generated from generating unit(s) in a
generating station identified for captive use before the
commencement of captive wheeling to be determined on annual
basis i.e. gross energy generated less auxiliary consumption.
In the case of wind energy, if the CGP having multiple
generating units having separate Energy Wheeling Agreements
with the ownership structure/shareholding being the same in
each agreement aggregate energy of all generating units of the
CGP shall be considered irrespective of separate wheeling
agreements. If shareholding of each Energy Wheeling
Agreement where substantial difference exists between the
wheeling agreement and the shareholding, then at the option of
the captive generator, Energy Wheeling Agreement wise
verification shall be done. The quantum of auxiliary
consumption shall be the metered auxiliary consumption or the
normative auxiliary consumption whichever is less. The captive
consumption (the captive user) may be within the premises
where the CGP is located or at a different location. In the
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W.P.No.28546 of 2018
absence of measured data on auxiliary consumption, until
metering as prescribed in para9.9.9.1 of this procedure is
completed, the normative auxiliary consumption specified in the
Tariff Regulations of the Commission may be considered for the
purpose of CGP verification status.
9.9.7.2 As per the explanation to Rule 3, ‘annual basis’ refers to
determination in a financial year. For determination of captive
status on an annual basis, for the first year, the date of grant of
open access shall be considered as the start date for the
Financial Year(FY). For the subsequent years, generation from
1st April to 31st March of a FY shall be considered for
determining captive status.
9.9.7.3 The Aggregate Generation for each Generating
Plant/Unit identified (unit identification applies to SPV) for
captive use on Annual basis shall be calculated as follows:
(a) For all generators except wind generator:
Aggregate generation =Gross generation of generating plant
or*units identified (- ) Auxiliary consumption
* in case of SPV
(b) In the case of wind generator CGPs, banking of energy and
adjustment of start up power with the energy generated is
permitted in the Tariff orders issued by the Commission for
wind power. Therefore, the banking charges in kind and the
start up power in the case of wind energy generators may be
deducted from aggregate generation provided the CGP has
appropriate metering, and provides details of power consumed
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W.P.No.28546 of 2018
for startup power.
For wind energy, the aggregate generation shall be as
follows:
Aggregate generation = Gross generation (-)banking charges in
kind(in units) (– )start up power(in units)
9.9.7.4 For all captive users, applicable T&D losses shall be
grossed up on adjusted units. "
5. A perusal of the above order shows that in the case of wind energy, if
the CGP having multiple generating units having separate Energy Wheeling
Agreement with the ownership structure/shareholding being the same in each
agreement aggregate energy of all generating units of the CGP shall be
considered irrespective of separate wheeling agreements.
6. In the present case also, though the petitioner has separate wind mill
agreement for three separate units at different places, however, all the three
wind mills are one and the same ownership. Further, the shareholding/structure
of the CGP being the same in respect of each agreement entered by the
petitioner, and when such being the case, the issue involved in the present Writ
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W.P.No.28546 of 2018
Petition has been squarely covered by the order passed by the Tamil Nadu
Electricity Regulatory Commission. In such view of the matter, no further
adjudication is required in the present Writ Petition. Accordingly, this Writ
Petition is also allowed on the same lines as per the order passed by the Tamil
Nadu Electricity Regulatory Commission. No costs.
03.01.2022
Internet: Yes/No
Index: Yes/No
Speaking/Non-speaking Order
jd
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W.P.No.28546 of 2018
To
1. The Chairman,
Tamil Nadu Generation and Distribution
Corporation Limited,
144, Anna Salai,
Chennai 600 002.
2. Director Finance,
Tamil Nadu Generation and Distribution
Corporation Limited,
144, Anna Salai,
Chennai 600 002.
3. The Superintending Engineer,
TANGEDCO,
Erode Electricity Distribution Circle,
948, EVN Road, Erode-9.
4. The Superintending Engineer,
TANGEDCO,
Ududmalpet Electricity Distribution Circle,
Ududmalpet.
5. The Superintending Engineer,
TANGEDCO,
Tirunelveli Electricity Distribution Circle,
Tirunelveli.
6. The Superintending Engineer,
TANGEDCO,
Tirupur Electricity Distribution Circle,
Tirupur.
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W.P.No.28546 of 2018
Krishnan Ramasamy , J.
jd
7. The Secretary, Tamil Nadu Electricity Regulatory Commission, 19-A, Rukmini Lakshmipathy Salai, (Marshall's Road), Egmore, Chennai- 600 008.
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