Madras High Court
Tamil Nadu Electricity Regulatory vs Tamil Nadu Spinning Mills Association on 23 August, 2022
Author: S.Srimathy
Bench: S.S.Sundar, S.Srimathy
W.A.(MD)Nos.973, 975 to 980 of 2022
BEFORE THE MADURAI BENCH of MADRAS HIGH Court
RESERVED ON : 01.09.2022
PROUNOUNCED ON : 28.09.2022
CORAM:
THE Honourable MR.JUSTICE S.S.SUNDAR
and
THE Honourable MRS.JUSTICE S.SRIMATHY
W.A(MD)Nos.973, 975 to 980 of 2022
and
C.M.P.(MD)Nos.7888, 7890,
7892 to 7897 of 2022
W.A(MD)No.973 of 2022:
Tamil Nadu Electricity Regulatory
Commission,
4th Floor, SIDCO Corporate
office Building,
Thiru.Vi.Ka.Industrial Estate,
Guindy, Chennai-600 032,
represented by its Secretary. ... Appellant
Vs.
1.Tamil Nadu Spinning Mills Association,
Reg No.330/1997,
No.2, Karur Road,
Modern Nagar,
Dindigul – 624 001,
represented by its Chief Advisor,
K.Venkatachalam.
1/60
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.973, 975 to 980 of 2022
2.The Government of Tamil Nadu,
Energy Department,
Fort St. George,
Chennai – 600 009.
represented by its Additional
Chief Secretary to Government. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent
against the order of this Court in W.P.(MD)No.16677 of 2022, dated
23.08.2022.
In W.A(MD)No.973 of 2022:
For Appellant : Mr.P.Wilson
Senior Counsel
for Mr.Richardson Wilson
For R1 : Mr.Sricharan Rengarajan
for Mr.R.S.Pandiyaraj
For R2 : Mr.P.Wilson
Senior Counsel
assisted by Mr.S.P.Maharajan
Special Government Pleader
***
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.) The Writ Appeal W.A.(MD)No.973 of 2022 is filed challenging the order passed in Writ Petition W.P.(MD)No.16677 of 2022, dated 23.08.2022.
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2. The prayer in the writ petition W.P.(MD)No.16677 of 2022 is to issue Writ of Mandamus forbearing the first respondent Commission from holding anymore hearings and also direct the first respondent Commission to rescind its Daily Orders dated 19.07.2022 by cancelling the entire proceedings happened before the first respondent Commission in an in-
camera mode on the petitions filed by the
TANGEDCO/TANTRANSCO/SLDC in violation of the
proposition declared by the Hon'ble Supreme Court of India in Civil Appeal No. 14697 of 2015 dated 12.04.2018 and in Contempt Petition No.429 of 2020 dated 28.08.2020, 07.12.2020 & 20.01.2021 and not to hear anymore, any other petitions filed or pending before the first respondent Commission until a Member-Legal is appointed first at the first respondent Commission by the second respondent, the Government of Tamil Nadu based on the sponsoring of the candidates by the Selection Committee constituted for this 3/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 purpose.
3. The brief facts as stated in the affidavit W.P.(MD)No. 16677 of 2022 is that the petitioner namely Tamil Nadu Spinning Mills Association is the largest association of spinning mills having Registration No. 330/1997 with 808 members. All the members of the petitioners’ association are High Tension industries drawing Power required for their operations at their mills. In addition to the power supply by TANGEDCO the members of the petitioner had setup their own windmills and solar power plants for captive generation. The TANGEDCO, TANTRANSCO and SLDC, the 3 entities are collecting respective charges for their service rendered in various categories of consumers. The petitioner association is member of many committees and is also member of the State Advisory Committee for TNERC. The Association has filed several writ petitions before this Court and Principal Seat on 4/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 many matters whenever it is adversely affecting its members. All the writ petitions were entertained and hence the writ petitions are maintainable.
4. In the state of Tamil Nadu there was no revision of tariff happened after 2014 and the existing tariff was continued to be extended from time to time until 2017. After 11.08.2017 there was no tariff order issued by the State Regulatory Commission till now. The above entities have not even filed any tariff revision petitions by following the Aggregate Revenue Requirement (ARR) and Turn-up petitions on each November for respective years making their accounts available more transparent and further for prudent check for the stakeholders to know the revenue generated and were spent on each year by the entities
5. Now the three entities had filed petition before the 5/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 first respondent Commission which have come up for hearing only on 19.07.2022 and the Commission had hurriedly taken up the petition for hearing and admitted all the petitions on the same date without providing sufficient time and opportunity for the stakeholders involved in the process. A similar exercise was handled by the first respondent Commission during the year 2017 and the first respondent had taken almost 7 months to process the petition before passing the concerned Tariff orders finally on 11.08.2017. But this time the Commission is showing absolute hurry and rushing to release the Tariff orders without minding the factual position that of the stakeholders are responsible to review their accounts for almost five years from 2016-2017 onwards.
6. Moreover the present writ petitions are filed against the first respondent Commission for gross violation of the order dated 12.04.2018, in the Civil Appeal No.14697 of 2015 6/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 of the Honourable Supreme Court wherein it has been finally directed all the State Electricity Regulatory Commissions and Central Electricity Regulatory Commission to mandatorily function with Member-Legal specifically appointed to the Commissions and has restrained the Commissions from functioning without a Member-Legal. Now the TNERC, first respondent herein is functioning without Member-Legal from 05.05.2022 onwards and has not discontinued from functioning till today.
7. The petitioner further submits that the Central Electricity Regulatory Commission was found functioning without Member-Legal and the Honourable Supreme Court directed the respondent therein to first appoint the Member- Legal. Since the Member-Legal was not appointed a contempt petition was filed and the Hon’ble Supreme Court had stayed the functioning of the Central Regulatory Commission for 7/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 almost 6 months through its order dated 28.08.2020 in the Contempt Petition No. 429 of 2020 in Civil Appeal No. 14697 of 2015. Thereafter the Tribunal was allowed to function only after the Member-Legal was appointed and joined the post and the contempt petition was closed vide order dated 20.01.2021. The present situation in the first respondent Commission is exactly similar and the first respondent Commission is proceeding to adjudicate legal matters without a Member- Legal appointed at first.
8. The first respondent Commission is constituted as per section 82 of Electricity Act 2003 with Chairman and 2 members and functioning as per the functions and powers provided under various provisions of the Electricity Act 2003 more particularly under section 61, 86, etc. Earlier it was within the State Government, after the new Electricity Act 2003 there was a shift from the Board’s regime to Regulator 8/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 regime. The first respondent Commission was set up under the provisions of Electricity Act, 2003 and the Chairman and members were appointed from time to time from 17.06.2002 onwards. The contention of the petitioner Association is that the Chairman and members were appointed from the retired persons from TANGEDCO / TANTRANSCO, which has led to passing several orders favouring TANGEDCO / TANTRANSCO. The APTEL, an appellate forum at New Delhi has come heavily on the TNERC for passing such prejudice orders. Finally the Commission was found functioning with 3 members are stated below:
Sl.No Position Name Basic Qualification Dates
1. Chairman M.Chandrasekar Engineering 16.08.2019
2. Member T.Prabakara Rao I.A.S. 20.02.2016
3. Member-Legal K.Venkatasamy Legal 02.07.2019
9. The said Mr. P.Prabhakar Rao was having experience in the field of Finance and Administration. While 9/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 the Commission was functioning, a vacancy arose due to demitting of office by the said Mr.P.Prabhakar Rao with effect from 24.12. 2020. Accordingly as per section 85 of the Electricity Act a Selection Committee was constituted and the Committee was advised to select and sponsor two names for consideration of appointment in the said vacancy.
10. The Electricity Act has prescribed qualification of the members and Chairman in section 84, wherein it is stated that the persons who have ability integrity understanding and who have adequate knowledge in problems relating to Engineering, Finance, Commerce, Law or Management. However, the government of Tamil Nadu had appointed more Engineers in the respondent Commission. The Government had attempted to appoint one more Engineer from TANGEDCO. During the year 2022 the office was vacant due to demitting of office by the IAS officer P. Prabhakara Rao. The petitioner Association 10/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 had challenged the matter before the High Court W.P. No. 2542 of 2021 and the Court vide order dated 12. 2. 2021 has held:
"However, the Selection Committee shall consider the financial loss being faced by the Electricity Board and the need of Members to the Regulatory Commission from the fields of Finance, Commerce, Economics and Management also as per Section 84 of the Electricity Act."
11. Thereafter, the selection committee has selected and the sponsored 2 names from the field of Finance, Commerce, Economics or Management and one Mr.R.Jerard Kishore was appointed and he joined the on 12.01.2022. But within 2 months he had resigned on 17.03.2022. On resignation of one member, the remaining two members, one is Mr. Chandrasekar as Chairman another Mr.Venkatasamy as Member-Legal were functioning. Because of the availability of Member-Legal and availability of Coram the Commission was functioning with 2 members until 05.05.2022. The Member- 11/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Legal has demitted his office on 05.05.2022 and the Commission has lost its Coram since there was no Member- Legal to continue its function.
12. In order to fill up both vacancies the Government issued G.O. Ms. No.44 Energy (D1) Department dated 16.07.2022, wherein a selection committee was constituted under the Chairmanship of Hon’ble Mr. Justice Chandru. Based on the sponsoring of candidates by the Selection Committee a member from the field of Engineering, that too retired person from TANGEDCO was appointed. The contention of the petitioner that the Committee ought to have sponsored a person from the field of Law and also from the field of Finance, Commerce, Economics or Management. Both the present members are from TANGEDCO and has prejudicial interest in continuing their tenure as Chairman as well as member. The petitioner submits as per the judgement of the Hon’ble 12/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Supreme Court the respondents ought to have appointed Member-Legal first before appointing Member-Engineer, which makes the Commission functioning without a Member- Legal. In the judgment of the Hon’ble Supreme Court rendered in Civil Appeal No. 14697 of 2015 and the orders passed in Contempt petition, the Hon’ble Supreme Court has held that the Government should appoint Member-Legal first and then appoint any other member. Now the Government have appointed only Member-Engineer and hence the Commission is not competent enough to adjudicate matters.
13. With all these irregularities and illegalities, the newly appointed member had joined the Commission on 18.07.2022. Accordingly, the first respondent Commission had started to function by considering that it has effective Coram even without a Member-Legal first appointed which is absolutely illegal and goes against the very letter and spirit of 13/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 the orders of the Honourable Supreme Court. As per Article 141 of the Constitution, the law declared by the Honorable Supreme Court would be law of all Courts and therefore, by completely neglecting law declared by the Honourable Supreme Court, the first respondent Commission without Member-Legal first appointed is functioning.
14. The petitioner further submits that Government has not properly apprised the Selection Committee about the judgment of the Hon’ble Supreme Court and has not properly issued the mandate that the post ought to be filled up from the eligible persons from the field of Finance, Commerce, Economics or Management as the person who is demitting the office Mr.Jerard Kishore is from the field of Finance, Commerce, Economics or Management.
15. The new member had joined on 18.07.2022, the 14/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Commission had immediately listed the cases by releasing the cause list on the late evening of 18.07.2022. On the next date through video conferencing, even without providing the link for Video Conferencing to facilitate the petitioners Counsel and other parties interested to join the proceedings. In spite of request to the Registry of the first respondent Commission, the link was not provided to attend the proceedings held on 19.07.2022. The phone calls of the stakeholders were not responded properly. The absence of Member-Legal which is the most essential for the Commission to function effectively, which is mandatory also, the Commission had conducted the hearing on 19.07.2022 as in camera meeting. The Commission had completely violated its own Conduct of Business Regulation, 2004, wherein it has been stated that proceedings before the Commission shall be open to the public.
16. The petitions filed by TANGEDCO / 15/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 TANTRANSCO / SLDC were entertained without Member- Legal appointed first and accordingly the Commission on 19.07.2022 admitted the petitions and directed the TANGEDCO/TANTRANSCO/SLDC, the three entities to host the Tariff petitions in their websites and also in the website of the Commission as well. Thirty dates time was granted for all the stakeholders for offering comments on the proposal and thereafter reply shall be given to all the stakeholders. Then the TANGEDCO/TANTRANSCO/SLDC shall submit all comments along with reply to the Commission on or before 22.08.2022. An abstract of Tariff petition shall be published in two prominent dailies in English and Tamil having wide circulation and the Tariff petition shall be made available for sale to public at a nominal price. The petitioner Association submits that unless the first respondent is restrained from functioning without Member-Legal, the petitioner Association would be seriously prejudiced. The Commission passed orders in the 16/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 hurried manner without providing any opportunity for prudent check of the accounts of the entities which spread for almost 5 years and providing comments by the stakeholders within 30 days is not sufficient. Hence the present writ petition is filed with the above prayer and the petitioner prayed to allow the writ petition.
17. The first respondent, the Tamil Nadu Electricity Regulatory Commission had filed counter affidavit wherein it is averred that the writ petition is premature as the petitioner Association will be heard during the Tariff fixation process by the first respondent. TANGEDCO due to its financial condition has filed Tariff Petition to revise the tariffs for various category of consumers under sections 61 & 62 of the Electricity Act, 2003 and the Tariff Petition has been admitted on 19.07.2022 by the Commission for consideration. The Writ Petitioner will be heard by the Commission during the hearing of the Tariff 17/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Petition. Moreover, the writ petitioner is part of the State Advisory Committee and will be heard on 11.08.22 and the notice for the same has been issued to the Petitioner. That apart, the Commission will also conduct a public hearing during which the members of the association can appear and make its objections. Thus, the Writ Petitioner will have the opportunity to raise all his objections before the Commission. Secondly, the Tariff revision will take effect only after the passing of the order in the Tariff revision. The Petitioner does not know what will be the order in the Tariff Petition. In any case, it has an effective alternate remedy before the APTEL. Therefore, the writ petition is premature and not maintainable.
18. The writ petition is filed with many reliefs in a single writ petition, but has not impleaded the TANGEDCO, TANTRANSCO and SLDC who are the petitioners in the Tariff petitions. The petition lacks merit since the present tariff 18/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 revision processes is in accordance with law. The writ petition is filed under the guise of challenging the tariff revision process, the petitioner is indirectly attempting to control the process of appointment of members to the first respondent Commission which cannot be permitted. The very same petitioner had filed WP no. 2542 of 2021 with the prayer of Mandamus directing the 1st respondent to release suitable advertisements in the leading Newspapers, about the availability of vacancy in the TNERC for the information and knowledge of the common public and also to issue a revised and modified G.O. by way of specific and clear terms of reference, to make the Selection Committee, to select and sponsor panel of two names, only from the fields of Finance, Commerce, Economics or Management and law, that too not from TANGEDCO or TANTRANSCO and in total compliance of Section 84(1) read with Section 85(5) of the Electricity Act, 2003, for the consideration of posting as Member in the 19/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 TNERC. The Honourable Madurai Bench of Madras High Court was not inclined to entertain the prayer of the petitioner for selection and sponsoring of names only from the field of Finance, Commerce, Economics and Management and ultimately dismissed the petition and opined that the loss of TANGEDCO shall be considered and expressed the need of members from the field of Finance, Commerce, Economics and Management.
19. The Commission further submitted that the 1st respondent Commission is an expert body, having not only expert Members in various fields but also team of experts at the level of Directors and Deputy Directors who are drawn from various fields of expertise. The Tariff Wing is headed by a retired official in the rank of Director (Finance) from TANGEDCO. A holistic view of the entire scheme under which the Commission is carrying out its functions is necessary 20/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 rather than a selective view as held by the petitioner. In fact, by trying to stall the proceedings before the Commission, it is the petitioner Association which is committing contempt by disobeying the directions of this Hon'ble Court passed in W.P.No.2542 of 2021 as the very spirit of the directions of the Hon'ble Court to study the financial loss of TANGEDCO and for further remedial measures is sought to be set at naught by filing the present writ petition. The petitioner has clearly brought out the dire necessity for tariff revision but the prayer for stalling the tariff revision is an absolute case of trespass into the Regulatory jurisdiction of the Commission and to dictate the manner in which such Tariff revision is to be done.
20. The Commission is not hurriedly proceeding with the Tariff determination as alleged by the petitioner. The Commission is strictly following the Regulation 7 of the TNERC - Terms and Conditions for Determination of Tariff) 21/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Regulations, 2005. The time limit for issuance of the Tariff Order is only 120 days from the date of receipt of application. Hence, after admission of the petition filed by the licensee, the time limit of 30 days was granting to the stakeholders for their comments and the petitioner has all the opportunity to place its objections before the Commission. Only after hearing the stakeholders, the Commission is going to pass orders in the Tariff Petition.
21. As far as the averments in paras-9 & 10 of the affidavit, the same is denied as false and incorrect and the said averments are nothing but serious inroad into the Regulatory jurisdiction of the Commission. It was submitted that no strait jacket formula can be laid down for the seriatim of events for the conduct of the Tariff exercise and the attempt of the petitioner to draw a parallel between the previous exercise and the present exercise has to fail for the reason that a 22/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Regulator has been tasked with multifarious functions under the Electricity Act, 2003 and the Commission should be free to decide the time limit in a specific case which warrants extended time limit. Under special circumstances, the tariff revision exercise took place for more than 240 days in the last tariff order vide T.P.No.1 of 2017 dated 11.08.2017 but that cannot be expected to be repeated or replicated on dotted lines in every tariff order. In fact, as per the Electricity Act. 2003, Tariff Petition has to be decided within 120 days under section 64(3) read with Regulation 7(5). The tariff petitions filed by TANGEDCO, TANTRANSCO and SLDC have been hosted in their respective websites and also in the website of the Commission and thirty days time has been given to the stakeholders, which is very much reasonable and sufficient. Since the overall time limit under the Act is only 120 days by which time all the exercises including the Consultation with State Advisory Committee, conducting of public hearing and 23/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 also consideration of the views of the innumerable consumers ought to be done and finalized. As stated above, this petition has been filed pre-maturely with pre-conceived notion that fair opportunity will not be given to the petitioners. The admission of the petition on 19.07.2022 was a formal one with liberty to stakeholders to furnish their comments within 30 days and therefore, by no stretch of imagination can it be termed as an exercise in hurry as no final decision on revision of tariff was taken and only the formalities required in the preliminary stages were complied so as to make the tariff exercise a full- fledged one. That apart, since tariff fixation is a regulatory function, when a tariff petition is presented in accordance with the Act and Regulations. it can never be dismissed in limine. Therefore, there is no requirement of hearing anybody at the time of admission and hence there is question of hearing any other stakeholder at the time of admission of the Tariff petition.
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22. The petitioner has misconstrued the judgement of the Honourable Supreme Court in Civil Appeal No. 14697 of 2015. The petitioner claims the judgment has held that the Commission cannot perform adjudicatory functions without the presence of Member-Legal in quorum and since the Tariff revision is adjudicatory the Commission cannot hear the petition. The respondents submitted that tariff revision is only regulatory function and hence Commission can function without the Member-Legal. The case of Central Electricity Regulatory Commission stands on a different footing as it was at a time when no Legal Member was ever appointed to the CERC despite the judgement of the Hon'ble Supreme Court. But in TNERC after the judgment, Member-Legal was appointed on 02.07.2019 and has demitted office w.e.f. 05.05.2022. The Government has notified the vacancies for the post of one Member (Legal) and one Member vide notification dated 29.04.2022. Therefore, the Government has initiated the 25/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 process for appointment of Member (Legal) and is pending with the Government. As per the Conduct of business regulation the quorum for any matter other than procedural matters is 2 or 3 members. Therefore with 2 members the regulatory function of tariff revision can be entertained. Section 93 of the Electricity Act, 2003 clearly states that no act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Commission. There is nothing on record to suggest even remotely that the Commission has violated the orders of the Hon'ble Supreme Court and it is only the petitioner Association which is violating the orders of the Hon'ble Court in W.P.No.2542 of 2021 by totally neglecting the financial condition of TANGEDCO, has preferred the present petition.
23. The tariff is a balancing act between the interest of 26/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 the public exchequer, the distribution licensee and the consumers. In the present case, the TANGEDCO has stated its dire financial situation. Therefore, the Commission is duty bound to examine the same in accordance with law. The petitioner being an Association of generators, no serious prejudice would be caused to the petitioner if the present exercise is allowed to go on unhindered but on the other hand, serious prejudice would be caused to the licensees i.e., TANGEDCO & TANTRANSCO and also to SLDC if the plea of the petitioner for staying the present exercise is acceded to. The case of the petitioner that whenever vacancy arises, the Member-Legal should be first appointed and only then the other members can be appointed is erroneous. Infact the process of appointment of Member-Legal is underway. The Commission further submitted that as per the order of the Honourable Supreme Court the presence of legal member is mandatory for adjudicatory functions and not to cases such as 27/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 tariff revision which is purely regulatory in nature. On perusal of the functions it would be clear that Tariff revision mostly involves technical expertise.
24. The allegations stated in paragraph 41,42,43 and 44 are denied as false. There is no violation of any orders passed by the High Court or Honourable Supreme Court.
25. The Commission further submitted that initial hearing on 19.07.2022 concerning the tariff revision exercise was only preliminary in nature for the purpose of admitting the petition and placing the same in the public domain. The opportunity to the stakeholders would be available during the public hearing and there is no room for affording opportunity to a single petitioner such as a petitioner herein when the whole exercise is a comprehensive one meant for entire public. There is no requirement to hear the petitioner at the time of 28/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 admission of the tariff petition. The petitioner is not entitled to demand the opportunity of hearing at this stage of the tariff determination exercise. Any privilege shown to the petitioner by affording opportunity in the initial stages would be discriminatory to the public at large and the other stakeholders. All the hearings of the TNERC at the moment is through VC only. Firstly, at the time of the admission of the tariff petition, no hearing is required of any person other than the distribution licensee who files the petition as per the Tariff Regulation. Therefore, the allegation that the proceedings dated 19.07.2022 is in camera proceedings is denied as false. The allotted time of 30 days is more than sufficient for the stakeholders to offer their comments and the time sought for prudence check of the accounts of the licensee by the petitioner is not acceptable as a stakeholder is expected to offer comments of general nature and the prudence check which is exclusively within the jurisdiction of the Commission 29/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 cannot be sought to be done by the petitioner. The said averment has been made in total ignorance of the Electricity Act, 2003 and Regulations made thereunder. Already it was very long time since the last revision took place and hence the present exercise cannot be termed as done in a hurried way since it is long overdue the TANGEDCO is in deep debt and the delay in the revision of tariff has widened the gap between the Average Rate of Realization and Average Cost of Supply which is the reason for the present debt situation which the TANGEDCO finds itself in at present. The present revision would be beneficial to both the generators and the licensee. There is no illegality in tariff determination without legal member. The Commission further submitted that the fact that the petitioner is not against the validity of G.O.(Ms)No.44 and is only against the present tariff revision clearly reveals that the entire challenge in the present writ petition is with a different motive, to keep the tariff determination exercise in 30/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 suspended animation. This is nothing but another tactic to stall the tariff proceedings knowing fully well that the present tariff revision is a must in the present circumstances. The Union Government has requested the State Commissions to undertake revision of tariffs for FY 21-22 at the earliest. There are several letters dated 03. 05. 2021, 28. 05. 2021, 05.07. 2021, 26. 08. 2021, 15. 11. 2021, 03.01. 2022. Thus the revision of tariff is not only for the states interest but in the national interest. The present writ petition is not maintainable since the association has no fundamental rights. The present writ petition has been filed as dilatory tactics must be dismissed with exemplary cost. Hence the Commission prayed to dismiss the writ petition.
26. The second respondent Secretary to the Energy Department has filed a counter affidavit where it is stated that petitioner has challenged the process of determination of Tariff 31/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 on the basis of Tariff Petitions filed by Tamil Nadu Generation and Distribution Corporation Limited, Tamil Nadu Transmission Corporation Limited and State Load Despatch Centre. The Petitioner has challenged primarily on the ground that this exercise can be undertaken only after the appointment of Member (Legal). The Petitioner is indirectly challenging the appointment of a Member though there is no challenge to such appointment in the main prayer in the Writ Petition. Hence, the petitioner cannot press any grounds relating to appointment of Members or the process of appointment without seeking such a main relief in this Writ Petition.
27. The Government has duly considered every aspects, facts and law holding the field, governing the appointment of Members to the first respondent Commission and validly notified appointing one Thiru K.Venkatesan as 32/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Member of the first respondent Commission. The appointment process for appointing another member from legal fraternity is holding the field and it is not the case of the petitioner that due process was not carried by the Government in the matter of appointment of the present Member. Hence, no allegations can be made against his appointment at this stage, that too without a prayer for the same.
28. The Honourable Supreme Court in Civil Appeal No. 14697 of 2015 dated 12.04.2018 has held that for the adjudicatory functions alone the presence of the Member- Legal in the bench is necessary. As far as the reliance placed on the orders of the Hon'ble Supreme Court in Contempt Petitions relating to the affairs of the Central Electricity Regulatory Commission (CERC), that the facts and circumstances that were prevailing then in the CERC and present situation in the Tamil Nadu Electricity Regulatory 33/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Commission (TNERC) are distinct and different. The said judgment was delivered on 12.04.2018 but due to certain circumstances peculiar and stand alone to the CERC at the relevant time including that for more than two years beyond 12.04.2018, a Member-legal was not selected and appointed but other vacancies were filled up in the interregnum. Whereas in the case of Tamil Nadu, the Member-Legal was available even till the date of 05.05.2022 but the vacancy from the field other than legal fraternity was available from 18.03.2022, i.e., much earlier to the vacancy of the Member from legal fraternity. Hence, the petitioner is estopped from rely on certain orders passed in a Contempt Petition which was dealt with peculiar circumstances in CERC alone. Based on the order passed in Civil Appeal No.14697 of 2015 the Tamil Nadu government has selected and appointed has Thiru K.Venkatasamy, a retired District Judge, as Member (Legal) on 02.07.2019. This was not the case in respect of appointments 34/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 made in the CERC at the relevant time.
29. The Government have followed the required process in the matter of appointments to the vacancies arose recently in the TNERC. Hence, the allegations including that the Selection Committee was not apprised properly is bald. It is also submitted that in any case that from which field a Member of the State Commission is to be appointed is not the subject matter of challenge in this Writ Petition and also that the appointment of a Member from the legal fraternity is also under consideration. It is further submitted that the present case is also entirely premature since the Petitioner association can raise all its objections during the hearing of the Tariff Petition. It is not the case of the petitioner that the first respondent Commission has statutorily violated the substantive provisions in its Conduct of Business Regulations. Hence, there is no merit in the Writ Petition. Hence the second 35/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 respondent prayed to dismiss the petition.
30.The petitioner in W.P.(MD)No. 16677 of 2022 has filed a rejoinder rate rating the affidavit filed in the Writ petition and also submitted written arguments on behalf of the writ petitioners.
31. The learned Single Judge has elaborately discussed about the issue whether the function of tariff fixation is adjudicatory or regulatory. After considering the rival submissions the learned Single Judge has held that the concept of judicial and non-judicial is not stipulated in section 82 of the Act. The Honourable Supreme Court has held that there must be a Member-Legal in Commission by inferring from the Statutory Scheme. In the decision it has been held that the law member must be on the bench of the Commission, when it hears matters involving adjudication. That cannot be 36/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 further stretched to mean that even in matters involving quasi judicial function also there must be a law member and has rejected the contention of the petitioners that the tariff revision is an adjudicatory function. Since the tariff fixation is not adjudicatory function, there is no bar for the bench comprising the present chairman and the technical member to hear the tariff petitions. But the learned Single Judge further held that the Honourable Supreme Court extremely strict in enforcing the aforesaid direction stated in paragraph 125. 2. wherein it is mandatory that there should be a person of law as member in the Commission. Therefore, the learned Single Judge for this reason has held as under.
“9.In view of the above, I have to necessarily reject the contention of the petitioners that tariff fixation is an adjudicatory function. Since it is not an adjudicatory function, there is no bar for the Bench comprising the present Chairman and the technical Member to hear the tariff petitions.
10.But the above conclusion cannot result in dismissal of the writ petitions. The Hon'ble Supreme Court in State of Gujarat and ors v. Utility Users Welfare Association (2018) 6 SCC 21 had categorically held as follows: 37/60
https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 "125.2.It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge."
The Hon'ble Supreme Court had been extremely strict in enforcing the aforesaid direction as seen, for instance, from the order dated 28.08.2020 in Contempt Petition (C) No.429 of 2020.
11.Article 141 of the Constitution of India states that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Article 144 states that that all authorities, civil and judicial, shall act in aid of the Supreme Court. In other words, it is the duty of the High Court to ensure that the directions of the Hon'ble Supreme Court are complied with in letter and spirit. The Hon'ble Supreme Court expressed its anguish on more than one occasion when the law Member vacancy was not filled up at all. When it has been declared that it is mandatory that there should be a law Member in the Commission, the State Government has no justification in not filling up the same. The technical Member resigned on 17.03.2022. The law Member retired on 05.05.2022. Nothing stopped the Government from filling up both the vacancies simultaneously. It is true that a judgment should not be interpreted like a statute. But when the Hon'ble Supreme Court has made it clear that there must be a Member with legal background in the Commission, it cannot be ignored. It is for this reason, I restrain TNERC from passing final order on the aforementioned tariff petitions till a law Member is appointed. In other words, the present proceedings can very well go on and everything can be finalized by the Commission as now constituted except 38/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 the formal declaration of the orders on the tariff petitions. The moment the appointment of the law Member is notified, the Commission is free to formally dispose of the Tariff Petitions. The restraint order of this Court would operate till then and not a moment thereafter.
12. These writ petitions are disposed of on these terms. Since the petitioners had approached this Court without offering their suggestions or objections before the Commission, the petitioners are given a week's time from today to place their objections/suggestions before the Commission. No costs. Connected miscellaneous petitions are closed.”
32. The Tamil Nadu Electricity Regulatory Commission and the State Government are aggrieved by that portion of the restrain order wherein it is stated that without appointing Member-Legal, the final orders cannot be passed in the tariff petition. Once the appointment of legal member is notified, the Commission has to formally dispose the tariff petitions. However, the petitioner Association is aggrieved by that portion of the order wherein the learned Single Judge has held that the hearing of the tariff petitions are only a Regulatory 39/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 function and not Adjudicatory function. Hence both the writ petitioners and the respondents have filed writ appeals.
33. Heard Mr.P.Wilson, learned Senior Counsel appearing for the appellant in W.A.(MD)Nos.973, 975 to 979 of 2022, for second respondent in W.A.(MD)Nos.973, 976, 977 and 979 of 2022, for first and second respondent in W.A. (MD)No.980 of 2022, Mr.Sricharan Rengarajan, learned Counsel for appellant in W.A.(MD)No.980 of 2022 and learned Counsel for first respondent in W.A(MD)Nos.973 of 2022, 976, 977 and 979 of 2022, Mr.Isaac Mohanlal, learned Senior Counsel for first respondent in W.A.(MD)Nos.975 and 978 of 2022.
34. The learned Additional Advocate General appearing for TNERC and the State Government had submitted that preliminary objections were raised before the 40/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 learned Single Judge and the same was not considered. The preliminary objection is that the writ petition is not maintainable since the writ petitioners have not impleaded TANGEDCO, TANTRANSCO and State Load Dispatch Centre (SLDC) who are the necessary parties. The TANGEDCO had filed the T.P. No. 1 / 2022, the TANTRANSCO had filed T.P. No. 2 / 2022 and SLDC had filed T.P. No. 1 of 2020 before the Commission, but the writ petition is filed by averring TNERC as 1st respondent and the State Government as 2nd respondent. However, the learned Senior Counsels appearing for the Association and the individual companies had submitted that the three entities are not necessary parties, since in the present writ petition the challenge is that the Commission has no power to hear the Tariff Petition without the Member-Legal. Infact the writ petitioners are accepting that the three entities have statutory obligation to file the Tariff petitions and they are not aggrieved by the filing of the tariff petitions. And 41/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 further submitted that the three entities are not necessary parties but they may be proper party. The necessary parties are those persons in whose absence no order can be passed by the court or those persons against whom there is a right to some relief in respect of the controversy involved in the proceedings. The proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the lis although no relief in the lis was claimed against such person. Hence the question of non- joinder of three entities does not lead to non-joinder of necessary parties, but only lead to non-joinder of proper parties, which will not affect the maintainability of the writ petition. After considering the rival submissions a question arises who would be affected if the writ petitions are allowed by holding that the tariff petitions cannot be heard without Member Legal?. Obviously if the writ petitions are allowed 42/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 then the three entities who had filed the tariff petitions before the Commission would be affected and prejudiced, since their petitions cannot be heard by the Commission unless the Member-Legal was appointed. They cannot file any writ appeal directly and ought to file a grant leave petition. Therefore, this Court is of the considered opinion that the three entities would be affected directly if the writ petitions are allowed. The writ petition order had been passed behind the back of TANGEDCO, TANTRANSCO and SLDC. Hence the writ petition is liable to be dismissed for non-joinder of proper parties.
35. The next issue that was raised by the writ petitioners are that the 1st respondent had hurriedly passed the order dated 19.07.2022. While hearing the petition an in-camera proceedings was conducted and the Video Conferencing link was not furnished inspite of the repeated requests through phones to the Registry of the Commission. However, the 43/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 respondents deny the averments and submitted that the TANGEDCO, TANTRANSCO and SLDC had filed a Tariff petition and on 19.07.2022 the petition was only admitted. While admitting a petition it is not necessary to hear the writ petitioners. After admitting the Tariff petitions, the writ petitioners and other stakeholders would be heard. The petitioner Association is one of the members in the State Advisory Board and it views would be heard on 11.08.2022. Therefore, the writ petitioners have filed the present writ petition to stall the selection process of the member. This Court is of the considered opinion that on 19.07.2022 the Commission had admitted the Tariff petition and further the Tariff petition would be considered after granting opportunities to all stakeholders and in accordance to law. Hence this Court is of the considered opinion that the apprehension of the petitioners are unwarranted and as rightly pointed out by the 1st respondent, for admitting any petition 44/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 before TNERC, it is between TNERC and the petitioners and the Association cannot have any right to object admission of any petition for hearing.
36. The next issue that was raised by the writ petitioners is that the learned Single Judge had erred in holding that the proceedings of the Commission to hear the Tariff Petitions is only Regulatory and not Adjudicatory. The learned Counsels appearing for the writ petitioners submitted that an issue was raised before the Commission to fix the Tariff for “Advocate Office” in S.M.P. No. 2 of 2012 and the Commission has held that the issue would be considered when the next Tariff orders are passed. Likewise the learned Counsels relied on the petition filed in R.A. No. 4 of 2019 to claim to fix low tariff for hospitals established in rural and semi urban areas and the Commission has directed TANGEDCO to bring the petitioner’s hospitals established in the rural areas in a separate category 45/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 in the next Tariff petition with details of number of such hospitals, the expected consumption of units of electricity per annum and other details so as to take a decision on the petitioner’s claim on merits. Likewise a petition in M.P. No. 4 of 2021 is filed claiming to create a separate category for the consumers who is having MSME units but no manufacturing activity is carried out and the Commission has directed TANGEDO to identify the need for specifically excluding any other activity along with necessary justification in the next Tariff petition and also directed to include the item in their Tariff petition so as to get the view of the stakeholders and to decide the issue. Likewise the Residential Welfare Associations sought clarification in M.P. No. 12 of 2021 to clarify applicability of tariff for water treatment plants, sewage treatment plants and fire hydrant pumping systems in residential apartments for the use of residents alone and the commission has directed to TANGEDCO to include the issue in 46/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 the next tariff petition for consideration. On considering the submission of the writ petitioners and on perusal of these petitions it is clear that the Commission would consider the justification to exclude or include the consumers in any one of the category or create a separate category. This would be considered based on the number of consumers along with the financial implications on TANGEDCO. While considering one of the petitions the Commission has specifically directed TANGEDCO to furnish “the details of number of such hospitals, the expected consumption of units of electricity per annum and the financial implications”, which would clearly indicate the Commission is assessing overall financial implications while granting such category. In another case the Commission has directed to submit the details for justification to place the consumer in a separate category. On perusal of these proceedings, this Court is of the considered view that the Commission is sitting as a “Regulatory” authority and not 47/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 as an “Adjudicating” forum while considering the Tariff Petitions.
37. The aforesaid issue was already considered by the Hon’ble Supreme Court in Civil Appeal No. 14697 of 2015 and it has been held that section 86 (1) (f) alone has adjudicatory function and other provisions are only regulatory function and the relevant portion is extracted hereunder:
“81. We may also look to the nature and functions performed by the State Commission. Functions of the State Commission are prescribed under section 86 of the said Act. The enumerated functions are determination of tariff, regulation of electricity purchase and procurement process of distribution licencees, facilitating intra-state transmission, issuing licences to persons, promoting cogeneration and generation of electricity from renewable sources, levy fee, specify or enforce standards, fix trading margins. All these functions are regulatory in character rather than adjudicatory. The real adjudicatory function is only provided in sub-clause (f) whereupon the Commission has the option of adjudicating the disputes between the licencees and generating companies, or to refer such disputes to arbitration. There is also an advisory role to be performed by the State Commission as specified in sub-section (2). The issue, however, is not whether a 48/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Judge would be comfortable doing this function but whether these are types of functions which necessarily mandate a Judge to be a Chairperson. The answer to this would also be in the negative, supporting the view we have adopted on the plain reading of the section.”
38. This Court has perused the earlier Tariff orders and it is seen that the Commission has taken various factors like the Operation and Maintenance expenses, Capital expenditure, interest on loan and other finance charges, non-tariff income, own generation & power purchase, Transmission losses, average cost of supply, cross subsidy, incentives, rebates, aggregate revenue requirement, revenue at existing tariff etc. for determining Tariff. This would amply indicate that the Commission is taking the income, expenses and deficit of TANGEDCO and then arriving at the need to increase the Tariff, which is definitely not an Adjudicatory function. The learned Single Judge has also rightly held that the Tariff order is only regulatory in nature. Therefore, this Court is of the considered opinion that whenever the Commission is hearing 49/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Tariff Petitions it is exercising its Regulatory function and not Adjudicatory function.
39. However the learned Single Judge has held that the Hon’ble Supreme Court has held that there must be a Member-Legal and hence TNERC is restrained from passing orders till a Member-Legal is appointed. The learned Judge further held that the present proceedings can go on and everything can be finalized by the Commission except the formal declaration of the orders on the tariff petitions and the moment the appointment of Member-Legal is notified the Commission is free to formally dispose of the Tariff petitions. When the learned Judge has held that entire proceedings can go on without a Member-Legal, then it is clear that the Member-Legal is not going to participate in the deliberations for determining the Tariff. In such circumstances, such restrain order from passing final orders is not warranted. 50/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Therefore, this Court is setting aside that portion of the order alone.
40. The next contention of the learned Counsels appearing for the writ petitioners are that the Hon’ble Supreme Court has held that the Member-Legal is absolutely necessary in the Commission and therefore the Commission ought to be restrained from hearing the Tariff petitions. However, the learned Additional Advocate General had submitted that in the same judgment the Hon’ble Supreme Court has held that in any adjudicatory function the Member- Legal is mandatory. The relevant portion of the judgment is extracted hereunder:
“125.2. It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District 51/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Judge.
125.3. That in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench.” The learned AAG submitted that the paragraph 125.2 states that the Commission should have the legal member in the composition of members. It would mean and indicate the composition of members only. This Court perused the previous members who were holding the post and the following tabulations would indicate the persons holding the post as Chairman and members:
List of Chairpersons appointed for the Commission under section 82(5) of the Electricity Act, 2003.
S. NAME Date of Date of
No joining Demitting
. Office
A. Balraj, Chairman 17/06/2002 06/07/2006
S.Kabilan, Chairman 03/01/2007 02/01/2012
S. Akshayakumar, 09/06/2014 08/06/2019
Chairman
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List of members appointed for the Commission under section 82(5) of the Electricity Act, 2003 S. Name Designation Date of Date of No joining demitting office E.C.Arunachalam Member 01/07/1999 15/12/2002 D.S. Janumantha Member 22/09/1999 05/06/2001 Rao R. Secretary 01/10/1999 Balasubramanian S. Member 17/06/2002 02/04/2007 Thangarathnam B.Jayaraman Member 30/06/2004 29/06/2009 R.Rajupandi Member 21/06/2007 04/05/2010 Member 23/09/2009 K.Venugopal 15/07/2013 Member 21/09/2010 S. Nagalsamy 20/09/2015 Member 09/01/2014 G.Rajagopal 09/01/2019 T.Prabhakara Member 20/02/2016 24/12/2020 Rao Thiru Member-
02/07/2019 05/05/2022
K.Venkatasamy Legal
Member 12/01/2022
R Jarard Kishore 17/03/2022
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On perusal of the above tabulation it would clearly indicate that the Member-Legal was never ever appointed from 2002 to 2019. It is after the Hon’ble Supreme Court’s judgment the Member-Legal was appointed in the year 2019. It is in this context and background the para 125.2 came to be passed by the Hon’ble Supreme Court. This para 125.2 would clearly indicate that the Commission should have the composition of legal member also. Hence the plea of the writ petitioners that Member-Legal is mandatory for all proceedings in Commission including hearing Tariff Revision petition as per paragraph 125.2 is erroneous. If the plea of the writ petitioners is accepted then the paragraph 125.3 would become redundant.
This proposition can further be clarified on perusing the contempt proceedings which was initiated for not appointing the Member-Legal in the Central Electricity Commission. The judgment in Civil Appeal No. 14697 of 2015 was passed on 12.04.2018 and in the Central Regulatory Commission 54/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 Member-Legal was not appointed until 2020 and hence contempt proceedings were initiated, finally the Member-Legal was appointed on 16.12.2020. But in the case of State Regulatory Commission the judgment was obeyed by appointing the Member-Legal in State Regulatory Commission on 02.07.2019 itself. Hence it would be clear that the Hon’ble Supreme Court has held that the Member-Legal is mandatory in the composition of members in the Commission. Therefore, this Court is of the considered opinion that as per paragraph 125.2 of the judgment stated supra would indicate that the Commission should have the composition of Member-Legal and as per paragraph 125.3 the Member-Legal is mandatory only for adjudication alone.
41. For the above discussions and reasons stated above the following orders are passed:
55/60
https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 a. The writ petitions are not maintainable for non-
joinder of necessary and proper parties.
b. As per the judgment of Hon’ble Supreme Court in Civil Appeal No. 14697 of 2015 as stated in para 125.2 the composition of Tamil Nadu State Electricity Regulatory Commission should consist of Member-Legal also.
c. As per the judgment of Hon’ble Supreme Court in Civil Appeal No. 14697 of 2015 as stated in para 125.3 only for Adjudicatory function stated in Section 86(1)(f) the Member-
Legal is mandatory.
d. The Tariff fixation petitions and orders of Tamil Nadu State Electricity Regulatory Commission is only Regulatory function and not Adjudicatory function.
e. Hence for Tariff Revision Petition Member-Legal is 56/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 not mandatory and hence the restrain order passed by the learned Single Judge is set aside.
f. The Tamil Nadu State Electricity Regulatory Commission shall pass final orders in the Tariff petitions filed by TANGEDCO, TANTRANSCO and SLDC without the Member-Legal.
42. The writ appeal filed in W.A.(MD) No. 980 of 2022 is dismissed. The writ appeals filed in W.A.(MD) No. 973 of 2022, W.A.(MD) No. 975 of 2022, W.A.(MD) No. 976 of 2022, W.A.(MD) No. 977 of 2022, W.A.(MD) No. 978 of 2022 and W.A. (MD) No. 979 of 2022 are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
43. Before parting with the judgment this Court noticed that the Tariff petitions ought to be filed by the TANGEDCO, TANTRANSCO and SLDC every year before TNERC and the statute prescribes to file it every year. If not 57/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 filed then the TNERC has suo moto power to initiate proceedings for Tariff revision. But the three entities had not filed Tariff revision for the past eight years and TNERC has not initiated suo moto proceedings for Tariff revision. Infact the Appellate Tribunal for Electricity (APTEL) has issued direction to all State Commissions in O.P. No.1 of 2011 vide order dated 11.11.2011 to see to it that the Electricity Transmission and Distribution companies adhere to the time schedule, if not the State Commission shall take suo moto tariff revision. Therefore, this Court is directing the TNERC to adhere to the direction of the APTEL scrupulously without fail. The Government is directed to appoint legal member within a period of three months from the date of receipt of a copy this judgment.
[S.S.S.R., J.] [S.S.Y., J.] 28.09.2022 Index: Yes / No Tmg 58/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 To The Additional Chief Secretary to Government, Energy Department, Fort St.George, Chennai – 600 009.
.
59/60 https://www.mhc.tn.gov.in/judis W.A.(MD)Nos.973, 975 to 980 of 2022 S.S.SUNDAR, J.
and S.SRIMATHY, J.
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