Madras High Court
Sanjeevi Rsd Energy Farm vs The Chairman on 12 August, 2022
Author: R.Subramanian
Bench: R.Subramanian
W.P.No.20789 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Writ Petition No.20789 of 2017
and WMP Nos.21632 to 21634 of 2017
Sanjeevi RSD Energy Farm,
Wind Farm Nos.212 & 213,
Rep. By its Managing Partner,
372/548, Trichy Main Road,
Gugai, Salem – 636 006. .. 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 Chief Financial Controller,
Tamil Nadu Generation and Distribution,
Corporation Limited,
144, Anna Salai, Chennai 600 002.
4. The Superintending Engineer,
Erode Electricity Distribution Circle,
Erode.
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https://www.mhc.tn.gov.in/judis
W.P.No.20789 of 2017
5. The Tamilnadu Electricity Regulatory Commission,
Rep. By its Secretary,
No.19A, Rukmini Lakshmipathi Salai,
Egmore, Chennai 600 008.
6.M/s.MGB Spinners India Private Limited,
(HT SC No.350), M.G.B.Gardens,
Kanagapuram Post, Vellode (Via),
Erode – 638 112. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of Writ of Certiorarified Mandamus calling for the records
of the third respondent bearing Lr.No.CFC/FC/REV/AAO /HT/D.419/2014
dated 11.07.2014 and all proceedings consequent or pursuant thereto,
including the impugned order bearing
Lr.No.A/Cs.Br/AAO/HT/A5/F.HTSC.350/R.16/2017 dated 24.02.2017
issued by the 4th respondent to the 6th respondent and quash the same as
being arbitrary, illegal and without authority of law and contrary to the
provisions of the Electricity Act, 2003 and consequently direct the
respondents to make payment of the banked units of 252898 units in terms
of the applicable Tariff Orders together with interest for the delayed
payments.
For Petitioner : Mr.Rahul Balaji
For Respondents : Ms.V.Revathy for
Mr.M.Abulkalam, Standing Counsel
for R1 to R5
R6 – Served -No Appearance
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W.P.No.20789 of 2017
ORDER
Challenge in this writ petition is to the demand of the TANGEDCO made on the assumption that the petitioner has lost its captive status due to non-compliance with the conditions viz., non-usage of 51% of the aggregate electricity generated in such plant for captive use.
2. The petitioner who is a wind energy generator is also engaged in production of textiles. According to the petitioner, because of the cotton price fluctuation and the international market conditions the manufacturing activity was severely affected during the relevant period.
3. Be that as it may, the issue as to whether the petitioner should use 51% of the power for its own purpose and whether the TANGEDCO would be entitled to withdraw the captive status and make demand on the petitioner to pay for the electricity consumption as well as the cross subsidy surcharge and treat the generated units banked with the TANGEDCO as lapsed.
4. This question was considered by the Tamil Nadu Electricity 3/8 https://www.mhc.tn.gov.in/judis W.P.No.20789 of 2017 Regulatory Commission (TNERC) in DRP.No.1 of 2016 and the TNERC in its order dated 03.08.2021 concluded as follows:-
“6.9 At this juncture, it would be relevant to refer the Clause 10 of the Energy Wheeling Agreement executed between the parties:~ “10. Agreement Period:
a. This agreement shall come into force from the date of execution and shall remain in full force for a period of twenty (20) years.
b. In case of any breach or violation of any of the clauses in this agreement, by any party, the other party shall be at liberty to terminate this agreement after giving three months notice.
c. It is agreed that the change of utilisation of wind energy, from captive consumption to sale may be done after giving three months notice by the Wind Energy Generator to the Board and after executing energy purchase agreement on the terms applicable as per Order Nos.2 and 3 dated 15.05.2006.?” Though the petitioner in HT SC.1797 M/s.R.K.K.R. Steels is the 100% user of the power generated from WF.HT.SC.D.112, the disconnection and Account closure of the user end HT.SC.1797 was not immediately informed to first respondent by the second respondent. This might be one of the reasons that, the 4/8 https://www.mhc.tn.gov.in/judis W.P.No.20789 of 2017 first respondent has not issued any notice to terminate the Energy Wheeling Agreement. In the absence of any such notice from the respondents towards -termination of EWA-, the Energy Wheeling Agreement cannot be considered as void. 6.10. The petitioner has executed the EWA based on the Commission-s T.O.No.3 of 2006 dated 15.05.2006, hence the provisions of banking referred in that order is applicable to the petitioner-s case as below:~ “ 10.4 Banking xxx xxx xxx The Commission fixes the banking charges as 5% for WEG.
The Licensee shall pay at a rate of 75% of normal purchase rate for the unutilised portion of energy banked by the NCES based wind electric generators......? “ The same has been well inserted into the Energy Wheeling Agreement of the petitioner as below ~ “ 5. Banking:
a. The Wind Energy Generator shall bank the energy generated in the Wind Mill and the Banking period shall be one year from April to March.
b. The unutilised portion of banked energy if any shall be purchased by the Licensee at the rate of 75% of the normal purchase rate.
c. The Banking shall be done slot wise to enable 5/8 https://www.mhc.tn.gov.in/judis W.P.No.20789 of 2017 unit~to~unit adjustment.“ It is evident from the Wind Energy Statement issued by the first respondent during the period from 04/2014 to 07/2015 that the entire energy generated by the petitioner was accepted by the first respondent into its grid. In this circumstance, the unutilised portion of power generated becomes eligible for payment under para 10.4 of the T.O.No.3 of 2006 and clause 5(b) of the Energy Wheeling Agreement.”
5. In view of the above opinion expressed by the TNERC, the TANGEDCO demand is opposed to the finding of the Commission and hence the demand will have to be set aside. The writ petition is therefore allowed. The demand made is set aside and the TANGEDCO is directed to re-calculate the value of the un-utilised and banked units and make payment to the petitioner. Such exercise shall be carried out within a period of 4 months from the date of receipt of a copy of the order. No costs. Consequently, the connected writ miscellaneous petitions are closed.
12.08.2022 jv Index:No 6/8 https://www.mhc.tn.gov.in/judis W.P.No.20789 of 2017 Internet:Yes Speaking order 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 Chief Financial Controller, Tamil Nadu Generation and Distribution, Corporation Limited, 7th Floor, 144, Anna Salai, Chennai 600 002.
4. The Superintending Engineer, Erode Electricity Distribution Circle, Erode.
5. The Secretary, Tamilnadu Electricity Regulatory Commission, No.19A, Rukmini Lakshmipathi Salai, Egmore, Chennai 600 008.7/8
https://www.mhc.tn.gov.in/judis W.P.No.20789 of 2017 R.SUBRAMANIAN, J.
jv W.P.No.20789 of 2017 and WMP Nos.21632 to 21634 of 2017 12.08.2022 8/8 https://www.mhc.tn.gov.in/judis