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2012 Supreme(Mad) 2081
High Court of Judicature at Madras
R. SUDHAKAR, J
Brakes India Limited, Foundry Division
Versus
Tamil Nadu Generation & Dist Corporation Limited (TANGEDCO),
represented by its Chairman & Managing Director & Other
Writ Petition Nos. 7897 to 7901, 8157 to 8160, 8406 to 8409, 8424 to 8428, 8569 t 8575 to 8584, 8762 to 8764, 8774, 8775, 8793 to 8800, 8947 to 8949, 9109 to 9111, 9119 t 9135, 9136, 9310 to 9313, 9317, 9456, 9564, 9565, 9606, 9607, 10350, 10351, 10431, 10636 to 10766, 10767, 10896 to 10898, 10930, 11038, 11103, 11104, 11302, 11442, 11508, 1 11529, 11539, 11708, 11748 to 11751, 11756, 12132, 12148 & 12302 of 2012 M.P. No. 1 of W.P. Nos. 8406 to 8409 & 12302 of
Decided on : 26-04-2012
For the Petitioners:N.L. Raja, Advocate.
For the Respo Navaneethakrishnan, Advocate General,
assisted by G. Vasudevan, Advocate.
The main legal point established in the judgment is the requirement for compliance with regulations and the need for appropriate orders from the regulatory commission for specific conditions imposed under the Electricity Act.
Headnote:
Electricity Act - Open Access - Section 2(47), Section 42 - The court discussed the provisions of open access under Section 2(47) and the duties of the Distribution Licensee under Section 42 of the Electricity Act, 2003. The court emphasized the requirement for the Distribution Licensee to develop and maintain an efficient distribution system and supply electricity in accordance with the Act. The court also highlighted the power of the State Commission to introduce open access subject to specified conditions, including surcharges and cross subsidies. The court emphasized the need for compliance with regulations and the role of the State Commission in determining charges for wheeling and reducing surcharges and cross subsidies. The court also discussed the installation of ABT compliant meters and the requirement for appropriate orders from the Tamil Nadu Electricity Regulatory Commission.
Fact of the Case:
The writ petitions were filed by companies seeking to quash a memo issued by the Chief Engineer imposing conditions for drawing electricity under open access system. The petitioners objected to the imposition of conditions without appropriate orders from the Tamil Nadu Electricity Regulatory Commission.
Finding of the Court:
The court found that the Distribution Licensee had the power to impose conditions under Regulation 38 of the Tamil Nadu Electricity Distribution Code. However, the court emphasized the need for compliance with regulations and the requirement for appropriate orders from the Tamil Nadu Electricity Regulatory Commission for the installation of ABT compliant meters.
Issues: The main issue was the imposition of conditions for drawing electricity under open access system without appropriate orders from the Tamil Nadu Electricity Regulatory Commission.
Ratio Decidendi: The court held that the Distribution Licensee had the power to impose conditions but emphasized the need for compliance with regulations and the requirement for appropriate orders from the Tamil Nadu Electricity Regulatory Commission for specific conditions.
Final Decision: The court directed the Distribution Licensee to approach the State Commission for appropriate orders regarding the installation of ABT Meters and to proceed as per the directions issued by the Commission. The court also emphasized the need for the Commission to ensure compliance with natural justice principles and to decide the issue expeditiously.
Act Referred
1. This Writ Petition No.7897 of 2012 is filed praying to issue a Writ of Certiorari, calling records of the second respondent's impugned Memo.No.CE/Comml./EE/R&C/AEE/F.R&C/D 1/12 dated 12.03.2012 culminating in the third respondent's Lr.No.SEV/DFC/RCS/AS/A1/F.R& dated 17.03.2012, quash the same.
2. The prayer sought for in all the writ petitions are identical. Hence, by consent, all the writ p are taken up together for final disposal.
3. Thiruvalargal AR.L.Sundaresan, learned senior counsel for R.S.Pandiyaraj, Krishna Srin M/s. Ramasubramaniam and Associates, N.L.Raja, V.Ramakrishnan, N.Mahendran, D.Ravic C.S.Krishnamoorthy, Satish Parasaran, Gupta, S.Sivanandam, K.Seshadri, P.Elang Ms.P.T.Asha for M/s.Sarvabhauman Associates, appears for the pet Mr.A.Navaneethakrishnan, learned Advocate General appears for the respondents.
4. The batch of writ petitions have been filed by petitioners companies who are consumers Tension Electricity. They also buy power through third party source, like, windmill generato through the Open Access facility provided by the respondents. The open access system as under Section 2(47) of the Electricity Act, 2003 reads as follows:-
“(47) Open access means the non- discriminatory provision for the use of transmission distribution system or associated facilities with such lines or system by any licensee or consum person engaged in generation in accordance with the regulations specified by the App Commission;”
The first respondent is the Distribution Licensee. Section 42 specifies the duties of Dist Licensee with regard to open access as follows:-
“42. (Duties of distribution Licensee and open access):-
(1) It shall be the duty of a distribution licensee to develop and maintain an efficient, co-ordina economical distribution system in his area of supply and to supply electricity in accordance w provisions contained in this Act.
(2) The State Commission shall introduce open access in such phases and subject t conditions, (including the cross subsidies, and other operational constraints) as may be s within one year of the appointed date by it and in specifying the extent of open access in suc phases and in determining the charges for wheeling, it shall have due regard to all relevant including such cross subsidies, and other operational constraints:”
Provided that such open access shall be allowed on payment of a surcharge in addition charges for wheeling as may be determined by the State Commission:
Provided further that such surcharge shall be utilised to meet the requirements of current cross subsidy within the area of supply of the distribution licensee :
Provided also that such surcharge and cross subsidies shall be progressively reduced in the as may be specified by the State Commission:
Provided also that such surcharge shall not be leviable in case open access is provided to a who has established a captive generating plant for carrying the electricity to the destination of use:
Provided also that the State Commission shall, not later than five years from the commencement of the Electricity (Amendment) Act, 2003, by regulations, provide such open to all consumers who require a supply of electricity where the maximum power to be made a at any time exceeds one megawatt.”
Clause (1) of Section 42 sets out the duties of the Distribution Licensee to develop and main efficient, co-ordinated and economical electricity distribution system in the area of supply supply electricity in accordance with the provisions of the Act. Clause (2) of Section 42 enab Commission to introduce open access in a phased manner and subject to conditions as specified. The provision of open access by the proceeding of the Regulatory Commission i dispute.
5. In the present cases, the Chief Engineer in exercise of his power under the Tamil Nadu El Distribution Code and by invoking Regulation 38 has issued certain directions to the HT Con consuming electricity under open access system stating that they will be p
