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2012 Supreme(Mad) 3854
High Court of Judicature at Madras
M. JAICHANDREN
Tamilnadu Generation and Distribution Corporation Limited, Represented by its Chairman and Managing Director, Chennai
Versus
Central Electricity Regulatory Commission, Represented by its Secretary, New Delhi & Others
Writ Petition Nos.8509 & 8510 of 2012 & M.P.Nos.1 &d 1 of 2012
Decided On : 14-09-2012
For the Petitioner:A. Navaneethakrishnan, Advocate General, G. Vasudevan, Guru Krishnakumar, Additional Advocate General (SC), Advocates.
For the Respondents:Sriram Panchu, Senior Advocate, for R1, T. Mohan, R2, R4, Jayesh B. Dolia, R5, M.R. Murugesan, Advocates.
Subordinate legislation is subject to judicial review on wider grounds, as compared to that of a primary enactment. Presumption of the constitutional validity of a subordinate legislation cannot be on the same footing as that of an enactment.
Headnote:
The impugned amendments to the Central Electricity Regulatory Commission (Unscheduled Interchange Charges and Related Matters) Regulations, 2009, and the Central Electricity Regulatory Commission (Indian Electricity Grid Code) Regulations, 2010, narrowing down the grid frequency, from the existing bandwidth, would result in the enhancement of power cuts, from 10 hours to 14 hours. It would also seriously affect the economy of the State. Both public and private establishments would suffer due to such measures.
Fact of the Case:
The petitioner, Tamilnadu Generation and Distribution Company Limited, challenged the recent amendments to the existing Central Electricity Regulatory Commission (Unscheduled Interchange Charges and Related Matters) Regulations, 2009, and the Central Electricity Regulatory Commission (Indian Electricity Grid Code) Regulations, 2010, stating that they are, ex facie, arbitrary and that they suffer from the vice of unreasonableness, as they have been made without taking note of the relevant factors and the applicable principles like the doctrine of proportionality.
Finding of the Court:
The court found that the impugned amendments were not arbitrary, unreasonable, or ultra vires the Constitution of India. The court held that the Central Electricity Regulatory Commission had followed all the necessary procedures prescribed by the Electricity Act, 2003, and that the amendments were introduced with a view to bring about grid discipline amongst the users of electricity. The court also held that the petitioner had not been able to show that the impugned regulations were unconstitutional or invalid in the eye of law.
Issues: 1. Whether the impugned amendments to the Central Electricity Regulatory Commission (Unscheduled Interchange Charges and Related Matters) Regulations, 2009, and the Central Electricity Regulatory Commission (Indian Electricity Grid Code) Regulations, 2010, are arbitrary, unreasonable, and ultra vires the Constitution of India? 2. Whether the Central Electricity Regulatory Commission followed all the necessary procedures prescribed by the Electricity Act, 2003, before introducing the impugned amendments?
Ratio Decidendi: The court held that the impugned amendments were not arbitrary, unreasonable, or ultra vires the Constitution of India. The court held that the Central Electricity Regulatory Commission had followed all the necessary procedures prescribed by the Electricity Act, 2003, and that the amendments were introduced with a view to bring about grid discipline amongst the users of electricity. The court also held that the petitioner had not been able to show that the impugned regulations were unconstitutional or invalid in the eye of law.
Final Decision: The writ petitions filed by the petitioner were dismissed.
1. Since the issues involved in both the writ petitions are similar in nature, they have been taken up together and common order is being passed.
2. Heard the learned counsels appearing for the petitioner, as well as the learned counsels appearing on behalf of the respondents.
3. The writ petition, in W.P.No.8509 of 2012, has been filed praying that this court may be pleased to issue a Writ of Declaration, declaring the Central Electricity Regulatory Commission (Unscheduled Interchange Charges and Related Matters) (Second Amendment) Regulations, 2012, contained in Notification No.L-1(1)/2011-CERC, dated 5.3.2012, as arbitrary, unreasonable and ultra vires the Constitution of India.
4. The writ petition, in W.P.No.8510 of 2012, has been filed praying that this court may be pleased to issue a Writ of Declaration, declaring the Central Electricity Regulatory Commission (Indian Electricity Grid Code) (First Amendment) Regulations, 2012, contained in Notification No.1/18/2010-CERC, dated 5.3.2012, as arbitrary, unreasonable and ultra vires the Constitution of India.
5. The learned counsels appearing on behalf of the petitioner had submitted that the petitioner in the above writ petitions is the Tamilnadu Generation and Distribution Company Limited, which is a Government of Tamilnadu enterprise. The primary functions of the petitioner corporation are the generation and distribution of electricity, within the State of Tamilnadu.
6. The petitioner has filed the above writ petitions challenging the recent amendments to the existing Central Electricity Regulatory Commission (Unscheduled Interchange Charges and Related Matters) Regulations, 2009, hereinafter referred to as the `UI Regulations' and the Central Electricity Regulatory Commission (Indian Electricity Grid Code) Regulations, 2010, hereinafter referred to as the `Grid Code Regulations', stating that they are, ex facie, arbitrary and that they suffer from the vice of unreasonableness, as they have been made without taking note of the relevant factors and the applicable principles like the doctrine of proportionality. The Central Electricity Regulatory Commission, hereinafter referred to as `CERC’, has narrowed down the grid frequency from the existing bandwidth, resulting in enhancement of power cuts, from 10 hours to 14 hours, without taking into consideration the relevant factors.
7. It has been further stated that the CERC, in exercise of the powers conferred, under Section 178, read with Section 79(1)(C) of the Electricity Act, 2003, had issued the Central Electricity Regulatory Commission (Unscheduled Interchange Charges and Related Matters) (Second Amendment) Regulations, 2012, hereinafter referred to as the `Impugned Second Amendment', by which certain amendments are sought to be brought into effect, from 2.4.2012.
8. It has been further stated that the impugned amendments, inter alia, suffer from the vice of arbitrariness and unreasonableness. By the impugned amendments the CERC has narrowed down the operating frequency of electricity supply (Grid Frequency) by 0.2 Hz i.e. from 49.50-50.20 Hz to 49.70-50.20 Hz in the Grid Code, as well as in the Unscheduled Interchange Charges and related matters. The impugned amendments in the Grid Code and in the UI Regulations, relating to the frequency bandwidth, are only aimed at promoting the sale of power by the Power Traders and Exchanges. The inefficient management of the power situation, by the Regulators, would result in higher rates being paid for the electricity purchased from private generators, at the cost of the end users of power.
9. It has been further stated that India is geographically divided into five grids, namely, Northern, Eastern, Western, North Eastern and Southern. All the States and the Union Territories in India fall within the five grids. The first four grids are synchronized with each other (NEW Grid) and the power can flow across these regions, seamlessly, as per the relative load and gen
