IMPORTANT POINT
Demand notices must provide clear computations and adhere to applicable tariff orders to be valid.

ORDER :

(Anita Sumanth, J.) :

(Prayer : Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the 2nd respondent relating to their Impugned Notice No.SE/TEDC/TIN/DFC/AO/Wind/As/F-Wind/D.No.1137/2022 dated 17.10.2022, quashing the same and directing the respondents, in respect of supply of energy by the petitioner after 01.04.2018, to adopt only the rates stipulated in the proceedings of the 1st respondent dated 25.10.2018, under para 2(c) in respect of the Windmills Commissioned by the petitioner during the periods 19.09.2008 to 31.07.2012 and under para 2(d) in respect of the Windmills Commissioned by the petitioner during the periods 01.08.2012 to 31.03.2016.)

The petitioner is a generating company as defined under Section 2 (28) of the Electricity Act, 2003 (in short 'Act'). It is aggrieved by an order passed by the 2nd respondent, the Superintending Engineer, Tirunelveli Distribution Circle, Tamil Nadu Generation and Distribution Corporation Ltd. (TANGEDCO)(R2) and seeks a quash of the same.

2. Inter alia, the petitioner also prays for a direction to the respondents to adopt only rates stipulated by R1, being the Managing Director, TANGEDCO under proceedings dated 25.10.2018, specifically para 2(c), in respect of the windmills commissioned by it during the period 01.08.2012 to 31.03.2016.

3. This matter has some history. Between the years 2005 to 2015, the petitioner had commissioned several windmills in Tirunelveli, Theni and Dindigul for generation of electricity and entered into 67 Power Purchase Agreements (PPA) with TANGEDCO for purchase of the power generated by the windmills.

4. The petitioner was in receipt of notice dated 19.05.2020 demanding a sum of Rs.4,44,25,933/- (rounded off to Rs.4.44 Crores (approx.)). However, according to the petitioner, it was TANGEDCO that, in fact, owed a sum of Rs.80 Crores to it. The dispute in computation, as aforesaid, arises on account of the understanding and interpretation of the parties of 'Average Pooled costs of Power Purchase'. Notice dated 19.05.2020 related to the period 2018 - 2019 and confined itself to the demand from the electricity generated at Tirunelveli alone.

5. A Claim Petition thus came to be filed by the petitioner on 07.12.2020 before the Tamil Nadu Electricity Regulatory Commission (TNERC) in DRP.No.23 of 2020, claiming a sum of Rs.80,96,12,127.69/- (rounded off to Rs.80.96 Crores (approx.)) from TANGEDCO. The Claim Petition was decided by the TNERC on 06.07.2021 upholding the demand to the extent of Rs.4.44 Crores and directing the respondent to settle the balance of the claim within 30 days from 06.07.2021. In doing so, the TNERC proceeded on the basis that the petitioner had acquiesced to the demand of Rs.4.44 Crores.

6. The petitioner filed an appeal as against the above order in Appeal No.155 of 2022 before the Appellate Tribunal for Electricity (APTEL), and pending this Writ Petition that appeal has been decided on 15.02.2024. The APTEL finds that a perusal of the record did not support the conclusion of the TNERC that the petitioner had admitted liability for the amount of Rs.4.44 Crores. The APTEL was also of the opinion that no detailed calculations had been given as to how the respondent had quantified the demand.

7. The order of the APTEL also took note of the position that a Review Petition had been filed by petitioner on 19.01.2022 and a direction issued in that Petition by TNERC to the respondents to furnish the computation as to how the amount of Rs.4.44 Crores (approx.) had been arrived at. In fine, the order of the Commission was set-aside and the matter remanded with a direction to the TNERC to re-do the same de novo, after detailed hearing.

8. On 27.06.2024, the TNERC took the matter up yet again in R.A.No.2 of 2024 crystallizing the issue to be resolved as follows 1. ...... the issue lies in a narrow compass as to whether the disputed amount of Rs.4,44