Sri Venkateswara Cotton Yarn v. State Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 30.07.2019 Coram:

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Writ Petition Nos.11133 to 11139 of 2018 and W.M.P.Nos.13040 to 13048, 13050 to 13061/2018 19444 to 19450 of 2018, 35766, 35784, 35789, 35795, 35803, 35807 and 35808 of 2018 W.P.No.11133 of 2018:

Sri Venkateswara Cotton Yarn Mills Salem Pvt.Ltd., Chinnagoundapuram, Represented by its Authorized Signatory Mr.M.Balakrishnan, Ramalingampuram, Salem-636 106.

.. Petitioner in WP.11133/2018 1 TAMILNADU SPINNING MILLS ASS O.(REGN.NO.330/1997) 2 KARUR ROAD MODERN NAGAR DINDIGUL-624 001 REP.BY ITS CHIEF ADVISOR DR.K.VENKATACHALAM. .. PETITIONER in WP No.11134 of 2018 1 ESWAR RUBBER PRODUCTS PVT LTD REP BY R.SENTHILKUMAR SURYA TOWERS 12 MARAVANERI 2ND CROSS SALEM- 636 007 ... PETITIONER in WP No.11135 of 2018 1 PERUMAL SPINNING MILLS PVT L TD REP BY R.RANGASAMY CUDDALORE MAIN ROAD SESHANCHAVADI- 636111 SALEM DISTRICT ... PETITIONER in WP No.11136 of 2018 1 THANGAVEL FABRICS PVT LTD REP BY T.VIJAYARAGHAVAN S.F. NO.278/3 POOLAKKATTUR AGRAHARAM POST PALLIPALAYAM ERODE- 638008 ... PETITIONER in WP No.11137 of 2018

1 ALAND SPINNERS PVT.LTD.

REP. BY MR.N.JAGADEESAN S.F.NO.191/1-B KARATTANGKADU THOTTAM MAKKIRIPALAYAM SOWTHAPURAM POST VEPPADAI-638 008 NAMAKKAL DISTRICT ... PETITIONER in WP No.11138 of 2018 1 BALAJI RUBBER INDUSTRIES PVT LTD. REP BY R.SENTHIL KUMAR SURYA TOWERS NO.12 MARAVENERI 2ND CROSS SALEM-636 007.

... PETITIONER in WP No.11139 of 2018 versus/ 1.State of Tamil Nadu Represented by its Secretary, Department of Energy, Fort St.George, Chennai 600 009.

2.Tamil Nadu Generation and Distribution Corporation Ltd., Rep.by its Chairman and Managing Director, 144, Anna Salai, Chennai 600 002.

3.Tamil Nadu Transmission Corporation Ltd.(TANTRANSCO), Represented by its Chairman, 144, Anna Salai, Chennai 600 002.

4.State Load Despatch Centre (SLDC), Represented by its Director-Operations, 144, Anna Salai, Chennai 600 002.

5.Tamil Nadu Electricity Regulatory Commission, Through its Secretary, No.19A, Rukmini Lakshmipathy Salai, Egmore, Chennai 600 008.

.. Respondents in WP.11133/2018 1 THE STATE OF TAMIL NADU REPRESENTED THROUGH THE PRINCIPAL SECRETARY ENERGY DEPARTMENT FORT ST. GEORGE CHENNAI- 600 009.

2 TAMIL NADU GENERAION AND DISTRIBUTION CORPORATION LIMITED (TANGEDCO) 10TH FLOOR 144 ANNA SALAI CHENNAI-600 002 REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR.

3 STATE LOAD DESPATCH CENTER (SLDC) 144 ANNA SALAI CHENNAI-600 002 REP. BY ITS DIRECTOR-OPERATIONS.

4 TAMILNADU ELECTRICITY REGULATORY COMMISSION EGMORE CHENNAI-600 008 REP. BY ITS SECRETARY ... RESPONDENT in WP No.11134 of 2019 1 STATE OF TAMIL NADU REP BY THE PRINCIPAL SECRETARY TO GOVERNMENT ENERGY DEPARTMENT SECRETARIAT FORT ST.

GEORGE CHENNAI-09 2 TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LTD REP BY ITS CHAIRMAN NPKRR MAALIGAI 144 ANNA SALAI CHENNAI-02 3 TAMIL NADU ELECTRICITY REGULATORY COMMISSION NO.19A RUKMINI LAKSHMIPATHY SALAI EGMORE CHENNAI-08 REP BY ITS SECRETARY ... RESPONDENT in WP No.11135 of 2018 1 STATE OF TAMIL NADU REP BY THE PRINCIPAL SECRETARY TO GOVERNMENT ENERGY DEPARTMENT SECRETARIAT FORT ST.

GEORGE CHENNAI-09 2 TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LTD REP BY ITS CHAIRMAN NPKRR MAALIGAI 144 ANNA SALAI CHENNAI-02 3 TAMIL NADU ELECTRICITY REGULATORY COMMISSION NO.19A RUKMINI LAKSHMIPATHY SALAI EGMORE CHENNAI-08 REP BY ITS SECRETARY ... RESPONDENT in WP No.11136 of 2018

1 STATE OF TAMIL NADU REP BY THE PRINCIPAL SECRETARY TO GOVERNMENT ENERGY DEPARTMENT SECRETARIAT FORT ST.

GEORGE CHENNAI-09 2 TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LTD REP BY ITS CHAIRMAN NPKRR MAALIGAI 144 ANNA SALAI CHENNAI-02 3 TAMIL NADU ELECTRICITY REGULATORY COMMISSION NO.19A RUKMINI LAKSHMIPATHY SALAI EGMORE CHENNAI-08 REP BY ITS SECRETARY ... RESPONDENT in WP No.11137 of 2018 1 STATE OF TAMIL NADU REP BY THE PRINCIPAL SECRETARY TO GOVERNMENT ENERGY DEPARTMENT SECRETARIAT FORT ST.

GEORGE CHENNAI-09 2 TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LTD REP BY ITS CHAIRMAN NPKRR MAALIGAI 144 ANNA SALAI CHENNAI-02 3 TAMIL NADU ELECTRICITY REGULATORY COMMISSION NO.19A RUKMINI LAKSHMIPATHY SALAI (MARSHALLS ROAD) EGMORE CHENNAI-08 REP BY ITS SECRETARY... RESPONDENT in WP No.11138 of 2018 1 STATE OF TAMIL NADU REP BY THE PRINCIPAL SECRETARY TO GOVERNMENT ENERGY DEPARTMENT SECRETARIAT FORT ST.

GEORGE CHENNAI-09 2 TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LTD REP BY ITS CHAIRMAN NPKRR MAALIGAI 144 ANNA SALAI CHENNAI-02 3 TAMIL NADU ELECTRICITY REGULATORY COMMISSION NO.19A RUKMINI LAKSHMIPATHY SALAI (MARSHALLS ROAD) EGMORE CHENNAI-08 REP BY ITS SECRETARY ... RESPONDENT in WP No.11139 of 2018

Prayer in W.P.No.11133 of 2018:

Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records comprised in the impugned G.O.(Ms)No.37, Energy (D1) dated 17.04.2018 passed by the first respondent and quash the same as being unconstitutional and ultra vires the powers under Section 108 of the Electricity Act, 2003 in as much as it is without jurisdiction and ultra vires the Electricity Act, 2003 and consequently direct 1st to 5th respondents to act strictly in terms of the Electricity Act, 2003. WP No.11134 of 2018:Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to Calling for the records of the 1st respondent relating to the issuance of the impugned GO (Ms) No.37 dated 17.04.

2018 of Energy (D1) Department and the Appended Notification and quash the same being ultra vires of the Electricity Act 2003 and consequently direct the respondents to permit the members of the petitioner Association to avail open access power from all their captive WEGs and also to permit open access power for the requirements of the members of the petitioner association for less than 1MW capacity / requirement WP No.11135 of 2018 calling for the records comprised in the impugned G.O.Ms. No.37, Energy (D1) dated 17.04.

2018 passed by the First Respondent and set aside the same as being unconstitutional and ultra vires the powers under section 108 of the Electricity Act, 2003 in so far as it restricts the right of open access to only such EHT and HT consumers who require supply of electricity of in excess of one megawatt and consequently direct First to Third Respondents to act strictly in terms of the Electricity Act, 2003 WP No.11136 of 2018 calling for the records comprised in the impugned G.O.Ms. No.37, Energy (D1) dated 17.04.

WP No.11137 of 2018 calling for the records comprised in the impugned G.O.Ms. No.37, Energy (D1) dated 17.04.2018 passed by the First Respondent and quash the same as being unconstitutional and ultra vires the powers under section 108 of the Electricity Act, 2003 in so far as it restricts the right of open access to only such EHT and HT consumers who require supply of electricity of in excess of one megawatt and consequently direct First to Third Respondents to act strictly in terms of the Electricity Act, 2003 WP No.11138 of 2018 Calling for the records comprised in the impugned G.O.Ms. No.37, Energy (D1) dated 17.04.

2018 passed by the First Respondent and quash the same as being unconstitutional and ultra vires the powers under section 108 of the Electricity Act, 2003 in so far as it restricts the right of open access to only such EHT and HT consumers who require supply of electricity of in excess of one megawatt and consequently direct First to Third Respondents to act strictly in terms of the Electricity Act, 2003 WP No.11139 of 2018 Calling for the records comprised in the impugned G.O.Ms. No.37, Energy (D1) dated 17.04.

2018 passed by the First Respondent and quash the same as being unconstitutional and ultra vires the powers under section 108 of the Electricity Act, 2003 in so far as it restricts the right of open access to only such EHT and HT consumers who require supply of electricity of in excess of one megawatt and consequently direct First to Third Respondents to act strictly in terms of the Electricity Act, 2003 For Petitioner :Mr.Rahul Balaji in W.P.No.11133/2018 Mr.AR.L.Sundaresan, Sr.C for Mr.R.S.Pandiyaraj in W.P.No.11134 of 2018 Mr.N.L.Rajah, Sr.C for Mr.Vinod Kumar in W.P.Nos.11135 to 11139 of 2018 For Respondents:Mr.N.Inbanathan, AGP for R1 in W.P.Nos.

Mr.P.H.Arvind Pandian, AAG Asst.by Mr.S.K.Rameshwar, st.c for R2 to R4 in W.P.No.11133/2018 Mr.P.H.Arvind Pandian, AAG Asst.by Mr.S.K.Rameshwar, st.c for R2 & R3 in W.P.No.11134/2018 Mr.P.H.Arvind Pandian, AAG Asst.by Mr.S.K.Rameshwar, st.c for R2 in W.P.Nos.11135/2018, 11136/2018, 11137/2018 and 11139/2018 Mr.T.Mohan for R3 in W.P.Nos.11135 to 11139 of 2018 ---- COMMON ORDER The petitioners are the beneficiaries of the Regulation 9(6) of the Tamil Nadu Electricity Regulatory Commission(Grid Connectivity and Inter-State Open Access) Regulations, 2014, which has given permission to them to avail open access facility, inspite of the fact that their power generation is less than 1 MW. By virtue of G.O.(Ms)No.37, Energy(D1) dated 17.04.

Provided that (such open access shall be allowed on payment of a surcharge) in

additional to the 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 level of 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 manner 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 person who has established a captive generating plant for carrying the electricity to the destination of his own use:

(Provided also that the State Commission shall, not later than five years from the date of commencement of the Electricity (Amendment) Act, 2003 (57 of 2003) by regulations, provide such open access to all consumers who require a supply of electricity where the maximum power to be made available at any time exceeds one megawatt)."

2. Writ petitions are filed expressing apprehension that they being generators of power less than 1 MW will be deprived of the open access facility, if the impugned G.O. is put to force. This Court ordered status quo while admitting the writ petitions.

3. In the counter, the State Government while justifying the reasons for issuing G.O.(Ms)No.37, Energy(D1) dated 17.04.2018, would state that when the State was suffering from shortage of energy, to encourage more generation of power, they extended the benefit of open access facility to the generators with less than 1MW capacity and now, having a better improvement in the power generation, they want to withdraw the said permission. In exercise of the power under Section 108 of the Electricity Act, 2003, the Regulation 9(6) of the Tamil Nadu Electricity Regulatory Commission (Grid Connectivity and InterState Open Access) Regulations, 2014 is sought to be amended, which will be in line with proviso (5) of Sub-Section (2) of Section 42 of the Electricity Act,2003.

4. A common counter is filed by the Tamil Nadu Electricity Regulatory Commission. In this counter, it is stated that the policy decision expressed by the State through G.O.Ms.No.37 is under consideration by the Commission. These writ petitions are filed pre-maturely, without ascertaining

whether the Commission has accepted the policy or not. The Commission has to satisfy itself in the first instance whether the policy decision is within the statutory provisions of Act and it will be accepted only after following the procedure established under the statute. In view of the status quo ordered by this Court on 27.04.2018, the Regulatory Commission is unable to proceed. If the said status quo ordered by this Court on 27.04.2018 is vacated, the Commission will go ahead with the process of pursuing the policy decision expressed by the Government in G.O.(Ms)No.37, Energy(D1) dated 17.04.2018, and decide whether the Regulation 9(6) of the Tamil Nadu Electricity Regulatory Commission (Grid Connectivity and Inter-State Open Access) Regulation, 2014 should be amended or not.

5. As far as the G.O.Ms.No.37 issued by the Government, the learned Additional Advocate General would submit that it is a policy decision of the State and under Section 108 of the Tamil Nadu Electricity Act, 2003, the State has a prerogative to take a policy decision and it will prevail upon the State Electricity Regulatory Commission.

Further, the learned Additional Advocate General would submit that the policy decision of the Government is in tune with proviso (5) of SubSection(2) of Section 42 of the Tamil Nadu Electricity Act, 2003, and the petitioners cannot have any grievance over that.

6. However, the learned Senior Counsel appearing for the petitioners would submit that even if it is the policy decision, it must have the approval of the Regulatory Commission and the Regulation should be properly amended. Without amendment to the Regulation, the State cannot withdraw the permission extended under the Regulation.

7. In the said circumstances, these writ petitions are disposed of with a direction to the Regulatory Commission that it shall take up the policy decision of the Government expressed in G.O.(Ms)No.37, Energy(D1) dated 17.04.2018 for consideration forthwith and complete the proceedings, within a period of 10 weeks from the date of receipt of a copy of this order. No costs. Consequently connected Miscellaneous Petitions are closed.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar ari

To:

1.The Secretary, Department of Energy, Fort St.George, Chennai 600 009.

2.The Chairman and Managing Director, Tamil Nadu Generation and Distribution Corporation Ltd., 144, Anna Salai, Chennai 600 002.

3.The Chairman Tamil Nadu Transmission Corporation Ltd.(TANTRANSCO), 144, Anna Salai, Chennai 600 002.

4.The Director-Operations State Load Despatch Centre (SLDC), 144, Anna Salai, Chennai 600 002.

5.The Secretary Tamil Nadu Electricity Regulatory Commission, No.19A, Rukmini Lakshmipathy Salai, Egmore, Chennai 600 008.

+1 cc to Mr.R.Parthasarathy Rahul Balaji Advocatesr65185 +1 cc to Mr.R.S.Pandiyaraj Advocate sr65274 +2 ccs to Mr.S.K.Rameeshwar Advocate sr65509 +5 ccs to Mr.T.Mohan Advocate 64901 +1 cc to M/s.Government Pleader cc65509 +1 cc to Mr.Vinod Kumar Advocate sr 65738 Writ Petition Nos.11133 to 11139 of 2018 and W.M.P.Nos.13040 to 13048, 13050 to 13061, 19444 to 19450 of 2018, 35766, 35784, 35789 35795, 35803, 35807 and 35808 of 2018 bs(co) aa06/09/2019