Terra Engery Limited v. Tamil Nadu Electricity Regulatory

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.03.2023

CORAM

THE HONOURABLE MR.JUSTICE M.DHANDAPANI And W.M.P.Nos.13296, 13297, 13299 to13304, 14296 to 14299 of 2019 1.Terra Energy Limited 2.Terra Energy Represented by Mr.Ramakrishnan Sadasivan (Resolution Professional) (P2 suo motu impleaded vide order dt.04.04.2022 made in WPs.13170 and 13174/2019 by ASMJ) ... Petitioners in W.Ps.13170 & 13174/2019 1.Shree Ambika Sugars Limited 2.Shree Ambika Sugars Represented by the IRP Anurag Goel (Resolution Professional) (P2 suo motu impleaded vide order dt.04.04.2022 made in Wps.13172 and 13173/2019 by ASMJ) ... Petitioners in W.P.13172 & 13173/2019 Vs.

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1.Tamil Nadu Electricity Regulatory Commission, No.19-A, Rukmini Lakshmipathy Salai, Egmore, Chennai.

2.Tamil Nadu Generation and Distribution Corporation Ltd., Represented by the Chairman, 144, Anna Salai, Chennai - 600 002.

... Respondents in all the W.Ps.

Common Prayer:

Petitions filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the first respondent Commission comprised in its order dated 22.02.2019 in D.R.P.Nos.24, 27, 26 and 25 of 2011 respectively and quash the same as illegal and contrary to the provisions of the Electricity Act, 2003 as also the judgment of the Hon'ble Supreme Court and consequently direct the first respondent Commission to take up the matter in D.R.P.Nos.24, 27, 26 and 25 of 2011 respectively and hear the same after appointment of a Judicial Member and dispose of the same on merits.

For Petitioners : Mr.Rahul Balaji For Respondents : Mr.L.Jaivenkatesh 2/6

C O M M O N O R D E R The petitioners have filed these writ petitions seeking issuance of Writ of Certiorarified Mandamus calling for the records of the first respondent comprised in its order dated 22.02.2019 in D.R.P.Nos.24, 27, 26 and 25 of 2011 respectively and to quash the same as illegal and contrary to the provisions of the Electricity Act, 2003 as also the judgment of the Hon'ble Supreme Court and to consequently direct the first respondent to take up D.R.P.Nos.24, 27, 26 and 25 of 2011 respectively and to hear the same after appointment of a Judicial Member and to dispose of the same on merits.

2.Since the issue involved in all these writ petitions are one and the same, they are heard together and disposed of by way of a common order.

3.The case of the petitioners is that the petitioners are Sugar Cogenerators and since the payment made by the second respondent for the actual supply of surplus power to the second respondent are not in accordance with the terms of the Power Purchase Agreement, the petitioners preferred claim petitions before the first respondent in 3/6

D.R.P.Nos.24, 27, 26 and 25 of 2011 respectively and the same were disposed of in the absence of a Judicial Member. Hence, these writ petitions.

4.The learned counsel appearing for the petitioners submitted that the petitioners filed Dispute Resolution Petitions under Regulation 16(1) of the Tamil Nadu Electricity Regulatory Commission (Conduct of Business) Regulations, 2004 before the first respondent seeking direct the respondents therein to make payment in terms of Clause 7 of the Power Purchase Agreement dated 18.08.2004 together with interest for the delayed payments. The said petitions were disposed of by the Technical Member in the absence Judicial Member which is contrary to the decision of the Hon'ble Supreme Court reported in (2018) 6 SCC 21 [State of Gujarat and others Vs. Utility Users' Welfare Association]. Hence, on this sole ground this Court may set aside the impugned order and remand the matter back to the first respondent since now they have legal member.

5.The learned counsel appearing for the second respondent did not dispute the facts submitted by the learned counsel appearing for the petitioners.

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6.The short issue that arise for consideration is whether the Technical Member have power to adjudicate the dispute inbetween the parties in the Dispute Resolution Petition. The issue is no longer res integra. It has already been settled by the the Hon'ble Supreme Court in its decision reported in (2018) 6 SCC 21 [State of Gujarat and others Vs. Utility Users' Welfare Association], the relevant portion of which reads as follows:

"125.3.That in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench."

7.In view of the above, the impugned order dated 22.02.2019 passed in D.R.P.Nos.24, 27, 26 and 25 of 2011 respectively, is set aside and the matter is remanded back to the first respondent for fresh adjudication. The first respondent is directed to adjudicate the issue inbetween the parties in D.R.P.Nos.24, 27, 26 and 25 of 2011 respectively, and pass appropriate orders, within a period of five months from the date of receipt of a copy of this order. 5/6

M.DHANDAPANI,J.

pri 8.These writ petitions are accordingly disposed of. No costs. Consequently, the connected miscellaneous petitions are closed. 17.03.2023 pri Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No To 1.Tamil Nadu Electricity Regulatory Commission, No.19-A, Rukmini Lakshmipathy Salai, Egmore, Chennai.

2.Tamil Nadu Generation and Distribution Corporation Ltd., Represented by the Chairman, 144, Anna Salai, Chennai - 600 002.

W.P.Nos.13170, 13172, 13173 and 13174 of 2019 And W.M.P.Nos.13296, 13297, 13299 to13304, 14296 to 14299 of 2019 6/6