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Judgment
M. Venugopal, J.—The Petitioner has focussed the instant Writ of Certiorari praying for an issuance of an order by this Court in calling for
the records of the Third Respondent in his impugned bill dated 29.02.2012 in so far as it relates to levy of energy charges under Serial No. 1 for
Rs. 5,75,256/- without adjusting 1,43,814 units of Normal hour energy available to the credit of the Petitioner in the Night hours consumption is an
illegal, arbitrary and without the authority of law and also against Clause 8.7.3 and Clause 8.11.2 of Comprehensive Tariff Order on Wind Energy
Order No. 1 of 2009 dated 20.03.2009 issued by the First Respondent and to quash the same. The Factual Matrix of the Writ Petition:--
The Petitioner/Industry is involved in the manufacture of castings and allied products having High Tension Electricity Supply in H.T.Sc. No. 89
under the jurisdiction of the Third Respondent. For the purpose of their own captive use, they have installed wind mills at different places in
Tirunelveli District coming under Tirunelveli Electricity Distribution Circle of the Respondent Board in WEG HT SC No. 477, 475, 1079, 1682.
As a matter of fact, the Petitioner is permitted to get adjustment of their wind energy generation in their manufacturing unit at Namakkal in HT SC
No. 89 coming under the Third Respondent.
The case of the Petitioner is that its wind mill is generating powers through out the day namely, during normal hour, peak hour and off peak hour
(night hour) in three slots categorized by the Respondent TNEB for the purpose of adjustment. The quantum of energy units generated would be
varying depending upon the availability of wind in each slot. The Second and Third Respondents/Board are permitting adjustment of wind energy
slot-wise and if there is any surplus, such surplus energy is also kept under banking with the Respondent Board for future adjustments. According
to Clause 8.7.3 of the Comprehensive Tariff Order on Wind Energy-Order No. 1 of 2009 dated 20.03.2009 issued by the First
Respondent/Tamil Nadu Electricity Regulatory Commission, while giving adjustment slot-wise, it is also permitted to give adjustment of the higher
slot generation against the lower slot consumption. The operative portion of the Tamil Nadu Electricity Regulatory Commission''s order is extracted
as under:
8.7.3-Energy Charges:
When the Generator is synchronized with the Grid, the captive/third party consumer shall be liable to pay to the distribution licensee for the net
energy consumed during the billing month at the applicable rate. The net energy consumption shall be slot-wise, i.e., peak generation shall be
adjusted against peak consumption, normal generation shall be adjusted against normal consumption. Off peak generation shall be adjusted against
off peak consumption. Peak and normal generation may be adjusted against lower slot consumption.
8) That is to say, peak hour generation can be adjusted in normal hour, peak hour and normal hour generation may be given adjustment in off-peak
hour consumption (night hour, i.e., in lower slot) in which case, the Respondent TNEB is not put into any loss for giving such adjustment in the next
lower slot. The details are given below:
Peak hour tariff rate: Rs. 4.80 per unit
Normal hour tariff rate: Rs. 4.00 per unit
Off-peak hour (night hour): Rs. 3.80 per unit.
In view of the above, wherever surplus units are available in any slot, adjustment is permitted in the next lower slot i.e., surplus peak hour
generation (Rs. 4.80 per unit) is permitted for adjustment against normal hour consumption (Rs. 4.00 per unit), surplus peak and normal hour
consumption are permitted adjustment against off-peak hour consumption (night hour) (Rs. 3.80 per unit).
The relevant portion of Clause 8.11.2 under the caption ""Billing and Payment"" runs as under:
If a wind energy generator utilizes the power for captive use or if he sells it to a third party, the distribution licensee shall raise the bill at the end of
the month for the net energy supplied. The licensee should record the generation and consumption simultaneously. While preparing the bill, peak
hour generation shall be adjusted against peak hour consumption. Off peak generation shall be adjusted against off peak consumption. Normal
generation shall be adjusted against normal consumption. Peak hour generation and normal hour generation can be adjusted against lower slot
consumption....
Therefore, it is the stand of the Petitioner that the Petitioner is entitled for adjustment of their surplus energy from a higher slot to a lower slot.
According to the Petitioner, the order of the First Respondent is made in Wind Energy Tariff Order No. 1 of 2009 dated 20.03.2009 to
adjustment of higher slot to lower slot vide paragraphs 8.7.3 and 8.11.2 is automatic and non-compliance of the above order amounts to
disobedience by the Third Respondent of the order passed by the First Respondent.
It comes to be known that the Tariff Order No. 1 dated 20.03.2009 was appealed before the Appellate Tribunal for Electricity, however, the
subject matter of appeal before the Appellate Tribunal was on some other issues and not related to the aspect of giving adjustment of higher slot to
lower slot. More especially, no appeal is filed against paragraphs 8.7.3 and 8.11.2 of the Wind Energy Tariff Order No. 1 of 2009 dated
20.03.2009 and as such, there is no justification on the part of the Third Respondent/Superintending Engineer, Tamil Nadu Electricity Board,
Namakkal Electricity Distribution Circle, Namakkal to refuse to provide adjustment as per the above order which is automatic even without any
formal request from the WEG captive consumers.
When that be the factual situation, the Appellate Tribunal for Electricity, New Delhi was pleased to dismiss the Appeal No. 98 of 2010 filed by
the Respondent/Tamil Nadu Electricity Board on 18.03.2011 and therefore, the Petitioner is entitled for adjustment of higher slot to lower slot
wherever it is available. In fact, the Petitioner was surprised and shocked to receive the impugned bill dated 29.01.2012 for consumption in
respect of the month of January 2012, raising energy consumption charges for the night hours to the tune of 28,983 units for the value of Rs.
1,15,932/- without providing adjustment of their surplus wind energy available to their credit during peak hour etc. The specific plea of the
Petitioner is that it approached the Third Respondent/Superintending Engineer, Tamil Nadu Electricity Board, Namakkal Electricity Distribution
Circle, Namakkal through their letter dated 01.02.2012 (which was duly acknowledged) and made a request in person to revise the bill after giving
adjustment of their wind energy available to their credit in peak hours and normal hour against lowest slot consumption. However, the Third
Respondent/Superintending Engineer, Tamil Nadu Electricity Board, Namakkal Electricity Distribution Circle, Namakkal has neither replied nor
considered its request. Inasmuch as there was threat of disconnection if the amount is not paid on the due date, the Petitioner had paid the above
amount to avoid disconnection under protest. However, the Petitioner is entitled for refund of the amount.
Apart from the above, it is the stand of the Petitioner that it is having surplus wind energy for the Month of February 2012 which runs as under:
Units Available Normal Hours Peak Hours Off Peak Hour (Night
Hours)
Opening Balance under 13,96,556 4,43,807 Nil
Banking as on
01.02.2012
ADD: Generation during 1,75,800 68420 59310
February, 2012
Total energy available for 15,72,356 5,12,227 59310
adjustment as on
27.02.2012
LESS: Consumption 2,43,980 78920 2,00,300
during February, 2012
LESS: 5% Wheeling 12199 3946 2824
Balance available for 13,16,177 4,29,361 1,43,814(-)
future adjustment (Closing
Balance as on
29.02.2012)
As such, the Petitioner is having surplus units in normal hour generation to the tune of 13,16,177 units and peak hour generation to the tune of
4,29,261 units though they have a shortage of 1,43,814 units in off peak hour (night hour). Since the Petitioner is having surplus units in peak hour
and normal hour which are the higher slots of off peak hour (night hour) consumption, they are eligible for adjustment of shortfall of 1,43,814 units
in off peak hour consumption against the surplus generation in normal hour and peak hour generation.
The Petitioner is having a total of 17,45,538 units (13,16,177 normal hour surplus units + 4,29,361 peak hour surplus units). However, the
Third Respondent/Superintending Engineer, Tamil Nadu Electricity Board, Namakkal Electricity Distribution Circle, Namakkal without complying
with the order of the First Respondent has raised bills for the shortfall in off peak hour consumption as if there are no adjustment in the slots.
Inspite of repeated request made by the Petitioner, the Third Respondent/Superintending Engineer, Tamil Nadu Electricity Board, Namakkal
Electricity Distribution Circle, Namakkal has raised the bill dated 29.01.2012 for the consumption month of February 2012 to the tune of
1,43,814 units for the value of Rs. 5,75,256/- under Serial No. 1 of the bill, thereby refused to give adjustment of 1,43,814 units available to the
credit of the Petitioner during peak hour generation and equated deemed demand of 195.25 KVA as entitled for adjustment to the Petitioner.
The Petitioner''s contentions:
According to the Petitioner, the impugned bill dated 29.02.2012 issued by the Third Respondent/Superintending Engineer, Tamil Nadu Electricity
Board, Namakkal Electricity Distribution Circle, Namakkal in so far as it pertains to levy of energy charges under Serial No. 1 for Rs. 5,75,256/-
without adjusting 1,43,614 units of normal hour energy available to the credit of the Petitioner in the Night hours consumption that is from higher
slot to lower slot is illegal and further, it is also against Clause 8.7.3 and Clause 8.11.2 of Comprehensive Tariff Order on Wind Energy Order No.
1 of 2009 dated 20.03.2009 issued by the First Respondent/Tamil Nadu Electricity Regulatory Commission, Chennai.
The Learned counsel for the Petitioner urges before this Court in terms of Clause 8.7.3 and 8.11.2 of the Comprehensive Tariff Order on
Wind Energy-Order No. 1 of 2009 dated 20.03.2009 issued by the First Respondent/Tamil Nadu Electricity Regulatory Commission, the same
permits adjustment of higher tariff wind energy against lower tariff consumption.
The Learned counsel for the Petitioner forcibly submits that the Third Respondent/Superintending Engineer, Tamil Nadu Electricity Board,
Namakkal Electricity Distribution Circle, Namakkal failed to consider that the Appeal No. 98 of 2010 was dismissed by the Appellate Tribunal for
Electricity, New Delhi on 18.03.2011. As such, the Third Respondent/Superintending Engineer, Tamil Nadu Electricity Board, Namakkal
Electricity Distribution Circle, Namakkal cannot refuse to provide adjustment as requested by the Petitioner, since Wind Energy Tariff Order No.
1 of 2009 dated 20.03.2009 has become final.
That apart, the categorical stand of the Petitioner is that the Third Respondent/Superintending Engineer, Tamil Nadu Electricity Board,
Namakkal Electricity Distribution Circle, Namakkal has failed to appreciate that the Petitioner is seeking only adjustment of higher tariff slot, viz.,
peak hour (Rs. 4.80 per unit) and normal hour energy (Rs. 4.00 per unit) against off peak hour consumption (Rs. 3.80 per unit) which is
permissible in law and in accordance with the order of the First Respondent/Tamil Nadu Electricity Regulatory Commission dated 20.03.2009.
Finally, while winding up the arguments, the Learned counsel for the Petitioner submits that the Third Respondent/Superintending Engineer,
Tamil Nadu Electricity Board, Namakkal Electricity Distribution Circle, Namakkal has failed to take into account that the Petitioner had invested
several crores of rupees to install their wind mills for their captive consumption and therefore, it is not fair on the part of the Third
Respondent/Superintending Engineer, Tamil Nadu Electricity Board, Namakkal Electricity Distribution Circle, Namakkal to harass the Petitioner
by raising untenable bills under challenge.
The Respondents'' submissions:
The Learned Standing Counsel for the Respondents 2 and 3 submits that as per Sec 61 and 62 of the Electricity Act, 2003, the First
Respondent/Tamil Nadu Electricity Regulatory Commission has determined the tariff in terms of the ingredients of the Act and further, in order No.
3 dated 15.05.2006, the First Respondent has ordered to provide two set of agreements one for the persons selling the energy to TANGEDCO
as Energy Purchase Agreement (EPA) and another for the persons who are captive consumers such of the Petitioner''s Company as Energy
Wheeling Agreement (EWA). Further, these agreements are drafted, vetted and approved by the First Respondent/Tamil Nadu Electricity
Regulatory Commission and based on the above, all the Petitioners'' Generators has executed Energy Wheeling Agreement.
The Learned Standing Counsel for the Tamil Nadu Electricity Board contends that all wind energy generators commissioned on or after
15.05.2006 shall become eligible for the benefits of the Order No. 3 dated 15.05.2006 and also assigned them as Wind Group-II. Likewise, the
wind energy generators who commissioned before 15.05.2006 shall not become eligible for the benefits of the Order No. 3 dated 15.05.2006 and
also assigned them as Wind Group-I. But the wind energy generators who commissioned before 15.05.2006, but, they re-negotiate and execute
the Energy Wheeling Agreement in accordance with the Order No. 3 dated 15.05.2006 and in fact, they are also eligible to claim the benefits of
the aforesaid order and this practice has been followed as per the First Respondent order from 15.05.2006.
It is the submission of the Learned Standing counsel for the Respondents 2 and 3 that neither in the Order No. 3 dated 15.05.2006 of the First
Respondent nor in the EWA executed between the Petitioners generators and TANGEDCO, it was mentioned to adjust the energy generated in
the higher slot with the consumption in the lower slot.
Furthermore, the Learned Standing Counsel for the Respondents 2 and 3 brings it to the notice of this Court that the Petitioner is not entitled to
avail the benefit of adjustment of the higher slot generation against the lower slot consumption. In view of the fact that it has not executed the
Energy Wheeling Agreement in terms of the Order No. 1 of 2009 dated 20.03.2009 on Wind Energy issued by the First Respondent/Tamil Nadu
Electricity Regulatory Commission.
At this stage of hearing, the Learned counsel for the Petitioner invites the attention of this Court to the common order passed on 23.07.2012 in
W.P. No. 7200 of 2012 and batch of cases, wherein in paragraphs 8 to 12 it is observed and laid down as follows:--
In view of the contradiction in the proceedings of the respondents 3 and 5 in implementing the Commission''s order No. 1 of 2009, the
petitioners are aggrieved and their plea is justified in view of the inconsistent and differing interpretation given by the respondents 3 and 5. In this
case, the grey area that requires clarification among other issues that may arise, is on account of direction of the Commission, which is as follows:
The existing agreements between the wind energy generators and the distribution licensee shall continue to be valid. The parties to the agreement
are at liberty at any time to re-negotiate the existing agreement mutually in accordance with this order.
(emphasis added).
The Commission therefore will have to clarify as to how the order will be made applicable to the wind energy generators commissioned and
established prior to 19.09.2008 with regard to adjustment of slots and what is the purport of the order giving liberty to re-negotiate the existing
agreement.
In such view of the matter, the Tamil Nadu Electricity Regulatory Commission is directed to take up the issue for consideration and pass
appropriate order clarifying the issue. An opportunity of personal hearing to the petitioners and the respondents, shall be given. If any third party
files an application, the same may be considered if permissible as per law and procedure. It is desirable that the Commission decides the issue
expeditiously. Till such time, the Commission decides the issue, all the petitioners are entitled to adjust the wind energy generated in terms of
paragraph 8.7.3 of the Commission''s order No. 1 of 2009 dated 20.03.2009.
The parties are at liberty to file necessary papers before the Commission.
All these writ petitions are disposed of on the above terms. Consequently, connected Miscellaneous Petitions are closed. No costs.
In this connection, the Learned counsel for the Petitioner submits that the subject matter in issue in the present Writ Petition is squarely covered
by the order passed by this Court on 23.07.2012 in W.P. No. 7200 of 2012 and batch of cases, in and by which the First Respondent/Tamil
Nadu Electricity Regulatory Commission has been directed to take up the issue for consideration and pass appropriate orders clarifying the issue
and also, this Court has further observed that it is desirable that the Commission decides the issue expeditiously and till such time, the Commission
decides the issue all the Petitioners are held entitled to adjustment of the wind energy generators in terms of paragraph 8.7.3 of Commission''s
Order No. 1 of 2009 dated 20.03.2009. The applicability of the order dated 23.07.2012 in W.P. No. 7200 of 2012 and batch of cases passed
by this Court is not disputed by the Learned Counsel appearing for the parties on either side. In view of the above and applying the order passed
by this Court on 23.07.2012 in W.P. No. 7200 of 2012 and batch of cases, this Court disposes of the present Writ Petition. Consequently,
connected Miscellaneous Petition is also closed. No costs.