Tamil Nadu Electricity Consumers' Association vs The Government of Tamil Nadu and Others

R. Sudhakar, J.—These writ petitions have been filed for a writ of mandamus directing the second and the third Respondents to approach

the fourth Respondent for orders directing equitable distribution of Restriction Control Measures including load shedding without exempting any

class or category of consumers from such Restriction Control Measures.

The writ petitions have been filed by the Tamil Nadu Electricity Consumers'' Association and a HT Consumer for the same relief.

The relief sought for in both the writ petitions is one and the same. Hence, by consent, the two writ petitions are taken up for disposal together.

Mr. N. L. Rajah, learned Counsel appearing for the Petitioners contended that the restriction on control measures brought into force based on

the order of the fourth Respondent Tamil Nadu Electricity Regulatory Commission (TNERC in short) in its order dated 28.11.2008 is continuing

for ever and the second and the third Respondents are not taking steps to improve the electricity sector in the State so that the restriction and

control measure can be slowly eased out paving way for maintaining an optimum supply securing the equitable distribution of electricity and

promoting competition so as to enable all the consumers including the High Tension Consumers may have better power supply. On the contrary,

Respondents 2 and 3 are engaged in imposing further restriction control measures from time to time without even approaching the fourth

Respondent Commission. According to the learned Counsel for the Petitioners, Respondents 2 and 3 are not entitled to vary or cut the electricity

without first approaching the TNERC and the Act does not give them the power to do so at their will and pleasure. He referred to the various

provisions of the Electricity Act 2003 and stated that Respondents 2 and 3 who are only a distribution licensee will have to strictly abide by the

provisions of the Act and the various orders issued by the Regulatory Commission, an authority constituted u/s 17 of the Electricity Regulatory

Commission Act 1998. He further stated that specific order has been passed by the Appellate Tribunal for Electricity in its order dated 11.1.2011

in Appeal No. 111 and others of 2010 wherein the Appellate Tribunal has directed the fourth Respondent TNERC to initiate suo moto

proceedings for regulating the power sector. He referred to para 44 of the order of the Appellate Tribunal which reads as follows:

In the interest of the consumers, we direct the State Commission to initiate suo moto proceedings regarding short term, medium term and long term

plan for meeting the requirement of power both peak hours and energy in the state of Tamil Nadu. The Electricity Board/Utilities in Tamil Nadu

may be directed by the State Commission to submit their comprehensive proposal before the State Commission. We expect this exercise to be

completed within a period of six months. The State Commission may also take measure to encourage open excess in transmission and distribution

so that the consumers could arrange power directly to meet their demands.

He also referred to the power given to the Commission in terms of Section 23 of the Electricity Act 2003 which reads as follows:

If the Appropriate Commission is of the opinion that it is necessary of expedient so to do for maintaining the efficient supply, securing the equitable

distribution of electricity and promotion competition, it may, by order, provide for regulating supply, distribution, consumption or use thereof.

The learned Counsel for the Petitioners pointed out the statement of objects and reasons leading to the enactment of Electricity Act 2003. The

preamble to the Electricity Act, 2003 clearly states that it is enacted to take measures for conducive development of electricity industry, promoting

competition therein, protecting interest of consumers and supply of electricity to all areas, rationalisation of electricity tariff, ensuring transparent

policies regarding subsides, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory

Commissions and establishment of Appellate Tribunal and for matters connected therewith or incidental thereto.

It is, therefore, clear that the Act provides for a transparent method in working of the distribution licensee and the power is vested with the

appropriate commission for maintaining efficient supply, securing equitable distribution of electricity and for promoting competition. The object to

the Act was sought to be implemented through appropriate Commission. In view of the inaction on the part of Respondents 2 and 3 to formulate a

transparent scheme, the writ petition has been filed for the relief as above.

When the matter was listed for hearing Mr. G. Vasudevan, learned Counsel appearing for the Respondent states that the Tamil Nadu Electricity

Regulatory Commission by letter No. TNERC/AD(L)/F.MP.4 & 7/2010/D. No. 504, dated 03.05.2011, has called upon the Chairman and

Managing Director, TANGETCO, to come up with a comprehensive proposal to overcome the power shortage in the State of Tamil Nadu to

enable the lifting of Restriction & Control Measures. The said letter reads as follows:

In the aforesaid matter, I am directed to bring to your notice the observations of the Appellate Tribunal for Electricity in para 44 of its judgment

under reference. It may be seen that the Tribunal has taken a view that the Restrictions & Control Measures which are in force consequent to the

orders passed by the Commission in M.P. No. 42 of 2008 cannot continue indefinitely. It has been observed by the Tribunal that such measures

can only be an exception in conditions such as unforeseen outages of generating units or excessive increase in demand of power due to abnormal

weather conditions or due to any other unforeseen contingency or event.

The Tribunal has also observed that drastic cuts on industrial and commercial establishments for indefinite period lacks planning on the part of

TNEB. In the result, directions have been given to this Commission to initiate suo moto proceedings regarding short-term, medium term and long

term plan for meeting requirements of power both peak hours and energy in the state of Tamil Nadu. The Tribunal has also issued directions to the

effect that Commission shall direct the Electricity Board/utilities in the state of Tamil Nadu to submit a comprehensive proposal before the

Commission in this regard. A time limit of six months has been fixed for this purpose.

In order of comply with the direction of the Tribunal, it is necessary that TANGEDCO come up with a comprehensive proposal to overcome the

power shortage in the state of Tamil Nadu to enable the lifting of Restriction & Control Measures. Therefore, TANGEDCO shall submit a

comprehensive proposal on the strategy to be adopted in this regard in the form of a petition as per conduct of Business Regulation and Fees &

Fines Regulations before this Commission. The petition shall be filed by 15.06.2011.

In response to the same, Shri Vasudevan, learned Counsel appearing for the Respondents states that the Board has filed an application on

22.06.2011 before the Commission. A copy of such application has also been produced before this Court.

Since the third Respondent has approached the Commission with a proposal, this Court is of the view that the issue can be resolved by the

fourth Respondent Commission based on the petition filed by the second and the third Respondents on 22.06.2011, which shall be taken up for

hearing by the Tamil Nadu Electricity Regulatory Commission in a time bound manner.

Considering the apprehension expressed by the Petitioner that the Restriction Control Measures are inequitable and not in accordance with the

object and reasons behind the passing of the Act, and also taking note that it is not in conformity with the object behind Section 23 of the Act, the

Commission may consider the issue at the earliest.

The Respondents have stated in the counter-affidavit filed in support of the Writ Petition No. 11292 of 2011 that certain exemptions have

been given to certain sectors based on the Government policy and that issue also is a matter that can be raised by the Petitioners before the

Commission in terms of Section 23 of the Act. The Petitioners are at liberty to participate in the proceedings of the Commission as and when such

publication is made for public hearing.

Both the Writ Petitions are disposed of, granting liberty to the Petitioners as above. The Tamil Nadu Electricity Regulatory Commission is at

liberty to take up the proceedings at the earliest and for providing appropriate opportunity to the association or other consumer, as is permissible in

the Act and the Rules. No costs. Consequently, connected miscellaneous petitions are closed.