IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 01.07.2011 CORAM THE HONOURABLE MR. JUSTICE R. SUDHAKAR W.P. No.15824 of 2011 and M.P. No.1 of 2011 M/s. Sai Regency Power Corporation Private Ltd., rep. by its Authorized signatory .. Petitioner vs 1. The Government of Tamil Nadu rep. by its Principal Secretary to Government, Energy Department, Fort. St. George, Secretariat, Chennai-9 2. The Tamil Nadu Electricity Regulatory Commission rep. by its Secretary, Rukmani Lakshmipathy Salai, Egmore, Chennai-8 3. The Tamil Nadu Generation and Distribution Corporation Ltd., rep. by its Chairman, No.144, Anna Salai, Chennai-2 4. The Director/Operation, The Tamil Nadu Generation and Distribution Corporation Ltd., No.144, Anna Salai, Chennai-2 5. M/s. PTC India Limited, rep. by its Chairman & Managing Director having its Registered Office at 2nd Floor, NBCC Tower, 15-Bhikaji Cama Place, New Delhi 110 066 .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer: Petition filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the third and fourth respondents herein to continue to purchase the maximum energy generated from the petitioner's Power Plant situate at Kalugoorani, Ramanathapuram District, Tamil Nadu through the fifth respondent. For Petitioner : Mr. R. Muthukumarasamy, Senior Counsel for Mr. A. Jenasenan For respondents 1, 3 and 4 : Mr. G. Vasudevan for TNEB O R D E R Writ petition is filed praying to issue a writ of mandamus directing respondents 3 and 4 to continue to purchase the maximum energy generated from the petitioner's Power Plant situate at Kalugoorani, Ramanathapuram District, Tamil Nadu through the fifth respondent. 2. Mr. G. Vasudevan, learned counsel takes notice on behalf of the respondents 1, 3 and 4 Electricity Board. In view of the order that is to be passed in this matter, the notice to the respondents 2 and 5 is dispensed with. By consent of both parties, the writ petition is taken up for disposal. 3. The Petitioner's company is engaged in generation of electricity for supply to Group Captive Consumers and the surplus to distribution licensees. The Petitioner Company is a natural gas based Power Generating Plant situate at Ramanathapuram District. In the year 2009, Tamil Nadu Electricity Board floated a tender for the purchase of power from CERC approved traders and the fifth respondent became a successful tenderer for supplying power to TNEB for the period from July 2009 to May 2010. The fifth respondent in turn purchased power from various group captive consumers/ generation companies including the petitioner and supplied the same to TNEB. The fifth respondent continued the purchase as above for the subsequent period (i.e.) from June 2010 to May 2011 for which they procured power from the petitioner. It is stated that the third respondent floated two tenders for short term procurement for supply of power for the period from June 2011 to September 2011 and the fifth respondent was granted the tender. The fifth respondent while participating in the said tender, addressed letters to the petitioner and persons similarly placed to confirm month wise firm quantum of surplus power available for sale to the third respondent https://hcservices.ecourts.gov.in/hcservices/ through the fifth respondent for the period June 2011 to September 2011 and the petitioner as well as several other generating companies gave their unequivocal acceptance for such supply. However, on 14.05.2011 the fifth respondent informed the petitioner that existing arrangement of power supply will expire by 31.05.2011. 4. Thiru R. Muthukumarasamy, learned senior counsel appearing for the petitioner referred to the G.O. Ms. No.10 Energy dated 27.02.2009 issued under Section 11 of the Electricity Act 2003 and stated that as per the above said Government Order, the generating company is to operate to the maximum capacity and power load factor and supply the energy so generated to the State Grid for supply either to the Board or to the HT Consumer within the State. They are not entitled to export the power to any other licensee outside the State. He pointed out that when a duty is cast upon the petitioner company to generate maximum energy so as to supply to the State Grid, a corresponding duty is cast upon the third respondent Board to avail the supply to the maximum capacity for distribution. In this regard, petitioner company have by the letter dated 31.05.2011 addressed to the Board expressed their willingness to supply the electricity generated at their plant for distribution through the third respondent, the distribution licensee. In spite of repeated request, the petitioner's plea has gone unheeded. He contended that the generating company is duty bound to maximize its generation and having placed a restriction against export outside the State, it is only just and fair that the third respondent distribution licensee should purchase the entire surplus power available at the hands of the petitioner. He pleaded that when the State is facing acute shortage of power, there was no justification in refusing to purchase the power generated and supplied by the petitioner. In any event, the petitioner has been supplying the power to the third respondent Grid and they have been utilizing the same. The third respondent has not conclude the terms of power purchase either through the fifth respondent or by any other method so as to enable the petitioner company to supply and receive payments for the electricity generated and supplied to the third respondent. In the case of emergency as in this nature, the State Government or the Board has the power to purchase without going through the process of tender. 5. Mr. R. Muthukumarasamy, learned senior counsel further pointed out that there are several other power generating units which are placed in a similar situation as that of the petitioner and the third respondent in the case of three such companies, approached the second respondent/Tamil Nadu Electricity Regulatory Commission for its approval as to the terms of power purchase from the power generating units. The petitioner has not been made as a party in the said proceedings and if the petitioner is included in https://hcservices.ecourts.gov.in/hcservices/ the said proceedings, then the issue relating to supply and payment can be resolved thereunder, as in the case of similarly placed persons. 6. Mr. G. Vasudevan, learned counsel appearing for respondents 1, 3 and 4 states that the reason as to why the petitioner has not been included in the proceeding before the second respondent, is not clear. However, he left it to the discretion of this Court to pass appropriate orders so that the right of the petitioner can be safeguarded. 7. Respondents 3 and 4 have not indicated that they will not be purchasing the power generated by the petitioner in spite of letter dated 31.05.2011. In such view of the matter, since the petitioner has already generated the power for supply to respondents 3 and 4, even after 31.05.2011. It is obvious that the third respondent has been utilizing the power in view of the acute power shortage faced by the State. There is no rejection of the petitioner's letter of willingness to supply power nor is there a rejection by the respondent to supply power through the State Grid. If the statement of the petitioner that they are continued to supply the power through the State Grid to the third respondent distribution licensee and that is being utilized, there should not be any discrimination between one power supply and the another. 8. In such circumstances, the Court is of the view that instead of granting the relief as prayed for by the present writ petitioner, in the interest of the State as well as the petitioner's power generating company will be better served if the petitioner is directed to approach the second respondent commission to consider the petitioner's claim for supply of power as a captive power generating company and for other appropriate relief with regard to fixation of rates or any other matter which is the relevant to the issue relating to supply of power to the third respondent Distribution Licensee. On the petitioner filing the application, the second respondent Commission shall take up the matter and dispose of the same as expeditiously as possible. 9. The writ petition is disposed of as above. Consequently, connected M.P. is also closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vga https://hcservices.ecourts.gov.in/hcservices/ To 1. The Government of Tamil Nadu rep. by its Principal Secretary to Government, Energy Department, Fort. St. George, Secretariat,Chennai-9 2. The Tamil Nadu Electricity Regulatory Commission rep. by its Secretary, Rukmani Lakshmipathy Salai,Egmore, Chennai-8 3. The Tamil Nadu Generation and Distribution Corporation Ltd., rep. by its Chairman, No.144,Anna Salai, Chennai-2 4. The Director/Operation, The Tamil Nadu Generation and Distribution Corporation Ltd., No.144, Anna Salai, Chennai-2 5. M/s. PTC India Limited, rep. by its Chairman & Managing Director having its Registered Office at 2nd Floor, NBCC Tower, 15-Bhikaji Cama Place, New Delhi 110 066 Saidapet, Chennai-15 1 cc to Government Pleader, Sr. 38907 1 cc to Mr.A. Jenasenan, Advocate, Sr. 38558 W.P. No.15824 of 2011 PVR (CO) kk 20/7 https://hcservices.ecourts.gov.in/hcservices/