BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
28. 08.2014 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)Nos.3730 of 2012 and M.P(MD)Nos.1 to 3 of 2012 and 2 of 2014 AND W.P(MD)No.4503 of 2012 and M.P(MD)Nos.1 and 2 of 2012 W.P(MD)No.3730 of 2012: B.Stalin ... Petitioner Vs. 1.The Cabinet Secretary, Union of India, Cabinet Secretariat, Rashtrapathi Bhavan, New Delhi ?. 110 001. 2.The Principal Secretary to The Hon'ble Prime Minister, Union of India, Prime Minister's Secretariat, New Delhi ?. 110 001. 3.The Director, Power Grid Corporation of India Limited, B-9, Qutab Institutional Area, Katwaria Sarai, New Delhi ?. 110 016. 4.The Chief Secretary, Government of Tamil Nadu, Chief Secretariat, Chennai ?.
2. 5.The Chairman, Tamil Nadu Electricity Board, Mount Road, Chennai ?.
2. 6.R.Krishnamoorthy ... Respondents (R.6 impleaded as per order of this Court dated 03.07.2014 made in M.P(MD)No.1 of 2014 in W.P(MD)No.3730 of 2012.) Prayer Petition filed under Article 226 of the Constitution of India, to issue a writ of Mandamus to direct the respondents to consider the representation dated 05.03.2012 and to end the unprecedented energy power crisis in the State of Tamil Nadu alone for the past more than 5 years. !For Petitioner ... Mr.W.Peter Ramesh Kumar ^For Respondents ... Mr.G.Thalaimutharasu for R.1 & R.2 Mr.S.Suresh for R.3 Mr.B.Pugalendhi, Special Govt. Pleader for R.4 Mr.S.M.S.Johnny Basha for R.5 Mr.S.Srinivasa Ragavan for R.6 W.P(MD)No.4503 of 2012: K.K.Ramesh ... Petitioner Vs. 1.The Secretary, Ministry of Power (Electricity), Government of India, New Delhi. 2.The Director, National Power Grid Corporation, New Delhi. 3.The Secretary, Ministry of Power (Electricity), Government of Tamil Nadu, Secretariat, Chennai. 4.The Director, Tamil Nadu Electricity Board, Chennai. 5.The Director, Tamil Nadu Generation and Distribution Corporation (TANGEDCO), Chennai. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a writ of Mandamus to direct the first respondent to give sufficient power (electricity) to the Tamil Nadu State. For Petitioner ... Mr.K.K.Ramesh Party-in-person. For Respondents ... Mr.G.Thalaimutharasu for R.1 Mr.S.Suresh for R.2 Mr.B.Pugalendhi, Special Govt. Pleader for R.3 Mr.S.M.S.Johnny Basha for R.4 & R.5 :COMMON ORDER
R.MAHADEVAN,J.
W.P(MD)No.3730 of 2012 has been filed as a Public Interest Litigation, seeking a writ of Mandamus to direct the respondents to consider the representation dated 05.03.2012 and to end the unprecedented energy power crisis in the State of Tamil Nadu alone for the past more than 5 years.
2. W.P(MD)No.4503 of 2012 has been filed in public interest, seeking a writ of Mandamus to direct the first respondent to give sufficient power (electricity) to the Tamil Nadu State.
3. Brief facts necessary for the disposal of both the writ petitions are as follows:
3. 1. The petitioner in W.P(MD)No.3730 of 2012, a practising lawyer, approached this Court against the acute power shortage in the State. According to him, there is no power shortage in the other southern States, namely, Karnataka, Andhra Pradesh and Kerala. He alleged that due to the inimical attitude of the Government of India, there were power cuts in the State of Tamil Nadu, which affected the students, industrial units, small scale and middle scale industries. Further, he added that the total need of the State is about 22,000 MW and the production at Neyveli alone is 26,000 MW, which is more than the consumption need of the State of Tamil Nadu. The application of the State for Corridor Transmission from the northern States, was rejected by the Central Load Dispatching Authority and the Power Grid Corporation. Though the State had contracted for 500 MW from Gujarat, only 203 MW could be transmitted. Despite the State had contracted to an extent of 1,750 MW of power from the other States, the Central Load Dispatching Authority had released the corridor availability only to the extent of 350 MW, it is contended. In this regard, the petitioner made a representation dated 05.03.2012 to the respondents 1 to 3, however, no response is forthcoming from them. Hence, he is before this Court. 3.2. In the counter affidavit filed by the first respondent, it is contended that the petitioner has not made the representation to the proper authority and all the States in the Southern Region experienced the power shortage. The power shortages in the State was due to the inadequate tie-ups with the long term sources of generation and there was a huge gap between the demand and supply, despite maximum possible power was being scheduled through short term open access. The share of Tamil Nadu in the Neyveli, is 1,434 MW out of 2,740 MW. The peak demand of the State for the period between April 2011 and March 2012, was 12,813 MW and 10,566 MW was met out with a shortfall of 17.5%. The grievance of the petitioner was addressed by the authorities concerned in all earnestness. Therefore, he prayed for the dismissal of the writ petition. 3.3. The second respondent, in the counter affidavit, contended that the issue involved in this writ petition was looking after by the Ministry of Power and hence, the second respondent is not a necessary party. 3.4. The third respondent, has filed a detailed counter affidavit, inter alia, stating that the power crisis in the Southern Region in the State was due to the inordinate delay in commissioning of huge quantum of planned generations, which increased the gap between the demand and supply. Despite the same, the State had not tied-up with any generating project on long term basis. Further, the State had not made any application for Long Term Access as per CERC Regulations. Therefore, the third respondent denied the allegations that partiality was shown to the State and that the third respondent was responsible for the Corridor Congestion. Accordingly, he prayed for the dismissal of the writ petition. 3.5. The fifth respondent, in his counter affidavit, among other things, contended that the quantum of power required to supply the demand uninterruptedly was around 12,000 MW, but the power available from various sources would be 8,000 MW, which resulted in severe power shortage of 4,000 MW, besides, narrated the events that had happened. 3.6. Whereas the Managing Trusteee of the Centre for Public Interest Litigation, has filed the another writ petition in W.P(MD)No.4503 of 2012, seeking a writ of Mandamus to direct the Secretary, Ministry of Power (Electricity), Government of India, New Delhi, to give sufficient power (Electricity) to the State of Tamil Nadu. Though the third respondent announced the shut down of power supply only for three hours per day, the respondents 4 and 5 had been shutting down the power supply more than the hours prescribed and thereby, violated the rules and procedures. It is alleged that the first respondent had not been willing to co-operate with the State Government and therefore, the transit passage of power supply from northern States, was obstructed. Hence, he prayed for an appropriate direction to the first respondent. 3.7. No counter affidavit has been forthcoming on the side of the respondents in W.P(MD)No.4503 of 2012.
4. Seeking uninterrupted power supply to the State, Mr.W.Peter Ramesh Kumar, learned Counsel for the petitioner in W.P(MD)No.3730 of 2012, contended that the State has been deprived of the power supply from the northern States, when the other southern States have not come across such power cuts. Non-availability of Electrical Transmission Corridors, is the main cause for failure in power supply to the State despite very many power stations are situated in the State, he argued.
5. It is also pointed out by the learned Counsel that the Power Grid Corporation rejected the applications of the State for Corridor Transmission from the northern States, due to which, the general public were put to irreparable loss. Moreover, it is his contention that because of the inimical attitude between the State and the Union of India, the acute power shortage could not be resolved. He, therefore, sought for appropriate direction to the respondents to consider the representation dated 05.03.2012 as per law.
6. Per contra, Mr.G.Thalaimutharasu, learned Senior Panel Counsel for the respondents 1 and 2, reiterating the averments in the counter affidavit filed by the first respondent, contended that the grievance of the petitioner had been duly met with and the petitioner approached this Court to decide on the administrative and technical aspects of power generation and supply. He also submitted that it is for the Government to consider the issue by taking into account all technical and public interest and no writ would lie against the Government in this regard. Therefore, he prayed for the dismissal of this writ petition. Whereas it is the specific plea of the second respondent that he is not at all a necessary party to this writ petition.
7. Mr.S.Suresh, learned Counsel for the third respondent has drawn our attention to the averments in the counter affidavit filed by the third respondent and contended that the present power shortage in the State is on account of the inordinate delay in commissioning of huge quantum of planned generations and it had increased the gap between the demand and supply of power. According to him, the State has to import power from the surplus States and therefore, there is an enormous stress on the available transmission system. It is also his submission that despite such power shortage, the State had not tied-up with any generating project on long term basis and so far, no application had been made for Long Term Access as per CERC Regulations. Denying the allegations regarding partiality shown to the State and the corridor congestion, he prayed for the dismissal of the writ petition.
8. On the other hand, Mr.S.M.S.Johnny Basha, learned Counsel for the fifth respondent, argued that the quantum of power so as to meet the uninterrupted power supply is nearly 12,000 MW, but the power available through various sources, is only 8,000 MW, which ultimately resulted in shortage of power to the tune of 4,000 MW. He further added that in order to cater the demand of power supply, the TANGEDCO had floated a short term tender for the procurement of 1,000 MW on 'Round The Clock' (RTC) basis for a period of one year from June 2012 to May 2013, however, in view of the constraint in the transmission capacity, it could not get the quantum in tact. It is his contention that the TANGEDCO was also procuring power from the open market also. Also, he contended that the issue of corridor congestion has been considered in the Suo Motu Petition No.67 of 2010 and after considering the submissions of TANTRANSCO, the Central Electricity Regulatory Commission had given necessary directions for execution and commissioning of various elements in a time bound manner.
9. Mr.K.K.Ramesh, the petitioner in W.P(MD)No.4503 of 2012, who appeared in person, submitted that the power cut had been implemented beyond the announced hours and the first respondent had not co-operated with the State Government and obstructed the transit passage of power supply from the northern States. He also submitted that due to frequent power cuts, the general public were put to untold miseries. Accordingly, he sought for appropriate directions in this regard.
10. We have given our anxious consideration to the submissions made on either side and scrutinised the materials available on record.
11. The common issue that arises for consideration in these Public Interest Litigations before us, is the acute power shortage that had been undergone by the State.
12. Public Interest Litigations are filed for the cause of the public and no doubt, they should give meaning to which purpose they are knocking the doors of justice. Here, the petitioners elaborated the sufferings of the general public, which, in our opinion, merits consideration.
13. The main grievance of the petitioners is that the gap between the demand and supply had increased, due to which, the general public of the State would put to lot of irreparable sufferings. According to the petitioners, the State Government and the Central Government, have to take immediate and necessary action in this matter, involving large scale of public interest and see that the power crisis that had been undergone by the State, would get resolved.
14. According to the first respondent, the Government alone has to decide on the issue regarding power shortage and the petitioners are not justified in approaching this Court by way of the present writ petitions, colouring them as a Public Interest Litigations, so as to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
15. Moreover, the specific contention of the second respondent is that the petitioners had not arrayed the Ministry of Power as a party respondent to the present writ petitions and therefore, the petitioners cannot seek any relief as against the second respondent by this Public Interest Litigation.
16. The scope of the Public Interest Litigation has been dealt with by the Honourable Apex Court elaborately in State of Uttaranchal v. B.S.Chaufal reported in (2010) 2 MLJ1127(SC), wherein, the Honourable Apex Court has given directions so as to preserve the purity and sanctity of the Public Interest Litigation, which are as follows: (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous consideration. (2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The Court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The Court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The Court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.".
17. In Shri Sachidanand Pandey and another v. State of West Bengal and others reported in AIR1987SC1109 the Honourable Apex Court held as follows: ".... the public interest litigation should be encouraged when the Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected.".
18. Keeping in mind the above ratio laid down by the Honourable Apex Court in dealing with the Public Interest Litigation, we have analysed the issue on hand in depth. Now-a-days, the power (electricity) is one of the basic needs of the human beings to survive in our planet and without having the power (electricity), we cannot imagine a day to go beyond. Needless to say, the Government(s) shall ensure all public amenities made available to the general public to keep surviving peacefully.
19. On consideration of the entire materials available on record, we find that the authorities concerned are taking steps to resolve the issue regarding power shortage, but, they cannot even reduce the gap between the demand and supply, because of corridor congestion. Though many power stations are in the State, it is not known as to why this amount of power shortage has arisen, for which, it is the answer from the authorities that the corridor congestion should be cleared off.
20. In such circumstances, we are of the view that it is for the Governments, both the State as well as the Central, to look into the issue in depth and take effective steps to see, somehow or other, the grievance regarding the acute power shortage in the State. We are also aware of the fact that the present writ petitions had been filed in the year 2012 and at present, there are changed circumstances in the power supply in the State, because of new power projects which have come into operation.
21. At the same time, the general public, on whose behalf, the petitioners have invoked the jurisdiction of this Court, under Article 226 of the Constitution of India, are having the responsibility to save power (electricity) to the extent possible.
22. In view of the submissions made on behalf of the parties concerned and on a perusal of the records available, it is noted that new power projects and schemes are being contemplated and set up to meet the power needs of the people of the State. Further, as the matters relating to the generation of power and its distribution are policy decisions to be taken by the Governments concerned, we do not find it appropriate to issue any specific directions in these writ petitions, except making certain observations as noted above.
23. In fine, both the writ petitions are disposed of with the above observations. Consequently, the connected miscellaneous petitions are closed. No costs. To 1.The Cabinet Secretary, Union of India, Cabinet Secretariat, Rashtrapathi Bhavan, New Delhi ?. 110 001. 2.The Principal Secretary to The Hon'ble Prime Minister, Union of India, Prime Minister's Secretariat, New Delhi ?. 110 001. 3.The Director, Power Grid Corporation of India Limited, B-9, Qutab Institutional Area, Katwaria Sarai, New Delhi ?. 110 016. 4.The Chief Secretary, Government of Tamil Nadu, Chief Secretariat, Chennai ?.
2. 5.The Chairman, Tamil Nadu Electricity Board, Mount Road, Chennai ?.
2. 6.The Secretary, Ministry of Power (Electricity), Government of India, New Delhi. 7.The Secretary, Ministry of Power (Electricity), Government of Tamil Nadu, Secretariat, Chennai. 8.The Director, Tamil Nadu Electricity Board, Chennai. 9.The Director, Tamil Nadu Generation and Distribution Corporation (TANGEDCO), Chennai.