Writ Petition is filed under Article 226 of Constitution of India praying to issue a Writ of Certiorari, call for the records of the second respondent in memo No.CE/Comml/EE/R&C/AEE/F.R.&C/D.No.70-1/12 dated 12.03.2012 and quash the same as illegal.
O R D E R
1. This Writ Petition is filed praying to issue a Writ of Certiorari, call for the records of the second respondent in memo No.CE/Comml/EE/R&C/AEE/F.R.&C/D.No.70-1/12 dated 12.03.2012 and quash the same as illegal.
2. Thiru S.Sivanandam, learned counsel appears for the petitioner. Thiru S.K.Rameshwar, learned counsel appears for the respondents. By consent, the writ petition is taken up for final disposal.
3. The writ petition has been filed by petitioner company who is consumer of High Tension Electricity. Petitioner also buy power through third party source, like, windmill generators/CPP through the Open Access facility provided by the respondents. This issue has been considered by this court in a batch of writ petitions, viz., W.P.Nos.7897 to 7901 of 2012 etc., dated 26.4.2012. Relevant portion of the common order dated 26.4.2012 reads as follows:-
4. The batch of writ petitions have been filed by petitioners companies who are consumers of High Tension Electricity. They also buy power through third party source, like, windmill generators/CPP through the Open Access facility provided by the respondents. The open access system as defined under Section 2(47) of the Electricity Act, 2003 reads as follows:-
(47) Open access means the non- discriminatory provision for the use of transmission lines or distribution system or associated facilities with such lines or system by any licensee or consumer or a person engaged in generation in accordance with the regulations specified by the Appropriate Commission;
The first respondent is the Distribution Licensee. Section 42 specifies the duties of Distribution Licensee with regard to open access as follows:-
42. (Duties of distribution Licensee and open access):-
(1) It shall be the duty of a distribution licensee to develop and maintain an efficient, co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.
(2) The State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling, it shall have due regard to all relevant factors including such cross subsidies, and other operational constraints:
Provided that such open access shall be allowed on payment of a surcharge in addition to the charges for wheeling as may be determined by the State Commission:
Provided further that such surcharge shall be utilised to meet the requirements of current level of cross subsidy within the area of supply of the distribution licensee :
Provided also that such surcharge and cross subsidies shall be progressively reduced in the manner as may be specified by the State Commission:
Provided also that such surcharge shall not be leviable in case open access is provided to a person who has established a captive generating plant for carrying the electricity to the destination of his own use:
Provided also that the State Commission shall, not later than five years from the date of commencement of the Electricity (Amendment) Act, 2003, by regulations, provide such open access to all consumers who require a supply of electricity where the maximum power to be made available at any time exceeds one megawatt.
Clause (1) of Section 42 sets out the duties of the Distribution Licensee to develop and maintain an efficient, co-ordinated and economical electricity distribution system in the area of supply and to supply electricity in accordance with the provisions of the Act. Clause (2) of Section 42 enables the Commission to introduce open access in a phased manner and subject to conditions as may be specified. The provision of open access by the proceeding of the Regulatory Commission is not in dispute.
5. In the present cases, the Chief Engineer in exercise of his power under the Tamil Nadu Electricity Distribution Code and by invoking Regulation 38 has issued certain directions to the HT Consumers consuming electricity under open access system stating that they will be permitted to draw power under open access system only after they comply with the various directions contained in the memo dated 12.3.2012. The memo, inter alia, states that the HT Consumers/petitioners will have to install Availability Base Tariff Meters (in short ABT Meters) as a pre-condition for availing the open access facility. The ABT Meters so installed should also be as per CEA regulations. The memo further specifies that an undertaking as per format should also be submitted for drawing electric power under open access system. According to the petitioners, among other clauses, the clauses IX and XIII of the memo is unreasonable and arbitrary. It is objected to by the petitioners saying that the first respondent does not have the power to impose these conditions including the direction to furnish an undertaking, without getting appropriate orders from the Tamil Nadu Electricity Regulatory Commission, viz., TNERC. This primarily appears to be the serious contention raised on behalf of the petitioners.
6. The respondents while refuting the above, have filed a counter-affidavit and supported the memo by stating that the first respondent has power under Regulation 38 of the Tamil Nadu Electricity Distribution Code, 2004 to impose conditions as contained in the memo dated 12.3.2012.
7. Learned Advocate General relying upon the Tamil Nadu Electricity Regulatory Commission Notification No.TNERC/DC/8-15 dated 17.2.2012, referred to the amendment made to the Tamil Nadu Electricity Distribution Code. He drew the attention of the Court to the amendment of Regulation 32 and it reads as follows:-
3. Amendment of Regulation 32:-
In regulation 32 of the Principal Code, after sub-regulation (1) and the entries relating thereto, the following sub-regulation and the entries shall be inserted, namely:-
(1A) In case of open access consumer, ABT compliant meter with facilities to record export and import of energy shall be provided both at the generator and consumer ends in accordance with the Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006
Therefore, it is contended that the Memo directing the installation of ABT Meter is in order.
8. Learned Advocate General brought to the attention of this Court the Notification dated 17.3.2006 issued by the Central Electricity Authority in exercise of power under sub-section (1) of Section 55 and clause (e) of section 73 read with sub-section (2) of section 177 of Electricity Act, 2003 and stated that the specification of Meters including ABT Meter is as per the standards prescribed by the Central Electricity Authority. He therefore, justified the memo stating that it is only on the basis of the TNERC's Order that the memo has been issued directing the petitioners/HT Consumers to install the ABT Meters as a condition precedent to avail the open access facility. He stated that the undertaking is in consonance with the order of the TNERC.
9. Thiruvalargal AR.L.Sundaresan, appearing for R.S.Pandiyaraj, Krishna Srinivas for M/s. Ramasubramaniam and Associates, N.L.Raja, V.Ramakrishnan, N.Mahendran, D.Ravichander, C.S.Krishnamoorthy, Satish Parasaran, Gupta, S.Sivanandam, K.Seshadri, P.Elango and Ms.P.T.Asha for M/s.Sarvabhauman Associates, appearing for the petitioners stated that they are not disputing or objecting to the installation of ABT Meters as per the order of the TNERC and specified by the Central Electricity Authority as per Notification dated 17.3.2006. TNERC should, however, pass an order as to the location of meters as per the Notification dated 17.3.2006. Clause 6 and 7(D) of the Notification reads as follows:-
6. Ownership of meters:-
(1) Interface meters
(a) All interface meters installed at the points of interconnection with Inter-State Transmission System (ISTS) for the purpose of electricity accounting and billing shall be owned by CTU.
(b) All interface meters installed at the points of interconnection with Intra-State Transmission System excluding the system covered under sub-clause (a) above for the purpose of electricity accounting and billing shall be owned by STU.
(c) All interface meters installed at the points of inter connection between the two licensees excluding those covered under sub-clauses (a) and (b) above for the purpose of electricity accounting and billing shall be owned by respective licensee of each end.
(d) All interface meters installed at the points of inter connection for the purpose of electricity accounting and billing not covered under sub-clauses (a), (b) and (c) above shall be owned by supplier of electricity.
(2) Consumer meters
(a) Consumer meters shall generally be owned by the licensee.
(b) If any consumer elects to purchase a meter, the same may be purchased by him. Meter purchased by the consumer shall be tested, installed and sealed by the licensee. The consumer shall claim the meter purchased by him as his asset only after it is permanently removed from the system of the licensee.
(c) All consumer meters shall bear BIS mark, meet the requirements of these regulations and have additional features as approved by the Appropriate Commission or pursuant to the reforms programme of the Appropriate Government. To facilitate this, the licensee shall provide a list of makes and models of the meters.
(3) Energy accounting and audit meters
Energy accounting and audit meters shall be owned by the generating company or licensee, as the case may be.
7. Locations of meters:-
(1) The location of interface meters, consumer meters and energy accounting and audit meters shall be as per the Table given below:
Provided that the generating companies or licensees may install meters at additional locations in their systems depending upon the requirement.
Table
Sl.No. Stages
Main meter
Check meter
Standby meter
A No applicable
B No applicable
C No applicable
D Consumer directly connected to the Inter-State Transmission System or Intra-State Transmission System who have to be covered under ABT and have been permitted open access by the Appropriate Commission or Any other system not covered above
As decided by the Appropriate Commission
(a) Interface Meters
(i) Consumers who have interconnection with the Inter-State Transmission System or Intra-State Transmission System and have been permitted open access by the Appropriate Commission shall be provided with interface meters.
(ii) For consumers connected to distribution system and permitted open access, provision of interface meters may be made as per the Regulations or directions of the Appropriate Commission.
(iii) The scheme for location of interface meters shall be submitted to the CTU or the STU or the CTU or the STU or the licensee by owner of the meter in advance, before the installation of the scheme.
(emphasis supplied)
Therefore, if the respondents want to implement the directions of the Central Electricity Authority or that of the State Commission in terms of the Amendment Notification dated 17.2.2012 with regard to installation of ABT compliant meters, they have to get an appropriate order from the TNERC.
10. On a reading of the CEA Notification dated 17.3.2006 it is clear that different types of meters have been specified by the Central Electricity Authority and it is also specified that the meters should bear BIS mark, meet the requirements of regulations and should have additional features as approved by the Appropriate Commission or the Appropriate Government. To facilitate this, the respondent licensee has to provide the list of makes and models of the meters for the benefit of the consumers. Insofar as location of meter, in respect of consumer directly connected to the Intra-State Transmission System who are to be covered under ABT and have been permitted open access by the Appropriate Commission, it should be in accordance with clause 7(D). A decision on this will have to be taken by the Appropriate Commission, namely, TNERC. The CEA Notification dated 17.3.2006 clearly speaks about a decision by the Appropriate Commission, viz., TNERC. In this case, for installation of the ABT Meters insofar as the consumers under the open access system, the further plea of all the petitioners is that the respondent board has not given specifications, like make of the ABT meters, name of the manufacturer, type of the meter, technical specification, the calibration method, calibration agency, etc. This plea appears to be bona fide, as admittedly, respondents have not indicated all these parameters before issuing the memo under challenge. In fact, all these details were produced before this Court after a specific direction was issued. This Court, however, declined to go into the technical aspects as it is not for this court to delve on those issues for the present.
11. The grievance expressed by the petitioners as above appear to be justified in view of the specific nature of the undertaking, more particularly, paragraph 1, which speaks of ABT compliant special energy meters as a pre-condition. It speaks about compliance of the guidelines issued by the Superintending Engineer concerned. In the absence of specification, like the model number, make of the meter, name of manufacturer and other technical parameters, it may not be appropriate for the respondents to insist on the petitioners to comply with the memo. Unless the respondents approach the State Commission for a decision and the respondent board gives the details required for implementation pursuant to the direction of the State Commission, the respondent cannot deny the petitioners the open access system on the ground that ABT Meters have not been installed. It, therefore, becomes necessary for the respondent distribution licensee to approach the State Commission for appropriate orders with regard to the installation of ABT Meters and proceed thereon as per the directions issued by the Commission. The Advocate General appearing for the respondent distribution licensee on instruction agreed to approach the State Commission for appropriate orders stating that they will place their stand which will be on the basis of the Memo and undertaking.
12. Insofar as the issues that are not covered by the Order of the Central Electricity Authority and are now raised by the first respondent in memo, it can be addressed before the State Commission for obtaining appropriate orders. To this course of action the respondents licensee is agreeable and state that the memo and the undertaking will be placed before the Commission within a period of fifteen days from the date of receipt of a copy of this order for appropriate orders by the Commission. The installation of ABT Meters by HT Consumers through open access system will proceed thereon based on the direction of the Commission.
13. The Commission while considering the claim of the respondents shall ensure that appropriate notice is issued to all the writ petitioners and hear such other person, who may approach the Commission as per procedure. The Commission may consider taking necessary steps to notice such others as may be necessary so as to avoid allegation of violation of principles of natural justice.
14. Till such time, the Commission passes the final order in this issue, the respondents shall not insist on the installation of the ABT Meters as a pre-condition for availing open access facility. The respondent shall not insist that the HT Consumers/petitioners should give an undertaking for the purpose of issuing NOC for availing the open access facility. It is desirable that the Commission decides the issue expeditiously considering the larger interest of both the HT Consumers and the respondents Distribution Licensee.
15. All the Writ Petitions are ordered as above. No costs. Consequently, connected miscellaneous petitions are closed.
4. The above decision will apply to this case also. Accordingly, this writ petition is ordered in terms of the order dated 26.4.2012 passed in W.P.Nos.7897 to 7901 of 2012 etc., as above. No costs. Consequently connected miscellaneous petitions are closed.