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https://x.com/sekarreporter1/status/1736200177701241179?t=AgL2wrvxq6N_eVZ9gMB0og&s=08 Madras High court stays the demand of Rs.791.6 Crores raised by Power Grid Corporation and the consequential regulation of power ordered by Central

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[12/17, 07:09] sekarreporter1: Madras High court stays the demand of Rs.791.6 Crores raised by Power Grid Corporation and the consequential regulation of power ordered by Central transmission utility against TANGEDCO in PRAPTI Portel on the basis of old tariff order passed by CERC fixed for the erection of Transmission Lines of Raigarh- Pugulur- Trissur after hearing the Arguments of P. Wilson Senior advocate appearing for TANGEDCO and Mr ARL Sundaresan appearing for Govt of India and Power Grid Corporation of India.
[12/17, 07:10] sekarreporter1: W.P.No.34892 of 2023 and
WMP.Nos.34884, 34885 & 34886 of 2023 Dr.ANITA SUMANTH,J.
Mr.Rajesh Vivekanandan, learned Deputy Solicitor General accepts notice for R1, Ms.Swapna Seshadri and Mr.V.Kalyanaraman, learned counsel accepts notice for R2 and Mr.AR.L.Sundaresan, learned Additional Solicitor General appears on their behalf, Ms.Varsha, learned counsel accepts notice for R3 and Mr.Jayesh Dolia, learned Senior Counsel appears on her behalf. They seek some time to obtain instructions and file counters.
2. Notice through Court as well as privately to R4 and R5, returnable
02.01.2024. Proof of service be placed on file.
3. This Writ Petition is to be heard along with W.P.No.33224 of 2023, where the following order has been passed on 24.11.2023.
Mr.Rajesh Vivekanandan, learned counsel accepts notice for R1 and Mr.AR.L.Sundaresan, learned Additional Solicitor General appears on his behalf. Ms.Niveditha, learned counsel accepts notice for R2 and R3 and Mr.Mohan, learned Senior Counsel appears on her behalf. They seek some time to obtain instructions and file a counter.
2. All parties in one voice would agree that the Power Grid Corporation of India Ltd. is a necessary party in this matter, particularly seeing as the petitioner seeks relief as against demands that would be raised by the Power Grid Corporation, consequent upon the impugned Notification and
Tariff order.
3. Hence, Power Grid Corporation of India Ltd., Plot No.2, Sector 29, Near IFFCO Chowk, Gurugram – 122 001 is impleaded suo motu as R4 in the Writ Petition.
Mr.Kalyanaraman, learned counsel accepts notice for R4 and Mr.AR.L.Sundaresan, learned Additional Solicitor General appears on his behalf.
4. In this Writ Petition, Tangedco has challenged Notification bearing No.L-1/250/2019/CERC 1 dated 26.10.2023 on the ground that it has violated various Articles in the Constitution of India, the provisions of the Electricity Act, 2003 (in short ‘2003 Act’) and is also tainted with malafides.
5. To be noted, though a prayer of malafides is set out, the person against whom malafides is urged, has not been impleaded, as is necessary in such matters.
6. Interim protection is sought on the ground that there is a pending demand. A copy of communication dated 22.11.2023 from the Central Transmission Utility of India Ltd., a wholly owned subsidiary of the newly impleaded R4 is circulated. The aforesaid communiation reiterates and re-visits demands made under invoices dated 17.04.2023, 01.06.2023, 03.07.2023 and 01.08.2023 amounting to a sum of Rs.791.6 crores.
7. Those demands have been raised much prior to the passing of the impugned Regulations and consequential Tariff Order, that latter being in the process, petitioner states, of being challeged before the Appellate Tribunal for Electricity Board (APTEL).
8. Those demands have been raised under 2020 Regulations, some portion of which has been set aside by APTEL in Appeal No.433 of 2022 by order dated 18.07.2023.
9. The Tariff Order makes it clear that the Regulations of the Central Electricity Regulation Commission (CERC), notified under the 2003 Act only have prospective effect.
10. In light of the aforesaid, let demands be raised afresh in order that there is clarity in this matter.
11. List on 04.01.2024. Counters by then with an advance copy served upon the petitioner.
4. Upon being mentioned, the following order has been passed on
28.11.2023.
This matter is listed under the caption ‘for being mentioned’.
2. After hearing all parties, paragraphs 8 and 10 of order dated 24.11.2023 is modified to read as follows:
8. Those demands have been raised under 2020
Regulations under four Tariff Orders. Three* of those orders has been set aside by APTEL in Appeal No.433 of 2022 by order dated 18.07.2023.
10. In light of the aforesaid, let demands be raised/reiterated afresh in order that there is clarity in this matter.
3. Except the aforesaid modification, order dated 24.11.2023 remains unaltered.
5. The present Writ Petition challenges demands made on 17.04.2023,
01.06.2023, 03.07.2023 and 01.08.2023, cumulatively, amounting to a sum of Rs.791.6 Crores.
6. The admitted facts in this matter are that the above demands are based on three Tariff orders, all of which relate to the 2020 Regulations. The Tariff orders were the subject matter of appeal before the Appellate Tribunal for Electricity Board (APTEL). All three Tariff orders have been set aside by the APTEL on 18.07.2023 and 03.10.2023. Incidentally, and unconnected to this matter, the appeal against the 4th Tariff order based upon the 2020 Regulation is still pending before the APTEL.
7. With the setting aside of the three Tariff Orders, prima facie, the legal position that obtains is that any demands made based on these Tariff Orders would consequently have to go.
8. The Central Electricity Regulatory Commission (Sharing of Inter-State Transmission Charges and Losses) Regulations, 2020, under Regulation 15 entitled ‘Billing’ sets out the following procedure for billing:
15. Billing.
(1) The Central Transmission Utility shall, raise the bills for transmission charges, as per the timelines specified in subclause (d) of Clause (5) of Regulation 14 of these regulations. (2) The bills for transmission charges for the DICs shall be raised by the Central Transmission Utility under the following three categories:
(a) The first bill of each billing month shall contain the transmission charges for the billing period in accordance with Regulations 5 to 8 of these Regulations.
(b) The second bill shall be raised in the months of April, July,
October and January every year for the quarter ending on 31st March, 30th June, 30th September and 31st December respectively to adjust variations on account of any revision in transmission charges allowed by the Commission, including incentives as applicable: Provided that under-recovery or overrecovery of any amount on account of such revision in transmission charges in respect of a billing period shall be billed by the Central Transmission Utility to DICs in proportion to their first bill in the relevant billing month.
(c) The third bill shall be raised in each billing month for Transmission Deviation charges, along with the first bill.
(3) The Central Transmission Utility shall raise separate bills, as per the timelines for the first bill, for transmission systems covered under Clauses (3), (6), (8), (9) and (12) of Regulation 13 and not covered under Regulations 5 to 8 of these regulations.
(4) All bills raised by the Central Transmission Utility shall also be posted on its website.
9. Prima facie, the above Regulation requires an invoice/adjustment invoice for a prior period to be raised afresh when a new Tariff order is issued. In the present case, the new Tariff order has been issued on 31.10.2023 (consequent on the set aside of the three Tariff orders by APTEL).
10. The case of the respondents is that the demands for the period April to August remain unchanged even under the new Tariff order dated 31.10.2023.
11. Be that as it may, it was incumbent, following the procedure set out under Regulation 15 for demands to have been raised subsequent to
31.10.2023. This is for the reason that the new Tariff order may have the effect of either increasing, decreasing or maintaining the earlier demands and it is only when a fresh demand is raised that a consumer will be aware of what the demand under the new Tariff order is and comply accordingly.
12. The respondents point instead to correspondences reiterating the demands made earlier. However, my prima facie view is that the reiteration would have to be as per Regulation 15 which requires raising of invoices, specifically, since Regulation 15 (4) mandates that those invoices be posted on the official website of respondents, which has admittedly not been done in the present case.
13. There shall be an order of interim stay of the demand, effective till the next date of hearing.
14. List on 04.01.2024 as an item successive to W.P.No.33224 of 2023.
Counters by then with an advance copy served upon the petitioner.
14.12.2023 sl
Note: * Registry is directed to correct and issue fresh copy of order dated 28.11.2023 in W.P.No.33224 of 2023 DR.ANITA SUMANTH,J.
Sl
W.P.No.34892 of 2023 and
WMP.Nos.34884, 34885 & 34886 of 2023
14.12.2023

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