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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Special Original Jurisdiction

W.P No.5224 OF 2012 etc Batch Cases

M/s. Sri Kannapiran Mills Limited,


Rep. by its Manager (Corporate Services)
Sowripalayam,
Coimbatore – 641 028. … Petitioner

Vs
1. The State of Tamil Nadu
Rep. by its Secretary to the Government
Energy Department,
Fort St. George,
Chennai- 600 009

2. TANGEDCO Ltd.
Rep. by its Chairman cum Managing Director
144, Anna Salai,
Chennai - 02.

3. Chief Engineer/Commercial
TANGEDCO,
144, Anna Salai,
Chennai - 02.

4. TANTRANSCO Ltd.
Rep. by its Chairman cum Managing Director
144, Anna Salai,
Chennai - 02

5. State Load Despatch Centre,


TANGEDCO.
144, Anna Salai,
Chennai 600 002

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Corrections
6. Tamil Nadu Electricity Regulatory Commission
Rep by its Secretary
Marshalls Road,
Egmore, Chennai - 600 008.

7. Superintending Engineer
TANGEDCO
Coimbatore Electricity Distribution Circle (North),
Coimbatore.

8.Superintending Engineer,
TANGEDCO,
Coimbatore Electricity Distribution Circle (Metro),
Coimbatore. … Respondents

COMMON COUNTER AFFIDAVIT FILED ON BEHALF OF THE


RESPONDENTS 2, 3, 4, 5, 7 & 8
I, G.Angamuthu, S/o. A.Gurusamy, Hindu, aged about 57 years and
employed as the Chief Engineer/Commercial, Tamil Nadu Generation and
Distribution Corporation Ltd.(TANGEDCO) and having office at NPKRR Maaligai,
No.144, Anna salai, Chennai 600002 do hereby solemnly affirm and sincerely
state as follows:
1. I am the 3rd respondent herein and as such I am well acquainted with
the facts of case, I am filing this counter affidavit on my behalf and also on
behalf of the respondents 2, 4, 5, 7 & 8 herein.
2. I have read the affidavit filed by the petitioner. The all allegations
contained in the affidavit including the grounds at para 23(A) to (O) of the
Petitioner are not admitted and denied and put the petitioner to the strict proof
of the same. I state that the above writ petition is not maintainable either on law
or on facts.
3. I submit that the petitioner being an agreement holder is bound by the

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provisions of Tamil Nadu Electricity Distribution and Supply Code and as such
estopped from contending otherwise.
4. I submit that due to the huge deficit in supply, there is a gap of about
3000-4000 MW between demand and supply. As the deficit has grown higher,
and the power and grid position has been warranted execution of restriction and
control measures on use of electricity, Government of Tamil Nadu was addressed
to implement the Restriction and control measures as already ordered by the
Government on 22.10.2008, and approval to undertake certain additional
restriction measures due to the huge quantum of deficit was also sought.
Restriction measures had already implemented during 11/2008 were only re-
imposed vide Memo. No.CE/Comml./EE/DSM/F.Power cut/D.39/12, dt.25.2.12
and in Memo.No.CE/Comml.EE/DSM/ F.Powercut/ D.48/ 12, dt.29.2.2012 certain
additional restriction measures considering the huge quantum of deficit in
power, was introduced. The Government of Tamil Nadu approved the Restriction
measures vide letter (MS) No.18 Energy (C3)Dept.,dt.29.02.2012.
5. It is submitted that the provisions of Regulation 38 of Tamil Nadu
Electricity Distribution Code framed by Tamil Nadu Electricity Regulatory
Commission(TNERC) says that the consumer shall curtail, stagger, restrict,
regulate or altogether cease to use electricity when so directed by the Licensee if
the power position or any other emergency in the Licensee‟s system or as per
the direction of the State Load Despatch Centre(SLDC)/State Sub Load Despatch
Centre(SSLDC) warrants such a cause of action. Notwithstanding anything
contained in any agreement/undertaking executed by a consumer with the
Licensee or in the tariff applicable to him, the consumer shall restrict the use of
electricity in terms of his/her maximum demand and /or energy consumption in
the manner and for the period as may be specified in any order that may be
made by the Licensee on the instructions of State Government or the
Commission. Hence there is no prior permission from TNERC in this regard since

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the above said regulation 38 of the said Distribution Code has given power to the
Licensee to implement the R&C measures as and when required.
6. I submit that considering the situation prevailing due to the huge
deficit in power and to ensure the stability and security of Grid, the measures on
restriction of usage of electricity was imposed in TANGEDCO‟s memo.
dt.25.2.2012 and 29.2.2012 .They are just a replica of the measures already
imposed on 1.11.2008 except introducing of 2 days power holidays, and
withdrawal of Banking adjustment for HT consumers using windmill energy upto
31.3.2012 apart from restriction of power purchase from third party
power/power exchanges during power holidays and load shedding period which
has been otherwise permitted during daytime, peak hours and night off peak
hours.
The order issued on 25.2.2012 was to implement measures as follows:
From 27.2.2012:
(i) Existing power cut of 20% for HT industrial and commercial services increased
to 40%.
(ii) 90% cut on HT industries during peak hours(6.00P.M to 10.00PM) extended
to HT commercial
(iii) Load shedding in Chennai and its suburban areas increased from 1 hour to 2
hours.
From 1.3.2012:
Introduction of power holiday to all HT, LTCT & LT industries for one day
between Monday and Saturdays on a staggered basis. In addition, HT industries
shall have to declare Sunday as weekly holiday.
In TANGEDCO‟s memo. dt.29.2.2012, instructions to fix the energy quota
for a period of 22 days instead of 30 days taking into account the 8 days power
holidays and to limit the drawl of power during power holidays were issued.
Apart from the above, banking adjustment for HT consumers using windmill
generation was withdrawn up to 31.3.2012, HT consumers were permitted to

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purchase third party /exchange power daily during the day time, peak hours and
night off peak hours except power holidays and load shedding period, and the
HT consumers were permitted to wheel energy from windmill/CPP during
daytime, peak hours and night off peak hours except power holidays and load
shedding period.
7. I further submit that due to unexpected events that has stalled the
commissioning of the ongoing power projects, which includes Koodangulam
power plant, shortage in the share of power received from the Central
Generating Stations, apart from the congestion in the transmission corridor which
limited the capacity of purchase of power resulted in introduction of measures
restricting the usage of electricity.
8. Even implementing the said R&C measures, it has not brought the
adequate relief. The feeders that supply consumers under the power holiday
category, also supply power to various type of consumers. By permitting
purchase of power during load shedding and power holidays, the desired relief
could not be obtained, since many of the consumers overdraw power and
destabilize the grid. The present power crisis is likely to improve from last week
of May 2012.
9. I submit that as per sections 32 and 33 of the Electricity Act,2003,
the State Load Despatch Centre is the apex body to ensure integrated operation
of the power system in the State and is responsible for optimum scheduling and
despatch of electricity within a State, monitor grid operations and shall give such
directions and exercise supervision and control as may be required for ensuring
the integrated operations and for achieving the maximum economy and
efficiency in the operation of the power system in the State. As per section 37 of
the Electricity Act 2003, the Appropriate Government may issue directions to the
State Load Dispatch Centre to take such measures as may be necessary for
maintaining smooth and stable transmission and supply of electricity. Therefore
though non discriminatory open access is permitted, when the power position

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and the grid position demand certain restriction measures on the use of
electricity in order to supply power to all consumers for a defined quantum of
period, measures as imposed in TANGEDCO‟s memoranda dt.25.2.2012 and
29.2.2012 have to be taken.
10. The Hon‟ble CERC has brought an amendment in the regulations viz
Unscheduled Inter Change ( UI) charges & related matters & Indian Electricity
Grid Code 2010 (IEGC) for narrowing down the operating frequency to 49.70 Hz
- 50.20 Hz from the existing 49.50-50.20 Hz.(Order dated 05.03.2012) With all
the Southern States already reeling under severe power crisis, increasing the
bandwidth will force us to overdraw at higher UI(Unscheduled Interchange) rates
which will have a deteriorating effect on the financial position of the Tamil Nadu
Utility. Any further over drawal will also affect the stability of the Southern grid
and may lead to catastrophic effect leading to total BLACK OUT.
11. Combinations of all these factors resulted in less than projected
availability in the state. The total deficit is likely to be around 1000 MW to
2500 MW after accounting for the relief from the existing R&C measures till June
2012. Therefore the shortage of power would be unmanageably large up to May
2012 end.
12. The deficit during the coming summer months is likely to be in the
order of 3800 MW. The present R & C measures provide a relief of only about
1400 MW during day time and 800 MW during peak hours (6.00 PM to 10.00
PM). Therefore the balance deficit is to be adjusted through imposition of severe
additional power restriction in order to save the grid with the available resources.
13. I submit that the TNERC intra state open access regulations 2005 (as
amended up to 31.12.2010) reasonably classified the consumers under open
access system as follows.
(i) Direct Customer. (ii) Embedded Customer
Direct customer means a person who is directly connected to the system
owned or operated by STU /transmission Licensee/Distribution Licensee in the

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State. Direct customer will be having dedicated line for open access system.

Embedded customer means a person who is not a direct customer. In other


words it can be classified as customers opting for open access but connected
along with other customers.
In order to have uninterrupted power supply the Embedded customer
may opt for a dedicated feeder or else to be connected with the Mixed load
feeder.
As per the definition clause Open access customer means a customer
permitted by the State Transmission Utility to receive supply of Electricity from a
person other than the distribution licensee of his area of supply or a generating
company or a licensee who has availed of or intends to avail open access.
14. It is submitted that on reading the above definitions in conjunction
with the undertaking given by the aspirants for open access, it can be clearly
understood while availing open access the customer undertakes to abide by the
terms “The provisions of the procedures for the scheduling of transactions”
issued by the Central Transmission Utility / State Transmission Utility if any will
be complied by us. The petitioners having very well understood the terms
mentioned in the contract cannot retract from the above obligation by the way of
filing Writ petition invoking the extra ordinary jurisdiction of this Hon‟ble High
court. Law of Estoppel will apply to this open access customers on the above
undertaking and they cannot redesign or modify the contract without mutual
consent and approval from the commission.
15. I submit that TANGEDCO has issued the impugned proceedings on
R& C measures only in the larger interest of the public. It is a well known fact
that the TANGEDCO is facing a deficit of 3000 to 4000MW due to the reasons
already stated and this may shoot up in the ensuing months. The availability of
energy has to be equally distributed among the needy ones without

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discrimination. On the larger interest of the state the individual interest have to
be kept in abeyance or else compromised.
16. I submit that the present situation /scenario of the grid /TNEB shall
be considered before passing any orders on the writ petition. While the writ
petitioners are claiming as a matter of right to procure power under open access
system, they have failed to consider the stability of the grid and interest of the
public at large. Even the fundamental rights are guaranteed under article 19(1)
however with reasonable restrictions envisaged in Art 19(2) of the Constitution
of India in the interest of the state, public order etc. I submit that the R& C
measures are nothing but the reasonable restrictions in the larger interest of the
State and Public order. The order has been issued in the line of regulation 38 of
the Tamil Nadu Distribution Electricity Distribution Code. However, a separate
petition is to be filed before the Hon‟ble TNERC for appropriate orders in this
regard.
17. I submit that the R& C measures have been introduced only after
ascertaining the impossibility of increase in generation and to avoid sabotage of
the Grid system. I further submit that as per Regulation 6.4.7 of the Indian
Electricity Grid Code framed by the Central Electricity Regulatory
Commission(CERC) the SLDC,SEB/distribution licensee shall always endeavour to
restrict the net drawal of the state from the grid to within the drawal schedules
whenever the system frequency is below 49.7Hz. The concerned SEB/distribution
licensee User,SLDC shall ensure that their automatic demand management
scheme acts to ensure that there is no overdrawal when frequency is 49.5 Hz or
below. If the automatic demand management scheme has not yet been
commissioned, then action has to be taken as per manual demand management
scheme to ensure zero overdrawal when frequency is 49.5 Hz. or below.
18. I submit that at present in TANGEDCO, there is no such system to
monitor the customers under open access system and the quantum of
power(demand and energy) drawn from the Grid by the customers continuously
under online monitoring system. In the absence of such automated system

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TANGEDCO has to rely on the integrity of the Open Access customers when the
same is done on manual basis.
19. The major problem lies in where the Generator selling power to HT
consumers under provision of Open Access, if fails for some reason or other, the
consumer continues to draw power from the TNEB grid meant for rationed
customers. This action will bring down the frequency and SLDC is forced to go in
for unscheduled load shedding to improve the frequency. The Open Access
consumers will be enjoying the power, whereas poor domestic consumers will be
suffering.
20. The other problem in the present system exploited by the Open
Access consumers is that under the pre text of buying power from third party,
they buy only a minimal quantum in the order of 30 or 50KVA to seek exemption
from the R&C measures and to draw the maximum required as they wish, they
even do not mind paying penal charges as the charges are far less than the cost
of Gen set generation.
21. Similarly the Wind captive HT consumers are also indulging in
consuming the Banking power under different time period than for the period
when they generated. It is an irony that these wind generators produce energy
only when there is wind in Tamil Nadu, the wind season is from July to
September. During this period the demand for power also comes down. The
quantum of energy which was not consumed by these consumers owning wind
generators during the lean period carry forward the same to be consumed during
summer with out any premium. The above facility/provision is not covered under
any regulation but was made to encourage development of non conventional
energy in last decade. The order that was challenged clearly states that this
provision is limited for a short period upto 31.03.12 and TANGEDCO will pay the
charges for the units banked with it. As the consumption pattern and over drawl
of these consumers can not be monitored on day to day basis, hence posing a

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threat to the grid stability. Therefore TANGEDCO is not inclined to accept their
prayer on the ground that under severe crisis situation this kind of
complimentary benefits can not be passed on which is not stipulated in any
electricity regulations.
22. Electricity is really different from everything else. It cannot be stored,
it cannot be seen, and no one cannot do without it, which makes opportunities to
take advantage of a provision (Banking). It is a public good that must be
protected from private abuse. If Murphy‟s Law were written for a market
approach to electricity, then the law would state „any system that can be gamed,
will be gamed, and at the worst possible time.‟ And a market approach for
electricity is inherently gameable. TANGEDCO does not want to allow private
interests to create artificial or even real shortages and to be in control.
23. All these exploitations takes mainly due to non provision of ABT
meters by Open Access customers which is mandated by the Open Access
regulations. In its absence any over drawal by HT consumers can be noticed
only at the end of the month and penal measures are being implemented as
per R & C measures which is a onetime affair for multiple violations.
24. In case of customer under the Embedded system connected to the
feeders with multiple consumers, the Board will not be in a position to extend
open access system during power holidays and load shedding period since they
could not be controlled or monitored by the existing system of surveillance and
expected relief could not be realised. In case if these embedded customers are
allowed to open access during the power holidays and load shedding period ,
then there is every chance of other customers coming under R& C measures may
tend to avail supply from the grid and sabotage the same. Similarly the
embedded consumers will not in a mind to inform the State Transmission Utility
about the failure in generating stations from where power is said to be accessed
and this may lead to over drawl of powers and destabilize the grid system.

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25. It is submitted that at present the TANGEDCO is in severe financial
crunch apart from power crisis, the R & C measures are introduced in the larger
interest of the public especially the domestic sectors. Now due to critical power
position in Tamil Nadu, any over drawal by Tamil Nadu from Southern grid will
attract penalty of UI charges i.e. around Rs 16.46/Unit as and when the
frequency is below 49.5 Hz and from 2nd April‟12 the same will be 49.7 Hz.
Hence if any over drawl by the Open Access customer in that time will result in
unscheduled load shedding to some other consumers and undue high penal
charges for the financially starving TANGEDCO.
26. Today power is scarce item in southern part of the country due to
various technical reasons and more important one being the National Grid is yet
to be connected with the Southern Grid. Even by paying higher price TANGEDCO
could not buy power from the market due to these technical reasons.
27. It is well known fact that the exams are going at present and the
domestic consumers are facing so much problem due to R& C measures,
however the general public unlike the petitioners are bearing with the same
understanding the situation now faced by TANGEDCO. Any relief as prayed for, if
granted may bring the condition from bad to worst condition and the sufferers
will be the public, the domestic consumers at large.
28. TANGEDCO has already seized of the matter with regard to Open
Access Consumers and approved a proposal for streamlining the consumption of
these consumers. This shall alleviate the major problems expressed by the
genuine petitioners. This in spite of regulatory provision available with
TANGEDCO under regulation 14 of TNERC Open Access Regualtion,2005 for
imposing curtailment subject to requirements of Grid code. In this context it is
submitted that as per regulation 14 of Intra State Open Access Regulations,2005,
when because of constraints or otherwise, it becomes necessary to curtail the
open access service of the customers, subject to the requirements of Grid code,

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the short term intra state customers shall be curtailed first, followed by the long
term intrastate customers and last of all open access to a Distribution Licensee.
29. The petitioners have approached this Hon‟ble court without
exhausting the channels for remedies in this regard.
30. I submit that the above provision of open access was accorded to
the HT consumers when Restriction and Control measures in Tamil Nadu were
in force, by the Government of Tamil Nadu during year 2008 and permitted
the generators in the State to sell their surplus power to the HT consumers
within Tamil Nadu under intra state short term open access transactions vide
Principal Secretary to Government D.O. Letter No.11111/A1/08 dt 10.11.2008.
But today TANGEDCO was forced to implement these measures in view of
severe shortage and unfair market practice adopted by most of the
consumers.
31. The allegations made in the affidavit are made to suit their case.
32. I state that no doubt, Section 23 of the Electricity Act 2003 gives
the power to TNERC to direct the Licensee to implement Restriction and
Control measures, I submit that the very same TNERC framed the rules under
the Rule 38 of the Tamil Nadu Electricity Distribution Code and gave the
powers to the licensee to impose Restrictions and Control measures.
Therefore, the impugned memo passed by the Chief Engineer /Commercial on
25.02.2012 and the consequential memo dated 29.02.2012 are valid and it
has been passed in the public interest only.
33. I submit that though Sections 9(1) & (2) of the Electricity Act
2003 provides for a person to construct, maintain or operate a captive
generating plant the right to open access, the second proviso of section 9(2)
says that such Open Access shall be subject to availability of adequate
transmission facility and such availability of transmission facility shall be
determined by the Central Transmission Utility or the State Transmission
Utility as the case may be.

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34. I submit that the Banking adjustment for High Tension
Consumers using Windmill energy is withdrawn upto 31.03.2012 and in lieu of
that payment shall be made by the distribution licensee as per Rules in force.
Therefore the petitioners are adequately compensated and no prejudice would
be caused to the petitioners in lieu of the Clause (4) of the TANGEDCO‟s
memo dated 29.02.12.
35. I submit that the above impugned TANGEDCO‟s memo dated
25.02.12 & 29.02.12 are passed taking into account the current Power
position and a pragmatic decision has been taken and duly considering the
directions of the State Government. Therefore, the impugned memos are
passed in public interest and a justifiable one taking into account the current
Power position of the State. The grounds raised by the writ petitioners are
untenable and unsustainable in law.
36. The petitioners have no locus standi to file this writ petition when
their undertaking in open access request is obligatory in nature.
37. It is submitted that unless the interim orders dated 2.3.2012 passed
by this Hon‟ble Court which is extended upto 16.3.2012 is vacated, the
respondent TANGEDCO and the public at large will be put to irreparable loss
which cannot be compensated by any means. Balance of convenience is in
favour of these respondents/TANGEDCO‟.
38. In the event of this, Honble court comes to the conclusion to grant
any relief to the writ petitioners the same may be granted with reasonable
restriction with a condition that in case of overdrawal (Demand & Energy) over
and above the quantum granted for access while their generating counterpart
fails to generate then, 72 Hrs restriction from availing Open Access supply from
the grid shall be imposed to protect the interests of TANGEDCO and in order to
maintain power supply to all other categories of consumers.

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39. In the above circumstances it is humbly prayed that this Honble court
may be pleased to:-
vacate the interim injunction already granted in WPs connected in this regard
and dismiss the writ petitions with costs and thus render justice.

BEFORE ME
Solemnly affirmed at Chennai on
this day of March,2012 and
the deponent has signed his name
in my presence

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HIGH COURT:: MADRAS
W.P No.7900/2012
etc.Batch Cases

Typed set

M/s G.Vasudevan
Counsel for Respondents
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)
W.P No.5224 of 2012 etc Batch case

M/s.Sri Kannapiran Mills Limited.,


Rep. by its Manager(Corporate services)
Sowriplayam
Coimbatore – 641028. .. Petitioner

Vs
The State of Tamil Nadu
Rep. by its Secretary to the Government
Energy Department,
Fort St.George,
Chennai – 600 009. ..Respondents

INDEX
____________________________________________
S.No. Date Description Page No.
____________________________________________
1. 28.4.2010 Notification – Central Electricity
Regulatory Commission,New Delhi.
2. 18.3.2011 Notification No.TNERC/ISOA/11/1-5
by Tamil Nadu Electricity Regulatory
Commission

____________________________________________

Copies of documents filed herein are certified as true copies.


Dated at Chennai, this the 15th day of March,2012.
Counsel for Petitioner.

The case on hand, is on the issue of challenging the executive direction issued by the Tamil
Nadu Generation and Distribution Corporation, curtailing the rights of the open access(OA)
customers to consume power during power holidays and load shedding hours arising out of
scarcity on availability of power . The petitioners have challenged the notification, questioning
the legality without enforcing the rights before the Tamil Nadu Electricity Regulatory
Commission by approaching this Honorable Court.

The petitioners are challenging that Board has issued a circular without getting a
concurrence of the Regulatory Commission. If the technical formalities are considered: both
the contentions are to be rejected but with the direction to approach the TNERC to substantiate
their rights. On one part, it has been challenged that right to open access has been curtailed by
an Executive Order and on the other hand, it is substantiated that the circular was issued in the
larger interest of the public, welfare of the State and to insulate exploitation by OA customers.

Fundamental rights cannot be compromised with the commercial right. In order to


tranquilize the situation, it is of the opinion that, better to strike out a balance between these
parties without infringement of any of the rights guaranteed. The need of the hour is to
address the concerns to both the parties. Accordingly, it is suggested that the respondents may
allow the direct customers / embedded customers with dedicated feeders under Open Access
System, during Power Holidays and the Load Shedding Period with a condition not to over
draw/consume power and suspend Open Access for a limited period of 3 days upon noticing
violation on every occasion. Wind Banking customers shall consume power during period other
than power holidays, load shedding and lighting peak hours. The Embedded customers
connected to feeders with mixed loads may be allowed open access when power holiday & load
shedding is not in force. All the private generators selling power to HT consumers must furnish
scheduling details on day ahead basis to TNSLDC: any lapse on this liable for OA suspension for
48 Hrs without any cost for generation if any.

Both the parties must accept that the circular has been issued due to the exigency
prevailed and with the concurrence of the state. The parties in this case & before this Court are
at liberty to approach the Honourable TNERC, the TNERC may pass a appropriate order after
considering the contention and rivalry. The writ petitions are disposed with these observations.
Consequently, miscellaneous petitions are closed.
HIGH COURT:: MADRAS
W.P No.7900/2012
etc.Batch Cases

COMMON COUNTER AFFIDAVIT


FILED ON BEHALF
OF THE RESPONDENTS 1, 2 & 3

M/s G.Vasudevan
Counsel for Respondents

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