w w w . L a w y e r S e r v i c e s . i n



Southern Alloy Foundries Pvt. Ltd. v/s Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), rep. by its Chairman and Managing Director & Others


Company & Directors' Information:- K S FOUNDRIES PRIVATE LIMITED [Active] CIN = U27200TZ2010PTC016603

Company & Directors' Information:- K J FOUNDRIES PRIVATE LIMITED [Active] CIN = U74210TN2009PTC070408

Company & Directors' Information:- D. S. FOUNDRIES INDIA PRIVATE LIMITED [Active] CIN = U28112KA2013PTC070230

Company & Directors' Information:- A K P FOUNDRIES PRIVATE LIMITED [Active] CIN = U27310KA1978PTC003416

Company & Directors' Information:- SOUTHERN ALLOY FOUNDRIES PRIVATE LIMITED [Active] CIN = U27209TN1962PTC004940

Company & Directors' Information:- K N D FOUNDRIES PRIVATE LIMITED [Strike Off] CIN = U74900KA1982PTC005064

Company & Directors' Information:- M. P. ALLOY PRIVATE LIMITED [Strike Off] CIN = U28111UP1995PTC018405

Company & Directors' Information:- G R FOUNDRIES PVT LTD [Strike Off] CIN = U28939WB1964PTC026278

Company & Directors' Information:- L M S FOUNDRIES PVT LTD [Active] CIN = U67120GJ1974PTC002507

Company & Directors' Information:- B D K ALLOY PRIVATE LIMITED [Amalgamated] CIN = U27106KA1973PTC002355

    W.P. No.25155 of 2011

    Decided On, 20 December 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE V. DHANAPALAN

    For the Petitioner: N.L. Rajah, Advocate. For the Respondents: G. Vasudevan, Advocate.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the 2nd respondent culminating in his impugned proceedings Lr.No.SE/CEDC/N/AEE/Dev/AE/D2/F HT 1100/D 707/11 dated 24.09.2011 and quash the same and direct the respondents to sanction additional demand of 250 KVA over and above the existing demand of 1,200 KVA for the petitioner's HTSC No.1100 without insisting on shifting the HT metering point to a distance within 30 metres from the petitioner's factory main gate.)

1. Challenging the proceedings of the 2nd respondent in Lr.No.SE/CEDC/N/AEE/Dev/AE/D2/F HT 1100/D 707/11 dated 24.09.2011, praying to quash the same and for a direction to the respondents to sanction additional demand of 250 KVA over and above the existing demand of 1,200 KVA for the petitioner's HTSC No.1100 without insisting on shifting the HT metering point to a distance within 30 metres from their factory's main gate, the petitioner has filed this writ petition.

2. It is the case of the petitioner their Foundry, which was formally inaugurated nearly five decades ago is situated on 8.34 acres of land on G.N.T. Road, wherein, two 11 KVA and one 33 KVA overhead lines pass through their lands and hence, they are unable to put up any construction in the said area as per the Regulations. Electricity supply to the petitioner's factory is drawn from the 11 KVA line. Even at the time of commissioning of the factory, taking into account their future needs, the petitioner installed the electrical structure to receive 1,500 KVA. The petitioner is having HTSC to its unit bearing No.1100. The original KVA demand allotted to the petitioner was 1500 KVA. The petitioner surrendered the original demand and was enjoying 800 KVA for some years. Thereafter, the petitioner applied for additional demand of 200 KVA in 2005 and another additional demand of 200 KVA in 2007. These were duly sanctioned and the present demand for the petitioner 1,200 KVA.

2a. Since the petitioner required additional demand, vide their letter dated 24.11.2010 addressed to the 2nd respondent, they applied for 250 KVA additional demand. Along with their request, the petitioner enclosed all the relevant documents including the Form of Application for additional load, approval dated 10.12.2009 granted under Rule 63 of the Indian Electricity Rules, 1956, land ownership and connected papers, consent order issued by the TNPCB, requisition for exemption from providing the metering point near the main gate, etc. The said request for exemption from providing the metering point near the main gate was made vide a separate letter dated 24.11.2010. In that letter, the petitioner had stated that their metering point is inside their factory, which is just 150 metres from the main entrance and also enclosed a drawing. The petitioner had set out reasons as to why the metering arrangement cannot be disturbed and that in the past while sanctioning an additional demand of 200 KVA in November 2007, they have been exempted from the provisions requiring the metering point to be near the main gate.

2b. The 2nd respondent and other officials of the 1st respondent considered the petitioner's request and made verifications with regard to disputes or cases if any filed by the petitioner against the Board and its status and arrears of any charges payable by the petitioner. The above aspects were all cleared but however, the 2nd respondent vide his letter dated 01.12.2010 had stated as follows :

"On inspection of your factory, it was found that the existing HT metering point is situated at 150 meters from the main gate which is accessible but not visible from the main gate. As per Board's norms, the metering point has to be located within 30 meters from the main gate which should be easily accessible and visible. Therefore, you are requested to shift the metering location nearer to the main gate within 30 meters, so as to process your request for the additional demand of 250 KVA."

2c. Vide letter dated 03.12.2010, the petitioner had replied to the 2nd respondent's letter dated 01.12.2010 setting out reasons as to why they are unable to shift the metering location near the main gate as advised by the 2nd respondent. To the said letter, the 2nd respondent vide his letter dated 19.01.2011 had replied as follows:

"As per TNERC Regulation 29(14)(b) of the Tamil Nadu Electricity Distribution Code, the HT metering point has to be located within 30 meters from the main gate. But, in your case, it is located at 150 meters from the main gate which is against the TNERC norms. Hence, you are requested to shift the HT metering point within 30 meters nearer to the main gate and intimate the same to this office for taking further action on your request."

2d. The petitioner would further state that vide letter dated 14.02.2011, they brought to the knowledge of the 2nd respondent the exemptions contained in 29(14) of the TNERC Distribution Code and that they complied with the provisos and qualified for the exemption and requested for the same. As there was no response from the 2nd respondent, the petitioner addressed a letter dated 22.04.2011 to the Member Distribution (North) of the then Tamil Nadu Electricity Board (now TANGEDCO), letter dated 28.04.2011 to the Chairman of the 1st respondent, letter dated 11.04.2011 to the Director, Distribution of the 1st respondent setting out there in the need for additional demand and sought for exemption from providing the metering location near the main entrance.

2e. The 2nd respondent, vide letter dated 04.06.2011 replied as under:

"It is hereby informed that your request to exempt from shifting of the existing HT metering point to a distance within 30 meters from the main gate could not be considered as it does not satisfy the condition stipulated regarding the HT metering point location in the TNERC Distribution Code.

Hence, you are requested to shift the existing HT metering point to a distance within 30 meters from the main gate and also should be easily accessible and visible from the main gate."

2f. On 09.06.2011, the petitioner had addressed the Chairman of the 1st respondent and stated that the 1st respondent provides a 11 KVA line near the main entrance and they have no hesitation in shifting the metering point near the main gate. The petitioner further requested for sanction of additional demand of 250 KVA pending shifting of the metering point to the main gate within 30 metres. Vide letters dated 18.07.2011 and 12.09.2011, the petitioner addressed the 3rd respondent and requested for granting exemption to their unit from shifting the metering point and for sanction of 250 KVA additional demand. The petitioner had clearly set out the reasons as to why they were seeking exemption. However, there was no response in this regard from the 3rd respondent. While so, vide his impugned proceedings dated 24.09.2011, the 2nd respondent turned down the petitioner's request for additional demand and exemption from shifting the existing metering point stating as under:

"With reference to the above cited (1), it is hereby informed that your request to exempt from shifting of the existing HT metering point to a distance within 30 meters from the main gate could not be considered as it does not satisfy the condition stipulated regarding the HT metering point location in the TNERC Distribution Code.

Hence you are requested to shift the existing HT metering point to a distance within 30 meters from the main gate easily accessible and visible from the main gate. And also you have to pay the shifting charges along with the charges for extending the UG cable from the existing line to the proposed metering point location."

Aggrieved by the said order and praying to quash the same, the petitioner is before this court with this writ petition.

3. Respondents/TANGEDCO have filed counter affidavit, inter alia stating as follows:

(i) The petitioner being an agreement holder is bound by the terms and conditions of supply and the provisions of Tamil Nadu Electricity Distribution Code, 2004 (hereinafter referred to as 'Distribution Code') and Tamil Nadu Electricity Supply Code, 2004 (hereinafter referred to as 'Supply Code') and as such estopped from disputing the demand.

(ii) The HT A/c.No.1100, M/s.Southern Alloy Foundries (P) Ltd., at No.149, GNT Road, Ponniammanmedu, Chennai - 10 had applied for an additional demand of 250 KVA over and above the existing demand of 1200 KVA in Madhavaram II Section. The existing metering point is located at about 150 meters from the main gate provided at the GNT Road, hence the consumer was requested to shift the metering point within 30 meters from the main gate vide Lr. No. SE/CEDC/N/AEE/Dev/AE/D2/F HT 1100/D 236/11 dated 04.06.2011, as per the TNERC Regulation 29(14)(b) and also as per the Memo No.3752/IEMC/EET/AEE/AE1/94, (Technical Branch), dated 29.01.1994, which states as below :

"In respect of new HT service connections, to prevent theft of energy the metering arrangements should be erected at the nearest entry point in the consumer's premises for quick accessibility to the metering point by the inspecting officers and wherever possible the existing metering arrangements may also be shifted in a phased manner."

(iii) As per the Terms and Conditions Clause 8.04, the metering point in H.T. Service shall be nearer to the entrance. Subsequently, it was clarified that the maximum distance of the metering point shall be 30 meters from the main entrance without any obstacles for clear visibility vide Memo ACE/IEMC/EE3/AEE1/F.Instruction/D.195/2000 dated 29.03.2000.

(iv) After the enactment of Electricity Act, 2003 and TNERC Regulations, 2004, the Regulation No.29(14)(b) of the Distribution Code states that "provided that the Chief Executive Officer or any other officer not less that in the rank of a Chief Engineer, authorised by the Chief Executive Officer may approve the point of supply at a place beyond 30 meters from the main gate, if he is satisfied that such place is

1. easily accessible and visible to the officials of the licensee

2. is safe and secure

3. is not susceptible to malpractice. Also there shall be no compromise on technical grounds, while relaxing the distance criteria.

(v) The metering point exemption will be permitted by the Chief Engineer/Distribution in case of additional demand requests in existing services, only where the metering location is easily accessible, visible, safe, secure and not susceptible to malpractice i.e. as per Regulation No.29 (14)(b) of the Distribution Code.

(vi) Subsequently, the applicant had requested for exemption of metering point and to effect the additional load, but was not considered and requested to shift the metering point vide SE/CEDC/N/AEE/Dev/AE/D2/F 1100/D 707/11 dated 24.09.2011. Hence, the consumer approached this court for getting exemption of metering point location, stating that the additional load was effected during 2007 without changing the metering point location. Actually, the metering point exemption was issued vide Lr.No.CED/CNR/EET/T1/F HT-MP/D 349/2007 dated 14.08.2007 based on the merits of the consumers' representation dated 30.06.2007, which states as follows :

"It is neither possible nor feasible to run the cable to the point from the existing 11 KV line running in the middle of the factory and to run back the cable tot eh distribution point which is also located next to the present metering point."

(vii) It is also stated the petitioner itself has given a letter on 14.02.2011 stating that "however, if your goodself still persist on shifting present metering location near the main gate within 30 meters, we may be given minimum one year time." The consumer was requested to do so as per the TNERC Regulation 29(14)(b). All the applicants irrespective of small scale unit (or) multinational companies are requested to provide the metering point location as per the TNERC Regulation 29(14)(b). The present TNERC Regulation 29(14)(b) has to be strictly implemented in order to avoid any malpractices or financial loss to TANGEDCO. The point of supply shall be given within 30 meters from the main gate easily accessible and visible and satisfactory with regard to security aspects. Failure to comply with the above requirements will result in denial of supply.

4. Mr.N.L.Rajah, learned counsel for the petitioner has strenuously contended that the imposition of present condition as per the provisions of the new Act and Code will have no application to the petitioner's case as they are the existing licensee/consumer for the past five decades and in earlier occasions, i.e. in 2005 and 2007, the very same respondent has considered the grant of exemption and allowed the metering point in the same location. But, now they have turned down the petitioner's request, which is an arbitrary exercise of power. He would also submit that even as per the new Regulation, it is for the Chief Engineer to exercise the discretion to permit any metering point beyond 30 meters. But in the impugned communication, the Superintending Engineer has taken a decision without referring the matter to the Chief Engineer.

5. Per contra, Mr.G.Vasudevan, learned counsel appearing for the respondents/TANGEDCO submits that if the present application for exemption is considered as per the Regulation of the TNEB and the Regulatory Commission, then the decision arrived at by the 2nd respondent cannot be faulted with and that the petitioner has to comply with the requirement of shifting the metering point within the distance contemplated as per the provisions of the Code. However, on instructions, he would submit that in earlier occasions, exemption was considered by the Chairman of the Board and the Chief Engineer was unable to exercise his discretion.

6. Heard the learned counsel for the parties and perused the material documents annexed in the typed set of papers and the relevant provisions of law.

7. A perusal of the impugned proceedings dated 24.09.2011 would reveal that the Superintending Engineer, the 2nd respondent herein while rejecting the petitioner's request for an additional demand of 250 KVA has informed that their request to exempt from shifting of the existing HT metering point to a distance within 30 meters from the main gate could not be considered as it does not satisfy the condition stipulated regarding the HT metering point location in the Tamil Nadu Electricity Distribution Code and requested to shift the existing HT metering point to a distance within 30 meters from the main gate easily accessible and visible from the main gate with a demand to pay the shifting charges along with the charges for extending the UG cable from the existing line to the proposed metering point location.

8. The petitioner established the Foundry five decades ago and they continue to have HTSC connection to its unit bearing No.1100. The original KVA demand allotted to the petitioner was 1500 KVA. Later, they surrendered the original demand and were enjoying 800 KVA for some years. Thereafter, they applied for additional demand of 200 KVA in 2005 and another additional demand of 200 KVA in 2007, which were duly sanctioned. The present demand for the petitioner is 1200 KVA and now they claim additional demand of 250 KVA. It is seen that in earlier occasions i.e. in 2005 and 2007, the petitioner's request for additional demand were sanctioned and the said sanction is in operation even today.

9. It is true that the Electricity Act came into force from 2003 and the Electricity Distribution Code from 2004. Even after the commencement of the Act, 2003 as well as the Code, 2004, the additional demand of the petitioner was considered by the respondents with the same metering point and now in the same line, the petitioner requests to grant exemption for the present additional demand of 250 KVA also. It is not known to this court as to why the respondents, particularly the Chief Engineer and the Superintending Engineer, who, in earlier occasions have considered the petitioner's request, but, turned down their plea now in allowing the metering point in the same location and communicated to the petitioner to shift the same to a distance within 30 metres from the main gate. Finding certain difficulties in shifting the metering point, the petitioner had communicated to the 2nd respondent vide letter dated 14.02.2011 intimating that even if they insist upon to shift the present metering point near the main gate within 30 metres, they may require an year's time to do so. Such request of the petitioner has also not been considered by the respondents in the impugned communication and it was simply rejected directing the petitioner to shift the line.

10. Regulation 29(14)(b) of the Tamil Nadu Electricity Distribution Code, 2004 reads as under:

"For high tension service connections:

(b) For outdoor metering, a clear space of 10m x 4m or 5m x 5m open to sky shall be provided.

This enclosure shall be at the periphery of the building and shall be cut off from other portions of the premises by fire resistance walls. These areas shall be specifically shown in the plan. Before the plan is sent to the competent authority for approval, it shall be sent to the engineer and got approved. The point of supply shall be within 30 meters from the main gate easily accessible and visible and satisfactory with regard to security aspects. Failure to comply with the above requirements will result in denial of supply.

Provided that the Chief Executive Officer or any other Officer not less than in the rank of a Chief Engineer authorised by the Chief Executive Officer may approve the point of supply at a place beyond 30 meters from the main gate, if he is satisfied that such place is :

(a) Easily accessible and visible to the officials of the licensee

(b) is safe and secure and

(c) is not susceptible to malpractice also there shall be no compromise on technical grounds while relaxing the distance criteria."

11. From a reading of the above provision, it is clear that the Chief Engineer concerned may approve the metering point of supply at a place beyond 30 metres, if he is satisfied that such place is easily accessible and visible to the officials of the licensee and it is safe and secure, also not susceptible to malpractice without any compromise on technical grounds while relaxing the distance criteria.

12. The above conditions available to the Chief Engineer in an earlier occasion have been duly exercised and the said discretion has been considered by them and exemption was granted to the petitioner in the years 2005 and 2007. But, in the present circumstances, the respondents are taking a different stance. As the impugned communication does not reveal any views of the Chief Engineer, the accessibility, visibility of the place, safety and security of the place are matters for concern for the Chief Engineer to exercise his discretion and decide the matter. On the contrary, the 2nd respondent vide the impugned communication has simply rejected the petitioner's request and directed the petitioner to shift the existing HT metering point to a distance within 30 metres from the main gate.

13. The settled legal principle is that in a statute, if a particular authority is

Please Login To View The Full Judgment!

given power to deal with a particular aspect of the matter, that power has to be exercised in the manner as provided. Similarly, if the discretion is given to such authority, the same should be exercised in a fair and proper manner. As per the Regulation, the competent authority who has been given power to approve the point of supply is the Engineer concerned, viz. the Superintending Engineer; provided that the Chief Executive Officer or any other Officer not less than in the rank of a Chief Engineer authorised by the Chief Executive Officer may approve the point of supply at a place beyond 30 metres from the main gate, if he is satisfied that such place is easily accessible and visible to the officials of the licensee, safe and secure and not susceptible to malpractice and also there shall be no compromise on technical grounds while relaxing the distance criteria. Such power of discretion is available to the Chief Engineer and the same could be exercised in a fair and reasonable manner in all occasions and circumstances. 14. Analysing the above factors, the demand made by the 2nd respondent in the impugned communication in any angle is not acceptable and unsustainable for the reasons that the authority concerned who passed the impugned communication has to place the matter before the Chief Engineer to exercise his discretion to grant exemption to the petitioner beyond 30 meters or in case, if the discretionary authority has any difficulty, then he may place the matter before the Chairman as he had done in earlier occasions in the years 2005 and 2007. Therefore, the impugned communication suffers from arbitrariness and total non-application of mind and is liable to be quashed. Accordingly, it is quashed. However, the matter is remanded to the 3rd respondent to exercise his discretion by taking a decision on his own or in case of any difficulty, the same may be placed before the Chairman concerned as he had done in earlier occasions and pass appropriate orders within a period of two (2) weeks from the date of receipt of a copy of this order. The writ petition is allowed with the above direction. No costs. Consequently, connected M.P.No.1 of 2011 is closed.
O R