ANDHRA PRADESH ELECTRICITY REGULATORY COMMISSION
Hyderabad
Sri
Surinder Pal, Member
O. P. No. 30 of 2006
and
(Respondent in I.A.No. 16 of 2006)
and
(Petitioners in I.A.No. 16 of 2006)
For easy reference, parties are referred to as they are arrayed in the main petition.
These petitions coming on for hearing on 18.11.2006 in the presence of Sri K.Gopal Choudary, Advocate, for the Petitioner and Sri P.Shiva Rao, Advocate, for the Respondents and having stood over for consideration to this day, the Commission delivered the following:
O.P.No. 30 of 2006 is a petition seeking adjudication under Section 86 (1) (f) of the Electricity Act, 2003, (hereinafter referred to as ‘the Act’) of (a) the dispute arising out of the requests of the petitioner for change(s) in the schedule of consumers in terms of the Power Purchase and Wheeling Agreement (for short ‘PPWA’) dated 04.09.1998 / 18.01.2000 and allegedly continued and concerted wilful non-response / delay / refusal for invalid reasons and / or mala fide purpose by the respondents, causing harm, injury and wrongful loss to the petitioner and matters connected with and relating thereto and (b) the dispute relating to accounting of the balance of banked energy standing to the credit of the petitioner.
2. I.A.No. 16 of 2006 is a petition filed under Order II, Rule 6 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) to direct the petitioner to elect one of the two issues in the main case and deal the other issue separately so as to enable the respondents to contest effectively.
3. The following are the averments made in the main petition:
(i) The Petitioner is a generating company which has established a mini-hydel power plant of the capacity of 2.80 MW on the Guntur Branch canal. The energy generated by the Petitioner is substantially sold to the HT consumers in Andhra Pradesh and such energy is wheeled to the consumers under and in terms of PPWA dated 04.09.1998 as amended on 18.01.2000.
(ii) The consumers to whom the said energy can be sold are set out in Schedule 3 to the PPWA. Since the generation of electricity from the hydel power plant is seasonal and varies from year to year and from time to time within any year, depending on the vagaries of nature and availability of water, it is often necessary to make changes to the Schedule of consumers.
(iii) Explanation 3 to Clause 1.16 of the PPWA provides that if the Petitioner wants any change in the list of scheduled consumers during the term of agreement, it shall submit such a list to the 1st Respondent for approval and that the 1st Respondent is to accord such approval taking into account system exigencies.
(iv) During the last three years between 2001-02 and 2004-05, the generation of electricity by the Petitioner was severely affected due to non-availability of sufficient water to operate the power plant. In such circumstances, the Petitioner could not maintain any significant or continuous sale of electricity even during the season. Consequently, many of the erstwhile consumers of the Petitioner stopped purchasing electricity from the Petitioner and it became necessary for the Petitioner to find other consumers and have the Schedule of consumers changed. However, in recent times, the 1st Respondent in concert with Respondents 2 to 5 have been unduly and unreasonably delaying, ignoring and / or declining change of schedule of consumers on untenable grounds.
(v) Aggrieved by the conduct of the Respondents, the Petitioner filed O.P. No. 24 of 2005. By order dated the 28.01.2006, this Commission, interalia, set aside the communication dated 25.10.2005 rejecting the request of the Petitioner in respect of M/s. Akash Hotels, and directed the Respondents to decide on the Petitioner’s request in the case of ITC Ltd and ONGC Ltd, Rajahmundry. The Respondents did not comply with the order of the Commission within the time allowed thereby.
(vi) While so, the Petitioner submitted a request dated 25.01.2006 for the inclusion in Schedule 3 of the PPWA, of International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) who is the consumer of the 2nd Respondent with service connection No.MDK-003.
(vii) The Petitioner filed Appeal No. 47 of 2006 before the Hon’ble Appellate Tribunal for Electricity (for short, ‘the ATE’ or the ‘Tribunal’) against the order dated 28.01.2006 of this Commission in O.P. No. 24 of 2005. The ATE was pleased to dispose of the said Appeal by order dated 11.05.2006 interalia directing the Respondents to decide all applications by the generators for addition of parties to the schedule of existing consumers within a period of three weeks positively from the date of receipt of applications.
(viii) By letter dated 03.06.2006, the Chief General Manager / Projects & RAC of the 3rd Respondent intimated the Petitioner that the Chief General Manager / Commercial & RAC of the 2nd Respondent has informed that the wheeling of power for third-party sale by the Petitioner to the proposed consumer ICRISAT is technically not feasible, and hence the request for change of scheduled consumer cannot be considered in addition to six consumers already approved vide the amended agreement dated 30.05.2006 as per the orders of the ATE. By letter dated 10.06.2006, the Petitioner requested the CGM / Projects & RAC of the 3rd Respondent to intimate the detailed reasons along with the copies of the relevant particulars and field reports as the letter dated 03.06.2006 gives no reasons and details for the conclusion that it is not technically feasible. The CGM / Projects & RAC of the 3rd Respondent sent letter dated 15.06.2006 to the CGM / Commercial & RAC of the 2nd Respondent requesting him to furnish details of non-feasibility for the said consumer.
(ix) By letter dated 11.07.2006, the Petitioner
requested the Respondents to include four more consumers in the list of
scheduled consumers, in addition to the
existing list of consumers. By letter dated 21.07.2006, CGM / Projects &
RAC of the 3rd Respondent informed that the ICRISAT comes under the
purview of the 2nd Respondent, and the reasons for non-feasibility
for availing of energy from the Petitioner’s plant to ICRISAT may be obtained
from the CGM / Comml & RAC of the 2nd Respondent.
(x) By letter dated 22.07.2006, the Petitioner requested the inclusion of two more consumers in addition to the existing consumers. By letter dated 01.08.2006, the Petitioner requested the inclusion of another consumer.
(xi) It is submitted that the rejection of ICRISAT by the Respondents is arbitrary and clearly mala fide. The ICRISAT has itself stated that the purchase of electricity from the Petitioner will not result in the recorded demand exceeding their Contracted Maximum Demand (hereinafter referred to as the ‘CMD’). It is submitted that the rejection in similar circumstances was held to be bad and accordingly set aside by the order of this Commission dated 28.01.2006 in O.P. NO. 24 of 2006. It is submitted that the 3 weeks’ time specified by the ATE in the order dated 11.05.2006 expired on 03.08.2006 in respect of the request dated 11.07.2006 which was received by the Respondents on 12.07.2006. Considering the conduct of the Respondents, and the scant respect shown by them to the orders of the Hon’ble Appellate Tribunal and this Commission, and in view of the demonstrated hostile, capricious and malicious intention of the Respondents to non-conventional energy generating companies in general, there is every reason for the Petitioner to apprehend that none of the applications made by the Petitioner will be considered and decided either within the time directed by the ATE or in accordance with reason, fair play and good conscience.
(xii) It is submitted that the persistent conduct of the Respondents, and the abject frustration, desperation, harassment and wrongful loss willfully caused thereby to the Petitioner, gives rise to a dispute between the Petitioner and the Respondents which requires to be adjudicated by the Commission for suitable remedy as prayed for.
(xiii) Pursuant to the order dated 11.05.2006 of the ATE directing the Petitioner and the Respondents to determine the balance banked energy to the credit of the Petitioner, the Petitioner sent a letter dated 23.05.2006 requesting confirmation of the balance banked energy as per the statement enclosed therewith of the details of the generation, sale and banked hydroelectric energy till the billing month of April 2006 showing 25,75,650 units as the balance banked energy. As no reply was received, reminders dated 10.06.2006 and 19.06.2006 were also sent.
(xiv) By letter dated 04.07.2006, the CGM / Projects & RAC of the 3rd Respondent requested the Petitioner to approach the energy billing centre of the 1st Respondent for reconciliation of banked energy. Again, the said CGM sent a letter dated 14.07.2006 stating, interalia, that the Petitioner is requested to reconcile the banked energy as already informed in letter dated 04.07.2006 and that the revised wheeling schedules be submitted to take further action in the matter. The Petitioner replied by letter dated 14.07.2006 stating that the undisputed banked energy was 23,18,560 units as recorded by the ATE in its order dated 11.05.2006, and that therefore the implementation of the order need not await full settlement of the total quantity of banked energy.
(xv) By letter dated 14.07.2006, the Chief General Manager / Expenditure of the 2nd Respondent informed that the applicable wheeling charges were billed during the period from October 2005 to March 2006 in respect of M/s Asian Paints as per the Tariff Order approved by this Commission and in the light of Section 56 (2) of the Electricity Act, 2003. It is submitted that, by the above letter, the Petitioner can only understand that the 2nd Respondent was in admitted breach and violation of the order dated 08.09.2005 in Appeal No. 51 of 2005 granting a stay of operation of the impugned tariff order passed by the APERC dated 22.03.2005 to the extent of wheeling charges subject to the condition that the Petitioner shall continue to pay wheeling charges @ 2% of wheeled energy.
(xvi) As there was no further progress in the matter, the Petitioner sent letters, requesting reconciliation and confirmation of the banked energy as per the statement already submitted. It is submitted that the Respondents are not taking steps to reconcile the account of banked energy within a reasonable period. Further, it appears that the Respondents are withholding wheeling charges at 5.78% instead of 2% in contravention of the order of the ATE dated 08.09.2005. Furthermore, the Respondents are not giving effect to the order of ATE dated 11.05.2006 in respect of banking charges while accounting for the banked energy. There is therefore a dispute in accounting for and reconciling the banked energy which is required to be adjudicated by this Commission.
(xvii) It is therefore prayed that the Commission may be pleased to adjudicate the dispute and
(a) declare that the rejection of ICRISAT with Service Connection No. MDK-003 communicated and / or indicated by the 2nd Respondent’s letter dated 03.06.2006 is invalid and void;
(b) to direct the Respondents to forthwith amend the Schedule 3 of the PPWA by including the additional consumers i.e., ICRISAT, South Asia LPG Co. Pvt. Ltd., Manjeera Estates (P) Ltd., Manjeera Hotels & Resorts Ltd., Maya Bazar, Occan Park and Ramoji Film City;
(c) to declare that the balance of banked energy standing to the credit of the Petitioner as at end of billing month of May 2006 is 25,82,534 units and to direct that the accounts of banked energy be settled accordingly;
(d) to direct the Respondents and / or the other respondents to pay the costs of this petition, legal and other costs and also exemplary costs;
(e) and / or pass such other or further orders as the Commission considers fit and just in the facts and circumstances of the case.
(xviii) Pending disposal of the main petition, it is prayed that the Commission may be pleased to direct the Respondents to forthwith wheel the energy in accordance with the monthly allocations given by the Petitioner to any or all of the consumers mentioned in Schedule 3 of the PPWA and also the additional consumers as requested by the petitioner as per the allocation given by the Petitioner for the month of August 2006 and thereafter from banked energy and / or generated energy, and / or pass such other order as the Commission considers fit and proper in the facts and circumstances of the case.
4. On behalf of respondents, a common counter was filed on 23.09.2006 through their Counsel. The averments made in the counter are as follows:
(i) Basically, the petitioner has filed this
petition for two separate grievances based on separate causes of action, viz. (i) the petitioner is said to be
aggrieved at the decision of the Respondent No.2 in holding that the request
for inclusion of M/s ICRISAT in list of scheduled consumers is not possible due
to system exigencies and non-feasibility, etc., and (ii) settlement of
differences of quantum of banked energy lying at the credit of petitioner. The said two matters are neither connected
to each other nor arisen out of one communication by any of the respondents.
(ii) The petitioner is obligated upon to file separate petitions concerned to every dispute based on separate cause of action. Therefore the petition is bad for misjoinder of cause of action.
(iii) As a matter of fact, by joining the aforesaid two causes of action in one petition, it is causing prejudice to the respondents. For one cause of action, only some of the respondents are answerable and for the other cause of action they are not concerned. As such, prejudice will be caused to the respondents. Therefore, the petitioner may be directed to segregate the reliefs sought for.
(iv) Although at the time of entering the PPWA dated 04.09.1998, the APSEB (the erstwhile A.P.State Electricity Board, hereinafter also referred to as the ‘Board’) was the only institution which dealt with the business of generation, transmission, procurement and distribution etc. Later, due to various transfer schemes effected as contemplated in the statute and several consequent Government Orders, the Respondent No.1 has no concern with any of the grievances projected by the petitioner, more particularly, after 09.06.2005 and therefore making it a party is neither necessary nor justified. As such, the proceedings filed by the petitioner are bad in law. The PPWA dated 04.09.1998, in view of the Third Transfer Scheme notified vide G.O.Ms.No.58 dated 08.06.2005 is now vested in APSPDCL, the third Respondent, in whose jurisdiction the petitioner’s power plant is located. From 09.06.2005 onwards, the third Respondent has been dealing with the trading of power/energy.
(v) Even according to petitioner, the Respondents No.2 and 3 who are concerned to examine the technical exigencies of the system of transmission/wheeling of energy to the proposed new consumer, have categorically stated that it is not feasible to wheel the power to ICRISAT from the end of petitioner. Thus, there is a decision by the Respondents who were obligated upon with terms of agreement (that) their decision on that aspect is final in view of the Article 1.16 of the agreement (PPWA). The said Article further says “Board reserves the right to reject the revised list of schedule consumers and decision of Board is final”. As such, there is no dispute triable by this Commission. If at all, the petitioner wants to question the said decision of the then Board, presently by the Respondents 2 and 3, on the aspect of correctness or otherwise of genuineness of the decision, the Commission is not the correct forum, as the same has jurisdiction to decide only disputes between licensee and the generator.
(vi) Further, even in respect of settlement of quantum of banked energy lying in the account of petitioner, the averments of petition show that there is no dispute existing as on the date of filing (of the petition by the petitioner). The settlement of accounts is in the process of resolution of the issue. Therefore, there is no dispute.
(vii) In regard to interpretation of Article 1.16 of the agreement dated 04.09.1998, the ultimate decision to give approval for change of schedule is vested in the respondents.
(viii) It is specifically denied that the respondents have been unduly and unreasonably delaying, ignoring and declining to change of schedule of consumers on untenable grounds and for unlawful purposes, more particularly when the respondents are not going to gain anything but are discharging duties keeping in view the public interest. The petitioner seems to have been over-influenced by unwarranted selfish/greediness, which made him unrestrained in using the unwarranted terminology about the attitude of the respondents. As far as the decision relating to ICRISAT is concerned, without prejudice to the contention that there is no dispute triable by this Commission, the Commission which is vested with the power to get additional information and evidence may get it by exercising its powers. The petitioner by taking undue advantage of absence in the PPWA in question of the limit as in the case of other similar agreements, of seeking changes of scheduled consumers only twice in a year, is harassing the respondents, with an ulterior object for wrongful gain. Further, it may be pertinent to submit that the petitioner has been sending number of applications for change of consumers without informing the price at which the energy is proposed for sale to the consumers.
(ix) The request of the petitioner regarding ICRISAT was not accepted and was rejected on the ground of no feasibility due to system exigencies. The claim of the petitioner that the respondent willfully failed and omitted to act on the petitioner’s request is baseless, besides being false.
(x) It is a matter of record that wheeling of power to ICRISAT is technically not feasible, due to system exigencies.
(xi) As far as further details are concerned, the same need not be sent, more particularly when it is stated that technically it is not feasible. As such, the decision is self-explanatory and there is no need of further details to be sent to the petitioner. The law on this aspect is settled that all the detailed reasons need not be mentioned in the executive orders, as the file would be containing the said details.
(xii) As stated earlier, the petitioner went on filing several requests, at times, twice or thrice in a month. Thereby it has become very difficult for the respondents to carry out necessary inspections within the short time allowed by the ATE. Thus there is need to put a ceiling on the number of requests that petitioner is entitled to make in an year, like the other generators. Earlier, even in respect of petitioner, it was allowed twice in a year. In respect of requests of the petitioner, it was informed earlier to it that wheeling to the proposed consumer i.e. M/s South Asia is not possible because of system exigencies. Now the respondents received the field inspection reports in respect of M/s Ocean Park, M/s Manjeera Hotels and Resorts and Manjeera Estates, M/s Maya Bazar and M/s Ramoji Film City, holding that it is not possible to wheel electricity to them due to system exigencies.
(xiii) It is specifically denied that the Commission set aside the orders of the nature which are passed by respondents in the case of ICRISAT. It is submitted that merely because the Commission passed orders in respect of some other consumers, it can never be a ground that same is binding upon the Commission, in respect of this case. That part, M/s ICRISAT, is standing on different footing than the facts and circumstances in O.P.No.24 of 2005.
(xiv) It is specifically denied that the respondent had no regard to the stipulated time for disposal of the request of schedule of consumers. In fact the respondents have made all out efforts to decide the same well before the stipulated time. But since field reports from various places have to be secured, there is a little delay in respect of a few consumers and the same cannot by any stretch of imagination be construed as violation of any condition. In fact, the Commission and ATE have power to extend the time fixed by them as and when found necessary.
(xv) It is specifically denied that the respondents designed and calculated to frustrate the petitioner and disabled the petitioner from selling banked energy. The normal and reasonable time taken by the Respondents No.2 and 3 is being projected through magnifying glass and the alleged inconvenience to it is being exaggerated by the petitioner. It is specifically denied that the petitioner is subjected to harassment by the respondents. It is the petitioner who is bent upon to harass the respondents, to satisfy its selfish ends, at the cost of public interest.
(xvi) The petitioner by filing two unconnected issues and causes of action in one petition has omitted to pay the required fee.
(xvii) The respondents’ right to refuse the request is very much agreed to by the petitioner also in the agreement.
5. On 23.09.2006, on behalf of the petitioner, additional affidavit was filed in order to place on record the events that happened after filing of the petition, wherein it is stated that
(i) In respect of M/s. South Asia LPG Co. Ltd (VSP-429) based on the technical feasibility report of the 5th respondent, the petitioner in its letter dated 19.09.2006 communicated to the 3rd respondent its consent for inclusion of the said consumer in Schedule 3 to the PPWA with a request to fix a date for signing the amended Schedule 3 to the PPWA.
(ii) By letter dated 19.09.2006, 3rd respondent based on the field reports received informed the petitioner that it is technically not feasible to wheel electricity to M/s. Manjeera Estates Pvt Ltd (HDN-996), M/s. Manjeera Estates Pvt Ltd (HDN-774), M/s. Manjeera Hotels & Resorts Pvt Ltd (HDN-744), M/s. Maya Bazar (HDC-747), M/s. Ocean Park (RRS-771) and M/s. Ramoji Film City (RRS-705). The said letter of the 3rd respondent gave no details, particulars as to the reasons for the conclusions or findings in the field reports. The petitioner addressed a letter dated 20.09.2006 requesting for detailed reasons along with copies of relevant particulars and field reports.
(iii) In particular, the 2nd respondent is pursuing malicious, illegal course of action, frustrating all attempts of the petitioner to access consumers in terms of the PPWA.
(iv) It appears that the respondents are conspiring to create a situation where the balance of banked energy of the petitioner, or a substantial part thereof, would lapse and the same may be appropriated by the respondents to themselves to unjustly enrich themselves.
6. On 20.10.2006, petitioner filed reply to the counter of the respondents stating that
(i) The contention of the respondents that the petition is not maintainable at law, or that there is any misjoinder of causes of the action, or that any separate petitioners are to have been filed or that insufficient fee has been paid are misconceived and without any basis. The respondents’ contention that prejudice is caused is incorrect. The issues in this petition are not concerned with trading of energy, but are related to wheeling of energy through transmission / distribution systems of the respondents and they arise from the same contract.
(ii) As the actions of the respondents are vitiated by malafides, irrelevant considerations with a deliberate intention to frustrate and harass the petitioner and to cause wrongful loss to it, the petitioner is entitled to invoke the jurisdiction of the Commission to adjudicate upon the disputes. The Commission already decided in a similar case that it has got jurisdiction in such matters.
(iii) The petitioner is entitled to make as many applications for change of consumers as it considers necessary, particularly in view of arbitrary rejection by the respondents. It is denied that the petitioner is required to inform the price at which energy is proposed to be sold to the consumers. The petitioner is unable to negotiate a final price with the consumer until and unless technical feasibility has been confirmed and such consumer is added to schedule of consumers. However, the price will be not less than the HT tariff.
(iv) Rejection of ICRISAT is without valid reason. The respondents have not placed any material before the Commission relating to the reasons, field reports or other particulars upon which the said decision was taken. The Commission has to take an adverse inference against respondents. The manner in which the Respondent No.2 disposed of all the applications in an omnibus manner, without giving any reasons whatsoever, is conclusive of the fact that rejections were for arbitrary and are an abuse of power to decide bonafide on system exigencies. The respondents have not placed any material before the Commission in respect of these rejections also and adverse inference must be drawn against the respondents.
(v) Apart from the respondents, the Commission is also bound by the order of the ATE and it is a duty of the Commission to see that the same is complied with.
(vi) For all these reasons, it is submitted that the Commission may allow the petition and grant relief to it as prayed for.
7. On 10.11.2006 attested copies of the affidavits (i) executed by DE/Opn/ City-I/APCPDCL/Hyd together with copies of report submitted by him with regard to M/s. Maya Bazar; (ii) executed by DE/Opn/City-IV/APCPDCL/Hyd together with copies of technical feasibility reports submitted by him with regard to M/s Manjeera Estates Pvt Limited for S.C.Nos. HDN-996, HDN-774and HDN-744 and (iii) executed by SE/Opn/RR Circle (South) /Hyd together with copies of reports submitted by him with regard M/s Ramoji Film City and M/s Ocean Park were filed.
8. On behalf of the respondents, I.A.No.16 of 2006 under Order II, Rule 6 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) was filed and it was submitted that;
(i) Issues regarding change of Scheduled Consumers and banked energy have been clubbed with an intention to cause prejudice and if the two issues are not separated, the respondents will not have fair opportunity to contest the case.
(ii) The Commission has got power to direct the petitioner to elect to have one of the two issues in this present petition and direct the petitioner to file another petition for the other issue as a separate case.
(iii) Therefore, the Commission may direct the petitioner to elect one of the two issues in the present case and deal with the other issue separately so as to enable the respondents to contest the matters effectively.
9. In the Counter Affidavit filed on behalf of the petitioner it is stated that
(i) The I.A. filed by the respondents purportedly under Order II, Rule 6 of Code is not maintainable as the provisions of the Code are not applicable to proceedings before the Commission under the Act except to the very limited extent, specifically provided for in the Electricity Act, 2003. There is no provision whatsoever in the Electricity Act, 2003, whereby Order II, Rule 6 of the Code is made applicable. Without prejudice to the above, it is submitted that even as per the said Code, Order II, Rule 3 permits joinder of causes of action, and public policy against multiplicity of proceedings does not impede joinder of causes of action. Order II Rule 6 only speaks of separate trials and not of separate suits.
(ii) It is not true to say that the adjudication of disputes with regard to rejection of change of schedule consumers and the application and settlement of account of banked energy in the same proceedings between the same parties would cause any prejudice to the interest of the respondents, or that Respondent will not have fair opportunity to contest the case, or that it would cause ‘irreparable loss’ as contended or alleged or otherwise. Except to make the bald statements, the respondents have not stated how they would be prejudiced or subjected to any loss.
(iii) It is submitted that the petitioner is entitled to seek resolution of all or any number of disputes with the same respondents in a single application for adjudication of disputes; and there is no bar whatsoever to such an application, and there is no provision of fees for each issue raised in an application.
(iv) It is therefore prayed that the Commission may be pleased to dismiss the I.A. filed by the respondents under Order 2 Rule 6 of Code with costs.
10. On 18.11.2006, the counsel for the petitioner as well as respondents were heard.
(i) The counsel for the petitioner reiterated the averments mentioned in the petition and transversed through the documents page-wise wherever required corroborating his oral arguments with the contents mentioned in the said documents. To substantiate the claim of the petitioner that it is free to seek change in the list of schedule of consumers, the counsel for the petitioner referred to paragraph 7(iii)(b) of the Order dated 28.01.2006 passed by the Commission in O.P.No.24 of 2005 which states that “it is clear from a plain reading of Explanation 3 to Article 1.16 of the PPWA that the Petitioner has the right to seek the change in the list of scheduled consumers during the term of the PPWA which, however, has to be approved by the Respondents. It is also relevant to note that the right reserved to the Respondents to reject such a change is only when the change is not technically feasible due to system exigencies”. Thus it is clear that change of list of schedule consumers can be refused by the respondents due to system exigencies only. However, in the case of the petitioner, there is no problem of system exigencies in any of the cases as in fact it is not change of consumers substitution of one consumer in place of another. Instead of purchasing from one, the proposed consumers would be purchasing power from some other generator. All these consumers who propose to purchase electricity from the petitioner have categorically stated that there is no change in their CMD with the respondents concerned and they are only interested to source part of their requirement from them. So the question of system exigencies will not arise at all. Prima facie, such contention that change of scheduled consumers is not technically feasible due to system exigencies, without assigning any specific reasons in spite of repeated requests, is arbitrary and aimed at causing wrongful loss to the petitioner.
(ii) On 25.01.2006, a letter was addressed to 1st and 3rd Respondents requesting them to include M/s. ICRISAT as a consumer in the Schedule 3 along with a copy of the letter dated 24.01.2006 written by the said ICRISAT expressing its willingness to purchase electricity partly from the petitioner and further stating that such purchase of electricity from the petitioner will not result in exceeding its (ICRISAT’s) CMD with Respondent No.2. On 03.06.2006, CGM of 3rd Respondent sent a letter stating that the request for change of consumer could not be considered as it is technically not feasible. Other than that, the said letter did not contain any reason for such non-feasibility of wheeling of power to M/s.ICRISAT. In spite of sending several requests dated 10.06.2006, 11.07.2006 and on several dates subsequently, 3rd Respondent did not choose to give reasons for non-feasibility of wheeling of power to M/s.ICRISAT. In the counter filed on behalf of the respondents also, there is no reference to the issue relating to rejection of wheeling of power by the petitioner to M/s.ICRISAT.
(iii) The Hon’ble ATE in its Order dated 11.05.2006 directed that applications of generators of power for change of scheduled consumers have to be disposed of within 21 days. Even though such direction was issued in Appeal No.47 of 2006, it is applicable in all similar cases. As the respondents who are also the respondents in the said appeal before the ATE did not comply that directions of the Tribunal, the petitioner herein who is also the petitioner for the said appeal filed an Execution Petition before the ATE.
(iv) M/s.ICRISAT, consumers like M/s.Manjeera Estates Pvt Ltd; M/s.Manjeera Hotels & Resorts Pvt Ltd.; M/s Ocean Park and M/s Ramoji Film City have expressed their willingness in different letters to avail electricity partly from the petitioner herein under third party sales and further confirmed that purchase of electricity from the petitioner will not result in their recorded demand exceeding their CMD with the respondent concerned. In the case of M/s.Maya Bazar, it is stated that it is not possible to wheel CMD. It does not convey any meaning thus the rejection of requests of the petitioner with regard to change of scheduled consumers is arbitrary and bad in law.
(v) Power from mini-hydel projects by its very nature is infirm power and generation of electricity from such projects depends on vagaries of nature. There is no fixed time of generation. Hydel generating projects like that of the petitioner can generate electricity only as and when water is available. If requests of the petitioner for change of scheduled consumers are kept pending for long without reply, the consumers to whom the petitioner proposed to supply electricity are forced to look for alternate sources. After inordinate delay in processing the requests of the petitioner, the respondents informed the petitioner that various requests for change of scheduled consumers cannot be considered, without giving any reasons. Refusal to accept the requests of the petitioner can be based only on justifiable grounds. Unless and otherwise reasons for rejection are given, it is not possible to know that such requests are rejected for sufficient and valid reasons. In the absence of furnishing reasons for rejection, adverse inference needs to be drawn against the actions of the respondents and that the requests were rejected without application of mind.
(vi) The actions of the respondents are designed to frustrate the petitioner. The conduct of the respondents has to be viewed as discriminatory and hostile and ought to be declared as bad.
(vii) With regard to banked energy, details of generation, sale and banked hydel electric energy till be billing month of May, 2006, were given in the tabular form. The said details are supported by detailed calculations. Pursuant to the orders of the Hon’ble ATE, the petitioner sent a letter dated 23.05.2006 requesting confirmation of the balance banked energy till the billing month of April, 2006. As there was no reply, a reminder was also sent. By letter dated 04.07.2006, Chief General Manager (Proj & RAC) of Respondent No.3 requested the petitioner to approach the Energy Billing Centre of 1st Respondent for reconciliation of banked energy. Further, by letter dated 14.07.2006, the petitioner brought to the notice of the respondents that undisputed banked energy is 23,18,560 units as recorded by ATE in its order dated 11.05.2006 and implementation of the said order need not await settlement of total quantity of banked energy. As there was no response, another letter was sent on 15.07.2006. But the respondents are not taking any steps to reconcile the account of banked energy, nor giving effect to the order of ATE. Therefore, there is also a dispute with regard to accounting banked energy and Commission is requested to declare that the balance of banked energy standing to the credit of the petitioner at the end of billing month of May, 2006 is 25,82,534 units.
11. The counsel for the respondents submitted on their behalf that ;
(i) The petitioner is under a mistaken impression that the respondents are statutory authorities and are obligated under law to give reasoned orders for rejecting the requests of petitioner for change of scheduled consumers. The change of scheduled consumers is contractual obligation between the petitioner and the respondents emanating from the PPWA. Explanation 3 to clause 1.16 of PPWA categorically states that the Board (the predecessor-in-interest of the respondents) is required to accord approval for request of developer for change in the list of scheduled consumers, after taking into account the system exigencies. The said Explanation further reserved right of the Board (now the respondents) to reject the revised list of scheduled consumers and decision of the Board (now the respondents) in that regard is final. In view of said clause in the PPWA, there is no force in the contention of the petitioner that respondents are required to give reasons for rejecting requests of the petitioner for change of scheduled consumers. Unless the PPWA is amended, the petitioner has no right to demand reasons for rejecting such requests of the petitioner. Thus the contention of the petitioner that the respondents are obligated under law to provide reasons for rejection has no leg to stand and cannot be accepted.
(ii) Simply attributing malafides to respondents and their functionaries, who are working in public interest is not correct and such superfluous allegations will not stand the test of judicial scrutiny. Unless the petitioner collaborates such allegations with cogent circumstantial evidence, no inference can be drawn against any of the respondents.
(iii) Judicial review is confined to manner of passing of an order; it cannot traverse with the merits of the order passed by an authority. Even on this ground also, there is no force in the various contentions of the petitioner with respect to its requests for change of scheduled consumers.
(iv) The relief sought for with respect to change of scheduled consumers is totally different from that of banked energy. Therefore, the issue relating to banked energy may be separated from adjudication of the dispute relating to change of scheduled consumers and dealt with separately at a later stage.
12. In response to the arguments of the counsel for respondents, the counsel for the petitioner further submitted that --
(i) it is the case of the petitioner that respondents cannot arbitrarily reject the requests of the petitioner with regard to change of scheduled consumers by abusing the process consistently. The case before the Commission is that the grounds for rejecting the requests of petitioner are not being given as these do not relate to system exigencies, and the rejections are for other reasons. There is no gain in stating that the relation between the petitioner and the respondent is contractual in nature and therefore the respondents are not obligated to give reasons for rejecting the requests of the petitioner. The respondents are conducting licensed business under licence granted by a statutory authority and they are expected to carry on their business as per standard norms, otherwise their exists a dispute. The judicial norm of the present days is that nobody can say that they are not required to give reasons for decisions or divulge the same. The respondents have to show rejection was done for reasons of system exigencies. The respondents failed to do that.
(ii) Except the provisions of the Code of Civil Procedure relating to summoring and enforcing the attendance of persons and examining them on oath; discovery and production of documents or other material objects producible as evidence; receiving evidence on affidavits; etc., as mentioned in the Act, the other provisions of said Code are not applicable to the proceedings before the Commission. Therefore, petition under Order II, Rule 6 of Code is not maintainable.
13. The points that arise for consideration by the Commission are:
Point No.1: Whether it is necessary for the petitioner to file separate
petitions, one or adjudication of the dispute relating to change of schedule of
consumers and another for settlement of differences of quantum of banked energy
lying to the credit of the petitioner.
Point No.2: Whether it is necessary to declare that rejection of requests of the petitioner for change of scheduled consumers is invalid, and bad in law.
Point No.3: Whether it is necessary to direct the respondents concerned to amend the Schedule 3 of the PPWA and to include the additional consumers as requested by the petitioner.
Point No.4: Whether it is necessary to declare the balance of banked energy standing to the credit of the petitioner at the end of billing month of May, 2006 is 25,83,530 units and direct the respondents that the accounts of banked energy be settled accordingly.
14. After carefully considering the rival contentions, the Commission answers the different points as below:
Point No.1
15. The respondents in the main petition (O.P.No.30 of 2006) filed additional petition under Order II Rule 6 of the Civil Procedure Code contending that dispute relating to change of scheduled consumers is clubbed by the Petitioner with that of settlement of account of Banked Energy and that the same is causing prejudice to the interests of respondents. The said additional petition is numbered as I.A.No.16 of 2006. On the maintainability of this I.A., the various arguments advanced for and against, relate to the extent of Commission’s powers under the Electricity Act, 2003, to invoke certain provisions of the CPC. It has, for example, been contended by the Petitioner that the Commission’s powers in this regard are limited, and in any case even as per the said Code, Order II, Rule 3, permits joinder of courses of action. On behalf of the respondents filing this I.A., one of the arguments advanced is that separate fee should have been paid by the Petitioner for each of the two disputes – one relating to change of scheduled consumers and the other about the extent of Banked energy – apart from filing of separate petitions, which has not been done. The Commission, however, notes that the Hon’ble ATE has already passed an order relating to the issue of banked energy in Appeal No.47 of 2006. The Commission, is accordingly, of the opinion that it is not appropriate on its part to go into that aspect in this petition. Accordingly, the Commission is also of the view that it also need not examine the issues pertaining to (i) clubbing of more than one dispute in a single petition and (ii) its own powers to deal with such situations, while disposing of the petition herein. It will instead examine these issues, as and if warranted, at a more appropriate time.
Points No.2 and 3:
16. (i) With regard to the scheduled consumer i.e., M/s ICRISAT, the Chief General Manager/Projects & RAC of the 3rd Respondent in his letter dated 03.06.2006 addressed to the petitioner, has stated that the Chief General Manager / Comml & RAC of 2nd respondent had informed that “the wheeling of power for third party sales by M/s RPP Ltd to the proposed scheduled consumer M/s International Corps Research Institute for the Semi Arid Tropics (ICRISAT), Patancheru, Medak district, HT Sc No. – MDK 003, HT Cat-II, 2250 KVA, 11 KV is technically not feasible. Hence the request for change of scheduled consumer cannot be considered in addition to six consumers already approved vide the amended agreement dated 30.05.2006 as per the orders of ATE, New Delhi.”
(ii) During pendency of the proceedings before the Commission, the Chief General Manager of 3rd respondent in Lr.No.APSPDCL/TPT/GM/IPC/F.19/D.No.280/06 dated 19.9.2006 informed the petitioner that as per the field reports received from 2nd respondent, it is not technically feasible to consider the request of the petitioner for change of six scheduled consumers. With regard to the said six scheduled consumers i.e., M/s. Manjeera Estates Pvt Ltd (HDN-996), M/s. Manjeera Estates Pvt Ltd (HDN-774), M/s. Manjeera Hotels & Resorts Pvt Ltd (HDN-744), M/s. Maya Bazar (HDC-747), M/s. Ocean Park (RRS-771) and M/s. Ramoji Film City (RRS-705), affidavits of officers concerned of 2nd Respondent were filed on 10.11.2006 together with Technical Feasibility Reports of individual consumers.
(a) In his affidavit, the DE (Elec) Operation City-1, APCPDCL stated that “I have examined and found that it is not feasible to wheel CMD of the consumer M/s.Maya Bazar, HDC No.747, HT Cat.II as the existing Sub Station capacity and line capacity has already reached the maximum limits”. The said affidavit is accompanied by a report containing power drawal history of the consumer, technical reasons and other effects of the request for change of proposed scheduled consumer.
(b) In his affidavit the DE(Elecl), Operation City-IV, APPDCL stated that he had examined the request for change of scheduled consumers viz., M/s Manjeera Estates Pvt Ltd (HDN-996); M/s Manjeera Estates Pvt Ltd (HDN-774) and M/s Manjeera Hotels & Resorts Pvt Ltd (HDN-744) and that he found it is not feasible to wheel the CMD of the said consumers for the reason that “the existing Power transformers are fully loaded and the connected 11 KV Maitrivanam feeder is carrying 170 Amps more than the rated current capacity”. The said affidavit is accompanied by separate Technical Feasibility Reports for the 3 services mentioned above.
(c) In his affidavit the SE, Operation, R.R.Circle(South), APCPDCL, stated that he examined and found that “( i) it is not feasible to wheel the CMD of the consumer M/s Ocean ParK (SC No.RRS 771, HT Cat.II) as the existing substation capacity and line capacity has already reached the maximum limits. (ii) it is not feasible to wheel the CMD of the consumer M/s Ramoji Film City (SC No.RRS 705, HT Cat.II) as the existing sub station capacity and line capacity has already reached the maximum limits.” The said affidavit is accompanied by individual Technical Feasibility Report for the newly proposed scheduled consumers and against the column ‘remarks’, it is mentioned that in both the cases it is not possible to wheel CMD of the consumers as the existing Sub Station capacity and line capacity has already reached the maximum limit.
(iii) M/s ICRISAT in its letter dated 24.01.2006, M/s. Ocean Park Multitech Ltd (HDC 747 & RRS 771) in its letter dated 18.07.2006 and M/s Ramoji Film City in its letter dated 29.07.2006, have stated that purchase of electricity from the petitioner will not result in their recorded demands exceeding their respective Contracted Maximum Demand (CMD). In other words, these three consumers confirm that they would limit their individual demands within their existing CMDs. As the generator and the consumers are existing users of the system, the respondents would be handling and feeding the same amount of power before and after the change of the scheduled consumers. The quantum of power flow is not going to change and would not affect the transmission and distribution systems. M/s.Manjeera Estates Pvt. Ltd., (HDN-996), M/s.Manjeera Estates Pvt.Ltd., (HDN-774), M/s.Manjeera Hotels & Resorts Pvt.Ltd., (HDN-744) in their letters, all dated 08.07.2006, on the other hand, merely expressed their interest to avail electricity partly from the petitioner, and did not confirm that such purchase of electricity will not result in their recorded demands exceeding their CMDs.
iv) In Explanation 3 to clause 1.16 of PPWA, it is mutually agreed between the parties that “if the developer wants any change in the list of scheduled consumers, during the term of agreement, he shall submit such a list to Board and get approval. Board accords such approval taking into system exigencies. Board reserves the right to reject the revised list of scheduled consumers and decision of Board in this regard is final.” The respondents, who are the successors-in-interest to the Board, inherit the privilege of granting approval for change in the list of scheduled consumers taking into consideration the system exigencies. Such privilege cannot be denied to the respondents. It is clear from a plain reading of Explanation 3 to Article 1.16 of PPWA that the Petitioner has the right to seek the change in the list of scheduled consumers during the term of the PPWA which, however, has to be approved by the Respondents. It is also relevant to note that the right reserved to the Respondents to reject such a change is only when the change is not technically feasible due to system exigencies.
v) Even though it is
further mentioned in the said clause that the decision of the Board and
consequently of the respondents herein as the successors-in-interest is final,
rejection of request for change of scheduled consumers has to be done
judiciously, keeping in view the system exigencies, paper and technical work
involved therein, etc. In other words,
an obligation is cast on the respondent concerned to examine each request
carefully and arrive at a decision taking into consideration technical,
administrative and other parameters and rejection of change of consumer should
not appear to have been done mechanically.
To examine whether such system exigencies indeed impede implementation of the requested changes of
scheduled consumers, it is appropriate to have a look at the letter dated
03.06.2006 of 3rd Respondent
with regard to M/s ICRISAT and the affidavits filed along with Technical
Feasibility Reports filed on behalf of the 2nd Respondent referred
to at paragraph 16 (ii) above with regard to other six proposed scheduled
consumers. Merely stating that the
existing power transformers are fully loaded or existing sub station capacity
and line capacity have already reached the maximum limits does not constitute
‘system exigencies’, which term in the electricity business parlance in the
present context means that the existing system is not capable of catering to
any additional load demand of new consumers.
That the Petitioner’s request in respect of the three of the consumers
referred to in sub-para (iii) above was not proposing any additional load on
the 2nd Respondent’s system is clear from the undertaking given by
the said consumers who are existing consumers of the 2nd Respondent,
that purchase of electricity by
them from the petitioner “will
not result their
recorded demand in exceeding their CMD” with the 2nd
Respondent. It is therefore rightly
contended by the learned counsel for the petitioner that the request of the
petitioner in respect of these three proposed consumers has not been rejected
on justifiable grounds.
vi) The plea of the respondents that the Commission is not the correct Forum to examine a decision of the respondent on merits as the Commission is only empowered under the Act to decide disputes between licensees and generating companies, is not tenable. The Commission is not examining the normal day-to-day decisions of the respondents. It is looking into a dispute between the respondents and the petitioner in their respective capacities as licensees on one hand and generating company on the other hand, which is well within the ambit of powers vested in it under Section 86(1)(f) of the Electricity Act, 2003. Therefore, the said plea put forth is rejected as unacceptable.
vii) On the other hand, the petitioner should also be considerate to the constraints of the respondents, technical, administrative or otherwise and limit the number of changes to the scheduled consumers to the minimum and to those which are absolutely necessary. Simply because purchase of electricity from the petitioner by a proposed consumer would not result in its recorded demand exceeding its CMD with the respondent concerned, will not automatically entitle the petitioner to require the respondent concerned to approve change of such scheduled consumers frequently. Even though the respondent concerned is obliged to accommodate requests for change of scheduled consumers, in the cases like the present one, the issue relating to change of scheduled consumers is complicated because of the involvement of more than one distribution licensee at times and a single request may involve more than one change in the list of scheduled consumers. It is therefore necessary that parties arrive at an understanding with regard to frequency of change of scheduled consumers so as not to cause inconvenience to the respondents by way of frequent requests for change of scheduled consumers by the petitioner.
viii) On behalf of the respondents, it is contended that the petitioner has been sending number of applications for change of scheduled consumers without informing the price at which the energy is to be proposed for sale to the consumers. On the other hand, the petitioner alleges that to delay the process of change of scheduled consumers, the respondents have been asking it irrelevant questions like the price at which the petitioner would be supplying electricity to the new consumers proposed for inclusion in Schedule- 3. The contention of the Petitioner is that it denies that it is required to inform the price at which energy is proposed to be sold to the consumers. It is also stated, on behalf of the petitioner, that it is unable to intimate the price as the petitioner is not sure of supplying power to a proposed consumer in the absence of approval from the respondents and the price can be finalized only after the petitioner obtains required approvals from the respondent concerned for supply to that consumer. Simultaneously, the petitioner also states that the price will not be less than HT tariff. The respondents, on the other hand, contended that they have a right to ask such questions in terms of PPWA. The Commission has already dealt with this issue at length in para 8 (ii) of its Order dated:28.01.2006 in O.P.No.24 of 2005, relevant extracts wherefrom are reproduced below:
“………For proper
understanding of the issue, it appears to be desirable to extract Article 3.4
of the PPWA and, the relevant portions relating to third party sales from the
G.O.Ms.No.93 dated: 18.11.1997 referred to therein:
Article 3.4 of PPWA
“ 3.4 The Company shall be entitled to charge a
Scheduled Consumer for energy attributable to sale by the Company such price as
the Company and the Scheduled Consumer mutually agree; provided, however,
nothing in this Section 3.4 is intended or shall be construed to relieve the
Company and/or the Scheduled Consumer from agreeing to such price being not
less than then prevailing HT tariff of Board, as stipulated in G.O.Ms.No.93
Energy (RES) Department dated:18.11.1997”.
(The term ‘company’ hereinabove
refers to the Petitioner – Explanation supplied by the Commission.)
“ The Government after
careful examination of the recommendations and with a view to encourage
generation of electricity from renewable sources of energy hereby allow the
following uniform incentives to all the projects based on renewable sources of
energy viz., Wind, Biomass, Co-generation, Municipal Waste and mini Hydel:
1. ……………………….. ………………………………
2. ……………………….. ………………………………
3. …………………………
………………………………
4.
Third party sales Allowed at a tariff not lower
than HT tariff of A.P.S.E.Board
5. ………. …………..
……….. ………….”
It is also pertinent that
the HT tariff, prescribed earlier by the then A.P.State Electricity Board and
now by this Commission is not a single tariff applicable uniformly to all
consumers availing of HT supply. Instead, different HT tariffs are prescribed
for different categories of consumers, like, HT-I Industry – General, HT-II-Others, HT-IV (A) – Govt. Lift
Irrigation Schemes, HT-V-Railway Traction, etc. The Respondents accordingly
have necessarily to ensure, in terms of the PPWA, that the price at which the
Petitioner would be supplying electricity to its consumers is not less than the
HT tariff applicable to the category to which the consumers belong. The
Commission, therefore, holds that the Respondents are within their rights in
terms of the provisions of the existing PPWA to enquire about the price at
which the Petitioner would be supplying electricity to its consumers.”
The Commission continues to hold the same view. In the present case, the petitioner has not revealed the price at which it proposes to sell energy to the consumers. The petitioner is directed to reveal the price to the respondent concerned at the time of applying for approval for change of scheduled consumers to the said respondent. The above direction applies to all the applications filed by the petitioner for change of consumers.
ix) In the light of the above, the Commission sets aside the Lr.No.APSPDCL/TPT/ GM/IPC/F.19/D.No.204/06 dated 03.06.2006 of 3rd Respondent relating to rejection of request of the petitioner with regard to M/s.ICRISAT and the Lr.No.APSPDCL/ TPT/GM/IPC/F.19/D.No.280/06 dated 19.09.2006 also of 3rd Respondent relating to rejection of request of the petitioner with regard to M/s Maya Bazar, M/s Ocean Park and M/s Ramoji Film City and further directs the respondents to include the names of the four consumers in the list of scheduled consumers. In case any of these consumers exceed their CMD, the respondent concerned is at liberty to take necessary action including levy of penalty, if any, in accordance with the terms and conditions of supply and other applicable orders issued by the Commission from time to time. The petitioner also has the duty to ensure that the terms of the wheeling agreement with the respondent are strictly complied with.
x) Subsequent to the filing of the petition
by the petitioner on 10.08.2006, the petitioner itself has intimated that the
Chief General Manager of 3rd respondent in his letter dated
01.09.2006 informed the petitioner that technical feasibility for wheeling of
power from the petitioner’s project in respect of M/s South Asia LPG Co.Ltd.
(HT SC No.VSP-429 pertaining to 5th respondent) was received and
requested the petitioner to furnish its consent for addition of the said
scheduled consumer to the existing list of scheduled consumers. As request for inclusion of the said
consumer is considered in favour of the petitioner, no relief is required to be
granted in this regard.
Point No.4:
17. As already mentioned while
dealing with Point No.1, the issue
relating to balance of banked energy standing to the credit of the petitioner
has already been the subject matter of an Appeal (No.47 of 2006) before the
Hon’ble Appellate Tribunal for Electricity, and as the Tribunal has already
passed an order in the matter, the Commission is of the opinion that it
cannot interfere on the issue relating to balance of banked energy.
18. For the conclusions arrived at on Point
No.1, the petition in I.A.No.16 of 2006 is dismissed.
19. For the conclusions arrived on Points No.2
and 3, Lr.No.APSPDCL/TPT/ GM/IPC/F.19/D.No.204/06
dated 03.06.2006 and Lr.No.APSPDCL/TPT/GM/IPC/F.19/ D.No.280/06 dated
19.09.2006 of 3rd Respondent are set aside with respect to the four
consumers mentioned at para (ix), the respondent concerned is directed to
include M/s ICRISAT (MDK-003), M/s. Ocean Park (RRS-771), M/s Maya Bazar
(HDC-747) and M/s Ramoji Film City (RRS-705) in the list of scheduled consumers
within two weeks from the date of intimation of the price at which the
petitioner proposes to supply electricity to each of the such scheduled
consumers. In case of M/s. Manjeera
Estates Pvt.Ltd., (HDN-996), M/s.Manjeera Estates Pvt.Ltd (HDN-774), M/s.Manjeera
Hotels & Resorts Pvt. Ltd., (HDN-744), however, the petition cannot be
considered as there is no confirmation to the effect that their recorded demand
will not exceed their CMD.
20. As regards Point No.4, since the Hon’ble
Appellate Tribunal for Electricity has already passed an order, this Commission
refrains from interfering in the matter.
21. Lastly, the parties are advised to arrive
at an understanding with regard to the frequency of change of scheduled
consumers as mentioned supra.
22. Accordingly O.P.No.30 of 2006 is allowed
to the extent stated above.
This order is
corrected and signed on this 2nd day of December, 2006.
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(R.RADHA KISHEN) |
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