ANDHRA PRADESH ELECTRICITY REGULATORY COMMISSION

Hyderabad

 

Dated:  03-08-2007

 

Present

 

Sri. K. Swaminathan, Chairman

Sri. Surinder Pal, Member

Sri. Radha Kishan, Member

 

R.P. (SR) No.23 of  2007

 in

O.P. No. 32 of 2006

 

 

 

           Transmission Corporation of A.P. Ltd.,

               Rep. by its Chairperson & Managing Director                                                                                                                            …  Petitioner

 

 

 

 

         This petition coming on for hearing on 21.07.2007 in the presence of Sri P. Shiva Rao, Advocate, for the petitioner and having stood over for consideration to this day, the Commission delivered the following:

 

O R D E R

 

         This review petition is filed under Section 94 (f) of the Electricity Act, 2003 (for short the ‘Act”), read with Clause 49 of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations 1999 (for short ‘CBR’) praying for review of the State Load Despatch Centre (for short ‘SLDC’) charges order passed by the Commission on 07-03-2007 for the period 2007-08 and 2008-09 in O.P.No. 32 of 2006.

 

2.              The following are the averments made in the petition:

 

(a)      In G.O.Ms.No. 8 dated 17-01-2004, the Government of Andhra Pradesh (for short, ‘GoAP’) notified that the petitioner herein, being the State Transmission Utility (for short ‘STU’), shall operate SLDC until the GoAP establishes for this purpose, a Government company or authority or corporation.

 

(b)      On 30th November, 2006, the petitioner filed before this Commission, a petition under Section 32 of the Electricity Act, 2003, for levy and collection of fee and operating charges for the first Control Period based on the multi-year tariff principles as laid out by the Commission in its Regulation No. 1 of 2006.

 

(c)      The Commission has notified the tariff order for the first control period of         2007-2009 for the SLDC business.

 

(d)      While determining the tariffs, the Commission made several changes to the SLDC’s ARR (Annual Revenue Requirement) filings for the first control period.

 

(e)      However, the parameters considered by the Commission do not capture the realities of the past, requirements for the future and, therefore, need to be reviewed.  The petitioner submits that the review is essential from the point of view of establishing sustainable operation of SLDC, as the SLDC tariffs are being determined for the first Control Period, 2007-09.

 

(f)      The petitioner requests the Commission to review the operating charges and total generating capacities allowed by the Commission for the reasons mentioned in detail in the present petition filed by it and the Annexures appended thereto.

 

(g)      In view of the above, it is prayed that the Commission may take review petition on record, approve the proposed changes to the Tariff Order for the first Control Period and arrive at the revised SLDC charges.

 

3.       As the scope of review is limited, notice was given to the petitioner on the admissibility of the petition at the SR stage itself

 

4.       On 21.07.2007, Sri. P. Shiva Rao, Advocate, entered appearance on behalf of the petitioner and filed additional information, reiterating the request of the petitioner to review and allow the revised operating expenditure so that the petitioner may carry out the necessary Repairs & Maintenance (for short, ‘R&M’) operations that are critical for smooth functioning of SLDC.  In support of the additional grounds urged therein, the petitioner filed information relating to ‘Cost of SLDC equipment excluding RTU costs’, ‘the committed payment schedule pertaining to Grid Operation wing’ for FY 2007-08 and 2008-09, ‘R & M Cost break-up pertaining to Grid Operation wing’ and ‘the details of R&M Cost pertaining to Telecom wing’ along with other supporting material.

 

5.       On the date of hearing, the counsel for the petitioner fairly conceded that the scope of review is limited. However, he submitted that in the application submitted for ARR for its SLDC business for the first Control period, viz., O.P.No. 32 of 2006, the petitioner by mistake omitted to include certain amounts and, therefore, the Commission could not consider the same while determining the said charges in its order passed on 07-03-2007.

 

(a)      A total amount of Rs. 49.64 cr, comprising of cost of equipment of EMS / SCADA (hardware and software) located at four ALDCs and SLDC, Mamidipally, and the RTUs which are installed at various generating stations, etc., was omitted to be included in ARR, though it is over and above the cost of Fixed Assets of Rs. 97.37 cr mentioned therein. Urgent committed payments for Annual Maintenance Contracts (for short, ‘AMCs’) for EMS / SCADA system are Rs. 3.30 cr for FY 2007-08 and Rs.2.40 cr for FY 2008-09 for grid operation wing as against the figures of Rs. 2.60 and Rs. 2.60 cr. mentioned in the ARR fillings.

 

(b)      R&M costs for AMC contracts for Telecom wing comprising of AMC Fibre Optic system, DMW & MUX, procurement of ULDC, etc., of Rs. 6.81 cr and Rs. 5.89 cr for FY 2007-08 and 2008-09 respectively have also been omitted to be included in the ARR submitted earlier. Unless these AMC costs are met, SLDC operations would be disrupted.

 

(c)      As per the review petition, in its ARR filings, the petitioner herein had mentioned the contracted capacities for the years 2007-08 and 2008-09 as 11910 MW and 12811 MW respectively on the assumption of 100% share in 1000 MW of NTPC Simhadri Stage-II. However,  it is subsequently learnt that share of Andhra Pradesh is only 32.25% which translates to 323 MW.   Similarly, NCE capacity is also required to be revised as shown in Annexure-II filed with the review petition.

 

(d)      As the omission in the ARR filings of above-mentioned costs and others mentioned in detail in the petition and the additional information submitted on the date of hearing is accidental mistake, the order passed by the Commission in O.P.No. 32 of 2006 is required to be reviewed. Therefore, it is prayed that the present review petition may be admitted and the petitioner may be permitted to advance arguments on merits.

 

6.       The point that arises for consideration is “whether the review petition is maintainable”.

 

7.       Even while conceding, that the scope of review is limited, the contention of the counsel for the petitioner is that because of accidental omission or mistake, certain figures or information or material could not be placed before the Commission at the time of filling the ARR and had such figures or information or material been furnished, the Commission would not have arrived at SLDC charges as determined by it in its order dated 07-03-2007 in O.P.No. 32 of 2006. Therefore, according to the learned counsel, there exists ground for review of the said order dated 07-03-2007.

 

8.       Surprisingly, the above-mentioned contention of the counsel for the petitioner is contrary to the pleadings of the petitioner. At para 6 of the review petition filed on 05.06.2007, it is stated that while determining the tariffs, the Commission made several changes to the SLDC’s ARR filings and the parameters considered by the Commission do not capture the realities of the past, requirements of the future and therefore, need to be reviewed.  In para 1 of the additional grounds filed on behalf of the petitioner on 21.07.2007, however,  it is stated that both at the time of filing the ARR for SLDC and in the review petition filed on 05.06.2007, it was the petitioner who missed some of the Capital Assets in its ARR as well as in the review petition.

 

9.       Whatever it may be, it is well settled that there are limits to the exercise of power of review. It may be exercised on discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. It may also be exercised where some mistake or error apparent on the face of the record is found.

 

10.     In the case reported in AIR 1989 SC 997, the Supreme Court observed that judicial review is directed not against the decision, but is confined to the examination of the decision making process. It is also well settled proposition of law that review of a decision shall not be entertained when such decision was arrived at after following the principles established by law, the rules of natural justice and the parties have received fair treatment.  On 30-11-2006, the petitioner herein submitted proposals for collection of Annual Fee and Operating charges for its SLDC business (as distinct from its other business of transmission of electricity) for the first control period (FY 2007-08 and       2008-09). The petitioner was directed to issue a public notice through publication in newspapers informing the general public that it had filed its ARR and stating that interested persons could file objections / suggestions on the said proposals. Following the public notice, 7 persons / organizations sent their objections / suggestions on the said filings of the petitioner. Notice of public hearing on 22-01-2007 was given to the petitioner as well as to those who expressed their desire to be heard in person and after considering submissions of the petitioner herein and the objections / suggestions of  all others on various issues,  the Commission issued order on 07-03-2007 determining SLDC charges. After about three months of issuing the said order, the petitioner filed this petition for revising the SLDC charges.

 

11.     Thus it is clear that the order 07-03-2007 was passed by the Commission after considering all the relevant facts and on appreciation of evidence, both documentary and oral, and after conducting a public hearing where the petitioner has also participated actively. It appears that the petitioner is dissatisfied with certain observations and findings of the Commission. But in our considered opinion, reconsideration of the same by the Commission would amount to substituting one view with another and the same is not permitted under law. In the case of Lily Thomas etc. Vs. Union of India and others reported in AIR 2000 SC 1650, it was held that the power of review can be exercised for correction of mistake, but not to substitute view.

 

12.     Moreover, any attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order XLVI of the Code of Civil Procedure, 1908, would amount to an abuse of the liberty given to the Commission to review its order. Admitting the petition filed by the petitioner would amount to rehearing the petitioner on merits for detecting an error in the earlier decision which was passed after elaborate exercise as detailed above. Rehearing the matter and then correcting the same do not fall within the ambit of the review jurisdiction. Such a course of action only comes under appellate jurisdiction. In the case of Datla Chandraiah (died) by LR Vs. Kothalanka Durgavara Prasada Rao and others reported in 2004 (4) ALD 396, it was held that grounds touching merits of matter and those that do not come under the expression ‘error apparent on the face of record’ cannot form basis for review.

 

13.     The other contention of the counsel for the petitioner that at the time of filing the ARR for SLDC (i.e., on 30-11-2006) the petitioner missed some of the Capital Assets in its main ARR, wrongly assumed percentage of share in NTPC Simhadri Stage-II and the quantum of installed / contracted capacities, etc., is also untenable under law.  As seen from the additional grounds filed on 21-07-2007, it is claimed by the petitioner that not only did it miss to mention some of the Capital Assets in the ARR filed on 30-11-2006, but also did so in the review petition filed on 05-06-2007. In the case of Vinod Kumar Singh V Banaras Hindu University reported in AIR 1988 SC 371, the Hon’ble Supreme Court of India held that once the court pronounced the judgment, the same should not be reopened unless there be some exceptional circumstance.  The aforementioned averments cannot be taken as constituting an exceptional  circumstance.

 

14.     The Commission is of the opinion that the stated omission to show some of the Capital Assets (of Rs. 49.64 cr, comprising of cost of equipment); wrongful assumption of percentage of share in NTPC Simhadri Stage-II with regard to installed / contracted capacities; omission to include R&M costs for AMC contracts for Telecom wing; etc., by the petitioner at the time of filing ARR by accidental mistake is not a permissible ground for review of the order passed by the Commission in O.P.No. 32 of 2006 on 07-03-2007. A judicial or quasi-judicial authority, including this Commission, can undertake a review of an order passed by it when there is a mistake committed by it, which is apparent on the face of record or when there is an arithmetical mistake committed by it. Admittedly, the Commission took into consideration the information or figures furnished by the petitioner itself at the time of filing ARR and determined the SLDC charges for the period 2007-08 and 2008-09 after elaborate exercise as mentioned supra. The Commission is of the opinion that the contention of the counsel for the petitioner that unless such accidentally-omitted or assumed information or figures are taken into consideration, SLDC operations would be disrupted is belated and is not an exceptional circumstance warranting the Commission to reopen the case to hear the petitioner on merits.

 

15.     For the reasons mentioned above, the Commission is of the view that the petitioner has failed to make out a case for the maintainability of the petition. In the result, the petition is not admitted, being not maintainable.

 

The order is corrected and signed on this 3rd  day of  August, 2007.

 

 

 

Sd/-

Sd/-

Sd/-

(R.RADHA KISHEN)

(SURINDER PAL)

(K.SWAMINATHAN)

MEMBER

MEMBER

CHAIRMAN

 

 

 

CERTIFIED COPY