Andhra Pradesh High Court - Amravati
Lvs Power Private Limited vs The Senior Accounts Officer on 10 October, 2023
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO
WRIT APPEAL No.717 of 2023
Between:
LVS Power Private Limited,
Represented by its Authorized Signatory
1st Floor, Plot No.13, Block-D.
Sy.No.64 Part, Madhapur,
Hi-tech City Layout,
Hyderabad-500 081.
...Appellant
Versus
The Senior Accounts Officer,
Operation Circle,
APEPDCL,
Visakhapatnam & four others.
...Respondents
Counsel for the Appellant : Sri V. Akshaya Babu
Counsel for Respondent Nos.1,2,3&5 : Sri Metta Chandra
Sekhara Rao,
Learned Standing
Counsel for APEPDCL
Counsel for the 4th Respondent : Government Pleader
for Energy
JUDGMENT
Dt:10.10.2023 (per Hon'ble Sri Justice R. Raghunandan Rao) 2 HCJ&RRR,J W.A. No.717 of 2023 Heard Sri V. Akshaya Babu, learned counsel for the Appellant and Sri Metta Chandra Sekhara Rao, learned counsel for respondent Nos. 1, 2 3 & 5 and the learned Government Pleader for Energy, appearing for respondent No.4.
2. The appellant is a Mini Power Plant, established under the scheme prepared by the Government of Andhra Pradesh, under G.O.Ms.No.116, dated 05.08.1995. The petitioner was served with a bill/claim by the 3rd respondent, dated 05.12.2022, for payment of electricity charges including a charge known as "Grid Support Charge". The appellant objected to the levy of such a charge, by it's letters dated 21.12.2022 and 26.12.2022. In both these letters, the appellant took the stand that the power plant of the appellant had been shut down, way back in 2017, and as such was exempted from payment of any grid support charges, in view of para-8(vi) of the Retail Tariff Order dated 30.04.2022 issued by the Andhra Pradesh Electricity Regulatory Commission (APERC) Regulations. Thereafter, the appellant approached this Court, by way of W.P.No.2216 of 2023, contending that such a charge cannot be levied. It may also be noted that the appellant raised an additional ground in the Writ Petition. This additional ground was the contention that grid support charges, as per the Tariff Order of 3 HCJ&RRR,J W.A. No.717 of 2023 APERC, dated 30.04.2022, can be collected only from Captive Power Units and Co-generation Units while the petitioner was a Mini Power Plant which does not fall under either category.
3. The 3rd respondent took the stand that the power plant of the appellant cannot be treated to have been shut down in the year 2017 as there was supply of power in the year 2022 also. The 3rd respondent also took the ground that the petitioner had never raised the ground of the appellant being outside the scope of the Tariff Order of APERC dated 30.04.2022 and the 3rd respondent had no opportunity to answer this ground.
4. The learned Single Judge considered all these grounds and held that the issue of whether the appellant is exempted from the payment of grid support charges on account of being a Mini Power Plant and not a Captive Power Unit or Co-generation Unit should have been raised before the 3rd respondent itself and directed the 3rd respondent to consider the said objection afresh and disposed of the Writ Petition by an order dated 10.02.2023.
5. Aggrieved by the said order, the appellant has approached this Court.
6. Sri V. Akshaya Babu had taken this Court through various events which had occurred prior to the demand of grid 4 HCJ&RRR,J W.A. No.717 of 2023 support charges raised in the bill of 05.12.2022, to contend that the appellant was entitled to huge sums of money from the 3 rd respondent and A.P TRANSCO which had not been paid. The said events have no bearing on the present appeal as the present appeal is restricted to the question of whether the grid support charges can be levied on the appellant or not.
7. The appellant claims exemption from the payment of grid support charges on two grounds. Firstly, that the plant of the appellant had been shut down in 2017 itself and as such no grid support charges can be collected from the appellant as the Tariff Order of APERC dated 30.04.2022 exempts all power units, which are shut down, from payment of grid support charges. Secondly, grid support charges can be collected only, as per the order of 30.04.2022 of APERC, from Captive Power Units and Co- generation Units while the appellant does not fall under either category.
8. The appellant contends that the power plant of the appellant had been shut down in 2017. However, the 3rd respondent contests this ground by asserting that there was supply of power by the appellant even in the year 2022. This dispute is a question of fact which cannot be decided by this Court in proceedings under Article 226 of the Constitution of India. A 5 HCJ&RRR,J W.A. No.717 of 2023 perusal of the Tariff Order of M/s. APERC dated 30.04.2022 would show that grid support charges are not restricted only to Captive Power Units or Co-Generation Units. In the light of the said order, the second contention of the appellant would also have to fail.
9. It is submitted by Sri V. Akshaya Babu that the appellant had moved an appeal in September of this year, against the Tariff Oder of the M/s.APERC dated 30.04.2022 before the Appellate Tribunal and the said appeal is pending before the Appellate Tribunal. He would further submit that the application for stay of the order of APERC is pending consideration before the Appellate Tribunal.
10. In view of the observations made above, nothing further survives in the Writ Appeal and any relief can only be sought by the appellant in the appeal filed before the Appellate Tribunal.
11. In the circumstances, the Writ Appeal is dismissed. However, the interim directions granted earlier, staying the collection of grid support charges by the respondents is extended for a period of one month from today to enable the appellant to pursue the stay application said to have been filed by the appellant before the Appellate Tribunal along with the appeal. There shall be no order as to costs.
6
HCJ&RRR,J W.A. No.717 of 2023 As a sequel, pending miscellaneous petitions, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ R. RAGHUNANDAN RAO, J RJS 7 HCJ&RRR,J W.A. No.717 of 2023 HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO WRIT APPEAL No.717 of 2023 (per Hon'ble Sri Justice R.Raghunandan Rao) Dt: 10.10.2023 RJS