Allahabad High Court
U.P.P.C.L. Through Chief ... vs U.P.Electricity Regulatory ... on 11 February, 2020
Bench: Pankaj Kumar Jaiswal, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 3829 of 2020 Petitioner :- U.P.P.C.L. Through Chief Engineer(Ppa) Lucknow Respondent :- U.P.Electricity Regulatory Comm.Through Secretary & Another Counsel for Petitioner :- Vikrant Raghuvanshi,L.P.Mishra Counsel for Respondent :- Sanjay Singh,Ajay Shukla Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Karunesh Singh Pawar,J.
(1) Heard Dr. L. P. Misra, learned Counsel for the petitioner, Sri Sanjay Singh, learned Counsel for respondent No.1 and Sri J. N. Mathur, learned Senior Advocate assisted by Sri Ajay Shukla, learned Counsel for respondent No.2.
(2) By this petition under Article 226 of the Constitution of India, the petitioner prays for quashment of the impugned order dated 9.12.2019 passed by the Uttar Pradesh Electricity Regulatory Commission/respondent No.1 in petition No.1486 of 2019.
(3) In nutshell, the case of the petitioner is that on 22.4.2010, a Memorandum of Understanding (MoU) was executed between the Government of Uttar Pradesh and a consortium led by the Bajaj Hindustan Group. As per MoU, the said consortium was required to take over an SPV, namely, Lalitpur Power General Company Limited and be responsible to construct, operate and maintain a 3 x 660 MW Thermal Power Plant at District Lalitpur in the State of Uttar Pradesh. In pursuance of the said MoU, a Power Purchase Agreement (PPA) was executed between respondent No.2-Lalitpur Power Generation Company Ltd. (hereinafter referred to as "LPGCL) and the petitioner for sale of 90% of the power generated by the Project. Thereafter, by virtue of Supplementary Power Purchase Agreement (SPPA) dated 15.6.2011, the supply of power was increased to 100%.
(4) On account of outstanding amount of more than Rs.2,000 Crores during the period April, 2018 to 30.6.2019, LPGCL has filed a petition, bearing No. 1486 of 2019, on 4.7.2019 before the Uttar Pradesh Electricity Regulatory Commission (heereinafter referred to as "UPERC") under Section 86 (1)( f) read with other relevant provisions of the Electricity Act, 2003 inter alia seeking directions against the Uttar Pradesh Power Corporation Ltd. (hereinafter referred to as "UPPCL") for release of Rs.1,274 crores overdue (as on 30.6.2019) on account of the fact that paucity of funds is affecting debt repayment, coal procurement, O & M of plant and higher interest rates are being charges by lenders. Further, respondent No.2-LPGCL has prayed that its dues be cleared, regular monthly payment be made, LC be backed with collateral arrangement like escrow be provided as per PPA.
(5) An objection regarding maintainability of the petition raised by the petitioner has been decided by the UPERC vide its order dated 30.9.2019 holding that the petition is maintainable in respect of UPERC (Fees and Fines) Regulations, 2010. On 6.11.2019, the UPETC directed the petitioner to (i) make payment of current monthly bills on time; and (ii) submit an arrear liquidation plan of the dues of the LPGCL so that receivables are brought down to level of not more than two months billing amount within a reasonable time frame. On 3.12.2019, the petitioner has submitted that UPPCL has been making payments over and above the bills raised by LPGCL in order to gradually reduce their arrears and assured to bring down the dues of LPGCL to two months on best effort basis, however, expressed its inability to submit a committed road map for the LPGCL.
(6) Respondent No.1-UPERC, after considering the order dated 2.12.2019 which had been passed with respect to outstanding dues of Bajaj Energy Limited and considering the overdue outstanding amount as on 30.6.2019 so also the fact that the petitioner is unable to submit a road map for liquidation of overdue outstanding, disposed of the petition vide order dated 09.12.2019. Relevant paragraph Nos. 10 and 11 of the order dated 9.12.2019 read as under:-
"10. The Commission has noted that in a matter w.r.t. outstanding dues of M/s BEL, the APTEL had passed an order dated 2.12.2019 towards the following:
"(c) The admitted amount of running bills kept outstanding from December 2018 to September 2019 amounting to Rs.494.85 crores be paid by the Applicant/Appellant to the Second Respondent within a period of 60 days from the receipt of a copy of this order. The Applicant/Appellant is also directed to make regular payments for the future running bills so as to enable uninterrupted generation and supply of p ower in the larger interest of the consumers.
(d) Subject to outcome of the instant Appeal(s), the Applicant/ Appellant shall pay 75% of the claimed amount (Rs. 206.36 Crores) towards fixed charges for the intervening period from 19.07.2017 to 16.01.2018 within a period of 60 days from the receipt of a copy of this Order."
The APTEL order is on the following counts:
(a) Admitted energy bills shall be paid to the generator within a period of 60 days.
(b) Regular payments for the future running bills shall be paid to the generators.
(c) Payment to the tune of 75% of the disputed bill amount shall be paid to the generator.
11. The Commission has also noted that as per Petitioner's Claim, overdue outstanding amount as on 30.06.2019 is Rs.1,274 Crs. But due to variation in revenue collection by the Respondent, the Respondent is unable to submit a road map for liquidation of overdue outstanding. Taking into consideration the above facts and APTEL order dated 02.12.2019 in the matter of M/s BEL, the Commission directs that:
(a) The Respondent, UPPCL shall make regular timely payments for the future running bills of Petitioner, LPGCL as to other IPPs supplying power to U.P.
(b) The overdue outstanding amount of Rs.1,274 Crs as on 30.06.2019 payable to the Petitioner, LPGCL, shall be paid by the Respondent, UPPCL within a period of 60 days from the date of this order. In case, UPPCL is unable to liquidate its entire overdues within a period of 60 days from date of this order, due to shortfall in revenue collection, it will ensure that the overdue payment to the Petitioner gets priority and under no circumstances, payment to any other IPP be made for supply of power for a later period and all overdue payments be made only on principle of "First in First Out" till ensure overdues as on 30.06.2019 of the Petitioner, LPGCL are liquidated."
(7) The aforesaid order dated 09.12.2019 of the respondent no.1-UPERC has been challenged by the petitioner-UPPCL in this writ petition under Article 226 of the Constitution of India, without availing the remedy of filing an appeal before the Appellate Tribunal for Electricity (hereinafter referred to as "APTEL") under sub-sections 1 and 2 of Section 111 of the Electricity Act, 2003.
(8) Learned counsel for the petitioner has drawn our attention to Clause 11.3.2, 11.3.4, 13 and 14 of the PPA dated 10.12.2010 and has submitted that directions issued by the UPERC will adversely and directly impact the business of other generated companies and that too without assigning any reasons. He has further submitted that rural consumer had increased from 95 Lakhs to 1.6 Crores, whereas turn up in terms of revenue collection from such consumers is around 30% and supply of power to heavily subsidized agricultural consumer base in the dark zones. Therefore, there is short fall in the revenue collection due to non-payment of full dues by the State Government departments. At present, dues of Rs. 12,000 Crores are due to be received from the State Government Departments for the electricity supplied to them.
(9) Learned counsel for the petitioner has further drawn our attention to a Chart which is Billing and Payment detail of Bajaj Group (LPGCL) from August 2019 to January, 2020 and has submitted that for the month of September, 2019 and October, 2019, UPPCL had made payments over and above the bills amount and for the month of November, 2019, a payment of Rs.75 Crores had already been made against no invoice, therefore, looking to the financial condition of the UPPCL, no direction to pay outstanding of Rs.1,274 Crores by the Commission can be issued and prays that impugned order be quashed.
(10) In response, Sri J.N. Mathur, Senior Advocate, appearing on behalf of the respondent no.2-LPGCL has submitted that the petitioner is not making proportionate payment to all the generators and discriminating against the respondent no.2-LPGCL. He has drawn our attention to page No. 217, which is outstanding details of Generators as on 30th Sep 2019, which reads as under :-
Sl. No. Company Name Total outstanding in Rs./Crs.
Payment made in Rs./Crs Average billing as mentioned in the Petition Nos of months of average bill as outstanding 1 LPGCL 2471 425 460 5.38 2 BEL 501 75 76 6.63 3 KSK 845 168 263 3.22 4 LANCO 215 178 74 2.93 5 MB POWER 421 121 119 3.54 6 NTPC 1885 508 760 2.48 7 MEJA 172 79 0
-8
TRN 150 87 92 1.64 9 RKM 310 70 98 3.18 10 BARA 515 298 203 2.54 11 ROSA
-598 335 422
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12SASAN 0 35 0
-
13VISHNU PRAYAG 0 38 0
-
14GVK 173 55 14
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(11) Learned Senior Counsel for the respondent no.2 has submitted that outstanding amount as claimed by the respondent no.2 is not disputed by the petitioner. The UPERC in identical circumstances issued similar directions in the matter of M/s Bajaj Energy Limited Vs. Uttar Pradesh Power Corporation Ltd. and others, which was affirmed by the APTEL and in an appeal filed before the Apex Court by the UPPCL, the Apex Court in Civil Appeal No. 612-621/2020 has granted limited stay on 07.02.2020 in respect of fixed charges for the intervening period from 19.07.2017 to 16.01.2018 as the PPA agreement has been terminated, whereas in respect of due bills of electricity energy, no stay has been granted.
(12) Learned Senior Counsel for the respondent no.2 has further submitted that the order of the UPERC is very clear and specific. The UPERC has directed to the petitioner-UPPCL to pay the outstanding amount within a period of sixty days from the date of the order and in case the petitioner is unable to liquidate its entire overdues within a period of 60 days from the date of the order, due to shortfall in revenue collection, overdue payment to the LPGCL gets priority and under no circusmtances, payment to any other IPP be made for supply of pwoer for a later period and all overdue payments be made only on principle of "First in First Out" till entire overdues as on 30.06.2019 of the LPGCL are liquidated. Therefore, he prays that the writ petition be dismissed.
(13) On due consideration, we are of the view that UPERC has rightly imposed the condition while issuing direction to clear overdue outstanding of the respondent no.2-LPGCL within sixty days and only preference/priority be given in respect of clearing the overdue payment of the LPGCL.
(14) The writ petition is, accordingly, dismissed.
.
[Karunesh Singh Pawar, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 11.2.2020 lakshman/Ajit/-