Appellate Tribunal For Electricity
Uttar Pradesh Jal Vidyut Nigam Limited vs Central Electricity Regulatory ... on 13 April, 2026
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL No. 309 of 2018
Dated : 13th April, 2026
Present: Hon'ble Ms. Seema Gupta, Officiating Chairperson
Hon'ble Mr. Virender Bhat, Judicial Member
In the matter of:
Uttar Pradesh Jal Vidyut Nigam Limited
Through its Authorised Signatory
12th Floor, Shakti Bhawan Ext.,
14-Ashok Marg, Lucknow,
Uttar Pradesh - 226001 ... Appellant
Versus
1. Central Electricity Regulatory Commission
Through its Secretary,
4th Floor, Chanderlok Building,
36 Janpath, New Delhi - 110001
2. Madhya Pradesh Power Management Company Limited
Through its M.D.
Shakti Bhawan, Vidyut Nagar,
Rampur, Jabalpur (M.P.) - 482001
3. Uttar Pradesh Power Corporation Limited
Through its Authorised Signatory
Shakti Bhawan 14 Ashok Marg,
Lucknow - 225001
4. Energy Department, Government of Uttar Pradesh
Through its Secretary/Chief Secretary
Bapu Bhawan, Lucknow - 226001 ... Respondent (s)
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Appeal No. 309 of 2018 Page 1 of 29
Counsel for the Appellant(s) : Amit Kapur
Akshat Jain
Avdesh Mandloi
Abhimanyu Maheshwari
Shikhar Verma
Rishabh Bhardwaj
Sayan Ghosh
for App. 1
Counsel for the Respondent(s) : G. Umapathy Sr. Adv.
Aditya Singh
for Res. 2
Hemant Sahai
Puja Priyadarshini
Soumya Prakash
Anukriti Jain
Jyotshna Khatri
Parichita Chowdhury
for Res. 3
JUDGMENT
PER HON'BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. In this appeal, the Appellant has assailed the order dated 11th July, 2018 passed by 1st Respondent - Central Electricity Regulatory Commission (hereinafter referred to as CERC or Central Commission) in the Review Petition bearing No. 1/RP/2018 filed by the 2nd Respondent in which the review of the earlier order dated 12th October, 2017 of the Commission was sought vide which the petition
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 2 of 29 bearing No. 128/MP/2016 filed by 2nd Respondent had been disposed off.
2. The Appellant - Uttar Pradesh Jal Vitran Nigam Ltd. is one of the three companies formed upon the unbundling of erstwhile Uttar Pradesh State Electricity Board.
3. The 2nd Respondent - Madhya Pradesh Power Management Company Ltd. (in short MPPMCL) is a government owned company in which all the functions, properties, interest, rights and obligations of the erstwhile Madhya Pradesh State Electricity Board vest. Respondent No. 3 - Uttar Pradesh Power Corporation Ltd. (in short 'UPPCL') was constituted under Section 5 of the Electricity Act, 1948 and later on was restructured into three companies namely Uttar Pradesh Jal Vidyut Nigam Ltd. (the Appellant herein), Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited and Uttar Pradesh Power Corporation Limited vide notification dated 14th January, 2000 and 25th January, 2001 issued by Government of Uttar Pradesh.
4. Respondent No. 4 is a nodal department in the Government of Uttar Pradesh responsible for, inter alia, production of distribution of electricity in the State.
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5. Brief conspectus of the facts and circumstances in which this appeal has arisen and which are relevant for the disposal of the instant appeal are noted hereinbelow.
6. The instant appeal concerns Rihand Hydro Power Station and Matatila Hydro Power Station which were developed by the Government of U.P. and later on transferred to UP Electricity Board. Thereafter, these two power stations were transferred to the Appellant in the year 2000. The salient features of these two generating stations are given hereunder :-
Salient Features Rihand HPP Matatila HPP
A Location
(1) State Uttar Pradesh Uttar Pradesh
(2) District Mirzapur Lalitpur
(3) River Rihand Betwa
B Capacity and Allocation
300 MW 30 MW
(1) (a) Installed capacity 45 MW (15%) 10MW
(b) MP's share
5x50 MW March, 1962
(2) Year of 1x50 MW March, 1966 1965
Commissioning:
C Hvdroloqv 5148 Sq. miles 525 Sq. 8000 Sq. miles 720
(1) Total catchment area Miles (10-1%) 4623 Sq. Sq. miles
(a) Catchment area in Miles (99.9%) (9%) 72B0Sq.
UP miles (91%)
(b) Catchment area in
MP 40 Sq. miles (22.2%)
140 Sq. miles (77.8%)
(2) (a) Total 9000 Acres (28%)
submergence in UP MP 44 23320
(b) Total UP 108 Acres (72%)
submergence in MP
MP 18
UP 15
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(3) Number of villages submerged
7. On account of development of the generating stations, the land, trees and forests in the adjoining areas in the State of Madhya Pradesh were sub-merged, for which the State of Madhya Pradesh was demanding compensation in the form of supply of power from the generating stations. This issue was discussed In the sixth meeting of Central Zonal Council, headed by the Union Home Minister with Chief Ministers of the States of Uttar Pradesh and Madhya Pradesh as Members. At the instance of Chairman of the Council, it was agreed by the State Governments of Uttar Pradesh and Madhya Pradesh that 15% of power from Rihand HPP and 33% of power from Matatila HPP at the generating stations on year-to-year basis would be made available to MPEB. at cost price plus 5% thereof. The cost price was to be worked out by a Committee headed by Shri M.R. Sachdeva, the then Chairman, Central Water and Power Commission, after hearing the representatives of the two States.
8. In the meeting held on 2nd and 3rd September 1964, the Sachdeva Committee decided that supply of power from Rihand HPP was to be @ 3.5 paise/kWh (cost of generation plus 5% thereof) and
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 5 of 29 from Matatila HPP, supply was to be at the average rate of 6.5 paise/kWh (average cost of generation of available energy, both firm and secondary, plus 5% thereof). The Committee further decided that power to Madhya Pradesh from Rihand HPP was to be supplied at the border of State of Uttar Pradesh and MPEB was to bear an annual charge @ Rs.1.5 lakh for the transmission line to be constructed by UPSEB for conveyance of power. This was accepted by the representatives of UPSEB and MPSEB, who were present at the meetings of the Sachdeva Committee. The rates decided by the Sachdeva Committee and agreed to by the concerned parties were subject to review after 10 years. The conclusions drawn by the Sachdeva Committee in regard to fixation of rates for supply of power to the State of Madhya Pradesh were ratified by the Central Zonal Council in its meeting held on 19.9.1964. In this manner, the two issues relating to the quantum of supply of power from the generating stations and the rates of supply were decided.
9. In the meetings held on 7th and 8th June 1977, it was inter alia decided that in case MPSEB was not provided its entire share of power, balance units would be treated as over drawal by UPSEB and would be paid for accordingly by UPSEB. The above arrangement
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 6 of 29 was accepted and acted upon by UPSEB who had supplied power at varying volumes during certain periods. A sum of Rs.28.61 crore is stated to have been paid by the State of Uttar Pradesh from 1990-91 to 1999-2000 for non-supply of power from the generating stations to the State of Madhya Pradesh. During the period from 1962-63 to 2005-06, the State of Madhya Pradesh is stated to have received power supply of 626.84 MUs, which works out to about 12% of its total share of 5263.55 MUs, for the said period.
10. We may note here that tariff of these two generating stations was for the first time determined by Uttar Pradesh Electricity Regulatory Commission (in short "UPERC") for the year 2000-01 by order dated 27th July, 2007.
11. Subsequently, petition No. 107 of 2007 was filed by 2nd Respondent before the Central Commission praying for directions to the Respondents namely Government of U.P, UPPCL and UPJVNL to release MP's legitimate share of power from the generating stations and for payment of compensation of Rs.365.704 crores upto September, 2006 and for payment of interest at the borrowing rate for MPSEB plus 2% extra. Vide interlocutory order dated 27th February,
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 7 of 29 2008, the Central Commission held that it possesses jurisdiction to hear and adjudicate the matter in terms of Section 79(i)(c)(f) of the Electricity Act, 2003. Aggrieved by the said interlocutory order dated 27th February, 2008, UPPCL filed Appeal No. 35 of 2008 before this Tribunal on the aspect of jurisdiction of the Central Commission. This Tribunal vide order dated 9th January, 2009 affirmed the findings of the Central Commission.
12. Meanwhile, the Central Commission disposed off the said petition No. 107 of 2007 vide order dated 12th November, 2008 by allowing the prayers of 2nd Respondent, MPPMCL.
13. Aggrieved by the said order of the Central Commission dated 12th November, 2008, UPPCL filed Appeal No. 151 of 2008 before this Tribunal. Vide interim order dated 19th December, 2008, this Tribunal modified the order of the Commission and directed UPPCL to make payment of compensation of Rs.192 crores in three equal monthly instalments.
14. Subsequently, vide judgement dated 9th January, 2009, this Tribunal dismissed the earlier Appeal No. 35 of 2008 thereby holding that Central Commission had the jurisdiction to adjudicate upon the disputes between the parties. Against the said judgement, UPPCL had
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 8 of 29 filed civil appeal before the Hon'ble Supreme Court of India which was dismissed on the ground that Appeal No. 151 of 2008 was pending disposal before this Tribunal.
15. Therefore, Appeal No. 151 of 2008 also was dismissed by this Tribunal vide judgement dated 21st July, 2011, thereby affirming the findings of the Central Commission in order dated 12th November, 2008. Against the said judgement of this Tribunal, UPPCL filed Civil Appeal No. 3377-3378 of 2012 before the Hon'ble Supreme Court which was admitted vide order dated 26th March, 2012 and is still pending disposal.
16. Meanwhile a fresh petition No. 208 of 2010 came to be filed by 2nd Respondent - MPPMCL for direction to UPPCL for payment of compensation on account of retention of MP's share of power/non supply of its share of power from the generating stations and resumption of supply of such power. Vide order dated 20th February, 2014 passed in the said petition, the Central Commission decided the rate of consumption payable by UPPCL to MPPMCL in the following words :-
19. In view of the above discussions, we conclude that compensation is to be worked out on yearly basis. The
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compensation for the year 1.10.1974 to 30.9.1975 shall be payable in accordance with the weighted average rate of RAPS Unit I applicable for that year. The same methodology shall apply for computing the rate of compensation for the succeeding years."
17. The 2nd Respondent - MPPMCL filed a Review Petition bearing No. 13/RP/2014 seeking review of the said order dated 20th February, 2014 which was disposed of by the Central Commission with the following observations:-
"22. Based on the above discussions, the findings of the Commission are summarized as under:
(a) The question of limitation in filing the review petition as raised by the respondent, UPPCL is rejected.
(b) The issue of Current RAPS rate as decided in order dated 20.2.2014 shall remain unchanged upto 30.11.2005. With effect from 1.12.2005, the compensation shall be calculated at the notified rate of RAPS-I as on 30.11.2005 which shall be escalated at 4% per annum (which corresponds to the escalation rate for
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O&M expenses in the Tariff Regulations specified by the Commission for the period 2004-09) till the date of restoration of supply of power to the review petitioner.
(c) The last line in para 23 of the order dated 20.2.2014 shall stand modified as under:
".........Therefore, the compensation receivable by petitioner, MPPMCL, as a successor entity of MPEB/MPSEB, shall form part of all the dues payable to MPEB/MPSEB"
18. In this backdrop, the 2nd Respondent - MPPMCL approached the Commission again by way of Petition No. 128/MP/2016 seeking direction to the Appellant for filing ARR and petition for determination of O&M charges in respect of Rihand and Matatila Hydro power stations w.e.f. 1st April, 2008. The prayers sought in the said petition are extracted hereinbelow:-
(i) Direct the 1st Respondent to file petition and ARR for determination of O & M expenses of 'the generating stations' HPS for the period from 1.4.2008 onwards under section 64(1) to (4) and 79 (1) (b) of the Electricity Act,
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2003 and as per CERC‟s Regulations prescribed from time to time;
(ii) Direct the 1st Respondent to raise the bills of supply of MP‟s share of power from 'the generating stations' HPS, at the O & M expenditure indicated in the tariff orders of UPERC, on provisional basis till final determination of same by this Commission;
(iii) Declare that the bill towards surcharge is illegal and in the alternative, direct the 1st Respondent not to raise surcharge bill till adjudication on the claim of 1st Respondent of O & M charges;
(iv) Restrain the 1st Respondent from giving any threat towards discontinuance of supply of MP‟s share of power from 'the generating stations' HPS; and
(v) Pass such further or other orders as this Commission may deem fit and proper in the facts and circumstances of the case.
19. This petition was disposed off by the Commission vide order dated 12th October, 2017 holding inter alia as under :-
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"42. Thus, the respondents having accepted the jurisdiction of the Central Commission in the case of Rajghat HPS, has taken a different stand in respect of 'the generating stations' in this Petition, despite being aware that the facts and circumstances in both these cases were similar. In this background, the respondent, UPJVNL cannot be permitted to reopen the matter on extraneous grounds and is therefore estopped from contesting the question of jurisdiction. In our considered view, the issue of compensation amount payable upto 31.3.2008 in respect of 'the generating stations' having been decided in the earlier proceedings, the Petitioner cannot be estopped from seeking directions on the respondents to file tariff petition, in respect of 'the generating stations' from 1.4.2008.
43. We have in this order decided that 'the generating stations' has a composite scheme for generation and supply of power in more than one State and accordingly, this Commission has the jurisdiction to determine the tariff of the generating stations for supply of power made by the
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respondent, UPJVNL to the Petitioner. The respondent has submitted that the ARR & tariff petitions filed before UPERC in respect of 'the generating stations' for the period from 2000-01 till 2014-19, had been decided, excepting for the period 2014-19, which is still pending. In view of this and as a corollary to the findings in this order, we direct the respondent, UPJVNL to file petition for determination of tariff of 'the generating stations' for the period from 2014-15 to 2018-19 in terms of the provisions of the CERC (Terms and Conditions of Tariff), Regulations, 2014, within three months from the date of this order."
20. Thus, the CERC rejected the prayer of 2nd respondent - MPPMCL for a direction to the Appellant to file petition and ARR for determination of O&M expenses in respect of the two generating stations w.e.f. 1st April, 2008 and directed filing of such petition for the period from 2014-15.
21. Feeling aggrieved by the said order of the Commission, MPPMCL filed Review Petition No. 1/Review Petition/2018 with the following prayers:-
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(a) Allow the application for rectification of error in order dated 12.10.2017 passed by CERC in Petition No. 128/MP/2016;
(b) Direct the Respondent to file tariff petition in respect of Rihand & Matatila for the period from 1.4.2008 onwards instead of from 2014-15; and
(c) Pass such further or other orders as this Commission may deem fit and proper in the facts and circumstances of the case."
22. The CERC did not find any merit in the Review Petition and accordingly held as under :-
"11. Though the Commission in para 42 had acknowledged the Petitioner's prayer seeking directions on the Respondent, UPJVNL to file tariff petition with effect from 1.4.2008, it was observed by the Commission that the tariff petitions for the period from 2000-01 till 2013-14 had been disposed of by UPERC and only the tariff petition for the period 2014-19 was pending before it. Accordingly, the Commission, by a conscious decision, decided not to reopen the tariff already determined by
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UPERC for the period from 1.4.2008 till 31.3.2014. In this background, the Commission had, in para 43 of the order, directed the Respondent, UPJVNL to file Petition for determination of tariff of "the generating stations‟ for the period from 2014-15 to 2018-19 in terms of the 2014 Tariff Regulations ...... Since it was a conscious decision of the Commission not to direct UPJVNL to file tariff Petition from 1.4.2008 to 31.3.2014 as brought out in para 43 of the impugned order as quoted above, we do not find any error apparent on the face of the order dated 12.10.2017 and the review on this ground fails."
23. However, it appears that at the time of disposal of the Review Petition vide the impugned order, the Commission found that one of the prayers made by MPPMCL in Petition No. 128/MP/2016 for a direction to the Appellant to raise bills for supply of Madhya Pradesh's share of power at O&M expenses indicating in the various orders passed by UPERC has not been addressed in the order dated 12th October, 2017. Accordingly, the Commission proceeded to modify the order dated 12th October, 2017. Paragraph No. 12 of the impugned order is material in this regard and is extracted hereinbelow:-
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"12. One more prayer of the Petitioner in Petition No. 128/MP/2016 was for a direction on the Respondent, UPJVNL to raise bills of supply of Madhya Pradesh share of power at the O&M expenses indicated in the tariff orders of UPERC, on provisional basis, till final determination of tariff by this Commission. This prayer of the petitioner was inadvertently not addressed by the Commission in order dated12.10.2017. To that extent, the order dated 12.10.2017 suffers from infirmity. Since the Respondent, UPJVNL has been directed by this Commission by order dated 12.10.2017 to file the tariff Petition for the period from 1.4.2014 onwards and not from 1.4.2008 on account of the tariff having been decided by the UPERC for the said period, we are of the view that appropriate directions need to be issued for payment of charges by the Petitioner for the period from 1.4.2008 to31.3.2014. Accordingly, we modify the impugned order by adding the following at the end of para 43 of the order:
"As regards the tariff for the period from 1.4.2008 to 31.3.2014, the Petitioner is directed to make
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payment of O & M charges for this period in accordance with the relevant tariff orders of UPERC, subject to adjustment of payments made on provisional basis."
24. The Appellant has, in this appeal, assailed the above noted portion of the impugned review order passed by the Commission wherein the Commission has modified its earlier order dated 12th October, 2017.
25. The main issues raised by the Appellant in the instant appeal are :-
"A. Whether Ld. Central Commission could, in exercise of powers under Section 79 of the Electricity Act, issued directions to Respondent No. 2 for payment of O&M Charges for the period 01.04.2008 to 31.03.2014 when it had noted that Ld. UP Commission had already determined tariff for the same period and held in para 43 that "The Respondent has submitted that the ARR and tariff petitions filed before UPERC in respect of the 'generating stations' for the period from 2000-01 till 2014- 19, had been decided, excepting for the period in this
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Order, we direct the respondent, UPIVNI to file petition for 2014-19, which is still pending. In view of this and as a corollary to the findings in this Order, we direct the respondent, UPJVNL to file petition for determination of tariff of the 'generating stations' for the period from 2014- 15 to 2018-19 in terms of the provisions of the CERC (Terms and Conditions of Tariff) Regulations, 2014, within three months of this Order."?
B. Whether Ld. Central Commission has erred in modifying the tariff determined by Ld. UP Commission as was recognized and accepted as basis for tariff payable by Madhya Pradesh to Uttar Pradesh?
C. Whether Ld. Central Commission could have directed payment of O&M charges only in context of the Minutes of the Sachdeva Committee meetings and the decisions of the State Governments?"
26. We have heard Shri Amit Kapur, Learned Counsel for the Appellant and Shri G. Umapathy, Learned Senior Counsel appearing
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 19 of 29 on behalf of 2nd Respondent. We have also perused the impugned order as well as the written submissions filed on behalf of the parties.
27. Learned Counsel for the Appellant submitted that when the Commission had in its order dated 12.10.2017 taken a conscious decision not to re-open the tariff for the power projects in question already determined by the UPERC for the period 01.04.2008 till 31.03.2014, it ought not to have directed the 2nd Respondent vide impugned review order dated 11.07.2018 to make payment of only O&M charges for the said period to the Appellant. He argued that by issuing such direction, the Commission has amended/altered the tariff determined by UPERC, which is not permissible as it does not have any supervisory jurisdiction over the orders passed by UPERC.
28. Per contra, it is argued by Learned Senior Counsel for the 2nd Respondent that 2nd Respondent is bound to pay only the O&M charges/ cost of generation+5% as held by Tribunal in order dated 21.07.2011 in Appeal No. 151 of 2008 and therefore, no error or lacuna can be found in impugned order of the Commission in this regard. He argued that supply of power by Appellant from its generating stations (Rihand & Matatila) to 2nd Respondent is not sale of power but supply of power as share of Madhya Pradesh on account of submergence of
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 20 of 29 large tracts of land in the State, which fact has been affirmed by this Tribunal in judgement dated 21.07.2011 in Appeal No. 151 of 2008, and therefore, the Appellant is entitled to only O&M charges. According to the Learned Senior Counsel, the instant appeal is meritless and liable to be dismissed.
Our analysis
29. We have extracted hereinabove the relevant paragraph Nos. 42 & 43 of the initial order dated 12.10.2017 passed by the Commission in Petition No. 128/MP/2016 filed by 2nd Respondent. The prayer of the 2nd Respondent in the petition was to direct the Appellant to file petition & ARR for determination of O&M expenses for its generating stations in Rihand & Matatila for the period from 01.04.2008 onwards under the relevant provisions of Electricity Act, 2003 and as per the CERC Regulations notified from time to time.
30. However, it appears that since by that date the tariff petitions filed by the Appellant before UPERC for the period from 2000-01 till 2013-14 had been already disposed off, the Commission did not think it proper or prudent to disturb the orders passed on these tariff petitions by UPERC and accordingly directed the Appellant to file petitions for
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 21 of 29 determination of tariff of the generating stations for the period from 2014-15 to 2018-19 in terms of the CERC Tariff Regulations, 2014.
31. This thought process of the Commission was reiterated in the order dated 11.07.2018 passed in the review petition filed by 2nd Respondent seeking review of the order dated 12.10.2017, in the following words:-
"11. Though the Commission in para 42 had acknowledged the Petitioner's prayer seeking directions on the Respondent, UPJVNL to file tariff petition with effect from 1.4.2008, it was observed by the Commission that the tariff petitions for the period from 2000-01 till 2013-14 had been disposed of by UPERC and only the tariff petition for the period 2014-19 was pending before it. Accordingly, the Commission, by a conscious decision, decided not to reopen the tariff already determined by UPERC for the period from 1.4.2008 till 31.3.2014. In this background, the Commission had, in para 43 of the order, directed the Respondent, UPJVNL to file Petition for determination of tariff of "the generating stations‟ for the
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period from 2014-15 to 2018-19 in terms of the 2014 Tariff Regulations."
32. The prayers made by the 2nd Respondent in the Review Petition were :-
"(a) Allow the application for rectification of error in order dated 12.10.2017 passed by CERC in Petition No. 128/MP/2016;
(b) Direct the Respondent to file tariff petition in respect of Rihand & Matatila for the period from 1.4.2008 onwards instead of from 2014-15; and
(c) Pass such further or other orders as this Commission may deem fit and proper in the facts and circumstances of the case."
33. The review of the order dated 12.10.2017 was sought by the 2nd Respondent only to the extent that it did not direct the Appellant to file tariff petitions in respect of the power projects at Rihand & Matatila for the period w.e.f. 01.04.2008. On this count, the Commission did not find any error apparent in the face of record in the order dated
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 23 of 29 12.10.2017 and rejected the prayer of 2nd Respondent in following words :-
"Since it was a conscious decision of the Commission not to direct UPJVNL to file tariff Petition from 1.4.2008 to 31.3.2014 as brought out in para 43 of the impugned order as quoted above, we do not find any error apparent on the face of the order dated 12.10.2017 and the review on this ground fails."
34. It appears that while rejecting the prayer of 2nd Respondent for review of order dated 12.10.2017, as aforenoted, the Commission found that a prayer made by 2nd Respondent in original petition No. 128/MP/2016 had remained to be addressed in the order dated 12.10.2017 and accordingly proceeded to make following directions/observations in the review order dated 11/07/2008 :-
"12. One more prayer of the Petitioner in Petition No. 128/MP/2016 was for a direction on the Respondent, UPJVNL to raise bills of supply of Madhya Pradesh share of power at the O&M expenses indicated in the tariff orders of UPERC, on provisional basis, till final
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determination of tariff by this Commission. This prayer of the petitioner was inadvertently not addressed by the Commission in order dated 12.10.2017. To that extent, the order dated 12.10.2017 suffers from infirmity. Since the Respondent, UPJVNL has been directed by this Commission by order dated 12.10.2017 to file the tariff Petition for the period from 1.4.2014 onwards and not from 1.4.2008 on account of the tariff having been decided by the UPERC for the said period, we are of the view that appropriate directions need to be issued for payment of charges by the Petitioner for the period from 1.4.2008 to 31.3.2014. Accordingly, we modify the impugned order by adding the following at the end of para 43 of the order:
"As regards the tariff for the period from 1.4.2008 to 31.3.2014, the Petitioner is directed to make payment of O & M charges for this period in accordance with the relevant tariff orders of UPERC, subject to adjustment of payments made on provisional basis."
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35. Thus the Commission modified the order dated 12.10.2017, which modification has been impugned in the Appeal.
36. We find ourselves in agreement with the contentions/submissions of the Appellant in this regard and find such modification done to its earlier order dated 12.10.2017 in review order dated 11/07/2018 absolutely unwarranted and uncalled for besides being perverse.
37. We have already noted the prayers made by the 2nd Respondent in the Review Petition. There was no prayer or contention that any of its prayers in the original petition had remained unanswered in the order dated 12.10.2017. Despite the same, the Commission appears to have found some shortcomings in the order dated 12.10.2017 and proceeded to rectify the same. It is axiomatic that power to review a judgement or order under Section 114 and Order XLVII of the Code or Civil Procedure could be exercised by Court or judicial authority only on an application in this regard by any of the parties to the lis. Such power of review cannot be exercised suo moto. In this instant case, none of the parties has sought review of the order dated 12.10.2017 on the aspect that it does not address one of the prayers in the original petition. Therefore, when the 2nd Respondent
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 26 of 29 (i.e. the petitioner before the Commission) felt satisfied with the said order dated 12.10.2017 on this count, there was no cause or occasion for the Commission to pin point any such error and proceed to correct it. Such approach of the Commission cannot be countenanced.
38. That apart, the tone and tenor of paragraph 12 of the impugned review order clearly indicates that the Commission has not heard the parties on the aspect under consideration. It is evident from the perusal of the entire order that the parties had not advanced any arguments on this issue. It is inexplicable to us as to how the Commission proceeded to take up this issue and modify the order dated 12.10.2017 without hearing the parties. The Commission has not proceeded to correct any clerical or arithmetical mistake in the order dated 12.10.2017. It has modified the said order and curtailed the entitlement of Appellant in so far as the tariff for the two power projects in question is concerned. Such a direction could not have been issued without hearing the Appellant. By doing so, the Commission has violated the fundamental principle of natural justice namely "Audi alteram Partem"
(no person should be condemned unheard). We find it ironical that the Commission has ignored this basic tenet of natural justice by issuing
------------------------------------------------------------------------------------------------------------- Appeal No. 309 of 2018 Page 27 of 29 the direction in question without hearing the Appellant. Thus, on this count also, the impugned order cannot be sustained.
39. Further, when the Commission accepted the tariff orders passed by the UPERC for these two power projects for the period 2000-01 to 2013-14 and took a conscious decision not to reopen the tariff determined by UPERC for the said period, where was the cause or occasion for it to direct the 2nd Respondent in the review order dated 11.07.2018, to make payment of O&M charges only for the period from 01/04/2008 to 31/03/2014. Either the Commission may have held that UPERC did not have jurisdiction to determine tariff for the two power projects in question and should have proceeded to determine tariff afresh for the entire period commencing from the year 2000-01. The Commission did not do that. It chose not to re-open the tariff determined by UPERC till the year 2013-14, thereby holding the tariff determination till such period by UPERC valid. However, in the same breath the Commission ought not have directed the 2nd Respondent to pay O&M charges only for the period from 01/04/2008 till 31.03.2014. The Commission was not sitting in appeal on the tariff orders passed by UPERC and thus, had no power or jurisdiction to modify those orders. Once the Commission took a conscious decision not to reopen
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the tariff orders passed by UPERC, it ought to have left to the parties to assail those orders as per law, if they chose to do so. The impugned order smells foul on this count also.
Conclusion
40. Thus, we hereby set aside the impugned order dated 11.07.2018 to the extent it modifies the Commission's earlier order dated 12.10.2017 vide paragraph No. 12 while leaving the remaining portion of the impugned order undisturbed. Accordingly, the appeal is allowed and the impugned order stands modified to the above extent. Pronounced in the open court on this 13th day of April, 2026.
(Virender Bhat) (Seema Gupta)
Judicial Member Officiating Chairperson
✓
REPORTABLE / NON REPORTABLE
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