Appellate Tribunal For Electricity
Ptc India Limited vs Secretary Central Electricity ... on 6 April, 2026
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL No. 242 of 2019
Dated: 06.04.2026
Present: Hon'ble Ms. Seema Gupta, Officiating Chairperson
Hon'ble Mr. Virender Bhat, Judicial Member
IN THE MATTER OF:
PTC India Limited
2nd Floor, NBCC Tower,
15, Bhikaji Cama Place,
New Delhi - 110066 ... Appellant
Versus
1. Secretary
Central Electricity Regulatory Commission
6th, 7th & 8th Floors, Tower B,
World Trade Centre, Nauroji Nagar,
New Delhi - 110029
2. Managing Director
Korba Power Limited
(formerly known as Lanco Amarkantak Power Limited)
Flat No. 5A, 5th Floor, D. No. 6-3-626/1/601,
Parameshwara Apartment, Anand Nagar, Khairatabad,
Hyderabad - 500004, Telangana
3. Managing Director
Power Grid Corporation of India
(Govt. of India Undertaking)
Registered Office: B-9, Qutub Institutional Area,
Katwaria Sarai, New Delhi - 110016
4. Managing Director
Haryana Power Purchase Centre
2nd Floor, Shakti Bhawan, Sector 16, Panchkula,
Haryana - 134016
_______________________________________________________________________________
Appeal No.242 of 2019 Page 1 of 64
5. Managing Director
Chhattisgarh State Power Trading Company Limited
2nd Floor, Vidyut Sewa Bhawan, Danganiya, Raipur,
Chhattisgarh - 492013
6. The Executive Director
Central Transmission Utility of India Limited
1st Floor, Saudamini, Plot No. 2, Sector-29,
Near IFFCO Chowk Metro Station,
Gurgaon - 122 001, Haryana ... Respondent (s)
Counsel for the Appellant(s) : B. P. Patil, Sr. Adv.
Ravi Kishore
Niraj Singh
Deepak Jaiswal
Rajshree Chaudhary
Counsel for the Respondent(s) : Sanjay Sen, Sr. Adv.
Deepak Khurana
Vineet Tayal
Abhishek Bansal
Nishtha Wadhwa
Bhaskar for Res. 2
Suparna Srivastava for Res. 3
Poorva Saigal
Shubham Arya
Pallavi Saigal
Reeha Singh
Rishabh Saxena
Harshvardhan Singh
Shirin Gupta for Res. 6
JUDGMENT
PER HON'BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. The Appellate PTC India Ltd. has, in this appeal, assailed the Order dated 30.05.2019 passed by the Central Electricity Regulatory Commission ("CERC") in Petition No. 227/MP/2017, wherein the CERC allowing the _______________________________________________________________________________ Appeal No.242 of 2019 Page 2 of 64 petition filed by Respondent No.2 i.e. Korba Power Limited (erstwhile Lanco Amarkantak Power Limited) passed orders/directions against the Appellant, for paying 100% of the Long Term Open Access ("LTOA") charges and refunding the excess transmission charges collected from Respondent No. 2 w.e.f. 05.12.2015 corresponding to 5% of LTA.
Description of Parties:-
2. The Appellant PTC India Limited is company under the Companies Act, 1956 and is an inter-state Trading Licensee under Section 14 of the Electricity Act, 2003.
3. Respondent No. 1, Central Electricity Regulatory Commission (in short "Commission" or "CERC") exercising jurisdiction and discharging functions in terms of the Electricity Act, 2003.
4. Respondent No. 2 Korba Power Limited ("KPL") (erstwhile Lanco Amarkantak Power Limited) is a Generating Company in terms of Section 2(28) of the Electricity Act, 2003 (EA, 2003) is incorporated under the Companies Act, 1956 and operates a 2 x 300 MW coal based thermal power project at Village-Pathadi, Tehsil and District Korba, Chhattisgarh. _______________________________________________________________________________ Appeal No.242 of 2019 Page 3 of 64
5. Respondent No. 3, Power Grid Corporation of India ("PGCIL"), is a Government of India Enterprise, notified as the Central Transmission Utility of India Limited ("CTU/CTUIL") under Section 38 of the Electricity Act, 2003 and discharges its functions of coordination & planning for the Inter-State transmission of electricity.
6. The Respondent No.4 is Haryana Power Purchase Centre ("HPPC") responsible for procurement of power for distribution companies of the State of Haryana.
7. The Respondent No.5 Chhattisgarh State Power Distribution company Limited ("CSPDCL") is distribution Company in the State of Chhattisgarh which is purchasing 5% power from the plant of Respondent No. 2. Factual Matrix of the Case:-
8. The facts as brought before us by the parties in the appeal are summarized in the following paragraphs. For the sake of convenience, we shall refer to the parties by their respective names instead of Appellant or Respondent(s).
8.1 PTC has entered into a Power Purchase Agreement ("PPA") on 19.10.2005 with KPL for sale of entire power from its 300 MW Unit 2 _______________________________________________________________________________ Appeal No.242 of 2019 Page 4 of 64 for a period of 25 years. Consequent to the signing of the PPA, on 21.09.2006 PTC entered into a back to back Power Sale Agreement ("PSA") with HPPC. Presently, KPL is supplying 95% of power generated from Unit 2 having capacity of 300 MW to HPPC through PTC and balance 5% directly to CSPDCL under an interim order of the Hon'ble Supreme Court as Power Purchase Agreement has been terminated by KPL and is under challenge before the Hon'ble High Court of Delhi.
8.2 In terms of the PSA, PTC had to obtain the Long Term Open Access for adequate transmission capacity from CTU and pay the transmission charges on behalf of HPPC; which it applied for before the CTU on 20.03.2007 for the full quantum of 300 MW. 8.3 PTC entered into a Bulk Power Transmission Agreement ("BPTA") with the CTU on 27.07.2009 for evacuation of power from Unit 2 of the KPL to HPPC. The LTOA was to be operational upon completion of certain transmission elements and till then transfer of power was to take place under Short Term Open Access. 8.4 On 31.07.2014, CTU informed PTC that the transmission system mentioned in the letter dated 16.06.2008 had already been commissioned by it except the dedicated line which was to be built by the KPL. On 06.09.2014, KPL confirmed that the dedicated line _______________________________________________________________________________ Appeal No.242 of 2019 Page 5 of 64 from Pathadi TPS was ready and the Pathadi - Bilaspur 400 KV D/C lines had been connected to the PGCIL, Bilaspur Sub- Station. 8.5 That subsequently, KPL informed PTC that it is impossible to perform the PPA at a capped tariff of Rs. 2.32 per KWh. Consequently, PTC filed a Petition before HERC to revise the Tariff under PSA. HPPC filed a separate petition before HERC seeking a direction qua KPL and PTC to comply with their contractual obligations under the PPA and restraining KPL from Selling the contracted capacity to any third party including and not limited to the State of Chhattisgarh. During the pendency of the above petitions KPL unilaterally terminated the PPA vide its letter dated 11.01.2011. 8.6 On 12.01.2011, KPL entered into a PPA with CSPDCL for supply of 35% share of power to Government of Chhattisgarh ("GOCG") in view of then obligations under the Implementation Agreement. 8.7 HERC vide its order dated 2.2.2011 dismissed the petition filed by PTC and allowed the petition filed by HPPC and proceeded to exercise jurisdiction in respect of such PPA to restrain KPL from revising its price/tariff for sale of power and further restrained KPL from selling the contracted power to a third party. Aggrieved by order of the HERC, KPL filed an appeal being Appeal No. 15 of 2011 and CSPDCL also filed an appeal being Appeal No. 52 of 2011. This Tribunal permitted KPL to supply 35% power to CSPDCL _______________________________________________________________________________ Appeal No.242 of 2019 Page 6 of 64 vide an interim order dated 23.03.2011. Meanwhile, considering the termination of the PPA as illegal, PTC invoked the arbitration clause in the PPA challenging the termination of the PPA by KPL. Subsequently, this Tribunal vide a common judgment dated 04.11.2011 while holding that HERC had the jurisdiction, dismissed Appeal No. 15 of 2011 and allowed Appeal No. 52 of 2011 of CSPDCL and remanded the matter to HERC to grant an opportunity to CSPDCL of being heard.
8.8 Aggrieved by the above judgement of this Tribunal, KPL filed Civil Appeal No. 10329 of 2011 before the Hon'ble Supreme Court wherein the vide its order dated 16.12.2011, inter alia, the Hon'ble Supreme Court directed KPL to continue supply of power in terms of the interim order dated 23.03.2011 of this Tribunal. Cross appeals were also filed by PTC and HPPC before the Hon'ble Supreme Court which are tagged with the Civil Appeal No. 10329 of 2011 and all the aforesaid Civil Appeals are pending adjudication before the Hon'ble Supreme Court.
8.9 That subsequently, from April 2013 KPL discontinued supply of power to HPPC through PTC citing various difficulties including purported non-availability of coal from South Eastern Coal Fields Ltd. As the PPA was already terminated and power was not being supplied by KPL to the PTC for onward sale to HPPC, PTC vide _______________________________________________________________________________ Appeal No.242 of 2019 Page 7 of 64 letter dated 24.12.2014 (re-iterated vide letter dated 22.01.2015) requested the CTU to keep the operationalization of the LTOA in abeyance till the final disposal of the Civil Appeals by the Hon'ble Supreme Court. Thereafter, on separate applications of both PTC and KPL, the Hon'ble Supreme Court impleaded CTU as well as SECL as necessary parties in the pending Civil Appeal No. 10329 of 2011. Evidently, in the aforesaid impleadment application, KPL also prayed for a direction to PTC and CTU to arrange and ensure unhindered transmission of power, treating the supply of power from the KPL's plant to CSPDCL as supply made under Long Term Basis.
8.10 On 18.09.2015, the Hon'ble Supreme Court passed an order wherefrom it emerges that the present supply by KPL to HPPC through PTC is as per the orders of the Hon'ble Supreme Court and not under the PPA, it being terminated already. The arbitral award held such PPA termination to be valid and the same is under challenge before the Hon'ble Delhi High Court. KPL prayed for the supply to be treated as long term and also voluntarily undertook to open Letter of Credit ("LC") for the full quantum of LTOA i.e. 300 MW.
8.11 That pursuant to the above order of the Hon'ble Supreme Court, KPL opened the LC for the full quantum of power (i.e. 300 MW) in _______________________________________________________________________________ Appeal No.242 of 2019 Page 8 of 64 favour of CTU for payment of transmission charges. CSDPCL decided to avail only 5% power from KPL's power plant. Accordingly, in terms of the orders of this Tribunal and Hon'ble Supreme Court, HPPC agreed to purchase the balance 95% power from KPL.
8.12 The above supply of power commenced after PTC conveyed its acceptance for operationalization of the LTOA to the extent of flow of power i.e. 95% of contracted quantum after obtaining consent from KPL and HPPC. Vide letter dated 30.11.2015, PTC intimated to CTU that the transmission charges related to 5% share will be borne by KPL / CSPDCL.
8.13 Since the power was being supplied to the extent of 95%, CTU should have charged transmission charges commensurate with the quantum of power being supplied by KPL through PTC to HPPC i.e. 95%. However, in total disregard to the above facts, CTU raised invoice for transmission charges corresponding to 100% [300 MW] power on PTC. Vide letter dated 09.01.2016 PTC requested CTU to raise the invoice for only 95% of transmission charges. 8.14 HPPC was reimbursing LTOA/ transmission charges only to the extent of power flow i.e. corresponding to 95% only, in terms of the PSA. The amount for balance 5% charges was contested/ objected to by both PTC and KPL vide various correspondences in January _______________________________________________________________________________ Appeal No.242 of 2019 Page 9 of 64 and February, 2016 however, CTU insisted for payment of 100% transmission charges which was being paid under protest by KPL / PTC. Pertinently, KPL had voluntarily agreed to pay such 5% transmission charges vide its letter dated 13.01.2016. 8.15 Meanwhile, KPL informed PTC that CSPDCL has commenced scheduling of its 5% home state share from KPL 17.04.2016 onwards and has been paying Open Access charges for the same directly to CTU and that CTU was collecting transmission charges for scheduling 5% home state share from KPL in addition to the transmission charges for 100% (300 MW) from PTC. Since the 95% supply was in terms of the Hon'ble Supreme Court's directions, CTU was entitled to charge transmission charges only to the extent of flow of power i.e. 95% to HPPC instead of the entire capacity, which is also borne out of CTU's own submissions before the Hon'ble Supreme Court.
8.16 As CTU did not agree to charge transmission charges as sought for by PTC / KPL i.e. corresponding to 95% instead of 100%, KPL filed Petition No.227/MP/2017 before the CERC seeking relief against CTU (and not against PTC). PTC and CTU both contested the maintainability of the said petition before CERC however, in total disregard of the factual matrix, CERC passed the impugned order on 30.05.2019 holding PTC liable to pay 100% of the transmission _______________________________________________________________________________ Appeal No.242 of 2019 Page 10 of 64 charges to CTU and also directing it to refund 5% of LTA charges collected from KPL despite no such prayer being made by KPL before CERC. KPL vide letter dated 19.06.2019 raised a demand for payment of Rs 21,77,01,627/- on PTC.
Submissions on behalf of the Appellant PTC:-
9. Ld. Counsel for the Appellant would argue that the impugned order of the commission is not sustainable either on facts or on law. He argued that:
9.1 The CERC failed to appreciate the fact that the present arrangement of supply of power from Unit 2 of KPL to HPPC and CSPDCL are pursuant to an interim order passed by the Hon'ble Supreme Court and accordingly, any modification or amendment to the said arrangement is within the sole jurisdiction of the Hon'ble Supreme Court and CERC had no jurisdiction to entertain the Petition No.227/MP/2017 and passing of the impugned order dated 30.05.2019 amounts to modifying the orders of the Hon'ble Supreme Court.
9.2 Further, CERC failed to appreciate that no reliefs were sought against PTC in Petition No.227/MP/2017 and it is a well settled principle that any Court cannot grant a relief which is beyond the _______________________________________________________________________________ Appeal No.242 of 2019 Page 11 of 64 prayers sought. CERC has failed to appreciate that the reliefs sought in the petition preferred by KPL were only qua CTU seeking directions that it should charge transmission charges commensurate with the flow of power from KPL to HPPC through PTC. It is noteworthy that despite no reliefs being sought qua PTC the CERC has proceeded to hold that PTC shall be bound to pay the transmission charges under the BPTA. In this regard, PTC has relied upon Order VII Rule 5 & 7 of the CPC, reads as under:
"5. Defendant's interest and liability to be shown. - The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff's demand.
7. Relief to be specifically stated. - Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as ifit had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
9.3 The aforementioned provisions of the CPC, mandate that "Defendant's interest and liability to be shown" and "Relief to be specifically stated" in the Petition. However, in the Petition filed by KPL before CERC, neither any interest or liability of PTC was _______________________________________________________________________________ Appeal No.242 of 2019 Page 12 of 64 shown nor any relief was sought against it. PTC has relied upon the following judgments in this regard viz. (i) Sasan Power Ltd. Vs. CERC 2016 SCC OnLine APTEL 91; (ii) Bachhaj Nahar Vs. Nilima Mandal & Anr. (2008) 17 SCC 491; (iii) Sheila Burney (Dr) & Ors vrs Syed All Mossa Raza (Dead) by LRs & Ors., (2011) 6 see 529; (iv) Akella Lalitha Vs. Kanda Hanumantha Rao & Anr. 2022 SCC OnLine SC 928; (v) State of Uttarakhand & Anr. Vs. Mandir Sri Laxman Sidh Maharaj (2017) 9 SCC 579.
9.4 CERC also failed to appreciate that KPL voluntarily undertook to open LC for full quantum of LTOA i.e. 300 MW during the hearing before the Hon'ble Supreme Court on 18.09.2015 as it was desirous of supplying power despite having terminated the PPA, for which it required coal linkage and on that basis the Hon'ble Supreme Court passed the aforesaid interim order. Consequently, only the Hon'ble Supreme Court has the jurisdiction to amend/ modify the said order and the Petition filed by KPL before CERC was not maintainable. 9.5 Moreover, CERC also failed to appreciate that CTU itself made a statement before the Hon'ble Supreme Court that PTC would be required to pay the actual charges to avail the benefits of infrastructure owned by CTU and hence, transmission charges to the extent of 95% of power being supplied by KPL to HPPC only needs to be paid. CERC could not have passed an order directing _______________________________________________________________________________ Appeal No.242 of 2019 Page 13 of 64 PTC to pay the transmission charges for more than power being transmitted i.e., 95% of 300 MW as the balance 5% is being supplied by KPL to State of Chhattisgarh.
9.6 CERC has completely disregarded the admitted position that the operationalization of LTA by CTU and corresponding power supply are pursuant to the Hon'ble Supreme Court's order as there was no underlining PPA between PTC and KPL, it having been illegally and unilaterally terminated by KPL. This fact is borne out of the CTU letter dated 31.07.2014 informing PTC that the LTA has been operationalized and that CTU raising the invoices only from 09.01.2016 i.e. after commencement of power supply from 03.12.2025 in terms of the 08.09.2015 order of the Hon'ble Supreme Court. Further, CTU sought consent of KPL and HPCC for operationalization of LTA which was provided by these parties and submitted to CTU by PTC on 30.11.2015, however, it is pertinent to mention that in normal course no such consent is required. Thus, the LTA was operationalised not as per Regulations but in furtherance of the orders of Hon'ble Supreme Court. 9.7 As regards payment of transmission charges was concerned, KPL vide letters dated 12.01.2016 and 09.02.2016 had confirmed that PTC may deduct transmission charges from the bills of KPL. Thus, _______________________________________________________________________________ Appeal No.242 of 2019 Page 14 of 64 KPL had undertaken to pay the balance 5% LTA charges as 95% was being reimbursed by HPPC. KPL was fully aware that it was CTU who was illegally charging transmission charges for 100% corresponding to 300 MW and CTU alone should refund the transmission charges corresponding to 5%. With this understanding. KPL filed the Petition before CERC wherein it was prayed that CTU should refund the transmission charges towards 5%. 9.8 Moreover, for the BPTA arrangement, there has to be a valid and binding PPA between the parties in terms of the Detailed Procedure of Central Transmission Utility under Regulation 27 (1) of the Central Electricity Regulatory Commission (Grant of Connectivity, Long-term Access and Medium-term Open Access in inter-State Transmission and related matters) Regulations, 2009 ("CERC Connectivity Regulations, 2009"). Therefore, CTU was entitled to charge transmission charges only to the extent of flow of power i.e. 95% to HPPC, instead of the entire capacity.
9.9 Furthermore, CTU in the proceedings before the CERC had clearly taken a stand that the Petition filed by KPL was not maintainable on the ground of jurisdiction alone. Whereas, in its reply in the instant Appeal, CTU has taken a stand that the present Appeal is liable to _______________________________________________________________________________ Appeal No.242 of 2019 Page 15 of 64 be dismissed and justified the impugned order. CTU is legally not entitled to take a contradictory stand before the Appellate forum. Further, the contention of CTU before this Tribunal that contradictory stand can be taken on questions of law is also not tenable as the stand of CTU before CERC was on facts and not law. CTU has taken the stand that the Petition before CERC was not maintainable as Hon'ble Supreme Court is seized of the matter and the arrangement is in furtherance of orders of Hon'ble Supreme Court is a matter of fact and not law. Similarly, in the Petition before CERC, all of KPL's pleadings and prayers are against CTU, whereas in the present Appeal it is totally contradictory to the stand taken before CERC. It is a settled legal principle that a party cannot change its stand and/or improve its case before an Appellate Authority and the principles of acquiescence, approbate and reprobate and estoppel will apply. PTC has relied upon the following judgments in support of its contentions viz. (i) Union of India & Ors. Vs. N. Murugesan & Ors. (2022) 2 SCC 25; (ii) Premlata Alias Sunita Vs. Naseeb Bee & Ors. (2022) 6 SCC 585; (iii) B. L. Sreedhar & Ors. Vs. K.M. Munireddy (Dead) & Ors. (2003) 2 SCC
355. _______________________________________________________________________________ Appeal No.242 of 2019 Page 16 of 64 9.10 Moreover, the fact that KPL was utilizing the LTA and paying transmission charges and also opened the LC is recorded by the CERC in the order dated 11.04.2017 in Petition No.166/MP/2017 as follows:
"3. Learned counsel for LANCO submitted during the hearing that LANCO has opened the LC for the entire capacity of 300 MW and has been paying transmission charges in order to avail the LTA for evacuation of power from its generating station. We are of the view that PTC had obtained the LTA for transmission of power from the generating station of LANCO for supply to HPGCL. LANCO is presently utilizing the LTA for supply of power to HPGCL under the interim direction of the Hon'ble Supreme Court. In so far as the LTA has been utilized and the Petitioner is getting the transmission charges; its concern has been addressed. Only in the event of LANCO not paying the transmission charges or not availing the LTA, it will be responsibility of PTC to pay the transmission charges. If PTC fails to honor its obligations under the LTA Agreement/ TSA, the Petitioner will be at liberty to take any actions as may be available to it under the law or the agreement."
9.11 The contention of KPL that CERC had passed the impugned order by exercising the Regulatory Power is totally misconceived as KPL had filed the Petition No. 227/MP/2017 under section 79(1)(C) _______________________________________________________________________________ Appeal No.242 of 2019 Page 17 of 64 which is adjudicatory in nature. For exercise of any regulatory powers, the CERC has to expressly mention that the order being passed is in exercise of its regulatory power, which is absent in the present case. In absence of any express order to that effect, it cannot be presumed that the CERC has exercised Regulatory powers in the impugned order. The case of Cellular Operators Association relied upon by KPL is not relevant in the present case and explains as to the powers of a regulatory body and in no way deals with the issues in the present Appeal.
9.12 KPL is supplying 95% power to HPPC and balance 5% to CSPDCL in terms of the orders of this Tribunal and Hon'ble Supreme Court for which CTU is entitled to charge 95% for transmission of power to HPPC and balance 5% for CSPDCL. However, CTU has charged 100% in respect of power supplied to HPPC and another 5% for supply to CSPDCL thereby charging a total of 105% of transmission charges.
Submissions of behalf of KPL:-
10. On behalf of KPL, it's ld. Counsel vehemently refuted the submissions made by Appellant's counsel. He argued that :
_______________________________________________________________________________ Appeal No.242 of 2019 Page 18 of 64 10.1 PTC has averred that the Petition No. 227/MP/2017 filed by KPL before CERC concerning transmission charges with respect to the power being supplied by KPL was not maintainable. In this respect, it has been averred by PTC that the arrangement of supply of power by KPL to HPPC and CSPDCL was under the interim orders passed by the Hon'ble Supreme Court, and as such, any modification, amendment in the said arrangement was within the sole jurisdiction of the Hon'ble Supreme Court only. As per PTC, the interim order dated 18.09.2015 passed by the Hon'ble Supreme Court records the assumption of responsibilities under the TSA by KPL with respect to payment of transmission charges and security thereof for the utilization of ISTS. On such basis PTC has averred that KPL could not seek modification of the said order of the Hon'ble Supreme Court by way of a Petition before CERC, and that such modification could only have been done by the Hon'ble Supreme Court.
10.2 Pertinently, objection to the maintainability of the aforesaid petition was also raised by PTC before CERC also which rejected the same and held in favour of KPL observing that the issue regarding payment of transmission charges for availing ISTS infrastructure _______________________________________________________________________________ Appeal No.242 of 2019 Page 19 of 64 was never the subject matter of dispute before the Hon'ble Supreme Court.
10.3 CERC noted that before the Hon'ble Supreme Court, PGCIL had contended that PTC was required to open an LC for an amount of Rs. 13.82 crores and pay the transmission charges from time to time for availing the benefit of the infrastructure owned by PGCIL.
CERC further observed the submission of KPL before the Hon'ble Supreme Court that the legal obligation to open the LC was that of PTC; however, only in view of the peculiar circumstances of the case, without prejudice to its rights, KPL had agreed to open the LC on behalf of PTC so that the power transfer could take place and directions of this Tribunal dated 23.03.2011 and of the Hon'ble Supreme Court dated 16.12.2011 could be complied with. 10.4 CERC held that the Petition filed by KPL had a fresh cause of action and was required to be considered in accordance with the provisions of the BPTA and its own regulations. CERC took note of the fact that the Hon'ble Supreme Court had not made any observations as regards the jurisdiction of the Commission nor was the jurisdiction as regards payment of transmission charges in challenge before the Hon'ble Supreme Court. Further, CERC noted that the Hon'ble Supreme Court in its Order dated 18.09.2015 had _______________________________________________________________________________ Appeal No.242 of 2019 Page 20 of 64 only put an interim arrangement for supply of power from KPL's generating station, without giving any observations on the transmission charges. Therefore, the proceedings before CERC and the proceedings before the Hon'ble Supreme Court were entirely different and accordingly, CERC held that it had the jurisdiction to adjudicate disputes pertaining to KPL (generating company) connected with clause (a) to (d) of Sub-Section (1) of Section 79 of the Electricity Act, 2003 and particularly in terms of Section 79(1)(c) of the Act which empowers it to regulate Interstate transmission of Electricity, since the dispute involved related to transmission charges payable with respect to the actual usage of LTA granted to PTC, which was well within the Jurisdiction of the Commission. PTC has failed to bring into question the aforementioned reasoning and observations of the CERC regarding maintainability of the Petition filed KPL in the present appeal and hence, it is not tenable for PTC to question the maintainability of the petition and the proceedings leading to passing of the Impugned Order dated 30.05.2019. 10.5 HPGCL (predecessor of HPPC) had filed a Petition before the HERC seeking a direction to KPL and PTC to honour the terms of the PSA and not to sell power to third parties which was objected to by KPL on the grounds of lack of jurisdiction of HERC however, on _______________________________________________________________________________ Appeal No.242 of 2019 Page 21 of 64 02.02.2011, HERC passed an order holding that it had jurisdiction in the matter and directed KPL to supply 300 MW Power from its Unit 2 and restrained KPL from selling power to third parties. 10.6 Being aggrieved with the decision regarding jurisdiction, KPL filed Appeal No. 15 of 2011 before this Tribunal and vide its order dated 23.03.2011 this Tribunal granted interim stay of the said order and permitted KPL to supply 35% Power to CSPTCL and balance power to PTC for onwards supply to HPGCL. Thereafter, this Tribunal vide its judgment dated 04.11.2011 dismissed the said Appeal and upheld the jurisdiction of the HERC to adjudicate the dispute between KPL and PGCIL.
10.7 KPL filed a Civil Appeal No. 10329 of 201l against the aforesaid orders dated 23.03.2011 and 04.11.2011 before the Hon'ble Supreme Court and vide its order dated 16.12.2011, the Supreme Court directed that pending hearing and final disposal of the case, KPL shall continue to supply power in terms of the directions passed by this Tribunal in its order dated 23.03.2011. 10.8 Pursuant to the said order, KPL moved I.A No. 9 of 2015 in the said appeal before the Hon'ble Supreme Court seeking a direction to _______________________________________________________________________________ Appeal No.242 of 2019 Page 22 of 64 SECL to commence supply of Linkage Coal to KPL's power plant so that it could supply power as per the interim order dated 16.10.2011 passed by the Hon'ble Supreme Court.
10.9 It was during the consideration of the said I.A., that the Hon'ble Supreme Court in its order dated 18.09.2015 also noted the PGCIL's submissions requiring PTC to open an LC for an amount of Rs. 13.82 crores and to pay the actual transmission charges from time to time. Faced with a situation where KPL was not in a position to fulfil the obligations under the interim order dated 16.12.2011 because of absence of supply of coal (making it impossible for it to generate power), KPL without prejudice to its legal rights, stated that it would open an LC of the required amount as stated by PGCIL on behalf of PTC.
10.10 Thus, the principal issue in challenge before the Hon'ble Supreme Court was the issue of jurisdiction which had been assumed by HERC concerning the dispute between KPL (Generator) and PTC (Trading Licensee). In the said proceedings before the Hon'ble Supreme Court, the aspect of the Liability of payment of transmission charges was never an issue or under challenge. _______________________________________________________________________________ Appeal No.242 of 2019 Page 23 of 64 10.11 The interim order dated 18.09.2015 merely concerned the arrangement of supply of power from KPL's power plant and availability of coal for such purpose. In fact, the Hon'ble Supreme Court did not pass any observation, much less finding on the aspect of liability concerning transmission charges. The said aspect was never in lis between the parties before the Hon'ble Supreme Court. 10.12 In view of all the above, there is no merit in the objection raised by PTC concerning maintainability of the Petition before CERC and the CERC has the requisite jurisdiction to regulate Interstate transmission of Electricity, including payment of transmission charges thereof.
10.13 The stance of PTC during the course of hearing of the present Appeal, that in view of the undertaking given by KPL before the Hon'ble Supreme Court, as recorded in Order dated 18.09.2015, the liability to bear Transmission Charges, is that of KPL and not PTC is wholly erroneous & misleading for the following reasons:
• The Hon'ble Supreme Court as well as this Hon'ble Tribunal had not made any observations as regards the liability towards payments of transmission charges and the quantum for which the transmission charges were to be levied by PGCIL.
_______________________________________________________________________________ Appeal No.242 of 2019 Page 24 of 64 • KPL had agreed to open the LC for an amount of Rs. 13.82 crores as stated during the hearing before the Hon'ble Supreme Court, in favour of PGCIL on behalf of PTC without prejudice to its legal rights. Moreover, the statement which was made before the Hon'ble Supreme Court was without prejudice and made in view of the predicament faced by KPL, as so duly recorded in the Hon'ble Supreme Court's Order dated 18.09.2015 and cannot be taken as KPL having taken over the liability to pay Transmission Charges on behalf of PTC.
• Liability to pay Transmission Charges is rooted in the BPTA and the TSA executed between PTC and CTU (erstwhile PGCIL) as well as under the Sharing of Transmission Charges Regulations issued by CERC. In terms of the BPTA, PTC is required to bear the applicable regional Transmission Charges. Further, as per the LTA agreement entered into between PTC and CTU (earlier PGCIL), the 'Long Terms Transmission Customer', which is PTC, is required to pay the Transmission Charges in accordance with the regulations / tariff orders issued by the CERC from time to time. The liability for paying transmission charges is regulatory and contractual and it arises from this regulatory framework and from the agreement between PTC and CTU(PGCIL). There is no agreement which obligates KPL _______________________________________________________________________________ Appeal No.242 of 2019 Page 25 of 64 to pay any transmission charges. Even as per CERC's Regulations, the generating companies selling power under long term PPAs are not at all required to pay any transmission charges.
• CERC also in its order dated 11.04.2017 passed in Petition No. 166/MP/2015 noted that the said Petition came to be preferred by PGCIL against PTC on account of PTC's default in establishing the payment security for availing access to the ISTS network. In the said proceedings, CERC took note of the provisions of the BPTA as also the LTA including the Sharing Regulations, in terms of all of which the liability to bear the transmission charges was of the PTC as also it being liable to open the LC. Pertinently, in its said order dated 11.04.2017, CERC held that the dispute involving the PPA between KPL and PTC, pending before the Hon'ble Supreme Court, had no bearing on the operationalization of the LTA in terms of the LTA agreement and TSA.
• In view of the above, and also further taking note of the Order dated 18.09.2015 passed by the Hon'ble Supreme Court (wherein KPL had without prejudice to its rights agreed to open the LC on behalf of PTC), CERC observed that if KPL failed to open the LC, then PTC would have to pay the transmission _______________________________________________________________________________ Appeal No.242 of 2019 Page 26 of 64 charges. The said observations were made in view of the categorical finding in the CERC order dated 11.04.2017 that the liability to pay transmission charges and opening of LC (in terms of the BPTA, the LTA as also be Sharing Regulations) was that of the PTC. Further, this was reaffirmed in the Impugned Order dated 30.05.2019.
• It is therefore evident that during the period of power supply by KPL to HPPC through PTC in terms of the Hon'ble Supreme Court order dated 18.09.2015, the operation of LTA continued and the CERC Sharing Regulations were also applicable and therefore, PTC was itself liable to bear the entire transmission charges for the operationalized LTA.
• In this regard, PTC received a letter dated 30.11.2015 from Haryana confirming that HPPC shall be availing only 95% power from KPL's Unit 2 on long term basis. Had PTC, after receiving the above confirmation from Haryana relinquished the 5% LTA capacity before the operationalization of LTA, the issue of payment of 5% transmission charges and thereby deduction of 5% transmission charges from the energy bills of KPL would not have arisen. Since PTC was illegally recovering transmission charges by way of deduction from the monthly energy bills of _______________________________________________________________________________ Appeal No.242 of 2019 Page 27 of 64 KPL, it did not bother to surrender/relinquish the 5% LTA capacity.
• Further PTC itself volunteered to surrender/ relinquish the said 5% LTA capacity, for the first time only in the proceedings dated 27.08.2019 of the present Appeal before this Tribunal. The said relinquishment came into effect from 03.09.2019, when PTC filed an affidavit to the said effect as recorded in the proceedings of the said date before this Tribunal. • Moreover, the invoices towards transmission charges were always and throughout raised by CTU (PGCIL) in the name of PTC, being a long term transmission customer. Therefore, nothing prevented PTC to surrender/relinquish the said LTA much prior in time, so that it would not have required to make illegitimate deduction/ withholding of KPL's due monthly payments for supply of power (corresponding to such 5% of transmission charges).
10.14 PTC further sought to contend that subsequent to the Order dated 18.09.2015 passed by the Hon'ble Supreme Court, KPL had also submitted the consent letters for deduction of 5% transmission charges from the payments due to it by / PTC and hence, liability of payment of transmission charges lies with KPL and with PTC. _______________________________________________________________________________ Appeal No.242 of 2019 Page 28 of 64 However, a perusal of the consent letters as referred to by PTC, would show that KPL had not taken upon itself the liability to bear Transmission Charges. In fact, by way of its letter dated 30.11.2015 KPL had clearly stated that all Transmission Charges related to the supply of power to PTC and CSPTCL, were to be borne by the said parties themselves.
10.15 Further, vide letter dated 13.01.2016, KPL was constrained to agree to a deduction of 5% transmission charges from its power supply bills, under protest, for release of payment towards such bills in view of the PTC's coercive measures of not making any payment for the said monthly bills raised by KPL for the power supplied by it. However, KPL never relinquished its rights or contentions even while agreeing to such deduction. Therefore, the aforesaid consent letters, cannot be taken to mean that KPL had assumed and taken over PTC's liability to bear transmission charges. By contending otherwise, PTC is seeking to take advantage of its own wrong to in order to avoid paying the monthly power supply bills of KPL. 10.16 PTC has averred that since KPL had not sought any relief against PTC, CERC could not have granted a relief which is not prayed for. Such contention of PTC is untenable on account of the following:
_______________________________________________________________________________ Appeal No.242 of 2019 Page 29 of 64 • The fact that PTC was paying 5% Transmission Charges by withholding such corresponding amount from the bills of KPL has been admitted by PTC in its Reply filed before CERC. In light of such pleading and CERC having already held in its previous Order dated 11.04.2017 (in Petition No. 166/MP/2015), that the liability to bear Transmission Charges was of that of PTC, the CERC was not incorrect in holding in the Impugned Order that PTC was liable to reimburse the said 5% amount as had been withheld by it from the bills of KPL. Reliance is placed upon the judgement of the Hon'ble Supreme Court in the case of Srinivas Ram Kumar Firm v. Mahabir Prasad & Anr (1951) SCC 136 which is reproduced below:
"12. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in tile plaint it is open to tile court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, _______________________________________________________________________________ Appeal No.242 of 2019 Page 30 of 64 was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be not/ting improper in giving tile plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by tile latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in /tis pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit."
• Further, the plea that KPL is not being liable towards the Transmission Charges, which were being withheld by PTC, arose by way of implication, which the parties knew was a substance of consideration, and would be considered in the proceedings even if done indirectly or obscurely. In such circumstances, there is no perversity or illegality in the Order passed by CERC in holding that PTC was liable to refund the amount of Transmission Charges, which were being withheld by it from the bills payable to KPL. In this regard, reliance is placed upon the judgment in the case of Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 which is reproduced below:
_______________________________________________________________________________ Appeal No.242 of 2019 Page 31 of 64 "10. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.
The general rule no doubt is that the relief should be founded on pleadings made by tile parties. But where tile substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce _______________________________________________________________________________ Appeal No.242 of 2019 Page 32 of 64 considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
11. It also relies upon the judgment in the case of Ram Sarup Gupta (Dead) by LRS. v. Bishun Narayan Inter College & Ors., (1987) 2 SCC 555 which is reproduced below:
"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the _______________________________________________________________________________ Appeal No.242 of 2019 Page 33 of 64 court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735 : (1966) 2 SCR 286, 291} a Constitution Bench of this Court considering this question observed: ..."
• The aforementioned finds further force from the judgment of the Hon'ble Supreme Court in the case of Hindalco Industries Ltd. v. Union of India & Ors, (1994) 2 SCC 594, wherein it has been held that a relief which is not inconsistent with the case raised in the pleadings, can be granted. It has been held that a tribunal, while keeping justice, equity, good conscience at the back of its mind, may, when compelling equities of the case oblige them, shape the relief consistent with the facts and circumstances established in the given cause of action. The Hon'ble Supreme _______________________________________________________________________________ Appeal No.242 of 2019 Page 34 of 64 Court further held that if the tribunal thinks just, relevant and germane after taking all the facts and circumstances into consideration, it could mould the relief in exercising its discretionary power and equally would avoid injustice. Relevant portion of the said judgment reads as under:
"7. It is settled law that it is no longer necessary to specifically ask for general or other relief apart from the specific relief asked for. Such a relief may always be given to the same extent as if it has been asked for provided that it is not inconsistent with that specific claim which the case raised by the pleadings. The court must have regard for all the relief and look at the substance of the matter and not its forms. It is equally settled law that grant of declaring relief is always one of discretion and the court is not bound to grant the relief merely because it is lawful to do so. Based on the facts and circumstances the court may on sound and reasonable judicial principles grant such declaration as the facts and circumstances may so warrant. Exercise of discretion is not arbitrary. If the relief asked for is as of right something is included in his cause of action and if he establishes his cause of action, the court perhaps has been left with no discretion to refuse the same. But when it is not as of right, then it is one of the exercise of discretion by the court. In that event the court may in given circumstances grant which includes 'may refuse' the relief. It is one of exercising judicious discretion by _______________________________________________________________________________ Appeal No.242 of 2019 Page 35 of 64 the court. Same consideration would apply to the causes under the Act and the Tribunal has such discretion. The Tribunal while keeping justice, equity and good conscience at the back of its mind, may when compelling equities of the case oblige them, shape the relief consistent with the facts and circumstances established in the given cause of action. Any uniform rigid rule, if be laid, it itself turns out to be arbitrary. If the Tribunal thinks just, relevant and germane, after taking all the facts and circumstances into consideration, would mould the relief, in exercising its discretionary power and equally would avoid injustice. Likewise, when the right to remedy under the Act itself arises on the presence or absence of certain basic facts, at the time of granting relief, may either grant the relief or refuse to grant the same. It would be one of just and equitable exercise of the discretion in moulding the ancillary relief it is not as of right. In Associated Provincial Picture Houses Ltd. case [ From the Judgment and Order dated March 3, 1992 of the Railway Rates Tribunal in Complaint No. 1 of 1987} Under Sunday Entertainments Act, 1932, the licensing authority while granting permission to exhibit cinematographs, imposed certain conditions, prohibiting the children under age of 15 years to be admitted in the theatre. It was challenged as being arbitrary. Dealing with the discretionary power of the licensing authority, the Court of Appeal held that the law recognised certain principles on which discretion must be exercised but within the four comers of those principles. The discretion _______________________________________________________________________________ Appeal No.242 of 2019 Page 36 of 64 is not absolute one. The exercise of such a discretion must be a real exercise of the discretion. If in any statute conferring the jurisdiction, there are to be found, expressly or by implication, matters to which the authorities exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered relating to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty - those, of course, stand by themselves, unreasonableness, attention given to extraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration. The discretion must be exercised reasonably. A person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said to be acting unreasonably.
8. There lies a distinction between the administrative authorities exercising discretionary jurisdiction and the _______________________________________________________________________________ Appeal No.242 of 2019 Page 37 of 64 court or the quasi-judicial Tribunal deciding the lis. In the latter case discretion has been given to the court or the Tribunal to mould the ancillary relief The discretion is to be exercised with circumspection consistent with justice, equity and good conscience, keeping always the given facts and circumstances of the case."
• Moreover, the Hon'ble Supreme Court in the case of Cellular Operators Association of India & Ors. v. Union of India & Ors., (2003) 3 SCC 186 has held that Regulatory bodies exercise wider jurisdiction. Relevant portion of the said judgment reads as under:
"33. The regulatory bodies exercise wide jurisdiction. They lay down the law. They may prosecute. They may punish. Intrinsically, they act like an internal audit. They may fix the price, they may fix the area of operation and so on and so forth. While doing so, they may, as in the present case, interfere with the existing rights of the licensees.
34. Statutory recommendations made by it are normally accepted by the Central Government, as a result of which the rights and obligations of the parties may seriously be affected. It was in the aforementioned premise Parliament thought of creating an independent expert tribunal which, if an occasion arises therefor, may interfere with the finding of fact, finding of law or a mixed question of law and fact of the authority. Succinctly _______________________________________________________________________________ Appeal No.242 of 2019 Page 38 of 64 stated, the jurisdiction of the Tribunal is not circumscribed in any manner whatsoever.
40. Even in WB. Electricity Regulatory Commission v. CESC Ltd. [(2002) 8 SCC 715: JT (2002) 7 SC 578:
(2002) 7 Scale 217} whereupon the learned Attorney-
General has placed reliance, this Court specifically stated: (SCC pp. 763-64, para 102) '102. We notice that the Commission constituted under Section 17 of the 1998 Act is an expert body and the determination of tariff which has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. A perusal of the report of the ASCJ as well as that of the Commission abundantly proves this fact. Therefore, we think it would be more appropriate and effective if a statutory appeal is provided to a similar expert body, so that the various questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first appellate stage also. From Section 4 of the 1998 Act, we notice that the Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications, is better equipped to appreciate the technical and factual questions involved in the appeals arising from the orders of the Commission. Without meaning any disrespect to the Judges of the High Court, we think neither the High Court nor the Supreme Court _______________________________________________________________________________ Appeal No.242 of 2019 Page 39 of 64 would in reality be appropriate appellate forums in dealing with this type of factual and technical matters. Therefore, we recommend that the appellate power against an order of the State Commission under the 1998 Act should be conferred either on the Central Electricity Regulatory Commission or on a similar body We notice that under the Telecom Regulatory Authority of India Act, 1997 in Chapter IV, a similar provision is made for an appeal to a Special Appellate Tribunal and thereafter a further appeal to the Supreme Court on questions of law only. We think a similar appellate provision may be considered to make the relief of appeal more effective."
Submissions on behalf of CTU:-
12. CTU also supports the impugned order of the Commission. Ld. Counsel appearing on its behalf submitted:
12.1 The primary contentions of PTC are the following: (i) that the transmission charges ought to be levied only on the quantum of power i.e., 95% of 300 MW and not upon the entire 300 MW; and (ii) that the LC was opened for the entire capacity in view of the fact that the generating station had remained stranded and has been _______________________________________________________________________________ Appeal No.242 of 2019 Page 40 of 64 paying 5% transmission charges under protest in order to avail the LTA for evacuation of power from its generating station.
12.2 PTC has sought to contend that it is liable to pay transmission charges only for 95% of its 300 MW LTA capacity. The above contention is baseless and contrary to the statutory regulations and the Bulk Power Transfer Agreement ('BPTA') dated 27.07.2009 entered into between PTC and CTUIL (earlier PGCIL). The methodology for sharing the transmission charges for the use of ISTS, in terms of Regulation 8 of the Central Electricity Regulatory Commission (Sharing of Inter-State Transmission Charges and Losses) Regulations, 2010 reads as follows:
"(c) Approved Injection' means the injection in MW computed by the Implementing Agency for each Application Period on the basis of maximum injection made during the corresponding Application Periods of last three (3) years and validated by the Validation Committee for the DICs at the ex-bus of the generators or any other injection point of the DICs into the ISTS, and taking into account the generation data submitted by the DICs incorporating total injection into the grid.
Provided that the overload capability of a generating unit shall not be used for calculating the approved injection:
_______________________________________________________________________________ Appeal No.242 of 2019 Page 41 of 64 Provided further that where long term access (LTA) has been granted by the CTU, the LTA quantum, and where long term access has not been granted by the CTU, the installed capacity of the generating unit excluding the auxiliary power consumption, shall be considered for the purpose of computation of approved injection."
8. Determination of specific transmission charges applicable for a Dedicated ISTS Customer.
(1) Based on the Yearly Transmission Charges determined by the Commission, the Implementing Agency shall determine the charges applicable to each Designated ISTS Customer for use of the ISTS to the extent of the Approved Withdrawal or Approved Injection in the ISTS. Each Designated ISTS Customer shall ensure that the forecast data of demand and injection for each season is furnished to the Implementing Agency as per the timelines described in these regulations [ ]** as specified in Chapter 7 of these regulations.
(2) In the event of a Designated ISTS Customer failing to provide its requisition for demand or injection for an Application Period, the last demand or injection forecast supplied by the Designated ISTS Customer and as adjusted by the Implementing Agency for Load Flow Analysis shall be deemed to be Approved Withdrawal or Approved Injection, as the case may be, for the Application Period.......
(5) Where the Approved Withdrawal or Approved Injection in case of a DIC is not materializing either partly _______________________________________________________________________________ Appeal No.242 of 2019 Page 42 of 64 or fully for any reason whatsoever, the concerned DIC shall be obliged to pay the transmission charges allocated under these regulations:
Provided that in case the commissioning of a generating station or unit thereof is delayed, the generator shall be liable to pay Withdrawal Charges corresponding to its Long term Access from the date the Long Tenn Access granted by CTU becomes effective. The Withdrawal Charges shall be at the average withdrawal rate of the target region:
Provided further that where the operationalization of LTA is contingent upon commissioning of several transmission lines or elements and only some of the transmission lines or elements have been declared commercial, the generator shall pay the transmission charges for LTA operationalised corresponding to the transmission system commissioned:
Provided also that where the construction of dedicated transmission line has been taken up by the CTU or the transmission licensee, the transmission charges for such dedicated transmission line shall be payable by the generator as provided in the Regulation 8(8) of the Connectivity Regulations:
Provided also that during the period when a generating station draws startup power or injects infirm power before commencement of LTA, withdrawal or injection charges corresponding to the actual injection or withdrawal shall be payable by the generating station _______________________________________________________________________________ Appeal No.242 of 2019 Page 43 of 64 and such amount shall be adjusted in the next quarter, from the ISTS transmission charges to be recovered through PoC mechanism from all DICs.
Provided that CTU shall maintain a separate account for the above amount received in a quarter and deduct the same from the transmission charges of ISTS considered in PoC calculation for the next application period.
(6) For Long Term Transmission Customers availing power supply from inter-State generating stations, the charges attributable to such generation for long term supply shall be calculated directly at drawal nodes as per methodology given in the Annexure-1. Such mechanism shall be effective only after commercial operation of the generator. THI then it shall be the responsibility of the generator to pay transmission charges."
12.3 In terms of the above, the framework for sharing transmission charges under the ISTS is not a matter of discretion but is strictly governed by the Sharing Regulations, 2010. Regulation 8 mandates that every entity physically connected to the ISTS must contribute towards the Yearly Transmission Charges ('YTC'), which represent the annual transmission costs for existing transmission lines as determined by the CERC. Further, the computation of PoC charges is undertaken on the basis of the Approved Injection and Approved Withdrawal figures, which are validated by the duly constituted _______________________________________________________________________________ Appeal No.242 of 2019 Page 44 of 64 Validation Committee. Accordingly, the liability to share YTC and the manner of computing PoC charges based on approved injection flows directly from the statutory scheme.
12.4 In the present case, PTC was granted a Long-Term Access (LTA) of 300 MW by CTUIL. In terms of Regulation 8, once such LTA is granted, PTC is unconditionally liable to pay the transmission charges corresponding to the entire LTA capacity. This obligation arises solely from the quantum of LTA granted and operates irrespective of the extent to which PTC actually schedules or transmits power through the ISTS. Thus, the requirement to bear transmission charges is linked to the sanctioned LTA capacity and not to the actual utilisation of the system, and therefore, has no nexus whatsoever with the quantum of power physically transmitted. 12.5 In light of the above, it is therefore submitted that the liability to pay transmission charges exists on the entire quantum of LTA which has been operationalised by CTUIL to PTC for the supply of power under long-term open access. Hence, the DIC is required to pay the transmission charges irrespective of whether the LTA is used entirely, partially or not used at all.
_______________________________________________________________________________ Appeal No.242 of 2019 Page 45 of 64 12.6 It is further submitted that, in addition to the transmission charges corresponding to 300 MW LTA quantum, PTC has also surrendered the remaining 5% of its LTA capacity with effect from 03.09.2019. Consequently, PTC is liable to pay the applicable relinquishment charges for this 5% capacity as mandated under Regulation 18 of the Connectivity Regulations, 2009. Therefore, once PTC voluntarily relinquished this portion of its LTA, the liability for corresponding relinquishment charges automatically arose and must now be discharged in accordance with the Connectivity Regulations, 2009. 12.7 Reliance in regard to the levy of transmission charges may be placed on the relevant parts of the BPTA/ LTA which read as under:
"And Whereas Long term transmission customer has agreed to share and pay all the transmission charges of POWERGRID including FERV, incentive, income tax and any other charges and taxes etc. for the use of its Transmission System of Western and Northern Region including inter regional links and including ULDC /NLDC charges and any additions there of PTC shall bear the applicable regional transmission charges of WR and corresponding to 300 MW power from Pathadi stage-II power project _______________________________________________________________________________ Appeal No.242 of 2019 Page 46 of 64 NR And Whereas it has become incumbent upon both the parties to enter in to Bulk Power Transmission Agreement as envisaged under the Central Electricity Regulatory Commission (Open Access in inter-state transmission) Regulations, 2004.
1. Long term transmission customer shall share and pay the transmission charges including FERV, incentive, income tax, any other charges and taxes etc of POWERGRID transmission system of Western, Northern Region and WR-NR inter-regional charges including ULDC/NLDC charges etc."
12.8 A plain reading of the above provisions makes it abundantly clear that PTC is liable to pay transmission charges for the entire LTA quantum of 300 MW. The statutory framework leaves no discretion in this regard and mandates payment of transmission charges corresponding to the quantum of long-term access granted and operationalised. Further, the above issue of payment of transmission charges, had already been adjudicated by CERC in Order dated 11.04.2017 passed in Petition No. 166/MP/2015 whereby it had held that since PTC has signed the LTA Agreement, it is liable to open the LC and bear the transmission charges. _______________________________________________________________________________ Appeal No.242 of 2019 Page 47 of 64 12.9 PTC has sought to contend that CTUIL has taken contrary stand in the proceedings which is wrong and denied. CTUIL has, at all stages, maintained a consistent stance that the liability for the 300MW LTA is of PTC. CTUIL had submitted before the CERC as well as before this Tribunal that the BPTA/TSA of 300MW was being operationalised for PTC.
12.10 In any event, it is settled principle of law that the construction of statutory provision cannot reset entirely on the stand adopted by the party in the lis. In light of the above, reliance may be placed on the judgement in the matter of P. Nallammal and Anr. v. State represented by inspector of police - (1999) 6 SCC 559 which reads as under:
"7. The Union of India was made a respondent before the Madras High Court and one Under-Secretary to the Government of India had filed a counter-affidavit therein on 1-12-1998 conceding to the legal position espoused by the appellants. But Shri 11.R. Reddy, learned Senior Counsel now appearing for the Union of India strongly supported the stand adopted by the State of Tamil Nadu. The volte-face of the Union of India cannot be frowned at, for, it is open to the State or Union of India or even a private party to retrace or even resile from a concession once made in the court on a legal proposition. Firstly, _______________________________________________________________________________ Appeal No.242 of 2019 Page 48 of 64 because the party concerned, on a reconsideration of the proposition could comprehend a different construction as more appropriate. Secondly, the construction of statutory provision cannot rest entirely on the stand adopted by any party in the /is. Thirdly, the parties must be left free to aid the court in reaching the correct construction to be placed on a statutory provision. They cannot be nailed to a position on the legal interpretation which they adopted at a particular point of time because saner thoughts can throw more light on the same subject at a later stage."
12.11 The reliance placed by PTC on the letter dated 30.11.2015 to state that CTUIL had sought consent of erstwhile Lanco (now KPL) to pay the charges of 5% is incorrect. From the letter dated 30.11.2015, it is borne out that since the off-take quantum of HPPC was being modified from 65% to 95%, PTC had obtained consent from the relevant parties.
Analysis and Conclusion:-
13. We heard the Ld. Counsel for the parties and have perused the impugned order of the Commission as well as the written submissions filed by the Ld. Counsels. Upon consideration of the arguments advanced and the documents placed before us, the following issues arises for determination in this Appeal:
_______________________________________________________________________________ Appeal No.242 of 2019 Page 49 of 64 Issue No. (I) Whether the Petition No. 227/MP/2017 before CERC was maintainable and whether CERC had jurisdiction to pass the impugned order?
Issue No. (II) If so, whether the CERC correctly determined the liability for payment of transmission charges towards LTA and whether it was right in directing PTC to refund the amount collected towards 5% LTA charges to KPL?
Issue No. (I): -
14. The Appellant PTC had entered into a PPA on 19.10.2005 with Respondent No. 2 KPL for sale of entire power from its 300 MW Unit 2 for a period of 25 years i.e. a long term PPA. Consequent to the signing of the PPA, on 21.09.2006 PTC entered into a back-to-back PSA with Respondent No. 4 HPPC. Subsequently, PTC entered into a BPTA with the CTU on 27.07.2009 for evacuation of power from Unit 2 of the KPL to HPPC. The LTA was to be operationalized upon completion of certain transmission elements and till then transfer of power was to take place under Short Term Open Access. Meanwhile, on 06.09.2014 the dedicated line from KPL's generating station was ready and connected to PGCIL, Bilaspur Sub-station. _______________________________________________________________________________ Appeal No.242 of 2019 Page 50 of 64
15. Thereafter, KPL sought revision to the PPA tariff citing infeasibility of power supply at the existing tariff of Rs. 2.32/unit which culminated into cross litigation between the parties to the PPA & PSA before HERC. During pendency of the said petitions before HERC, KPL terminated the PPA with PTC on 11.01.2011. Pertinently, on 12.01.2011, KPL entered into a PPA with Respondent No. 5 CSPDCL for supply of 35% power to Govt. of Chattisgarh under the Implementation Agreement. Subsequently, on 02.02.2011 HERC while allowing HPPC's petition rejected PTC's petition to remove the tariff cap and restrained PTC and KPL from selling power under HPPC's PPA capacity to third parties. The said dispute travelled to this Tribunal at the behest of both KPL (Appeal No. 15 of 2011) and CSPDCL (Appeal No. 52 of 2011), wherein as an interim measure KPL was permitted to supply 35% power to CSPDCL. Finally on 04.11.2011, this Tribunal rejected KPL's appeal upholding HERC's jurisdiction and remanded the case to HERC for fresh consideration granting due opportunity to CSPDCL of being heard.
16. Finally, this matter reached the Supreme Court vide Appeal No.10329 of 2011 where it is since pending adjudication. However, vide an interim order dated 16.12.2011, KPL was directed to continue power supply in terms of this Tribunal's directions of 23.03.2011. Thereafter, in April 2013, KPL discontinued power supply to HPPC due to unavailability of coal supply from _______________________________________________________________________________ Appeal No.242 of 2019 Page 51 of 64 SECL as SECL had in turn discontinued coal supply to KPL on the ground it no longer had a subsisting PPA (the PPA between PTC and KPL having been terminated by KPL) and therefore, was not entitled for supply of coal in terms of the FSA.
17. On 24.12.2014, PTC requested CTUIL to operationalize its LTA only after disposal of the pending Civil Appeal before the Supreme Court. On 18.09.2015, the Supreme Court vide an interim order in the pending civil appeal directed SECL to supply coal to KPL. It is evident from a perusal of the said order of the Supreme Court that KPL had consented to open LC on behalf of PTC in favour of CTUIL (earlier PGCIL) in order to restart the stranded Unit-II of its generating station, without prejudice to its legal rights.
18. Consequent to the aforesaid order the operation of Unit-II started from 05.12.2015 and the supply of power commenced to PTC/HPPC. However, later CSPDCL agreed to avail only 5% of power from the Unit-II of KPL's generating station as against the originally agreed 35%. Thereafter, PTC agreed to purchase the balance 95% of power from the Unit-II of the Petitioner's generating station since HPPC had in turn agreed to avail 95% power from Unit-II as against the original capacity of 65%. Such power supply commenced basis the acceptance conveyed by PTC to CTUIL for operationalization of the LTA to the extent of power flow i.e. 95% which was agreed upon by both KPL and HPPC. As per the letter dated 30.11.2015 _______________________________________________________________________________ Appeal No.242 of 2019 Page 52 of 64 PTC had intimated to CTUIL that transmission charges corresponding to the 5% share will be borne by CSPDCL.
19. It is PTC's contention that since 95% power flow occurred under the LTA for 300 MW to HPPC, CTUIL should have charged transmission charges corresponding to such power flow and not full 100% capacity. Both PTC as well as KPL have objected to 100% LTA charges. However, PTC further contends that KPL had agreed to pay such 5% transmission charges, which is evident from the letter dated 13.01.2016 vide which the consent for deduction of amount corresponding to 5% LTA charges was given by KPL under protest in the peculiar facts and circumstances of the case.
20. Further, as evident from the correspondence between PTC and KPL, CSPDCL commenced scheduling of 5% home state share from KPL from 17.04.2016 for which CPSDCL had availed STOA, the charges towards which were being directly paid by CSPDCL to CTU. In view of the above, it was KPL's contention that CTU was recovering 105% transmission charges towards the 300 MW LTA i.e. 100% from PTC and additional 5% from CSPDCL.
21. Since CTUIL did not agree to levy LTA charges only for 95% i.e. corresponding to power flow to HPPC, KPL approached CERC vide Petition No. 227/MP/2017. CERC on 30.05.2019 passed the impugned order which _______________________________________________________________________________ Appeal No.242 of 2019 Page 53 of 64 is stated by PTC to be in the teeth of the Supreme Court's interim order dated 18.09.2015. It is contended on behalf of PTC that CERC could not have passed the impugned order as the petition was not maintainable on the grounds of lack of jurisdiction in view of the Supreme Court already being seized of the matter and passing of the impugned order amounts to modifying the Supreme Court's order which would be impermissible.
22. Per contra, KPL contends that objection to maintainability was also raised by PTC before the CERC in the proceedings of the impugned order and such objection was rejected by CERC observing that payment of transmission charges for availing ISTS infrastructure was never in dispute before the Supreme Court. CERC held that the petition filed by KPL was a fresh cause of action in terms of the BPTA and the regulations. Further, the CERC also observed that the Supreme Court did not render any finding qua the jurisdiction of the Commission to decide on payment of transmission charges in respect of the said power supply. Therefore, the proceedings before the Supreme Court and the CERC were distinct and different and the petition before CERC was maintainable and that the CERC exercised its jurisdiction under section 79 of the Electricity Act, 2003 to regulate transmission of electricity and dispute resolution connected with this function, in the impugned order.
_______________________________________________________________________________ Appeal No.242 of 2019 Page 54 of 64
23. We note that CTUIL had taken a stand before CERC that the petition No. 227/MP/2017 filed by KPL was not maintainable. However, in the present proceedings CTUIL has prayed for the appeal to be dismissed. Such conduct is, however, sought to be assailed by PTC on the ground that CTUIL in approbating and reprobating by taking contradictory stands on maintainability of petition before the CERC.
24. We have given careful consideration to the above referred factual matrix, contractual framework, prevalent regulatory framework as well as the orders passed by the Hon'ble Supreme Court.
25. What PTC seeks to contend is that once the PPA stood terminated, any directions by the Supreme Court in respect of resumption of power supply as well as the corresponding fuel supply are not in terms of the said contractual agreements such as PPA / FSA but de hors these agreements. Therefore, in absence of the existence or continuance of these agreements as well as the fact that a superior court was seized of the matter, CERC could not have exercised its jurisdiction under section 79 of the Act to entertain the petition filed by KPL.
26. We have carefully perused the Supreme Court order dated 18.09.2015 wherein it has been recorded that KPL consented to open an LC on behalf of PTC in favour of CTUIL, albeit, without prejudice to its legal rights, so as to _______________________________________________________________________________ Appeal No.242 of 2019 Page 55 of 64 ensure in resumption of fuel supply by SECL and in turn resumption of power supply by KPL to HPPC through PTC. What is also borne out from the aforesaid order dated 18.09.2015 is that the direction by the Supreme Court to SECL to resume coal supply to KPL was under the category of generating plants having a subsisting long term PPA, during the pendency of the civil appeal. Such a direction was passed despite recording that the PPA has between PTC and KPL stands terminated. Moreover, the aforesaid order dated 18.09.2015 nowhere records that the generator KPL had also undertaken to pay transmission charges towards the LTA availed by PTC. What can be inferred from the same is that KPL agreed to create a payment security mechanism on behalf of the LTA holder - PTC which can be invoked in the event PTC defaulted in making payment towards LTA/transmission charges.
27. In our considered view, the effect of the order dated 18.09.2015 of the Supreme Court is not one of superseding the valid contracts viz. PPA, PSA, FSA or BPTA entered into between the respective parties but that of putting the termination of one of such contracts viz. the PPA between PTC and KPL in abeyance till it heard and finally decided, inter alia, the validity of the termination as raised in the pending Civil Appeal 10329 of 2011. This would mean that neither of the parties is disentitled to approach the governing regulatory body, i.e. CERC in this case, seeking resolution of dispute(s) that _______________________________________________________________________________ Appeal No.242 of 2019 Page 56 of 64 may arise inter se between them during the pendency of the civil appeal. Further, there is nothing in the Supreme Court's order to show that any fetters were placed on the exercise of the adjudicatory jurisdiction by CERC under the applicable law during the pendency of the civil appeal. In view of the foregoing, there is only one logical conclusion that CERC did possess the requisite jurisdiction to entertain Petition No. 227/MP/2017 filed by KPL and that the same was maintainable in terms of the applicable law. Therefore, CERC was correct in rejecting the Appellant PTC's contention that the aforementioned petition was not maintainable.
28. The first issue on maintainability is decided accordingly. Issue No. (II): -
29. Having held the proceedings of the impugned order being maintainable before CERC, now we turn to the second issue as to whether the CERC correctly determined the liability for payment of transmission charges towards LTA and whether it was right in directing PTC to refund the amount collected towards 5% LTA charges to KPL.
30. This second issue is twofold viz. firstly, whether LTA charges could have been recovered by CTUIL for only 95% capacity corresponding to the power flow or for the entire 100% capacity corresponding to the LTA _______________________________________________________________________________ Appeal No.242 of 2019 Page 57 of 64 quantum and secondly, whether PTC could have been directed to refund the balance 5% LTA charges to KPL from whose power supply bills PTC had been deducting such amount.
31. As evident from the impugned order, KPL has contented that since supply of power and operationalization of LTA from Unit-II of KPL is pursuant to Hon'ble Supreme Court Order dated 18.09.2015, the transmission charges ought to be levied on the quantum of power supplied i.e. 95% of 300 MW and not upon the entire 300 MW. KPL has further contended that since it is supplying 95% power to HPPC and balance 5% to CSPDCL in terms of the orders of this Tribunal and Hon'ble Supreme Court for which CTUIL is entitled to charge 95% for transmission of power to HPPC and balance 5% for CSPDCL. However, CTUIL has charged 100% in respect of power supplied to HPPC and another 5% for supply to CSPDCL thereby charging a total of 105% of transmission charges.
32. Per contra, CTUIL submits that PTC was granted LTA for 300 MW and in terms of the CERC's Sharing Regulations, 2010 the LTA grantee is obligated to pay transmission charges corresponding to entire LTA capacity and there is no nexus of LTA/transmission charges payable with the actual usage of the system or actual quantum of power physically transmitted. CTUIL has further submitted that the entire scheme of arrangement for supply of power has been agreed before the Hon'ble Supreme Court and _______________________________________________________________________________ Appeal No.242 of 2019 Page 58 of 64 KPL having agreed to open the LC for the entire 300 MW and discharge the payment and security obligations laid down under the TSA dated 22.06.2011, on behalf of PTC, LTA charges for entire 300MW i.e. 100% LTA quantum should be levied.
33. PTC submits that KPL undertook to open LC for entire 100% LTA capacity on its behalf as also consented to deduction of amount corresponding to 5% LTA charges from its power supply invoices in light of the purportedly illegal levy of 100% LTA charges by CTUIL instead of 95% corresponding to power flow and it is because of such illegal levy that KPL filed the Petition No. 227/MP/2017 before CERC seeking refund of such amount from CTUIL. PTC also maintains that CTUIL has illegally recovered 105% of LTA i.e. 100% under the LTA corresponding to power flow to HPPC and another 5% for power flow corresponding to CSPDCL.
34. KPL is supplying 95% of total quantum of power under LTA to PTC for onward supply to HPPC. The remaining 5% of the total quantum of power of 300 MW is being supplied to CSPDCL through STOA. Considering the rival contentions of the parties and from the perusal of the records it becomes evident that PTC and KPL are seeking to conflate two unrelated issues i.e. recovery of the charges by CTUIL for 100% LTA capacity under the LTA granted to PTC and another additional 5% under the STOA granted to CSPDCL, as the LTA and STOA are two different transactions and the _______________________________________________________________________________ Appeal No.242 of 2019 Page 59 of 64 Designated ISTS Customers (DICs) are also different and there is no overlapping of the LTA transaction and STOA transaction. Therefore, the contention of both PTC and KPL that CTUIL is receiving transmission charges for 105% of the total allocated quantum is incorrect.
35. Now, we must analyse, whether under the 300 MW LTA granted to PTC, CTUIL was entitled to charge LTA charges corresponding to 100% LTA capacity or only corresponding to the power flow to HPPC i.e. 95% of the LTA capacity as contended by KPL before the CERC.
36. PTC had made an application to CTUIL for grant of 273 MW LTA for transfer of power from the generating station of the Petitioner to HPGCL (subsequently HPPC). CTUIL vide letter dated 16.06.2008 intimated PTC about the grant of 300 MW LTA. Subsequently, PTC entered into BPTA dated 27.07.2009 with CTUIL. In terms of the Article 1(a) of the BPTA, PTC was required to make the payment for the transmission charges including regional transmission charges, corresponding to LTA of 300 MW. Subsequently, PTC entered into TSA dated 22.06.2011. It is pertinent to note that the LTA was not operationalized by CTUIL, at the behest of PTC, until the Hon'ble Supreme Court passed its Order dated 18.09.2015 and the same was operationalized only after KPL opened an LC for Rs. 13.82 crore as agreed upon before the Hon'ble Supreme Court. However, neither the Supreme Court Order dated 18.09.2015 nor any other document on record _______________________________________________________________________________ Appeal No.242 of 2019 Page 60 of 64 before us shows that KPL has taken over the liability to pay transmission charges corresponding to the LTA.
37. CERC in its order dated 11.4.2017 in Petition No. 166/MP/2015 had already held PTC liable to pay the transmission charges for the entire quantum of LTA which finding has not been challenged by PTC. On the other hand, KPL vide letter dated 13.01.2016 has stated that it has agreed to make payment of only 95% of transmission charges and that payment for 5% transmission charges was being made under protest.
38. From the factual and legal matrix before us, we observe that the liability for the payment of transmission charges towards the LTA arises from the BPTA and the TSA executed between the PTC and CTUIL. BPTA dated 27.07.2009 entered into between PTC and CTUIL clearly records that PTC shall bear the applicable regional transmission charges for the transmission of the power from Unit-II of KPL's generating station and in terms of the BPTA / TSA as well as the prevalent regulatory framework, the liability towards transmission charges shall be for the entire LTA capacity of 300 MW unless the same is duly relinquished wholly or in part by PTC. We, therefore, hold that CTUIL was duly entitled to recover from PTC the LTA charges corresponding to the 100% LTA capacity till the date of relinquishment of the 5% LTA capacity by PTC.
_______________________________________________________________________________ Appeal No.242 of 2019 Page 61 of 64
39. Now, the only issue that remains for our consideration is whether CERC could have directed the refund of such 5% LTA charges paid under protest by KPL to PTC. The power supply of 95% to HPPC by KPL through PTC commenced on 05.12.2015 in terms of the Supreme Court's order dated 18.09.2015. However, we observe that PTC relinquished the said 5% LTA capacity, for the first time only on 27.08.2019 during the proceedings of the present Appeal before this Tribunal and the said relinquishment came into effect from 03.09.2019. Therefore, despite being aware that only 95% LTA capacity corresponding to power supply is being used as against the 100% capacity allocated by CTUIL, PTC chose not to relinquish the 5% LTA capacity till 03.09.2019 i.e. for a period of almost four years. In our view, nothing prevented PTC from immediately relinquishing the LTA of 5% capacity in order to avoid the corresponding liability of transmission charges. Presumably, this delay in relinquishment was only because PTC was passing on the burden of such 5% LTA charges to KPL which was constrained to pay it to PTC for onward payment to CTUIL so as to prevent the generating station from getting stranded. Moreover, the delay in relinquishment of LTA could also have been on account of the fact that that PTC would have had to bear relinquishment charges corresponding to the relinquished LTA capacity, however, we do not deem it fit to delve into this issue at this stage. Suffice it to say that the conduct of PTC is not befitting a trading licensee operating in a regulated environment. By way of the present _______________________________________________________________________________ Appeal No.242 of 2019 Page 62 of 64 appeal, what it seeks to do is avoid paying its legitimate dues to a statutory entity by passing them on to /recovering them from an entity which was forced to pay it in order to prevent its generating asset from getting stranded. This, in our considered opinion, is trying to benefit from one's own wrong, which is impermissible in law. In this view of the matter, we do not find any infirmity in the CERC's finding in the impugned order directing PTC to refund the 5% LTA charges to KPL.
Conclusion:-
40. In light of the above, we hereby conclude that:
40.1 The Petition No. 227/MP/2017 filed by KPL before CERC was maintainable.
40.2 CTUIL was duly entitled to recover from PTC the LTA charges corresponding to the 100% LTA capacity till the date of relinquishment of the 5% LTA capacity by PTC.
40.3 There is no infirmity in the finding of CERC in the impugned order directing PTC to refund the 5% LTA charges to KPL.
40.4 PTC shall refund the amounts deducted from KPL along with interest at the rate of 9% in terms of the impugned CERC Order within a period of four weeks from the date of this judgment.
_______________________________________________________________________________ Appeal No.242 of 2019 Page 63 of 64 ORDER
41. For the foregoing reasons, we don't find any error in the impugned order of the Commission either on facts or on law. We hereby affirm the same. Accordingly, the appeal is sans any merit and is hereby dismissed.
42. Any IA pending is also disposed of accordingly.
Pronounced in the open court on this the 6th day of April, 2026.
(Virender Bhat) (Seema Gupta)
Judicial Member Officiating Chairperson
✓
REPORTABLE / NON-REPORATBLE
_______________________________________________________________________________ Appeal No.242 of 2019 Page 64 of 64