Appellate Tribunal For Electricity
Amausi Industries Association & Ors vs Uttar Pradesh Electricity Regulatory ... on 28 November, 2013
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Appellate Tribunal for Electricity
(Appellate Jurisdiction)
APPEAL NO.239, 240, 241, 243 of 2012, APPEAL No. 11,12 &160
OF 2013
Dated: 28th Nov, 2013
Present: HON'BLE MR. JUSTICE M KARPAGA VINAYAGAM, CHAIRPERSON
HON'BLE MR. V J TALWAR, TECHNICAL MEMBER
APPEAL NO.239 of 2012
In the Matter of:
1. Amausi Industries Association
B-131/1, Amausi Industrial Area
Lucknow - 226 008
2. Cold Storage Association
Water Works Road, Aish bagh
Lucknow - 226004
3. Shri Rama Shankar Awasthi
301- Surabhi Deluxe Apartment
6/7 Dali Bagh, Lucknow - 226001
4. M/s Tribhuvan Industries Ltd.
Gindan Khera, Nadar Ganj
Lucknow - 226008
5. M/s Mamta Steel India Pvt. Ltd.
Peperpur (sanha)Amethi
C.S.M. Nagar U.P - 227405
6. M/s. Kranti Steels Pvt. Ltd.
07km, Bhinga Road,
Bahraich, U.P. - 271801
7. M/s Jai Jagadamba Metalloys Ltd.
B-12, UPSIDC Industrial Area Site - II
Unnao - 209801 U.P.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
8. M/s Purva Alloys Ltd.
Plot No. 1423, Sarai Katiyan,
Purva Road Unnao, U.P - 209801
..... Appellant(s)
Versus
1. Uttar Pradesh Electricity Regulatory Commission
Vibhuti Khand, Kisan Mandi Bhawan,
Gomti Nagar, Lucknow -226010
Uttar Pradesh
2. Uttar Pradesh Power Corporation Limited
Shakti Bhawan, Extension,
14, Ashok Marg, Lucknow - 226 001
Uttar Pradesh
3. Madhyanchal Vidyut Vitran Nigam Limited
4-A, Gokhle Marg, Lucknow - 226 001
Uttar Pradesh
..... Respondent(s)
Counsel for the Appellant : Ms. Swapna Seshadri
Mr. Anand K. Ganesan
Mr. M. G. Ramachandran
Ms. Swagatika Sahoo
Counsel for the Respondent(s): Mr. Buddy A. Ranganadhan
Mr. Sanjay Singh for R-1
Mr. Amit Kapur
Mr. Pradeep Misra,
Mr. Daleep Kr. Dhayani &
Mr. Manoj Kr. Sharma for R-2&3
Mr. Vishal Anand
Mr. Suraj Singh
Ms. Awantika Manohar
Mr. Somesh Jha & Ms. Pyoli for
Interveners
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
APPEAL NO.240 of 2012
In the Matter of:
1. Chamber of Industries Gorakhpur
Udyog Vaban, Govt. Industrial Estate
Gorokhnath, Gorokhpur - 273015
2. Eastern UP, Chamber of Commerece and Industries
Vigyan Parishad Building,
Swami Dayanand Marg,
Near Indian Press Crossing,
Allahabad - 211002
3. Shri Rama Shankar Awasthi
301- Surabhi Deluxe Apartment
6/7 Dali bagh, Lucknow - 226001
4. U.P Chamber of Steel Industry
122*235, Plot No. 17,
Fazalganj, Kanpur - 208102
..... Appellant(s)
Versus
1. Uttar Pradesh Electricity Regulatory Commission
Vibhuti Khand, Kisan Mandi Bhawan,
Gomti Nagar, Lucknow -226010
Uttar Pradesh
2. Uttar Pradesh Power Corporation Limited
Shakti Bhawan, Extension,
14, Ashok Marg, Lucknow - 226 001
Uttar Pradesh
3. Purvanchal Vidyut Vitran Nigam Limited
Purvanchal Vidyut Bhawan, Vidyut Nagar,
DLW, Varanasai - 221004
..... Respondent(s)
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Counsel for the Appellant : Ms. Swapna Seshadri
Mr. Anand K. Ganesan
Mr. M. G. Ramachandran
Ms. Swagatika Sahoo
Counsel for the Respondent(s): Mr. Buddy A. Ranganadhan
Mr. Sanjay Singh for R-1
Mr. Amit Kapur
Mr. Pradeep Misra,
Mr. Daleep Kr. Dhayani &
Mr. Manoj Kr. Sharma for R-2&3
Mr. Vishal Anand
Mr. Suraj Singh
Ms. Awantika Manohar
Mr. Somesh Jha & Ms. Pyoli for
Interveners.
APPEAL NO.241 of 2012
In the Matter of:
1. RANIA of Industries Association
Gate No. 202, Rania,
Kanpur Dehat - 209304
2. Agra Cold Storage Owners Association,
C/o Balkeshwar Ice and Cold Storage
Balkeshwar Road,
Agra - 282005
3. Shri Rama Shankar Awasthi
301- Surabhi Deluxe Apartment
6/7 Dali bagh, Lucknow - 226001
4. U.P Chamber of Steel Industry
122*235, Plot No. 17,
Fazalganj, Kanpur - 208102
..... Appellant(s)
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Versus
1. Uttar Pradesh Electricity Regulatory Commission
Vibhuti Khand, Kisan Mandi Bhawan,
Gomti Nagar, Lucknow -226010
Uttar Pradesh
3. Uttar Pradesh Power Corporation Limited
Shakti Bhawan, Extension,
14, Ashok Marg, Lucknow - 226 001
Uttar Pradesh
3. Dakshinanchal Vidyut Vitran Nigam Limited
Urja Bhawan, 220KV Sub-Station
Agra-Mathura Bye Pass Road, Agra - 282007
Uttar Pradesh
..... Respondent(s)
Counsel for the Appellant : Ms. Swapna Seshadri
Mr. Anand K. Ganesan
Mr. M. G. Ramachandran
Ms. Swagatika Sahoo
Counsel for the Respondent(s): Mr. Buddy A. Ranganadhan
Mr. Sanjay Singh for R-1
Mr. Amit Kapur
Mr. Pradeep Misra,
Mr. Daleep Kr. Dhayani &
Mr. Manoj Kr. Sharma for R-2&3
Mr. Vishal Anand
Mr. Suraj Singh
Ms. Awantika Manohar
Mr. Somesh Jha & Ms. Pyoli for
Interveners.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
APPEAL NO.243 of 2012
In the Matter of:
1. Association of Steel Rolling Mills and Furnaces
10/A, Industrial Estate,
Merrut Road, Muzafur Nagar - 251003.
2. Association of Secondary Steel Manufacturers,
C/232, B.S. Road Industrial Area,
Gaziabad - 201001
3. Shri Rama Shankar Awasthi
301- Surabhi Deluxe Apartment
6/7 Dali bagh, Lucknow - 226001
4. M/s Star papers Mills Ltd.
Paper Mill Raod,
Sharnpur - 247001
..... Appellant(s)
Versus
1. Uttar Pradesh Electricity Regulatory Commission
Vibhuti Khand, Kisan Mandi Bhawan,
Gomti Nagar, Lucknow -226010
Uttar Pradesh
4. Uttar Pradesh Power Corporation Limited
Shakti Bhawan, Extension,
14, Ashok Marg, Lucknow - 226 001
Uttar Pradesh
3. Paschimal Vidyut Vitran Nigam Limited
Urja Bhawan, Victoriya Park, Meerut - 250001
Uttar Pradesh
..... Respondent(s)
Counsel for the Appellant : Mr. M. G. Ramachandran
Mr. Anand K. Ganesan
Ms. Swapna Seshadri
Ms. Swagatika Sahoo
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Counsel for the Respondent(s): Mr. Buddy A. Ranganadhan
Mr. Sanjay Singh for R-1
Mr. Amit Kapur
Mr. Pradeep Misra,
Mr. Daleep Kr. Dhayani &
Mr. Manoj Kr. Sharma for R-2&3
Mr. Vishal Anand
Mr. Suraj Singh
Ms. Awantika Manohar
Mr. Somesh Jha & Ms. Pyoli for
Interveners.
APPEAL NO.11 of 2013
1. Rathi Steels and Power Ltd.
24/1A Mohan Corporative Industrial Estate
Sarita Vihar, Mathura Road
New Delhi - 110044
2. Rathi Super Steels Ltd.
S-210, Aditya Plaza, Plot No-4,
Community Centre, Karkardooma
Delhi - 110092
3. K L Rathi Steels Ltd.
1/5812, Loni raod,
Shahdra,
Delhi - 110032
4. Kajaria ceramics Ltd.
A-27-30, Industrial Area,
Sikandrabad, Dist Bulandshar
Uttar Pradesh - 203205
..... Appellant(s)
Versus
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
1 Uttar Pradesh Electricity Regulatory Commission
Vibhuti Khand, Kisan Mandi Bhawan,
Gomti Nagar, Lucknow -226010
Uttar Pradesh
2 Uttar Pradesh Power Corporation Limited
Shakti Bhawan, Extension,
14, Ashok Marg, Lucknow - 226 001
Uttar Pradesh
3. Paschimal Vidyut Vitran Nigam Limited
Urja Bhawan, Victoriya Park, Meerut - 250001
Uttar Pradesh
..... Respondent(s)
Counsel for the Appellant : Mr. B C Rai
Mr. Gaurav Agarwal
Counsel for the Respondent(s): Mr. Buddy A. Ranganadhan
Mr. Sanjay Singh for R-1
Mr. Amit Kapur
Mr. Pradeep Misra,
Mr. Daleep Kr. Dhayani &
Mr. Manoj Kr. Sharma for R-2&3
Mr. Vishal Anand
Mr. Suraj Singh
Ms. Awantika Manohar
Mr. Somesh Jha & Ms. Pyoli for
Interveners.
APPEAL NO.12 of 2013
1. Parmarth Industries Private Limited
10th Km Stone from Bijnor, Nagina Road,
District Bijnor - 246 701
Uttar Pradesh
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
2. Rama Paper Mills Ltd.
12/22, East patel Nagar
New Delhi - 110 008
3. Reema steels Pvt. Ltd.
12/22, East patel Nagar
New Delhi - 110 008
4. Parmarth Iron Pvt. Ltd.
10th Km Stone from Bijnor, Nagina Road,
District Bijnor - 246 701
Uttar Pradesh
5. Parmarth Steel and Alloys Pvt. Limited
9th Km Stone from Bijnor, Nagina Road,
District Bijnor - 246 701
Uttar Pradesh
6. Ramdoot Steels Pvt. Ltd.
4th Km Stone from Noorpur, Tajpur Road,
Tehsil Chandpur District Bijnor - 246 701
Uttar Pradesh
7. Jain Steels Pvt. Ltd.
Mandawar Road, Bijnor
Uttar Pradesh - 246701
8. Goel M G Gases Pvt. Ltd.
A-4/2, South Side of G.T. Raod,
UPSIDC Industrial area,
Ghaziabad - 201009
Uttar Pradesh
..... Appellant(s)
Versus
1 Uttar Pradesh Electricity Regulatory Commission
Vibhuti Khand, Kisan Mandi Bhawan,
Gomti Nagar, Lucknow -226010
Uttar Pradesh
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
3 Uttar Pradesh Power Corporation Limited
Shakti Bhawan, Extension,
14, Ashok Marg, Lucknow - 226 001
Uttar Pradesh
3. Paschimal Vidyut Vitran Nigam Limited
Urja Bhawan, Victoriya Park, Meerut - 250001
Uttar Pradesh
..... Respondent(s)
Counsel for the Appellant : Mr. B C Rai
Mr. Gaurav Agarwal
Counsel for the Respondent(s): Mr. Buddy A. Ranganadhan
Mr. Sanjay Singh for R-1
Mr. Amit Kapur
Mr. Pradeep Misra,
Mr. Daleep Kr. Dhayani &
Mr. Manoj Kr. Sharma for R-2&3
Mr. Vishal Anand
Mr. Suraj Singh
Ms. Awantika Manohar
Mr. Somesh Jha & Ms. Pyoli for
Interveners.
APPEAL NO.160 of 2013
1. Goyal M.G. Gases Pvt. Ltd.,
A-4/2 South Side4 of G.T. Road,
UPSIDC Industrial Area,
Ghaziabad, UP-201009
..... Appellant(s)
Versus
1 Uttar Pradesh Electricity Regulatory Commission
Vibhuti Khand, Kisan Mandi Bhawan,
Gomti Nagar, Lucknow -226010
Uttar Pradesh
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
4 Uttar Pradesh Power Corporation Limited
Shakti Bhawan, Extension,
14, Ashok Marg, Lucknow - 226 001
Uttar Pradesh
3. Paschimal Vidyut Vitran Nigam Limited
Urja Bhawan, Victoriya Park, Meerut - 250001
Uttar Pradesh
..... Respondent(s)
Counsel for the Appellant : Ms. Swapna Seshadri
Mr. Shiv Kumar Pankha
Mr. Gaurav Agarwal
Counsel for the Respondent(s): Mr. Buddy A. Ranganadhan
Mr. Sanjay Singh for R-1
Mr. Amit Kapur
Mr. Pradeep Misra for R-2 &3
Mr.Shashank Pandit for R-2 to R-3
Mr. Manoj Kr. Sharma for R-2&3
Mr. Vishal Anand
Mr. Gaurav Dudeja
& Ms. Pyoli for Interveners.
J U D G M E NT
PER HON'BLE MR . JUSTICE M. KARPAGA VINAYAGAM,
CHAIRPERSON
1. The Appellants have filed all these Appeals challenging the
impugned order dated 19.10.2012 passed by Uttar Pradesh State
Commission (the first Respondent herein) in the matter of
determination of ARR and Tariff for the Financial Year 2012-13.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
2. The Appellants are High End Consumers. They take supply at
high voltage in the area of service of the distribution licensees in
the State of Uttar Pradesh, the third Respondents in these
Appeals. The first Respondent is the State Commission who
passed the impugned order dated 19.10.2012.
3. The learned Counsel for the Appellants assailing the Impugned
Order dated 19.10.2012, has raised the following issues:
(a) Fixation of tariff without audited accounts for the
period 2008-09 onwards despite the specific directions
issued by this Tribunal in the Judgment dated 21.10.2011 in
Appeal No.121 of 2010.
(b) Differences/discrepancies in Data and irregularities in
the method of issuance of the tariff order
(c) Increase in the level of cross subsidy.
(d) Non recovery of past surplus of the Transmission
Licensee.
(e) Allowing Bulk Supply Power to Torrent Power, a
franchisee enterprise below the bulk power purchase price.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(f) No separate Tariff Petition for the licensees;
(g) Fixed Assets Register; Transparency and propriety
etc.
4. On these grounds, the learned counsel for the Appellants as well
as the Respondents made elaborate arguments for consideration
of these issues.
5. Let us now discuss each of the issues one by one.
6. The First Issue is relating to the Fixation of tariff without
audited accounts for the period 2008-09 onwards despite the
specific directions of the Tribunal in the Judgment dated
21.10.2011 in Appeal No.121 of 2010.
7. According to the learned Counsel for the Appellants, the State
Commission did not follow the specific directions of this Tribunal
in Appeal No. 121 of 2010 relating to audited accounts and
passed the Impugned order without submissions of the audited
accounts by the Distribution Licensees in complete violation of
the Tribunal's directions, provisions of the 2003 Act as well as
Tariff Policy. Gist of the submissions made by the Appellants are
as under:
(a) This Tribunal in the Judgment dated 21.10.2011
allowing Appeal No. 121 of 2010 had issued specific
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
directions to the State Commission for considering the
audited accounts and also carrying out the truing up
exercise in a timely manner. However, in the present
proceedings, neither the Distribution Licensees nor the State
Commission complied with those directions issued by this
Tribunal.
(b) The State Commission passed the following Interim
Orders dated 18.5.2012 directing the distribution licensees
to submit the relevant data and audited accounts as per the
directives of the Tribunal in Appeal No. 121 of 2010 and
holding that if the tariff proposal and other required data are
not submitted by the distribution licensees, the State
Commission will decide to proceed sou-moto, for
determination of the ARR/Tariff.
(c) Thereafter the Distribution Licensees filed their tariff
proposal and some additional data on 24.05.2012 which
were not to the knowledge of the Appellants and other
consumers. Relying on such additional documents, which
were also incomplete, the State Commission on 25.05,2012
admitted the ARR/Tariff petitions filed by the Distribution
Licensees despite the deficiencies.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(d) The State Commission in the impugned order has not
followed the principle laid down by this Tribunal. The
Impugned order has been issued in violation of -
i. Judgment dated 21.10.2011 of the Tribunal;
ii. Provisions of the Electricity Act and National
Tariff Policy and National Electricity Policy;
iii. Uttar Pradesh Electricity Regulatory Commission
(Terms and Conditions for Determination of
Distribution Tariff) Regulation, 2006 and Conduct of
Business Regulations;
(e) In the absence of a proper petition being filed by the
distribution licensees, the pre-conditions for dealing with the
petition for determination of revenue requirements and tariff
were not satisfied and, therefore, the petition ought not to
have been entertained and proceeded with.
(f) Under the Tariff Regulations, 2006, the distribution
licensees are under a statutory obligation to submit their
ARR/Tariff Petitions complete in all respects, as per the
format specified in Annexure -A appended to the said
Regulation by 30th November of each year for the ensuing
financial year. The distribution licensees had not filed any
ARR according to the said Tariff Regulations, 2006. The
State Commission was to initiate suo-moto proceedings for
tariff determination at the relevant time. The State
Commission neither initiated any proceedings whatsoever
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
nor took any action against the licensees for default, let
alone initiating any suo moto proceedings for determination
of tariff. Thereafter, in the year 2012, the State Commission
had fixed the ARR for 2010-11, 2011-12 and revised the
tariff for 2012-13 on the same inconsistent and unreliable
data submitted by the distribution licensees. Once the
Statutory Regulations have been framed, the State
Commission ought to follow the same without any deviation.
The State Commission has not acted consistent with the
above requirements.
8. The learned counsel for the Distribution Licensee, the Second
Respondent made these submissions in support of the
Impugned Order. They are as follows:
(a) The delay in submitting the audited accounts is not on
account of the Discoms and was in fact because of the
reasons beyond their control. Delay in filing audited
accounts by Discoms arose on account of following
reasons:-
(I) In compliance of the comments of the CAG of
India dated 19.05.2011, the accounts for FY 2008-09
had to be revised and were revised on:
(i) MVVNL, Lucknow - 18.08.2012
(ii) DVVNL, Agra - 23.08.2012
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(iii) PVVNL, Meerut - 16.08.2012
(iv) PuVVNL,Varanasi - 03.09.2012
(II) Although the U.P. Power Corporation Ltd.
(UPPCL) started operating as a separate entity with
effect from 26.07.2006, the assets and liabilities finally
came to be vested in UPPCL only on 23.12.2010
(when Transfer Scheme was finally notified by U.P.
Government). In the absence of Transfer Scheme and
the provisional balance sheet, it was not possible to
audit the accounts of the U.P. Power Corporation Ltd
and the Discoms.
(iii) As per the procedure followed, the Discoms get
its accounts audited by Chartered Accountants and
thereafter, a supplementary audit is conducted by the
CAG's office. The Charted Accountants took more
than one year for the finalization of accounts for the
FY 2007-08 and 2008-09. After that, the CAG Office
also took 3-4 months in finalising their comments.
Hence, the delay could not be avoided by the Discoms
and as such, it cannot be attributed on the Discoms.
(b) As regards, the Judgment rendered by this Tribunal
dated 21.10.2011 in Appeal No. 121 of 2010, the Tribunal
had issued time bound directions to the Discoms to submit
audited accounts, It is to be noted that though the statutory
transfer scheme was notified only on 23.12.2010, the
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Discoms have tried their best to comply with directions in as
much as the Audited Accounts for FY 2007-08 were
submitted to the State Commission on 28.05.2012 along
with Petition for Truing up for FY 2001 to FY 2008. Audited
accounts for all the Discoms for FY 2008-09 and FY 2009-10
have also been submitted before the Commission on
17.01.2013. Audited accounts of all the Discoms for FY
2010-11 have since been submitted to the Commission on
13.03.2013 and True up Petition for the Period FY 2008-09
to FY 2010-11 have been filed before the Commission on
13/14-05-2013.
(c) The State Commission has already issued order on
True-Up Petition of all Discoms for FY 2001 to FY 2008 on
21.05.2013. Audited Balance sheets of all the Discoms for
FY 2011-12 have been submitted before the Commission on
27.06.2013.
9. The learned Counsel for the State Commission made elaborate
submissions in support of the impugned order. They are as
follows:
(a) The State Commission has in true letter and spirit
sought to implement the judgment dated 11.11.2011 in OP
No.1 of 2011 whilst continuing to implement the Judgment
dated 21.10.2011 in Appeal No.121/2010.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(b) The Judgment of this Tribunal dated 21.10.2011 did
not set aside the impugned Order therein on the ground that
Audited Accounts were not available before the Tariff for
those periods were determined. This Tribunal affirmed the
stand that the Audited Accounts were required not only for
truing up but also for the purpose of making a realistic
estimate of future tariff also.
(c) In fact, in the judgment of 21.10.2011, this Tribunal
was pleased to affirm the principle that the State
Commission has power to initiate suo-moto proceedings for
tariff determination in case the licensee does not file
petitions in time as per the Regulations. In the said
Judgment the Tribunal had also re-emphasised the
necessity to ensure timely filing of the Tariff Petition and also
ensure timely determination of Tariff.
(d) As regards the requirement of Audited Accounts, this
Tribunal has laid down the principle that the Audited
Accounts were essentially required for a realistic estimation
of the tariff, noting the fact that truing up proceedings for
certain years were already underway. This Tribunal has
recorded that in the prevailing circumstances the approach
of the State Commission in determining the tariff on the
basis of provisional accounts cannot be faulted.
(e) This Tribunal in its Judgment, dated 11.11.2011 in OP
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
No.1 of 2011 has laid down the dictum that the State
Commission should not delay the process of Tariff
determination indefinitely to await the Audited Account of the
licensee.
(f) This Tribunal in the judgment dated 21.10.2011, did
not hold that in the absence of Audited Accounts, tariff
determination should not take place. In fact in a catena of
Judgments, this Tribunal had consistently taken the view
that tariff determination can and ought to be done even in
the absence of Audited Accounts. Some of the said
Judgments inter alia, are as under:-
(i) Appeal No.55 and 56 of 2011 in the matter of M/s
Aditya Birla Chemicals (India) Limited Vs Jharkhand
State Electricity Regulatory Commission & Anr
(ii) Appeal No.129 of 2007 in the matter of
Jharkhand State Electricity Board Vs Jharkhand State
Electricity Regulatory Commission.
(iii) Appeal No.124 of 2006 in the matter of M/s Kashi
Viswanath Steel Limited Vs Uttaranchal Electricity
Regulatory Commission & Ors.
(iv) Appeal No.268 of 2006 in the matter of M/s.
Poddar Alloys (P) Ltd Vs Uttaranchal Electricity
Regulatory Commission and Anr.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
10. In the light of the rival contentions, let us deal with the issue.
11. According to the Appellant, the State Commission did not
implement the directions of this Tribunal given in the judgment
dated 21.10.2011in Appeal No.121 of 2010 and passed the
impugned order without getting audited accounts of the
Distribution Licensees.
12. Let us refer to those directions given in our judgment in Appeal
No.121 of 2010:
"6.8. Let us now discuss the issue regarding non
submission of the audited accounts by the respondent
licensees.
6.9. According to the Regulation 2.1 of the Tariff
Regulations, 2006 the Annual Statement of Accounts
should be submitted along with the tariff filing. According
to the definitions in Regulation 1.3.1 the Annual
Statement Accounts means the following statements:
i) Balance sheet, prepared in accordance with the
form contained in Part-I of Schedule VI to the
Companies Act, 1956;
ii) Profit & Loss Accounts complying with the
requirements contained in Part-II of Schedule VI to
the Companies Act, 1956;
iii) Cash flow statement, prepared in accordance
with Accounting Standard on cash flow statement
(AS-3) of the Institute of Chartered Accountants of
India;
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
iv) Report of Statutory Auditors of the licensee;
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
v) Cost records, if any, prescribed by the Central
Government under Section 209 (1)(d) of the
Companies Act, 1956;
vi) Together with notes thereto and such other
supporting statements and information as the
Commission may direct from time to time.
6.10. According to the learned counsel for the
respondents, audited accounts are required only in true
up.
6.11 The Regulations clearly indicate the requirement of
submission of the audited accounts. In our opinion, the
audited accounts for the previous year are not only
required in true up but are also needed for making
realistic estimate of expenditure for the ensuing year.
The licensees should have submitted audited accounts
for FY 2007-08 and accounts for half yearly period for
the FY 2008-09 for determining the ARR and tariff for FY
2009-10. We feel that the ARR/tariff determination
exercise for the ensuing year should also consider the
true up of financials for the previous financial year and
the Annual Performance Review for the current financial
year for a realistic estimation of the Annual Revenue
Requirement for the ensuing year. However, for some
reasons the audited accounts for the previous financial
year are not available then at least the audited accounts
for the year just prior to the previous year along with the
provisional accounts for the previous year could be
considered. However, in this case the audited accounts
even for FY 2007-08 were not submitted.
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Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
6.13. According to learned ASG, the audited accounts till
the FY 2006-07 had already been submitted. The audit
for the FY 2007-08 has been completed by the CAG
which will be submitted to the State Commission after
the approval of the Board of Directors. The accounts for
the FY 2008-09 and FY 2009-10 would be audited by the
CAG by the end of the current financial year.
6.14. In the prevailing circumstances, we do not find
fault with the approach of the State Commission in
determining the tariff on the basis of the provisional
accounts. However, instead of giving time bound
directions for submission of the audited accounts,
the State Commission seems to have reconciled with the
unusual delay in submission of the audited accounts and
have decided to true up the financials as and when the
audited accounts are supplied by the licensees.
13. In the above judgments, it has been held by this Tribunal that the
audited accounts of the previous year or year prior to previous
year are necessary for accurate projections in the absence of
the present year audited accounts.
14. In the said judgment, we have not issued any direction that the
tariff determination exercise should not be held in the absence of
the audited accounts.
15. On the other hand, we have referred to the judgment of this
Tribunal in M/s. Aditya Birla Chemicals (India) Limited v
Jharkhand State Electricity Regulatory Commission in the
judgment dated 19.7.2011 wherein, we have accepted the
24
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
reasons given by the Jharkhand State Commission to relax the
Regulations requiring the submissions of the audited accounts
and permitted the State Commission to determine the ARR and
Tariff even without audited accounts for the relevant years.
16. That apart, in another judgment dated 3.5.2007 in Appeal
No.268 of 2006 in the case of M/s. Poddar Alloys (P) Ltd Vs
Uttaranchal Electricity Regulatory Commission and Anr, this
Tribunal has held that the provisional truing-up could be carried
out even without the audited accounts.
17. The relevant portion of the said judgment is quoted below:
"21. It was expected that the Commission will mend its
ways. But, regrettably the Commission seems to be
determined to dither and defy and over-reach orders of this
Tribunal in an indignant manner not becoming of a
responsible institution. From the very beginning, when the
Commission chose to wait for the Audited Accounts to
implement Tribunal's Order, the Commission's intentions
and reluctance to implement the order was obvious. That is
why the Tribunal had to deprecate the conduct of the
Commission. Regrettably, desire to dither on the decided
issues and adamant attitude of the Commission remains
unchanged. Normally, truing up exercise is undertaken on
the basis of available data and information. Second and
subsequent truing up exercises can be taken up when
audited account figures are available. No public hearing is
required for implementing the decisions of an appellate
authority and yet the Commission went ahead with public
hearing. Any direction made by the higher forum has to be
complied with by the lower forum; otherwise, the hierarchy
becomes meaningless as has been held by the Supreme
Court. We observe that even the minimum standards of
25
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
behavior and conduct have been given a go by and that too
despite this Tribunal's reprimand. We restrain ourselves at
this stage and expect the Commission to realize its role to
implement directions of this Tribunal.
18. Now it is clarified by the learned Counsel for the State
Commission that the directions of this Tribunal in Appeal No.121
of 2010 have been complied with and audited accounts up to the
Financial Year 2010-11 have now been furnished to the State
Commission. It is also submitted that the Distribution Licensee
has already submitted the true-up petition for the years 2008-09
to 2010-11. The learned Counsel for the State Commission also
pointed out that the State Commission has already issued true-
up orders up to the Financial Year 2008.
19. In view of the above submissions made by the learned Counsel
for the Respondents, we are unable to hold that our directions
issued in Appeal No.121 of 2010 have not been complied with
by the State Commission.
20. This point is accordingly decided as against the Appellant.
21. The next issue is relating to differences and discrepancies in
the data submitted by the Distribution Licensee and the
irregularities in the method of issuance of the Tariff Order.
22. The learned Counsel on this issue, has made the following
submissions:
26
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(a) Complete Tariff proposal and additional data filed
by Distribution Licensees on 24.05.2012 were not
supplied to the Appellants.
(b) There were data discrepancy between the ARR
Petition and the Public notice issued by Distribution
Company.
(c) Violation of principles of transparency in Section
86(1)(3)(c) of the Electricity Act, 2003.
(d) Tariff Petitions were heard by three members but
the Orders were signed and pronounced by only two
members in a hurried manner.
23. On this issue, the learned counsel for the State Commission has
made the following reply:
(a) The State Commission in its order dated
25.6.2013 admitting the petitions of the Respondents,
had clarified that it has considered all the data placed
before it and directed the Respondents to place the
same in the public domain.
(b) The Appellants have not been able to make out
any case as to what was the impact, if at all, in all the
impugned order by reason of the so called differences
in data.
(c) The Affidavits filed by the Appellants would
27
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
clearly show that the so called differences in data are
either very minor or non-existent and in fact the
Appellants have not been able to show what prejudice if
any, had been caused to the Appellants in this regard.
24. The learned Counsel for the Distribution Licensee also submitted
the reply which is as follows:
(a) Not only the Appellants had the copy of the Tariff
Proposal but Appellant No. 3 made presentations before
the State Commission during public hearing in which
they took objections with regard to the said Tariff
Proposal. Evidently the tariff proposal submitted by
Discoms on 24.05.2012, was supplied to Appellants.
Even otherwise, complete tariff proposals were made
available on the website of the distribution licensees.
(b) There was no data discrepancy as alleged by the
Appellant. Perusal of the comparative chart supplied by
the Appellant, on affidavit, would show that there was no
major deviation in the figures submitted in ARR Petition
and the figures published in Newspaper. The only major
discrepancy exhibited by Appellant in its chart is with
regards to losses (%). As per Appellant's chart the
losses as per Newspaper publication is 24% while the
Petition showed the same as 28.30%. It is to be noted
that the losses referred to in the Public Notice clearly
28
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
indicated a Distribution loss which is 24% whereas
losses referred to in the Petition were T&D losses as
28.30%.
25. Having heard the rival submissions of both the parties, it is
evident that the grievance of the Appellants is that all the
relevant and complete data had not been supplied to the
Appellant by the Respondent.
26. In this context, we have to refer to Section 64 (2) and 64 (3) of
the Electricity Act, 2003 which reads as under:
"Section 64
(1).......
(2) Every applicant shall publish the application, in
such abridged form and manner, as may be specified
by the Appropriate Commission.
(3) The Appropriate Commission shall, within one
hundred and twenty days from receipt of an
application under sub-section (1) and after considering
all suggestions and objections received from the
public-
(a) Issue a tariff order accepting the application
with such modifications or such conditions as may
be specified in that order;
(b) reject the application for reasons to be recorded
in writing if such application is not in accordance
with the provisions of this Act and the rules and
regulations made thereunder or the provisions of
any other law for the time being in force;
29
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Provided that an applicant shall be given a
reasonable opportunity of being heard before
rejecting his application.
27. On perusal of Section 64 (2), it is manifest that it requires the
Distribution Licensee to publish the petition in such abridged
form and manner, as may be specified by the State Commission.
28. Section 64 (3) mandates the State Commission to issue the tariff
order after considering all the comments and suggestions
received from various stake holders.
29. The conjoint reading of Section 64(2) and 64(3) of the Act, 2003
would reveal that the stakeholders are required to comment on
the ARR petition admitted by the State Commission. After
admission, the State Commission may require many more
documents from the licensee to examine and validate the claims
of the licensee. For example, the State Commission may require
copies of the power purchase bills paid to generating companies
or bills of the equipment purchased by the distribution licensee.
30. All these documents are not necessary to be furnished to the
consumers since those documents cannot be the subject matter
of the scrutiny of the consumers.
31. At this juncture, we shall look at this issue from a different angle.
32. The Distribution Licensees are expected to file ARR by 30th
November. It is only then State Commission will be is in a
position to issue the Tariff Order by 31st March of the next year.
30
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
The Petition would include actual data for six months i.e. up to
September and projected data for the next six months of the
current year. Based on this data, the projections are made for
the next year. During this process, since 120 days are available
to the Commission to finalise the tariff order, the State
Commission may, for the purpose of verify the projected data for
six months, ask the licensees to submit details of the actual
power purchase and category wise sale up to the month of
December. The licensee will collect those details and submit it in
the month of January. If all these data furnished by the licensees
are required to be submitted to the consumers for their
comments, then the tariff process would not be able to be
completed to enable the State Commission to issue tariff order
by 31st March. In such a situation, the tariff process would
become unending and the tariff order could never be issued
within the statutory limit of 120 days.
33. The provision of seeking comments or suggestions from the
consumers has been introduced in the Act to facilitate the
Commission to complete the process in a transparent manner. It
is settled law that the State Commission which is an expert
body, would be competent to look into the available materials
and decide the issue by adding the valid reason.
34. Admittedly, the State Commission is expected to act
transparently without any delay as per section 86(3) of the Act.
The State Commission while taking the process in a
31
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
transparent manner has to issue the tariff order within time limit
otherwise this would be questioned before this Tribunal which in
turn would comment negative remarks against the State
Commission.
35. Therefore, the State Commission has to finish the process of
tariff determination and issue the tariff order on the basis of the
available information collected during the course of the process.
The transparency cannot mean that all the consumers are to be
involved at every step of tariff determination.
36. Therefore, the allegations that there are differences/
discrepancies in the data and non furnishing of some of the data
required by the State Commission from the licensees, cannot be
said to be established in the absence of any impact.
37. In the same issue, the learned counsel for the Appellants has
also questioned the manner in which the tariff order was passed.
38. The submissions of the Appellant in this regard are as follows:
(a) There is a serious infirmity in the manner of passing
on the Impugned Tariff Order. The tariff petition was heard
by all three Members of the State Commission, namely the
Chairman as well as the two Members. All the Members of
the State Commission after hearing the matter had reserved
for the orders. However, the appointment of the Chairman
had been set aside by a decision of the Allahabad High
32
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Court but later, the same had been stayed by the Hon'ble
Supreme Court. However, the Hon'ble Supreme Court
ultimately by the Order dated 19.10.2012 pronounced the
judgment at 10.45 AM dismissing the Appeal and confirming
the Order of the Allahabad High Court. Hurriedly, on the
very same day, the Tariff Order was signed by the other two
Members and issued. The hasty disposal has been
reflected in several paras of the Tariff Order which are
contradictory and inconsistent. This aspect has brought the
attention of media and other agencies which subsequently
disclosed that on the very date of removal of the Chairman
by the Order of the Hon'ble Supreme Court, the State
Commission had made certain changes in the tariff order
and pronounced it on the same day.
(b) The Distribution Licensees have relied on Section 93
of the Electricity Act, 2003 and Section 9 (3) of the UP
Reforms Act, 1999. The Distribution Licensees have
misunderstood the contention of the Appellant. The quorum
may be two or even a single member. However, there is no
propriety in quasi judicial proceedings when a matter is
heard by three members, and the Order is passed only by
two members. Order 18, Rule 15 of the Code of Civil
Procedure, 1908 has no relevance to the present case.
39. The reply submissions of the Distribution Licensees is as
33
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
follows:
(a) Section 93 of the Electricity Act, 2003 provides that
any vacancy or defect in constitution of Commission will not
invalidate the proceedings.
(b) Section 82(4) of the Electricity Act, 2003 provides that
State Commissions shall consist of not more than three
Members including the Chairperson but has no minimum
quorum requirement. Further, Section 9(3) of the UP
Electricity Reforms Act, 1999 provides that two Members
shall form the quorum of the State Commission.
(c) Section 92(1) of Electricity Act, 2003 read with
UPERC (Conduct of Business) Regulations, 2004 does not
prescribe any quorum.
(d) As per Section 94 of the Electricity Act, 2003 the
Appropriate Commission shall have the same power for the
purpose of inquiry or proceedings under Electricity Act, 2003
as are vested in a Civil Court under the Civil Procedure
Code.
(e) Order 18 Rule 15 of the Civil Procedure Code, 1908 is
a special provision to obviate re-recording of evidence and
rehearing of the suit where Judge is prevented by death,
transfer or other causes from concluding the Trial. The
Hon'ble Supreme Court has relied on Order 18 Rule 15 of
the CPC in catena of judgment including in the case of
34
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Rasiklal Manikchand Dhariwal Vs M.S.S. Food Products:
(2010) 2 SCC 196
40. The learned Counsel for the State Commission has made the
following submissions:
(a) The process of preparing a Tariff Order stretches over
many months and involves hundreds of days. Even in the
present case, the tariff petition had been filed on 24.5.2012,
the petitions were admitted on 25.6.2012 and the public
hearings were held in August/September 2012. Hence by
19.10.2012, the ARR and Tariff Orders for all four Discoms
for three years at a time were ready. No Tariff Order can be
made afresh in a day. Merely because the order was signed
on the same day on which Chairman's appointment was set
aside, is only indicative of the fact that the orders were
already ready even prior to 19.10.2012.
(b) The appointment of the Chairman having been set
aside, the question of the Chairman signing the order could
not obviously have arisen. Hence, it was only the remaining
two Members who had heard the petition who could have
signed the orders.
(c) Even assuming without admitting that the two
surviving Members had to wait for the appointment of a new
Chairman, such new Chairman could not sign the orders
since such new Chairman would not have heard the tariff
35
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
petitions. In such an event, the entire hearing process
would have to be gone through all over again. This would
defeat the object of the provisions, prescribing the time
frame.
41. We have carefully considered the submissions made by both the
parties.
42. The similar issue relating to signing of the Tariff order only by
two members came-up before this Tribunal in Appeal No.240/10
in Faridabad Industry Association Vs Haryana Commission. In
this case, the public hearing was held in the presence of all the
three members of the State Commission. However, one of the
Members of the State Commission demitted the office during the
period and the final orders were issued by the remaining two
Members. This was questioned. This Tribunal has given the
findings on this issue which are as follows:
"11. The sixth issue is regarding validity of the impugned
order as it is not signed by the third Member who had heard
the petition along with other Members when the
representations of the objectors were considered by the
State Commission on 18.2.2010.
11.1. According to the learned counsel for the appellant, the
general principle of natural justice requires that all the
persons who heard the matter are required to decide the
matter. One of the Members who have heard the petition
retired on 24.2.2010. According to Section 93 of the Act, no
act or proceeding of the Commission shall be questioned or
shall be invalidated merely on the ground of existence of any
vacancy or defect in the Constitution of the Commission.
36
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
11.2. The learned counsel for the respondents 2 and 3
stated that the objection by the appellants regarding quorum
of the State Commission is untenable in view of the
provisions of Section 93 of the Act. He also referred to
Judgment in the matter of Iswar Chandra vs. S. Sinha
(1972) 3 SCC 383, wherein the Hon'ble Supreme Court has
held as under:
"Where there is no rule or regulation or any other
provision for fixing the quorum, the presence of the
majority of members would constitute it as valid
meeting & matters constitute it as valid meeting &
matters considered there cannot be held to be invalid".
11.3. We notice that at the time of public hearing on
18.2.2010, three Members of the State Commission heard
the objections filed by the consumers and various other
groups. However, the order was passed on 13.9.2010. In
the meantime, one of the Members retired on 24.2.2010,
therefore, the order was signed by the Chairperson and
remaining one Member. In this connection, Section 93 of
the Act is reproduced below:
"93. Vacancies, etc., not to invalidate proceedings - No act
or proceedings of the Appropriate Commission shall be
questioned or shall be invalidated merely on the ground of
existence of any vacancy or defect in the constitution of the
Appropriate Commission".
11.4. We do not find any force in the arguments of the
learned counsel for the appellants that the general principle
of natural justice would be applicable in this case. It has
been held by the Hon'ble Supreme Court in the PTC case
that the Electricity Act, 2003 is a complete Code. Therefore,
in this case Section 93 of Page 52 of 57 Appeal No. 204 of
37
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
2010 the Act will apply. Accordingly, we hold that the
impugned order is valid".
43. As pointed out by this Tribunal, in the above judgment, the
impugned order in that Appeal was upheld. Section 93 of the
Act would not allow the Act or proceedings of the Commission
invalidated merely because there is a ground of existence of any
vacancy or defect in the constitution of the appropriate
Commission. The ratio of this case would squarely apply to the
present case also.
44. Consequently, we have to hold that there is no irregularity in the
procedure adopted by the surviving two members in signing the
tariff order that too after the Chairman's appointment was set
aside by the Hon'ble Supreme Court. Accordingly, this issue is
decided.
45. The next issue is relating to Increase in the Level of Cross
Subsidy Surcharge.
46. On this issue, the learned Counsel for the Appellant has made
the following submissions:
(a) The State Commission has calculated the average
cost of supply at Rs. 5.87 per unit without giving details as to
how the State Commission has reached to such calculation.
The National Tariff Policy for reduction in cross subsidy has
not been considered properly by the State Commission.
38
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(b) The findings of the State Commission are contrary to
the provisions of the Electricity Act, 2003 and National Tariff
Policy by which the cross subsidy is required to be brought
down to the level of 20 % by the Financial year 2010-
11.However, the State Commission has acted contrary to
the above by determining tariff for domestic, private tube-
wells and departmental employees by subsidizing at a rate
lower than the maximum cap i.e. 20%.
(c) The Impugned Order of the State Commission is also
contrary to the principles laid down by the Tribunal in the
Judgment dated 30.05.2011 in Appeal Nos. 102,103 and
112 of 2010 regarding rationalization of Cross subsidy. The
compliance of the National Tariff Policy means than no
consumer category should pay less that 20% of the average
cost of supply. Since the average cost of supply as per the
State Commission itself is Rs. 5.87 per unit, no consumer
category's tariff can be lower than Rs. 4.70 per unit whereas
the State Commission has fixed the tariff for domestic
category - LMV - 1 at Rs 2.92 per unit, private tube wells -
LMV 5 at Rs. 1.15 per unit and Departmental Employees -
LMV - 10 at Rs. 1.60 per unit. This is blatant violation of the
principles laid down by this Tribunal in various judgments.
(d) Merely because the Appellant's category of
consumers has been shown artificially to be within 20%
range does not mean that the State Commission has
39
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
followed the Electricity Act, the National Tariff Policy and the
judgments of the Tribunal.
47. The learned Counsel for the State Commission has made the
following reply:
(a) The average cost of supply for FY 2012-13 is Rs. 5.87
per unit. It is admitted by the Appellant that the effective
tariff for their category is Rs.6.08 per unit. Hence, it is
obvious that the effective tariff of the appellant is well within
the accepted range of +/- 20% of the average cost of supply.
(b) Hence, even assuming without admitting that there
was an increase in cross subsidy as long as the cross
subsidy is within the +/- 20% of the average cost of supply,
the same cannot be faulted.
48. The learned Counsel for the Distribution Licensee has made the
following submissions in justification of the impugned order:
(a) Although the State Commission in the Impugned
Order calculated the average cost of supply at Rs. 5.87 per
unit, however, the State Commission has only permitted
recovery of Rs. 4.51/unit, which is 77% of the average cost
of supply
(b) From the perusal of Table 9.3 of the Impugned Order,
it is evident that all the consumer categories are within the
40
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
range of +20% of the average cost of supply except three
consumer categories which are below 20% of the average
cost of supply.
(c) Appellant's category is within 20% range as
prescribed under National Tariff Policy and it should not
have any grievance on this count as it is not aggrieved by
the Impugned Order.
49. We have carefully considered the submissions made by both the
parties. The main argument of the Appellant is that the tariff of
the some of the subsidized consumers is less than 80% (-20%)
of the average cost of supply.
50. On the other hand, the Respondents have contended that so
long as the tariff of the Appellant's category is within +20% of the
average cost of supply, the Appellant cannot have any
grievance.
51. It is not disputed that the Appellant is within+20% of the average
cost of supply. However, the contentions of the Appellants is
misplaced to the extent that if the tariff of all the subsidized
categories is brought within -20% i.e. increased to bring it within
80% of the average cost of supply, then the tariff of the
subsidizing categories would have to be reduced
correspondingly. This contention could be true if the tariff of all
the subsidized categories is less than 80% of the average cost
of supply. In the present case the tariff of only 3 categories of
41
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
subsidised consumers was less than 80%. The Tariff of other
subsidised categories was higher than 80% of average cost of
supply. Any additional revenue received by virtue of increase in
tariff of the said 3 categories could be adjusted among other
subsidized categories without affecting the tariff of the Appellant
category.
52. This Tribunal in its judgment in Appeal no. 135 of 2010 (Polyplex
Corporation Vs Uttarakhand Commission) has held that
"The Tariff Policy postulates that the category-wise subsidy
has to be within ± 20 % of average cost of supply by the
end of the year 2010-2011 and not the tariff for each and
every consumer that is to say, if the tariff for subsidizing
category is already within 120% of the cost of supply, the
cross subsidy must not be increased beyond that point, and
may or may not be reduced further."
53. This ratio is equally applicable to the present set of facts. The
question is decided accordingly.
54. Fourth Issue is related to non-recovery of past surpluses of
the Transmission Licensee.
55. In the light of this Tribunal's Judgment dated 9.4.2013 in Appeal
No.242/2012 directing the State Commission to carry out truing
up of accounts up to FY 2009-10 and adjust the
surplus/differences in the ARR of the transmission licensee of
the FY 2013-14, the Appellant has not pressed this issue
56. The fifth issue is regarding the Power Purchase cost and other
42
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
cost in excess of the legitimate claims and allowing supply
of bulk power to Torrent Power - a franchisee at a price
below the bulk power purchase price.
57. The learned Counsel for the Appellant has made the following
submissions on this issue:
(a) The State Commission has allowed exaggerated
power purchase costs to the Distribution Licensees. The
Distribution Licensees are purchasing high cost power on
short term basis without proper planning and without
entering into long term PPAs at competitive rates. The State
Commission ought to have initiated an enquiry into such
power purchase by the Distribution Licensees and held
against them for excess power purchase cost.
(b) One of the Distribution Licensees - Dakshin anchal
Vidyut Vitran Nigam Limited has given a franchisee in the
Agra area which has been given to Torrent Power Limited.
The bulk supply price fixed by the State Commission for
purchase of power by the distribution licensees is Rs. 2.64
per unit for FY 2011-12 and Rs. 3.75 per unit of FY 2012-13
and the same is being supplied to Torrent Power Limited at
Rs 1.54 per unit for FY 2010-11, Rs. 1.55 per unit for FY
2011-12 and Rs.1.71 per unit 2012-13, Therefore, the
consumers in all other areas are cross subsidizing the
supply of power by Dakshinanchal Vidyut Vitran Nigam
43
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Limited to Torrent Power Limited.
(c) The issue is not with regard to the power of the
Distribution Licensee to appoint a franchisee but that if a
franchisee is given by a Distribution Licensee in its area of
operation, why should the consumers of the other
Distribution Licensees bear the tariff burden on account of
supply of cheaper power by one of the Distribution
Licensees to the franchisee.
(d) The Rosa Power Plant was commissioned on 12
/13.3.2010. However, the necessary transmission
evacuation facility (220 KV line) was not available due to the
mistakes of the distribution licensee / transmission
licensee/Rosa Power Supply Co. Ltd and the power could
not be evacuated from the COD of Rosa Power Plant on
13.3.2010 for a period of 6 months till the transmission
facility came. The power generated by Rosa in these 6
months was supplied to nearby rural areas. The licensees
received fix amount per month from such consumers. The
balance amount (i.e. the difference between the tariff paid to
Rosa and fix charges recovered from rural consumers)
cannot be passed on to the consumers.
(e) Rosa Power is one of the generating companies
having entered into a PPA with the Holding Company for
supply of power to the consumers in the State of Uttar
44
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Pradesh. Any money excess paid to or recovered from Rosa
Power will necessarily be a pass through in tariff and
therefore, becomes a tariff issue.
58. In reply to above submissions, the learned counsel for the State
Commission has made the following submission:
(a) The aforesaid argument is irrelevant and immaterial
since in determining the ARR of the distribution licensee the
cost of power purchased by the licensee is the same. The
revenue realized by the licensee is calculated at the rate at
which energy is sold to the consumer, whether by the
licensee directly or through its franchisee. Hence, the rate at
which the franchisee draws power from the licensee is
immaterial for the purpose of ARR determination of the
licensee.
(b) In calculating the revenue of the licensee it is only the
rate which the consumer ultimately pays which would be
taken into account for determining the revenue in the ARR.
Hence, whatever may be the transaction between the
distribution licensee and the franchisee will not alter in any
way the ARR of the licensee as a whole.
(c) The Appellant has also been unable to establish as to
how the ARR has in any way been impacted by the so called
difference in rates as mentioned above.
45
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
59. The learned Counsel for the Distribution Licensees has made
the following submissions:
(a) The bulk supply price of Rs. 2.64 per unit has been
fixed for the distribution licensee. The Discoms are unable to
recover the bulk supply price of Rs. 2.64 per unit and are
incurring heavy losses. The distribution in Agra was
recovering only Rs. 1.27 per unit.
(b) In order to mitigate the situation, DVVNL initiated
bidding process for identifying the Franchisee on the Input
based Model, i.e., the franchisee will buy the electricity from
the utility and shall pay the energy charges to the utility at a
pre-determined rate. The franchisee will have to collect
revenues from the consumers through raising bills so as to
have sustainable commercial operation. The Torrent Power
among all the bidders quoted the highest rate of Rs. 1.54 per
unit for the first year and consequent increase every year.
Accordingly, DVVNL entered into agreement with Torrent to
operate as their franchisee.
(c) The payment made by Torrent Power Ltd a franchise
of DVVNL is based on Input unit on the basis of agreement
entered into between Torrent Power Ltd and DVVNL.
46
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(d) The Hon'ble High Court of Bombay, Nagpur Bench in
its judgment dated 12.02.2008 in W.P. No. 3701 of 2007;
Citizen Forum Maharashtra Vs state of Maharashtra
(Paras 45-51) has upheld the power of distribution licensee
to appoint distribution franchisee for the benefit of
consumers.
(e) The delay in commissioning of Transmission lines
relates FY 2009-10 and UP Transmission Licensee and the
said issue cannot be raised in the present Appeal relating to
Discoms.
60. We have carefully considered the submissions made by both the
parities. The crux of the submissions made by the Appellant is
that the Franchisee is being supplied power at rate lower than
the bulk supply rate of the Distribution Licensee itself. The
shortfall in the revenue of the licensee is to be recovered from
the consumers of the Licensee in the remaining area to meet its
ARR.
61. According to the Appellant, the State Commission has allowed
higher power purchase cost to the Distribution Licensees.. It is
further stated that the distribution licensees are purchasing high
cost power on short term basis without proper planning and
without entering into long term PPAs at competitive rates. But
the State Commission has failed to initiate an enquiry into such
power purchase by the distribution licensees.
47
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
62. According to the State Commission the ground urged by the
Appellant is irrelevant and immaterial since in determining the
ARR of the distribution licensee, the cost of power purchased by
the licensee is the same and hence, the rate at which franchise
draws power from the licensee is immaterial for the purpose of
ARR determination of the licensee.
63. The reply statements of the Respondent including the State
Commission are not only evasive but also not to the core of the
issue raised by the Appellant.
64. On going through the impugned order it is clear that the State
Commission has allowed the power purchase cost as claimed by
the distribution licensee without considering the following salient
aspects.
" i) One of the Distribution Licensees - Dakshin anchal Vidyut
Vitran Nigam Limited has given a franchisee in the Agra area
which has been given to Torrent Power Limited. The bulk supply
price fixed by the State Commission for purchase of power by
the distribution licensees is Rs.2.64 per unit for FY 2011-12 and
Rs.3.75 per unit of FY 2012-13 and Rs. and the same is being
supplied to Torrent Power Limited at Rs.1.54 per unit for FY
2010-11, Rs.1.55 per unit for FY 2011-12 and Rs.1.71 per unit
2012-13, Therefore, the consumers in all other areas are
subsidizing the supply of power by Dakshin anchal Vidyut Vitran
Nigam Limited to Torrent Power Limited.
48
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
ii) The Rosa Power Plant was commissioned on 12/13.3.2010.
However, the necessary transmission evacuation facility (220KV
line) was not available due to the mistakes of the distribution
licensee/transmission licensee/Rosa Power Supply Co. Ltd and
the power could not be evacuated from the COD of Rosa Power
Plant on 12/13.3.2010 for a period of 6 months, when the
transmission facility came and maximum power generated by
Rosa supply to nearby rural area in 6 months were licensees
received fix amount per month from such consumers. This
amount can not be passed on to the consumers. This aspect
was raised by the Appellants but no finding has been given by
the State Commission.
65. The finding of the State Commission is only this:-"C) The
Commission's view: - 3.8.6 The Commission notes that M/s
Torrent Power Ltd has been appointed input based franchisee
by the licensee."
66. According to the distribution licensee, since the Torrent Power
was chose as a input based franchisee which was improving
recovery of the prices in a particular franchisee area and the
franchise arrangement has been approved by the High Court of
Bombay in W.P. No.3701 of 2007 and therefore there is nothing
wrong in appoint Torrent Power as a franchisee. This contention
by the Distribution Licensee is not relevant. The issue raised by
the Appellants is not with reference to the power of the
distribution licensee to appoint a franchisee. The real question
49
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
arises is this - "When a franchisee has been given by the
distribution license in its area of operation, who should the
consumers of the other distribution licensees bear the tariff
burden on account of supply of cheaper power by one of the
Distribution Licensees to the franchisee?"
67. The contention of the Appellant appears to be attractive at first
rush of blood. But there is something deeper. The issue in the
present case can be addressed simply by saying that the
Commission did not allow the Licensee to recover its full ARR.
The approved average revenue recovery rate through tariff is
only 77% of the average cost of supply. Thus, the Commission
has left huge gap including the loss suffered due to lesser tariff
to the franchisee.
68. Let us tackle the issue from the root to settle it for once and all.
69. The Licensee gathers power to distribute electricity in its area of
supply through another person (Franchisee) from 7th Proviso to
section 14 of the Act reproduced below:
Provided also that in a case where a distribution licensee
proposes to undertake distribution of electricity for a
specified area within his area of supply through another
person, that person shall not be required to obtain any
separate licence from the concerned State Commission
and such distribution licensee shall be responsible for
distribution of electricity in his area of supply:
70. The question arises as to why a licensee should appoint a
franchise for a particular area. The licensee control large area
50
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
of supply. Some areas within its area of supply have higher
losses than the average loss. The licensee may deem it fit to hand
over such an area, where system losses are higher than the average
losses in his area of supply to some franchise. It is to be noted that
when losses are higher, the average revenue recovery rate would
have to be lesser than average revenue recovery rate of the licensee.
The franchise is expected to purchase power from the licensee
and supply to the consumers at the same tariff fixed for other
areas of the licensee. The franchise has to incur capital
expenditure to reduce the losses to make the franchise business
workable. If the franchise purchase power at average power
purchase cost of the licensee and supply at tariff applicable to
other areas, the franchise business will never become viable.
71. There are many models of appointing the Franchisee and one of
such model is 'on the basis of Input costs'. Under this model the
Franchisee is sold electricity by the licensee at certain
predetermined rate and the franchisee distributes the electricity
in its area and recovers the costs at price not more than retail
tariff of the Licensee. The Franchisee is responsible for the
reduction of losses. The areas given to it for distribution is high
loss area. The franchisee would earn profit only if he is able to
reduce the losses to a certain level else he would suffer loss.
72. The average revenue recovery rate of Agra was only Rs 1.27
per unit. The bulk supply rate for the licensee was Rs 2.64 per
unit. Thus, the licensee was suffering a loss of Rs 1.37 per
51
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
unit to supply power in this area. Accordingly, the consumers of
other areas would have been subsidizing this amount. With the
appointment of a Franchisee at Bulk supply rate of Rs 1.54 per
unit, the cross subsidisation by the consumers of other areas
gets mitigated by 27 paise per unit.
73. Accordingly, the issue is decided against the Appellants
74. With regard to Rosa Power, it was contented that this is not a
tariff related matter. Rosa Power is one of the generating
companies having entered into a PPA with the Holding Company
for supply of power to the consumers in the State of Uttar
Pradesh. Any money excess paid to or recovered from Rosa
Power will necessarily be a pass through in tariff and therefore it
becomes a tariff issue. In fact, this aspect was raised by the
Appellant before the State Commission but no finding was given
by the State Commission. Therefore, since the issue has not
been decided by the State Commission it requires re-
consideration by the State Commission and to decide the issue
afresh.
75. Other issues raised by the Appellant are of minor nature and
would have no impact on the tariff. Therefore, these issues are
of no consequences.
76. In addition to the above issues, the Appellants in Appeal No 11
of 2013 and 12 of 2013 have raised following additional points to
52
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
our consideration.
i. Estimation of unmetered supply in impugned tariff
order based on the circular of UPPCL instead of
ascertaining the sales forecast as per Tariff
Regulations, 2006.
ii. In absence of the fixed assets register, depreciation
allowed arbitrarily on ad hoc basis without any
verification as to actual use and existence fixed
assets.
iii. T&D loss allowed to be 28.75% against the estimated
26.96% without any rational and basis.
77. We shall now take up each of the above issues one by one. The
first issue for our consideration is related to estimation of
unmetered supply in impugned tariff order based on the circular
of UPPCL.
78. The learned Counsel for the Appellant asserted that for the
purpose of estimating the unmetered supply, the Commission
has utilized a circular of the UPPCL as the basis. After
enactment of Electricity Act, 2003 a circular of the UPPCL
cannot be binding on the Commission.
79. Refuting the contentions of the Appellant, the learned Counsel
for the commission made elaborate submissions as under:
53
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(a) There is nothing in the Impugned Tariff Order which
suggests that the Circular of the UPPCL is binding on the
Commission. Merely because the Commission uses a
particular circular as the basis of estimating the unmetered
sales, it does not mean that such circular is binding on the
Commission.
(b) If the Appellant's argument were accepted, merely because
a quasi-judicial or judicial forum accepts an argument of a
party, it must be deemed that the argument is binding on
such party. It is submitted that such could never be the case.
(c) However, without a latest / recent study available the
question that arises is how does the Commission estimate
unmetered sales without the normative values? Further, how
can it proceed to estimate revenue of the unmetered
category / sub-category of consumers without the normative
values.
(d) In the prevailing circumstances, the Commission used the
only normative standard available - i.e the UPPCL Circular.
(e) The Commission has however time and again directed the
State Distribution Licensees to get the study done to arrive
at the latest normative values for all unmetered consumer
categories.
(f) The Commission has subsequently done the true up of
54
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
period FY 2000-01 to FY 2007-08, but have not anlaysed the
revenue received from each category as the data was not
available. As the first year (base year) under UPERC Tariff
Regulations was FY 2007-08 hence the Commission order /
directed the licensees to provide category and sub-category
wise revenue data. In order to obviate the possibility of the
utilities loading theft on the unmetered category of
consumers. Hence, it would not be proper to calculate the
normative values from the audited figures but a proper study
is required for the same to get the correct values / figures.
80. The learned Counsel for the 3rd Respondent DISCOMS made
following submissions.
(a) The 3rd Respondent has filed its Annual Revenue
Requirement/Tariff Petition for FY2012-13 on 21.02.2012
as per methodology prescribed in the Tariff Regulations,
2006. The Tariff Regulations provides that ARR Petition
shall contain details of the estimated expenditure and the
expected revenue that Distribution Licensee projects that it
will recover/incur in the ensuing Financial Year at the
prevailing tariff. For estimation of revenue for ensuing year,
sale forecasts are required. Licensee in its petition has
submitted sale forecast for different categories of
consumers. In the sale forecast licensee has estimated
sale for the unmetered category of consumers on the basis
of norms fixed by Uttar Pradesh Power Company Limited
55
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
(UPPCL) in 2001 before unbundling of erstwhile State
Electricity Board. The Circular No. 2649/CUR/L-1 dated
20.07.2001 was issued by UPPCL to cope up with the problem
to assess the energy consumed by various categories of
unmetered consumers to account these units in its commercial
reports. The circular further states that if meters are installed
then only metered consumption shall be recorded in
commercial reports. After formation of distribution companies,
the same rationale is being used for accounting unmetered
consumers in their respective areas. The Commission has also
adopted the same norms for its projection as is evident from
tariff order. Moreover, no fresh study has been carried out to
revise the norms, as such licensee is relying on the norms
fixed in 2001.
(b) The Respondent files all the data along with its ARR Petition
before the Commission and the Commission approves the
ARR after due prudence check. The Commission in its Tariff
order dated 19.10.2012 after due consideration has found the
norms contained in the UPPCL aforesaid letter dated
20.07.2001 prudent and therefore, adopted the same.
81. In the light of rival contention of the parties we shall now discuss the
issue
82. The issue of unmetered supply is not restricted only to the State
of Uttar Pradesh but is prevalent in every State throughout the
country especially in the agriculture sector. The Commission
56
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
has to adopt some normative value for estimation of the
unmetered supply. In the absence of any scientific study made
available to the Commission, the Commission has adopted the
norms available at that relevant time. The Commission had been
directing the distribution licensees to carry out study done for
accurate estimation of consumption by unmetered supply. We
accept the submissions made by the Commission and do not
intend to interfere with the impugned order at present. However,
we feel that the important issue cannot be postponed indefinitely
at the hands of distribution licensees. We direct the Commission
to get the required study done by itself through some expert
consultant in a fixed time frame.
83. Next issue for our consideration is related non availability of
Fixed Asset Registers.
84. The learned Counsel for the Appellant submitted that the
Commission have been approving the depreciation in an
arbitrary manner in the absence of Fixed Asset Registers. The
Commission is expected allow depreciation on the book value of
the assets in use which cannot be done in the absence of FAR.
85. The learned Counsel for the Commission submitted that The
Commission has repeatedly in the past and even in the present
impugned order directed the licensee to maintain the Fixed
Assets Register. Even in the impugned order the Commission
has passed the same direction.
57
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
86. The Commission in its Order dated 18.05.2012 recorded the
submissions of the representatives of Discoms that they had
already engaged an agency for the purpose and the work of
streamlining the Fixed Register. Subsequently, in the Impugned
Order the Commission has directed the Discoms to prepare a
fixed asset register and detailed report as to how the Discoms
are maintaining fixed asset register. The Discoms are
endeavouring to complete the process of creating fixed asset
register.
87. The issue raised by the Appellants is an important issue. Fixed
Asset Register is the very foundation of the distribution business.
The parameters such as Return on Equity, depreciation etc
depends on the entries made in the Fix Asset Register. The
Commission has been giving directions to the distribution
licensee to prepare the Fixed asset Register. In the light of
categorical submission made by the Respondent Discom that
they are endeavouring to complete the process of creating fixed
asset register, we do not intend to interfere with the impugned
order. However, we direct the Commission to fix a time frame for
creating the Fix Asset Register by all the licensees under its
jurisdiction.
88. The third and last issue raised by the Appellant in these appeals
is related to distribution losses considered by the Commission.
89. The primary argument of the Appellant appears to be that the
58
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
Commission could not have approved a T&D loss higher than
what was proposed by the licensee.
90. Under the Scheme of the Electricity Act, the Commission is a
Regulator. In exercise of its powers as a Regulator, the
Commission is not bound by the proposals of the licensee. If the
licensee proposes a figure (of any cost item) that the
Commissions feel is too high, the Commission may reduce it.
Equally, if the Commission feels that the licensee has
underestimated a cost item, it may approve a higher number.
91. There is no principle of regulatory jurisprudence that the
Commission must always approve a figure lower than what the
licensee proposes. Ref in this regard may be had to the
Judgment of the Supreme Court of India in V. S. Rice Oil Mills
ltd Vs State of Andhra Pradesh - (1964) 7 SCR 456; in the
following terms:-
"15........................On the other hand, if the words used
in Section 3 (1) are not reasonably capable of the
construction for which the appellants contend, then it
would be unreasonable and illegitimate for the Court to
limit the scope of those words arbitrarily solely for the
purpose of establishing harmony between the
assumed object and the scheme of the Act. Therefore, it
is necessary to examine the words used in Section 3 very
carefully. Let us first read Section 3 (1):
"The State Government so far as it appears to them to
be necessary or expedient for maintaining,
59
Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013
increasing or securing supplies of essential
articles or for arranging for their equitable
distribution and availability at fair prices may, by
notified order, provide for regulating or prohibiting
the supply, distribution and transport of essential
articles and trade and commerce therein."
Sub-Section (2), provides that without prejudice to the
generality of the powers conferred by sub-section (1),
an order made there under may provide for objects
specified in clauses (a) to (k). The majority of these
objects may not be applicable to the State, while
conceivably, some may be applicable to it."
...
20. Then it was faintly argued by Mr Setalvad that the power to regulate conferred on the respondent by Section 3 (1) cannot include the power to increase the tariff rate; it would include the power to reduce the rates. This argument is entirely misconceived. The word "regulate" is wide enough to confer power on the respondent to regulate either by increasing the rate, or decreasing the rate, the test being what is it that is necessary or expedient to be done to maintain, increase, or secure supply of the essential articles in question and to arrange for its equitable distribution and its availability at fair prices. The concept of fair prices to which Section 3 (1) expressly refers does not mean that the price once fixed must either remain stationary, or must be reduced in order to attract the power to regulate. The power to regulate can be exercised for ensuring the payment of a fair price, and the fixation of a fair price would inevitably depend upon a consideration of all relevant and economic 60 Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013 factors which contribute to the determination of such a fair price. If the fair price indicated on a dispassionate consideration of all relevant factors turns out to be higher than the price fixed and prevailing, then the power to regulate the price must necessarily include the power to increase so as to make it fair. That is why we do not think Mr Setalvad is right in contending that even though the respondent may have the power to regulate the price to which electrical energy should be supplied by it to the appellants, it had no power to enhance the said price. We must, therefore, hold that the challenge to the validity of the impugned notified orders on the ground that they are outside the purview of Section 3 (1) cannot be sustained."
92. In the light of above, the issue is decided against the Appellants.
93. Summary of the findings
(a) Now it is clarified by the learned Counsel for the State Commission that the directions of this Tribunal in Appeal No.121 of 2010 have been complied with and audited accounts up to the Financial Year 2010-11 have now been furnished to the State Commission. It is also submitted that the Distribution Licensee has already submitted the true-up petition for the years 2008-09 to 2010-11. The learned Counsel for the State Commission also pointed out that the State Commission has already issued true-up orders up to the Financial Year 2008. In view of the above submissions made by the learned Counsel for the Respondents, we are unable to hold that 61 Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013 our directions issued in Appeal No.121 of 2010 have not been complied with by the State Commission. This point is accordingly decided as against the Appellant.
(b) Admittedly, the State Commission is expected to act transparently without any delay as per section 86(3) of the Act. The State Commission while taking the process in a transparent manner has to issue the tariff order within time limit otherwise this would be questioned before this Tribunal which in turn would comment negative remarks against the State Commission. Therefore, the State Commission has to finish the process of tariff determination and issue the tariff order on the basis of the available information collected during the course of the process. The transparency cannot mean that all the consumers are to be involved at every step of tariff determination. Accordingly, this issue is decided as against the Appellant.
(c) As pointed out by this Tribunal, in its judgment in Appeal No. 240 of 2010 Section 93 of the Act would not allow the proceedings of the Commission invalidated merely because there is a ground of existence of any vacancy or defect in the constitution of the appropriate Commission. The ratio of this case would squarely apply to the present case also. Consequently, we have to hold that there is no irregularity in the procedure 62 Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013 adopted by the surviving two members in signing the tariff order that too after the Chairman's appointment was set aside by the Hon'ble Supreme Court. Accordingly, this issue is decided as against the Appellant. Accordingly, this issue is decided as against the Appellant.
(d) This Tribunal in its judgment in Appeal no. 135 of 2010 (Polyplex Corporation Vs Uttarakhand Commission) has held that the Tariff Policy postulates that the category- wise subsidy has to be within ± 20 % of average cost of supply by the end of the year 2010-2011 and not the tariff for each and every consumer that is to say, if the tariff for subsidizing category is already within 120% of the cost of supply, the cross subsidy must not be increased beyond that point, and may or may not be reduced further. This ratio is equally applicable to the present set of facts. The question is decided accordingly. Accordingly, this issue is decided as against the Appellant.
(e) The average revenue recovery rate of Agra was only Rs 1.27 per unit. The bulk supply rate for the licensee was Rs 2.64 per unit. Thus, the licensee was suffering a loss of Rs 1.37 per unit to supply power in this area. Accordingly, the consumers of other areas would have been subsidizing this amount. With the appointment of 63 Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013 a Franchisee at Bulk supply rate of Rs 1.54 per unit, the cross subsidisation by the consumers of other areas gets mitigated by 27 paise per unit. Accordingly, this issue is decided as against the Appellant.
(f) Rosa Power is one of the generating companies having entered into a PPA with the Holding Company for supply of power to the consumers in the State of Uttar Pradesh. Any money excess paid to or recovered from Rosa Power will necessarily be a pass through in tariff and therefore it becomes a tariff issue. In fact, this aspect was raised by the Appellant before the State Commission but no finding was given by the State Commission. Therefore, since the issue has not been decided by the State Commission it requires re- consideration by the State Commission and to decide the issue afresh. Accordingly, this issue is decided in favour of the Appellant.
(g) The issue of unmetered supply is not restricted only to the State of Uttar Pradesh but is prevalent in every State throughout the country especially in the agriculture sector. The Commission has to adopt some normative value for estimation of the unmetered supply. In the absence of any scientific study made available to the Commission, the Commission has adopted the norms available at that relevant time. The Commission had 64 Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013 been directing the distribution licensees to carry out study done for accurate estimation of consumption by unmetered supply. We accept the submissions made by the Commission and do not intend to interfere with the impugned order at present. However, we feel that the important issue cannot be postponed indefinitely at the hands of distribution licensees. We direct the Commission to get the required study done by itself through some expert consultant in a fixed time frame. Accordingly, this issue is decided as against the Appellant.
(h) The issue raised by the Appellants is an important issue. Fixed Asset Register is the very foundation of the distribution business. The parameters such as Return on Equity, depreciation etc depends on the entries made in the Fix Asset Register. The Commission has been giving directions to the distribution licensee to prepare the Fixed asset Register. In the light of categorical submission made by the Respondent Discom that they are endeavouring to complete the process of creating fixed asset register, we do not intend to interfere with the impugned order. However, we direct the Commission to fix a time frame for creating the Fix Asset Register by all the licensees under its jurisdiction. Accordingly, this issue is decided as against the 65 Appeal No.239, 240,241,243 of 2012, Appeal No.11,12 & 160 of 2013 Appellant.
(i) There is no principle of regulatory jurisprudence that the Commission must always approve a figure lower than what the licensee proposes. Ref in this regard may be had to the Judgment of the Supreme Court of India in V. S. Rice Oil Mills ltd Vs State of Andhra Pradesh - (1964) 7 SCR 456. Accordingly, this issue is decided as against the Appellant.
94. In view of our findings, these Appeals are partly allowed. The State Commission is directed to pass the consequential orders in the light of our finding referred to above, after hearing the parties.
95. However, there is no order as to costs.
(V J Talwar) (Justice M. Karpaga Vinayagam)
Technical Member Chairperson
Dated: 28th Nov, 2013
√REPORTABLE/NON-REPORTABALE
66