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9. According to the Board, the formula for fuel and power purchase cost adjustment (FPPCA) has been challenged neither in this appeal not in the previous appeal No. 126 of 2008 and 128 of 2008 decided on 26.8.2008. The appellants' sole concern is with respect to the rate at which the Board is required to recover FPPCA charge. But the fact is that upon consideration of material and relevant facts and objections raised by the objectors and upon public hearing the tariff order was passed which provides for formula for FPPCA. The said tariff order dated 26.8 .2008 was challenged in the aforesaid two appeals but the Tribunal dismissed the appeals by the order dated 12.2.2009. In that view of the matter the appellant cannot in the garb of the present appeal seek to challenge the FPPCA formula. In this connection, the rule of the constructive res judicata and also the provision of Order 2 Rule 2 of the Civil Procedure Code has been invoked by the respondent Board. Some decisions of the Hon'ble Supreme Court have been cited on the two aforesaid principles which we will consider at appropriate places of the judgment. In a word it is contended that that the appellant is estopped from raising any challenge to the FPPCA formula in the present proceedings because it was not challenged in the earlier appeal. It was open to the appellant to make such challenge in the earlier appeal. On the question of notice it is contended that there is no requirement of issuance of any prior notice or granting opportunity to file objections before passing the impugned orders in view of the fact that the Commission was not determining tariff but only scrutinizing the authenticity of the computation of the FPPCA rate according to the formula prescribed and approved by it. It is contended that word "specified" does not connote the meaning as given in the Act. Section 62 (4) clearly provides that a tariff cannot be amended more frequently than once in any financial year except with respect to any charges expressly permitted under the terms of any fuel surcharge formula as may be specified by the Regulations. The section does not prohibit the Commission from determining fuel surcharge formula while determining the tariff. As such, the formula cannot be challenged. With regard to the point that the precondition laid down in the tariff order dated 26.8.2008 to the effect that the Board shall submit operational parameters of the power plant after R& M of the plant and seek the approval by the Commission of such parameters it is contended that the Commission in the tariff order dated 26.8.2008 has already fixed the operational parameters for the Board's own generation; as such it is not correct to say now that FPPCA formula is unworkable. Still then the Commission has deducted a sum of Rs.2.31 crore for the period from October 2008 to March 2009, and a sum of Rs.3.76 crore for the period from April 2009 to September 2009 in view of the fact that the Board spent less amount on the head of fuel cost in comparison to what has been approved by the Commission. It is also contended that UI charges are not included and the said UI charges paid by the Board is not on account of grid indiscipline but the same has been paid on account of the fact that the Board's major source of power is the purchase from other agencies like NTPC and NHPC etc. As regards exclusion of power from Nepal, the Commission kept the same out of the purview of the said formula in as much as the rates for supply/purchase of energy to and from Nepal is fixed by the Central Government. Alleged non- communication of the order cannot be a ground to impugne the orders in question and the Board incurred the increased cost for purchase of power from various sources and is entitled to have the cost realized from the consumers. The Board's annual accounts for the period 2008-09 was already approved by the Board and then was submitted to the AG Bihar and then only the Commission approved provisional FPPCA. The annual accounts for 2009-10 are under preparation. The tariff order nowhere precludes the Board from calculating FPPCA charges on the basis of un-audited accounts. FPPCA is only an adjustment on account of variation in fuel cost and power purchase cost which is not an exercise for fixation of tariff which has already been fixed and only the components of FPPCA formula has to be determined for calculation of the rate. The impugned orders are, therefore, not in violation of section 64 and 86(3) of the Electricity Act, 2003 or Regulation 18 and 19 or 21 of the Tariff Regulations. Accordingly the appeal is meritless.

18. Mr. Kailash Vasudev, learned Counsel for the Respondent No. 2, Bihar State Electricity Board submitted at the outset that the appeal itself is not maintainable, it being hit by the principle Order 2 Rule 2, Civil Procedure Code and that of the Constructive Re judicata as laid down section 11 of the Civil Procedure Code in view of the fact that the FPPCA as was vividly laid down in the tariff order dated 26th August, 2008 was so given after prolonged public hearing wherein the appellant was also a participant and the same appellant when assailed the order dated 26th August, 2008 before this Tribunal in the two appeals as said above did not prefer to challenge the FPPCA and confined the appeals only to the four points as it would appear from the judgment of the Tribunal dated 12th February, 2009. Secondly, the concept of natural justice, absence of arbitrariness, maintenance of fair play, maintenance of transparency and objectivity with respect to which Mr. Kapur made a lengthy submission is of no avail in the instant case in view of the fact that the said concept is really not applicable given the nature of statutory duty required to be performed by the statutory authority and it does not lie in the mouth of the appellant to say that it was denied natural justice when it chose not to challenge the FPPCA meaning thereby it admitted the formula which in fact was the outcome of public hearing wherein, as said above, the appellant was present and it made its submissions. It is submitted by the learned Counsel for the Respondent No. 2 that it is not denied that the transparency and objectivity are the hall marks of a decision making body, whether it functions in administrative or quasi-judicial jurisdictions but the provision of section 64 are not at all applicable when the Commission is duty bound to amend the tariff only in respect of changes under the terms of any fuel surcharge formula. The vary word 'formula' which does not find its berth in the impugned order for the first time and which had its origin in the order dated 26th August, 2008 connotes that it is one being the outcome of a mathematical exercise based on a principle made known previously; as such it does not require any public hearing and invitation from the public of objections and comments. Moreover, it is not the case of the appellant that formula was not discussed in the public hearing or that it was precluded from challenging the formula or that the formula by itself is defective. In a word formula as such has not been challenged; what has been challenged is the application of the formula with reference to the rate. It is contended by Mr. Vasudev that absence of FPPCA in the regulations is of no serious consequence particularly when it has been laid down in the tariff order upon hearing all concerned. It is the Commission that exercises legislative jurisdiction to frame a regulation and upon framing the regulation it determines the tariff. It is contended that the two impugned orders were displayed on the website of the Commission immediately on pronouncement. It is also contended that the Commission in the order dated 26th August, 2008 had fixed the parameters for Board's own generation and accordingly it cannot be contended that the FPPCA is unworkable. It is also submitted that so far as UI charges are concerned, they are not included in clause IV and the said charges paid by the Board are not on account of grid indiscipline but on account of the fact the Board's major source of power is purchase from certain agencies like NTPC and NHPC etc. Mr. Vasudev refers to the decision in Alka Gupta vs Narinder Kumar Gupta reported in (2010) 10 SCC 141. This decision extensively deals with the provision of Order 2Rule 2 CPC and Explanations III and IV to section 11 of the CPC. We will discuss this decision when we come to the issue. We will also read, as Mr. Vasudev cited, Deva Ram Another Vs Ishwar Chand & Another reported in (1995) 6 SCC 733 which also contains a lengthy discussion on the above two principles. Mr. Vasudev cites a five Bench decision of the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officers' Association Vs State of Maharashtra & Ors. reported in (1990) 2 SCC 715. This is a decision on service jurisprudence. In this lengthy decision our attention has been invited to paragraph 35 of the order which refers to a decision of the Supreme Court in Forward Construction Company Vs Prabhat Mandal (Regd.) Andheri reported in (1986)1 SCC 100. These two decisions lay down the principle that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated.

23. Therefore, what is really objected to is the rate of levy which the Commission fixed at 69 paise / Kwh to its consumers except the KJ/BPL (urban and rural) and private agriculture against the Board's proposal of 83 paise or 112 paise with exemption to BPL(rural or urban), private agriculture and other categories. Learned Counsel for the appellant opposes inclusion of the power purchase cost on account of UI charges. Objection has also been raised to the amount included on account of PGCIL. Transmission & RLDC charges. According to the learned Counsel for the appellant, such inclusion are contrary to the directions contained in the tariff order dated 26th August, 2008 wherein the Commission excluded or disallowed inclusion of any cost increase by way of penalty, interest due to delayed payment etc. and operation inefficiencies in calculation of FPPCA. The submission is that the inclusion of the amount on account of UI charges is not permissible. Reference has been made to the decision of the Hon'ble Supreme Court in Central Power Distribution Co. Ltd. Vs CERC reported in (2007) 8 SCC 197. The submission of the learned counsel for the appellant does not appear to be acceptable because in the Central Power Distribution Company Limited case, it has been held by the Hon'ble Supreme Court that the UI charges are a commercial mechanism in order to maintain grid discipline and the said charges are payable either by the generator or the distributor not adhering to the schedule. In the said decision, it has been categorically held that the UI charges are not to be construed by way of penalty. Now, the UI charges are not included in clause (iv). In the instant cases it does not appear that the charges on account of UI drawal is invariably on account of what is called grid indiscipline. According to the respondent no.2, the Board's major source of power is purchase from different agencies like NTPC and NHPC etc. who sometimes do not supply the full share earmarked for the Board by the Central Government thus compelling the Board to draw in excess of the schedule for the purposes of fulfilling the requirement of its consumers including intensive consumers. By way of an example, it has been pointed out by the learned Counsel for the respondent No.2 that when Board's share is allocated at 25% when there are three units in a generating station and one unit is shut down then also the Board's allocation is confined to 25% by the remaining two units and the balance power has to be made good by the Board by excess drawal for the grid at unscheduled inter exchange charges. Admittedly, the unscheduled interchange is a commercial mechanism for maintaining grid discipline but it is also a tool to induce economic operation. Unscheduled interchange which is detrimental to grid security and leading to uneconomic operation has to be discouraged. However, unscheduled interchange which helps in improving grid frequency and economic operation of the grid cannot be objected to. Be that as it may, UI charges do not amount to penalty and accordingly clause (iv) of the conditions as it appears in the FPPCA formula is not attracted here, as such the basic misgivings of the appellants is repelled. Having considered the submissions of the learned Counsel for the parties, we do not think that on the ground advanced by the respondent No.2 the Commission has committed error in inclusion of UI charges in the FPPCA. It is also brought to our notice that the Board also made profit by sale of electricity under UI category and same has also been taken into account while calculating FPPCA charges. It is to be noted here that the Commission deducted the sale of UI units from the purchased UI units to give due credit to the consumers for sale of energy under UI. Similarly, cost included in respect of both the periods on account of PGICL Transmission & RLDC charges cannot be excluded from the FPPCA as these are reuired to be paid for transmission of power purchased from sources from outside the State. Objection was raised that increase in cost through FPPCA appears to be an ad hoc increase which is not permitted in the law because the impugned orders say that such increase is provisional and subject to final adjustment on audit of annual accounts of the Board for FY 2008-

30. The point for consideration is whether the appellant was entitled to hearing while determining the FPPCA charges. It is the submission of Mr. Kapur that in respect of determination of fuel surcharge the provisions laid down in section 64 are equally applicable. Now, section 64 gives a complete description how a tariff application has to be processed towards making a tariff order. This section speaks of publication of the application which implies inviting objections and suggestions which again implies hearing of the parties likely to be affected and in case the Commission proposes to reject any application opportunity of hearing has to be given to the applicant concerned. In essence, section 64 speaks of natural justice so that arbitrariness is avoided, transparency is maintained, and the persons likely to be affected by any proposed tariff order are heard. So far as section 62 is concerned, it speaks determination of tariff and sub-section ( 4) which is decisive for our purpose is that no tariff or part of any tariff may ordinarily be amended more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified. This sub section (4) clearly permits amendment of tariff or a part of tariff at least once in a financial year. But such amendment more than once is permissible in any financial year only in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified. The two impugned orders are application of fuel surcharge formula on the two applications of the Board. These two applications clearly revealed prayer for FPPCA charges on account of increase of cost of fuel and oil. These two orders are not comprehensive tariff order for any financial year. The tariff order for the year 2008-09 was already passed in compliance with the procedure laid down in section 64. By the two impugned orders there has been increase in the levy of 69 paise per unit and energy consumption by way of FPPCA. It is the fuel surcharge formula which has to be applied while making any changes in the tariff order already passed in respect of any financial year. This sub section makes it clear that the formula has to be applied and that formula has to be made known to all concerned and specified. It is to be noted that the formula in details was formulated in the tariff order dated 26th August, 2008 itself which was passed upon hearing all the parties concerned including the appellant. No objection was raised in earlier two appeals concerning the formulation of the formula, nor such formula is challenged here also. What is challenged is, as we noted earlier, the levy of 69 paise in respect of the unit consumed. Sub section (4) does not contemplate that the procedure laid down in section 64 has to be repeated again for a second time in a financial year when the Commission finds that the changes are necessary only in respect of the increase in fuel and such changes are done and have been done in the instant case in accordance with the formula made known earlier to all concerned. It is the application of formula on the materials and data provided that fuel surcharge is determined. The materials and data were furnished before the Commission by the Board and the same as have been furnished before this Tribunal by the Board have not been challenged as untrue and incorrect. If the formula had been specified in the two impugned orders themselves for the first time then the appellant would have a point to raise. We do not think that when fuel surcharge formula permits change in the tariff order in any financial year and such formula was known to the appellant when the tariff order was passed, the whole exercise as laid down in section 64 has to be repeated. While saying so, we are not oblivious of the section 86 (3) that provides for ensuring transparency while exercising its power and discharging its functions by the State Commission. No amount of transparency is lost when a formula already known through the process of law is applied to determine the fuel surcharge amount in terms of the formula. So far as the Regulations are concerned, the regulations 18 and 20 do not contain anything new , they are merely the reproduction of the provisions of section 64 of the Act. Again, the regulations 21 is the virtual reproduction of the provision of section62(3) of the Act. Regulation 83 again repeats what was said in regulation 21 , and adds something more with which we are not concerned. FPPCA is only an adjustment on account of variation in fuel cost and power purchase cost and the same cannot by any stretch of imagination be said to be an exercise for fixation of tariff. The tariff is already fixed and only the components of FPPCA formula have to be determined for calculation of the rate. Therefore, it cannot be said that for the purpose of determination of the FPPCA rates, public hearing/ inviting objections by the commission is essential.