Disposed

Shree Jayalakshmi Power Corporation Limited Registered Office. Tobacco Colony v. Andhra Pradesh Central Power Distribution Corporation Limited (Apcpdcl)

Andhra Pradesh HC1 Sept 2021WP/18332/2021

Case brief

AI extract

What is this about?

This order in Writ Petition No.18332 of 2021 held the matter fit for recall to deal with fresh materials submitted by the Petitioner. The Court disposed of the petition granting liberty to the Petitioner to file a verified representation with detailed particulars within two days. Upon receipt, the respondents are directed to act strictly in accordance with law after affording the Petitioner an opp

What did the court decide?

Liberty granted to the Petitioner to file a verified representation with particulars of material within two days for final adjudication by the Court.

Shree Jayalakshmi Power Corporation Limited… — Writ and Judicial Review | Andhra Pradesh HC (2021)

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THE HON'BLE SRI JUSTICE A.V.SESHA SAI

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WRIT PETITION No.18332 OF 2021

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ORDER:

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This Writ Petition is filed, under Article 226 of the Constitution of India, for the following relief:

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“ to issue a writ direction or order or orders more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in levying and demanding differential wheeling charges cross subsidy surcharge on the energy generated and wheeled by the Petitioner under the provisions of the Power Wheeling and Purchase Agreement dated 03.09.1998 and the revised agreement dated 19.01.2005 purported to be basing on the Tariff Orders of the APERC vide Lr.No.CGM R&IA/GMR/AO/AAO/HT/F.No.WC/ D No 259/20 dated 29.05.2020 Lr.No.CGM/F/GM/R&IA/SAO/R&IA/AAO/HT/ JAO/ HT/D.No.771/20, dated 05.01.2021, Lr.No.CMD/D/T/D/ FIN/CGM/F/GM/R&IA/SAO/R&IA/AAO/HT/JAO/HT/D.No.1072 /21 dated 05.03.2021 Lr.No.SE/0/GNT/SAO/ JAO/HT/A1/ D.No.419/21 dated 15.03.2021of the Respondents as arbitrary illegal without jurisdiction and contrary to the Tariff Orders of the APERC and the notification issued by Union of India vide the Electricity Removal of Difficulties Second Order 2005 dated 08.06.2005 provisions of the Electricity Act 2003 besides being unconstitutional and violative of the rights guaranteed under Articles 14 and 19(1) (g) of the Constitution of India and consequently set aside the same”.

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Petitioner herein is a company incorporated under the provisions of the Companies Act, 1956 and it established a Mini-Hydal plant on Addanki Branch canal of Nagarjunasagar Right Canal. Petitioner herein entered into Power Wheeling and Purchase Agreement (PWPA), dated 03.09.1998, with the A.P.State Electricity Board and the said agreement was later amended on 19.01.2005, and as per the PWPA, the Wheeling Charges were fixed at 2%. Pending the said agreement, the

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AVSS,J W.P.No.18332 of 2021

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A.P.Transco approached the A.P.Electricity Regulatory Commission (APERC) by way of filing O.P.No.510 of 2001 and batch against the private generators, seeking enhancement of the Wheeling Charges. The APERC vide orders, dated 24.03.2002, fixed the Wheeling Charges leviable from 01.04.2002 at 28.4% in kind plus Rs.0.54 ps per KWH on gross generation of Units. Petitioner and certain others challenged the said orders of the APERC, dated 24.03.2002, by way of filing W.P.No.4770 of 2002 and batch. By way of a judgment, dated 18.04.2003, the composite High Court of A.P., allowed the said batch of Writ Petitions and has set aside the orders of the APERC, dated 24.03.2002. In the said judgment, the composite High Court held that the APERC had no jurisdiction to determine Wheeling Charges and the Power Wheeling Purchase Agreements would prevail.

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The A.P.Transo carried the said matter to the Hon’ble Apex Court by way of filing S.L.P.No.9397 of 2002 & batch and, according to the petitioner, pending the said cases, petitioner herein paid the Wheeling Charges as per the PWPA. Eventually, the Hon’ble Apex Court, vide judgment, dated 29.11.2019, allowed the said Special Leave Petitions and restored the orders of the APERC, dated 24.03.2002.

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Pursuant to the judgment of the Hon’ble Apex Court, referred to supra, the Chief General Manager-third respondent herein issued a letter, dated 29.05.2020, asking the petitioners to pay a sum of Rs.15,83,98,313/- towards Wheeling Charges

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AVSS,J W.P.No.18332 of 2021

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and cross subsidy charges. Thereafter, the Chairman & Managing Director of the respondent-APCPDCL issued a revised demand notice for Rs.11,18,75,453/- towards Wheeling Charges and cross subsidy charges and the first respondent issued a reminder on 05.03.2021 and finally the Superintending Engineer-second respondent herein issued a notice, dated 15.03.2021, demanding a sum of Rs.11,18,75,453/- from the petitioner.

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According to the learned counsel for the petitioner, the issue in the present Writ Petition pertains to the liability of the petitioner herein to pay the Wheeling Charges for the period 2014-2015 to 2018-2019 and the cross subsidy surcharge from the year, 2003.

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It is contended by Sri N.V.Sumanth, learned counsel for the petitioner, that as per the tariff order, dated 09.05.2014, issued by the APERC, no Wheeling Charges are leviable on NonConventional Energy generators, using wind, solar and MiniHydal sources. According to the learned counsel, contrary to Clause (iii) of the said Transmission Tariff Order, dated 09.05.2014, respondents have included this period also in the impugned demand. Coming to the aspect of cross subsidy surcharge of Rs.3,54,40,323/-, as demanded vide letter, dated 29.05.2020, it is contended by the learned counsel for the petitioner herein that as per the Electricity (Removal of Difficulties) Second Order, 2005, no surcharge would be required to be paid, having regard to the exemptions granted by

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AVSS,J W.P.No.18332 of 2021

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virtue of Clause (2) of the said order. It is also brought to the notice of this Court by the learned counsel for the petitioner that the issue pertaining to the surcharge fell for consideration before the Appellate Tribunal in Appeal Nos.210 and 112 of 2006 and I.A.No.82 of 2006 and I.A.No.87 of 2006, at the instance of one M/s Vandana Vidyut Limited against Chattisgarh State Electricity Board, Rajpur. It is further brought to the notice of this Court by the learned counsel that the Appellate Tribunal, while setting aside the orders passed by the Chattisgarh Electricity Regulatory Commission, directed the State Commission to approve the list to whom the appellant therein proposed to supply energy from its generating plant from time to time without insisting on payment of surcharge under Proviso to Section 42 (2) of the Electricity Act, 2003 during the currency of PPA, dated 02.09.2000.

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According to the learned counsel for the petitioner, contrary to the tariff order, referred to supra, and the Electricity (Removal of Difficulties) Second order, 2005, respondents herein are insisting on payment of the amounts as indicated in the impugned notice. It is also submitted by the learned counsel that the wheeling tariffs as determined by the APERC are required to be published and notified by the A.P.Transco and DISCOMs in terms of sub-Clauses (10) and (11) of the Regulation 45A of the A.P.Electricity Regulatory Commission (Conduct of Business) Regulation, 1999 and it is only thereafter the said tariff comes into operation and has the force of law for

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AVSS,J W.P.No.18332 of 2021

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the licencees to raise any bills on those who avail wheeling services. It is further stated that no such publication was made for the financial years, 2002-2003, 2003-2004, 2004-2005 and 2005-2006 and, as such, the orders passed by the APERC are un-enforceable and non est in the eye of law. It is also brought to the notice of this Court by the learned counsel for the petitioner that the orders of the Appellate Tribunal, referred to supra, were also confirmed by the Hon’ble Apex Court in C.A.No.1367 of 2007.

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Having heard the learned counsel for the petitioner and Sri Y.Nagi Reddy, learned Standing Counsel for the respondentAPCPDCL, and in order to have a quietus for the issue, this Court deems it appropriate to dispose of the Writ Petition giving liberty to the petitioner herein to file appropriate representation before the respondents, furnishing particulars of all the material, which has now been placed before this Court, within a period of two days from today and, if any such representation is made by the petitioner herein, the same be verified and appropriate orders be passed/action be taken, strictly in accordance with law, after taking into account the entire material to be made available by the petitioner herein, within a period of three working days thereafter, after giving opportunity to the petitioner herein.

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