Between

Andhra Pradesh Power Generation Corporation Ltd.

Vidyut Soudha, Hyderabad.500 082. ... Petitioner

and

1. Central Power Distribution Company of Andhra Pradesh Ltd,

‘Singareni Bhavan’, Red Hills, Hyderabad-500 004

2. Eastern Power Distribution Company of Andhra Pradesh Ltd,

‘Saishakti Bhavan’, Opp.Saraswati Part, Daba Gardens,

Visakhapatnam.

3. Northern Power Distribution Company of Andhra Pradesh Ltd

1-1-503, NIT Main road, Chaitanyapuri, Kazipet,

Warangal-506 004.

4. Southern Power Distribution Company of Andhra Pradesh Ltd,

19-3-13(M), Upstairs, Renigunta Road,

Tirupati-517 501 ... Respondents

This petition coming on for hearing on 16.09.2006 in the presence of Sri K.Gopal Choudary, Advocate, for the petitioner and Sri P.Shiva Rao, Advocate, for the respondents and having stood over for consideration to this day, the Commission delivered the following:

O R D E R

This is Interlocutory Application filed by the petitioner for amendment of the main petition, in O.P.No.27 of 2006.

2. The following are the averments made in I.A.No.12 of 2006:

(a) The petitioner filed O.P. No. 6 of 2006 inter-alia requesting the Commission to allow additional expenditure on account of pay revision, consideration of auxiliary consumption of VTPS at 10% and others and O.P. No. 7 of 2006 seeking in-principle approval of the revised estimated project cost of petitioner’s Srisailam Left Bank Power House (SLBPH) for Rs. 3440.12 crores, and consideration of all these expense items in determination of tariff of the petitioner’s generating stations for supply of electricity to the respondent-distribution licensees/DISCOMs from the year 2006-07 onwards.

(b) In the petition on hand it is stated that Commission directed the petitioners to file station-wise fixed costs, but it is unable to do the same in view of the special circumstances and peculiar nature of the liabilities vested in the petitioner by a statutory transfer scheme notification.

(c) The petitioner has stated that it is constrained to seek a combined consolidated fixed cost in respect of all stations which were in operation or under construction as shown in the statutory transfer scheme as on 01.02.1999. The petitioner has also stated that it needs to explain the nature and the reasons for being unable to make station-wise allocations in the application and to furnish information with respect to such of the costs that could be allocated station-wise and such of those which cannot be so allocated in order that the difficulty may be properly appreciated.

(d) Taking into account the pay revision effects for 2002-03 to 2005-06, SLBPH fixed costs for the pumped mode operation period in 2005-06, carrying compensation for the overdue receivables of around Rs.1200 crores from APTRANSCO (the predecessor-in-interest of the respondents / respondent-DISCOMs, costs and expenses of regulatory proceedings, income tax, making certain necessary and consequential changes to the fuel costs and basis and interest on working capital, it is necessary for the petitioner to revise and amend the petition in O.P.No. 27 of 2006 by substituting paragraphs 10 to 16 of the said petition with paragraphs 10 to 30 of the draft amended petition annexed to this Interlocutory Application and also to substitute the Annexures to the petition in O.P.No. 27 of 2006 with the Annexures appended to the draft amended petition filed with this Interlocutory Application.

(e) Section 64 of Electricity Act, 2003 requires every application for determination of tariff to be published in the manner specified by the Commission. It is necessary for the petitioner to revise and amend the petition in O.P. No 27 /2006 already filed by it for determination of tariff by taking into account all the factors including factors stated in O.P.Nos. 6 and 7 of 2006 and all other issues incidental and ancillary thereto. Therefore, the petition filed for determination of tariff needs amendment.

(f) It is therefore, prayed that the Commission may be pleased to:

i) allow the amendment of the petition in O.P.No. 27 of 2006 by substituting paragraphs 10 to 16 of the said petition with paragraphs 10 to 30 of the draft amended petition annexed to this Interlocutory Application and to substitute the annexures appended to the petition in O.P.No. 27 of 2006 to with the annexures appended to the draft amended petition filed with this Interlocutory Application, and thereafter to file a fair copy of the amended petition and the annexures thereto as per the draft annexed to this Interlocutory Application; and

ii) specify and direct the petitioner to publish the amended petition by notice as per the proposed draft annexed to the petition in two English and two Telugu daily newspapers to be specified by the Commission.

3. On behalf the respondents a common counter was filed. The averments made in the counter are as follows:-

(a) The petition is not maintainable at law as the petitioner wants to amend the original petition by substituting new paragraphs 10 to 30 in place of 10 to 16.

(b) The petitioner by way of amendment wants to introduce totally a new case. The respondents have already filed their counter considering the contentions that were made earlier. Therefore, instead of seeking amendment for introducing large number of paragraphs, the petitioner could have filed a fresh petition. The proposed amendment brings totally a new case and it seems to be based on a communication from the Commission to the petitioner seeking information on station-wise fixed cost. Thus the cause of action, for the proposed new case is different from that of the cause of action on which petition in O.P. No. 27 / 2006 is filed.

(c) As per Clause 56 of the Commission’s Conduct of Business Regulations, 1999, the Commission may at any time amend any defect or error in any proceeding before it. But by way of filing this petition, the petitioner wants to bring out a totally new case which is not permissible under law.

(d) The prayer sought by the petitioner is beyond the scope of the authority of the Commission. When a specific provision is made in the statute, inherent powers cannot be pressed into service. The petitioner earlier had filed its rejoinder to the counter filed by the respondent.

(e) It is incorrect to state that due to the notification of the transfer scheme, the petitioner is unable to find justification for allocation of several liabilities to individual stations. In fact, the said contention is neither relevant nor within the comprehension of the O.P.No.27 of 2006.

(f) It is incorrect to state that in the given circumstances, the petitioner is entitled to seek consolidated fixed costs in respect of all stations, which was either in operation or under construction. It is also incorrect to state that in respect of RTPP-II, provisional station-wise fixed costs on the basis of proportional basis is needed.

(g) For all these reasons, the petition is liable to be dismissed.

4. Heard the counsel for the parties. On 16-09-2006, the learned counsel for the petitioner submitted that the present petition is filed for amending the main petition in O.P.No. 27 of 2006 for furnishing better particulars. The contention of the respondents that the petitioner is bringing new grounds and new case is not correct. Consequent to amendment, total number of paragraphs in the main petition in O.P.No. 27 of 2006 might change, but the same would not cause any prejudice to the respondents. Simply because new paragraphs are sought to be added, does not automatically prevent amendment being carried out to the main petition in O.P.No. 27 of 2006. Amendment to a petition should be normally allowed, except in cases where prejudice is caused to other side, or where the amendments are proposed at too late a stage, when prejudice could have been caused to other side. In this case, proceedings have not yet commenced and therefore, the other side should not have any objection to amendment of the petition in O.P.No. 27 of 2006. Filing fresh petition would set the clock back by six months. For all these reasons, this Interlocutory Application may be allowed.

5. On the other hand, the learned counsel for the respondents stated that in addition to the petition in O.P.No. 27 of 2006, the petitioner also filed two more petitions viz., O.P.No. 6 of 2006 and O.P.No. 7 of 2006 and they are all related. In this Interlocutory Application, the petitioner seeks to introduce about 20 new paragraphs in place of about seven earlier paragraphs. By doing so, the petitioner is bringing in an altogether new case. Instead, the petitioner may withdraw the petition and file a fresh petition with all the required details. For all these reasons, proposed amendment cannot be permitted and this Interlocutory Application may be dismissed.

6. The point that arises for consideration is:

“whether the petitioner is entitled to amend the petition in O.P.No. 27 of 2006”.

7. On 13.11.2005, the petitioner herein filed a petition in O.P.No.6 of 2006 requesting the Commission to consider wage revision commitment of the petitioner in fixing the base O&M expenditure for FY 2003, to net off the energy from generation under Auxiliary Consumption, to allow hydel incentive as agreed to by the Transmission Corporation of Andhra Pradesh Ltd (APTRANSCO) and to allow 10% Auxiliary Consumption for VTPS based on ground realities. Similarly, the petitioner also filed another petition in O.P.No.7 of 2006 for revision of estimated project cost of Srisailam Left Bank Power House (SLBPH) for Rs.3440.12 crs, so as to consider the same for determination of fixed charges component of tariff. Lastly, the petitioner filed an application for determination of tariff for FY 2007 u/s 62 of the Electricity Act, 2003 viz., O.P.No.27/2006. The counsel for the petitioner in all the 3 petitions submitted that the issues in all the three petitions are inter-related. During the course of proceedings in O.P. No. 27 / 2006 in order to provide the format for publication seeking objections/suggestions from the public and other stakeholders, the Commission on 26.05.2006 directed the petitioner to provide station-wise fixed costs as per the directions already issued to APTRANSCO by an order issued by the Commission dated 24.03.2003. Thereafter, on 01-07-2006, the counsel for the petitioner represented before the Commission that discussions are being held by the officers concerned of the petitioner-company on the details to be provided to the Commission with regard to the station-wise fixed costs. But instead of providing the required details, the petitioner has filed the present Interlocutory Application wherein it is stated that the petitioner is unable to provide station wise fixed cost in view of the special circumstances and peculiar nature of the liabilities vested by the transfer scheme.

8. It appears that the petitioner has filed I.A. No. 12 / 2006 to evade providing station-wise fixed costs as directed by the Commission and to circumvent the said direction of the Commission. When the Commission has directed the petitioner to provide the station-wise fixed cost as per the directions issued to APTRANSCO in its Order Dated 24-03-2003, it is not open for the petitioner to state that it is unable to find any method of allocating several liabilities and associated costs to individual stations. Had there been difficulty to provide the station-wise fixed costs as per the directions already issued to APTRANSCO as mentioned in the letter dated 26-05-2006 referred to above, the petitioner could have brought the same to the notice of the Commission by way of written reply. It is surprising that without stating the reasons as to why the petitioner is unable to provide station-wise fixed costs as per the directions already issued to APTRANSCO, the petitioner has submitted that the method of allocating liabilities and associated costs to individual station is difficult to find. Such a stand on the part of petitioner is unwarranted and appears to be an attempt to circumvent the directions issued by the Commission in this regard.

9. The Commission is not inclined to accept the contention of the petitioner that it is unable to find a method of allocating liabilities and associated costs to individual stations. Hence, the Commission is of the opinion that the petitioner is making an effort to bring in a totally new case and the same is unwarranted and cannot be permitted. That apart, the Commission passed orders in favour of the petitioner in I.A.No. 10 of 2006 in O.P.No. 27 of 2006. Even if this amendment is not allowed, no prejudice would be caused to the petitioner in O.P.No.27 of 2006.

10. For all the reasons stated above, the Commission is of the opinion that amendment of the petition in O.P.No.27 of 2006 is not warranted and there is no merit in the present Interlocutory Application filed by the petitioner. Accordingly, this Interlocutory Application seeking amendment of the petition in O.P.No.27 of 2006 for determination of tariff is dismissed. The main petition in O.P.No.27 of 2006 is posted to 20.10.2006.

The order is corrected and signed on this 29^th day of September, 2006.

Sd/-	Sd/-	Sd/-
(R.RADHA KISHEN)	(SURINDER PAL)	(K.SWAMINATHAN)
MEMBER	MEMBER	CHAIRMAN

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