ANDHRA PRADESH ELECTRICITY REGULATORY COMMISSION

Hyderabad

 

Dated: 29-09-2006

 

Present

 

Sri K. Swaminathan, Chairman

Sri Surinder Pal, Member

Sri. Radha Kishen, Member

 

I.A.No.14 of 2006

 

in

 

O.P. No.30 of  2006

 

Between

 

M/s. R.P.P.Ltd.,

H.No.1-B, (New No.618), Arora Colony,

Road No.3, Banjara Hills, Hyderabad-500 034                                                                                     ...       Petitioner

 

and

 

1.     Transmission Corporation of Andhra Pradesh Ltd,

Vidyut Soudha, Hyderabad-500 082

 

2.  Central Power Distribution Company of Andhra Pradesh Ltd,

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

 

3.  Southern Power Distribution Company of Andhra Pradesh Ltd,

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

     Tirupati-517 501           

 

4.   Northern Power Distribution Company of Andhra Pradesh Ltd

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

      Warangal-506 004.

 

5.   Eastern Power Distribution Company of Andhra Pradesh Ltd,

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

      Visakhapatnam.                                                                                                                                                                                                                                                                                                                                                    ...   Respondents

 

 

           This petition coming on for hearing on 23.09.2006 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

 

 

           The petitioner herein has filed this Interlocutory Application u/s 94(2) of the Electricity Act, 2003,  for issue of a direction to the respondents to forthwith wheel the energy in accordance with the monthly allocations given by the petitioner to any or all of the consumers mentioned in Schedule 3 of the Power Wheeling and Purchase Agreement (for short,  ‘PW&PA’) and also the additional consumers as requested in the petitioner’s letters RPPL/SCH 3/01/2006 dated 25.01.2006 (ICRISAT – MDK 003) and RPPL/SCH 3/06/2006 dated 11.07.2006 (South Asia LPG Co.Pvt Ltd – VSP 429, and Manjeera Estates Pvt Ltd – HDN 996 and HDN 774, and Manjeera Hotels & Resorts Ltd – HDN 744) and RPPL/SCH 3/07/2006 dated 22.07.2006 (Maya Bazar – HDC 747 and Ocean Park – RRS 771) and RPPL/SCH 3/08/2006 dated 01.08.2006 (Ramoji Film City – RRS 705) as per the allocations given by the Petitioner for the month of August, 2006 and thereafter from banked energy and / or generated energy, and / or pass such other order as this Commission considers fit and proper in the facts and circumstances of the case.

 

2.        The petitioner rests his claim in this petition for the reasons set out in the main petition,  O.P.No.30 of 2006.  The petitioner has not filed separate affidavit in support of his petition.  Hence the reasons set out in the main petition (O.P.No.30 of 2006) are to be taken into consideration to come to a conclusion whether the petitioner is entitled for the relief sought for in this petition.

 

2.      The reasons set out in the main petition (O.P.No.30 of 2006) in brief are as follows:

 

(a)       The petitioner is a generating company which has established a mini-hydel power plant of the capacity of 2.80 MW on the Guntur Branch Canal.  The energy generated by the petitioner is substantially sold to the HT consumers in Andhra Pradesh and such energy is wheeled to the consumers under and in terms of a PW&PA dated 04.09.1998 as amended on 18.01.2000 which continues to be subsisting.

 

(b)       The consumers to whom the energy generated by the petitioner can be sold are set out in Schedule 3 to the PW&PA.  Since the generation of electricity from the hydel power plant is seasonal and varies from year to year and from time to time within any year depending on the vagaries of nature and availability of water, it is often necessary to make changes to the schedule of consumers.  It may be appreciated that the scheduled consumers may and do migrate to other sources of supply during the off-season period or when the petitioner is unable to generate and supply during season, and they may not return to the petitioner once the season begins again or when generation is feasible.

 

(c)       To provide for the aforesaid contingency, Explanation 3 to Clause 1.16 of the PW&PA provides that if the petitioner wants any change in the list of schedule consumers during the term of agreement, he shall submit such a list to the 1st Respondent and get approval, and that the 1st Respondent is to accord such approval taking into account system exigencies.  Accordingly, the 1st Respondent is obliged to amend the schedule of consumers as and when requested by the petitioner provided that the revised list of schedule consumers may be rejected only when there are good technical reasons of system exigencies.  It is submitted that the schedule of consumers has been amended several times in the last few years.

 

(d)       During the last three years between 2001-02 and 2004-05, the generation of electricity by the petitioner was severely affected due to non-availability of sufficient water to operate the power plant.  In such circumstances, the petitioner could not maintain any significant or continuous sale of electricity even during the season.  Consequently, many of the erstwhile consumers of the petitioner stopped purchasing electricity from the petitioner and it became necessary for the petitioner to find other consumers and have the schedule of consumers in the PW&PA changed.

 

(e)       In recent times, the 1st respondent in concert with the respondents 2 to 5 has been unduly and unnecessarily delaying /declining change of schedule of consumers on untenable grounds and the same was causing frustration.   The petitioner filed O.P.No.24 of 2005 seeking, inter-alia, declaration that the rejection of M/s Akash Hotel Pvt. Ltd. with Service Connection No.HDC 595 communicated and / or indicated by the letter dated 25.10.2005 is invalid; and to direct the 1st respondent to forthwith amend the Schedule 3 of the PW&PA dated 18.10.2000 as finally requested in the petitioner’s letter RPPL/SCH 3/01/2005 dated 21.10.2005 by including the six consumers listed to petitioner’s said letter dated 21.10.2005 and by deleting the five consumers listed to the petitioner’s said letter dated 21.10.2005; and to direct the 1st respondent to consider and comply with the further applications in future for amendment of the schedule of consumers fairly and expeditiously within two weeks from the date of receipt of the applications and not to fail therein.

 

(f)       By order dated the 28.01.2006, this Commission, inter alia, set aside the communication dated 25.10.2005 rejecting the request of the petitioner in respect of M/s Akash Hotels; and directed the respondents to decide on the petitioner’s request in the case of ITC Ltd within two weeks of the receipt of the order; and directed the respondents to take a decision within four weeks of the receipt of the requisite information from the petitioner as regards ONGC Ltd, Rajahmundry; and held that it was not possible to lay down any hard and fast rules with regard to a reasonable time for the disposal of a request for amendment to Schedule 3 of the PW&PA.  The respondents did not comply with the order of the Commission within the time allowed thereby.

 

(g)       While so, the petitioner submitted a request dated 25.01.2006 for the inclusion in Schedule 3 of the PW&PA of International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) who is the consumer of the 2nd respondent with Service Connection No.MDK-003.  The request was accompanied by a letter of intent issued by the ICRISAT stating that they were interested to avail electricity partly from the petitioner with effect from February, 2006 billing month, and stating also that the purchase of electricity from the petitioner will not result in their recorded demand exceeding their contracted maximum demand.  The respondents willfully failed and omitted to act on the petitioner's request expeditiously.

 

(h)       The petitioner filed Appeal No.47 of 2006 before the Hon’ble Appellate Tribunal for Electricity (ATE) against the order dated 28.01.2006 of this Commission in O.P.No.24 of 2005.  The Tribunal was pleased to dispose of the Appeal by order dated 11.05.2006 directing that the banked energy of the petitioner shall be permitted to be supplied to the six consumers mentioned in the said order in addition to the existing parties, and that the embargo for the months of April, May, June and July of 2006 will not apply in the case of the petitioner, and that there shall be no banking charges.  The Tribunal was also pleased to direct that the question as to how much balance energy to the credit of the petitioner stands banked with the respondens shall be determined by the parties with mutual consultation and agreement.  The Tribunal was further pleased to direct that the respondents shall decide all applications by the generators for addition of parties to the schedule of existing consumers within a period of three weeks positively from the date of receipt of applications.

 

(i)        While the inclusion of the six consumers in the Schedule 3 of the PW&PA was carried out by the 3rd respondent on behalf of the respondents, the respondents regrettably failed and omitted to comply with the order and directions of the Tribunal with respect to wheeling of electricity during the months of April to July, 2006, wilfully resorting to series of procrastinations and omissions.  The petitioner is considering separately moving the Tribunal for the enforcement and execution of its order.

 

(j)        By letter dated 03.06.2006, the Chief General Manager/Projects & RAC of the 3rd respondent intimated the petitioner that the Chief General Manager/Commercial & RAC of the 2nd respondent has informed that the wheeling of power for third party sale by the petitioner to the proposed consumer ICRISAT is technically not feasible, and hence the request for change of scheduled consumer cannot be considered in addition to six consumers already approved vide the amended agreement dated 30.05.2006 as per the orders of the ATE, New Delhi.

 

(k)       By letter dated 10.06.2006, the petitioner requested the CGM/Projects & RAC of the 3rd respondent to intimate the detailed reasons along with the copies of the relevant particulars and field reports as the letter dated 03.06.2006 gives no reasons and details for the conclusion that it is not technically feasible.  The CGM/Projects & RAC of the 3rd respondent sent letter dated 15.06.2006 to the CGM/Comml & RAC of the 2nd respondent requesting him to furnish details of non-feasibility for the said consumer.

 

(l)        By letter dated 11.07.2006, the petitioner requested the respondents to include four more consumers in the list of scheduled consumers in addition to the existing list of consumers as amended on 30.05.2006.  In the said letter, the petitioner, while drawing attention to the earlier correspondence and the request for detailed reasons along with copies of the relevant particulars and field reports in respect of ICRISAT, also stated that no details on the non-feasibility of ICRISAT had been received so far.  Further, the petitioner sent another letter dated 15.07.2005 to the CGM/Projects & RAC of the 3rd respondent once again stating that the details and reasons for non-feasibility of ICRISAT had not yet been received.

 

(m)      By letter dated 21.07.2006, CGM/Projects & RAC of the 3rd respondent informed that the ICRISAT comes under the purview of the 2nd respondent, and the reasons for non-feasibility for availing of energy from the petitioner’s plant to ICRISAT may be obtained from the CGM/Comml & RAC of the 2nd respondent.

 

(n)       By letter dated 22.07.2006, the petitioner requested the inclusion of two more consumers in addition to the existing consumers as per the schedule  of consumers as amended on 30.05.2006, the ICRISAT and the four consumers requested in the petitioner’s letter dated11.07.2006.

 

(o)       By letter dated 01.08.2006 the petitioner requested the inclusion of another consumer in addition to the existing consumers and the pending requests as aforesaid.

 

(p)       It is submitted that the rejection of ICRISAT by the respondents is arbitrary and clearly mala fide.  The ICRISAT has itself stated that the purchase of electricity from the petitioner will not result in the recorded demand exceeding their contracted maximum demand.  It is submitted that the rejection in similar circumstances was held to be bad and accordingly set aside by the order of this Commission dated 28.10.2006 in O.P.No.24 of 2006.  The persistent omission of the respondents in furnishing the detailed reasons and reports clearly indicates that the rejection was entirely arbitrary, irrational, without any proper reason or proper application of mind, and was with the intention only of preventing and obstructing the petitioner from supplying energy to the ICRISAT.

 

(q)       It is submitted that the 3 weeks’ time specified by the ATE in the order dated 11.05.2006 expired on 03.08.2006 in respect of the request dated 11.07.2006 which was received by the respondents on 12.07.2006.  Considering the conduct of the respondents, and the scant respect shown by them to the orders of the ATE and this Commission, and in view of the demonstrated hostile, capricious and malicious intention of the respondents to non-conventional energy generating companies in general, there is every reason for the petitioner to apprehend that none of the applications made by the petitioner will be considered and decided either within the time directed by the Tribunal or in accordance with reason, fair play and good conscience. 

 

(r)       The contention of the petitioner so far as accounting for balance  banked energy is concerned is  that pursuant to the order dated 11.05.2006 of the ATE directing the petitioner and the respondents to determine the balance banked energy to the credit of the petitioner, the petitioner sent a letter dated 23.05.2006 requesting confirmation of the balance banked energy as per the statement enclosed therewith of the details of the generation, sale and banked hydroelectric energy till the billing month of April, 2006 showing 25,75,650 units as the balance banked energy.  As no reply was received, a reminder dated 10.06.2006 was sent along with a statement of the details of generation, sale and banked hydroelectricity till the billing month of May, 2006 together with a more detailed statement.  A statement of the energy wheeled to Asian Paints (India) Ltd between October, 2005 and March, 2006 showing the wheeling charges deducted at 5.78% in excess of the wheeling charges at 2% was also annexed.  Further reminders including dated 19.06.2006 were also sent.

 

(s)       By letter dated 04.07.2006, the CGM/Projects & RAC of the 3rd respondent requested the petitioner to approach the energy billing centre of the 1st respondent for reconciliation of banked energy.  Again, the same CGM/Projects & RAC of the 3rd respondent sent a letter dated 14.07.2006 stating, inter alia, that the petitioner is requested to reconcile the banked energy as already informed in a letter dated 04.07.2006 and that the revised wheeling schedules be submitted to take further action in the matter.  The petitioner replied by letter dated 14.07.2006 stating that the undisputed banked energy was 23,18,560 units as recorded by the ATE in its order dated 11.05.2006, and that therefore the implementation of the order need not await full settlement of the total quantity of banked energy.

 

(t)       By letter dated 14.07.2006, the CGM/Expenditure of the 2nd respondent informed that the applicable wheeling charges were billed during the period from October, 2005 to March, 2006 in respect of Asian Paints as per the Tariff Order approved by the APERC and in the light of section 56(2) of the Electricity Act, 2003.  Though incomprehensible, the letter further goes on to claim that “this will convince your claim for accounting the total energy allocated to your above scheduled consumer”.  It is submitted that, by the above letter, the petitioner can only understand that the 2nd respondent was in admitted breach and violation of the order dated 08.09.2005 in Appeal No.51 of 2005 granting a stay of operation of the impugned tariff order passed by the Commission dated 22.03.2005 to the extent of wheeling charges subject to the condition that the petitioner shall continue to pay wheeling charges @ 2% of the wheeled energy.

 

(u)       As there was no further progress in the matter, the petitioner sent letter dated 15.07.2006 addressed to the Chief Engineer/Commercial of the 1st respondent, the Chief Engineer (IPC) of the 1st respondent, the Superintending Engineer/Energy Billing Centre of the 1st respondent and the Managing Director of the 3rd respondent with reference to the various letters requesting reconciliation and confirmation of the banked energy as per the statement already submitted.  The petitioner stated that when the Superintending Engineer/Energy Billing Centre of the 1st respondent was contacted, the petitioner was asked to submit a written request to the Chief Engineer/Commercial of the 1st respondent under whose jurisdiction the Superintending Engineer/Energy Billing Centre falls so as to take necessary action.  Hence the letter.  Further reminders dated 25.07.2006 and 01.08.2006 was sent by the petitioner to all the aforesaid four officers.

 

(v)       It is submitted that the respondents are not taking steps to reconcile the account of banked energy within a reasonable period.  Further, it appears that the respondents are withholding wheeling charges at 5.78% instead of 2% in contravention of the order of the ATE dated 08.09.2005.  Furthermore, the respondents are not giving effect to the order of the ATE dated 11.05.2006 in respect of banking charges while accounting for the banked energy.  There is therefore a dispute in accounting for and reconciling the banked energy which is required to be adjudicated by the Commission.

 

(w)      It is submitted that, by a chain of actions designed and calculated to frustrate the petitioner, the respondents are bent upon disabling the petitioner from selling the energy generated.  Despite the order of the Tribunal, the respondents persist in such conduct and the petitioner is unable to sell the banked energy.  Further, due to the delay, procrastination and arbitrary and malicious conduct of the respondents whereby the petitioner is not actually able to assure and deliver energy to any prospective consumer, the entire credibility of the petitioner in the market has taken such severe beating that the petitioner is compelled to seek inclusion of more and more consumers again and again without being able to settle down with a reasonably assured and settled clientele.  It is therefore necessary for this Commission to so grant and mould the relief to the petitioner such that the petitioner is relieved from constant harassment, frustration and oppression by the respondents.

 

(x)       Pending disposal of the main petition, it is prayed that this Hon’ble Commission may be pleased to direct the respondents to forthwith wheel the energy in accordance with the monthly allocations given by the petitioner to any or all of the consumers mentioned in Schedule 3 of the PW&PA and also the additional consumers as requested by the petitioner’s letters RPPL/SCH 3/01/2006 dated 25.01.2006 (ICRISAT – MDK 003) and RPPL/SCH 3/06/2006 dated 11.07.2006 (South Asia LPG Co.Pvt Ltd – VSP 429, and Manjeera Estates Pvt Ltd – HDN 996 and HDN 774, and Manjeera Hotels & Resorts Ltd – HDN 744) and RPPL/SCH 3/07/2006 dated 22.07.2006 (Maya Bazar – HDC 747 and Ocean Park – RRS 771) and RPPL/SCH 3/08/2006 dated 01.08.2006 (Ramoji Film City – RRS 705) as per the allocation given by the Petitioner for the month of August, 2006 and thereafter from banked energy and / or generated energy, and / or pass such other order as the Hon’ble Commission considers fit and proper in the facts and circumstances of the case.

 

4.        The respondents’ counsel filed a memo stating that the counter affidavit filed in main petition O.P.No.30 of 2006 may be treated as a counter in this petition.  The averments made in the counter affidavit are as follows:

 

 (a)      Basically, the petitioner filed this petition for two separate grievances based on separate causes of action viz. (i) the petitioner is said to be aggrieved at the decision of the respondent No.2/APCPDCL in holding that the request of inclusion of M/s ICRISAT to schedule consumers is not possible due to system exigencies and non-feasibility, etc., and (ii) settlement of differences of quantum of banked energy lying in the credit of petitioner.  The said two matters are neither connected to each other nor arose out of one communication by any of the respondents.

 

(b)       The petitioner is obligated upon to file separate petitions concerned to every dispute based on separate cause of action.  Therefore the petition is bad for misjoinder of cause of action.

 

(c)       As a matter of fact by joining the aforesaid two causes of action in one petition, it is causing prejudice to the respondents.  For one cause of action, only some of the respondents are answerable and for the other cause of action they are not concerned.  As such prejudice will be caused to the respondents.

 

(d)       Although at the time of entering the PW&PA dated 04.09.1998, the APSEB (the erstwhile A.P.State Electricity Board, hereinafter also referred to as the ‘Board’) was the only institution which dealt the business of generation, transmission procurement and distribution etc. Later,  due to various transfer schemes effected as contemplated in the statute and several consequent Government Orders, the respondent No.1 has no concern with any of the grievances projected by the petitioner, more particularly after 09.06.2005 and therefore making it a party is neither necessary nor justified.  As such, the proceedings filed by the petitioner are bad in law. The PW&PA dated 04.09.1998, in view of the third transfer scheme notified vide G.O.Ms.No.58 dated 08.06.2005 is now vested in APSPDCL, the third respondent, in whose jurisdiction the petitioners power plant is located.  From 09.06.2005, onwards, the third respondent has been dealing the trading of power/energy.

 

(e)       Even according to petitioner, the respondents No.2 and 3 who are concerned to examine the technical exigencies of the system of transmission/wheeling of energy to the proposed new consumer, have categorically stated that it is not feasible to wheel the power to ICRISAT from the end of petitioner. Thus there is a decision by the respondents who were obligated upon with terms of agreement (that) their decision on that aspect is final in view of the Article 1.16 of the agreement.  The said Article further says “Board reserves the right to reject the revised list of schedule consumers and decision of Board is final”.  As such there is no dispute triable by this Commission.  If at all the petitioner wants to question the said decision of the then Board, presently by the respondents 2 and 3 on the aspect of correctness or otherwise of genuineness of the decision, the Commission is not the correct forum, as the same has jurisdiction to decide only disputes between licensee and the generator.

 

(f)       Further, even in respect of settlement of quantum of banked energy lying in the account of petitioner, the averments of petition show that there is no dispute existing as on the date of filing.  The settlement of accounts is in the process of resolution of issue.  Therefore, there is no dispute.

 

(g)       In regard to interpretation of Article 1.16 of the agreement dated 04.09.1998, the ultimate decision to give approval for change of schedule is vested in the respondents.

(h)       It is specifically denied that the respondents have been unduly and unreasonably delaying, ignoring and declining to change of schedule of consumers on untenable grounds and for unlawful purposes, more particularly when the respondents are not going to gain anything but are discharging duties keeping in view the public interest.  The petitioner seems to have been over-influenced by unwarranted selfish/greediness, which made him unrestrained in using the unwarranted terminology about the attitude of the respondents.  As far as the decision relating to ICRISAT is concerned, without prejudice to the contention that there is no dispute triable by the Commission, the Commission which is vested with the power to get additional information and evidence may get it by exercising its powers.  The petitioner by taking undue advantage of absence of such limit in the agreement, is harassing the respondents, with an ulterior object for wrongful gain.  Further, it may be pertinent to submit that the petitioner has been sending number of applications for change of consumers without informing the price at which the energy is proposed for sale to the consumers.

 

(i)        The request of the petitioner regarding ICRISAT was not accepted and was rejected on the ground of no feasibility due to system exigencies.  The claim of the petitioner that the respondent willfully failed and omitted to act on the petitioner’s request is baseless besides being false. 

 

(j)        It is a matter of record that wheeling of power to ICRISAT is technically not feasible, due to system exigencies.

 

(k)       As far as further details are concerned, the same need not be sent, more particularly when it is stated that technically it is not feasible.  As such the decision is self-explanatory and there is no need of further details to be sent to the petitioner.  The law on this aspect is settled that all the detailed reasons need not be mentioned in the executive orders, as the file would be containing the said details.

 

(l)        As stated earlier, the petitioner went on filing several requests, at times, twice or thrice in a month. Thereby it has become very difficult for the respondents to take necessary inspections within the short time allowed by the Hon’ble Tribunal.  Thus there is need to put a ceiling on the number of requests that petitioner is entitled to make in an year, like the other generators.  Earlier, even in respect of petitioner, it was allowed twice in a year.  In respect of requests of the petitioner, it was informed earlier to it that wheeling to the proposed consumer i.e. M/s South Asia is not possible because of system exigencies.   Now the respondents received the field inspection reports in respect of M/s Ocean Park, M/s Manjeera Hotels and Resorts and Manjeera Estates, M/s Maya Bazar and M/s Ramoji Film City, holding that it is not possible to wheel electricity to them due to system exigencies. 

 

(m)      It is specifically denied that the Commission set aside the orders of the nature which are passed by respondents in the case of ICRISAT.  It is submitted that merely because the Commission passed orders in respect of some other consumers,  it can never be a ground that same is binding upon the Commission, in respect of this case.  That part, M/s ICRISAT, is standing on different footing than the facts and circumstances in O.P.No.24 of 2005.

 

(n)       It is specifically denied that the respondent had no regard to the stipulated time for disposal of the request of schedule of consumers.  In fact the respondents have made all out efforts to decide the same well before the stipulated time.  But since field reports from various places have to be secured, there is a little delay in respect of a few consumers and the same cannot by any stretch of imagination be construed as violation of any condition.  In fact the Commission and Hon’ble Tribunal have power to extend the time fixed by them as and when found necessary.

 

(o)       It is specifically denied that the respondents designed and calculated to frustrate the petitioner and disabled the petitioner from selling banked energy.  The normal and reasonable time taken by the respondents No.2 and 3 is being projected in magnifying glass and the alleged inconvenience to it, is being exaggerated by the petitioner.  It is specifically denied that the petitioner is subjected to harassment by the respondents. It is the petitioner who is bent upon to harass the respondents, to satisfy its selfish ends, at the cost of public interest.

 

(p)       The petitioner by filing two unconnected issues and causes of action in one petition has omitted to pay the required fee.

 

(q)       There are no circumstances warranting the grant of interim orders, inasmuch as the respondents have already decided that the wheeling to the proposed schedule consumers is not possible in view of system exigencies.  The respondents’ right to refuse the request is very much agreed to by the petitioner also in the agreement.  Interim mandatory injunctions are generally not granted, more particularly in cases of specific performance of agreements.  There is no prima-facie case and balance of convenience.  There will be no irreparable damage if interim orders are not granted.

 

(r )      It is prayed that the Commission may be pleased to dismiss the I.A.No.14 of 2006 with costs.

 

5.                On 23.09.2006, the counsels for the petitioner and the respondents were heard. 

 

(a)              The learned counsel appearing for the petitioner contended that there is an urgency in the matter.  Hence the petitioner prayed for grant of Interim Orders in this petition pending disposal of the main petition (O.P.No.30 of 2006). 

 

(b)              The contention of the petitioner’s counsel is that even though the ATE gave specific directions that the licensee has to dispose of the applications filed by the petitioner herein for amendment of scheduled consumers within 3 weeks positively, yet the licensees had failed to comply with the said directions of the ATE.  In the present case, the petitioner sought inclusion of consumers who have specifically indicated that their recorded demand would not exceed the contracted maximum demand with the respondents. There is wanton delay on the part of the licensee to deny the sale of energy by the petitioner.  It is also the contention of the petitioner’s counsel with regard to banked energy, that the banked energy will lapse in the month of November.  The licensees are trying to usurp the same by denying the petitioner the benefit of selling the same while delaying the decision on amendment of scheduled consumers as sought for by the petitioner. 

 

(c)             The contention of the petitioner’s counsel is that there is a clause in the PW&PA relating to amendment of the scheduled consumers and there is no restriction on the number of consumers to be included in the Schedule 3.  But the licensee is not deciding the issue with regard to inclusion of the consumers within a reasonable time. Hence, the petitioner requests the Commission for grant of interim orders as prayed for.

 

(d)             On the other hand, the learned counsel for the respondents submitted that the petitioner has clubbed three issues in one petition.  They are not inter-related.  One is relating to banked energy, the other to levy of wheeling charges and the third to not allowing the sale of power to new consumers of the petitioner.  It is his submission that the petitioner may be directed to withdraw the petition or segregate the prayers and file separate petitions for each of the prayers.

 

(e)       The Article 1.16 of PW&PA relating the amendment of scheduled consumers is relevant and the Explanation 3 below it deals with the situations as to when the Schedule-3 is to be amended. The petitioner herein has been submitting proposals for amendment to Schedule 3 time and again and that too thrice in a month itself on several dates.

 

(f)       This is no case for mandatory injunction that can be granted as the petitioner is not going to suffer any immediate loss or the status-quo will get altered if the injunction is not granted. There are no compelling reasons for granting the same. In furtherance of his contention the counsel has relied on a judgement rendered in AIR 1983 DELHI 392

 

(g)       The counsel for the respondents also submitted that the agreement is not such a one that the petitioner can be asked to invoke the Specific Relief Act. The petitioner highlighted the provisions relating Sections 14 and 41 of this Specific Relief Act relevant for the case, grant of injunction and enforceability of contracts. In support of this claim, the counsel relied on the decisions rendered in 2005 (4) SCC 239 and AIR 1986 GUJ 145.

 

(h)       As regards banked energy, the Hon’ble Appellate Tribunal has directed mutual settlement of the issue and the same cannot be agitated in this petition. In regard to any grievance, the appropriate forum is the Hon’ble Tribunal itself. 

 

(i)        There is neither necessity nor urgency for the grant of temporary mandatory injunction at this stage as the petition itself would be decided shortly. However he sought permission to lead evidence both oral and documentary, if permitted by the Commission.   

     

6.                In reply to the above argument, the counsel for petitioner stated as follows:

 

(a)              The Commission had passed an order and the same is merged in the appellate order passed by the Tribunal and there is only one order at present.

 

(b)             All the issues raised in the petition are interconnected and there is continuing difficulty. The civil courts cannot deal with issues where there is continuing difficulty that is why the Commission has been vested with the exclusive power of adjudication. The judgements referred to by the counsel for respondents are totally irrelevant as Section 94 (2) of the Electricity Act, 2003, is very clear on the grant of interim orders.

 

(c)       For the reasons set out in the petition, the petitioner prayed that urgent interim orders may be passed in the matter.

          

7.                 In these circumstances, the point that arises for consideration is:

 “whether the petitioner is entitled to interim directions as sought for”

 

8.        A careful look at the petition filed u/s 94(2) of the Electricity Act, 2003,  reveals that the reliefs claimed in the said Interlocutory Application are more or less same as those claimed in the main petition filed u/s 86(1)(f) of the Electricity Act, 2003.  It is pertinent to note here that the petitioner did not file a detailed petition or affidavit in I.A.No.14 of 2006 setting out the grounds/reasons which warrant the Commission to issue interim orders and highlight the reasons for such orders pending decision by the Commission in the main petition, O.P.No.30 of 2006. But for  stating that for the reasons set out in the main petition, the circumstances for interference by the Commission pending disposal of the said main petition have not been brought out warranting the Commission to come to the rescue of the petitioner immediately by way of grant of interim relief.. 

 

9.        As seen from the main petition, one of the reliefs claimed by the petitioner is to declare that the rejection of ICRISAT communicated and/or indicated by the 2nd Respondent in its letter dated 03.06.2006 as invalid and void.  In the Interlocutory Application for interim relief, the petitioner has requested the Commission to direct the respondents to forthwith wheel energy in accordance with the monthly allocations given by the petitioner to any or all of the consumers mentioned in the Schedule 3 of the PW&PA and also the additional consumers as requested by it through different letters, including to ICRISAT as per the allocations given by the petitioner for the month of August, 2006.  On the other hand, common counter was filed on behalf of all the respondents on 23.09.2006 in O.P.No.30 of 2006 and a memo was also filed on their behalf stating that the counter filed in O.P.No.30 of 2006 may be treated as their reply in I.A.No. 14 of 2006 also.   In the said counter, it is stated that the request of the petitioner for inclusion of ICRISAT in Schedule 3 of PW&PA was rejected on the ground of non- feasibility due to system exigencies.  Similarly, after conducting necessary inspections and receipt of inspection reports from the field officers concerned, the petitioner was informed that wheeling of energy to the proposed consumers of the petitioner i.e. M/s  South Asia LPG Co.Pvt Ltd., M/s Ocean Park,  M/s Manjeera Estates (P) Ltd., M/s.Manjeera Hotels & Resorts Ltd., M/s.Maya Bazar and M/s. Ramoji Film City was also not possible due to system exigencies.  In the counter, it is mentioned on behalf of the respondents that they propose to produce oral and documentary evidence justifying their decision about inability to wheel energy as required by the petitioner.  When such is the case, interim orders cannot be passed with regard to wheeling of energy to any of the proposed consumers and doing so would amount to granting the relief sought for in the main O.P.30 of 2006 itself. 

 

10.      Similarly, in the main petition it is prayed that balance of banked energy standing to the credit of the petitioner as at the end of billing month of May, 2006 be declared as 25,82,534 units and to direct that the accounts of banked energy be settled accordingly.  Pending such declaration, the prayer of the petitioner in I.A.No.14 of 2006 is that the respondents be directed to wheel energy to its consumers mentioned in Schedule 3 of PW&PA and also to the additional consumers as per the allocations given by the petitioner for the month of August, 2006 and thereafter from banked and/or generated energy.   There seems to be difference of opinion between the contentions of both the parties with regard to quantum of banked energy.  On the one hand, the petitioner contends that the Hon’ble Appellate Tribunal for Electricity in its order dated 11.05.2006 recorded that 23,18,560 units of banked energy are available to the petitioner, the respondents on the other hand contend that the orders of the Tribunal in this connection are mis-quoted.  Further,  it is the contention of the respondents that the Tribunal has recorded the statement of the petitioner and directed the parties to settle the issue mutually and as such there is no finding of the Tribunal in this regard.  Hence, the parties concerned are required to settle the account with regard to quantum of banked energy and it is in the process of resolution.  Either way, a detailed examination of the record is necessary to arrive at a decision.  Pending such decision, grant of relief exercising powers u/s 94(2) of the Electricity Act, 2003, would also amount to grant of relief in the main petition.

 

11.      The counsel for the respondents submitted copies of judgments reported in AIR 1983 Delhi 392 relating to the circumstances as to when temporary mandatory injunction can be issued. It is held therein that a temporary mandatory injunction can be issued only in case of extreme hardship and compelling circumstance and mostly in those cases when status quo existing on the date of the institution of the proceedings is to be restored. In the present case, as mentioned above, the circumstances of extreme hardship are not made out.

 

12.      Moreover, in this case, counter to the main petition was filed on behalf of the respondents and on the same date, additional affidavit was filed on behalf of the petitioner too. The main petition stands posted to 20.10.2006 and if the parties are ready with arguments, the main petition itself can be disposed of after considering the rival contentions on merits.

 

13.      For all these reasons, the Commission is of the opinion that this is not a fit case for passing interim orders as the petitioner has not made out any case warranting interference by the Commission at this stage of proceedings.  Therefore, the Commission is not inclined to grant interim relief as prayed for by the petitioner.  Accordingly,  the petition is dismissed.

 

          

 

This Order is corrected and signed this 29th day of September, 2006.

 

          

 

Sd/-

Sd/-

Sd/-

(R.RADHA KISHEN)

(SURINDER PAL)

(K.SWAMINATHAN)

MEMBER

MEMBER

CHAIRMAN

 

 

 

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