Shree Jayalakshmi Power ... vs Andhra Pradesh Central Power ...
2021 Latest Caselaw 3286 AP

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

                WRIT PETITION No.18332 OF 2021

ORDER:

This Writ Petition is filed, under Article 226 of the

Constitution of India, for the following relief:

"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".

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

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.

3. 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.

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

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.

5. 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.

6. 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 Non-

Conventional Energy generators, using wind, solar and Mini-

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

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.

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

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.

8. Having heard the learned counsel for the petitioner and

Sri Y.Nagi Reddy, learned Standing Counsel for the respondent-

APCPDCL, 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.

9. Accordingly, Writ Petition is disposed of. There shall be no

order as to costs.

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

As a sequel thereto, miscellaneous petitions, if any,

pending in this Writ Petition, shall stand closed.

__________________ A.V.SESHA SAI, J 01st September, 2021.

Note:

Furnish C.C. of the order by 02.09.2021.

B/o Tsy