Appeal No. 282 of 2014. Case: Haryana Vidyut Prasaran Nigam Limited Vs Haryana Electricity Regulatory Commission and Ors.. APTEL (Appellate Tribunal for Electricity)
| Case Number | Appeal No. 282 of 2014 |
| Counsel | For Appellant: Anand K. Ganeshan, Swapna Seshadri, Mandakini Ghosh, Ishaan Mukherjee, Ashwani Kumar Gupta, Sandeep, Neha Garg and Saloni Sacheti, Advs. |
| Judges | Ranjana P. Desai, J. (Chairperson) and I.J. Kapoor, Member (T) |
| Issue | Electricity Act, 2003 - Sections 111, 181, 2, 2(19), 2(72), 2(73), 39, 43, 46, 47 |
| Judgement Date | January 19, 2017 |
| Court | APTEL (Appellate Tribunal for Electricity) |
Judgment:
I.J. Kapoor, Member (T)
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The present Appeal is being filed by Haryana Vidyut Prasaran Nigam Ltd. (hereinafter referred to as the "Appellant") under Section 111 of the Electricity Act, 2003 challenging the Order dated 14.08.2014 ("Impugned Order") passed by the Haryana Electricity Regulatory Commission (hereinafter referred to as the "State Commission") in Petitions No. 1, 3 & 18 of 2014, in the matter concerning the levy of Departmental/Supervision Charges on deposit works by the Appellant i.e. Haryana Vidyut Prasaran Nigam Ltd. (HVPNL) on Respondents 2-4 and O&M charges on Respondent No. 3.
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The Appellant, Haryana Vidyut Prasaran Nigam Ltd. (HVPNL) is the transmission company and also functions as the State Transmission Utility under Section 39 of the Electricity Act, 2003 in the State of Haryana.
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The Respondent No. 1 is the Electricity Regulatory Commission for the State of Haryana exercising jurisdiction and discharging functions in terms of the Electricity Act, 2003.
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The Respondent No. 2 - Hindustan National Glass & Industries Ltd. is engaged in manufacturing of Glass Containers (Bottles) and is a large supply consumer of UHBVNL. The Respondent No. 3 - Punjab General Industries Pvt. Ltd. is a large supply industrial consumer of DHVBNL. The Respondent No. 4 - Escorts Ltd. Agri Machinery-Tractor Plant is a large supply industrial consumer of DHBVNL. The Respondent No. 5 & 6 are the Distribution licensees in the State of Haryana and are responsible for distribution of electricity within its licensed distribution area in the State of Haryana.
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Facts of the present Appeal:
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The State Commission on 26.07.2005 notified the HERC (Duty to supply electricity on request, power to recover expenditure incurred in providing supply) Regulations, 2005 (hereinafter referred as 'Regulations, 2005'). These Regulations provide levy of 1.5% supervision/departmental charges by distribution licensees on works related to extension of distribution network carried out by consumers at their own cost and supervised by distribution licensees for the benefit of the consumers. These Regulations are applicable to distribution licensees of Haryana.
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However, there are no such regulations notified by the State Commission for levying of supervision/departmental charges on the works carried out for extension of the transmission system by the consumers and supervised by the transmission licensee for providing safe and secure supply of power to the consumers in Haryana.
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In absence of such regulatory provisions and to fulfil its duties under Section 39 of the Electricity Act, 2003, the Board of Directors of the Appellant approved the levy of departmental/supervision charges on deposit works @ 4% of the estimated cost of the works required to be executed by client/institution/Govt. departments by following HVPNL specification/guidelines and the same is to be taken over by HVPNL. The same was issued by the Appellant vide circular dated 26.06.2007.
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On the basis of requests received by HVPNL for re-routing of existing transmission lines and substitution of lines by EHV cables, the Board of Directors of HVPNL approved the "Guidelines for substitution of overhead transmission lines and part project by providing EHV XLPE underground cables". These guidelines were issued on 8.9.2010. These guidelines hereinafter are referred as 'Guidelines, 2010'. These guidelines include the levy of cost of future maintenance of cable @ 5% of the total cost of replacement towards the maintenance cost of the cable.
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Further, after approval of the Board, HVPNL on 25.04.2012 issued "Detailed Guidelines for Self-Execution of the Deposit Works" (hereinafter referred as 'Guidelines 2012'). These guidelines contain the nature/category of works covered in deposit estimates and the mode of self-execution of deposit works by the consumers.
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The Appellant in 2011 & 2012 granted the approval to Respondent Nos. 2 - 4 for execution of works related to Respondent Nos. 2 - 4 with scope of work, mode of execution with condition of levying of supervision charges. The works mentioned in the approval were exclusive works of Respondent Nos. 2 - 4. However, some works were to be executed by the Appellant as deposit works for Respondent Nos. 2 and 3. Subsequently on request of the Respondents 2 and 3, all the works were to be executed on self-execution mode by the Respondents and amendment to the earlier approvals were granted by the Appellant vide Memo dated 21.5.2012, based on the 'Guidelines 2012'. In case of Respondent No. 4, there was no need for revision as its works on self- execution mode were already approved based on Guidelines 2012. The memos issued to Respondents have provisions for levy of departmental charges by the Appellant.
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The Respondent Nos. 2 - 4 entered into Tripartite Agreement with the Appellant and the distribution licensee (UHBVNL/DHBVNL) of their respective area on 30.5.2012, 13.9.2012 and 20.2.2013 respectively. The Tripartite Agreements also have specific provisions for levy of supervision charges by the Appellant.
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Accordingly the Appellant, vide Memo dated 19.11.2012, 13.02.2013 and 09.04.2013 raised supervision charges @ 4% of the tentative estimated cost of the works required to be executed by the Respondent Nos. 2 - 4 respectively. The said charges were paid by the Respondent Nos. 2 - 4 to the Appellant.
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Aggrieved by the levy of Departmental/Supervision charges on deposit works by the Appellant, the Respondent Nos. 2 - 4 approached the State Commission through the Petition Nos. 1, 3 and 18 of 2014 and prayed for withdrawal of Memo dated 19.11.2012, 13.02.2013 and 09.04.2013 by the Appellant & to examine and approve the levy of departmental/supervision charges on deposit works of consumers, direct the Appellant to withdraw the demand raised & refund the excess amount already charged, with 12% interest rate and direct the Appellant to desist from issuing any circular which has financial implications without prior approval of the State Commission.
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The State Commission after hearing the parties, on 14.08.2014 passed an order in Petition Nos. 1, 3 and 18 of 2014 wherein the State Commission has allowed levy of 4% supervision charges only on the deposit works which were to be taken over by the Appellant by following HVPNL's specifications/guidelines. The State Commission has not allowed the recovery of supervision charges from the Respondent Nos. 2 - 4 for their exclusive works which were not to be taken over by the Appellant. The State Commission has also not allowed recovery O&M charges for 66kV XLPE cable and terminations from Respondent No. 3. The State Commission directed Appellant to refund the excess amount...
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