Appeal No. 226 of 2014 and I.A. No. 346 of 2014. Case: Power Transmission Corporation of Uttarakhand Limited Vs Uttarakhand Electricity Regulatory Commission and Ors.. APTEL (Appellate Tribunal for Electricity)
| Case Number | Appeal No. 226 of 2014 and I.A. No. 346 of 2014 |
| Counsel | For Appellant: Sitesh Mukherjee, Sarul Jain, Kamal Kant, Geeta Malhotra and Pankaj Kumar, AR and For Respondents: Buddy A. Ranganadhan, D.V. Raghu Vamsy and Raunak Jain, Advs. |
| Judges | Ranjana P. Desai, J. (Chairperson) and T. Munikrishnaiah, Member (T) |
| Issue | Electricity Act, 2003 - Sections 128, 128(1), 128(5), 129, 14, 142, 164, 168, 181, 185(1), 2(17), 39, 39(2)(c), 42, 42(1), 42(5), 42(6), 42(8), 43, 44, 45, 46, 43(1), 43(2), 45(5), 55(2), 57, 62, 67, 68, 86 |
| Judgement Date | January 30, 2017 |
| Court | APTEL (Appellate Tribunal for Electricity) |
Judgment:
Ranjana P. Desai, J. (Chairperson)
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The Appellant - Power Transmission Corporation of Uttarakhand Ltd. ("PTCUL" or "the Appellant") is the State Transmission Utility in the State of Uttarakhand. The Appellant operates and maintains transmission network in the State and provides transmission services to the interested users including the generating stations operating in the State. Respondent No. 1 is the Uttarakhand Electricity Regulatory Commission ("the State Commission"). Respondent No. 2 is M/s. Gold Plus Glass Industry Ltd. ("M/s. Gold Plus") situated at Village Thithola, Tehsil Roorkee, Distt. Haridwar. Respondent No. 3 is Uttarakhand Power Corporation Ltd. ("UPCL"). It is a distribution licensee. In this appeal the Appellant has challenged the orders dated 16/01/2014 and 10/06/2014 passed by the State Commission.
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Facts of the case need to be stated. Mr. Yogesh Tyagi, Manager (Public Relations) of M/s. Gold Plus filed a complaint dated 01/02/2013 before the State Commission stating that M/s. Gold Plus had deposited an amount of Rs. 5,17,79,036/- in the office of the Appellant for 132 KV line. However, despite the lapse of four years the said line has not been provided to M/s. Gold Plus. It was further stated that the Appellant has not taken any action though it has been informed about this. It was further stated that this has caused financial loss to M/s. Gold Plus.
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The State Commission vide its letter Nos. 120 and 121 both dated 25/04/2013 directed MD, UPCL and MD, PTCUL to submit a report to the State Commission by 05/05/2013 stating reason for the delay in light of the UERC (Release of New HT & EHT Connections, Enhancement and Reduction of Loads) Regulations, 2008 ("UERC Regulations, 2008").
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In response to the said letter UPCL vide its letter dated 12/06/2013 forwarded the State Commission's letter to MD, PTCUL and endorsed a copy thereof to the State Commission for information. By another letter dated 25/06/2013 UPCL informed the State Commission that M/s. Gold Plus had deposited two demand drafts for the total amount of Rs. 5,17,79,036.00 for 132 KV line with PTCUL. Since PTCUL has not provided the said line M/s. Gold Plus filed W.P. No. 2679 of 2011 in the Uttarakhand High Court in which UPCL is made a party. The said writ petition is pending.
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Because PTCUL did not respond to the State Commission's letter, the State Commission sent a reminder dated 09/07/2013 and directed MD, PTCUL to submit the report by 19/07/2013. In response to the State Commission's reminder, PTCUL sent reply dated 15/07/2013. Relevant extract of the said reply is as under:
"... the supply of M/s. Gold Plus Glass Industry Ltd. at 132 KV Level was given on dated 10.11.2008 by alternative arrangement and continuing till date. As regards construction of 132 KV line and 132 KV bay, it is to intimate that 132 KV bay at Mangalore Substation is complete and ready for energisation. The expenditure on this work till date is Rs. 89.96 Lakhs. It is further to intimate that there is severe right of way problem as the land owners are not allowing construction of this line in their fields. Till date the progress of line is as below:-
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Material received at site Rs. 111.00 Lakhs.
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Physical progress - 10 foundations out of 36 is completed and work is in Progress, M/s. Gold Plus have been requested several times in the past to resolve the right of way with department but fruitful result is not coming as their supply is continuing.
It is also to intimate that the amount deposited by M/s. Gold Plus Glass Industry Ltd. cannot be returned and no interest can be paid."
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Taking cognizance of the above facts and having regard to the UERC Regulations, 2008 and having come to the conclusion that PTCUL had violated provisions thereof the State Commission issued show cause notice to MD, PTCUL directing him to submit PTCUL's reply by 10/10/2013 as to why appropriate action under Section 142 of the Electricity Act 2003 ("the said Act") be not taken against PTCUL. The MDs of PTCUL and UPCL were directed to appear before the State Commission on 11/10/2013 at 12.00 hrs.
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On 11/10/2013 MDs of PTCUL and UPCL remained present before the State Commission with their respective replies. The State Commission issued the following daily order on that day.
"On scheduled date of hearing i.e. on 11.10.2013, Shri Yogesh Tyagi (Petitioner) and MD, UPCL & MD, PTCUL along with their officers (Respondents) were present. The Commission heard the parties and daily order was issued as follow:
PTCUL is directed to submit year wise details of expenses incurred out of Rs. 5.18 crore deposited by the petitioner in September, 2008 and also the manner in which balance amount has been utilized by it within 10 days of the date of Order.
"The Petitioner is directed to coordinate with PTCUL regarding the issue of ROW and apprise the Commission of the discussions held with PTCUL and the future course of action within 10 days of the date of Order.""
Though the daily order dated 11/10/2013 directed M/s. Gold Plus to co-ordinate with PTCUL regarding the issue of 'Right of Way' ("Right of Way" or "ROW") and apprise the State Commission of the discussions held with PTCUL and future course of action within ten days, M/s. Gold Plus did not abide by the said direction. M/s. Gold Plus was therefore directed to show cause and explain as to why appropriate penalty be not imposed on it under Section 142 of the said Act. In reply M/s. Gold Plus by its letter dated 07/11/2013 informed the State Commission that PTCUL has promised to give all details of disputed ROW and that M/S. Gold Plus was constantly in touch with PTCUL.
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The State Commission considered the replies filed by the parties in light of relevant regulations. The State Commission referred to Regulation 4(8) and 4(10) of the UERC Regulations 2008 which read thus:
4(8) Distribution licensee shall, within one month from date of receipt of application, study the feasibility of providing such connection including route survey for line and associated works and sanction the load. In case, works related to transmission licensee at 132 kV or 220 kV are required to be executed, the distribution licensee shall immediately intimate the transmission licensee for carrying out such study and take the estimate of works charges from it. The distribution licensees shall ensure that it informs the applicant, the estimated amount that is required to be deposited, in accordance with Table 1 given below, and the date by which the said amount is to be deposited within the said period of one month. The distribution licensee shall also indicate in the above communication, the approximate time frame for providing such connection, which shall not be more than that specified in these Regulations or tentative date indicated by consumer in his application, whichever is later.
4(10) All 132 kV works shall be executed by transmission licensee. Prior intimation, along with amount of estimated works charges deposited by applicant for such works, to the transmission licensee would be required to be given by the distribution licensee sufficiently in advance so as to meet the overall time frame laid down in these Regulations. For feeders emanating from its 132 kV/220 kV substations, the distribution licensee shall provide an appropriate metering cubicle at such 132 kV/220 kV substation. Transmission Licensee's responsibility shall be limited upto line side isolator of the feeder.
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As regards the time of completion of the works the State Commission referred to Regulations 5(2) and 5(3) of the UERC Regulations 2008. They read as under:
"5(2) In cases, where supply of electricity to premises applied for does not require commissioning of new substation/bay, the distribution licensee shall complete installation of HT/EHT works within the time specified below for different voltage levels from the date of deposition of amount by the applicant:-
5(3) In cases, where supply of electricity to premises applied for requires Commissioning of a new substation/bay, the distribution licensee shall take up the work on the new sub-station/bay at its own cost and complete the work within the additional time specified below for different sub-station:-
The State Commission noted that the above regulations stipulate the time frame for completing installation of HT/EHT works and commissioning of a sub-station/bay, which in the present case is 270 days (180+90) in accordance with the regulations.
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The State Commission observed that its regulations do not prohibit the licensee from taking necessary action in so far as the right of way is concerned. The State Commission quoted Rule 3(b) of the Works of Licensee Rules, 2006. It reads as follows:
3(b)...
Provided that in case where the owner or occupier of the building or land raises objections in respect of works to be carried out under this rule, the licensee shall obtain permission in writing from the District Magistrate or the Commissioner of Police or any other officer authorised by the State Government in his behalf for carrying out the works.
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Having considered the above provisions the State Commission concluded as under:
It is clear from the prevailing Regulations that while responsibility of constructing a 132 kV transmission line lies with the transmission licensee as the feasibility study for providing such connection including route survey for line and associated works are in the scope of transmission licensee, UPCL as a distribution licensee has to coordinate with...
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