Appeal No. 188 of 2015. Case: Torrent Power Limited Vs 1. U.P. Electricity Regulatory Commission 2. U.P. Power Corporation Limited 3. Dakshin Vidyut Vitran Nigam Limited 4. Rama Shankar Awasthi. Uttarakhand High Court
| Case Number | Appeal No. 188 of 2015 |
| Counsel | For Appellant: Mr. Jayant Bhushan, Sr. Adv.Mr. Ramji Srinivasan, Sr. Adv. Ms. Deepa ChawanMr. H. S. Jaggi, Mr. Hardik Luthra,Mr. Chantan Bandila, Mr. Ravindra R. Chile, Mr. V. C. Shukla, Ms. Sara Sundaram, Mr. Chetan Bundela, Advs. and For Respondents: Mr. C. K. Rai, Mr. Paramhans and Mr. Pradeep Misra, Mr. Manoj Kumar Sharma, Mr. Shashank ... |
| Judges | Mr. Surendra Kumar, Judicial Member and Mr. T Munikrishnaiah, Technical Member |
| Issue | Electricity Act, 2003 - Sections 86, 128, 129; U.P. Electricity Reforms Act 1999 - Sections 26, 27 |
| Judgement Date | July 28, 2016 |
| Court | Uttarakhand High Court |
Order:
Surendra Kumar, Judicial Member
1. The present appeal, emanating from the Impugned Order dated 16.07.2015, has been filed under Section 111 of the Electricity Act, 2003 by Torrent Power Ltd. (the appellant) assailing the said Impugned Order dated 16.07.2015, passed in Petition No. 816 of 2012 by the U ttar Pradesh Electricity Regulatory Commission (in short '' State Commission '')/respondent No.1 in the matter of investigation and taking appropriate action against the appellant and further to cancel license of Dakshin Vidyut Vitran Nigam Limited (in short ''DVVNL'') whereby the State Commission has concluded that the Petition is filed by Mr. Rama Shankar Awasthi, Petitioner/ respondent No.4 herein, is maintainable and hence, decided to proceed with the matter. The State Commission, in the Impugned Order, has further held that since the State Commission has jurisdiction to hear and decide the Petition filed by Mr. Rama Shankar Awasthi, it becomes incumbent upon the State Commission to further assess the benefits of such franchisee given to the appellant, Torren t Power Ltd. for the DISCOMs as also for the general public. The State Commission further has held that although the Torrent Power Ltd. has made submissions but submissions are insufficient and further since the said Petition had already been prolonged for many years and five years have already lapsed since the Agreement beca me effective, hence formation of a Committee with a specific purpose to ascertain the answers to the following questions:
(ii) What has been improvement in the collection efficiency from 2009 -10 level?
(iii) How much arrears have been recovered from the due amount f rom 2009 - 10?
(iv) Have the benefits of such improvements, if any, been passed on to the consumer and if ye s, how?
Apart from above specific questions the Committee would also examine the year wise technical and commercial performance of TPL. The Committee would be at liberty to investigate and examine any sort of data and accounts so as to assess the performance of TPL. The work shall be completed within two months of this order.
2) The appellan t has challenged the Impugned Order on the following main grounds:
(a) Lack of jurisdiction under the Electricity Act, 2003 for the State Commission to consider issues in public interest as well as contractual matters concerning the appointment of distrib ution franchisee, namely, Torrent Power Ltd. (TPL)
(b) Grievance of individual persons not maintainable before the State Commission under the provisions of the Electricity Act, 2003, particularly, when the matters are pending before the Hon''ble Allahabad High Court and also there is no remand by this Appellate Tribunal on the aspect of grant of franchisee.
3) The appellant herein, the Torrent Power Ltd., is a company formed under the provisions of Companies Act, 1956 and is in the business of generation a nd distribution of electricity.
3.1) The respondent No.1 is the State Commission which is empowered to discharge various functions under the provisions of the Electricity Act, 2003. Respondent No.2 is UPPCL and respondent No.3/DVVNL is a distribution lic ensee in the State of Uttar Pradesh. Respondent No.4/Mr. Rama Shankar Awasthi is a person who filed the Impugned Petition before the State Commission.
4) Mr. Rama Shankar Awasthi, respondent No.4/petitioner, preferred the Petition, being No.816 of 2012 before the State Commission, requesting the State Commission to investigate the conduct of UPPCL/DVVNL which had appointed Torrent Power Ltd. as a '' franchisee '' for the distribution of electricity in the urban area of Agra. By way of filing the Impugned Pe tition before the State Commission, Mr. Rama Shankar Awasthi impugned the distribution Franchisee Agreement dated 18.05.2009 and Supplementary Agreement dated 17.03.2010 entered and executed between the appellant and respondent No.3 and to investigate the conduct of respondent No.2 & 3 who had appointed the appellant as the franchisee for the distribution of electricity in the urban area of Agra without purportedly seeking prior approval of the State Commission for transfer of the assets/inventory of DVVNL to the appellant. The appellant herein raised the preliminary objection before the State Commission as to the jurisdiction and maintainability of the Petition and jurisdiction of the State Commission to hear the said Petition in which the aforesaid Impugned Order has been passed. According to Mr. Rama Shankar Awasthi/Petitioner, the licensee may appoint franchisee in the rural area as per Section 13 of the Electricity Act, 2003 and provisions of National Electricity Policy.
5) The relevant facts of the m atter are as under:
5.1) On or about 06.07.1999, the Uttar Pradesh Electricity Reform Act, 1999 came into force. In pursuance of reform restructuring exercise, the erstwhile U.P. State Electricity Board was unbundled on 14.01.2000 under the first reforms transfer scheme into the following three separate entities:
(a) Uttar Pradesh Power Corporation Ltd. (UPPCL) was vested with the function of transmission and distribution within the State.
(b) Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited (UPRVUNL) was vested with function of thermal generation within the State and
(c) Uttar Pradesh Jal Vidyut Nigam Limited (UPJVNL) was vested with the function of Hydro Generation within the State. The trifurcation of the UPSEB was accom panied by the financial restructuring of the State''s Power Sector utilities. Four new distribution companies namely, DVVNL, MVVNL, PVVNL and PVVNL were created vide Uttar Pradesh Transfer of Distribution Undertaking Scheme, 2003.
5.2) That on 10.06.2003, the Electricity Act, 2003 came into force.
5.3) On or about 12.08.20 03, the State Government notified the U.P Transfer of Distribution Undertaking Scheme 2003 for the purpose of providing and giving effect for transfer of distribution undertakings of U.P. Power Corporation Ltd. to four distribution companies, one of which was the DVVNL. In pursuance to the said transfer scheme, the respondent No. 3 became a distribution licensee under the provisions of the Electricity Act, 2003.
5.4) That on 18.05.2009, the Distribution Franchisee Agreement was entered into between the appellant and DVVNL, respondent No.3. The appellant was appointed as Distribution Franchisee under the Electricity Act, 2003 by UPPCL and DVVNL under Section 2(27), read with 7 th proviso t o Section 14 of the Electricity Act, 2003.
5.5) That on 17.03.2010, a Supplementary Agreement was executed between the appellant and respondent No.3. From the said date of execution of the said Agreements, the appellant had undertaken the work of distribu tion of electricity in the areas of Agra as agreed upon in the distribution franchisee agreement.
5.6) That Mr. Rama Shankar Awasthi, respondent No.4/petitioner preferred the Petition, being No. 816 of 2012 before the State Commission requesting it to inv estigate the conduct of UPPCL/GUVVNL which had appointed TPL as the franchisee for the distribution company for the urban city of Agra, impugning the distribution franchisee agreement dated 18.05.2009 and supplementary agreement dated 17.03.2010, executed between the appellant and respondent No.3, DVVNL, without seeking prior approval of the State Commission for transfer of assets/inventory of the DVVNL to the appellant. In the said Petition, the aforementioned Impugned Order dated 16.07.2015 has been pass ed which is being assailed before us in this appeal.
6) We have heard Mr. Jayant Bhushan, Sr. Adv., Mr. Ramji Srinivasan, Sr. Adv. Ms. Deepa Chawan for the appellant and Mr. C.K. Rai, Mr. Pradeep Misra, Ms.Alka Agarwal, Mr. Anand K. Ganesan and Mr. Rama Shankar Awasthi in person for the respondents. We have also gone through the written submissions filed on behalf of the respondents, perused the impugned order, including the material available on record.
7) The following two issues arise fo r our consideration:
(a) Whether the State Commission lacks jurisdiction under the Electricity Act, 2003 to consider issues in public interest as well as contractual matters concerning the appointment of distribution franchisee, namely Torrent Power Limited (TPL)
(b) Whether the grievance of individual persons is not maintainable before the State Commission under the provisions of the Electricity Act, 2003, particularly when the Writ Petition or public interest litigations are pending before the Hon''b le Allahabad High Court.
8) Since both these issues are interconnected, we are taking them and deciding them together. The following arguments have been made by the appellant on the said issues:
8.1) That the Impugned Order is clearly erroneous, contrary to law and material on record, so far as it relates to the interpretation of provisions of Electricity Act, 2003 and has made the seventh proviso to Section 14, read with Section 2(27) of the Electricity Act, 2003 otiose and nugatory.
8.2) That the Sta te Commission has failed to consider the import and meaning of the concept of franchisee and appointment of the franchisee namely, the appellant, TPL, by the distribution licensee, as ushered in the Electricity Act, 2003.
8.3) That the State Commission has usurped the jurisdiction of the public interest in passing the Impugned Order because the State Commission is not empowered to consider the issues of public interest as well as contractual matters concerning appointment of a distribution franchisee.
8.4) That Section 2(27) of the Electricity Act describes the '' franchisee '' as under: " franchisee" means a person authorized by a Distribution Licensee to distribute electricity on its behalf in a particular area within his area of supply."
8.5) That proviso 5 and 7 to Section 14 of the Electricity Act, 2003 respectively states as under: "... the Government company or company referred to in sub- section (2) of section 131 of this Act and the company or companied created in...
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