Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Appellate Tribunal for Electricity (Aptel): In an appeal filed by Uttar Pradesh Jal Vidyut Nigam Ltd. (UPJVNL), the Division Bench of Virender Bhat, Judicial Member and Seema Gupta, Officiating Chairperson, partly allowed the appeal and set aside the impugned order dated 11 July 2018 passed by Central Electricity Regulatory Commission (CERC) to the extent it modified its earlier order dated 12 October 2017 and held that CERC exceeded its review jurisdiction by issuing fresh directions on an issue neither raised in the review petition nor argued by the parties, thereby violating principles of natural justice.
Background
In the present appeal, the Rihand Hydro Power Station and Matatila Hydro Power Station, developed by the Government of U.P. and later transferred to the U.P. Electricity Board, were subsequently transferred to the appellant in the year 2000. The State of Madhya Pradesh demanded compensation in the form of power supply for the submergence of land and forests caused by the development of these generating stations.
The dispute pertained to tariff and operation and maintenance (O&M) expenses of the two generating stations. In a petition filed by Madhya Pradesh Power Management Company Ltd. (MPPMCL), CERC by order dated 12 October 2017 directed the Respondent UPJVNL, to file the tariff petition for the period from 1 April 2014 onwards and not from 1 April 2008, on account of the tariff having been already decided by the UPERC for the said period.
Aggrieved, MPPMCL filed a review petition seeking directions for filing tariff petition from 1 April 2008 onwards to which the CERC rejected holding that its earlier decision was a conscious one and disclosed no error apparent on the face of the record.
However, while disposing of the review petition, CERC observed that one of the prayers in the petition, had not been addressed and proceeded to modify its earlier order by directing payment of O&M charges for the period 1 April 2008 to 31 March 2014 in accordance with UPERC tariff orders.
Analysis and decision
The Tribunal observed that the CERC modified its order dated 12 October 2017, such modification was impugned in the present appeal. The Tribunal agreed with the contentions of the appellant and found that the modification made in the review order was absolutely unwarranted, uncalled for, and perverse.
The Tribunal noted that no plea was raised in the review petition that any prayer in the original petition remained unaddressed in the order dated 12 October 2017. Despite this, the CERC identified alleged shortcomings and proceeded to rectify them. It reiterated that review powers under Section 114 and Order 47, Civil Procedure Code, 1908 (CPC) can be exercised only upon an application by a party and not suo motu. Since, no such ground was urged and Respondent 2 was satisfied with the order, the CERC had no occasion to revisit or correct it and thus the approach cannot be countenanced.
The Tribunal noted that the CERC had violated the fundamental principle of natural justice, “audi alteram partem” (no person should be condemned unheard), and also stated that “we find it ironical that the CERC has ignored this basic tenet of natural justice by issuing the direction in question without hearing the Appellant”. Thus, it was held that the impugned order cannot be sustained on this count also.
The Tribunal further noted that when the CERC accepted the tariff orders passed by U.P. Electricity Regulatory Commission (UPERC) for the two power projects and consciously decided not to reopen them, it had no occasion to direct payment of only O&M charges for the period from 1 April 2008 to 31 March 2014. If UPERC lacked jurisdiction, the CERC ought to have redetermined tariff for the entire period, commencing from the year 2000—2001, which it did not. Instead, CERC only reopened the tariff determined by UPERC up to 2013—2014, andupheld its validity. CERC could not direct payment of only O&M charges as CERC was not exercising appellate jurisdiction over UPERC. Once CERC declined to reopen the tariff, it ought to have left it to the parties to challenge those orders in accordance with law. Thus, it was held that the impugned direction was unsustainable.
The Tribunal set aside the impugned order to the extent it modified the CERC’s earlier order dated 12 October 2017, while leaving the remaining portion of the impugned order undisturbed.
[U.P. Jal Vidyut Nigam Ltd. v. CERC, App No. 309 of 2018, decided on 13-4-2026]
Advocates who appeared in this case:
For the petitioner: Amit Kapur, Akshat Jain, Avdesh Mandloi, Abhimanyu Maheshwari, Shikhar Verma, Rishabh Bhardwaj, Sayan Ghosh
For the respondent: G. Umapathy Sr. Adv. Aditya Singh, Hemant Sahai, Puja Priyadarshini Soumya Prakash, Anukriti Jain, Jyotshna Khatri, Parichita Chowdhury
