Sai Bhaskar Iron Ltd vs A.P.Elect.Regul.Commission & Ors

5. The Commission had also framed terms and conditions for determination of tariff for wheeling and retail sale of electricity called the Andhra Pradesh Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff for Wheeling and Retail Sale of Electricity), Regulation, 2005. Aggregate Revenue Requirement (in short “ARR”) was specified in Regulation 2(1)(2). Regulation 3(4) provided ARR to be the basis for the fixation of the tariff/charges for retail sale of electricity including surcharges. However Regulation 24(3) provided that nothing in the Regulation shall, expressly or by implication, bar the Commission from dealing with any matter or exercising any power under the Act for which no Regulations have been framed, and the Commission may deal with such matters, exercise such powers and discharge such functions in a manner it deems fit. The orders of the Commission determining the FSA were questioned before the High Court. Writ petitions were filed before the High Court challenging the vires of section 26(2) of the Act of 1998, and the validity of Regulation 45-B of Regulations of 1999 as substituted in 2003. The Commission determined the FSA for all the eight quarters for the period from 2010 to March, 2012 vide order dated 20.9.2012 and vide order dated 2.11.2012 for the first quarter of financial year 2012-13. The orders were also questioned in the writ petition. The Division Bench of the High Court vide order dated 24.2.2014 upheld the vires of the Regulations and on merits left the matter to be agitated in the alternative remedy of appeal. However, writ petitions which were filed were also disposed of in terms of order dated 24.2.2014 hence the special leave petitions have been filed in this Court.

The Regulations of 2005 do not deal with determination of fuel surcharge. Regulation 45-B cannot be said to be invalid for the aforesaid reason.

Conclusion :

42. In our opinion, the challenge made by the appellants is unworthy of acceptance. Fuel surcharge is really a surcharge levied to meet increased cost of generation and purchase of electricity and the scope cannot be circumscribed by its nomenclature. Thus the formula in Regulation 45B and the FSA determined by the Commission would take into consideration various factors which result in the increased cost of generation and purchase of electricity.

43. The appeals are found to be devoid of merits and are hereby dismissed. The appellants are directed to make the deposit along with interest; if no other rate is prescribed at the rate of 8 per cent per annum, and other charges for delay, as may be permissible to recover within a period of one month from today. In addition, the respondents are at liberty to take coercive steps to recover the amount.

CA No. 5858 of 2016 @ SLP [C] No.12607/2015 CA No. 5859 of 2016 @ SLP [C] No. 34088/2015 CA No. 5860 of 2016 @ SLP [C] No. 3063/2016; and CA No. 5861 of 2016 @ SLP [C] No. 3516/2016.

[HEARD BY HON'BLE V. GOPALA GOWDA AND HON'BLE ARUN MISHRA, JJ.] Date : 05/07/2016 These appeals were called on for pronouncement of judgment today.

For Appellant(s) Mr. C. S. N. Mohan Rao,Adv.

Mr. Abhijit Sengupta,Adv.

Mr. Sudhir Naagar,Adv.

Mr. Y. Raja Gopala Rao,Adv.

Ms. Vismai Rao,Adv.

Mr. Ananga Bhattacharyya,Adv.

Mr. B. Ramana Murthy,Adv.

Mrs. Sudha Gupta,Adv.

Mr. Rakesh Dahiya,Adv.

Mr. M. P. Shorawala,Adv.

Mr. M. Ram Babu, Adv.

Mr. N. Eswara Rao, Adv.

for M/s. M. Rambabu & Co.

Mr. Senthil Jagadeesan,Adv.

Mr. Venkateswara Rao Anumolu,Adv.

Mr. G. Umapathy, Adv.

for Mr. Rohit K. Singh,AOR Mr. Sanjay Jain,Adv.

Mr. Vikas Mehta,Adv.

Ms. Anushree Menon, Adv.

Ms. Liz Mathew, Adv.

for M/s. Mclm & Co.

Mr. D. Mahesh Babu,Adv.

Mr. Danish Zubair Khan,Adv.

Hon'ble Mr. Justice Arun Mishra pronounced the judgment of the Bench comprising Hon'ble Mr. Justice V. Gopala Gowda and His Lordship.

Delay, if any, in filing substitution application/s is also condoned. Substitution applications are allowed.

For the reasons recorded in the reportable judgment, which is placed on the file, the appeals are dismissed. The appellants are directed to make the deposit along with interest; if no other rate is prescribed at the rate of 8 per cent per annum, and other charges for delay, as may be permissible to recover within a period of one month from today. In addition, the respondents are at liberty to take coercive steps to recover the amount.

Pending applications, if any, stand disposed of.