Damodar Valley Corporation vs Central Elec. Regulatory Comm. And Ors.

2. The appellant is a statutory body constituted under the Damodar Valley Corporation Act, 1948 (hereinafter referred to as ‘the DVC Act’). It was entrusted with multifarious functions. One of the functions it was entrusted was that it was duty bound to carry out generation, transmission and distribution of electrical energy both hydro electrical and thermal. It was also called upon to, operate schemes for irrigation, water supply and drainage besides flood control in the Damodar river and its tributaries. Acting under Section 20 of the DVC Act, the appellant was fixing the tariff for the electricity which it was generating and transmitting to its consumers. With the enactment of the Electricity Act in 2003, a suo motu proceeding was taken by the Commission with respect to the determination of the tariff of the appellant. Pursuant to the order dated 29.3.2005, the appellant filed Petition No. 66/2005 seeking determination of its tariff for the period from 2004 to 2009. By order dated 3.10.2006, the Commission proceeded to determine the tariff. The Commission proceeded 2 to take note of the multifarious functions with which the appellant was entrusted. Its case that it was following a cost plus policy for fixation of its tariff as also the difficulties that would be posed by imposing the tariff under the Act of 2003 with effect from 1.4.2004 was noticed. It was ordered that the tariff fixed by the Commission would apply from 2005-2006 and it was to operate from 1.4.2006. The Commission had also appointed one-man Commission. Besides the same it appreciated the scope of the Fourth proviso to Section 14 of the DVC Act and found that the provisions of the DVC Act which were not inconsistent with the 2003 Act would continue to hold good even after the enactment of the 2003 Act. Even if there was inconsistency between the DVC Act and the regulation made under the 2003 Act, the DVC Act would continue to operate. After settling the legal position, in this regard, the Commission proceeded to decide upon the various contentions relating to elements which were to constitute the tariff.

13. This order was appealed against by the appellant. The appeal culminated in the order dated 23.11.2007. Let us examine what the appellate Tribunal said about the complaint of the appellant based on Section 38 of the DVC Act. The main order was written by the Technical Member 15 with whom the Chairman agreed with the separate concurring judgment.

operating norms prescribed in the 2004 Regulations;

26. A perusal of the same would appear to suggest the substantive question of law sought to be raised as part of the second contention, does not remain open for adjudication.

27. When the matter went back pursuant to the remand order in the first round of litigation which has become final in view of the dismissal of appeal by this Court, the Central Commission has only reiterated the procedure in the matter of calculating interest on loan by reducing the loan amount by the cumulative depreciation. This is a procedure to which exception was not taken in the first round when the appellant could have taken exception to the same. This is also for the period prior to 31.3.2006. Having regard to what is stated in paragraph 57 in the earlier round of litigation, therefore, on a point which has become final in the earlier round, we are not persuaded to hold that it will be open for the appellant to raise the same issue in the second round in respect of a matter which has attained finality. On this ground, we think that the appellant is 34 not entitled for consideration of the said point at our hands. Accordingly, we refuse to answer the question of law which is raised. The upshot of the above discussion is that the appellant has not made out a case for interference. The appeal fails and is dismissed. The parties will bear their respective costs.

….……….……………………………CJI.

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