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Judgment
Dr. B.R. Sarangi, J.—1. The petitioner, which is a wholly owned Government of Odisha Company registered under the Companies Act, 1956, has filed this petition seeking to quash the order dated 1.12.2008 passed by the Orissa Electricity Regulatory Commission in Case No. 77 of 2007 vide Annexure-5 whereby it has been held that the application filed by opposite party No. 1-Company for refund of the supervision charges is maintainable.
The factual matrix of the case, in hand, is that opposite party No. 1-Company manufactures Sponge Iron in its factory. To support its sponge iron production, the opposite party No. 1-Company has installed two captive generating plant of 7.5 M.W. and 18.5 M.W. in its factory premises, which operates using the waste heat of its Kiln Nos. 1, 2 and 3. The opposite party No. 1-Company constructed a 7.1 K.M. 220 K.V. dedicated transmission line from its generating plant to Joda Grid sub-station and one 220 K.V. Feeder Bay at Joda Grid substation and requested the petitioner to sanction the estimate and fix the supervision charges. Accordingly, the Chief Engineer (TP), OPTCL approved the technical sanction on 20.10.2005 for the said work and directed to execute the work after payment of the supervision charges. The amount estimated was Rs. 12,01,87,600.00 and the supervision charges for the said work was fixed at Rs. 1,98,30,800.00. On 8.11.2005 the Vice-President (Operation) of the, opposite party No. 1-Company by its letter to Chief Engineer (TP), OPTCL enclosed the demand draft of Rs. 56,63,400.00 after deducting TDS and Education Cess from the total amount of Rs. 60,00,000.00 towards part payment of supervision charges. In the said letter, the opposite party No. 1-Company, requested to review and re-examine the sanctioned estimate as it considered the estimated amount of Rs. 12,01,87,600.00 to be on the higher side considering the length of 7 KM and its Bay. On 29.11.2006, the opposite party No. 1-Company wrote to the Chief Engineer (TP), OPTCL that 220 K.V. project work including Bay is nearer to completion and the value of the project considering all the costs is found to be Rs. 7,41,74,111.00 and requested to consider the issue of supervision charges taking into account the actual cost of the project, which is much less than the initial estimate for depositing the balance amount. On 30.12.2006 the opposite party No. 1-Company by letter to the Chief Engineer (TP), OPTCL remitted the balance amount of Rs. 73,99,987.00 after deducting TDS and Education Cess from the total amount of Rs. 73,39,80,000.00 by demand draft dated 27.12.2006 and assured to submit the item-wise details of actual expenditure incurred to facilitate to arrive at the actual expenditure and supervision charges. By letter dated 03.02.2007, the opposite party No. 1-Company wrote to the Chief Engineer (TP), OPTCL that the total expenditure incurred was to the tune of Rs. 7,41,05,000.00 instead of the estimated cost of Rs. 12,01,87,600.00 and sought for revision of the supervision charges on the basis of the actual expenditure. By letter dated 03.02.2007 the Chief Engineer (TP), OPTCL wrote to the opposite party No. 1-Company to get the actual quantities of materials used for the line, bay extension and PLCC equipment certified by respective field engineers of OTPCL for revision of estimate after receipt of such citification. On 01.03.2007, the AGM (Electrical), OPTCL, Jharsuguda, requested the opposite party No. 1-Company to furnish the volume of concrete used in each foundation as per the classification, the total type of towers used etc. and in reply the opposite party No. 1-Company furnished details of expenditure with documents in its letter dated 28.03.2007 for refund of excess amount of supervision charges. Since neither any reply was received from AGM (Electrical), OPTCL nor the amount was refunded, the opposite party No. 1-Company approached the Orissa Electricity Regulatory Commission, (hereinafter referred to as ''Commission'', in short) to direct the petitioner to revise the technical sanction order dated 28.10.2005 on the basis of the actual expenditure incurred by the opposite party No. 1-Company and further sought for a direction to refund the supervision charges illegally collected from the opposite party No. 1-Company. The petitioner raised preliminary objection with regard to the maintainability of the application filed by the opposite party No. 1-Company. The OERC after hearing the parties held that the application filed by opposite party No. 1-Company is maintainable. Hence this petition.
Mr. N.C. Panigrahi, learned Senior Counsel for the petitioner urged that the opposite party No. 1-Company is not a licencee in view of the two separate definition provided under Sections 2(8) and 2(28) of the Electricity Act, 2003 (in short "the Act") as "Captive generating plant" and "generating company" respectively. He further submits that the opposite party No. 1-Company having a captive power plant is distinguished from generating company and as such, the Act having been provided two separate definitions, it has to be construed separately and more so, under Section 86(1)(f) of the Act, the Commission is only empowered to adjudicate the dispute between the generating company and the licensees, and to refer the dispute for arbitration. The scope of the power is confined to the matters covered under the Act and regulations framed thereunder. Since the opposite party No. 1-Company has got captive generating plant, it cannot be named as "generating company" for the purpose of adjudication of the dispute in question. The captive generating plant has distinct identity and stands in a different footing than that of generating company and more so, Section 9 of the Act stipulates that the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company. Therefore, the captive generating plant having been allowed to construct, maintain or operate dedicated transmission lines, it cannot be equated to acquire the place of generating company under Section 86(1)(f) of the Act. In order to substantiate its contention, he has relied on Maharashtra Electricity Regulatory Commission v. Reliance Energy Ltd. and others , (2007) 8 SCC 381. It is further urged that if the statute prescribes two separate definitions i.e. Section 2(8) and Section 2(28) defining "captive generating plant" and "generating company" respectively, the legislative intention is that every part of statute should have its own effect. In support of such contention, he has relied upon M/s. D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and others, , AIR 2003 SC 1648; B.D. Shetty and others v. M/s. Ceat Ltd. and others, , AIR 2001 SC 2953 and Sri Jeyaram Educational Trust & Ors. V. A.G. Syed Mohideen & Ors, , AIR 2010 SC 671.
Mr. A.K. Parija, learned Senior Counsel for the opposite party No. 1-Company urged that admittedly, the petitioner is a licensee and the opposite party No. 1-Company is not a licensee and more so, the opposite party No. 1-Company cannot be considered as a consumer so as to oust the jurisdiction of the Act and the Rules and Regulations framed thereunder. He further submits that admittedly, the opposite party No. 1-Company has two power plants to generate electricity primarily for its own use within the meaning of Section 2(8) of the Act. As such, the opposite party No. 1-Company produces electricity from its captive generating plant for the purpose of giving supply to any premises including its own premises having its own generating station. Section 2(28) of the Act stipulates that any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person, which owns or operates or maintains a generating station can be called as generating company. Opposite party No. 1-Company having its captive generating plant, owns, operates and maintains its generating station by producing electricity from its generating plant. It being a generating company, the dispute raised by the opposite party No. 1-Company comes within the purview of the provisions contained under Section 86(1)(f) of the Act. It is further urged that in view of the specific provision contained under Section 86(1)(f) of the Act, power has been vested with the Commission to adjudicate the dispute between the licensee and the generating company and refer any dispute for arbitration. Therefore, he submits that since there is a dispute between the licensee and generating company, namely, the petitioner and opposite party No. 1-Company, respectively, the Commission has to adjudicate the dispute itself and to refer any dispute for arbitration. It is a fact that the petitioner forcibly collected the supervision charges, which was paid by opposite party No. 1-Company under protest only to avoid delay of construction of the line and bay etc. and the connectivity of the said line with Joda Grid Station. The opposite party No. 1-Company, being a captive generating plant, it can construct, maintain and operate dedicated transmission line as per the provisions of Section 9 of the Act. Hence, the opposite party No. 1-Company is not liable to pay the supervision charges to the petitioner in respect of construction of its 220 KV line from its captive generating plant to Joda Grid Sub-station and bay at the said Substation. He further submits that the supervision charge is leviable only on the works executed for on behalf of the consumer by the petitioner and since the petitioner has not constructed/executed the construction of the aforesaid line and bay for and on behalf of the opposite party No. 1-Company, levy of supervision charges by the petitioner cannot sustain and as such, the amount so collected towards supervision charges should be refunded to the opposite party No. 1-Company. According to him the aforesaid line and bay at Joda Grid Sub-station has been constructed by the approved contractor of the petitioner under efficient supervision of its engineers, which has also been approved by the Electrical Inspector upon deposit of all statutory dues permitted for energisation. He further urged that since the opposite party No. 1-Company has complied with all statutory requirements, the amount forcibly collected towards supervision charges, which the opposite party No. 1-Company is not liable to pay, should be refunded and to that extent though correspondences have been made, no reply has been received from the authorities concerned. Therefore, opposite party No. 1-Company approached the Commission by raising a dispute as per the provisions contained under Section 86(1)(f) of the Act.
On the basis of the facts pleaded above and arguments advanced by the respective parties, the sole question that falls for consideration before this Court is whether the Commission is justified in holding that the application is maintainable in view of the provisions contained in Section 86(1)(f) of the Act in order to adjudicate upon the dispute between the licensee and the generating company.
It is profitable to indicate the statutory provision basing upon which the dispute in question is to be adjudicated upon. Section 2(8), 2 (28), 2(29), 2(30) and 86(1)(f) of the Act are quoted hereunder.
"2(8) "Captive generating plant" means a power plant set up by any person to generate electricity primarily for his own use and includes a power plant set up by any co-operative society or association of persons for generating electricity primarily for use of members of such cooperative society or association;
2(28) "generating company" means any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person, which owns or operates or maintains a generating station;
2(29) "generate" means to produce electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given;
2(30) "generating station" or "station" means any station for generating electricity, including any building and plant with step-up transformer, switchgear, switch yard, cables or other appurtenant equipment, if any, used for that purpose and the site thereof; a site intended to be used for a generating station, and any building used for housing the operating staff of a generating station, and where electricity is generated by water-power, includes penstocks, head and tail works, main and regulating reservoirs, dams and other hydraulic works, but does not in any case include any sub-station;
Section 86. Functions of State Commission:--(1) The State Commission shall discharge the following functions, namely:--
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(f) adjudicate upon the disputes between the licensees, and generating companies and to refer any dispute for arbitration;"
Admittedly, the opposite party No. 1-Company produces electricity from its generating station for the purpose of giving power supply to the premises, thereby it generates electricity within the meaning of Section 2(29) of the Act. The meaning attached to "generating station" or "station" under Section 2(30) of the Act is also satisfied to the extent that opposite party No. 1-Company has its generating station having two separate captive power plant within the meaning of section 2(8) of the Act, thereby the, opposite party No. 1-Company is a generating company within the meaning of Section 2(28) of the Act itself. The opposite party No. 1 being a generating company within the meaning of section 2(28) of the Act having two separate captive generating plants within the meaning of Section 2(8) of the Act, any dispute between the licensee and the generating company, can be adjudicated upon under Section 86(1)(f) of the Act. Section 9 of the Act also states about "Captive generation". Section 2(16) defines "Dedicated Transmission Lines" which means any electricity supply line for point to point transmission which are required for the purpose of connecting electric lines or electric plants of a captive generating plant referred to in section 9 or generating station referred to in section 10 to any transmission lines or substations or generating stations or the load centre, as the case may be. Therefore, the opposite party No. 1-Company is to transmit the surplus power generated in the captive power plant from its generating station as referred to Section 10 of the Act through its transmission line to its grid sub-station at Joda. Therefore, it is not required to pay the supervision charges.
In Maharashtra Electricity Regulatory Commission (supra) the apex Court has held that the Electricity Regulatory Commission has got its limited function prescribed under Section 86(1)(f) of the Act by which the Commission has only power to adjudicate the dispute between the licensee and generating company and it cannot adjudicate the dispute relating to the grievance of individual consumers. There is no dispute with regard to the law laid down by the apex Court as mentioned supra. If there is a dispute between the licensee and generating company, the same can be adjudicated by the Regulatory Commission and referred for arbitration.
Admittedly, the petitioner being a ''licensee'' and the opposite party No. 1 being a "generating company" and if there exists a dispute between the parties, as per the provisions contained under Section 86(1)(f) of the Act, it is the regulatory Commission which has jurisdiction over the matter to adjudicate upon the dispute raised by the parties. As such, the contention raised that opposite party No. 1-Company is a consumer and therefore, the dispute relating to the grievance of an individual consumer the matter has to be referred to Grievance Redressal Forum, has no basis at all.
Reference made to M/s. D.L.F. Qutab Enclave Complex Educational Charitable Trust (supra), B.D. Shetty and others (supra) and Sri Jeyaram Educational Trust & Ors. (supra) so far as principle of interpretation of statute is concerned, the apex Court has held that every part of statute should have effect and there is no dispute on that question itself.
Considering the law laid down by the apex Court in the above mentioned cases and applying the same to the present context, having considered the provisions of the Act so far it relates to the, opposite party No. 1-Company vis-�-vis the petitioner whereby a conclusion can be drawn that the petitioner being a ''licensee'' and the opposite party No. 1- being a "generating company", the dispute between the two can be resolved by the Commission in view of the provisions contained under Section 86(1)(f) of the Act and as such, the application filed before such Commission is maintainable. It is nobody''s case that the opposite party No. 1 has no captive generating plant, rather unequivocally the parties have admitted that the opposite party No. 1 has two separate captive generating plants within its premises for its own consumption. But if any surplus power is there then the same can be transmitted through the dedicated transmission line to the Grid station for utilization by others. Therefore, when surplus power is being transmitted through the dedicated transmission line, no supervision charge should be demanded by the petitioner.
In view of the foregoing discussions, it is made clear that the Commission has got jurisdiction to adjudicate the disputes between the petitioner and the opposite party No. 1 being a licensee and generating company respectively under Section 86(1)(f) of the Act and as such, the application filed before such Commission is maintainable. Thus, the impugned order dated 1.12.2008 passed by the Orissa Electricity Regulatory Commission in Case No. 77 of 2007 vide Annexure-5 is upheld. Consequently, the writ petition merits no consideration and the same is dismissed. No cost.