U.P. Power Corporation Limited vs Central Electricity Regulatory Commission and Another

Rajiv Sharma, J.—Issue notice on behalf of Central Electricity Regulatory Commission has been accepted by Mr.Pratul Srivastava and Mr. S.S. Chaudhari, whereas notice on behalf of opposite party No. 2 by Mr. Ram Raj.

A preliminary objection has been raised by the learned Counsel for the opposite parties that the petitioner has got specific, efficacious and alternative remedy by preferring an appeal u/s 111 of the Electricity Act, 2003, to which Mr. S.K. Kalia, Senior Advocate appearing for the petitioner alongwith Mr. D. D. Chopra states that the impugned order has been passed without affording any opportunity and further, the opposite party No. 1 has exceeded jurisdiction not vested in it and as such, the plea for alternative remedy is not a bar for entertaining the instant writ petition. In support of his submission, Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others,

Admit.

Issue notice.

Since notice has already been accepted by all the opposite parties, fresh steps need not be taken.

Initially, Mr. Ram Raj, learned Counsel appearing for the opposite party No. 2, prays that the case may be taken up on 5.5.2008, but subsequently he prayed that six weeks'' time may be granted to file counter affidavit.

Time prayed for is granted. Four weeks thereafter are granted to the petitioner for filing rejoinder affidavit.

It has been contended by Mr. S.K. Kalia, Senior Advocate that by means of the impugned order 7.11.2007, which was extended vide order dated 15.2.2008, the congestion charges have been levied, which cannot be levied by the Central Electricity Regulatory Commission, insofar as the said Commission may, by notification make regulations consistent with this Act and the rules generally to carry out the provisions of the Act and not by means of the orders as passed in the instant case.

Rebutting the arguments of the learned Counsel for the petitioner, Mr. Pratul Srivastava, appearing for the Central Electricity Regulatory Commission, submits that the Commission has jurisdiction to pass the impugned orders in view of the provisions of Section 79 which provides for functions of the Central Commission. He has also relied upon the provisions of Section 79(1)(C) of the Act which provides to regulate the inter-State transmission of electricity. He has also relied upon the provisions of 28 (4) of the Act which reads as under:

The Regional Load Despatch Centre may levy and collect such fee and charges from the generating companies or licensees engaged in inter-State transmission of electricity as may be specified by the Central Commission.

He further submits that in view of above, the Central Commission has rightly imposed the congestion charges.

Mr. Ram Raj, learned Counsel appearing for the opposite party No. 2 submits that since the date of passing of the impugned order dated 7.11.2007, which was extended vide order dated 15.2.2008, no prejudice has been caused to the petitioner as the Corporation has approached this Court only on 1.5.2008 in pursuance of the aforesaid orders till date and as such, nothing will happen till 5.5.2008, but did not furnish any undertaking to the same effect.

Rebutting the arguments of the learned Counsel for the opposite parties, Mr. S.K. Kalia, Senior Advocate, appearing for the petitioner submits that if any charges, which are to be levied, then regulations as provided u/s 178(h) of the Act are to be framed and for framing regulation, specific procedure has been prescribed, which has not been done in the instant case. Further, in a petition preferred by the opposite party No. 2 which was numbered as Petition No. 117 of 2007 no such relief was prayed for levying the congestion charges and as such, there was no occasion for filing a reply to the congestion charges which have been levied by the opposite party No. 1. So, the petitioner was denied the opportunity of hearing which is in violation of the principles of natural justice and the instant order for levying congestion charges is not in accordance with the statutory provisions.

Prima facie, a case for interim relief is made out.

Till the next date of listing, if any notice is being issued in pursuance of the impugned order dated 15.2.2008, the same shall be kept in abeyance.