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Southern Power Distribution Company of Andhra Pradesh Limited, Rep. by its Chairman & Managing Director, Beside Srinivas Kalyana & Another v/s Andhra Pradesh Electricity Regulatory Commission, Rep. by its Secretary & Others

    Writ Petition No. 25990 OF 2021

    Decided On, 06 December 2021

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE A.V. SESHA SAI

    For the Petitioners: S. Sriram, Advocate General. For the Respondents: R2, Challa Gunaranjan, Advocate.



Judgment Text

1. The present Writ Petition, filed under Article 226 of the Constitution of India, calls in question the order dated 02.08.2021 passed by the Andhra Pradesh Electricity Regulatory Commission – respondent No.1 herein. Petitioner No.1 is a Distribution Company, completely owned and operated by the State of Andhra Pradesh and incorporated under the provisions of the Companies Act, 1956, and petitioner No.2 herein is a Transmission Company, which is also a Company incorporated under the provisions of the Companies Act, 1956 and is also fully owned by the State of Andhra Pradesh. Respondent No.2 herein is also a company registered under the Companies Act, 1956, under the control of the Union of India and is a Maharatna Company, responsible for the supply of fuel for various purposes. Respondent No.2-Company is also in the business of generating wind energy and supplying the same to the distribution companies and in furtherance of the same, respondent No.2 herein entered into various power purchase agreements with the petitioners. Respondent No.2 entered into power purchase agreements dated 31.01.2012, 08.05.2012, 21.03.2013 and 18.07.2014. The present dispute is only with regard to the payment of tariff with regard to the power purchase agreements entered into on 21.03.2013 and 18.07.2014, wherein the tariff was fixed @Rs.4.70 per unit. Respondent No.2 herein approached the Andhra Pradesh State Electricity Regulatory Commission, by way of filing O.P. No.64 of 2019 against the petitioners herein, complaining non-payment of the tariff under the power purchase agreements dated 21.03.2013 and 18.07.2014. The Andhra Pradesh Electricity Regulatory Commission, by way of an order dated 02.08.2021, allowed the said O.P. No.64 of 2019 in part and granted the following reliefs in favour of respondent No.2 herein:

"(a) Respondent No.1 shall pay all the outstanding bills to the petitioner under all the four PPAs as per the invoices raised by the petitioner in two equal monthly instalments. The first instalment shall be paid on or before 15.09.2021 and the second instalment shall be paid on or before 31.10.2021.

(b) Respondent No.1 shall pay LPS on the arrears at 50% of the ruling Prime Lending Rate along with the arrears as per the schedule fixed under (a) supra."

2. In the above background, assailing the validity and the legal sustainability of the said order passed by the Andhra Pradesh Electricity Regulatory Commission, the present Writ Petition has been filed.

3. Resisting the present Writ Petition, a preliminary counter-affidavit has been filed by respondent No.2 herein.

4. Heard the learned Advocate General for the petitioners and Sri Challa Gunaranjan, learned counsel for respondent No.2, apart from perusing the material available on record.

5. Submissions/contentions of the learned Advocate General:

(1) The order passed by respondent No.1-Andhra Pradesh Electricity Regulatory Commission is highly erroneous, contrary to law and is in excess of the jurisdiction vested in the Commission.

(2) The Commission passed the questioned order without taking into account the submissions made and the contentions advanced on behalf of the petitioners herein.

(3) The Commission grossly erred in holding that the orders of this Court in W.P. Nos.9844 of 2019 and Batch confines itself to the generators which have approached this Court and that the said finding tantamounts interpretation of the orders passed by this Court and the same is in excess of the jurisdiction of respondent No.1-Commission.

(4) The Commission grossly erred in holding that since the order in W.P. Nos.9844 of 2019 dated 24.09.2019 is not applicable to respondent No.2, respondent No.2 is entitled to receive payments @Rs.4.70 as originally agreed vide power purchase agreements dated 21.03.2013 and 18.07.2014.

(5) The findings recorded by respondent No.1, which are in excess of the jurisdiction would have large scale impact on all power generators who have not approached this Court, challenging G.O.Rt. No.63 Energy (Power II) Department dated 01.07.2019 and the consequential letter dated 12.07.2019 and would also lead to disparity between two similarly placed parties who have been issued the very same letter dated 12.07.2019 and who have been made parties to the Revision Petition before respondent No.1 and is violative of Article 14 of the Constitution of India.

(6) The impugned order passed by respondent No.1-Commission will have a snow ball effect on the distribution companies and the distribution companies will be arm-twisted into paying the amount as originally agreed to all the parties who have not challenged G.O.Rt. No.63 dated 01.07.2019 and consequential letter dated 12.07.2019 and if the same is permitted, the spirit of the order of the learned single Judge in W.P. No.9844 of 2019 and Batch would be defeated.

6. In support of his submissions and contentions, learned Advocate General places reliance on the following judgments:

1. Chimmonlall Rameshwarlall Vs. The Commissioner of Income Tax (Central), Calcutta (AIR 1960 SC 280).

2. India Household and Healthcare Ltd., Vs. LG Household and Healthcare Ltd. (2007) 5 SCC 510)

3. Uttar Pradesh State Road Transport Corporation Vs. Assistant Commissioner of Police (Traffic), Delhi. (2009) 3 SCC 643)

7. Submissions/contentions of Sri Challa Gunaranjan, learned counsel for respondent No.2:

(1) There is absolutely no illegality nor there exists any procedural infirmities in the impugned order and in the absence of the same, the questioned order is not amenable for any judicial review under Article 226 of the Constitution of India.

(2) The present Writ Petition, filed under Article 226 of the Constitution of India, is not maintainable in view of availability of effective and efficacious alternative remedy of appeal to the Central Electricity Regulatory Commission under Section 111 of the Electricity Act, 2003.

(3) Respondent No.1 – Andhra Pradesh Electricity Regulatory Commission, after meticulously and thoroughly considering various issues raised by all the parties to the Original Petition, passed the impugned order, as such, the same cannot be faulted and by any stretch of imagination, it cannot be said that respondent No.1-Commission exceeded its jurisdiction.

(4) The very entertainability of O.P. No.66 of 2019 is under challenge before the Appellate Tribunal for electricity in DFR No.2405 of 2019 and the Appellate Tribunal, vide orders dated 05.12.2019, stayed the proceedings in O.P. No.66 of 2019 on the file of respondent No.1 herein.

(5) In support of his submissions and contentions, learned counsel for respondent No.2 places reliance on the judgment of the Hon’ble Apex Court in the case of The Assistant Commissioner of State Tax and others Vs. M/s. Commercial Steel Limited (Civil Appeal No.5121 of 2021 dated 03.09.2021) dated 03.09.2021 in Civil Appeal No.5121 of 2021.

8. In the light of the facts and circumstances of the case on hand, the pleadings available on record and the contentions advanced by the learned Advocate General and the learned counsel for respondent No.2, the following issues emerge for consideration and adjudication by this Court under Article 226 of the Constitution of India:

(1) Whether the present Writ Petition, filed under Article 226 of the Constitution of India, is maintainable before this Court against the order impugned?

(2) Whether respondent No.1 – Andhra Pradesh Electricity Regulatory Commission exceeded its jurisdiction while passing the impugned order?

(3) Whether the petitioners herein are entitled for any relief in the present Writ Petition?

9. Findings on Issue Nos.1 and 2: There is absolutely no controversy with regard to the reality that the petitioners and respondent No.2 entered into power purchase agreements on 21.03.2013 and 18.07.2014, agreeing for the tariff of Rs.4.70 per unit. The Government of Andhra Pradesh issued G.O.Rt.No.63 Energy (Power II) Department dated 01.07.2019, constituting a High Level Negotiation Committee for the purpose of reviewing, negotiating and to bring down the alleged high wind and solar energy purchase prices. Thereafter, the Chief General Manager (IPC), A.P.S.P.D.C.L. Corporate Office, Tirupati, by way of a letter Lr.No.CGM/IPC/APSPDCL/GM/IPC/D.No.550/19 dated 12.07.2019, made a request to the Generating Companies to submit revised/reduced monthly power supply bills, pending for payment by duly revising the tariff @Rs.2.43 per unit on the ground that the distribution companies were suffering huge financial crises. Questioning the validity of the said G.O.Rt.No.63 dated 01.07.2019 and the letter dated 12.07.2019, certain Generating Companies preferred W.P.No.9844 of 2019 and Batch before this Court. By way of a common order dated 24.09.2019, learned single Judge of this Court, allowed the said Batch of Writ Petitions, setting aside G.O.Rt.No.63 dated 01.07.2019 and the letter dated 12.07.2019 and also directed the Distribution Companies to clear the bills of the petitioners therein from June, 2018 onwards @Rs.2.44 per unit for solar generators and Rs.2.43 on wind generators and to pay future bills as an interim arrangement till the resolution of the dispute by respondent No.1-Commission constituted under the Electricity Act, 2003, and also fixed six months’ time to respondent No.1 to adjudicate and also requested respondent No.1 to complete the adjudication within six months. Thereafter, petitioner No.1 herein approached the APERC by filing O.P. No.66 of 2019 on 09.10.2019, seeking to amend the tariff from Rs.4.70 per unit to Rs.2.43 per unit from the financial year 2019-20 and to restrict the tariff duration of power purchase agreements for a period between 5 to 10 years as against the existing period of 25 years. In the said O.P. No.66 of 2019, respondent No.2 has also been arrayed as respondent No.4. Questioning the very entertainability of the said O.P. No.66 of 2019, one M/s. Rayala Wind Power Company Private Limited carried the matter to the Appellate Tribunal, New Delhi and by way of an order dated 05.12.2019, the Appellate Tribunal stayed further proceedings before the State Commission in O.P. No.64 of 2019 and the said order is still subsisting. It is also pertinent to note that as against the common order dated 24.09.2019 in W.P. No.9844 of 2019 and Batch, Writ Appeal No.393 2019 is preferred, challenging the order of the learned single Judge to the extent of granting reduced tariff of Rs.2.43 as an interim arrangement pending resolution of the revision of the tariff before the APERC and the said Writ Appeal is pending now. While the things being so, respondent No.2 herein by invoking the provisions of Section 86(1)(f) of the Electricity Act, 2003, read with Andhra Pradesh Electricity Regulatory Commission (Conduct) Regulations, 1999, approached respondent No.1-Andhra Pradesh Electricity Regulatory Commission, seeking reliefs of the payments in lieu of the invoices @Rs.4.70 per unit for the power purchase agreements dated 21.03.2013 and 18.07.2014 and late payment surcharge in lieu of non-payment of amounts due and wrongful deduction of the rebate by petitioner No.1 herein.

10. The essence of the case of the petitioners in the present Writ Petition is that respondent No.1-APERC exceeded its jurisdiction by entertaining O.P. No.64 of 2019 and rendering adjudication in the said O.P. and the same is contrary to the orders passed by this Court in W.P. No.9844 of 2019 and Batch dated 24.09.2019. It is also brought to the notice of this Court by the learned counsel for respondent No.2 that in the said Batch of Writ Petitions, one M/s. Vayu Urga Bharat Private Limited filed I.A. No.9 of 2019 in W.P.No.9876 of 2019, under Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure, 1908, seeking review of the order dated 24.09.2019 and for the following consequential reliefs:

"i) Declare and hold that the interim arrangement in the impugned judgment will not affect/modify/vary the directions contained in the Final Order dated 31.08.2019 in O.P. No.35 of 2019 with respect to the payment towards the past outstanding dues by the Respondent No.4 at the PPA tariff, insofar as relating to the Review Petitioner.

ii) Allow deletion of the direction that “the Respondent No.4 to pay all pending and future bills of the Petitioner at the “interim” rate of Rs.2.43/- per unit, till the dispute is resolved by the APERC” insofar as the Review Petitioner is concerned, and

iii) Pass such other order or orders as this Court may deem it fit and proper in the circumstances of the case."

11. It is also significant to note that vide order dated 19.12.2019, learned single Judge, while observing that there was a mistake apparent on the face of the record, allowed the said review application in the following manner:

"(iv) the interim arrangement in the impugned Judgment dated 24.09.2019 in WP.No.9844 of 2019 will not affect/modify/vary the directions contained in the Final Order dated 31.08.2019 in O.P.No.35 of 2019 with respect to the payment towards the past outstanding dues by the Respondent No.4 at the PPA tariff, relating to the Review Petitioner;

(v) Allow deletion of the direction “that the Respondent No.4 to pay all pending and future bills of the Petitioner at the interim rate of Rs.2.43/- per unit, till the dispute is resolved by the APERC insofar as the Review Petitioner is concerned."

12. In fact, the petitioners herein advanced all these arguments before respondent No.1-Andhra Pradesh Electricity Regulatory Commission. The Andhra Pradesh Electricity Regulatory Commission duly taking into consideration the respective pleadings of the parties, framed the following points for consideration and adjudication:

"1) Whether the petitioner is entitled to recover the outstanding amounts under monthly invoices for the power generated and supply by its to respondent No.1?

2) Whether the petitioner is entitled to Late Payment Surcharge (IPS) and if so for what period and at what rate?

3) Whether the petitioner is entitled to the payment towards alleged unlawful deduction of rebate from the petitioner’s monthly invoices raised from FY 2013-14 to 2015-16?"

13. The Andhra Pradesh Electricity Regulatory Commission – respondent No.1 herein categorically recorded a finding that the power purchase agreements dated 21.03.2013 and 18.07.2014 are not the subject matter of the any dispute either before the Commission or before the High Court. It is also not the case of the petitioners herein that respondent No.1 herein suffers from inherent lack of jurisdiction to entertain O.P. No.64 of 2019. The contention of the learned Advocate General that since the Writ Appeal is pending before the Division Bench of this Court against the order passed by the learned single Judge, respondent No.1-Commission should not have entertained the O.P., cannot stand for judicial scrutiny, as respondent No.2 herein is not a party for the above said litigation. It is also significant to note that the said contention will also fall to the ground in view of the order passed by the learned single Judge in I.A. No.9 of 2019 in W.P. No.9876 of 2019. Therefore, by any stretch of imagination, it cannot be said that respondent No.1 – Commission exceeded its jurisdiction in passing the order.

14. It is absolutely not in dispute that any order passed by respondent No.1 – Commission is appealable before the Central Electricity Regulatory Commission under Section 111 of the Electricity Act, 2003.

15. In Chimmonlall Rameshwarlall’s case (1 supra), the Hon’ble Apex Court, at paragraph No.8, held in the following manner:

“In the present case the circumstance of very great materiality and significance which stares the appellants in the face is that in regard to this very point there is a considered judgment of the High Court delivered by it on the applications made by the appellants to it under Section 66(2) of the Act which came to the conclusion that no question of law arose out of the order of the Tribunal, which judgment stands, not having been appealed against in any manner whatever by the appellants. The result of our going into these appeals before us on the merits would be either to confirm the judgment which has been pronounced by the High Court or to differ from it. If we did the former the appellants would be out of Court, if, however, perchance we came to the contrary conclusion and accepted the latter view, namely, that the High Court was wrong in not granting the applications of the appellants under Section 66(2) of the Act there would be two contrary decisions, one by the High Court and the other by us and we would be in effect, though not by the proper procedure to be adopted by the appellants in that behalf, setting aside the judgment of the High Court. This is an eventuality which we cannot view with equanimity. It is contrary to all notions of comity of courts and even though we are a Court which could in certain events set aside and overrule the decisions of the High Court concerned, we cannot bypass the normal procedure which is to be adopted for this purpose and achieve the result indirectly in the manner suggested by the appellants. We, therefore, think that in the circumstances here it would be inappropriate on our part to enter upon an adjudication of these appeals on merits. We would, therefore, dismiss these appeals without anything more”.

16. In the instant case, admittedly, respondent No.2 herein has not approached this Court earlier, as such, the above referred judgment of the Hon’ble Apex Court would not render any assistance to the case of the petitioners herein.

17. In India Household and Healthcare Limited’s case (2 supra), the Hon’ble Apex Court, at paragraph Nos.16 and 17, held thus:

“The said issue is pending consideration before the Madras High Court. Not only the parties to the agreement but also those officers who have negotiated on behalf of the respective companies are also parties therein. LG Corporation which is the owner of the LG logo is also a party therein. Therein, an order of injunction had been passed. In terms of the said order of injunction, the applicant herein was prohibited from taking any action in terms of the said agreement which would include the arbitration clause also. The order dated 21.01.2006 has become final. No appeal has been preferred thereagainst. The applicant could have filed an appropriate application for modification of the order of injunction which it did not choose to do. The doctrine of comity or amity required a court not to pass and order which would be in conflict with another order passed by a competent court of law. The courts have jurisdiction to pass an order of injunction not only under Order XXXIX, Rule 2 of the Code of Civil Procedure but also under Section 151 thereof.

This aspect of the matter has been considered in 'A Treatise on The Law Governing Injunctions' by Spelling and Lewis' wherein it is stated:

"Sec. 8. Conflict and Loss of Jurisdiction. Where a court having general jurisdiction and having acquired jurisdiction of the subject-matter has issued an injunction, a court of concurrent jurisdiction will usually refuse to interfere by issuance of a second injunction. There is no established rule of exclusion which would deprive a court of jurisdiction to issue an injunction because of the issuance of an injunction between the same parties appertaining to the same subject- matter, but there is what may properly be termed a judicial comity on the subject. And even where it is a case of one court having refused to grant an injunction, while such refusal does not exclude another coordinate court or judge from jurisdiction, yet the granting of the injunction by a second judge may lead to complications and retaliatory action"

18. In Uttar Pradesh State Road Transport Corporation’s case (3 supra), the Hon’ble Apex Court, at paragraph No.32, held thus:

“A decision is an authority, it is trite, for which it decides and not what can logically be deduced therefrom. This wholesome principle is equally applicable in the matter of construction of a judgment. A judgment is not to be construed as a statute. It must be construed upon reading the same as a whole. For the said purpose, the attending circumstances may also be taken into consideration”.

19. In the considered opinion of this Court, in the facts and circumstances of the case, the said judgments also do not render any assistance to the case of the petitioners herein.

20. Coming to the judgment cited by the learned counsel for the petitioners in The Assistant Commissioner of State Tax’s case (4 supra), the Hon’ble Apex Court, while dealing with the maintainability of the Writ Petition under Article 226 of the Constitution of India, when alternative remedy is available, categorically ruled in the following manner:

11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:

(i) a breach of fundamental rights;

(ii) a violation of the principles of natural justice;

(iii) an excess of jurisdiction; or

(iv) a challenge to the vires of the statute or delegated legislation.

12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was CA 5121/2021 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent".

21. It is very much evident from a reading of the above judgment that only in certain exceptional circumstances, such as, i) breach of Fundamental Rights; (ii) violation of principles of natural justice; (iii) an excess of jurisdiction or; (iv) challenge to the vires of the statute or delegated legislation, the Writ Petition filed under Article 226 of the Constitution of India is maintainable despite the availability of the alternative remedy. In the instant case, by any stretch of imagination, it cannot be said that there is breach of Fundamental Rights, violation of the principles of natural justice or excess of jurisdiction and there is no challenge as to the vires of statute under delegated legislation.

22. In the instant case, this Court does not find that the first respondent herein exceeded its jurisdiction while passing the impugned order.

23. It is also pertinent to refer to the judgment of the Constitutional Bench of the Hon’ble Apex Court in the case of Syed Yakoob v. K.S.Radhakrishnan and others (AIR 1964 SC 477), wherein the Hon’ble Apex Court, at paragraph No.7, held thus:

“7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art.226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit

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admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque 1955-1 SCR 1104; AIR 1955 SCC 233; Nagendra Nath Bora v. The Commissioner of Hills Division, 1958 SCR 1240; (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168”. 24. In the instant case also, petitioners herein are seeking a writ in the nature of writ of certiorari. In the considered opinion of this Court, none of the contingencies, as mentioned in the above referred paragraphs, do exist in the present case, as such, a writ, in the nature of writ of certiorari, cannot be issued by this Court in exercise of the jurisdiction conferred under Article 226 of the Constitution of India. Therefore, this Court has absolutely no scintilla of hesitation to hold that the present Writ Petition filed under Article 226 of the Constitution of India cannot be entertained before this Court in view of the availability of the efficacious alternative remedy under Section 111 of the Electricity Act, 2003. 25. It is absolutely not in dispute that any order passed by the Andhra Pradesh Electricity Regulatory Commission-respondent No.1 herein is appealable before the Central Electricity Regulatory Commission under Section 111 of the Electricity Act, 2003. As recorded supra, this Court does not find that respondent No.1 herein exceeded its jurisdiction while passing the impugned order. 26. For the aforesaid reasons, the Writ Petition is dismissed, leaving it open for the petitioners to avail the remedy in accordance with Section 111 of the Electricity Act. The observations made in the preceding paragraphs shall not be construed as findings on the other merits of the matter. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed. There shall be no order as to costs of the Writ Petition.
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