M.KARPAGA VINAYAGAM, J. - (1.) MULA Pravara Electric Co -operative Society Ltd (Mula Pravara) is the Appellant herein. Maharashtra Electricity Regulatory commission (State Commission) is the 1st Respondent. 2nd Respondent Maharashtra State Electricity Distribution Company Limited (Distribution Company), is the Distribution licensee in the whole state of Maharashtra except suburban areas of Mumbai and area of supply of Mula Pravara. For clarity sake, herein after, the area of supply served by Mula Pravara is being referred to as 'MPECS area of supply and area served by Distribution Company is referred as MSEDCL area of supply. .
(2.) BY the impugned Order dated 27.1.2011, the State Commission (R -1) rejected the application of the Appellant for the grant of distribution license and granted license to the Distribution Company (R -2) and amended the license of Distribution Company by merging MPECS area of Supply with MSEDCL area of supply. It further directed the Appellant to handover the distribution network and allied equipments etc., belonging to the Appellant to the Distribution Company (R -2) without any wheeling charges. Aggrieved by this order, the Appellant has filed this Appeal.
(3.) THE facts of the case are as follows: (a) The Appellant Mula Pravara Electric Cooperative Society (MPECS) was established as Farmer's Cooperative Society in the year 1969 -70. The Appellant was granted a license by the State Government in the year 1971 for a period of 20 years to distribute the power in five specific Talukas (MPECS area) in District of Aurangabad in Maharashtra. The Appellant commenced its functioning w.e.f. 1.3.1971 and took over the electrical distribution network of Maharashtra State Electricity Board. The said license was renewed for another 20 years i.e. from 1991 to 2011. Their term of license was to get expired on 31.1.2011. On 28.7.2010 the State Commission Published a notice inviting "Expression of Interest ("EoI") from prospective applicants with expertise in electricity distribution for distribution of electricity in the MPECS area of supply. Six entities including the Appellant submitted their proposals expressing their interest in distributing electricity in the area served by MPECS. The State Commission on 5.10.2010, directed all the entities who had submitted their Expression of Interest to submit an application for grant of Distribution license in MPECS area in accordance with Section 14 and 15 of the EA 2003 read with MERC (General Conditions of Distribution License) Regulations 2006. (b) Applications from two parties namely Mula Pravara, the Appellant and the Maharashtra State Electricity Distribution Company (R -2) have been taken by the State Commission for consideration. The technical validation session for consideration of the applications for fresh license was held on 2.12.2010. On 5.12.2010 the Appellant as well as 2nd Respondent Distribution Company published notices in local newspapers inviting objection/comments on their application for license for distribution of electricity in the MPECS' area of supply. On 10.12.2010, the State Commission also published a public notice inviting objections/comments on applications of both the parties for fresh license. The public hearing was held on 14.1.2011. Ultimately, the State Commission after analysing the claims of both the parties by the impugned Order dated 27.1.2011 rejected the application filed by the Mula Pravara, the Appellant and issued license for the distribution of electricity in the MPECS area to the Distribution Company (R -2). The State Commission also amended the existing license of the distribution company (R -2) for distribution in the MSEB area of supply by merging it with the MPECS' area of supply under a new licence. Through this order, the State Commission further directed the Mula Pravara (the Appellant) to handover its distribution network, assets and equipments and consumer security to the Distribution Company (R -2) for its use even without payment of wheeling charges. As against this order, the present appeal has been filed by the Appellant. The Learned Senior Counsel appearing for the Appellant has raised the grounds assailing the impugned order dated 27.1.2011. Those grounds are as under: i) The State Commission through the impugned order acted unreasonably in a discriminatory manner by treating un - equals as equals without considering the relevant materials and ignoring the relevant provisions of the Act, 2003 which entitles the Appellant to get a distribution licence. ii) Under proviso to Section 15 (6) of the Act , the State Commission was required to give an opportunity of being heard before rejecting its application for fresh license. However, in this case, no such opportunity had been provided to the Appellant and its application for fresh license was rejected without hearing. iii) The State Commission has neither considered the relevant criteria and nor applied the procedures contemplated Under Section 18 of the Act and its own General Conditions of Supply Regulation while passing orders merging area of supply of the old license of the Respondent with the Appellant's licensed area. Besides that, the State Commission without jurisdiction has directed the Appellant to handover the distribution network and connected equipments with allied assets to the Respondent (R -2). iv) The State Commission has wrongly passed an order of amendment of the Respondent's old license area so as to merge Appellant's license area with that of Respondent area although the State Commission had proceeded under Section 14 and 15 of the Electricity Act without resorting to the procedure under Section 18 for the amendment of the Respondent's old licence. v) The State Commission has wrongly concluded while rejecting the application filed by the Appellant that the Appellant did not have financial credibility and it had no source of procuring energy without considering the relevant materials which had been placed before the State Commission. ;