P .S.DATTA,J - (1.) The Appellant who is a successor in interest of M/s. Tata Tea Ltd. and a Licensee under Section 14 of the Electricity Act, 2003 for the purpose of distribution of electricity in its licensed area, namely, Munnar in the State of Kerala preferred this Appeal against the order dated 25.5.2010 passed by the Kerala Electricity Regulatory Commission (KERC) Respondent No.1 whereby the tariff of the Appellant who, according to the Appellant, was consuming for itself less than 50% of the total energy purchased by it from the Kerala Sate Electricity Board (Board), Respondent No. 2, was passed with retrospective effect from 1.12.2007.
(2.) THE facts are these: Transfer of interest of M/s. Tata Tea Ltd., a distribution licensee in favour of the Appellant was effected on 9.1.2007 and the order therefor was passed on 26.3.2007. On 4.7.2007, the Board who is the 2 Respondent No. 2 filed a Tariff Petition before the Kerala State Electricity Regulatory Commission for the year 2007 -08. In the Tariff Petition the Board sought for determination of tariff for those licensees who consume for self more than 50% of the total purchase from the Board. Since the Appellant's own consumption was less than 50% of the total energy purchased from the Board, the Tariff Petition did not include the Appellant. Para 20 of the Tariff Petition filed by the Board is produced hereunder: 20. "Bulk Supply It is submitted that the Board had been providing energy at grid tariff to the licensees who supply energy to consumers within their territorial jurisdiction. As per the grid tariff notification and the tariff notifications issued thereafter a licensee is eligible for grid tariff, if and only if, they supply more than 50% of the energy availed by them to the ordinary consumer consisting of domestic, agriculture, industry, etc. Categories. In other words, the consumption of the licensee shall not be more than 50% of the total energy availed by them. Subsequently, consumers like Technopark, KINFRA Industrial Park, Cochin Port Trust, Cochin Shipyard, Special Economic Zone, etc. were also given the status of licensee for providing electricity to the industrial units working in those parks and zones. In fact they are not supplying energy to any agricultural consumers or domestic consumers or similar other down trodden segments of society. The category of consumers under them are only industrial and commercial consumers. Therefore grid tariff specially determined for such licensees in order to cater to the needs supplying energy to the common man at concessional as determined by the Government shall not be made applicable to the industrial parks, technoparks, special economic zones etc. These technoparks and industrial parks supply energy to their consumers at LT level for which they charge at their own rates. In view of the above facts, they can only be classified as bulk consumers and they shall be charged at HT or EHT rates in accordance with the level at which they avail energy"
(3.) IN terms of Section 64(2) of the Act, the Commission issued abridged notification dated 7.9.2007 publishing the gist of the Tariff Revision Petition of the Board and calling for objections to the same. In the said notification, which is Annexure III to the Memo of Appeal, Sl. No. 4 is dealing with licensees with consumption more than 50% of the total purchase from Kerala State Electricity Board and there is no mention of those licensees, like the Appellant, whose self consumption is less than 50% of the total purchase from the Board. Thus, according to the Appellant, no change in the tariff was proposed in the case of the Appellant who is a 11KV licensee with self consumption at less than 50%. However, in the said notification, the existing tariff with respect to energy charges of 11 KV licensee was shown at 2.75 per unit which was the existing tariff of licensees with self consumption more than 50% (G -II) and this was sought to be increased to Rs.3/ - but the Commission sanctioned a tariff of Rs. 2.85 paise per unit with effect from 1.12.2007. At that point of time, existing tariff for energy charges of the Appellant was only Rs.2.15 and the proposed increase for the Appellant would have been 0.85 paise per unit and sanctioned increase 0.70 paise per unit. If the proposed increase was applicable to the Appellant, the additional revenue with respect to the Appellant would have been more than Rs. 3 crores and the percentage of increase in the case of the Appellant would have been more than 33% as against 8.32% increase proposed in the notification of 7.9.2007. In Form T -2 the Board made proposal with respect to only 11KV licensee with contracted demand at 12 KVA while the Appellant's contracted demand was at 7 KVA. Now, a public hearing was held but it was not necessary for the Appellant to attend the hearing in view of the notification having not covered the Appellant. Alarmingly, the Commission by order dated 26.11.2007 abolished the distinction between licensees owning self consumption at less than 50% and the licensees having self -consumption at more 50% in consequence of which, the order dated 26.11.2007 was made to cover the Appellant also although the Tariff Petition along with the notification dated 7.9.2007sought for increase of tariff for the licensees with self consumption of more than 50%. Necessarily, the Appellant filed a Review Petition challenging the order dated 26.11.2007 on 25.1.2008 which however was dismissed by order dated 15.2.2008. Then the Appellant filed a Writ Petition before the Hon'ble Kerala High Court being Petition No. ( C ) 4963/2008 and after hearing the parties, the High Court by Judgment and order dated 12.3.2008 allowed Writ Petition making a thorough interpretation of Section 64(3)(a) of the Act. The Commission preferred Writ Appeal before the Division Bench of The High Court being Writ Appeal No. 1158 of 2008 against the order of the Hon'ble Single Judge dated 12.3.2008 but the Division Bench of the High Court dismissed the Appeal of the Commission by judgment and order dated 5.6.2008. Still then, the Board was issuing bills in terms of the Commission's order dated 26.11.2007 which necessitated the Appellant again to file a Writ Petition being WP ( C ) 17365 of 2008 before the Hon'ble High Court and got the relief by order dated 9.7.2008.(Annexure IX) Now, as late as 16.10.2009, the Board filed a petition for revision of tariff before the Commission praying for inclusion of the Appellant in the tariff order dated 26.11.2007 which was made effective from 1.12.2007. The Commission on 11.11.2009 communicated to the Appellant of such filing of the Petition by the Board for revision of tariff in the case of the Appellant with effect from 1.12.2007. On 20.11.2009, the Appellant filed objections to the Board's Petition dated 16.10.2009. On 2.3.2010 the Board issued notification containing the tariff petition of the Board so as to include the Appellant. A copy of the notification was sent to the Appellant on 25.3.2010. On 20.4.2010, the Appellant filed additional objections and then followed the Commission's impugned order dated 25.5.2010 which is the subject matter of the present appeal. According to the Appellant, the order impugned is violative of the provision of Sections 61 to 64 of the Act and the Tariff Regulations 2003 which were framed under Section 181(1) of the Act. Scope and ambit of the Tariff Petition filed by the Board was not intended to touch the Appellant and accordingly, the notification dated 7.9.2007 issued by the Commission and the tariff order dated 26.11.2007 were quashed by the Hon'ble High Court in the Writ petition as also in the Writ Appeal so much so that after allowing the Writ Petition nothing survived with the Commission so as to determine the tariff again on the basis of the Tariff Petition dated 4.7.2007 and also the notification dated 7.9.2007. The jurisdiction of the Commission to entertain a fresh Tariff Petition so as to include the Appellant was totally lost by the disposal of the Writ Petition filed by the Board particularly when the Tariff Petition and its Annexure filed by the Board on 4.7.007 sought to exclude the Appellant. The Commission acted illegally by bringing the Appellant within the purview of its order dated 26.11.2007 and that too with retrospective effect from 1.12.2007. Furthermore, no reason was set out on merit or any details or figures as were mandated by the Regulatory Commission were filed while seeking to amend the Appellant's tariff. The Regulatory Commission had directed the Board to forward the proposal for bulk supply tariff with respect to the Appellant with supporting data but the Tariff Petition as against the Appellant which was filed about two years after the order dated 26.11.2007was passed did not contain any details. The Appellant's objections and additional objections were overlooked. The Commission committed error in holding that what the Board asked for with regard to the Appellant in the mater of its inclusion was an amendment to the tariff order which was already issued, but in fact it was not a mere tariff amendment order for inclusion of the Appellant with retrospective effect from 1.12.2007 through the Petition of the Board dated 16.10.09. Regulation 4 of the Tariff Regulations, 2003 specifically states that a Petition has to be filed 4 months before the intended date of implementation of the "amended tariff." The Commission itself maintained a distinction between the licensees with self -consumption of more than 50% and with those having self - consumption at less than 50% by issuing the notification which is Annexure III. Still, the categories between G1 and G 2 categorization was done away with. The details which were supplied by the Board in its Tariff Petition were with respect to the licensees with self consumption at more than 50%. Thus the tariff order for the Appellant for the period 2007 -08 which was passed on 25.05.2010 with retrospective effect from 1.12.2007 is illegal.;