RAKESH NATH,J . - (1.) This appeal has been filed by Chhattisgarh State Power Distribution Co. Ltd. challenging the order of the Chhattisgarh State Electricity Regulatory Commission ("State Commission") dated 03.12.2010. ISA Power Pvt. Ltd., a generating company operating a biomass fuel based power plant, is the first respondent. The State Commission is the second respondent.
(2.) THE facts of the case are as under: 2.1. The first respondent set up a 8 MW biomass based power plant in Chhattisgarh. A Power Purchase Agreement ("PPA") dated 30.7.2004 was entered into between the 1st respondent and the erstwhile State Electricity Board for sale of power from the power plant of the respondent no. 1. The PPA stipulated that the energy imported by the 1st respondent from the grid of the Electricity Board for start -up purposes would be liable to be billed at temporary tariff, if HT connection is not availed of for that purpose. 2.2. After the State Commission's order dated 11.1.2005 in the matter of tariff and related dispensation for purchase of power by the distribution licensee from biomass based power generating projects, another PPA dated 4.11.2006 was entered into between the appellant and the first respondent. The said PPA dated 4.11.2006 did not have any provision for start up power. 2.3. The first respondent intimated to the Electricity Board by a letter dated 28.6.2006 that they did not require start -up power connection as they were going to install a 1000 kVA generator to meet their start -up power requirements. On 8.8.2006, the Electricity Board approved of the synchronization of the power plant of the respondent no. 1 with the Board's grid without availing of HT connection for start up power. However, in this letter the Electricity Board communicated that the power drawn by the appellant's power plant from the Electricity Board would be billed at tariff applicable to temporary connection. 2.4. The power plant of the 1st respondent was synchronized with the grid on 19.8.2006. For initial start -up and thereafter for such purpose, the first respondent availed power supply time and again from the Electricity Board's grid. Such power consumed by the respondent no. 1 from the grid was billed from time to time at Temporary HT supply tariff at 1.5 times the applicable tariff for "HV -6: Other HT Industries tariff" as per the tariff order dated 15.06.2005. 2.5. The State Commission issued a tariff order dated 13.09.2006 for the FY 2006 -07 with effect from 1.10.2006, which provided for a specific start -up power tariff. The start up tariff was applicable to those entities who opted for it. However, the appellant continued to bill the first respondent at temporary HT supply tariff at 1.5 times the applicable tariff for "HV -5: Other HT Industries". The State Commission passed the tariff order dated 22.10.2007 for the FY 2007 -08 effective from 1.11.2007, wherein also a separate tariff category for start -up power was provided. Consequently, the power consumed by the first respondent was billed from time to time at temporary HT supply tariff at 1.5 times the applicable tariff for HV -8: Start -up power. 2.6. The premises of the power plant of the first respondent were inspected by the Superintending Engineer (Vigilance) of the Electricity Board on 17.3.2008, pursuant to which a supplementary bill dated 30.7.2008 for Rs. 3,74,274/ - was raised for the period 1.11.2007 to 4.4.2008 treating the first respondent's drawal of power from the Electricity Board during the said period in the category of "Other HT Industries tariff". This amount was paid by the first respondent. 2.7. The first respondent requested the appellant and entered into an HT power supply agreement for availing the start -up power from the Electricity Board with a contract demand of 820 kVA w.e.f. 4.4.2008 in terms of the start -up power tariff determined by the State Commission by the tariff order dated 22.10.2007 for the FY 2007 -08. 2.8. Upon unbundling of the Electricity Board by the State Government notification which became effective from 1.1.2009, the appellant became the successor by operation of law of the erstwhile Electricity Board in respect of distribution of electricity. 2.9. The appellant, upon further examination of the issue, raised another supplementary Bill dated 8.12.2009 for Rs. 30,56,238/ - for the period from 19.8.2006 to 4.4.2008 treating the first respondent's drawal of power from the Electricity Board during the said period in the category of "General Purpose Non - Industrial". The first respondent paid the supplementary bill dated 8.12.2009 under protest. Subsequently, the first respondent put in a grievance against the supplementary bill dated 8.12.2009 before the Electricity Consumers Grievances Redressal Forum. By an order dated 14.5.2010, the Forum disposed of the grievance suggesting that the first respondent may approach the State Commission. 2.10. Thereupon, the first respondent filed Petition no. 32 of 2010 dated 9.6.2010 under Section 142 of the Electricity Act, 2003 before the State Commission and also for refund of the excess amount billed by the appellant. The State Commission disposed of the petition by the impugned order dated 3.12.2010. In the impugned order the State Commission decided not to initiate any action under Section 142 of the Act. However, the State Commission proceeded with the petition under Section 86(1)(f) of the Act and decided the applicability of tariff for the start -up power drawn by the first respondent from the Electricity Board's grid. Aggrieved by the impugned order of the State Commission dated 3.12.2010, the appellant has filed this appeal.
(3.) THE learned counsel for the appellant has raised the following issues: 3.1. The petition before the State Commission was filed under Section 142 of the Act. The State Commission, having found that there was no Regulation or directive of the State Commission which was violated, ought to have discharged the notice of the proceedings and closed the case. The State Commission ought not to have converted such a proceeding for adjudication of a dispute under Section 86(1)(f) or otherwise which is entirely of a different nature, course and scope. 3.2. The dispute was in respect of consumption of electricity by the first respondent acting as the consumer of the licensee and hence adjudication of the dispute by the State Commission under Section 86(1)(f) was without jurisdiction. 3.3. The proposition in the impugned order that all types of disputes between the generator and the licensee can be adjudicated upon by the Commission under Section 86(1)(f) cannot be sustained. Only the disputes arising out of the performance by the generating company of its duties under Section 10 of the Act would fall within the scope of Section 86(1)(f). 3.4. The first respondent had explicitly stated that it did not require start -up power in its letter dated 28.06.2006 and consequently there was no obligation for the appellant to supply any power whatsoever, and the first respondent had no right to draw any such power. 3.5. The appellant's letter dated 8.8.2006 makes provision only for any inadvertent flow of power to the first respondent which could not be prevented absolutely. The appellant's letter dated 8.8.2006 cannot be construed as a permission to consciously and deliberately draw any amount of power for any purpose. 3.6. The State Commission was not correct in holding that the first respondent would fall within the tariff category of "Other HT Industries". The start -up power tariff would also not be applicable to the first respondent under the various tariff orders applicable from time to time as the same had to be specifically opted for and a supply agreement had to be entered into. The appellant was, therefore, correct and justified in revising the billing under the "General Purpose - Non -Industrial" category for the period from 19.8.2006 to 4.4.2008. 3.7. The State Commission was not correct in holding that the first respondent was a consumer of appellant merely because its power plant was connected to the appellant's system. The first respondent sought connection for the purpose of evacuation of power and not for the purpose of receiving supply. 3.8. The State Commission was not correct in applying the period of limitation under Section 56(2) to the demands made upon the first respondent by treating the first respondent as a consumer. Since the first respondent is not a consumer, Section 56(2) is not applicable in this case. 3.9. The Commission was not correct in assuming that any amount is refundable by the appellant to the first respondent and directing payment of interest at the prime lending rate of the State Bank of India. Section 62(6) mentions only the "bank rate" and this term refers to the rate of interest charged by the Central Bank on its lending to the commercial banks. Thus, the applicable rate of interest could only be the "bank rate" notified by the Reserve Bank of India on its lending to the commercial banks. The first respondent in its counter affidavit has submitted the following: 4.1. Even though the petition before the State Commission was filed under Section 142 of the Act, the State Commission has rightly proceeded to admit the petition under Section 86(1)(f) and proceeded to adjudicate the same. Mere non -mentioning of the relevant provision of the statute in the petition, if the authority otherwise is vested with such power, the proceeding per se cannot be declared as without authority and jurisdiction. In the present case, the State Commission, having regard to the pleadings in the petition and the nature of relief claimed, has taken up the petition exercising powers under Section 86(1)(f). 4.2. The appellant had chosen to contest the matter on merits without disputing the jurisdiction of the State Commission and objecting on the maintainability of the petition. 4.3. The proceedings before the State Commission is not governed by the provisions of C.P.C., therefore, the procedure and technicalities that apply to the proceedings under CPC cannot be extended to those before the State Commission. The State Commission has to discharge its functions having regard to the scheme of the Electricity Act, 2003 and the regulations made thereunder and the State Commission is justified in proceeding with the claim petition filed by the first respondent on merits of the case. 4.4. The relationship between the respondent no. 1 and the appellant being that of a generating company and licensee, all disputes between them have to be necessarily adjudicated by the State Commission alone as per Section 86(1)(f) of the 2003 Act. 4.5. The appellant granted approval for synchronization in its letter dated 8.8.2006 subject to the condition that the power drawn from the appellant should be billed at the tariff applicable to temporary connection. Hence, any power availed from the appellant for start -up should be billed at the tariff applicable to the temporary connection. 4.6. The appellant itself in the letter of approval dated 8.8.2006 allowing synchronization had stipulated the condition that the respondent no. 1 could draw power from the appellant and the same would be billed at the tariff applicable to temporary connection. Thus, drawal of start -up power by the generator could not be construed as unauthorized usage. 4.7. The State Commission has correctly held that the respondent no.1 is a consumer within the meaning of Section 2(15) of the Electricity Act, 2003 and the limitation provided under Section 56(2) shall apply.;