- (1.) The Brihanmumbai Electric Supply and Transport Undertaking (BEST) has submitted a Petition on 30 January, 2014 under Section 86(1)(f) of the Electricity Act (EA), 2003 and Regulation 94 of the MERC (Conduct of Business) Regulations, 2004 opposing the grant of a Distribution Licence to any other person in the area within the Municipal Corporation of Greater Mumbai in which it supplies electricity, and challenging the Invitation for Expression of Interest (EoI) for electricity distribution in Mumbai City and part of Mumbai Suburban Area published on 1 January, 2014 by the Commission.
(2.) BEST's prayers are as follows: " a. that the Hon'ble MERC be pleased to refuse grant of distribution licence in the area of supply of BEST to TPC, RInfra and / or any person (other than BEST); b. that the Hon'ble MERC be pleased to order that distribution license cannot be granted to TPC, RInfra and / or any person (other than BEST) for the area of supply of BEST. c. that the Hon'ble MERC be pleased to refuse distribution of electricity in retail in the area of supply of BEST, by TPC, RInfra and / or any person (other than BEST); d. that the Hon'ble MERC be pleased to set aside the Invitation for Expression of Interest for Distribution of Electricity in Mumbai City and part of Mumbai Suburban Area, issued and published on 01.01.2014 in various newspapers and on the website of the MERC and / or any proceedings or steps taken thereunder, to the extent of the area of supply of BEST; e. that pending the hearing and final disposal of this Case, the Hon'ble MERC be pleased to direct or order the Government of Maharashtra, Industries, Energy and Labour Department, through (i) Principal Secretary(Industries) (ii) Principal Secretary(Energy) (iii) Principal Secretary(Labour) to study and report to MERC about implications of grant of distribution license by MERC to TPC, RInfra and / or any other person (other than BEST) in the area of supply of a Local Authority such as BEST. f. that pending the hearing and final disposal of this Case, the Hon'ble MERC be pleased to direct or order the State Advisory Committee to study and report to MERC about implications of grant of distribution license by MERC to TPC, RInfra and / or any other person (other than BEST) in the area of supply of a Local Authority such as BEST. g. that pending the hearing and final disposal of this Case, the Hon'ble MERC be pleased to suspend or hold in abeyance any further or other proceedings or steps taken under the Expression of Interest for Distribution of Electricity in Mumbai City and part of Mumbai Suburban Area, issued and published on 01.01.2014 in various newspapers and on the website of the MERC, to the extent of the area of supply of BEST; h. that pending the hearing and final disposal of this Case, the Hon'ble MERC be pleased to suspend or hold in abeyance grant of distribution license to TPC, RInfra and / or any other person (other than BEST). i. that pending the hearing and final disposal of this Case, the Hon'ble MERC be pleased to make a temporary order and injunction restraining distribution of electricity in retail in the area of supply of BEST, by TPC, RInfra and / or any person (other than BEST); j. for such further or other reliefs as the circumstances and nature of the case may require."
(3.) The Petition states that: 3.1 BEST has been duly constituted under the Bombay Municipal Corporation Act, 1888 and is a statutory Undertaking of the Municipal Corporation of Greater Mumbai (MCGM). It provides two essential services, namely (i) public transportation in Mumbai and its suburbs and (ii) distribution or supply of electricity in the Island City of Mumbai. 3.2 BEST was granted the "The Bombay Electric Licence, 1905" under the erstwhile Indian Electricity Act, 1903 and Indian Electricity Act, 1910. Under this Licence, the Undertaking of the Licensee could be acquired or purchased at the option of the Bombay Municipal Corporation (as it was then known) at the end of 42 years from the commencement of the Licence. The Undertaking was acquired and municipalized in 1947 by the Bombay Municipal Corporation. Thus, BEST is an Undertaking of the Corporation. 3.3 BEST is currently a Distribution Licensee under the EA, 2003 and MERC (Specific Conditions of Distribution Licence applicable to BEST Undertaking) Regulations, 2007 in the area specified therein. Being a statutory Undertaking of the Municipal Corporation of Greater Mumbai (MCGM), BEST is covered by the definition of "local authority" under section 2(41) of the EA, 2003. 3.4 BEST sources almost its entire power requirement from Tata Power Company (TPC). TPC was earlier was a Licensee / bulk Licensee under the Indian Electricity Act, 1903 and the Indian Electricity Act, 1910. TPC's area of supply overlapped with that of BEST. 3.5 TPC is currently an alleged "Licensee" under the EA, 2003. Under the MERC (Specific Conditions of Distribution Licence applicable to Tata Power Company Ltd.) Regulations, 2008, TPC is allegedly authorized and required to supply electricity in the area specified therein. 3.6 Reliance Infrastructure Ltd. (RInfra) is currently a Licensee under the EA, 2003 and the MERC (Specific Conditions of Distribution Licence applicable to Reliance Energy Ltd.) Regulations, 2008, and has been distributing electricity in the area of supply specified therein. TPC's area of supply overlaps with that of RInfra. 3.7 A Petition was filed before the Commission by a consumer in BEST's area of supply praying for directions to TPC to provide electricity to the Petitioner, either through BEST's network or its own network (Case No. 60 of 2009). Other similar Petitions were filed in Case Nos. 81, 83, 84, 85 and 86 of 2009. In its Order in these matters, the Commission held that TPC has to operate in terms of its latest Licence conditions, which enjoin TPC to lay a distribution system within its entire area of supply and provide that TPC is bound to supply electricity to any and all consumers in its licensed area of supply, including those who wish to change from BEST to TPC. 3.8 BEST appealed against the Commission's Order before the Appellate Tribunal for Electricity (APTEL). In its judgment dated 4 April, 2012, APTEL did not find any infirmity in the Commission's Order. 3.9 Aggrieved by APTEL's Judgment, BEST filed a Civil Appeal No. 4223 of 2012 before the Supreme Court. The Supreme Court, vide Order dated 10 May, 2012, inter alia stated that, pending disposal of the Civil Appeal, the status quo as of the day shall be maintained by the parties. 3.10 TPC filed IA No. 3 in the above Civil Appeal for clarification / modification of the Order, but the Supreme Court declined to entertain TPC's prayer. Further, on an IA filed by consumers, the Supreme Court declined permission to TPC to release connections and supply electricity to them. Civil Appeal No. 4223 of 2012 is pending for hearing and final disposal before the Supreme Court. 3.11 The EOI invited by the Commission is in grave contravention of the Order of the Supreme Court for maintaining the status quo. Irrespective of the proceedings of that Civil Appeal, the Commission ought not and should not allow distribution of electricity in retail in BEST's area of supply by any Licensee (other than BEST), or grant a Distribution Licence in the area of supply of BEST to any other person. ;