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2019 (5) TMI 1984 - SUPREME COURTRecovery of entire standby charges paid by Tata Power Company (TPC) to Maharashtra State Electricity Board (MSEB) - tariff payable by BSES to TPC included a component of standby charge - HELD THAT:- The period in dispute is 1.4.1999 to 30.9.2004. It is apparent that TPC has an agreement with MSEB for standby supply of 550 MVA. Initially, in 1985, TPC has increased its generating capacity whereby reducing the offtake of electricity from MSEB to zero. In order to compensate MSEB for loss of revenue caused as a result of the stoppage of purchase of electricity, the MSEB entered into an arrangement with TPC whereby TPC was required to pay to MSEB initially for 300 MVA standby to be increased by 50 MVA every year. The standby was freeze in the year 1990 when the parties agreed not to increase the standby beyond 550 MVA. The standby facility was made available to TPC in the event there was a failure of power in TPC’s generation of 1777 MW. BSES/REL used to purchase electricity from TPC between 29 percent to 37 percent from 1998 to 2006. The standby charges for aforesaid purchase were factored into the tariff charged from its retail customers. The standby charges to the extent of supply were borne by BSES/REL for optimum supply from TPC when interconnectivity was provided at Borivali point as per the Government order. The dispute arose between TPC and BSES/REL as to whether BSES/REL entitlement to draw 275 MVA from TPC in the case of outage and failure of electricity supply, the charges which were required to be paid were over and above the charges that would be paid for energy actually drawn. The main principles on the basis of which Agreement was to be reached between TPC and BSES/REL were settled. As per clause 2 of the Principles of Agreement, BSES/REL had to pay to TPC for 220 KV interconnection at Borivali at Rs.3.5 crores per month. The parties had agreed to cooperate in order to ensure that Government order dated 19.1.1998 is implemented in the spirit of it. A detailed power supply agreement was to be entered into by 21.4.1998. The agreement could not be executed as consensus with respect to several aspects could not be reached - The power was conferred upon the MERC vide notification dated 27.10.2000 under the provision of Section 22(2)(n) of Electricity Regulatory Commission Act, 1998, to adjudicate upon the disputes and differences between licensees and utilities. On 4.12.2000, BSES/REL had filed an application to MERC in respect of sharing of standby charges between BSES/REL and TPC. The prayers were made to regulate action and standby charges levied by them and to fix and determine the standby charges payable by them. Several factors were required to be taken into consideration, on that basis aforesaid figure has been worked out. It has also been considered that electricity used to be purchased by BSES/REL from TPC to the aforesaid extent and the standby charges used to be realised which were factored in the tariff, which liability was ultimately passed on to the retail consumers. Even when the Principles of Agreement have been reached as to standby charges though it was subject to revision basis was fixed which could not have been departed from, it was on consideration of several aspects - Considering the standby charges of Rs.24.75 crores recovered by MSEB from TPC with effect from 1.10.1996 and as per the Government order and Principles of Agreement Rs.3.5 crores was additionally being available and a difference of standby which was made to increase the liability Rs.24.75 crore per month to Rs.30.25 crores per month. There are force in the submission raised on behalf of BSES/REL that order of APTEL has already been worked out even otherwise it is found to be just and equitable. No case for interference with the same is made out - there is no question of applicability of Article 14 of the Constitution. As a matter of fact, what was agreed in the Principles of Agreement more amount than that has been ordered to be paid on the basis of principles of business equilibrium and other factors. The order passed by Technical and Judicial Members of APTEL is hereby upheld. The amount which is payable to Reliance Energy Limited, deposited or secured by way of bank guarantee by TPC as per order dated 07.02.2007 along with interest lying with the Registrar of this Court as per agreement of the Counsel for Reliance Energy Limited and Adani Electricity Mumbai Limited be paid to Adani Electricity Mumbai Limited. Appeal dismissed.
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