TMI Blog2008 (5) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... en granted - at this stage notice the fact of the matter involved in the respective appeals including the proceeding before the Commission. The Commission for all intent and purport took a policy decision that the electricity generated by the company would be transferred to APTRANSCO. Whereas most of the respondents could not start production, LVS Power did. We will state the facts of the same at some details at an appropriate place but suffice it to point that pursuant to the interim decision taken by the Commission, LVS Power cancelled the agreements it had entered into with the consumers. Negotiations were held for fixing the rate of the tariff. It did not succeed. When an application for grant of exemption is filed, the same is required to be dealt with independently. What was necessary for the said purpose was interest of the consumers as well as the consideration that supply and distribution cannot be maintained unless the charges for electricity supply are adequately levied and duly collected - The Commission, therefore, was bound to strike a balance. It should have given due consideration as to how and in what manner the MPPs were established. They were not per se inconsist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent as aforesaid, shall be void. It, therefore, restricts the power and activities of APTRANSCO. It is in the aforementioned situation that the doctrine of promissory estoppel should be held to be applicable. In this case interest of justice would be subserved if in modification of the order passed by the High Court, the impugned judgments are set aside and the Commission constituted under the 2003 Act is directed to consider the matter afresh in the light of the new statute - Appeal disposed off. - Hon'ble Judges S.B. Sinha and Devinder Kumar Jain, JJ. For Appearing Parties: Shanti Bhushan, L.N. Rao, Dushyant A. Dave and T.L. Vishwanatha Iyer, Sr. Advs., M.G. Ramachandran, K.V. Mohan, K.V. Balakrishnan, Anand K. Ganesan, Swapna Seshadri, Sanjay Kumar Pathak, Gulnar, Atul Bandhu, Rakesh K. Sharma, G. Ramakrishna Prasad, Suyodhan Byrapaneni, Siddharth Patnaik, G. Arun, S. Udaya Kumar Sagar, Bina Madhavan, Advs. for Lawyer's Knit Co., Manoj Saxena, Rajnish Singh, Rahul Shukla, T.V. George, A.D.N. Rao, P.S. Narasimha, Advs. for D. Bharathi Reddy, Adv., Pawan Kumar and Satya Prakash Sharma, Advs J UDGMENT S.B. Sinha, J. 1. Interpretation and/or application of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f by the Commission. 8. In this context, the supply of electricity generated by the MPP to the identified consumers was allowed. 9. We, may, however, notice that at a later stage the capital costs invested for the said purpose was raised to Rs. 250 crores. 10. By G.O. Ms. No. 152 dated 29th November, 1995 the terms and conditions of setting up of MPPs were laid down, some of which read thus: 3. Energy from the mini power plants can be supplied to identified consumers using either Andhra Pradesh State Electricity Board's existing distribution network of setting up a dedicated transmission after obtaining a licence under Section 3 of the Indian Electricity Act, 1910. In the case of the former, Andhra Pradesh State Electricity Board may on request, lease out the distribution net work to the developer. Detailed arrangements like lease, rent etc., will be worked out on mutually acceptable terms between the Andhra Pradesh State Electricity Board and the Mini Power plant developers. Similar arrangement can also be finalised for the dedicated net works established by Mini Power Plant developers so as to confirm to statutory requirement. 6. In the event of the mini power plants generati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, 3 months notices seeking termination of the Agreements with the A.P. State Electricity Board by the identified consumers of generating company, if they so desire, shall be submitted to the A.P. State Electricity Board. 14. Alongwith the said letter it annexed the names of the consumers with their possible demand, which read: S.No. Name of the Consumer Demand 1. Hindustan Shipyard Ltd., Visakhapatnam 6,000 KVA 2. Hindustan Zinc Ltd., Visakhapatnam 22,000 KVA 3. Essar Steels Ltd., Visakhapatnam 40,000 KVA 4. Andhra Cements Ltd., Visakhapatnam 9,000KVA 77,000 KVA 15. All the aforementioned industries are located in the State of Andhra Pradesh. 16. The proposal of the company was accepted in terms of Section 18A(a) of the 1948 Act. The MPP was allowed to be operated on multifuels (LSHS/Furnace Oil/Naptha) alongwith tie-line. 17. The terms and conditions of setting up of the MPP were amended from time to time in terms of letter dated 20th October, 1997; 18th May, 1999 and 21st August, 2001. We are not concerned with the details thereof. 18. Pursuant to or in furtherance of the approval granted by the Government of Andhra Pradesh to the company for setting up of MPP it entered into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission also noticed the essential features of the grant of such permission, one of which being Clause 5, which reads: ( v) Copies of the supply agreements entered into with the identified consumers should be supplied to the APSEB. The agreement with the APSEB for wheeling shall reflect the conditions in G.O.Ms. No. 152 dated 29.11.1995 besides other conditions. 25. At paragraph 14 of the said order, the Commission recorded that various Associations of the officers of the Andhra Pradesh State Electricity Board inter alia submitted that third party right should not be allowed as it affected the financial viability of the main licensee, APTRANSCO, apart from the fact that they should not be permitted to generate power with residual fuel as the same is too costly for the purchase by the grid. It was also noted that third party sale should not be allowed as MPPs would not suffer Transmission and Distribution losses which the Licensee suffers and the Tariffs of the Licensee for industrial consumers include considerable cross-subsidies. 26. The Government of Andhra Pradesh, was, however, not represented. A contention, however, was raised by a letter representing that the permission may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d distribution loss cost. Thus, allowing third party sales by MPPs at the same rate at which the Licensee supplies to HT consumers, would result in either unjust enrichment of developers which is neither contemplated nor permissible in a regulatory industry, or in supply of power at lower prices than prescribed resulting in differential prices for the same categories of consumers, leading to discriminatory treatment. (20) In O.P. No. 2/1999 and O.P. No. 348/2000, the Commission has directed the developers to approach APTRANSCO and negotiate the sale of power on the basis of their project cost. It would be appropriate if directions are also issued to the eight developers mentioned in para 18 above to make an offer of price on the basis of the various Government of India Notifications (including the Notifications dated 30.03.1992). These Notifications set out the method and manner of calculation of tariff for generating companies mutually agree on the price for the power to be supplied and other conditions, a PPA may be drawn up and submitted to the Commission for its approval under Section 21 of APER Act. If on the other hand they are not able to agree on the price and other terms a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18th October, 2001. APTRANSCO asked for extension of time from the Commission to purchase power from the company by its letter dated 30th November, 2001 till the end of February, 2001 on the purported ground that firm proposal (PPA) could not be sent since the project cost was yet to be approved by the Government of Andhra Pradesh. A reminder was also sent by APTRANSCO on 9th November, 2001 to the Commission. The Commission again by its letter dated 26th November, 2001 granted permission sought for by APTRANSCO stating: With reference to letter (1) and (2) cited above, Commission accepts the proposal of APTRANSCO to purchase power from M/s. LVS Power Limited at the rates specified in letter (3) cited above and extends the period of purchase of power from 31.10.2001 to 30.11.2001 purely as an interim measure. This is without prejudice to the rights of the Commission to pass any further order in this matter. APTRANSCO is directed to send the Firm Proposal with the approved Project cost from competent Authority latest by 30.11.2001, for the Commission to pass appropriate orders. 32. On or about 26th November, 2001 by a letter addressed to the Government of Andhra Pradesh, the APTRA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, 1999. The compulsions for reduction in plant capacity are not clear from the documents received from GOAP/APTRANSCO. (iv) The APTRANSCO's consultant had in their report indicated that revised capital cost of Rs. 125.23 crores for 2 x 18.9 MW was without complete audit of the cost incurred and physical verification. As now the project has been completed, it will be necessary to look into the final audited cost corrected to the admissible provisions. In view of the above mentioned observations, it is not possible for CEA to advise on the reasonableness of the capital cost specific to LVS project. It may, however, be mentioned that CEA, while granting TEC for similar type of projects for IPPs have cleared the estimated completion capital cost in the range of Rs. 3.62 crores to Rs. 3.8 crores per MW as the ceiling cost depending on the scope of work, site specific features, financial package, debt-equity ratio, exchange rate, taxes and duties, foreign exchange etc. GOAP may please take further action based on the above. 34. In the meanwhile, the APTRANSCO informed the Commission by its letters dated 6th February, 2002 that the plant may have to be backed down on account of high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass any order under Section 21(4) of the A.P. Electricity Reform Act, 1998 either granting or withholding consent. 37. The writ petition filed by the company before the High Court was allowed directing: 65. In the light of the above infirmities, the order of the Commission is liable to be set aside and we are of the opinion that there are sufficient grounds to allow the appeal. 66. In the result, the appeal is allowed with costs by setting aside the order of the A.P. Electricity Regulatory Commission in OP No. 70-A(LVS)/2001 dated 23-4-2002 holding that APTRANSCO cannot go back from its promise and refuse to purchase the power on the pretext of surplus power position in the State. We direct the Commission to consider the matter afresh as per the norms of Central Electricity Authority and the directions given in the appeal and to direct the APTRANSCO to enter into Power Purchase Agreement and purchase the power from the appellant. 67. Now the further question that falls for consideration by this Court would be, what should happen to the generation plant which is ready for commercial operation till the Commission decides the issue as per law, in the light of the directions given b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hours. Re: civil Appeal No. 8094 of 2002 38. On 29.2.96, permission was granted to RVK Energy Pvt. Ltd. to set up a 32.7 MW residual fuel based power plant at Medak district so as to enable it to generate and supply power directly to specified industrial consumers by using the existing transmission and distribution network of APT. On 5.12.98, the State Government on a request made by RVK Ltd., allowed the change of location for the project to Krishna district. On 1.2.99, the 1998 Act was brought into force whereby the licensing provision under Section 14 became applicable in the State of Andhra Pradesh. In terms of Section 14(4), the State Government issued provisional licenses to all persons who were engaged in the business of supply of electricity. On 23.2.99, the State government permitted RVK to partly change the fuel for the project from Residual Fuel to Natural Gas. On 2.4.99, the Andhra Pradesh Electricity Regulatory Commission (APERC) was constituted under the Reform Act. On 6.5.99, a Power Purchase Agreement was signed between RVK Pvt. Ltd. and Indian Cements Ltd. The Agreement inter-alia provided that as RVK was in the process of signing the Power Wheeling Agreement with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the Power Wheeling Agreement that had been entered into between RVK and APTRANSCO. 42. By its letter dated 10.12.99, RVK sought orders from APERC to sell electricity to third parties so as to avoid paying minimum guarantee charges of Rs. 2.40 lacs per day to the Gas Authority of India for non- utilization of the gas so allocated to generate electricity in the power project. In the light of the urgency shown by RVK, APERC by its interim order dated 3.1.2000 approved the W heeling Agreement and third party sales which specifically stated that the order would not prejudice the power of APERC to pass such an order as it may consider necessary at any stage of the proceedings. The proceedings were however kept pending. 43. On 10.2.2000, RVK entered into a Power Purchase agreement with Super Nagarjuna Agro-Tech for sale of electricity. The agreement referred to the Power Purchase agreement entered into between RVK and APTANSCO. 44. After hearing RVK on 28.3.2000, APERC by its order dated 31.3.2000. rejected the request of RVK for grant of licence/exemption from licence. It was held that G.O. Nos. 116 and 152 did not give any vested right to the mini power plants to get a licence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to sell power through APTRANSCO to identified consumers via the APTRANSCO grid. It was also agreed by RVK to pay the transmission (wheeling) and banking charges as per the provisions of Section 26 of the Reform Act. Astha agreed to take a licence as required under Section 15 or an exemption under Section 16 of the Reform Act for the third party sale including supply to (other than a licensee) regardless of the general approval granted under G.O.M. No. 152 dated 29.11.1995. The agreement also provided for Astha to take the consent of APERC for wheeling of power and submit a list to APERC for its consent of the consumers to whom Astha proposed to sell the power. The agreement stipulated the submission of all disputes regarding third party sale and supply to sister concerns including the extent and manner of such supply and the tariff charged to the APERC. 51. On 23.12.1999, Astha made an application to APERC seeking exemption from the requirements of taking license to supply electricity to its consumers under Sections 15 16 of the Reform Act. 52. After hearing Astha on 18.4.2000, APERC by its order dated 1.7.2000. rejected its request for grant of licence/exemption from licence. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ively. 63. Section 18A specifies the duties of a generating company. 64. Section 26A of the 1948 Act provides for exemption grant of a licence so far as a generating company is concerned. 65. Section 43A of the 1948 Act provides for terms, conditions and sale of electricity by generating company. 66. The State of Andhra Pradesh enacted the 1998 Act to provide for the constitution of an Electricity Regulatory Commission, restructuring of the Electricity Industry, rationalisation of the generation, transmission, distribution and supply of electricity avenues for participation of private sector in the Electricity Industry and generally for taking measures conducive to the development and management of the Electricity industry in an efficient, economic and competitive manner and for matters connected therewith or incidental thereto. 67. APTRANSCO has been defined in Section 2(b) of the 1998 Act to mean Transmission Corporation of Andhra Pradesh Limited incorporated as a transmission company under the Companies Act, 1956 (Central Act 1 of 1956) and as referred to in Section 13 thereof. 68. Commission has been defined in Section 2(c) of 1998 Act to mean the Andhra Pradesh Electricity Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 17 of 1998 Act provided for general duties and powers of the licensees. Section 21 imposes restrictions on licensees and generating companies. 77. The Parliament enacted Indian Electricity Act, 2003 (in short 2003 Act). Sub-section (2) of Section 10 of the said Act enables a generating company to supply electricity to third parties. It reads: Section 10 - Duties of generating companies (2) A generating company may supply electricity to any licensee in accordance with this Act and the rules and regulations made thereunder and may, subject to the regulations made under Sub-section (2) of Section 42, supply electricity to any consumer. 78. Section 14 of 2003 Act provides for grant of licence. 79. The Schemes of 1910 Act, 1948 Act and 1998 Act being different, any licence or sanction granted in terms of Section 3 and 28 of the 1910 Act or permission under Section 43A of the 1948 Act would not mean that no licence was required in terms of 1998 Act. The Regulatory Commission in absence of any direction issued by the State in terms of Section 12 of the Act, that too being an expert body was entitled to take its own decision. The power of the Commission to regulate supply would inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 3) The High Court while exercising its appellate jurisdiction in terms of Section 39 of 1998 Act could not have issued any direction which was beyond the power of the Commission. 4) In any event the High Court being not an expert body should not have ordinarily interfered with an order of the Commission which is an expert body, as has been held by this Court in West Bengal Electricity Regulatory Commission v. C.E.S.C. Ltd. etc. etc. AIR2002SC3588 . 85. Mr. Ramachandran, learned Counsel, appearing on behalf of the Commission would submit: 1) That sanction granted in terms of Section 28 of 1910 Act or permission granted under Section 43A of the 1948 Act would not lead to the conclusion that the MPPs were not required to take fresh licence or apply for grant of exemption. 2) Applications for grant of exemptions were filed by the MPPs, as even they as also the financial institutions thought that the same was necessary. 3) The Commission in its order did not interfere with the agreements which had been entered into by and between the MPPs and the third party prior to coming into force of the 1998 Act. 4) The decision to direct the MPPs to supply power to APTRANSCO was taken with a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission cannot now turn round and question its jurisdiction to do so and, thus the High Court was within its jurisdiction to issue the directions. 4) APTRANSCO had been changing its stand from stage to stage, in so far as at one point of time it complained of the capital costs being too high; when the company came down to fix costs, it did not accept the same and asked for the factor of variable costs for the purpose of fixation of tariff and when the company, as an act of desperation, keeping in view its commitments to various financial institution, had even agreed therefore, took a complete turn about to contend that they do not require the power. 5) The Government of Andhra Pradesh having referred the matter to Central Electricity Authority for its opinion and having obtained the same, the Commission was bound to compel APTRANSCO to agree thereto. 6) In any event, as by reason of the stand taken by APTRANSCO, the company had to cancel all the agreements of supply entered into by and between the parties for supply of electrical energy, it could not have resiled from its representation and refused to purchase electrical energy from it. 7) Once it is contended by the APTRANSCO th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was the only competent authority therefore, having conferred a benefit upon the MPPs by granting licences, as a result whereof the legal rights vested in them, the same could not have been taken away. While issuing a direction that MPPs must sell the electricity only to APTRANSCO the Commission had not only failed to address the question raised before., it passed an order only on the basis of misplaced conception. 90. The State took a policy decision. It was with a view to develop growth of generation and supply of electrical energy. Monopoly of the State Electricity Board was sought to be given a go bye. The intention of the State to lay down the policy decision in regard to privatization of generation and supply of electrical energy is manifest from the GOMs. issued by it. 91. There is absolutely no doubt whatsoever that the Commission, which is a statutory authority, is bound by the direction of the State but it would not be so bound if it is contrary to or inconsistent with any of the provisions contained in 1998 Act. Respondents herein sought for an exemption from the provisions thereof. They filed applications in terms of Section 16 of 1998 Act. Whether such an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. The Act was enacted to encourage competition. It speaks of privatization of generation of power. The Commissioner's power to regulate supply of power must be considered keeping in view the purport and object of the Act. 98. In Advanced Law Lexicon, 3rd edition, page 4026 Regulation has been defined as under: A regulation is a rule or order prescribed by a superior for the management of some business or for the government of a company or society or the public generally. 99. In State of Tripura and Ors. v. Sudhir Ranjan Nath [1997]2SCR29 , this Court held: This in turn raises the question, what is the meaning and ambit of the expression regulate in Section 41(1) of the Act? (Section 41(1) empowers the State government to regulate the transit of all timber and other forest-produce .) The expression is not defined either in the Act or in the rules made by the State of Tripura. We must, therefore, go by its normal meaning having regard to the context in which, and the purpose to achieve which, the expression is used. As held by this Court in Jiyajeerao Cotton Mills Ltd. and Anr. v. Madhya Pradesh Electricity Board and Anr. AIR1989SC788 the expression regulate 'has dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment of the Commission, but then the Commission was bound to give due weight to the policy decision taken by the State even prior to its establishment and coming into force of the 1998 Act, particularly when the Act was enacted in furtherance thereof. 103. Indisputably respondents were entitled to produce electrical energy under Section 28 of 1910 Act. They were authorized to generate electrical energy. The question which arises is as to whether they were required to file appropriate applications for grant of licence or for exemption which should have been dealt with accordingly. At that point of time, the Commission was not exercising its other functions. A condition, which is per se unreasonable should not have been imposed. It is one thing to say that the statutory authority exercised its powers one way or the other but it is other thing to say that in the garb of exercising power of grant of licence and/or exemption thereunder, it issued a direction which has nothing to do directly therewith. 104. Commercial relationship between a generating company and the consumer has all along been accepted. Public interest would not mean the interest of APTRANSCO alone. Equity in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Reform Act, 1995 came into force. The High Court placed reliance on Section 14 (1) of the Reform Act and held that ICCL is authorised by the State Authority in the business of supplying the electricity. It was thus concluded that ICCL in view of Section 14 of the Reform Act, 1995 shall continue to be a licensee. In view of this finding the High Court held that the dispute is arbitrable under Section 37(1) read with Section 33 of the Reform Act, 1995. It is not seriously disputed that ICCL after a long-drawn correspondence with the Orissa Government had received no objection to put up the Captive Power Plant at Choudwar to generate power. Accordingly in 1989 the Captive Power Plant started generating power which was supplied to the OSEB. This arrangement continued till 1994 when MOU and agreement were entered into between ICCL and OSEB. The GRIDCO being a successor of OSEB, naturally the MOU of 1994 and agreement of 1995 will be binding upon the GRIDCO in the absence of any material to the contrary. It is not the contention of the GRIDCO that ICCL did not supply any power at all during the period for which the bills were raised on ICCL. Despite this factual position it appears tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to itself. For the said purpose, the Commission was required to take into consideration all aspects of the matter including the fact that Wheeling Agreement had already been entered into and only by reason thereof, the APTRANSCO may generate a lot of revenue. The decision of the Commission, therefore, being illegal has rightly been set aside by the High Court. 113. This takes us to the case of LVS Powers Ltd. So far as LVS Powers Ltd. is concerned it had acted on the basis of the directions of the Commission. It for all intent and purport proceeded on the basis thereof. It not only held negotiations with APTRANSCO for the purpose of arriving at a mutually settled tariff, it having regard to huge loan taken by it and presumably on the pressure of IDBI accepted almost all the suggestions made by APTRANSCO. 114. From the letter dated 24th July, 1996 to M/s. LVS Power Ltd. it is evident that its consumers were Hindustan Shipyard Ltd.; Hindustan Zinc Ltd.; Essar Steels Ltd. and Andhra Cements Ltd. all situated at Visakhapatnam i.e. within the State of Andhra Pradesh. The Commission appears to have even succumbed to the pressure of the employees of the State Electricity Board. It allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the parties to negotiate is evident from that in the event of their failure to agree on the price and the other terms and conditions, the Commission itself would do it. The aforementioned order dated 4th May, 2001 has also not been challenged by APTRANSCO. 122. It is in the aforementioned backdrop that we will notice the letter dated 17th August, 2001 written by Chief Engineer, Vidyut Soudha to the Commission where after duly noticing that since finalization of PPA has to be done after the above cited GoAP approvals are received, it was proposed to purchase power produced at the above cited rate from the COI as the plant, subject to consent of the Commission. From the said letter it appears that APTRANSCO had reviewed the capital cost furnished by the developer. They were agreeable to the levelised tariff mentioned therein with payment on year to year basis as per CEA norms and variable charge. As per CEA, APTRANSCO was permitted to purchase the power from LVS Powers Ltd. at the rate specified in paragraph 5 of the letter which is to the following effect: 5. APTRANSCO's consultants have reviewed the capital cost furnished by the developer and opined that the capital cost can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of power from 31.10.2001 to 30.11.2001 purely as an interim measure and directed APTRANSCO to send the firm tariff proposal with the approved project cost from competent authority latest by 30.11.2001 for the commission to pass appropriate order. 3) In this connection, the following are submitted - i) The GOAP have been requested vide this office letter dated 26.11.2001 ref (5) cited to limit the capital cost of the LVS Power Ltd. to Rs. 125.33 Crs. and for approval of the capital cost to fix the final fixed cost of the tariff and seek the approval of APERC to continue purchase of power. ii) After the project cost is approved by GOAP the tariff is to be worked out and a firm proposal is to be submitted to APERC for approval. iii) It may take some time for approval of capital cost and finalization of tariff and approval of power purchase from APERC. iv) APTRANSCO cannot take power from the project in the absence of provisional approval from APERC. 4) In view of the above, it is requested that the time limit of power purchase from M/s. LVS Limited may kindly be extended for a further period of two months i.e. from 30.11.2001 to 31.1.2002 early to enable APTRANSCO to avail supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 2002 addressed to the Commission, inter alia stated: After detailed examination of the above offer by APTRANSCO, I am directed to convey that in the context of surplus power situation and APTRANSCO's proposal to surrender NTPC Eastern Region Power and not to draw Power from Central Generating units due to Merit Order Dispatch, dispatch from the power station poses a serious problem. Further, APTRANSCO's inability to dispatch the station will lead to payment of fixed charges irrespective of generation by this power station. In view of the above, it is requested to take necessary action and pass appropriate orders in this regard. 132. It is in the aforementioned background that the order of the Commission dated 23rd April, 2002 stating that it had no jurisdiction to direct APTRANSCO to purchase power from LVS must be considered. 133. It is strange that while Commission was so conscious of is own power as envisaged under Clause (e) of Sub-section (1) of Section 11 of the Act in prohibiting third party sale so far as MPPs are concerned, it even could not take its own order to its logical conclusion. It is with some displeasure that we must notice as to how Commission mis- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Andhra Pradesh State Electricity Board including those under the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 or the rules framed thereunder as the Commission may specify in the licence and it shall be the statutory obligation of the APTRANSCO to undertake and duly discharge the powers, duties and functions so assigned. 135. We have held hereinbefore that licence under Section 14 is necessary but the same is only for transmission and supply and not for generation of electrical energy. Such a licence is required so as to enable the Commissioner to effectively control and regulate transmission and supply. It is also relevant to note that Section 21 provides for restriction on licensees and generating companies. Sub-section (4) empowers a holder of supply or transmission licence to enter into arrangements for the purchase of electricity. Sub-section (5) provides that any agreement relating to any transaction of the nature described in any of the sub-sections unless made with or subject to such consent as aforesaid, shall be void. It, therefore, restricts the power and activities of APTRANSCO. 136. It is in the aforementioned situation that the doctri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the said orders and this Court may issue a direction for refund thereof. We do not agree. The interim order by this Court was passed to maintain a balance and in the interest of the parties. 144. We are, therefore, of the opinion that in this case interest of justice would be subserved if in modification of the order passed by the High Court, the impugned judgments are set aside and the Commission constituted under the 2003 Act is directed to consider the matter afresh in the light of the new statute. 145. We hope and trust that the Commission shall pass appropriate orders upon taking into consideration all the material factors. It would be at liberty to vary, modify, rescind the order of the old Commission and issue directions as may be considered just and reasonable. It may, in the changed situation, also allow the parties to effect third party sale. It will be at liberty to evolve a scheme for revival of the companies, keeping in view the public interest involved and in particular the interest of the financial institutions. The time granted for completion of the projects should be extended by one year. Till such time as the Commission may not pass an appropriate interim order, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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