PUNJAB STATE ELECTRICITY BOARD v. M-S SIEL LTD. AND ORS

Citation: [2008] 12 S.C.R. 156

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, S.H. KAPADIA

Case summary

PUNJAB STATE ELECTRICITY BOARD v. M-S SIEL LTD. AND ORS.pdf

Judgment text

[2008] 12 S. C. R. 156 PUNJAB STATE ELECTRICITY BOARD ~ II. M/S SIEL LTD. AND ORS. (Civil Appeal Nos. 5380~5389 of 2005) AUGUST 18, 2008 [DR. ARIJIT PASAYAT AND S. H. KAPADIA,, JJ. ] ,_ Electricity Regulatory Commissions Act, 2003 - ss. 29, 61 and 82 - Electricity Regulatory Commissions Act, 1998 s. 9 - Determination of tariff by State Electricity Regulatory Commission - Challenge to - Statutory appeals by industrial consumers - Allowed by High Court - On appeal, held: Approach of High Court was not correct and analysis was not done by it in the correct prospective, inasmuch as it introduced the concept of/deal situation - The ideal situation test has no place in commercial evaluation - Hence, order of High Court set aside and matter remitted to Electricity Commission with -t" direction to examine the matter afresh keeping in view the ''-{ parameters of the 2003 Act.

Respondent industrial consumers, challenged the determination of tariff by the Punjab State Electricity Regulatory Commission by filing statutory appeals before the High Court. The dispute related to (i) estimation of agricultural. consumption and trans11;1ission and distribution loss (T & D loss) (ii) energy input and coal transportation, (iii) manpower requirement and (iv) investment and rate ~ of return. The High Court held that the Electricity Commission had not addressed itself to relevant parameters and allowed the appeal after stressing on certain aspects like cross subsidy and inadequacy of the materials produced. Hence the present appeals by the Punjab State Electric- -L ity Board. ~ J -~~...... SIEL LTD. AND ORS. Allowing the appeals, the Court ) -to be worked out by the Commission. The commercial expedi- +- r ency test has to be applied by the Commission. Difficulties arise when it relates to determination for the first year.

At the beginning of the year the question of delay in receipt cannot be gone ' into. This is a matter for the subsequent period. )' i 11. In relation to agricultural meter and T&D losses it is to be noted that in the past agricultural consumers were not having meters. Therefore, per force estimate had to be done. The Commission fixed 25. 52% to be T&D losses. The High Court proceeded on the basis that meters should have been there. In the absence of meters, the consumers should not suffer. This is what is normally known as ideal situation test. Such test as indit cated above has no place in the case of commercial evaluation. 12. In the case of industrial and domestic consumers, the exact figures are known because meters are there. It is pointed out that the technical loss is fixed at 15% whereas at the distribution level it is 10 to 11 % and 4 to 5% loss on account of transmission. 13.

So far as the commercial losses and un-metered agricultural consumers are concerned, the same cannot be pre- -t cisely quantified for the losses. '1-- 14. It is to be noted that when the Board's stand was that the loss is less than the national level load factor and the energy " input is best in the country, the High Court again proceeded to apply the ideal situation test to say that there was scope for improvement and found no defect in the conclusions of the Commission by stating that the production should be optimum. 15. The cross subsidy is an accepted principle. In Hindustan Zinc Ltd. etc. etc. v. Andhra Pradesh State Electricity Board and Ors. (1991 (4) sec 299) in para 33 it was observed as follows: "33. Shri Kapil Sibal appearing on behalf of some of the appellants confined the challenge to the mode of exercise of power by the Board. He laid great emphasis on the . -i ' effect of absence of consultation with the Consultative Committee under Section 16 of the Electricity.

(Supply) Act, 1948. He also claimed that the quantum of increase could at best be justified only to the extent of one-half and )f no more. Shri Sibal claimed that certain extraneous factors had been taken into account for the purpose of revising the tariffs. The irrelevant considerations, according to Shri Sibal, taken into account are the capital sums owed by the Board and the overall losses incurred by the Board which according to him is impermissible under Section 59 of the Electricity (Supply) Act. He also argued that the upward revision of HT tariffs is intended to subsidies another class of consumers which is not permissible. His arguments are already covered by our earlier discussion. Similarly, the arguments of Shri K. N. Bhat, forthe appellant in C. A. No. 5379 of 1985 to the same effect need no further discussion.

The details of the several factors taken into account for the revision in tariffs, to the limited extent they can be gone into within the permissible scope of judicial review in such a manner also do not require any further consideration. " 1"" --... ( 16. The observations of this Court in West Bengal Electricity Regulatory Commission v. CESC Ltd. (2002 (8) SCC 715) need to be noted: . , , "91. A perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act shows that the consumers should be charged only for the electricity consumed by them on the basis of average cost of supply of energy, and the tariff should be determined by the State Commission without showing any undue preference to any consumer. The statute also fobligates the State Government to bear the subsidy which if it requires to be given to any consumer or any class of consumers, should be only on such conditions that the Commission may fix and such burden should be borne by the Government.

However, the High Court in its judgment has directed the Company to maintain its tariff structure in +- . regard to different types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance of cross-subsidy. One of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased.

We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposing cross-subsidy, but at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by \ the Company is borne by the State Government and not imposed on any other class of consumers. In this view of ~ the matter, we are of the opinion that while the Commission was justified in its view as to the non-applicability of crosssubsidy, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commission's report.

It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State -~ Government itself subsidises the same". 17. In Association of Industrial Electricity Users v. State ofA. P and Ors. (2002 (3) sec 711) also the position was examined in detail. 18. We make it clear that actual expenditure has to be the -+ basis and not the hypothetical ideal situation. Ideal situation is essentially contemplation of the future.. Additionally, the computation of input is the actual cost on the basis of per unit. A 19. Since the High Court's approach is not correct and analysis was not done in the correct prospective, we set aside the order of the High Court and remit the matter to the Commission to examine the matter afresh keeping in view the parameters of 2003 Act in the light of what has been stated above on 8 specific issues. 20.

The appeals are allowed to the aforesaid extent. 8. B. 8. Appeals allowed. +-