Uttar Pradesh Jal Vidyut Nigam Limited vs Central Electricity Regulatory Commission & Ors

IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL No. 309 of 2018
th
Dated : 13 April, 2026
Present: Hon’ble Ms. Seema Gupta, Officiating Chairperson
Hon’ble Mr. Virender Bhat, Judicial Member

In the matter of:


Uttar Pradesh Jal Vidyut Nigam Limited
Through its Authorised Signatory
th
12 Floor, Shakti Bhawan Ext.,
14-Ashok Marg, Lucknow,
Uttar Pradesh - 226001 … Appellant

Versus

1. Central Electricity Regulatory Commission
Through its Secretary,
th
4 Floor, Chanderlok Building,
36 Janpath, New Delhi - 110001

2. Madhya Pradesh Power Management Company Limited
Through its M.D.
Shakti Bhawan, Vidyut Nagar,
Rampur, Jabalpur (M.P.) - 482001

3. Uttar Pradesh Power Corporation Limited
Through its Authorised Signatory
Shakti Bhawan 14 Ashok Marg,
Lucknow – 225001

4. Energy Department, Government of Uttar Pradesh
Through its Secretary/Chief Secretary
Bapu Bhawan, Lucknow - 226001 … Respondent (s)
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Appeal No. 309 of 2018 Page 1 of 29

Counsel for the Appellant(s) : Amit Kapur
Akshat Jain
Avdesh Mandloi
Abhimanyu Maheshwari
Shikhar Verma
Rishabh Bhardwaj
Sayan Ghosh
for App. 1


Counsel for the Respondent(s) : G. Umapathy Sr. Adv.
Aditya Singh
for Res. 2

Hemant Sahai
Puja Priyadarshini
Soumya Prakash
Anukriti Jain
Jyotshna Khatri
Parichita Chowdhury
for Res. 3

J U D G M E N T
PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
th
1. In this appeal, the Appellant has assailed the order dated 11
st
July, 2018 passed by 1 Respondent – Central Electricity Regulatory
Commission (hereinafter referred to as CERC or Central
Commission) in the Review Petition bearing No. 1/RP/2018 filed by
nd th
the 2 Respondent in which the review of the earlier order dated 12
October, 2017 of the Commission was sought vide which the petition
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Appeal No. 309 of 2018 Page 2 of 29

nd
bearing No. 128/MP/2016 filed by 2 Respondent had been disposed
off.
2. The Appellant – Uttar Pradesh Jal Vitran Nigam Ltd. is one of
the three companies formed upon the unbundling of erstwhile Uttar
Pradesh State Electricity Board.
nd
3. The 2 Respondent – Madhya Pradesh Power Management
Company Ltd. (in short MPPMCL) is a government owned company in
which all the functions, properties, interest, rights and obligations of the
erstwhile Madhya Pradesh State Electricity Board vest. Respondent
No. 3 – Uttar Pradesh Power Corporation Ltd. (in short ‘UPPCL’) was
constituted under Section 5 of the Electricity Act, 1948 and later on
was restructured into three companies namely Uttar Pradesh Jal
Vidyut Nigam Ltd. (the Appellant herein), Uttar Pradesh Rajya Vidyut
Utpadan Nigam Limited and Uttar Pradesh Power Corporation Limited
th th
vide notification dated 14 January, 2000 and 25 January, 2001
issued by Government of Uttar Pradesh.
4. Respondent No. 4 is a nodal department in the Government of
Uttar Pradesh responsible for, inter alia, production of distribution of
electricity in the State.
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Appeal No. 309 of 2018 Page 3 of 29

5. Brief conspectus of the facts and circumstances in which this
appeal has arisen and which are relevant for the disposal of the instant
appeal are noted hereinbelow.
6. The instant appeal concerns Rihand Hydro Power Station and
Matatila Hydro Power Station which were developed by the
Government of U.P. and later on transferred to UP Electricity Board.
Thereafter, these two power stations were transferred to the Appellant
in the year 2000. The salient features of these two generating stations
are given hereunder :-

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7. On account of development of the generating stations, the
land, trees and forests in the adjoining areas in the State of Madhya
Pradesh were sub-merged, for which the State of Madhya Pradesh
was demanding compensation in the form of supply of power from the
generating stations. This issue was discussed In the sixth meeting of
Central Zonal Council, headed by the Union Home Minister with Chief
Ministers of the States of Uttar Pradesh and Madhya Pradesh as
Members. At the instance of Chairman of the Council, it was agreed
by the State Governments of Uttar Pradesh and Madhya Pradesh that
15% of power from Rihand HPP and 33% of power from Matatila HPP
at the generating stations on year-to-year basis would be made
available to MPEB. at cost price plus 5% thereof. The cost price was
to be worked out by a Committee headed by Shri M.R. Sachdeva, the
then Chairman, Central Water and Power Commission, after hearing
the representatives of the two States.
8. In the meeting held on 2nd and 3rd September 1964, the
Sachdeva Committee decided that supply of power from Rihand HPP
was to be @ 3.5 paise/kWh (cost of generation plus 5% thereof) and
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Appeal No. 309 of 2018 Page 5 of 29

from Matatila HPP, supply was to be at the average rate of 6.5
paise/kWh (average cost of generation of available energy, both firm
and secondary, plus 5% thereof). The Committee further decided that
power to Madhya Pradesh from Rihand HPP was to be supplied at
the border of State of Uttar Pradesh and MPEB was to bear an annual
charge @ Rs.1.5 lakh for the transmission line to be constructed by
UPSEB for conveyance of power. This was accepted by the
representatives of UPSEB and MPSEB, who were present at the
meetings of the Sachdeva Committee. The rates decided by the
Sachdeva Committee and agreed to by the concerned parties were
subject to review after 10 years. The conclusions drawn by the
Sachdeva Committee in regard to fixation of rates for supply of power
to the State of Madhya Pradesh were ratified by the Central Zonal
Council in its meeting held on 19.9.1964. In this manner, the two
issues relating to the quantum of supply of power from the generating
stations and the rates of supply were decided.
9. In the meetings held on 7th and 8th June 1977, it was inter alia
decided that in case MPSEB was not provided its entire share of
power, balance units would be treated as over drawal by UPSEB and
would be paid for accordingly by UPSEB. The above arrangement
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Appeal No. 309 of 2018 Page 6 of 29

was accepted and acted upon by UPSEB who had supplied power at
varying volumes during certain periods. A sum of Rs.28.61 crore is
stated to have been paid by the State of Uttar Pradesh from 1990-91
to 1999-2000 for non-supply of power from the generating stations to
the State of Madhya Pradesh. During the period from 1962-63 to
2005-06, the State of Madhya Pradesh is stated to have received
power supply of 626.84 MUs, which works out to about 12% of its
total share of 5263.55 MUs, for the said period.

10. We may note here that tariff of these two generating stations
was for the first time determined by Uttar Pradesh Electricity
Regulatory Commission (in short “UPERC”) for the year 2000-01 by
th
order dated 27 July, 2007.
nd
11. Subsequently, petition No. 107 of 2007 was filed by 2
Respondent before the Central Commission praying for directions to
the Respondents namely Government of U.P, UPPCL and UPJVNL to
release MP’s legitimate share of power from the generating stations
and for payment of compensation of Rs.365.704 crores upto
September, 2006 and for payment of interest at the borrowing rate for
th
MPSEB plus 2% extra. Vide interlocutory order dated 27 February,
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Appeal No. 309 of 2018 Page 7 of 29

2008, the Central Commission held that it possesses jurisdiction to
hear and adjudicate the matter in terms of Section 79(i)(c)(f) of the
Electricity Act, 2003. Aggrieved by the said interlocutory order dated
th
27 February, 2008, UPPCL filed Appeal No. 35 of 2008 before this
Tribunal on the aspect of jurisdiction of the Central Commission. This
th
Tribunal vide order dated 9 January, 2009 affirmed the findings of the
Central Commission.
12. Meanwhile, the Central Commission disposed off the said
th
petition No. 107 of 2007 vide order dated 12 November, 2008 by
nd
allowing the prayers of 2 Respondent, MPPMCL.
13. Aggrieved by the said order of the Central Commission dated
th
12 November, 2008, UPPCL filed Appeal No. 151 of 2008 before this
th
Tribunal. Vide interim order dated 19 December, 2008, this Tribunal
modified the order of the Commission and directed UPPCL to make
payment of compensation of Rs.192 crores in three equal monthly
instalments.
th
14. Subsequently, vide judgement dated 9 January, 2009, this
Tribunal dismissed the earlier Appeal No. 35 of 2008 thereby holding
that Central Commission had the jurisdiction to adjudicate upon the
disputes between the parties. Against the said judgement, UPPCL had
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Appeal No. 309 of 2018 Page 8 of 29

filed civil appeal before the Hon’ble Supreme Court of India which was
dismissed on the ground that Appeal No. 151 of 2008 was pending
disposal before this Tribunal.
15. Therefore, Appeal No. 151 of 2008 also was dismissed by this
st
Tribunal vide judgement dated 21 July, 2011, thereby affirming the
th
findings of the Central Commission in order dated 12 November,
2008. Against the said judgement of this Tribunal, UPPCL filed Civil
Appeal No. 3377-3378 of 2012 before the Hon’ble Supreme Court
th
which was admitted vide order dated 26 March, 2012 and is still
pending disposal.
16. Meanwhile a fresh petition No. 208 of 2010 came to be filed by
nd
2 Respondent – MPPMCL for direction to UPPCL for payment of
compensation on account of retention of MP’s share of power/non
supply of its share of power from the generating stations and
th
resumption of supply of such power. Vide order dated 20 February,
2014 passed in the said petition, the Central Commission decided the
rate of consumption payable by UPPCL to MPPMCL in the following
words :-
19. In view of the above discussions, we conclude that
compensation is to be worked out on yearly basis. The
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Appeal No. 309 of 2018 Page 9 of 29

compensation for the year 1.10.1974 to 30.9.1975 shall
be payable in accordance with the weighted average rate
of RAPS Unit I applicable for that year. The same
methodology shall apply for computing the rate of
compensation for the succeeding years."

nd
17. The 2 Respondent – MPPMCL filed a Review Petition bearing
th
No. 13/RP/2014 seeking review of the said order dated 20 February,
2014 which was disposed of by the Central Commission with the
following observations:-
“22 . Based on the above discussions, the findings of the
Commission are summarized as under:
(a) The question of limitation in filing the review petition as
raised by the respondent, UPPCL is rejected.
(b) The issue of Current RAPS rate as decided in order
dated 20.2.2014 shall remain unchanged upto
30.11.2005. With effect from 1.12.2005, the
compensation shall be calculated at the notified rate of
RAPS-I as on 30.11.2005 which shall be escalated at 4%
per annum (which corresponds to the escalation rate for
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Appeal No. 309 of 2018 Page 10 of 29

O&M expenses in the Tariff Regulations specified by the
Commission for the period 2004-09) till the date of
restoration of supply of power to the review petitioner.
(c) The last line in para 23 of the order dated 20.2.2014
shall stand modified as under:
“………Therefore, the compensation receivable by
petitioner, MPPMCL, as a successor entity of
MPEB/MPSEB, shall form part of all the dues payable to
MPEB/MPSEB”

nd
18. In this backdrop, the 2 Respondent - MPPMCL approached
the Commission again by way of Petition No. 128/MP/2016 seeking
direction to the Appellant for filing ARR and petition for determination
of O&M charges in respect of Rihand and Matatila Hydro power
st
stations w.e.f. 1 April, 2008. The prayers sought in the said petition
are extracted hereinbelow:-
(i) Direct the 1st Respondent to file petition and ARR
for determination of O & M expenses of ‘the generating
stations’ HPS for the period from 1.4.2008 onwards under
section 64(1) to (4) and 79 (1) (b) of the Electricity Act,
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Appeal No. 309 of 2018 Page 11 of 29

2003 and as per CERC‟s Regulations prescribed from
time to time;
(ii) Direct the 1st Respondent to raise the bills of supply of
MP‟s share of power from ‘the generating stations’ HPS,
at the O & M expenditure indicated in the tariff orders of
UPERC, on provisional basis till final determination of
same by this Commission;
(iii) Declare that the bill towards surcharge is illegal and
in the alternative, direct the 1st Respondent not to raise
surcharge bill till adjudication on the claim of 1st
Respondent of O & M charges;
(iv) Restrain the 1st Respondent from giving any threat
towards discontinuance of supply of MP‟s share of power
from ‘the generating stations’ HPS; and
(v) Pass such further or other orders as this Commission
may deem fit and proper in the facts and circumstances
of the case.
19. This petition was disposed off by the Commission vide order
th
dated 12 October, 2017 holding inter alia as under :-
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“42. Thus, the respondents having accepted the
jurisdiction of the Central Commission in the case of
Rajghat HPS, has taken a different stand in respect of ‘the
generating stations’ in this Petition, despite being aware
that the facts and circumstances in both these cases were
similar. In this background, the respondent, UPJVNL
cannot be permitted to reopen the matter on extraneous
grounds and is therefore estopped from contesting the
question of jurisdiction. In our considered view, the issue
of compensation amount payable upto 31.3.2008 in
respect of ‘the generating stations’ having been decided
in the earlier proceedings, the Petitioner cannot be
estopped from seeking directions on the respondents to
file tariff petition, in respect of ‘the generating stations’
from 1.4.2008.
43. We have in this order decided that ‘the generating
stations’ has a composite scheme for generation and
supply of power in more than one State and accordingly,
this Commission has the jurisdiction to determine the tariff
of the generating stations for supply of power made by the
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Appeal No. 309 of 2018 Page 13 of 29

respondent, UPJVNL to the Petitioner. The respondent
has submitted that the ARR & tariff petitions filed before
UPERC in respect of ‘the generating stations’ for the
period from 2000-01 till 2014-19, had been decided,
excepting for the period 2014-19, which is still pending. In
view of this and as a corollary to the findings in this order,
we direct the respondent, UPJVNL to file petition for
determination of tariff of ‘the generating stations’ for the
period from 2014-15 to 2018-19 in terms of the provisions
of the CERC (Terms and Conditions of Tariff),
Regulations, 2014, within three months from the date of
this order.”
nd
20. Thus, the CERC rejected the prayer of 2 respondent –
MPPMCL for a direction to the Appellant to file petition and ARR for
determination of O&M expenses in respect of the two generating
st
stations w.e.f. 1 April, 2008 and directed filing of such petition for the
period from 2014-15.
21. Feeling aggrieved by the said order of the Commission,
MPPMCL filed Review Petition No. 1/Review Petition/2018 with the
following prayers:-
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Appeal No. 309 of 2018 Page 14 of 29

(a) Allow the application for rectification of error in order
dated 12.10.2017
passed by CERC in Petition No. 128/MP/2016;
(b) Direct the Respondent to file tariff petition in respect of
Rihand & Matatila for the period from 1.4.2008 onwards
instead of from 2014-15; and
(c) Pass such further or other orders as this Commission
may deem fit and proper in the facts and circumstances
of the case.”
22. The CERC did not find any merit in the Review Petition and
accordingly held as under :-
“11. Though the Commission in para 42 had
acknowledged the Petitioner’s prayer seeking directions
on the Respondent, UPJVNL to file tariff petition with
effect from 1.4.2008, it was observed by the Commission
that the tariff petitions for the period from 2000-01 till
2013-14 had been disposed of by UPERC and only the
tariff petition for the period 2014-19 was pending before
it. Accordingly, the Commission, by a conscious decision,
decided not to reopen the tariff already determined by
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Appeal No. 309 of 2018 Page 15 of 29

UPERC for the period from 1.4.2008 till 31.3.2014. In this
background, the Commission had, in para 43 of the order,
directed the Respondent, UPJVNL to file Petition for
determination of tariff of “the generating stations‟ for the
period from 2014-15 to 2018-19 in terms of the 2014 Tariff
Regulations …… Since it was a conscious decision of the
Commission not to direct UPJVNL to file tariff Petition
from 1.4.2008 to 31.3.2014 as brought out in para 43 of
the impugned order as quoted above, we do not find any
error apparent on the face of the order dated 12.10.2017
and the review on this ground fails.”
23. However, it appears that at the time of disposal of the Review
Petition vide the impugned order, the Commission found that one of
the prayers made by MPPMCL in Petition No. 128/MP/2016 for a
direction to the Appellant to raise bills for supply of Madhya Pradesh’s
share of power at O&M expenses indicating in the various orders
th
passed by UPERC has not been addressed in the order dated 12
October, 2017. Accordingly, the Commission proceeded to modify the
th
order dated 12 October, 2017. Paragraph No. 12 of the impugned
order is material in this regard and is extracted hereinbelow:-
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“12. One more prayer of the Petitioner in Petition No.
128/MP/2016 was for a direction on the Respondent,
UPJVNL to raise bills of supply of Madhya Pradesh share
of power at the O&M expenses indicated in the tariff
orders of UPERC, on provisional basis, till final
determination of tariff by this Commission. This prayer of
the petitioner was inadvertently not addressed by the
Commission in order dated12.10.2017. To that extent, the
order dated 12.10.2017 suffers from infirmity. Since the
Respondent, UPJVNL has been directed by this
Commission by order dated 12.10.2017 to file the tariff
Petition for the period from 1.4.2014 onwards and not
from 1.4.2008 on account of the tariff having been decided
by the UPERC for the said period, we are of the view that
appropriate directions need to be issued for payment of
charges by the Petitioner for the period from 1.4.2008
to31.3.2014. Accordingly, we modify the impugned order
by adding the following at the end of para 43 of the order:
“As regards the tariff for the period from 1.4.2008 to
31.3.2014, the Petitioner is directed to make
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Appeal No. 309 of 2018 Page 17 of 29

payment of O & M charges for this period in
accordance with the relevant tariff orders of
UPERC, subject to adjustment of payments made
on provisional basis.”
24. The Appellant has, in this appeal, assailed the above noted
portion of the impugned review order passed by the Commission
th
wherein the Commission has modified its earlier order dated 12
October, 2017.
25. The main issues raised by the Appellant in the instant appeal
are :-
“A. Whether Ld. Central Commission could, in exercise
of powers under Section 79 of the Electricity Act, issued
directions to Respondent No. 2 for payment of O&M
Charges for the period 01.04.2008 to 31.03.2014 when it
had noted that Ld. UP Commission had already
determined tariff for the same period and held in para 43
that "The Respondent has submitted that the ARR and
tariff petitions filed before UPERC in respect of the
'generating stations’ for the period from 2000-01 till 2014-
19, had been decided, excepting for the period in this
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Order, we direct the respondent, UPIVNI to file petition for
2014-19, which is still pending. In view of this and as a
corollary to the findings in this Order, we direct the
respondent, UPJVNL to file petition for determination of
tariff of the 'generating stations' for the period from 2014-
15 to 2018-19 in terms of the provisions of the CERC
(Terms and Conditions of Tariff) Regulations, 2014, within
three months of this Order."?
B. Whether Ld. Central Commission has erred in
modifying the tariff determined by Ld. UP Commission as
was recognized and accepted as basis for tariff payable
by Madhya Pradesh to Uttar Pradesh?
C. Whether Ld. Central Commission could have
directed payment of O&M charges only in context of the
Minutes of the Sachdeva Committee meetings and the
decisions of the State Governments?”
26. We have heard Shri Amit Kapur, Learned Counsel for the
Appellant and Shri G. Umapathy, Learned Senior Counsel appearing
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Appeal No. 309 of 2018 Page 19 of 29

nd
on behalf of 2 Respondent. We have also perused the impugned
order as well as the written submissions filed on behalf of the parties.
27. Learned Counsel for the Appellant submitted that when the
Commission had in its order dated 12.10.2017 taken a conscious
decision not to re-open the tariff for the power projects in question
already determined by the UPERC for the period 01.04.2008 till
nd
31.03.2014, it ought not to have directed the 2 Respondent vide
impugned review order dated 11.07.2018 to make payment of only
O&M charges for the said period to the Appellant. He argued that by
issuing such direction, the Commission has amended/altered the tariff
determined by UPERC, which is not permissible as it does not have
any supervisory jurisdiction over the orders passed by UPERC.
nd
28. Per contra, it is argued by Learned Senior Counsel for the 2
nd
Respondent that 2 Respondent is bound to pay only the O&M
charges/ cost of generation+5% as held by Tribunal in order dated
21.07.2011 in Appeal No. 151 of 2008 and therefore, no error or lacuna
can be found in impugned order of the Commission in this regard. He
argued that supply of power by Appellant from its generating stations
nd
(Rihand & Matatila) to 2 Respondent is not sale of power but supply
of power as share of Madhya Pradesh on account of submergence of
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Appeal No. 309 of 2018 Page 20 of 29

large tracts of land in the State, which fact has been affirmed by this
Tribunal in judgement dated 21.07.2011 in Appeal No. 151 of 2008,
and therefore, the Appellant is entitled to only O&M charges. According
to the Learned Senior Counsel, the instant appeal is meritless and
liable to be dismissed.
Our analysis
29. We have extracted hereinabove the relevant paragraph Nos.
42 & 43 of the initial order dated 12.10.2017 passed by the
nd
Commission in Petition No. 128/MP/2016 filed by 2 Respondent. The
nd
prayer of the 2 Respondent in the petition was to direct the Appellant
to file petition & ARR for determination of O&M expenses for its
generating stations in Rihand & Matatila for the period from 01.04.2008
onwards under the relevant provisions of Electricity Act, 2003 and as
per the CERC Regulations notified from time to time.
30. However, it appears that since by that date the tariff petitions
filed by the Appellant before UPERC for the period from 2000-01 till
2013-14 had been already disposed off, the Commission did not think
it proper or prudent to disturb the orders passed on these tariff petitions
by UPERC and accordingly directed the Appellant to file petitions for
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determination of tariff of the generating stations for the period from
2014-15 to 2018-19 in terms of the CERC Tariff Regulations, 2014.
31. This thought process of the Commission was reiterated in the
nd
order dated 11.07.2018 passed in the review petition filed by 2
Respondent seeking review of the order dated 12.10.2017, in the
following words:-
“11. Though the Commission in para 42 had
acknowledged the Petitioner’s prayer seeking directions
on the Respondent, UPJVNL to file tariff petition with
effect from 1.4.2008, it was observed by the Commission
that the tariff petitions for the period from 2000-01 till
2013-14 had been disposed of by UPERC and only the
tariff petition for the period 2014-19 was pending before
it. Accordingly, the Commission, by a conscious decision,
decided not to reopen the tariff already determined by
UPERC for the period from 1.4.2008 till 31.3.2014. In this
background, the Commission had, in para 43 of the order,
directed the Respondent, UPJVNL to file Petition for
determination of tariff of “the generating stations‟ for the
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period from 2014-15 to 2018-19 in terms of the 2014 Tariff
Regulations.”
nd
32. The prayers made by the 2 Respondent in the Review Petition
were :-
“(a) Allow the application for rectification of error
in order dated 12.10.2017 passed by CERC in
Petition No. 128/MP/2016;
(b) Direct the Respondent to file tariff petition in
respect of Rihand & Matatila for the period from
1.4.2008 onwards instead of from 2014-15; and
(c) Pass such further or other orders as this
Commission may deem fit and proper in the facts
and circumstances of the case.”
33. The review of the order dated 12.10.2017 was sought by the
nd
2 Respondent only to the extent that it did not direct the Appellant to
file tariff petitions in respect of the power projects at Rihand & Matatila
for the period w.e.f. 01.04.2008. On this count, the Commission did not
find any error apparent in the face of record in the order dated
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nd
12.10.2017 and rejected the prayer of 2 Respondent in following
words :-
“Since it was a conscious decision of the Commission not
to direct UPJVNL to file tariff Petition from 1.4.2008 to
31.3.2014 as brought out in para 43 of the impugned
order as quoted above, we do not find any error apparent
on the face of the order dated 12.10.2017 and the review
on this ground fails.”
nd
34. It appears that while rejecting the prayer of 2 Respondent for
review of order dated 12.10.2017, as aforenoted, the Commission
nd
found that a prayer made by 2 Respondent in original petition No.
128/MP/2016 had remained to be addressed in the order dated
12.10.2017 and accordingly proceeded to make following
directions/observations in the review order dated 11/07/2008 :-
“12. One more prayer of the Petitioner in Petition No.
128/MP/2016 was for a direction on the Respondent,
UPJVNL to raise bills of supply of Madhya Pradesh share
of power at the O&M expenses indicated in the tariff
orders of UPERC, on provisional basis, till final
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determination of tariff by this Commission. This prayer of
the petitioner was inadvertently not addressed by the
Commission in order dated 12.10.2017. To that extent,
the order dated 12.10.2017 suffers from infirmity. Since
the Respondent, UPJVNL has been directed by this
Commission by order dated 12.10.2017 to file the tariff
Petition for the period from 1.4.2014 onwards and not
from 1.4.2008 on account of the tariff having been decided
by the UPERC for the said period, we are of the view that
appropriate directions need to be issued for payment of
charges by the Petitioner for the period from 1.4.2008 to
31.3.2014. Accordingly, we modify the impugned order by
adding the following at the end of para 43 of the order:
“As regards the tariff for the period from 1.4.2008 to
31.3.2014, the Petitioner is directed to make payment of
O & M charges for this period in accordance with the
relevant tariff orders of UPERC, subject to adjustment of
payments made on provisional basis.”
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Appeal No. 309 of 2018 Page 25 of 29

35. Thus the Commission modified the order dated 12.10.2017,
which modification has been impugned in the Appeal.
36. We find ourselves in agreement with the
contentions/submissions of the Appellant in this regard and find such
modification done to its earlier order dated 12.10.2017 in review order
dated 11/07/2018 absolutely unwarranted and uncalled for besides
being perverse.
nd
37. We have already noted the prayers made by the 2
Respondent in the Review Petition. There was no prayer or contention
that any of its prayers in the original petition had remained unanswered
in the order dated 12.10.2017. Despite the same, the Commission
appears to have found some shortcomings in the order dated
12.10.2017 and proceeded to rectify the same. It is axiomatic that
power to review a judgement or order under Section 114 and Order
XLVII of the Code or Civil Procedure could be exercised by Court or
judicial authority only on an application in this regard by any of the
parties to the lis. Such power of review cannot be exercised suo moto.
In this instant case, none of the parties has sought review of the order
dated 12.10.2017 on the aspect that it does not address one of the
nd
prayers in the original petition. Therefore, when the 2 Respondent
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Appeal No. 309 of 2018 Page 26 of 29

(i.e. the petitioner before the Commission) felt satisfied with the said
order dated 12.10.2017 on this count, there was no cause or occasion
for the Commission to pin point any such error and proceed to correct
it. Such approach of the Commission cannot be countenanced.
38. That apart, the tone and tenor of paragraph 12 of the impugned
review order clearly indicates that the Commission has not heard the
parties on the aspect under consideration. It is evident from the perusal
of the entire order that the parties had not advanced any arguments
on this issue. It is inexplicable to us as to how the Commission
proceeded to take up this issue and modify the order dated 12.10.2017
without hearing the parties. The Commission has not proceeded to
correct any clerical or arithmetical mistake in the order dated
12.10.2017. It has modified the said order and curtailed the entitlement
of Appellant in so far as the tariff for the two power projects in question
is concerned. Such a direction could not have been issued without
hearing the Appellant. By doing so, the Commission has violated the
fundamental principle of natural justice namely “Audi alteram Partem”
(no person should be condemned unheard). We find it ironical that the
Commission has ignored this basic tenet of natural justice by issuing
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the direction in question without hearing the Appellant. Thus, on this
count also, the impugned order cannot be sustained.
39. Further, when the Commission accepted the tariff orders
passed by the UPERC for these two power projects for the period
2000-01 to 2013-14 and took a conscious decision not to reopen the
tariff determined by UPERC for the said period, where was the cause
nd
or occasion for it to direct the 2 Respondent in the review order dated
11.07.2018, to make payment of O&M charges only for the period from
01/04/2008 to 31/03/2014. Either the Commission may have held that
UPERC did not have jurisdiction to determine tariff for the two power
projects in question and should have proceeded to determine tariff
afresh for the entire period commencing from the year 2000-01. The
Commission did not do that. It chose not to re-open the tariff
determined by UPERC till the year 2013-14, thereby holding the tariff
determination till such period by UPERC valid. However, in the same
nd
breath the Commission ought not have directed the 2 Respondent to
pay O&M charges only for the period from 01/04/2008 till 31.03.2014.
The Commission was not sitting in appeal on the tariff orders passed
by UPERC and thus, had no power or jurisdiction to modify those
orders. Once the Commission took a conscious decision not to reopen
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the tariff orders passed by UPERC, it ought to have left to the parties
to assail those orders as per law, if they chose to do so. The impugned
order smells foul on this count also.
Conclusion
40. Thus, we hereby set aside the impugned order dated
11.07.2018 to the extent it modifies the Commission’s earlier order
dated 12.10.2017 vide paragraph No. 12 while leaving the remaining
portion of the impugned order undisturbed. Accordingly, the appeal is
allowed and the impugned order stands modified to the above extent.

th
Pronounced in the open court on this 13 day of April, 2026.

(Virender Bhat) (Seema Gupta)
Judicial Member Officiating Chairperson

✓
REPORTABLE / NON REPORTABLE

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