Full Judgment Text
2024 INSC 442
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8413 OF 2009
Maharashtra State Electricity
Distribution Co. Ltd. …Appellant
versus
M/s JSW Steel Ltd. & Anr. …Respondents
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECT
1. The issue involved in this appeal is about the legality of
the imposition of a reliability charge by the appellant, a
distribution licensee. The appellant is a company incorporated
under the Companies Act, 1956. It is principally responsible
for the distribution and supply of electricity in the entire State
of Maharashtra, except the areas that expressly fall within the
responsibility of the utilities like the Brihanmumbai Electric
Supply and Transport Undertaking, TATA Power Company,
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Reliance Energy Limited, etc. The 1 respondent is a steel
industry, which claims to be one of the largest consumers of
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electricity supplied by the appellant. The 1 respondent is
Signature Not Verified
Digitally signed by
ASHISH KONDLE
Date: 2024.05.17
18:21:15 IST
Reason:
exporting its end products and earning significant foreign
exchange for the country.
Civil Appeal No. 8413 of 2009 Page 1 of 6
2. On the petition filed by the appellant, the Maharashtra
Electricity Regulatory Commission (for short, ‘the Commission’)
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passed a tariff order on 20 October 2006, imposing additional
supply charges for uninterrupted power supply to the bulk
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consumers like the 1 respondent. In the next tariff order
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passed on 20 June 2008, the Commission discontinued the
additional supply charges with immediate effect. It directed the
appellant to refund the additional supply charges collected
from bulk industries during the financial years 2006-07 and
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2007-08. According to the case of the 1 respondent, as it is a
continuous process industry and a bulk consumer, the
appellant did not subject them to load-shedding. Therefore, the
tariff was specifically fixed slightly higher than that for HT non-
continuous process industries.
3. The appellant submitted a petition before the
Commission under the Electricity Act, 2003 (for short, ‘the
2003 Act’) for approval of reliability charges to be recovered for
implementing Zero Load Shedding (ZLS) in the area covered by
Pen Circle in Maharashtra. Permission was sought to appoint
the Humanist Consumer Council as an interim franchisee. As
per the directions of the Commission, a public notice was
published for inviting objections. The Commission conducted a
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public hearing. By the order dated 15 June 2009, the
Commission allowed the petition filed by the appellant and
imposed a reliability charge from 16th June 2009 to 31st
March 2010 on account of ZLS, which was made payable by all
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the consumers in the Pen Circle area, including the 1
respondent. Being aggrieved by the said order of the
Civil Appeal No. 8413 of 2009 Page 2 of 6
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Commission, an appeal was preferred by the 1 respondent
before the Appellate Tribunal for Electricity (for short, ‘the
Tribunal’). By the impugned judgment, the order of the State
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Commission dated 15 June 2009 was set aside.
SUBMISSION
4. Learned senior counsel appearing for the appellant has
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taken us through the impugned order, and the order dated 15
June 2009 passed by the Commission. The learned senior
counsel submitted that the reliability charge existed in Pune,
Baramati, Vashi and Thane circles. Relying upon Section 62 (3)
of the 2003 Act, he submitted that the Commission has
adequate powers to bring in schemes to improve the nature of
supply in a particular area. He submitted that though the
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Commission published a public hearing notice, the 1
respondent did not participate in the hearing. He submitted
that non-participation in the public hearing amounts to
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consent given by the 1 respondent to pay the reliability
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charge. He would, therefore, urge that the 1 respondent had
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no locus to challenge the order of the Commission dated 15
June 2009, and its remedy was to apply for review. He pointed
out that the reliability charge was imposed for a limited period
between 16th June 2009 and 31st March 2010, and at the time
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of the extension of the scheme, the 1 respondent could have
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raised an objection. He submitted that the 1 respondent is a
bulk electricity consumer, consuming about 45 per cent of the
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electricity consumed in Pen Circle. Still, the 1 respondent did
not participate in the public hearing conducted by the
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Commission. He submitted that the 1 respondent was
Civil Appeal No. 8413 of 2009 Page 3 of 6
enjoying ZLS and, therefore, was liable to pay the reliability
charge, which HT industrial consumers are paying in Pune,
Baramati, Thane and Vashi circles. He would, thus, submit
that the view taken by the Tribunal is erroneous.
5. Learned senior counsel appearing for the first respondent
invited our attention to findings recorded by the Tribunal and
submitted that the view taken by the Tribunal cannot be
interfered with.
CONSIDERATION OF SUBMISSIONS
6. The question which arose for consideration before the
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Tribunal was whether the 1 respondent was liable to pay the
reliability charge. The Tribunal noted that the 1st respondent
is undisputedly a continuous process industry on express
feeder and is not subjected to load-shedding. In paragraph 18
of the impugned judgment, the Tribunal held that the tariff of
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HT continuous industries, like the 1 respondent, has been
fixed at a higher rate than that of the tariff rate applicable for
HT non-continuous industries. In the same paragraph, the
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Tribunal noted the admitted position that effective from 1
June 2008, the continuous industries (on express feeder) were
paying tariff of 4.30 paisa per kWh and non-continuous
industries (not on express feeder) were paying tariff at the rate
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of 3.95 paisa per kWh. From 1 August 2009, the rates were
increased to 5.05 paisa kWh and 4.60 paisa kWh respectively.
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Therefore, the Appellate Tribunal held that the 1 respondent
had already been subjected to higher tariffs than consumers
on non-express feeders. Thus, the appellant has already been
compensated for providing continuous supply to the industries
Civil Appeal No. 8413 of 2009 Page 4 of 6
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like the 1 respondent. The Tribunal also held that neither
Section 62(3) of the 2013 Act nor the Rules and Regulations
framed by the Commission support the levy of reliability
charge. The appellant in this appeal is unable to show any
basis in the Statute or Statutory rules and regulations to
support the levy of a reliability charge.
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7. As regards the failure of the 1 respondent to object at
the time of the public hearing, the Tribunal recorded a finding
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of fact that Vidharba Industries Association, of which the 1
respondent is a member, had raised an objection by filing an
affidavit. There is no dispute about this factual aspect.
8. Under Section 111 of the 2003 Act, a statutory appeal is
provided against an order of the Commission. The remedy is
available to any aggrieved person. It cannot be disputed that
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the 1 respondent was directly affected by the levy of the
reliability charge. Hence, the first respondent was the person
aggrieved within the meaning of Section 111. In the appeal, the
appellant was entitled to challenge the legality of the impugned
order of the Commission. Nothing in the 2003 Act suggests that
a consumer who does not participate in the Commission's
public hearing and is aggrieved by an order of the Commission
is disentitled to prefer an appeal.
9. The Tribunal has also noted that the appellant filed a
Review Petition before the State Commission on 27 July 2009
to determine an additional supply charge instead of a reliability
charge for the withdrawal of load-shedding in the area.
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10. It is an admitted position that 1 respondent, a
continuous process industry on express feeder, paid a higher
Civil Appeal No. 8413 of 2009 Page 5 of 6
tariff during the relevant period of July 2009 to April 2010 to
enable it to get supply without load-shedding.
11. We find no error in the view taken by the Tribunal that
the appellant was not entitled to impose a reliability charge on
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customers like the 1 respondent.
12. Hence, we find no merit in the appeal, and the same is
dismissed.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Ujjal Bhuyan)
New Delhi;
May 17, 2024.
Civil Appeal No. 8413 of 2009 Page 6 of 6