LexWEST BENGAL ELECTRICITY REGULATORY COMMISSION versus HINDALCO INDUSTRIES LTD. & ORS.
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A B [2010] 5 S.C.R. 108 WEST BENGAL ELECTRICITY REGULATORY COMMISSION v. HINDALCO INDUSTRIES LTD. & ORS. (Civil Appeal No. 805 of 2008) APRIL 22, 2010 [B. SUDERSHAN · REDDY AND SURINDER SINGH NIJJAR, JJ.] c Electricity Act, 2003 - Wheeling charges for a particular period - Challenged in appeal - During the period, not a single unit of energy was wheeled - Maintainability of the appeal questioned - Tribunal without considering the issue of maintainability, decided the appeal on merit - Held: Issue D regarding maintainability needed consideration - Matter remitted to the Tribunal for consideration of all the issues afresh. Respondent No. 1 challenged the determination of wheeling charges for the year 2005-2006. Tribunal for E Electricity directed the appellants to re-determine the F wheeling charges. Hence the present appeals. Allowing the appeals and remitting the matter to the Tribunal, the Court · HELD: The Tribunal has failed to consider the objection raised by the appellants with ret;ard to the maintainability of the appeal filed by respondent No.1 ;· before the Tribunal. Respondent No.1 has sought to challenge the wheeling charges for the year 2005-06. G During the year 2005-06 not a single unit of energy was wheeled by respondent No.1 and therefore no wheeling charges were paid/payable. Therefore, the appeal filed by respondent No.1 was at best of an academic interest H 108 WEST BENGAL ELECTRICITY REGULATORY COMMISSION v. 109 HINDALCO INDUSTRIES LTD. only, as at the relevant point of time when the appeal was A filed before the Tribunal, the wheeling charges for the year 2006-07 had already been determined. It was also mentioned that the wheeling charges for 2006 were not challenged in the appeal before the Tribunal. In any event, since respondent No.1 had not wheeled any power B during the period 2005-06, it did not have to pay any wheeling charges in the first place. Thus, the appeal ought to have been dismissed as having become infructuous. The maintainability of the appeal was an important issue which needed consideration by the c Tribunal. It would be in the interest of justice to remand the matter back to the Tribunal for fresh consideration of all the issues after faking into consideration the factual and legal submissions made by the appellant. [Paras 10, 11 and 12.l (114-F-H; 115-A, C-E] D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 805' of 2008. , From the Judgment & Order dated 31.3.2007 of the Learned Appellate Tribunal for Electricity in Appeal No. 3 of E 2007 .. WITH C.A. No. 3341 of 2008. · Shanti Bhushan, Pratik Dhar, C.K. Rai, Malini Poduvai, Sanjeev Kapoor, Avinash Menon (for Khaitan & Co.) for the Appellant F S. Ganesh, R.K. Sanghi, Dimple Murria, Shivani Sanghi, G Anil KumarTandale for the Respondents. The Judgment of the Court was delivered by SURINDER SINGH NIJJAR, J. 1. In these two appeals the appellants are aggrieved by the order passed by the H 110 SUPREME COURT REPORTS [2010] 5 S.C.R. A Appellate Tribunal for Electricity (hereinafter referred to as 'the Tribunal') in Appeal No.3/2007 dated October 31, 2007. The present Appeal No. 805 of 2008 is at the instance of West Bengal Electricity Regulatory Commission (hereinafter referred to as 'the Commission'). Appeal No.3341/2008 has been filed B by the Calcutta Electricity and Supply Company Limited (hereinafter referred to as 'CESC'). 2. We propose to decide the two appeals by this common judgment as they arise out of the aforesaid common order C passed by the Tribunal. D 3. The controversy between the parties revolves around the methodology, criteria/formula that has to be applied in determining the wheeling charges in accordance with the applicable Rregulations framed under the Electricity Act 2003. 4. We may notice here the skeletal facts which are necessary for the purpose of disposal of these two appeals. HINDALCO Industries Limited, formerly known as Indian Aluminum Company Limited (hereinafter referred to as E respondent No.1) has an aluminum and copper products factory at Belurmath in West Bengal within the distribution licence area of CESC. It had an existing Contract Demand Agreement for 8.5 MW with CESC drawing power at the voltage of 33 KV through dedicated lines from the Belurmath receiving Sub- station of CESC. For this purpose, respondent No.1 has F installed a 33 KV Sub-Station at its premises. It has a captive power
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