Power Grid Corporation of India Limited vs Madhya Pradesh Power Transmission Company Limited & Ors.

Held: It is the case of the respondent no. 1 that by doing so, the CERC did not act in conformity with the 2014 Tariff Regulations which do not provide for payment of transmission charges by a party to whom the delay is attributable – In considered view of this Court, the said argument does not hold any water – This Court’s dictum in PTC and Energy Watchdog respectively settles the law in this regard and the absence of a regulation u/s.178 does not preclude the CERC from exercising its powers u/s.79(1) to make specific regulations or pass orders between the parties before it.[Para 43]

Electricity Act, 2003 – s.79 – Regulatory and adjudicatory functions of the CERC:

Held: The regulatory powers provided to the CERC u/s.79 are of ad hoc nature and are required to be exercised by the CERC in context of the specific circumstances of the parties before it – The rationale for provision of such ad hoc powers by the Act, 2003 is to ensure that regulatory gaps, if any, that may be discovered on a case-to-case basis, are filled or removed – Therefore, there is no doubt that the CERC is enabled to exercise its regulatory powers by way of orders u/s. 79 and the purview of s.79 is not limited to only adjudicatory orders but includes within its scope administrative functions as well. [Para 48]

Electricity Act, 2003 – Whether the grant of compensation by the CERC was a decision taken by the authority in its regulatory or adjudicatory capacity and whether it goes a step beyond the function of determination of tariff:

Held: A reading of the Act, 2003 would indicate that it makes no distinction between the regulatory and adjudicatory functions vested in and conferred upon the CERC, which is a quasi-judicial body enjoined to regulate and administer the subject of electricity generation, transmission and distribution – In such a situation, it becomes necessary to undertake a harmonious reading of ss.61 and 79 respectively to determine whether the CERC granted the liberty to claim compensation in exercise of its regulatory or adjudicatory function – The CERC granted liberty to the appellant herein to claim compensation from the respondent no. 1 to deal with a situation caused due to an unprecedented event not covered by any guidelines, regulations or contractual provisions between the parties – The dictum of this Court in Energy Watchdog, indicates that in such a situation where there is an absence of regulations and guidelines, the Act, 2003 mandates the CERC to strike a judicious balance between the parties keeping in mind commercial principles and consumers’ interest, in exercise of its general regulatory powers u/s.79(1) – The aforesaid leaves no manner of doubt that though the CERC’s orders dated 21.01.2020 and 27.01.2020 respectively were for determination of tariff, yet the order granting liberty to the aggrieved appellant to claim compensation from the defaulting party is a consequence of a regulatory lacuna in the 2014 Tariff Regulations and therefore, is an instance of regulation of tariff between the parties. [Paras 53, 59, 60]

Electricity Act, 2003 – Whether there was a contravention of the principles of natural justice by the CERC:

Held: The CERC was not adjudicating the issue of delay between the parties but was only regulating the consequences of the delay to the commissioning of the transmission elements – There was also no occasion for the respondent no. 1 to be afforded an opportunity to be heard at that stage – In considered view of this Court, any dispute pertaining to the levy of transmission charges incurred before the concerned transmission assets were put to use, would arise only upon the appellant raising bills to the respondent no. 1 in this regard – In such a scenario, it cannot be said that there was a contravention of the principles of natural justice by the CERC. [Para 61]

Electricity Act, 2003 – Whether the CERC is empowered to order for imposition of transmission charges on the party to whom delay is attributable.

Held: The CERC is empowered to order for imposition of transmission charges on the party to whom delay is attributable – This Court has, however, have not considered the question whether such liability of payment of transmission charges could be imposed on the respondent no. 1 in the specific facts of the case on hand – This Court is of the opinion that APTEL is the appropriate authority to look into the merits of the matter should the respondent no. 1 choose to prefer an appeal before APTEL u/s.111 of the Act, 2003. [Para 66]

Electricity Act, 2003 – Writ Petition – Maintainability of a writ petition before the High Court in the presence of the alternative remedy – Conditions of:

Held: This Court’s dictum in Whirlpool Corporation v. Registrar of Trademarks wherein it has been held that despite the availability of an alternative remedy, a writ petition can be entertained in the following cases: a) Where principles of natural justice are breached; b) Where fundamental rights are sought to be enforced or breach thereof is complained of; c) Where the impugned order is passed by an authority without jurisdiction; d) Where the constitutionality of any provision is called in question – However, this Court’s observations in Whirlpool are of no avail to the respondent no. 1 as the present matter falls in none of the cases enumerated therein – Therefore, there was no occasion for the High Court to admit the writ petition of the respondent no. 1. [Paras 11, 64]