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Tribunal Opinion Summary — Appeal No. 56/2005 (Tata Power Company Limited v. Maharashtra State Commission & others)

Factual and Procedural Background

Tata Power Company Limited (Appellant) challenged the Maharashtra State Electricity Regulatory Commission's tariff order dated 11.6.2004 (Appeal No. 56/2005). The tariff order fixed Annual Revenue Requirements and tariff for Tata Power and affected various categories of consumers for FY 2003-04 and 2004-05. The background facts, drawn from the opinion, are:

  • Prior to 1998 Reliance Energy Limited (Distribution Licensee) procured its entire requirements from Tata Power; Tata Power paid standby charges to Maharashtra State Electricity Board (MSEB) and passed those charges into tariffs charged to its consumers (including Reliance).
  • A dispute arose concerning the standby charges; the matter was litigated before the Bombay High Court and then the Supreme Court. The Supreme Court, by order dated 17.10.2003, remanded the issue to the State Commission to determine Reliance's liability for standby charges.
  • Following the remand, the State Commission issued an order dated 31.5.2004 determining the amount of standby charges payable by Reliance to Tata Power.
  • Thereafter, the State Commission issued tariff orders: 11.6.2004 fixing Tata Power's tariff (including effects of 31.5.2004) and 18.6.2004 fixing Reliance's retail tariffs, both giving effect to the 31.5.2004 order.
  • Tata Power and Reliance each appealed the 31.5.2004 order to the Tribunal (Appeals No. 202/2005 and 29/2005 respectively), disputing the quantum of standby charges (Tata alleged the liability fixed for Reliance was too low; Reliance alleged it was fixed too high).
  • The Tribunal (Division Bench) by judgment dated 20.12.2006 rejected Tata Power's prayer and reduced the quantum of standby charges payable by Reliance as fixed in the State Commission's 31.5.2004 order.
  • Tata Power filed the present Appeal No. 56/2005 against the 11.6.2004 tariff order while the Appeals 202/2005 and 29/2005 were pending; after the Tribunal's 20.12.2006 judgment, Tata Power and Reliance appealed to the Supreme Court. The Supreme Court admitted Tata Power's appeal and granted conditional stay of the Tribunal's 20.12.2006 judgment in Tata Power's favour, subject to Tata furnishing a bank guarantee and depositing Rs. 227 crores, with Reliance permitted to withdraw subject to undertaking.
  • The Tribunal observed prolonged adjournments and delays while parties awaited Supreme Court action, but no stay had been granted in respect of Appeal No. 56/2005 proceedings; the Tribunal therefore decided to proceed to final disposal of this appeal after hearing the parties.

Legal Issues Presented

  1. Whether the impugned tariff order dated 11.6.2004 (to the extent it fixes tariff for standby facilities provided by Tata Power to Reliance) should be quashed and set aside.
  2. Whether Tata Power may recover standby facility tariff from Reliance at the same rate that Tata Power paid to the State Electricity Board (i.e., permit Tata Power to charge consumers at that rate for standby facilities).
  3. Whether the Tribunal should decide the merits of the challenge to the 11.6.2004 tariff order while substantially identical issues (the validity and quantum of standby charges fixed by the State Commission on 31.5.2004) were already decided by the Tribunal on 20.12.2006 and were pending final adjudication before the Hon'ble Supreme Court.

Arguments of the Parties

Appellant's (Tata Power Company Limited) Arguments

  • Tata Power challenged the State Commission's tariff order dated 11.6.2004, primarily to the extent that it fixed the tariff for the standby facility provided to Reliance.
  • Tata Power prayed that the 11.6.2004 order be quashed insofar as it fixed standby-facility tariffs, and that Tata Power be permitted to recover the tariff for the standby facility at the same rate at which Tata Power had paid standby charges to the State Electricity Board.
  • Tata Power had earlier contended in related appeals that the State Commission fixed Reliance's liability for standby charges at a figure lower than what Tata Power considered appropriate (the present appeal likewise stems from disputes about the quantum and method of fixation).

First Respondent's (Reliance Energy Limited) Position

  • Reliance Energy, in its separate appeal against the 31.5.2004 order, contended that the State Commission fixed Reliance's liability for standby charges at a figure higher than what Reliance considered payable.
  • Reliance benefited from the State Commission's 31.5.2004 determination being given effect in subsequent tariff orders (including 11.6.2004), and later was permitted under the Supreme Court's conditional arrangement related to the deposit/withdrawal of Rs. 227 crores.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Order of the Hon'ble Supreme Court dated 17.10.2003 Remand of the issue of liability for standby charges to the State Commission for determination. The Tribunal records that the 17.10.2003 Supreme Court order remitted the standby-charge issue to the State Commission, which led to the State Commission's 31.5.2004 order determining standby charges.
State Commission order dated 31.5.2004 (Case No. 07 of 2004) Determination of the quantum of standby charges payable by Reliance Energy to Tata Power. The Tribunal noted that the 31.5.2004 order formed the basis for tariff orders of 11.6.2004 (Tata Power) and 18.6.2004 (Reliance). The Tribunal also observed that the 31.5.2004 order had been set aside by the Tribunal's own judgment dated 20.12.2006 (subject to Supreme Court proceedings).
Tribunal (Division Bench) judgment dated 20.12.2006 in Appeals No. 202/2005 and 29/2005 Adjudication reducing the quantum of standby charges payable by Reliance and rejecting Tata Power's prayer. The Tribunal in the present opinion treated the 20.12.2006 judgment as having already decided many of the grounds raised in Appeal No. 56/2005, and noted that those issues were now pending before the Supreme Court. The existence of that prior Tribunal judgment was a principal reason for declining to re-open the merits in the present appeal.
Hon'ble Supreme Court order granting conditional stay of the Tribunal judgment dated 20.12.2006 (as to Tata Power's appeal) Conditional stay subject to Tata Power furnishing a bank guarantee and depositing Rs. 227 crores; arrangements for Reliance's withdrawal subject to undertaking. The Tribunal recorded that the Supreme Court admitted Tata Power's appeal and granted conditional stay; the stay and deposit/guarantee arrangement were facts on the record and formed part of the procedural posture the Tribunal considered when deciding whether to entertain the present appeal's merits.

Court's Reasoning and Analysis

The Tribunal's analysis proceeded in a measured, stepwise manner and is summarized from the opinion as follows:

  1. The Tribunal recognized that the impugned tariff order dated 11.6.2004 was explicitly based upon the State Commission's earlier 31.5.2004 order determining standby charges, and that the same issues (quantum and methodology of standby charges) had been litigated in Appeals 202/2005 and 29/2005 and decided by the Tribunal on 20.12.2006.
  2. Many grounds raised by Tata Power in the present appeal were identical or substantially overlapping with grounds already considered and decided by the Tribunal in the 20.12.2006 judgment. Those grounds were also pending final adjudication before the Hon'ble Supreme Court on appeal from the Tribunal's 20.12.2006 decision.
  3. The Tribunal concluded that deciding the merits of Appeal No. 56/2005 would require reopening and re-examining matters already decided by the Tribunal (and now pending before the Supreme Court), which would amount to impermissible review of the earlier Tribunal judgment. The Tribunal held that such re-examination was not permissible under law at this stage.
  4. The Tribunal further reasoned that the tariff order (11.6.2004) implementing the 31.5.2004 methodology had been the basis for tariffs actually charged and recovered from consumers for several years; disturbing that methodology now — before the Supreme Court's final determination on the underlying 31.5.2004 order — would create an "unworkable situation."
  5. Given the pendency of the Supreme Court proceedings and the possibility that the Supreme Court might either uphold the Tribunal's 20.12.2006 judgment, set it aside in favor of the State Commission's order, or remand the matter to the State Commission for de novo consideration, the Tribunal considered it prudent to defer deciding the substantive issues in Appeal No. 56/2005.
  6. Accordingly, rather than decide the substantive merits, the Tribunal chose to dispose of Appeal No. 56/2005 with directions to the State Commission to take up the matter afresh and pass appropriate orders in accordance with the Hon'ble Supreme Court's final judgment when pronounced.

Holding and Implications

DISPOSED OF.

The Tribunal's operative disposition and immediate consequences, as stated in the opinion, are:

  • The appeal (No. 56/2005) is disposed of without deciding the merits of the challenge to the tariff order dated 11.6.2004 insofar as it relates to the fixation of tariff for the standby facility.
  • The Tribunal directed the State Commission to take up the matter afresh and to pass appropriate orders in accordance with the final judgment of the Hon'ble Supreme Court when it is pronounced.
  • No order as to costs was made.

Implications Depending on the Hon'ble Supreme Court's Outcome (as set out by the Tribunal)

  • If the Tribunal's judgment dated 20.12.2006 is upheld by the Supreme Court:
    • The State Commission would have to restore the standby charges payable by Reliance for FY 1998-99 to 2003-04 on the basis of the Tribunal's 20.12.2006 judgment, and the State Commission's 11.6.2004 order would be modified accordingly.
  • If the Tribunal's 20.12.2006 judgment is set aside by the Supreme Court:
    • Two possible outcomes arise, as explained in the opinion:
      1. If the State Commission's order is upheld in its entirety, questions such as adjustment of amounts payable by Tata Power to Reliance against Tata Power's contingency reserve would have to be decided.
      2. If both the Tribunal judgment and the State Commission's order are set aside and the matter is remanded to the State Commission with guidelines, the State Commission will have to decide the liabilities of the parties de novo in accordance with the remand.

Note: This summary is strictly confined to the information contained in the provided opinion. No additional facts, external precedents beyond those mentioned in the opinion, or legal principles not expressly referenced in the text have been introduced.

Dated in the opinion: 24th May, 2011. Panel: V.J. Talwar (Technical Member), Rakesh Nath (Technical Member), Justice M. Karpaga Vinayagam (Chairperson). Final disposition: Appeal disposed; no costs.

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    Tata Power Company Limited v. Reliance Energy Limited

    PER HONBLE MR. JUSTICE M. KARPAGA VINAYAGAM, CHAIRPERSON M/s Tata Power Company Limited is the Appellant. M/s. Reliance Energy Limited is the First Respondent. Maharashtra State Electricity Board is the second Respondent. Maharashtra State Government is the third Respondent. Maharashtra State Commission is the 4th Respondent.

    2. M/s. Tata Power Company, the Appellant has filed this Appeal No. 56/2005 challenging the impugned order dated 11.6.2004 passed by the Maharashtra State Commission which relates to the determination of Annual Revenue Requirements and Tariff applicable to various categories of consumers of Tata Power Company Limited for the Financial Year 2003-04 and 2004-05. The short facts are as follows:- Page 5 of 19 Judgment in Appeal No 56 of 2005

    (i) Prior to 1998, the entire requirements of Reliance Energy Limited as a Distribution Licensee was being procured by M/s. Reliance Energy from M/s. Tata Power Company Limited. The tariff in respect thereof was being fixed by Tata Power under the statutory provisions existing at that time . Tata Power was required to pay standby charges to the Maharashtra State Electricity Board pursuant to the arrangements made earlier. Tata Power was factoring in the entire standby charges in its tariff which it charged to its various consumers including Reliance Energy Limited.

    (ii) Originally a dispute with reference to standby charges to be paid by M/s. Reliance Energy Limited to Tata Power Company Limited was raised before the Bombay High Court. As against the decision of the Bombay High Court, the parties went to Honble Supreme Court. By the order dated 17.10.2003, the Honble Supreme Court remanded the issue to the State Commission to determine the liability of the Page 6 of 19 Judgment in Appeal No 56 of 2005 standby charges to be paid by the Reliance Energy Limited to Tata Power Company.

    (iii) In pursuant to the said remand order, the State Commission by the order dated 31.5.2004, determined the amount of standby charges required to be paid by the Reliance Energy Limited to Tata Power Company Limited.

    (iv) Immediately, thereafter, the State Commission passed an order dated 11.6.2004, fixed the tariff which Tata Power Company had to charge from its various consumers including the Reliance Energy as a Distribution Licensee for the FY 2003-04 and 2004-05. Similarly, the State Commission passed another order dated 18.6.2004 determining the retail tariff which M/S. Reliance Energy Limited was to charge from its consumers.

    (v) While passing these tariff orders, the State Commission gave effect to its earlier order dated 31.5.2004. Page 7 of 19 Judgment in Appeal No 56 of 2005

    3. Being aggrieved by the order dated 31.5.2004 fixing the liability of standby charges to be paid by Reliance Energy Limited to Tata Power Company Limited, the Tata Power Company as well as M/S. Reliance Energy Limited filed separate Appeals in Appeal No.202 of 2005 and 29 of 2005 before this Tribunal.

    4. According to Tata Power Company in its Appeal, the State Commission had fixed the liability of Reliance Energy for the payment of standby charges at a lower figure. Conversely, M/s. Reliance Energy Limited claimed in its Appeal contending that the State Commission fixed the liability of M/s. Reliance Energy for payment of standby charges at a figure higher than what Reliance Energy Limited was liable to pay.

    5. Both the Appeals 202/2005 and 29/2005 challenging the order dated 31.5.2004 were taken up for final disposal. Ultimately, the Division Bench of this Tribunal by the order dated 20.12.2006 rejected the prayer of the Tata Power Company and further reduced the quantum of liability to the payment of standby charges Page 8 of 19 Judgment in Appeal No 56 of 2005 payable by M/s. Reliance Energy Limited to Tata Power Company Limited as per the State Commissions order dated 31.5.2004.

    6. Even during the pendency of the above Appeals in 202/2005 and 29/2005 before this Tribunal challenging the order dated 31.5.2004, passed by the State Commission fixing the liability to pay standby charges, the Tata Power Company Limited, challenging the tariff order passed by the State Commission dated 11.6.2004 has filed this present Appeal in 56/2005.

    7. Aggrieved over the judgment of this Tribunal in the Appeals dated 20.12.2006, reducing the quantum of standby charges both Tata Power and Reliance filed the Appeals in the Honble Supreme Court. While admitting the Appeal field by the Tata Power Company as against to the decision taken by this Tribunal reducing the standby charges, the Honble Supreme Court granted conditional stay of the judgment of this Tribunal dated 20.12.2006 in favour of the Appellant Tata Power Company directing the Appellant to furnish a bank guarantee of a sum of Page 9 of 19 Judgment in Appeal No 56 of 2005 Rs.227 crores and, in addition, shall deposit a sum of Rs. 227 crores and allowing the Reliance to withdraw the said amount after giving an undertaking that in the event of the Appeal being decided against the Reliance , the amount withdrawn would be refunded to the Appellant with interest.

    8. At that stage this Appeal No. 56/2005 was taken up for final disposal by this Tribunal. But periodically, both the parties have asked for adjournments before this Tribunal requesting that the Appeals in the Supreme Court as against the order dated 20.12.2006 passed by this Tribunal are pending and since most of the issues in this Appeal had already been decided by this Tribunal in Appeals No. 202/2005 and 29/2005 and the same is the subject matter of the Appeals filed by the both the parties pending before the Honble Supreme Court, this Appeal No. 56/2005 may not be taken for final disposal till the decision is arrived at by the Supreme Court with reference to the order passed by the Commission on 31.5.2004. Accordingly, the matter was periodically adjourned expecting that Appeals filed before the Page 10 of 19 Judgment in Appeal No 56 of 2005 Honble Supreme Court would be disposed of early. We have waited for too long. However, on noticing that both the parties have not taken steps to request the Honble Supreme Court to take-up the Appeals for final decision at an early date and in the light of the fact that there is no stay granted in respect of the proceedings in this Appeal 56/2005 and also for the reason that this Appeal is spending for more than 5 years, we have decided to hear the matter and to dispose of this Appeal at an early date. Accordingly, we have intimated to both the parties about our decision to take up the matter for final hearing and have given sufficient time to both the parties to be ready for final disposal.

    9. Accordingly, on the date fixed, the matter was taken up for final disposal. We have heard both the Learned Senior Counsel for the parties on a number of days. On hearing the elaborate submissions made by the Learned Senior Counsel for both the parties and also on considering the fact that the order impugned dated 11.6.2004 was based upon the earlier order passed by the Commission on 31.5.2004 which had been set- Page 11 of 19 Judgment in Appeal No 56 of 2005 aside by the Tribunal by judgment dated 20.12.2006 and the said judgment has been appealed in the Appeals which are pending in the Honble Supreme Court, we feel that it is not desirable to go into the merits of the issues raised in this Appeal against the impugned order dated 11.6.2004. Hence, we deem it appropriate to dispose the Appeal with following observations and consequent directions to the State Commission. Some of the important events which have to be borne in mind are as follows:

    (i) By the order dated 31.5.2004, in case No.07 of 2004, the State Commission passed an order determining the quantum of standby charges required to be paid by the Reliance Energy Limited to the Tata Power Company Limited.

    (ii) Immediately, thereafter, the State Commission passed an order on 11.6.2004 fixing the tariff which Tata Power Company could charge from its various customers including the Reliance Energy Limited as a Distribution Licensee. Similarly, on 18.6.2004, the State Commission passed an Page 12 of 19 Judgment in Appeal No 56 of 2005 order determining the retail tariff which M/S. Reliance Energy Limited was to charge from its customers in various categories. Admittedly, while passing the said two tariff orders, the State Commission gave effect to its earlier order dated 31.5.2004.

    (iii) Being aggrieved by the order dated 31.5.2004, fixing the liability of standby charges, both the Tata Power Company Limited and M/s. Reliance Energy Limited filed the Appeals before this Tribunal in Appeal No.202 and 29 of 2005. Both the parties challenged the said order mainly with reference to the quantum of payment of standby charges. While these Appeals were pending, M/s. Tata Power Company Limited field this present Appeal No. 56/2005 as against the order dated 11.6.2004 which had given effect to the order dated 31.5.2004 to the extent that it relates to fixation of tariff of the standby facility being provided by the Tata Power Company Ltd. to M/s. Reliance Energy Limited from the period 1998. Page 13 of 19 Judgment in Appeal No 56 of 2005

    (iv) As mentioned above, the Division Bench of this Tribunal by the order dated 20.12.2006 rejected the prayer of the Tata Power Company and further reduced the quantum of the standby charges. Admittedly, this judgment dated 20.12.2006 which set aside the order dated 31.5.2004 by the State Commission has been challenged in the Honble Supreme Court which granted conditional stay of the operation of the judgment of this Tribunal. The said Appeal is still pending.

    10. The perusal of the grounds raised in the present Appeal show that most of these grounds had been raised by Tata Power Company Limited in the earlier Appeals as against the order dated 31.5.2004 and the said grounds had been dealt with and decision had been rendered in the judgment of this Tribunal dated 20.12.2006. As indicated above, those issues decided by the Tribunal are pending consideration before the Honble Supreme Court. Therefore, we are not inclined to deal with those grounds which have already been decided by this Tribunal. Page 14 of 19 Judgment in Appeal No 56 of 2005

    11. The specific prayer made in this Appeal is to quash and set aside the impugned order dated 11.6.2004 only to the extent of fixation of tariff of the standby facilities and consequently, the Tata Power Company Limited may be permitted to recover the tariff for standby facility at the same rate at which the Tata Power Company has paid to the State Electricity Board. From the reading of this prayer, it is clear that this Tribunal has been requested by the Appellant in this Appeal to go into the grounds which have been already decided by this Tribunal and which are to be decided by the Honble Supreme Court. In other words, the issue in respect of liability to pay standby charges which has been considered and decided by this Tribunal is sought to be considered again by reopening the entire issue.

    12. Admittedly, the impugned order dated 11.6.2004 passed by the State Commission was based upon the earlier order dated 31.5.2004, passed by the State Commission which had already been set aside. Such being the case, if we go into the validity of Page 15 of 19 Judgment in Appeal No 56 of 2005 the impugned order, it would amount to review the earlier judgment rendered by this Tribunal dated 20.12.2006 setting aside the order dated 31.5.2004 which is not permissible under the law.

    13. Further, impugned order dated 11.6.2004 which is a tariff order had given effect to the order dated 31.5.2004 by following a particular methodology. That methodology has resulted in State Commission fixing a particular tariff which has been recovered by the Tata power Company as well as the Reliance Energy Company Limited from their consumers for several years in question. If that methodology is disturbed at this stage, without getting the result of the final adjudication of the Honble Supreme Court in regard to the order dated 31.5.2004 passed by the State Commission, we feel that it would result in a totally unworkable situation.

    14. Therefore, we do not want to go into the merits of these issues now in this Appeal as we are yet to know the outcome of Page 16 of 19 Judgment in Appeal No 56 of 2005 the very same issue in the pending Appeals before the Honble Supreme Court.

    15. There are two possibilities arising out of the outcome of the Honble Supreme Court judgment:

    (i) If the Tribunal judgment dated 20.12.2006 is upheld by the Honble Supreme Court, the State Commission has to restore the standby charges payable by the Reliance for the Financial Year 1998-99 to 2003-04 on the basis of the judgment of this Tribunal dated 20.12.2006. The State Commission order dated 11.6.2004 to that extent would have to be modified by the State Commission.

    (ii) In case the Tribunal judgment dated 20.12.2006 is set- aside by the Honble Supreme Court, there are two possibilities: (a) If the Tribunal judgment is set aside and if the State Commissions order in entirety is upheld, Page 17 of 19 Judgment in Appeal No 56 of 2005 then the question of the adjustment of the amount payable by the Tata Power Company to the Reliance Energy against Tata Power Companys contingency reserve would have to be decided. (b) If both the Tribunals judgment dated 20.12.2006 as well as the State Commissions order dated 31.5.2004 are set aside by the Honble Supreme Court and the matter is remanded back to the State Commission by giving some guidelines for determining the liabilities of both the parties arising out of standby charges, the State Commission will have to decide the matter de-novo.

    16. Thus viewed from any angle we feel that it is not proper to decide the issue afresh till these issues are decided by the Honble Supreme Court. Therefore, we deem it appropriate to dispose of this Appeal with a direction to the State Commission to take up the matter afresh and to pass appropriate orders in accordance with the Honble Supreme Court final judgement as and when it is pronounced. Page 18 of 19 Judgment in Appeal No 56 of 2005

    17. Accordingly ordered. With these observations, this Appeal is disposed of. No order as to cost. (V.J.Talwar) (Rakesh Nath) (Justice M. Karpaga Vinayagam) Technical Member Technical Member Chairperson Dated: 24th May, 2011 REPORTABLE/NON-REPORTABALE Page 19 of 19

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    Tata Power Company Limited v. Reliance Energy Limited
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