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  • provisions contained in Rule 1 Order 47 of the Code of Civil Procedure.
  • Section 43 A(2) of the Electricity (Supply) Act, 1948
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Citation Codes
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citation codes
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Attorney(S)
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  • provisions contained in Rule 1 Order 47 of the Code of Civil Procedure.
  • Section 43 A(2) of the Electricity (Supply) Act, 1948
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The application for review was filed by Uttar Pradesh Power Corporation Ltd. (the petitioner) against the Commission's order dated 24.10.2003 in Petition No. 41/2001. The impugned order had approved tariff for Feroze Gandhi Unchahar Thermal Power Station Stage I for the period 1.4.2001 to 31.3.2004. The review application was listed for hearing on admission and counsel for the petitioner (Shri D.D. Chopra) and an executive engineer (Shri T.K. Srivastava) argued the matter.

Background facts recorded in the opinion: the generating station was transferred by the erstwhile Uttar Pradesh State Electricity Board to National Thermal Power Corporation (NTPC) on 13.2.1992 at a stated transfer cost of Rs. 925 crore. The Ministry of Power, by notification dated 26.3.1994, had earlier considered a project cost of Rs. 909.71 crore (gross block Rs. 893.84 crore plus initial spares Rs. 15.87 crore) for tariff fixation for the period from 13.2.1992 to 31.3.1997. The Commission later adopted the same project cost in its order dated 30.10.2002 in Petition No. 33/2002, and that figure was carried forward for the tariff determination in Petition No. 41/2001. The petitioner challenged multiple aspects of the Commission's order dated 24.10.2003, including capital cost, debt-equity ratio, return on equity and interest on loan, depreciation, O&M charges, interest on working capital and the approach to energy (variable) charges.

Legal Issues Presented

  1. Whether the Commission's adoption of a capital base of Rs. 909.71 crore (as on 13.2.1992 / transfer price) for computation of tariff for Feroze Gandhi Unchahar Thermal Power Station Stage I was liable to review instead of using the station's book value (asserted as Rs. 643 crore).
  2. Whether the Commission committed an apparent error by adopting a normative debt–equity ratio of 50:50 (and deriving return on equity and interest on loan on that basis) instead of using the financing structure contained in the techno‑economic clearance or approved financial package.
  3. Whether depreciation should have been computed on historical cost rather than on the opening gross block derived from the transfer price and subsequent additions.
  4. Whether the Commission erred in allowing or disallowing various components of O&M charges (including employee-related items, “other expenses”, R&M, communication, insurance, rent, water charges and colony residential consumption billing).
  5. Whether the Commission erred in computing working capital by including receivables (i.e., whether receivables were double-counted or otherwise incorrectly included).
  6. Whether the energy (variable) charges should have been determined on the basis of “actuals or norms, whichever is lower” instead of by applying the normative operational parameters adopted from earlier Central Government notifications.

Arguments of the Parties

Petitioner's Arguments

  • Capital cost: The petitioner maintained that the generating station's book value at the time of transfer (Rs. 643 crore) should have been taken as the capital base for tariff computation rather than the transfer/project cost of Rs. 909.71 crore. The petitioner relied on an earlier Commission order (Petition No. 77/2001 relating to Tanda Thermal Power Station) where the Commission had limited the capital base to the completion/book cost.
  • Debt–Equity, Return on Equity and Interest on Loan: The petitioner argued that the Commission should have applied the debt and equity proportions as per the techno‑economic clearance/approved financial package (as required by notification dated 26.3.2001) rather than applying a normative 50:50 ratio and deriving return on equity (16% on paid up and subscribed capital) and interest on notional loan accordingly.
  • Depreciation: The petitioner contended that depreciation was wrongly computed by applying weighted average depreciation rates on a gross block based on the transfer price (Rs. 92,500 lakh / Rs. 94070.00 lakh after additions), and that historical/historical cost of assets should have been the basis for depreciation.
  • O&M Charges: The petitioner asserted that certain employee costs (welfare expenses, other costs) should have been disallowed in the same manner as incentive/ex‑gratia was disallowed; further, that “other expenses” and heads like R&M, communication, insurance and rent should have been examined more closely; it also contended that 6% escalation on water charges was unwarranted and that residential colony consumption should be metered and charged at appropriate rates.
  • Interest on Working Capital: The petitioner submitted that the Commission had improperly included receivables on receivables (suggesting a double or excessive inclusion) in the working capital computation.
  • Energy Charges / Actual vs Normative: The petitioner argued that energy (variable) charges should have been fixed on the basis of “actuals or norms, whichever is lower” and relied upon the Explanation below clause 2.4 of the notification dated 26.3.2001.

Commission's Position (as articulated in the opinion)

  • Capital cost: The Commission noted that the Central Government (Ministry of Power) had already determined tariff based on the project cost of Rs. 909.71 crore for the period 13.2.1992 to 31.3.1997 and that the Commission had consciously adopted that opening gross block in its earlier order (30.10.2002) without re‑opening the settled issue. The Commission also observed that the petitioner had paid the tariff based on that cost for a decade without protest, and thus the capital cost had acquired finality.
  • Debt–Equity, Return on Equity and Interest on Loan: The Commission relied on the notification dated 26.3.2001 (and prior determinations) and noted that both the Ministry of Power and the Commission had used a 50:50 debt–equity ratio in prior tariffs. The station's techno‑economic clearance had been obtained by the predecessor UPSEB and it was open to the petitioner to place that clearance or other evidence before the Ministry if it sought a different financing figure; absent such evidence or a prior change, the Commission deliberately adopted the normative 50:50 ratio to avoid regulatory uncertainty.
  • Depreciation: Given the Commission's adoption of the opening gross block derived from the transfer/project price, depreciation calculation by applying weighted average rates on that gross block was justified; there was no basis to insist on historical cost for depreciation once the transfer/project cost had been accepted as the capital base.
  • O&M Charges: The Commission applied the methodology in the notification dated 26.3.2001, scrutinised expenses in detail, disallowed items it found abnormal or unjustified, and allowed only amounts within normal limits. The petitioner did not identify specific errors that would warrant review; the Commission treated the petitioner's general allegations as insufficient for review under Rule 1, Order 47 CPC.
  • Interest on Working Capital: The Commission explained that receivables as a component of working capital include two months of fixed and two months of variable charges as per the notification dated 26.3.2001; the Commission had calculated receivables accordingly and the petitioner's claim of “receivables on receivables” was not supported by the record.
  • Energy Charges / Actual vs Normative: The Commission applied operational norms from the earlier Ministry of Power notification dated 26.3.1994 for existing stations (by virtue of clause 2.3(a) of the 26.3.2001 notification). The Explanation below clause 2.4 of the 26.3.2001 notification (invoked by the petitioner) applies only to stations which became operational on or after 1.4.2001. Feroze Gandhi Unchahar Thermal Power Station was an existing station as on 1.4.2001, so the “actuals or norms, whichever is lower” principle in the Explanation could not be invoked for this station.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed each ground raised in the review application by reference to the documentary and regulatory history recorded in the file and the relevant statutory/regulatory provisions referenced in the impugned order and the applicable notifications. The court's reasoning can be broken down issue‑wise as follows:

Capital Cost

The court emphasised that the Central Government (Ministry of Power) had earlier fixed tariff up to 31.3.1997 using a project cost of Rs. 909.71 crore; the Commission had consciously adopted the same opening gross block in its earlier order dated 30.10.2002 and had declined review of that decision as not being an error apparent on the face of the record. Given that the petitioner had paid tariff based on that cost without protest for years, the court found that the capital cost figure had acquired finality. On this basis the court held that a review on the ground that the book value (Rs. 643 crore) should have been used was not maintainable.

Debt–Equity Ratio, Return on Equity and Interest on Loan

The court noted the terms of the notification dated 26.3.2001 requiring financing in accordance with the approved financial package in the techno‑economic clearance or as approved by an appropriate authority, and that the notification prescribes return on equity at 16% on paid up and subscribed capital. However, the court observed that both the Ministry of Power and the Commission had previously considered a normative 50:50 debt–equity ratio when fixing tariff for prior periods, and that return and interest were determined on notional debt and equity arrived at on that basis. As the techno‑economic clearance had been obtained by the predecessor UPSEB, the court held it was for the petitioner to produce evidence if a different financing structure was to be recognised. In these circumstances, the court found the Commission's adoption of a 50:50 ratio for consistency and regulatory certainty to be a deliberate, non‑erroneous decision and not an error apparent on the face of the record.

Depreciation

Because the capital base had been accepted as the opening gross block derived from the transfer/project price (Rs. 909.71 crore leading to a gross block figure referred to in the record, e.g. Rs. 94070.00 lakh), the court found no justification for recomputing depreciation on historical cost; the Commission's computation using weighted average depreciation rates on the adopted gross block was upheld.

O&M Charges

The court recorded that the Commission followed the methodology in the notification dated 26.3.2001 for deriving O&M expenses, scrutinised individual heads, disallowed items it considered abnormal, and allowed those within permissible limits. The petitioner had not pointed to specific errors in the Commission's calculations; consequently the court concluded the general allegations did not satisfy the standard for review under Rule 1, Order 47 CPC.

Interest on Working Capital

The court examined the working capital calculation and observed that receivables are a prescribed component (two months of fixed charges and two months of variable charges under the notification). The Commission had used two months of each in its computation. The petitioner's assertion that “receivables on receivables” were included was not supported by the record, and the court rejected this ground for review.

Energy Charges / Actual vs Normative Parameters

The court interpreted clause 2.3(a) of the 26.3.2001 notification to mean that operational norms existing in earlier Central Government notifications (specifically the 26.3.1994 notification) continue to apply to existing NTPC stations. The Explanation below clause 2.4 (advocated by the petitioner as introducing an “actuals or norms, whichever is lower” test) applies only to stations coming into operation on or after 1.4.2001. As Feroze Gandhi Unchahar Thermal Power Station was an existing station as on 1.4.2001, the Explanation could not be invoked; accordingly the Commission's use of the earlier normative parameters was correct.

In light of the above point‑by‑point analysis and the absence of any error apparent on the face of the record, the court concluded that none of the grounds raised in the review application warranted reopening the Commission's earlier decision.

Holding and Implications

DISMISSED — The court dismissed the review application at the admission stage.

Implications:

  • The Commission's order dated 24.10.2003 in Petition No. 41/2001 (approving tariff for Feroze Gandhi Unchahar Thermal Power Station Stage I for 1.4.2001 to 31.3.2004) stands unaltered as to the contested elements raised in the review application.
  • The direct effect on the parties: the petitioner's request to revise the capital base, debt–equity treatment, depreciation basis, O&M disallowances, working capital computation and the approach to energy charges was rejected; the tariff computations made in the impugned order remain operative.
  • The opinion does not purport to create any new legal precedent beyond upholding the Commission's prior, deliberate choices and applying the relevant provisions of the notifications cited; the court repeatedly characterised the Commission's determinations as deliberate decisions rather than errors apparent on the face of the record.

End of summary — based exclusively on the information contained in the provided opinion.

    Uttar Pradesh Power Corporation Ltd. v. National Thermal Power Corporation Ltd.

    The application has been filed by the petitioner, Uttar Pradesh Power Corporation Ltd., for review of order dated 24.10.2003 in Petition No. 41/2001 whereby the Commission had approved tariff in respect of Feroze Gandhi Unchahar Thermal Power Station Stage I for the period from 1.4.2001 to 31.3.2004 The petition was listed for hearing on admission.

    2. We heard Shri D.D Chopra, Advocate along with Shri T.K Srivastava, EE for the petitioner.

    3. Petition No. 41/2001 was filed by National Thermal Power Corporation Ltd. (Respondent 1) for approval of tariff for Feroze Gandhi Unchahar Thermal Power Station Stage I for the period from 1.4.2001 to 31.3.2004 The said petition was disposed of by the Commission vide its order dated 24.10.2003 based on the terms and conditions of tariff contained in the Commission's notification dated 26.3.2001 (hereinafter referred to as “the notification dated 26.3.2001”). The petitioner feels aggrieved on account of capital base of Rs. 909.71 crore considered for computation of tariff and certain other aspects of the order dated 24.10.2003 Hence, the petitioner seeks review of the said order dated 24.10.2003 on different aspects, which are discussed.

    Capital Cost

    4. Feroze Gandhi Unchahar Thermal Power Station was transferred on 13.2.1992 by the erstwhile Uttar Pradesh State Electricity Board, the predecessor of the present petitioner, to National Thermal Power Corporation at a cost of Rs. 925 crore. The tariff for the generating station for the period 13.2.1992 to 31.3.1997 was determined by the Central Government in Ministry of Power vide notification dated 26.3.1994 While determining tariff, Ministry of Power had considered the project cost of Rs. 909.71 crore. This included gross block of Rs. 893.84 crore and initial spares of Rs. 15.87 crore.

    5. The tariff for the period from 1.4.1997 to 31.3.2001 was determined by the Commission in its order dated 30.10.2002 in Petition No. 33/2002. While approving tariff, the project cost of Rs. 909.71 crore as on 13.2.1992, earlier considered by the Central Government was adopted by the Commission for the purpose of determination of tariff, which was adopted for the purpose of tariff in petition No. 41/2001.

    6. According to the petitioner, the capital base of Rs. 643 crore, which was the book value of the generating station at the time of its take over by National Thermal Power Corporation Ltd. from Uttar Pradesh State Electricity Board, ought to have been considered by the Commission. In support of its contention, Uttar Pradesh Power Corporation Ltd. has relied upon the Commission's order dated 28.6.2002 in Petition No. 77/2001, which relates to tariff for Tanda Thermal Power Station. Tanda Thermal Power Station was also transferred from the erstwhile Uttar Pradesh State Electricity Board to National Thermal Power Corporation Ltd., at a transfer cost of Rs. 1000 crore. However, while approving tariff for Tanda Thermal Power Station, the Commission considered the book value of Rs. 607 crore, which was the original cost of the generating station as on the date of commercial operation, as the base for calculation of tariff. Uttar Pradesh Power Corporation Ltd. accordingly seeks review of the capital cost considered by the Commission for Feroze Gandhi Unchahar Thermal Power Station Stage I for tariff determination purpose.

    7. While approving tariff for Feroze Gandhi Unchahar Thermal Power Station Stage I in petition No. 33/2002, the Commission in paragraph 5 of the order dated 30.10.2002, took note of the fact that in Petition No. 77/2001 (Tariff for Tanda Thermal Power Station), the Commission had not allowed the entire transfer cost of Rs. 1000 crore as the capital base for computation of tariff, but had limited the capital base to the completion cost (Rs. 607 crore) as on the date of commercial operation. The Commission proceeded to hold that since in the case of Feroze Gandhi Unchahar Thermal Power Station the transfer price of Rs. 909.71 crore was earlier considered by Ministry of Power for tariff calculations for the period ending 31.3.1997, this was taken into account without re-opening the settled issue. Thus, the opening gross block of Rs. 909.71 crore as on 13.2.1992 was adopted through a conscious and deliberate decision of the Commission after taking into account all the relevant facts. The review petition (No. 89/203) filed by the petitioner in petition No. 33/2002 was dismissed. The Commission held that the order was not susceptible to review as it was not a case of any error on the face of record. As we have noted above, the tariff for the period 1.4.2001 to 31.3.2004 was determined based on the capital cost considered in petition No. 33/2002.

    9. For Feroze Gandhi Unchahar Thermal Power Station tariff was initially determined by the Central Government from the date of its takeover (13.2.1992) and up to 31.3.1997 It was only after expiry of this period that the tariff has been decided by the Commission and while doing so, the Commission has adopted the capital base as earlier considered by the Central Government. The petitioner seems to have accepted the cost considered by the Central Government since it had been paying tariff without any protest. At this stage the petitioner cannot be allowed to impugn the capital cost considered a decade ago for tariff fixation. In our view the capital cost for the purpose of tariff determination has acquired finality.

    10. Accordingly, review of the order dated 24.10.2003 on this ground is not maintainable.

    Debt-Equity Ratio, Return on Equity and Interest on Loan

    11. In accordance with the notification dated 26.3.2001, the capital expenditure of the project should be financed as per the approved financial package set out in the techno-economic clearance issued by CEA or as approved by the appropriate independent agency, as the case may be. The notification dated 26.3.2001 further provides that return on equity shall be computed on the paid up and subscribed capital and shall be 16% of such capital. Further, in accordance with the notification dated 26.3.2001, interest on loan is to be computed on the outstanding loans duly taking into account the schedule of repayament as per the financial package approved by the Authority or an appropriate independent agency, as the case may be. According to the petitioner while approving tariff for Feroze Gandhi Unchahar Thermal Power Station, the Commission has not considered debt and equity as per the approved financial package set out in the techno-economic clearance, but has considered a preconceived debt-equity ratio of 50:50 and has proceeded to allow return on equity and interest on loan based on the amounts of debt and equity arrived at by considering debt-equity ratio of 50:50. According to the petitioner, these are the errors apparent on the face of record requiring review of the order.

    12. The tariff for the period from 13.2.1992 to 31.3.1997 was initially determined by Ministry of Power vide its notification dated 26.3.1994 The Commission had notified the tariff for the period from 1.4.1997 to 31.3.2001 vide its order dated 30.10.2002 in Petition No. 33/2002. Ministry of Power as well as the Commission in the order dated 30.10.2002 had considered the debt and equity in the ratio of 50:50 while notifying the tariff for the periods prior to 1.4.2001 Return on equity and interest on loan were determined on notional debt and equity arrived at in the above manner. Feroze Gandhi Unchahar Thermal Power Station Stage I was originally set up by the erstwhile Uttar Pradesh State Electricity Board, who has been succeeded by the petitioner. The techno-economic clearance for the generating station from CEA was obtained by UPSEB. Therefore, it was for the petitioner to place the techno-economic clearance and other evidence in support of the approved financial package before the Ministry of Power, if the petitioner wanted any other figure of project cost approved by them.

    13. The Commission while approving tariff for the period from 1.4.2001 to 31.3.2004 vide the impugned order, took note of the fact that while deciding tariff for earlier periods, normative debt-equity ratio of 50:50 was considered. Under these circumstances, the Commission decided to adopt debt-equity ratio of 50:50 for the purpose of determination of tariff in Petition No. 41/2001. Return on equity and interest on loan were allowed based on the normative equity and loan. In order to avoid any regulatory uncertainty, it was not desirable to make any departure from the factors considered for determining tariff for the prior period. In our opinion, in view of the above noted circumstances and the deliberate decision of the Commission to adopt normative debt and equity ratio of 50:50 and allowing return on equity and interest on loan by taking the amounts so arrived at, does not fall within the category of error apparent on the face of record.

    Depreciation

    14. The Commission in the order dated 24.10.2003 had considered the weighted average rate of depreciation applicable for the purpose of calculation of depreciation, at the opening gross block and had authorised depreciation. The petitioner has pointed out that the depreciation was computed by applying weighted average depreciation rate on gross block of Rs. 94070.00 lakh, which is based on the transfer price of Rs. 92500.00 lakh and to which has been added the additional capital expenditure. It is averred that for the purpose of computation of depreciation, the Commission ought to have taken into account the historical cost of the assets.

    15. We have considered the submission. We have already dealt with the basis for considering the capital cost of Rs. 94070.00 lakh as the capital base as on 1.4.2001 This was arrived at by considering the capital base of Rs. 90971 lakh as on 13.2.1992 In view of this, there was no justification for computation of depreciation based on the historical cost of the generating station. Therefore, review on this ground is also disallowed.

    O&M Charges

    16. In accordance with the notification dated 26.3.2001, O&M expenses for the stations in operation for five years or more in the base year 1999-2000 are derived on the basis of actual O&M expenses, excluding normal O&M expenses, if any, for the years 1995-1996 to 1999-2000, duly certified by the statutory auditors. The average of actual O&M expenses for the years 1995-1996 to 1999-2000 are considered as O&M expenses for the year 1997-1998, which are escalated twice at the rate 10% per annum to arrive at O&M expenses for the base year 1999-2000. Thereafter, the base O&M expenses for the year 1999-2000 are further escalated at the rate of 6% per annum to arrive at permissible O&M expenses for the relevant year. While approving tariff for Feroze Gandhi Uncahar Thermal Power Station, this methodology was strictly adhered to. O&M expenses on account of incentive and ex-gratia claimed by the first respondent under “employee cost” were disallowed. The petitioner has contended that in similar fashion, “welfare expenses” and “other costs” under the head “employee cost” should have been disallowed by the Commission. It is further contended that the amount claimed under the head “other expenses” in O&M charges should have been allowed or disallowed partially or fully. Similarly, it is contended that the charges allowed under the head “R&M charges”, “communication expenses”, “insurance” and “rent” should be examined closely by the Commission before allowing or disallowing them. Further, according to the petitioner, 6% escalation provided on water charges is unwarranted since the water charges are going to be constant for the entire tariff period. The petitioner has further urged that the Commission in the impugned order has not considered that all residential consumption in colonies should be measured by individual meters and that the rate at which power is charged at colony consumption is appropriately determined.

    17. The Commission while deciding on O&M expenses under different heads had meticulously scrutinised the details of expenditure. Wherever the Commission found any abnormality in the expenses or that the expenses were unjustified, those expenses were disallowed. Only those expenses which were within the normal limits in accordance with notification dated 26.3.2001 were allowed. Under the head “other expenses”, it was noted that increases were within the permissible limit and, therefore, the amounts indicated were considered normal to arrive at O&M charges. The petitioner in the application for review has not pointed out any specific errors in allowing O&M expenses. The allegations made by the petitioner, in our considered view, do not qualify for review of the order when seen in the light of statutory provisions contained in Rule 1 Order 47 of the Code of Civil Procedure.

    Interest on Working Capital

    18. According to the petitioner, the Commission while computing working capital requirement has included receivables on receivables as a part of working capital, which is an error apparent on the face of record.

    19. The averment of the petitioner has been considered. “Receivables” is one of the components of working capital and includes receivables for two months on account of fixed charges and variable charges as per the notification dated 26.3.2001 The Commission while allowing tariff for Feroze Gandhi Unchahar Thermal Power Station had calculated the receivables on the basis of two months of variable charges and two months of fixed charges. The contention made by the petitioner is not borne out by records. Therefore, we reject this as a ground for reivew.

    Energy Charges/Actual Vs Normative Parameters

    20. The energy (variable) charges have been determined by considering the normative operational parameters as contained in Ministry of Power notification dated 26.3.1994 based on which tariff was determined for the period from 13.2.1992 to 31.3.1997 and later on from 1.4.1997 to 31.3.2001 It has been contended by the petitioner that while calculating energy (variable) charges, the principles of “actuals or norms, whichever is lower”, should have been adopted by the Commission. In this context, the petitioner has placed reliance on the Explanation given below clause 2.4 of the notification dated 26.3.2001

    21. The submission made by the petitioner has been considered. In accordance with clause 2.3(a) of the notification dated 26.3.2001, the operational norms, except those relating to Target Availability and Plant Load Factor as contained in the existing tariff notifications for individual power stations issued by the Central Government under proviso of Section 43 A(2) of the Electricity (Supply) Act, 1948 in respect of existing stations of NTPC shall continue to apply. Feroze Gandhi Unchahar Thermal Power Station was the existing (generating) station as on 1.4.2001, the date from which the notification dated 26.3.2001 came into effect. The tariff for the periods prior to 1.4.2001 was determined in accordance with the operational norms contained in Ministry of Power notification dated 26.3.1994 Accordingly, in keeping with clause 2.3(a) of the notification dated 26.3.2001, while determining tariff for the period from 1.4.2001 to 31.3.2004 the operational norms contained in the notification dated 26.3.1994 were followed. The notification dated 26.3.1994 did not contain a provision that operating parameters were to be considered based on “actuals or normative, whichever is lower”. The petitioner has relied upon the Explanation below clause 2.4 By reading clause 2.3(a) and clause 2.4 together, it follows that the clause 2.4 is applicable for determination of tariff for the generating stations which became operational on 1.4.2001 or thereafter. Accordingly, the Explanation below clause 2.4 cannot be invoked in the case of Feroze Gandhi Unchahar Thermal Power Station. Therefore, we do not find merit in the contention that operational parameters should be considered based on “actuals or norms, whichever is lower”.

    22. In the light of above discussion, the application for review is dismissed at the admission stage.

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    Uttar Pradesh Power Corporation Ltd. v. National Thermal Power Corporation Ltd.
    (Jul 1, 2004)