PUNJAB STATE ELECTRICITY REGULATORY COMMISSION

SCO 220-221 SECTOR 34-A, CHANDIGARH

 

 

Petition No.3 of 2004

Date of hearing:  April 7,  2004

Date of Order: 6.5.2004

 

In the matter of:          Petition filed by Union of India, Ministry of Railways, Northern Railways, Ambala, for review of Tariff Order for the FY 2002-2003 passed by the Commission.

 

                                                            AND

 

In the matter of           Union of India, Ministry of Railways, Northern Railway, Divisional Railways Manager’s  Office, Ambala.

 

 

 

          Present:                         Sh. R.S.Mann, Chairman,

                                                Sh. L.S.Deol, Member

 

For the Petitioner:                   Sh. Yogesh Putney, Advocate

                                                Sh. Sanjay Kubbey, S.E. Railways, Ambala

 

                                   

For the PSEB:                         Sh. B.D.Bansal, Director, Sales

                                                Sh. V.K.Shanan, Deputy Director, Sales

                                               

                                   

ORDER

Union of India, Ministry of Railways, Northern Railway, Divisional Railway Manager’s Office, Ambala filed Review Petition in the Commission against Tariff Order of the Commission for the financial year 2002-03.  In the Petition, it has been prayed that the Tariff Order for the financial year 2002-03 be reviewed qua the petitioner Railways and tariff @ Rs.2.09 per unit be fixed for Railways traction category 7 keeping in view the purchase rate of electricity for the Board along with 20% overhead expenses to meet wheeling/establishment charges and reasonable profit for supply.  It is further prayed that during the pendency of the Review Petition, operation of Tariff Order for the financial year 2002-03 be stayed qua the Railways traction and tariff @ Rs.2.09 per unit be charged and excess amount recovered be refunded or adjusted along with interest with effect from the date the amount was paid till the actual date of adjustment/payment.  The detailed grounds for the prayer are given in the Review Petition.

 

2.   Though the Review Petition was initially filed by the Petitioner on 29.12.2003, the same was returned in original on January 7, 2004 and again on January 23, 2004 by the office of the Commission as the same was deficient and not as per the Commission’s Conduct of Business Regulations. The Review Petition was duly filed by the Petitioner after removing deficiencies only on February 10, 2004.

 

3.   The Petition was heard on March 3, 2004 for admission when it was decided to issue notice of motion to the Board regarding maintainability of the Petition. The said Petition was heard by the Commission on April 7,  2004 regarding maintainability.

 

4.   A question arose as to whether the Petition was time-barred or not.  It is noted by the Commission that the petition in complete form has been filed with the Commission only on February 10, 2004, whereas the Tariff Order of the Commission against which the Review Petition has been filed was issued on September 6, 2002. Thus Review Petition has been filed after a gap of over one year and five months since the passing of the Tariff Order by the Commission.  As such prima facie Review Petition is time-barred. However, no application for condonation of delay has been filed by the Petitioner along with the Petition.

 

5.   When the above facts were brought to the notice of the Petitioner, it was stated on behalf of the Petitioner that a letter was written to the Secretary PSERC requesting for review of the Tariff Order dated September 6, 2002 but a reply was received from the office of the Commission that the letter cannot be treated as Petition as it is not in proper form and is also not supported by affidavit as required under the PSERC Conduct of Business Regulations. It was further stated by the Petitioner that thereafter Review Petition was filed on February 17, 2003 along with objections filed by them, in response to the public notice issued by the Commission inviting objections from public on the ARR and Tariff Application filed by the Board with the Commission for the next year 2003-04. It was further stated on behalf of the Petitioner that the Review Petition was, however, not considered by the Commission at that stage and has  thus remained to be adjudicated by the Commission. Consequently, the present Review Petition has been filed by the Petitioner. Thus according to the Petitioner, delay in filing the Review Petition cannot be attributed to the Petitioner and hence needs to be condoned.

 

6.   It is, however, noted by the Commission that enclosing the Review Petition with the objections in response to public notice was not a correct course of action for filing of a petition.  The petitions are required to be filed by the aggrieved and interested parties as per the procedure laid down in the PSERC Conduct of Business Regulations and public objections in connection with ARR and Tariff Application for the year 2003-04 are not the right forum for raising issue of review of Tariff Order for the year 2002-03. It is also noted that even the said objection including Review Petition was filed by the Petitioner in proper form only on February 17, 2003. Thus even this was much after the valid period of three months after passing of Tariff Order by the Commission.

 

7.   However, in view of the circumstances of the case, a liberal view is taken and the delay in filing the Review Petition is condoned.

 

8.   The learned counsel for the petitioner was asked as to how the Petition is maintainable in view of the provisions of Order XLVII Rule I of the Civil Procedure Code.  The Petitioner stated that the case is covered under those provisions as there is mistake or error apparent on the face of the record as the Tariff Order has fixed higher tariff for Railways when compared to average cost of supply of electricity as worked out by the Commission, Tariff for the Railways is also high even when compared to the cost of purchase of power by the Board from the Central Generating Stations or when compared with the tariff of industrial consumers or with reference to the tariff being charged from Railways in the neighbouring states or even with reference to tariff charged from Railways by the Board in the earlier years.  The Petitioner also went on to say that inspite of paying higher tariff, they are being denied certain benefits like incentives for drawal of power at higher voltage etc. being allowed by the Board to the industrial units. It was further argued that the tariff being charged from the Railways is unjust especially as the load of  Railways is a mixed load and almost  40% of the total load is being used for its domestic consumers.

 

9.   The Commission notes that the grounds given by the Railways in its Review Petition and in the arguments before the Commission cannot be covered under the grounds as laid down in Order XLVII Rule I of CPC. None of these grounds can be classified as new and important matter or evidence or an error apparent on face of record or sufficient reason necessitating review of Tariff Order passed by the Commission.  The Commission also noted that the Tariff Order has been passed by the Commission after full public hearing and inviting objections and observations from all segments of public and all categories of consumers and all interested parties including the Board and the Government. All the matters relevant for the Tariff fixation, including those now taken up in this Petition, were duly considered by the Commission and thereafter detailed Tariff Order was issued. No new fact or evidence has been brought out now nor has the Petitioner pointed out any error apparent on face of record.  The fact that the Petitioner feels aggrieved or feels that he has been treated harshly or even unfairly cannot become an adequate ground for review of the impugned order.  The Tariff Order has been passed keeping in view the interests of all categories of consumers and balancing the clashing interests of different parties and different players placed in the field namely the Government, the Board and various categories of consumers. The Order passed after such wide public hearing cannot and should not be amended without similar public hearing and only on the basis of request of a single party, especially when no prima facie case is made out.  As already stated, all factors put forth by the Petitioner were already in notice of the Commission at the time of passing of the Tariff Order and were duly considered and weighed by the Commission before passing the Tariff Order.

 

10. In view of all above, the Commission is of the view that no case has been made out to review the Tariff Order on the grounds given by the Petitioner.  The Petition is, therefore, dismissed.

 

                        Sd/-                                                      Sd/-

                                    (L.S.Deol)                                           (R.S.Mann)

                                    Member                                              Chairman

 

Place: Chandigarh

Dated: 6.5.2004