Before the Appellate Tribunal for Electricity (Appellate Jurisdiction)

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Before the Appellate Tribunal for Electricity (Appellate Jurisdiction)

Appeal Nos. 166 of 2011, 150 of 2011, 168 of 2011, 172 of 2011, 173 of 2011, 09 of 2012 & I.A. No. 14 of 2012, 18 of 2012, 29 of 2012, 26 of 2012 & 38 of 2012

Dated: 9th May, 2012

Present : Hon’ble Mr. Rakesh Nath, Technical Member Hon’ble Mr. Justice P.S. Datta, Judicial Member

Appeal No. 166 of 2011 In the matter of:

Biomass Energy Developers

Association & Ors. … Appellant (s) Versus

Andhra Pradesh Electricity

Regulatory Commission &Ors. ... Respondent (s) Counsel for the Appellant(s) : Mr.K.Gopal Choudhary,

Counsel for the Respondent(s) : Mr. A.Subba Rao for R-2 to R-6 Mr.Yusuf Khan

Appeal No. 150 of 2011

M/s SLS Power Limited … Appellant (s) Versus

Regulatory Commission &Ors. ... Respondent (s)

Counsel for the Appellant(s) : Mr.M.G. Ramachandran

Ms. Swapna Seshadri

Mr. Anand K.Ganesan

Counsel for the Respondent(s) : Mr.A.Subba Rao for R-2 to R-6 Mr.Yusuf Khan

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Appeal No. 168 of 2011 South Indian Sugar Mills

Association & Ors. … Appellant (s)

Versus

Regulatory Commission &Ors. ... Respondent (s) Counsel for the Appellant(s) :

Appeal No. 172 of 2011

Sardar Power Private Limited … Appellant (s)

Versus

Regulatory Commission &Ors. ... Respondent (s) Counsel for the Appellant(s) : Mr.K.Gopal Choudhary

Counsel for the Respondent(s) : Mr.A.Subba Rao for R-2 to R-6 Mr.Yusuf Khan Appeal No. 173 of 2011 &IA No. 60 of 2012 M/s K.M. Power Private

Limited & Ors. … Appellant (s)

Versus

Andhra Pradesh Electricity Regulatory

Commission & Ors. ... Respondent (s)

Counsel for the Appellant(s) : Ms. Swapna Seshadri

Counsel for the Respondent(s): Mr.A.Subba Rao for R-2 to R-6 Mr.Yusuf Khan

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Appeal No. 9 of 2012 & IA No. 14 of 2012

K.C.P Sugars and Industries Corporation Ltd. & Ors. … Appellant (s) Versus

Andhra Pradesh Electricity Regulatory

Commission & Ors. .... Respondent (s) Counsel for the Appellant(s) :

Appeal No. 18 of 2012 & IA No. 61 / 2012

Central Power Distribution Co. of A.P.

… Appellant (s) Versus

Bollineni Castings Ltd. & Ors. ... Respondent (s)

Counsel for the Appellant (s) : Mr.A.Subba Rao for R-2 to R-6 Mr.Yusuf Khan

Counsel for the Respondent(s) : Ms. Swapna Sheshadri for R-5

Mr.K. Gopal Choudhary, Advocate

M/s. Bollineri Castings and Steels Ltd. … Appellant (s) Versus

Commission & Ors. .... Respondent (s) Counsel for the Appellant(s) :

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M/s.Kakatiya Cement Sugar & Industries Ltd .… Appellant (s) Versus

Commission & Ors. .... Respondent (s) Counsel for the Appellant(s) : Mr. C. Hanumanta Rao

Mr. Mullapudi Rambabu

M/s. Agri Gold Project Ltd.& Ors. … Appellant (s) Versus

Andhra Pradesh Electricity Regulatory

Commission & Ors. .... Respondent (s)

Counsel for the Appellant(s) : Mr. C. Hanumanta Rao Mr. Mullapudi Rambabu

ORDER

Today, the appellants in Appeal No. 166 of 2011 filed an I.A. No. 179 of 2012 praying for execution of this Tribunal’s order dated 1st February, 2012 passed in

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connection with batch of appeals and batch of interlocutory applications directing the distribution licensees to make payment of the arrears to the appellants on the basis of difference in tariff as determined by the Chairman of the State Commission and the tariff already paid within 30 days of the date of that order.

2. This 32 page order was appealed against before the Hon’ble Supreme Court. The Hon’ble Court by order dated 4th April, 2012 while not interfering with the Tribunal’s order dated 1st February, 2012 directed for execution of the order in the manner that the appellants shall deposit the money out of which 50% of the said amount shall be withdrawn by the respondents without furnishing any security and 50% with security to the satisfaction of this appellate authority.

3. We recorded this order of the Hon’ble Supreme Court in order dated 13th April, 2012 and accordingly directed the Registry to open an account as per rules to enable the distribution licensees to deposit the payment in compliance with the directions of the Hon’ble Supreme Court. The distribution licensees were also directed by our order dated 13th April, 2012 to deposit the amount in terms of the order passed by this Tribunal dated 1st February, 2012 by 27th April, 2012.

4. On 27th April, 2012, since no deposit was made and prayer was made by the distribution licensees praying for extension of time, we directed them to make payment of 50% of the total amount within 10 days from the date of the order and remaining

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50% within 10 days thereafter. With this direction the I.A. No. 158 of 2012 filed by the distribution licensees was disposed of. It is to be mentioned here that in the Annexure to the I.A. No. 158 of 2012 there was a chart appended by the distribution licensees showing amounts payable in terms of a methodology which was in consonance with our interim order dated 1st February, 2012.

5. Meanwhile, the Registry informed that there was some procedural difficulty in opening an account and the same would take some time. In such circumstances, the learned advocates agreed between themselves that the differential amount payable may be paid by the distribution licensees directly to the payees. Accordingly, this Tribunal passed an order on 2nd May, 2012 directing the distribution licensees to make 50% payment to the appellant- generating companies within the time frame given in our dated 27th April, 2012 and the balance 50% of the amount by furnishing security in the form of bank guarantee to the Registry of this Tribunal.

6. In this backdrop Mr. Gopal Choudhary, learned advocate appearing for the appellants – generating companies in connection with Appeal No. 166 of 2011 filed this execution application contending that the interim order dated 1st February, 2012 since confirmed by the Hon’ble Supreme Court and all subsequent orders passed in connection therewith have not been complied with and accordingly steps may be taken under the law for execution of the order. Copy of the application has been

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served upon the distribution licensees. It is submitted by Mr. Choudhary that the distribution companies have distorted with mala fide motive our interim order dated 1st February, 2012. In our interim order dated 1st February, 2012, we observed that the amount of difference between the sum fixed by the Chairperson of the State Commission and the total sums already paid shall now be deposited and in terms of the order of Hon’ble Supreme Court the amount so payable shall be withdrawn by the appellants without security to the extent of 50% and with security to the extent of remaining 50%. Mr. Gopal Choudhary gives an example as to how the order has been distorted. For example in the case of Shree Papers Ltd. total amount payable as per the distribution licensees is Rs. 359493713/-. The amounts so far paid as per October, 2004 order is Rs. 302493256/-. Differential amount is Rs. 57000456/- and out of this amount, a sum of Rs. 24874303/- was paid as per High Court’s order. Thus, balance differential amount payable is now Rs. 32126154/- and in terms of our order 50% of the amount is directly payable without security. But today, the distribution licensees furnished a chart whereby they included the amount of Rs. 24874303/- to be an amount to be covered under bank security and instead of making payment of 50% of Rs. 32126154/- they deposited on 7th May, 2012 a sum of Rs. 37.27 lacs. Similar was the case also with another generating Company, namely, Matrix Power Ltd. The methodology now adopted definitely frustrates the very import of the order dated 1st February, 2012 passed by this Tribunal, since confirmed by the Hon’ble Supreme Court. What the distribution licensees did was that in case of Shree Papers Ltd., they divided Rs. 57000456/- into 50 : 50 and deducted Rs. 24874303/-

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from the 50% of Rs. 57000456/- and brining the figure payable towards first installment without security as Rs. 37.24 lacs. This is quite impermissible. In the order dated 1st February, 2012, we made it very clear that the differential amount would mean the amount fixed by the Commission’s Chairman minus the total amount so far paid. We take strong exception to this tactics adopted by the distribution licensees.

7. Therefore, we strongly direct the distribution licensees to make 50% of the amount payable as per the methodology used in their I.A. No. 158 of 2012 immediately. So, we direct the distribution licensees to file an affidavit regarding reporting compliance on 15th May, 2012.

8. Post I.A. No. 158 of 2012 on 23rd May, 2012 for final disposal.

9. Heard the learned counsel for the appellant in Appeal No. 168 of 2011. Post the appeal for hearing on 10th May, 2012 at 2.30 p.m.

(Justice P.S. Datta) (Rakesh Nath)

Judicial Member Technical Member

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