published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40786
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4117 OF 2006
U.P. Power Corporation Ltd. …Appellant
Versus
N.T.P.C. Ltd. & Ors. …Respondents
WITH CIVIL APPEAL NOS.5361-5362 OF 2007
J U D G M E N T
T.S. THAKUR, J.
1. This appeal under Section 125 of the Electricity Act, 2003 calls in
question the correctness of a Judgment and Order dated 7th July, 2006
passed by the Appellate Tribunal for Electricity whereby the Tribunal has
while partially modifying the Order passed by the Central Electricity
Regulatory Commission (‘CERC’ for short) dismissed Appeal No.36 of 2006
filed by the appellant.
2. The CERC had by the Order impugned before the Tribunal allowed
Petition No.139 of 2004 filed by the respondent-Corporation and permitted
capitalisation of Rs.4.521 crores over the approved cost for the completion
of Feroz Gandhi Unchahar Thermal Power Station Stage-I for the period 1st
April, 2001 to 31st March, 2004. While doing so the CERC had in Para 37 of
its Order held respondent No.1 entitled to return on equity and interest on
loan on the said amount payable along with the tariff for the period 2004-
2009. What is significant is that both the CERC and the Appellate Tribunal
rejected the contention urged on behalf of the appellant-Corporation that
the additional capital expenditure incurred by the respondent-Corporation
could not be taken into consideration for tariff fixation without the same
having been approved by the Central Electricity Authority (“CEA” for short)
as required under Regulation 2.5 of the CERC (Terms and Conditions for
Determination of Tariff) Regulations, 2001. The primary question that
therefore falls for consideration in this appeal is whether the CERC and
the Tribunal have correctly interpreted Regulation 2.5 of the said
regulations while permitting capitalisation of the additional expenditure
for purposes of determining the tariff. That question arises in the
following factual backdrop:
3. Feroz Gandhi Unchahar Thermal Power Station Stage-I was taken over by
the respondent-National Thermal Power Corporation from the erstwhile U.P.
State Electricity Board on 13th February, 1992.
The Central Government had
approved the takeover cost of Rs.925 crores in terms of a communication
dated 2nd May, 1993 issued by the Ministry of Power.
By a subsequent
letter dated 5th August, 1996 the CEA accorded approval for an additional
Rs.2.85 crores for R&M under Environment Action Plan, thereby taking the
total approved project cost to Rs.927.85 crores.
4. The CERC (Terms & Conditions for Determination of Tariff)
Regulations, 2001 for the period 1st April, 2001 to 31st March, 2004 came
to be notified on 26th March, 2001, pursuant whereto the respondent-
Corporation filed Petition No.41 of 2001 for approval of tariff for the
relevant tariff period in respect of the generating plant in question. By
an Order dated 24th October, 2003, the CERC approved the tariff taking into
consideration the capital cost at Rs.940.70 crores as on 1st April, 2001
but did not consider the additional capitalisation claimed by the
respondent since the latter was based only on an estimated capital
expenditure and was unsupported by an auditor’s certificate. Respondent-
Corporation then moved petition No.139 of 2004 before the CERC on 5th
October, 2004 seeking approval of the revised fixed charges in respect of
the generating plant for the relevant tariff period taking into account the
additional capital expenditure incurred during the said period which was
estimated at Rs.6.101 crores. By an order dated 31st March, 2005, the CERC
disposed of the said petition approving an amount of Rs.4.521 crores
towards capital expenditure while disallowing the rest.
5. The CERC held that the respondent would not be entitled to tariff
revision during the relevant period in the light of Regulation 1.10 of the
CERC Regulations which prohibited allowance of an additional capital
expenditure, if such expenditure happened to be less than 20 per cent of
the approved project cost. It all the same held in Para 37 of its Order
that the respondent was entitled to relief in the form of return on equity
at the rate of 16% and interest on loan on the approved additional capital
expenditure for the period 2004-2009. The CERC observed :
“37. As there is nothing in the notification dated 26.3.2001 to
deny the petitioner the reasonable return to service the capital
expenditure incurred by the petitioner and found to be justified
by us, we direct that the petitioner shall earn return on equity
@ 16% on the equity portion of the additional capitalization
approved by us. Similarly, the petitioner shall also be
entitled to the interest on loan as applicable during the
relevant period. Return on equity and interest shall be worked
out on the additional capitalization of Rs.4.521 crore approved
by us from 1st April of the financial year following the
financial year to which additional capital expenditure relates
up to 31.3.2004. The lump sum of the amount of return on equity
and interest on loan so arrived at shall be payable by the
respondents along with the tariff for the period 2004-09 to be
approved by the Commission. The exact entitlement of the
petitioner on this account shall be considered by the Commission
while approving tariff for the period 2004-09.”
6. Aggrieved by the order passed by the CERC the appellant-Corporation
approached the Appellate Tribunal for Electricity in Appeal No.36 of 2006.
The appellant thereby questioned the CERC’s authority to approve the
additional capital expenditure of Rs.4.521 crores as also the power to
award relief in the nature specified in para 37 supra. It was contended on
behalf of the Corporation that in the absence of approval of the
expenditure by CEA as required under Regulation 2.5 of the CERC
Regulations, the CERC had no authority to hold that the respondent-NTPC was
entitled to additional capitalisation. The Appellate Tribunal for
Electricity, however, repelled that contention and dismissed the appeal
filed by the appellant on the ground that CERC’s approval of additional
capitalisation to the tune of Rs.4.521 crores did not call for any
interference and that the respondent-Corporation had placed sufficient
material before the CERC to substantiate its claim. The Tribunal declared
that the CERC was empowered to undertake a prudent check and approve
additional capitalisation after the deletion of Section 43-A(2) of the
Electricity (Supply) Act, 1948 because of which deletion CEA ceased to have
any role in such matters. The Tribunal further held that the project had
been originally approved by CEA as far back as on 5th August, 1986 and was
taken over while still incomplete by the respondent-NTPC in 1992. The
incomplete items were then completed by the respondent NTPC after the
takeover which required investment of additional capital. The Tribunal
was, therefore, of the view that the additional capital was well within the
approved cost of the project which remained unexecuted on the date of
vesting. The Appellate Tribunal, however, accepted the appellant’s
contention that the relief regarding the return on equity and interest on
loan could not be granted until the next tariff period. Consequently the
Tribunal directed deletion of Para 37 of the CERC’s order giving liberty to
the CERC to take the said relief into consideration while determining the
tariff for the next period. The present appeal assails the correctness of
the view taken by the CERC and the Appellate Tribunal.
7. When this appeal came up for admission on 29th September, 2006, this
Court admitted the same only to examine the following two questions:
“a. What is the true scope and ambit of Regulation 2.5 of CERC
(Terms and Conditions for Determination of Tariff) Regulations,
2001?
b. xxxxxxx
c. xxxxxxx
d. Whether the CERC could have allowed the additional
capitalization which was not approved by the concerned
authority i.e. Central Electricity Authority?
e. xxxxxxx”
8. Appearing for the appellant Mr. Pradeep Misra strenuously contended
that the CERC and so also the Appellate Tribunal had failed to correctly
interpret Regulation 2.5 of the Regulations in question. He submitted that
Regulation 2.5 of the Regulations was much too clear to admit of any
equivocation. A plain reading of the Regulation, argued Mr. Misra, left no
manner of doubt that any additional capital expenditure incurred on the
completion of the project could be taken into consideration for fixation of
tariff only if such excess was allowed by the CEA or an appropriate
independent agency constituted under the said Regulations. So long as the
capital expenditure incurred in excess of the approved expenditure did not
have the sanction of the CEA or the independent agency nominated by the
CERC, the same could not, according to the learned Counsel, constitute a
valid input for fixing the tariff. No such approval having been sought or
granted either by the CEA or any independent agency in this case, the CERC
could not have taken the additional capital expenditure into consideration
for purposes of fixing the tariff. It was also contended that the CERC as
also the Appellate Tribunal had fallen in error in holding that deletion of
Section 43A(2) of the Electricity (Supply) Act, 1948 made a reference to
the CEA in terms of Regulation 2.5 of the Regulations unnecessary. The
deletion of Section 43A(2) notwithstanding, the CEA continued to exercise
powers in terms of Sections 28 to 32 of the Act. The statutory requirement
of an approval from the CEA of the additional cost had not, therefore, been
rendered a surplusage by reason of the removal of Section 43A(2) from the
statute book.
9. On behalf of the respondent it was contended by Mr. Ramachandran that
the CERC as also the Tribunal were perfectly justified in taking into
consideration the additional expenditure incurred on the completion of the
project, not only because there was no dispute that such an expenditure had
in fact been incurred but also because the said expenditure was found to be
capital in nature. The question of an approval from the CEA or the
independent agency was, therefore, rendered academic in the facts and
circumstances of the case.
10. It was further argued that since the appellant itself accepted the
expenditure to have been incurred and the nature of the expenditure having
been found to be capital in character, the CEA or the independent agency
could not have, even if a reference was made, declined approval to the
same. It was also argued that the deletion of Section 43A(2) of the
Electricity (Supply) Act, 1948 from the statute book made a material
difference and that the CERC and the Tribunal had correctly held that a
reference to the CEA or independent agency was on that count unnecessary.
11. Regulation 2.5 of the Regulations reads as under:
“2.5 Capital Expenditure
The capital expenditure of the project shall be financed as per
the approved financial package set out in the techno-economic
clearance of the Authority or as approved by an appropriate
independent agency as the case may be. The project cost shall
include reasonable amount of capitalized initial spares.
The actual capital expenditure incurred on completion of the
project shall form the basis for fixation of tariff. Where the
actual expenditure exceeds the approved project cost, the excess
expenditure as allowed by the Authority or an appropriate
independent agency shall be considered for the purpose of
fixation of tariff.
Provided that such excess expenditure is not attributable to the
Generating Company or its suppliers or contractors;
Provided further that where a Power Purchase Agreement entered
into between the Generating Company and the beneficiary provides
a ceiling on capital expenditure, the capital expenditure shall
not exceed such ceiling for computation of tariff.”
12. The term “independent agency” referred to in the above Regulation is
defined in regulation 1.9 as under:
“1.9 ‘Independent agency’ means the agency approved by the
Commission by a separate notification.”
13. A plain reading of the above makes it manifest that the basis for
fixation has to be the “actual capital expenditure” incurred on the
completion of the project. But where the actual expenditure exceeds the
approved expenditure the excess so incurred can be taken into consideration
to the extent the same is allowed by the Central Electricity Authority or
an appropriate independent agency nominated for the purpose. This implies
that the excess expenditure must go through a process of scrutiny either by
the CEA or the independent agency before it can constitute an input for
determination of the tariff. Scrutiny of the excess would in turn
primarily involve examination of two distinct aspects viz.
(a) Whether the excess expenditure has been actually incurred or
is a make believe or an exaggeration by the generating company;
and
(b) Whether the expenditure was capital in nature.
14. In cases where the answers to these two questions is in the
affirmative, the CEA or the Independent Agency would have no reason to
disallow such expenditure, nor would its consideration for tariff fixation
present any difficulty. In case a lesser amount is allowed by the CEA or
the Independent Agency either because the generating company fails to
substantiate its claim of having incurred the expenditure as claimed or
even if the amount is incurred, only a part of the same was in the nature
of capital expenditure, the lesser amount alone will constitute an input
for tariff determination. To that extent, there is no difficulty nor was
Mr. Misra, Counsel for the appellant, able to suggest any other dimension
which the CEA or the Independent Agency would be entitled to consider while
examining the question of allowing or disallowing the excess expenditure
incurred by the generating unit. If that be so, absence of a reference
under Regulation 2.5 (supra) to the CEA or Independent Agency would make
little or no difference having regard to the facts of the case at hand. We
say so because although the respondent-Corporation had claimed an excess
expenditure of Rs.6.101 crores the amount actually taken into consideration
for fixation of the tariff was Rs.4.521 crores only. The CERC had on a
prudent check disallowed a substantial part of the excess that was claimed
by the respondent-Corporation. What is significant is that the appellant-
Corporation had fairly conceded that an amount of Rs.4.521 crores was
indeed spent by the respondent for the completion of the project. That is
evident from the following observation of the Electricity Appellate
Tribunal, where Mr. Misra learned counsel for the appellant made a candid
admission as to the extent of the expenditure incurred over and above the
approved Project cost:
“Mr. Pradeep Misra, learned counsel for the appellant, while
relying on Regulation 1.10 which provides that there shall be no
tariff revision if the capital expenditure is less than 20% of
the approved cost of the project contended that there could be
no tariff revision at all much less the appellant shall be made
liable to pay 16% ROE as well as interest as directed in Para 37
of the Impugned Order under challenge. Mr. Pradeep Misra also
contended that the claim of this additional expenditure, under
five Heads, are not disputed but they are only maintenance
expenditure. It was also contended by the learned counsel that
in the absence of approval of expenditure by CEA and there being
no proof of such approval, CERC has no authority to hold that
NTPC had incurred additional capital expenditure and entitled to
additional capitalisation.”
(emphasis supplied)
15. From the above, we have no difficulty in holding that the first of
the two aspects that may have engaged the attention of the CEA or the
Independent Agency was concluded by the admission of the appellant, which
was the best evidence, in the matter apart from the fact that the figure
arrived at by the Commission was based on a fair and prudent check of the
extent of admissible expenditure said to have been incurred.
16. That leaves us with the second aspect which, any scrutiny or
examination by the CEA may have involved viz. whether the expenditure was
capital or revenue in nature. The CERC has found the expenditure to be
capital in nature which finding has been affirmed by the Appellate
Tribunal. There is nothing perverse about that finding in our opinion nor
has this appeal been admitted on the question whether the expenditure was
capital or revenue. In the absence of any question relating to the nature
of the expenditure, we find it difficult to appreciate how the absence of a
reference to CEA has caused any miscarriage of justice for the appellant or
vitiated the tariff fixation by the CERC. It follows that even if a
reference to CEA was in the facts of the case required to be made, the
absence of any failure of justice or prejudice would render it unnecessary
for us to interfere with the orders passed by the CERC and the Appellate
Tribunal.
17. Since the question whether or not a reference to CEA was necessary
under Regulation 2.5 was argued before us at some length we may as well
deal with the same before parting. A reference to the backdrop in which
the question arises becomes necessary and may be summarised as under:
18. The Electricity (Supply) Act, 1948 inter alia dealt with the
generation and supply of electricity by generating companies. Chapter V
comprising Sections 28 to 58 of the said Act dealt with the preparation of
schemes by generating companies and concurrence of the CEA for such schemes
including the capital cost to be incurred by these generating companies.
Section 43A of the Act dealt with sale of electricity by the generating
companies and provided norms and parameters to be determined by the CEA and
notified by the Government of India. Since much of the debate at the Bar
was around the said provision and the effect of deletion of sub-section (2)
thereof, it would be useful to reproduce the same at this stage.
“43A. Terms, conditions and tariff for sale of electricity by
Generating Company.- (1) A Generating Company may enter into a
contract for the sale of electricity generated by it-
(a) with the Board constituted for the State or any of the
States in which a generating station owned or operated by
the company is located;
(b) with the Board constituted for any other State in which
it is carrying on its activities in pursuance of sub-
section (3) of section 15A; and
(c) with any other person with consent of the competent
government or governments.
(2) The tariff for the sale of electricity by a Generating
Company to the Board shall be determined in accordance with the
norms regarding operation and the Plant Load Factor as may be
laid down by the Authority and in accordance with the rates of
depreciation and reasonable return and such other factors as may
be determined, from time to time, by the Central Government, by
notification in the Official Gazette:
Provided that the terms, conditions and tariff for such
sale shall, in respect of a Generating Company wholly or partly
owned by the Central Government, be such as may be determined by
the Central Government and in respect of a Generating Company
wholly or partly owned by one or more State Governments be such
as may be determined, from time to time, by the government or
governments concerned.”
19. In the year 1998, came the Electricity Regulatory Commissions Act,
1998, which established the Central Electricity Regulatory Commission
(hereinafter referred to as “the Central Commission”). The Central
Commission was inter alia charged with the function of determining tariffs
of Central Units such as those owned and controlled by the respondent-
Corporation. Significantly enough Section 51 of this Act empowered the
Central Government to delete sub-section (2) of Section 43A with effect
from such date as the Central Government may decide. The Central
Government, invoked that power and by a notification dated 11th September,
2000, directed the deletion of Section 43A (2) of the Electricity Supply
Act, 1948 in respect of generating companies regulated by the Central
Commission retrospectively w.e.f. 24th July, 1998. Shortly thereafter the
Central Commission issued an order in regard to operational norms
applicable to generating stations owned among others by respondent-NTPC.
The order was to the following effect:
“As regards capital costs, the situation is somewhat difficult.
As the law stands today in respect to PSUs, the required
approvals from the Government and clearance from CEA have to be
obtained before the commencement of the project, subject to
certain limits for which no clearance is required. After the
completion of the project, if the actual expenditure or the
scope of the project vary beyond certain limits, they are
required to be further approved. This process of approval is
time consuming, resulting in a provisional clearance, making a
subsequent retrospective revision inevitable. Changes in
legislation are being contemplated by which the clearance from
CEA for projects might be done away with. However, as the law
stands today, approvals are inevitable. Still it is possible to
bring about stability in tariff in case a time schedule is
worked out by which utilities may submit data of CEA at least 6
months prior to the completion of a project, so that clearance
could be obtained sufficiently in time before the tariff for the
station/lines is determined. It is hoped that any variations on
actual finalization of accounts thereafter should be minor in
nature which could be absorbed by the utility and if
substantial, can be taken care of in the next revision. In view
of the above, all utilities seeking determination of tariff in
respect of new projects, shall submit their applications to us
at least 3 months in advance of the anticipated date of
completion, along with the project cost as approved by the
appropriate independent authorities, other than the Board of
Directors of the Company. This project cost will constitute the
basis for tariff fixation, and no revision would be entertained
till the next tariff period. This direction presupposes that
CEA may hereafter, unlike the past, clear capital cost
escalations on factors other than the change in scope as well.
We would urge upon CEA to consider and deal with the approval of
additional capital costs other than those due to change in the
scope of the project as well, in the interest of avoidance of
tariff shocks down stream. In case the projects exempted from
CEA clearance, the Commission would consider accepting a due
diligence clearance from any recognised agency.”
20. The above was followed by the Central Commission framing Tariff
Regulations 2001, in which Regulation 2.5 extracted earlier dealt with
capital expenditure. It was in the above background that the Central
Commission determined the Tariff for the generating unit in question for
the period 1st April, 1997 to 31st March, 2001 by an order dated 30th
October, 2002. Shortly after that order the Parliament enacted the
Electricity Act, 2003 which came into force w.e.f. 10th June, 2003. The new
legislation repealed the Electricity (Supply) Act, 1948. The effect of
this repeal was that all provisions of the 1948 Act including those
requiring approval by the CEA of the scheme of the generating stations and
capital cost which the repealed Act provided for became inapplicable and
irrelevant under the new Act. The new law aimed at deregulating electricity
generation. In the case of Thermal Power Stations the capital cost was not
required to be approved by the CEA, as was the position under the earlier
law.
21. In Petition No.139 of 2004,
the respondent-Corporation sought
additional capitalisation of the expenditure on the project in question
relevant to the period 2001-2004.
The Central Commission determined the
additional capitalisation and allowed the same to the respondent, which
determination was upheld by the Tribunal with the modification to which we
have adverted in the beginning of this order.
22. There is no gainsaying that the prayer for additional capitalisation
was made by the respondent-Corporation and considered by CERC after the
Electricity Act 2003 had come into force, repealing the earlier enactments.
The new legislation did not set out any role for the CEA, in the matter of
approval of the schemes for the generating companies or the capital
expenditure for the completion of such projects.
The entire exercise
touching the regulation of the tariff of generating companies owned or
controlled by the Central Government, like the respondent was entrusted to
the Central Commission.
The role of the Central Electricity Authority
established under Section 7 of the 2003 Act, was limited to matters
enumerated under Section 73 of the Act, approval of the scheme for
generating companies or the capital expenditure for the completion of such
projects or capitalisation of the additional expenditure not being one such
function.
The CERC was, therefore, right when it said that the Central
Electricity Authority had no part to play in the matter of approval for
purposes of capitalisation of the extra expenditure incurred on a project.
That was so notwithstanding the continuance of Regulation 2.5 of the
regulations framed by the CERC providing for such an approval by the CEA.
The far reaching changes that came about in the legal framework with the
enactment of the 2003 Act, made Regulation 2.5 redundant in so far as the
same envisaged a reference to the CEA or an Independent Agency for approval
of the additional capitalisation.
Insistence on a reference, to the CEA
for such approval, despite the sea change in the legal framework would have
been both unnecessary as well as opposed to the spirit of new law that
reduced the role of CEA to what was specified in Section 73 of the Act.
The CERC and the Tribunal were in that view justified in holding that a
reference to the CEA was not indicated nor did the absence of such a
reference denude the CERC of its authority to fix the tariff after the 2003
Act had come into force.
That was so notwithstanding the fact that proviso
to Section 61 of the Electricity Act, 2003 continued the terms and
conditions for determination of tariff under the enactments mentioned
therein and those specified in the Schedule for a period of one year or
till such terms were specified under that section whichever was earlier. In
the result this appeal fails and is hereby dismissed with costs assessed at
Rs.50,000/-
Civil Appeal Nos.5361-5362 of 2007
23. In these appeals the order impugned by the appellant places reliance
upon the order passed by the Tribunal, in Appeal No.36 of 2006 against
which order we have in the foregoing part of this judgment dismissed the
appeal preferred by the appellant. On a parity of reasoning these appeals
are also destined to be dismissed and are, accordingly, dismissed with
costs assessed at Rs.50,000/-.
………………….……….…..…J.
(T.S. THAKUR)
.……..…………………..…..…J.
(VIKRAMAJIT SEN)
New Delhi
September 18, 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4117 OF 2006
U.P. Power Corporation Ltd. …Appellant
Versus
N.T.P.C. Ltd. & Ors. …Respondents
WITH CIVIL APPEAL NOS.5361-5362 OF 2007
J U D G M E N T
T.S. THAKUR, J.
1. This appeal under Section 125 of the Electricity Act, 2003 calls in
question the correctness of a Judgment and Order dated 7th July, 2006
passed by the Appellate Tribunal for Electricity whereby the Tribunal has
while partially modifying the Order passed by the Central Electricity
Regulatory Commission (‘CERC’ for short) dismissed Appeal No.36 of 2006
filed by the appellant.
2. The CERC had by the Order impugned before the Tribunal allowed
Petition No.139 of 2004 filed by the respondent-Corporation and permitted
capitalisation of Rs.4.521 crores over the approved cost for the completion
of Feroz Gandhi Unchahar Thermal Power Station Stage-I for the period 1st
April, 2001 to 31st March, 2004. While doing so the CERC had in Para 37 of
its Order held respondent No.1 entitled to return on equity and interest on
loan on the said amount payable along with the tariff for the period 2004-
2009. What is significant is that both the CERC and the Appellate Tribunal
rejected the contention urged on behalf of the appellant-Corporation that
the additional capital expenditure incurred by the respondent-Corporation
could not be taken into consideration for tariff fixation without the same
having been approved by the Central Electricity Authority (“CEA” for short)
as required under Regulation 2.5 of the CERC (Terms and Conditions for
Determination of Tariff) Regulations, 2001. The primary question that
therefore falls for consideration in this appeal is whether the CERC and
the Tribunal have correctly interpreted Regulation 2.5 of the said
regulations while permitting capitalisation of the additional expenditure
for purposes of determining the tariff. That question arises in the
following factual backdrop:
3. Feroz Gandhi Unchahar Thermal Power Station Stage-I was taken over by
the respondent-National Thermal Power Corporation from the erstwhile U.P.
State Electricity Board on 13th February, 1992.
The Central Government had
approved the takeover cost of Rs.925 crores in terms of a communication
dated 2nd May, 1993 issued by the Ministry of Power.
By a subsequent
letter dated 5th August, 1996 the CEA accorded approval for an additional
Rs.2.85 crores for R&M under Environment Action Plan, thereby taking the
total approved project cost to Rs.927.85 crores.
4. The CERC (Terms & Conditions for Determination of Tariff)
Regulations, 2001 for the period 1st April, 2001 to 31st March, 2004 came
to be notified on 26th March, 2001, pursuant whereto the respondent-
Corporation filed Petition No.41 of 2001 for approval of tariff for the
relevant tariff period in respect of the generating plant in question. By
an Order dated 24th October, 2003, the CERC approved the tariff taking into
consideration the capital cost at Rs.940.70 crores as on 1st April, 2001
but did not consider the additional capitalisation claimed by the
respondent since the latter was based only on an estimated capital
expenditure and was unsupported by an auditor’s certificate. Respondent-
Corporation then moved petition No.139 of 2004 before the CERC on 5th
October, 2004 seeking approval of the revised fixed charges in respect of
the generating plant for the relevant tariff period taking into account the
additional capital expenditure incurred during the said period which was
estimated at Rs.6.101 crores. By an order dated 31st March, 2005, the CERC
disposed of the said petition approving an amount of Rs.4.521 crores
towards capital expenditure while disallowing the rest.
5. The CERC held that the respondent would not be entitled to tariff
revision during the relevant period in the light of Regulation 1.10 of the
CERC Regulations which prohibited allowance of an additional capital
expenditure, if such expenditure happened to be less than 20 per cent of
the approved project cost. It all the same held in Para 37 of its Order
that the respondent was entitled to relief in the form of return on equity
at the rate of 16% and interest on loan on the approved additional capital
expenditure for the period 2004-2009. The CERC observed :
“37. As there is nothing in the notification dated 26.3.2001 to
deny the petitioner the reasonable return to service the capital
expenditure incurred by the petitioner and found to be justified
by us, we direct that the petitioner shall earn return on equity
@ 16% on the equity portion of the additional capitalization
approved by us. Similarly, the petitioner shall also be
entitled to the interest on loan as applicable during the
relevant period. Return on equity and interest shall be worked
out on the additional capitalization of Rs.4.521 crore approved
by us from 1st April of the financial year following the
financial year to which additional capital expenditure relates
up to 31.3.2004. The lump sum of the amount of return on equity
and interest on loan so arrived at shall be payable by the
respondents along with the tariff for the period 2004-09 to be
approved by the Commission. The exact entitlement of the
petitioner on this account shall be considered by the Commission
while approving tariff for the period 2004-09.”
6. Aggrieved by the order passed by the CERC the appellant-Corporation
approached the Appellate Tribunal for Electricity in Appeal No.36 of 2006.
The appellant thereby questioned the CERC’s authority to approve the
additional capital expenditure of Rs.4.521 crores as also the power to
award relief in the nature specified in para 37 supra. It was contended on
behalf of the Corporation that in the absence of approval of the
expenditure by CEA as required under Regulation 2.5 of the CERC
Regulations, the CERC had no authority to hold that the respondent-NTPC was
entitled to additional capitalisation. The Appellate Tribunal for
Electricity, however, repelled that contention and dismissed the appeal
filed by the appellant on the ground that CERC’s approval of additional
capitalisation to the tune of Rs.4.521 crores did not call for any
interference and that the respondent-Corporation had placed sufficient
material before the CERC to substantiate its claim. The Tribunal declared
that the CERC was empowered to undertake a prudent check and approve
additional capitalisation after the deletion of Section 43-A(2) of the
Electricity (Supply) Act, 1948 because of which deletion CEA ceased to have
any role in such matters. The Tribunal further held that the project had
been originally approved by CEA as far back as on 5th August, 1986 and was
taken over while still incomplete by the respondent-NTPC in 1992. The
incomplete items were then completed by the respondent NTPC after the
takeover which required investment of additional capital. The Tribunal
was, therefore, of the view that the additional capital was well within the
approved cost of the project which remained unexecuted on the date of
vesting. The Appellate Tribunal, however, accepted the appellant’s
contention that the relief regarding the return on equity and interest on
loan could not be granted until the next tariff period. Consequently the
Tribunal directed deletion of Para 37 of the CERC’s order giving liberty to
the CERC to take the said relief into consideration while determining the
tariff for the next period. The present appeal assails the correctness of
the view taken by the CERC and the Appellate Tribunal.
7. When this appeal came up for admission on 29th September, 2006, this
Court admitted the same only to examine the following two questions:
“a. What is the true scope and ambit of Regulation 2.5 of CERC
(Terms and Conditions for Determination of Tariff) Regulations,
2001?
b. xxxxxxx
c. xxxxxxx
d. Whether the CERC could have allowed the additional
capitalization which was not approved by the concerned
authority i.e. Central Electricity Authority?
e. xxxxxxx”
8. Appearing for the appellant Mr. Pradeep Misra strenuously contended
that the CERC and so also the Appellate Tribunal had failed to correctly
interpret Regulation 2.5 of the Regulations in question. He submitted that
Regulation 2.5 of the Regulations was much too clear to admit of any
equivocation. A plain reading of the Regulation, argued Mr. Misra, left no
manner of doubt that any additional capital expenditure incurred on the
completion of the project could be taken into consideration for fixation of
tariff only if such excess was allowed by the CEA or an appropriate
independent agency constituted under the said Regulations. So long as the
capital expenditure incurred in excess of the approved expenditure did not
have the sanction of the CEA or the independent agency nominated by the
CERC, the same could not, according to the learned Counsel, constitute a
valid input for fixing the tariff. No such approval having been sought or
granted either by the CEA or any independent agency in this case, the CERC
could not have taken the additional capital expenditure into consideration
for purposes of fixing the tariff. It was also contended that the CERC as
also the Appellate Tribunal had fallen in error in holding that deletion of
Section 43A(2) of the Electricity (Supply) Act, 1948 made a reference to
the CEA in terms of Regulation 2.5 of the Regulations unnecessary. The
deletion of Section 43A(2) notwithstanding, the CEA continued to exercise
powers in terms of Sections 28 to 32 of the Act. The statutory requirement
of an approval from the CEA of the additional cost had not, therefore, been
rendered a surplusage by reason of the removal of Section 43A(2) from the
statute book.
9. On behalf of the respondent it was contended by Mr. Ramachandran that
the CERC as also the Tribunal were perfectly justified in taking into
consideration the additional expenditure incurred on the completion of the
project, not only because there was no dispute that such an expenditure had
in fact been incurred but also because the said expenditure was found to be
capital in nature. The question of an approval from the CEA or the
independent agency was, therefore, rendered academic in the facts and
circumstances of the case.
10. It was further argued that since the appellant itself accepted the
expenditure to have been incurred and the nature of the expenditure having
been found to be capital in character, the CEA or the independent agency
could not have, even if a reference was made, declined approval to the
same. It was also argued that the deletion of Section 43A(2) of the
Electricity (Supply) Act, 1948 from the statute book made a material
difference and that the CERC and the Tribunal had correctly held that a
reference to the CEA or independent agency was on that count unnecessary.
11. Regulation 2.5 of the Regulations reads as under:
“2.5 Capital Expenditure
The capital expenditure of the project shall be financed as per
the approved financial package set out in the techno-economic
clearance of the Authority or as approved by an appropriate
independent agency as the case may be. The project cost shall
include reasonable amount of capitalized initial spares.
The actual capital expenditure incurred on completion of the
project shall form the basis for fixation of tariff. Where the
actual expenditure exceeds the approved project cost, the excess
expenditure as allowed by the Authority or an appropriate
independent agency shall be considered for the purpose of
fixation of tariff.
Provided that such excess expenditure is not attributable to the
Generating Company or its suppliers or contractors;
Provided further that where a Power Purchase Agreement entered
into between the Generating Company and the beneficiary provides
a ceiling on capital expenditure, the capital expenditure shall
not exceed such ceiling for computation of tariff.”
12. The term “independent agency” referred to in the above Regulation is
defined in regulation 1.9 as under:
“1.9 ‘Independent agency’ means the agency approved by the
Commission by a separate notification.”
13. A plain reading of the above makes it manifest that the basis for
fixation has to be the “actual capital expenditure” incurred on the
completion of the project. But where the actual expenditure exceeds the
approved expenditure the excess so incurred can be taken into consideration
to the extent the same is allowed by the Central Electricity Authority or
an appropriate independent agency nominated for the purpose. This implies
that the excess expenditure must go through a process of scrutiny either by
the CEA or the independent agency before it can constitute an input for
determination of the tariff. Scrutiny of the excess would in turn
primarily involve examination of two distinct aspects viz.
(a) Whether the excess expenditure has been actually incurred or
is a make believe or an exaggeration by the generating company;
and
(b) Whether the expenditure was capital in nature.
14. In cases where the answers to these two questions is in the
affirmative, the CEA or the Independent Agency would have no reason to
disallow such expenditure, nor would its consideration for tariff fixation
present any difficulty. In case a lesser amount is allowed by the CEA or
the Independent Agency either because the generating company fails to
substantiate its claim of having incurred the expenditure as claimed or
even if the amount is incurred, only a part of the same was in the nature
of capital expenditure, the lesser amount alone will constitute an input
for tariff determination. To that extent, there is no difficulty nor was
Mr. Misra, Counsel for the appellant, able to suggest any other dimension
which the CEA or the Independent Agency would be entitled to consider while
examining the question of allowing or disallowing the excess expenditure
incurred by the generating unit. If that be so, absence of a reference
under Regulation 2.5 (supra) to the CEA or Independent Agency would make
little or no difference having regard to the facts of the case at hand. We
say so because although the respondent-Corporation had claimed an excess
expenditure of Rs.6.101 crores the amount actually taken into consideration
for fixation of the tariff was Rs.4.521 crores only. The CERC had on a
prudent check disallowed a substantial part of the excess that was claimed
by the respondent-Corporation. What is significant is that the appellant-
Corporation had fairly conceded that an amount of Rs.4.521 crores was
indeed spent by the respondent for the completion of the project. That is
evident from the following observation of the Electricity Appellate
Tribunal, where Mr. Misra learned counsel for the appellant made a candid
admission as to the extent of the expenditure incurred over and above the
approved Project cost:
“Mr. Pradeep Misra, learned counsel for the appellant, while
relying on Regulation 1.10 which provides that there shall be no
tariff revision if the capital expenditure is less than 20% of
the approved cost of the project contended that there could be
no tariff revision at all much less the appellant shall be made
liable to pay 16% ROE as well as interest as directed in Para 37
of the Impugned Order under challenge. Mr. Pradeep Misra also
contended that the claim of this additional expenditure, under
five Heads, are not disputed but they are only maintenance
expenditure. It was also contended by the learned counsel that
in the absence of approval of expenditure by CEA and there being
no proof of such approval, CERC has no authority to hold that
NTPC had incurred additional capital expenditure and entitled to
additional capitalisation.”
(emphasis supplied)
15. From the above, we have no difficulty in holding that the first of
the two aspects that may have engaged the attention of the CEA or the
Independent Agency was concluded by the admission of the appellant, which
was the best evidence, in the matter apart from the fact that the figure
arrived at by the Commission was based on a fair and prudent check of the
extent of admissible expenditure said to have been incurred.
16. That leaves us with the second aspect which, any scrutiny or
examination by the CEA may have involved viz. whether the expenditure was
capital or revenue in nature. The CERC has found the expenditure to be
capital in nature which finding has been affirmed by the Appellate
Tribunal. There is nothing perverse about that finding in our opinion nor
has this appeal been admitted on the question whether the expenditure was
capital or revenue. In the absence of any question relating to the nature
of the expenditure, we find it difficult to appreciate how the absence of a
reference to CEA has caused any miscarriage of justice for the appellant or
vitiated the tariff fixation by the CERC. It follows that even if a
reference to CEA was in the facts of the case required to be made, the
absence of any failure of justice or prejudice would render it unnecessary
for us to interfere with the orders passed by the CERC and the Appellate
Tribunal.
17. Since the question whether or not a reference to CEA was necessary
under Regulation 2.5 was argued before us at some length we may as well
deal with the same before parting. A reference to the backdrop in which
the question arises becomes necessary and may be summarised as under:
18. The Electricity (Supply) Act, 1948 inter alia dealt with the
generation and supply of electricity by generating companies. Chapter V
comprising Sections 28 to 58 of the said Act dealt with the preparation of
schemes by generating companies and concurrence of the CEA for such schemes
including the capital cost to be incurred by these generating companies.
Section 43A of the Act dealt with sale of electricity by the generating
companies and provided norms and parameters to be determined by the CEA and
notified by the Government of India. Since much of the debate at the Bar
was around the said provision and the effect of deletion of sub-section (2)
thereof, it would be useful to reproduce the same at this stage.
“43A. Terms, conditions and tariff for sale of electricity by
Generating Company.- (1) A Generating Company may enter into a
contract for the sale of electricity generated by it-
(a) with the Board constituted for the State or any of the
States in which a generating station owned or operated by
the company is located;
(b) with the Board constituted for any other State in which
it is carrying on its activities in pursuance of sub-
section (3) of section 15A; and
(c) with any other person with consent of the competent
government or governments.
(2) The tariff for the sale of electricity by a Generating
Company to the Board shall be determined in accordance with the
norms regarding operation and the Plant Load Factor as may be
laid down by the Authority and in accordance with the rates of
depreciation and reasonable return and such other factors as may
be determined, from time to time, by the Central Government, by
notification in the Official Gazette:
Provided that the terms, conditions and tariff for such
sale shall, in respect of a Generating Company wholly or partly
owned by the Central Government, be such as may be determined by
the Central Government and in respect of a Generating Company
wholly or partly owned by one or more State Governments be such
as may be determined, from time to time, by the government or
governments concerned.”
19. In the year 1998, came the Electricity Regulatory Commissions Act,
1998, which established the Central Electricity Regulatory Commission
(hereinafter referred to as “the Central Commission”). The Central
Commission was inter alia charged with the function of determining tariffs
of Central Units such as those owned and controlled by the respondent-
Corporation. Significantly enough Section 51 of this Act empowered the
Central Government to delete sub-section (2) of Section 43A with effect
from such date as the Central Government may decide. The Central
Government, invoked that power and by a notification dated 11th September,
2000, directed the deletion of Section 43A (2) of the Electricity Supply
Act, 1948 in respect of generating companies regulated by the Central
Commission retrospectively w.e.f. 24th July, 1998. Shortly thereafter the
Central Commission issued an order in regard to operational norms
applicable to generating stations owned among others by respondent-NTPC.
The order was to the following effect:
“As regards capital costs, the situation is somewhat difficult.
As the law stands today in respect to PSUs, the required
approvals from the Government and clearance from CEA have to be
obtained before the commencement of the project, subject to
certain limits for which no clearance is required. After the
completion of the project, if the actual expenditure or the
scope of the project vary beyond certain limits, they are
required to be further approved. This process of approval is
time consuming, resulting in a provisional clearance, making a
subsequent retrospective revision inevitable. Changes in
legislation are being contemplated by which the clearance from
CEA for projects might be done away with. However, as the law
stands today, approvals are inevitable. Still it is possible to
bring about stability in tariff in case a time schedule is
worked out by which utilities may submit data of CEA at least 6
months prior to the completion of a project, so that clearance
could be obtained sufficiently in time before the tariff for the
station/lines is determined. It is hoped that any variations on
actual finalization of accounts thereafter should be minor in
nature which could be absorbed by the utility and if
substantial, can be taken care of in the next revision. In view
of the above, all utilities seeking determination of tariff in
respect of new projects, shall submit their applications to us
at least 3 months in advance of the anticipated date of
completion, along with the project cost as approved by the
appropriate independent authorities, other than the Board of
Directors of the Company. This project cost will constitute the
basis for tariff fixation, and no revision would be entertained
till the next tariff period. This direction presupposes that
CEA may hereafter, unlike the past, clear capital cost
escalations on factors other than the change in scope as well.
We would urge upon CEA to consider and deal with the approval of
additional capital costs other than those due to change in the
scope of the project as well, in the interest of avoidance of
tariff shocks down stream. In case the projects exempted from
CEA clearance, the Commission would consider accepting a due
diligence clearance from any recognised agency.”
20. The above was followed by the Central Commission framing Tariff
Regulations 2001, in which Regulation 2.5 extracted earlier dealt with
capital expenditure. It was in the above background that the Central
Commission determined the Tariff for the generating unit in question for
the period 1st April, 1997 to 31st March, 2001 by an order dated 30th
October, 2002. Shortly after that order the Parliament enacted the
Electricity Act, 2003 which came into force w.e.f. 10th June, 2003. The new
legislation repealed the Electricity (Supply) Act, 1948. The effect of
this repeal was that all provisions of the 1948 Act including those
requiring approval by the CEA of the scheme of the generating stations and
capital cost which the repealed Act provided for became inapplicable and
irrelevant under the new Act. The new law aimed at deregulating electricity
generation. In the case of Thermal Power Stations the capital cost was not
required to be approved by the CEA, as was the position under the earlier
law.
21. In Petition No.139 of 2004,
the respondent-Corporation sought
additional capitalisation of the expenditure on the project in question
relevant to the period 2001-2004.
The Central Commission determined the
additional capitalisation and allowed the same to the respondent, which
determination was upheld by the Tribunal with the modification to which we
have adverted in the beginning of this order.
22. There is no gainsaying that the prayer for additional capitalisation
was made by the respondent-Corporation and considered by CERC after the
Electricity Act 2003 had come into force, repealing the earlier enactments.
The new legislation did not set out any role for the CEA, in the matter of
approval of the schemes for the generating companies or the capital
expenditure for the completion of such projects.
The entire exercise
touching the regulation of the tariff of generating companies owned or
controlled by the Central Government, like the respondent was entrusted to
the Central Commission.
The role of the Central Electricity Authority
established under Section 7 of the 2003 Act, was limited to matters
enumerated under Section 73 of the Act, approval of the scheme for
generating companies or the capital expenditure for the completion of such
projects or capitalisation of the additional expenditure not being one such
function.
The CERC was, therefore, right when it said that the Central
Electricity Authority had no part to play in the matter of approval for
purposes of capitalisation of the extra expenditure incurred on a project.
That was so notwithstanding the continuance of Regulation 2.5 of the
regulations framed by the CERC providing for such an approval by the CEA.
The far reaching changes that came about in the legal framework with the
enactment of the 2003 Act, made Regulation 2.5 redundant in so far as the
same envisaged a reference to the CEA or an Independent Agency for approval
of the additional capitalisation.
Insistence on a reference, to the CEA
for such approval, despite the sea change in the legal framework would have
been both unnecessary as well as opposed to the spirit of new law that
reduced the role of CEA to what was specified in Section 73 of the Act.
The CERC and the Tribunal were in that view justified in holding that a
reference to the CEA was not indicated nor did the absence of such a
reference denude the CERC of its authority to fix the tariff after the 2003
Act had come into force.
That was so notwithstanding the fact that proviso
to Section 61 of the Electricity Act, 2003 continued the terms and
conditions for determination of tariff under the enactments mentioned
therein and those specified in the Schedule for a period of one year or
till such terms were specified under that section whichever was earlier. In
the result this appeal fails and is hereby dismissed with costs assessed at
Rs.50,000/-
Civil Appeal Nos.5361-5362 of 2007
23. In these appeals the order impugned by the appellant places reliance
upon the order passed by the Tribunal, in Appeal No.36 of 2006 against
which order we have in the foregoing part of this judgment dismissed the
appeal preferred by the appellant. On a parity of reasoning these appeals
are also destined to be dismissed and are, accordingly, dismissed with
costs assessed at Rs.50,000/-.
………………….……….…..…J.
(T.S. THAKUR)
.……..…………………..…..…J.
(VIKRAMAJIT SEN)
New Delhi
September 18, 2013
