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TMI Blog2008 (5) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... had been granted - at this stage notice the fact of the matter involved in the respective appeals including the proceeding before the Commission. The Commission for all intent and purport took a policy decision that the electricity generated by the company would be transferred to APTRANSCO. Whereas most of the respondents could not start production, LVS Power did. We will state the facts of the same at some details at an appropriate place but suffice it to point that pursuant to the interim decision taken by the Commission, LVS Power cancelled the agreements it had entered into with the consumers. Negotiations were held for fixing the rate of the tariff. It did not succeed. When an application for grant of exemption is filed, the same is required to be dealt with independently. What was necessary for the said purpose was interest of the consumers as well as the consideration that supply and distribution cannot be maintained unless the charges for electricity supply are adequately levied and duly collected - The Commission, therefore, was bound to strike a balance. It should have given due consideration as to how and in what manner the MPPs were established. They were not per se inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such consent as aforesaid, shall be void. It, therefore, restricts the power and activities of APTRANSCO. It is in the aforementioned situation that the doctrine of promissory estoppel should be held to be applicable. In this case interest of justice would be subserved if in modification of the order passed by the High Court, the impugned judgments are set aside and the Commission constituted under the 2003 Act is directed to consider the matter afresh in the light of the new statute - Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... to fixation of tariff by the Commission. 8. In this context, the supply of electricity generated by the MPP to the identified consumers was allowed. 9. We, may, however, notice that at a later stage the capital costs invested for the said purpose was raised to Rs. 250 crores. 10. By G.O. Ms. No. 152 dated 29th November, 1995 the terms and conditions of setting up of MPPs were laid down, some of which read thus: 3. Energy from the mini power plants can be supplied to identified consumers using either Andhra Pradesh State Electricity Board's existing distribution network of setting up a dedicated transmission after obtaining a licence under Section 3 of the Indian Electricity Act, 1910. In the case of the former, Andhra Pradesh State Electricity Board may on request, lease out the distribution net work to the developer. Detailed arrangements like lease, rent etc., will be worked out on mutually acceptable terms between the Andhra Pradesh State Electricity Board and the Mini Power plant developers. Similar arrangement can also be finalised for the dedicated net works established by Mini Power Plant developers so as to confirm to statutory requirement. 6. In the event of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of supply. Along with the agreements, 3 months notices seeking termination of the Agreements with the A.P. State Electricity Board by the identified consumers of generating company, if they so desire, shall be submitted to the A.P. State Electricity Board. 14. Alongwith the said letter it annexed the names of the consumers with their possible demand, which read: "S.No. Name of the Consumer Demand 1. Hindustan Shipyard Ltd., Visakhapatnam 6,000 KVA 2. Hindustan Zinc Ltd., Visakhapatnam 22,000 KVA 3. Essar Steels Ltd., Visakhapatnam 40,000 KVA 4. Andhra Cements Ltd., Visakhapatnam 9,000KVA 77,000 KVA" 15. All the aforementioned industries are located in the State of Andhra Pradesh. 16. The proposal of the company was accepted in terms of Section 18A(a) of the 1948 Act. The MPP was allowed to be operated on multifuels (LSHS/Furnace Oil/Naptha) alongwith tie-line. 17. The terms and conditions of setting up of the MPP were amended from time to time in terms of letter dated 20th October, 1997; 18th May, 1999 and 21st August, 2001. We are not concerned with the details thereof. 18. Pursuant to or in furtherance of the approval granted by the Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 survived. The name of the respondent company was also found therein. The Commission also noticed the essential features of the grant of such permission, one of which being Clause 5, which reads: (v) Copies of the supply agreements entered into with the identified consumers should be supplied to the APSEB. The agreement with the APSEB for wheeling shall reflect the conditions in G.O.Ms. No. 152 dated 29.11.1995 besides other conditions. 25. At paragraph 14 of the said order, the Commission recorded that various Associations of the officers of the Andhra Pradesh State Electricity Board inter alia submitted that third party right should not be allowed as it affected the financial viability of the main licensee, APTRANSCO, apart from the fact that they should not be permitted to generate power with residual fuel as the same is too costly for the purchase by the grid. It was also noted that third party sale should not be allowed as MPPs would not suffer Transmission and Distribution losses which the Licensee suffers and the Tariffs of the Licensee for industrial consumers include considerable cross-subsidies. 26. The Government of Andhra Pradesh, was, however, not represented. A c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost to the MPP developer does not include cross subsidization and transmission and distribution loss cost. Thus, allowing third party sales by MPPs at the same rate at which the Licensee supplies to HT consumers, would result in either unjust enrichment of developers which is neither contemplated nor permissible in a regulatory industry, or in supply of power at lower prices than prescribed resulting in differential prices for the same categories of consumers, leading to discriminatory treatment. (20) In O.P. No. 2/1999 and O.P. No. 348/2000, the Commission has directed the developers to approach APTRANSCO and negotiate the sale of power on the basis of their project cost. It would be appropriate if directions are also issued to the eight developers mentioned in para 18 above to make an offer of price on the basis of the various Government of India Notifications (including the Notifications dated 30.03.1992). These Notifications set out the method and manner of calculation of tariff for generating companies mutually agree on the price for the power to be supplied and other conditions, a PPA may be drawn up and submitted to the Commission for its approval under Section 21 of APER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o by it with the industrial consumers to avoid any liability 31. The project was completed on 18th October, 2001. APTRANSCO asked for extension of time from the Commission to purchase power from the company by its letter dated 30th November, 2001 till the end of February, 2001 on the purported ground that firm proposal (PPA) could not be sent since the project cost was yet to be approved by the Government of Andhra Pradesh. A reminder was also sent by APTRANSCO on 9th November, 2001 to the Commission. The Commission again by its letter dated 26th November, 2001 granted permission sought for by APTRANSCO stating: With reference to letter (1) and (2) cited above, Commission accepts the proposal of APTRANSCO to purchase power from M/s. LVS Power Limited at the rates specified in letter (3) cited above and extends the period of purchase of power from 31.10.2001 to 30.11.2001 purely as an interim measure. This is without prejudice to the rights of the Commission to pass any further order in this matter. APTRANSCO is directed to send the Firm Proposal with the approved Project cost from competent Authority latest by 30.11.2001, for the Commission to pass appropriate orders. 32. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st ceiling was increased from Rs. 100 crores as originally approved in July, 1996 to Rs. 250 crores in January, 1999. The compulsions for reduction in plant capacity are not clear from the documents received from GOAP/APTRANSCO. (iv) The APTRANSCO's consultant had in their report indicated that revised capital cost of Rs. 125.23 crores for 2 x 18.9 MW was without complete audit of the cost incurred and physical verification. As now the project has been completed, it will be necessary to look into the final audited cost corrected to the admissible provisions. In view of the above mentioned observations, it is not possible for CEA to advise on the reasonableness of the capital cost specific to LVS project. It may, however, be mentioned that CEA, while granting TEC for similar type of projects for IPPs have cleared the estimated completion capital cost in the range of Rs. 3.62 crores to Rs. 3.8 crores per MW as the ceiling cost depending on the scope of work, site specific features, financial package, debt-equity ratio, exchange rate, taxes and duties, foreign exchange etc. GOAP may please take further action based on the above. 34. In the meanwhile, the APTRANSCO informed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A with LVS there is no way the Commission can compel APTRANSCO to do the same. In the circumstances, there is no need to pass any order under Section 21(4) of the A.P. Electricity Reform Act, 1998 either granting or withholding consent. 37. The writ petition filed by the company before the High Court was allowed directing: 65. In the light of the above infirmities, the order of the Commission is liable to be set aside and we are of the opinion that there are sufficient grounds to allow the appeal. 66. In the result, the appeal is allowed with costs by setting aside the order of the A.P. Electricity Regulatory Commission in OP No. 70-A(LVS)/2001 dated 23-4-2002 holding that APTRANSCO cannot go back from its promise and refuse to purchase the power on the pretext of surplus power position in the State. We direct the Commission to consider the matter afresh as per the norms of Central Electricity Authority and the directions given in the appeal and to direct the APTRANSCO to enter into Power Purchase Agreement and purchase the power from the appellant. 67. Now the further question that falls for consideration by this Court would be, what should happen to the generation plant wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made to take up this appeal by stopping arguments in those cases and complete the hearing by sitting in the Court beyond Court hours. Re: civil Appeal No. 8094 of 2002 38. On 29.2.96, permission was granted to RVK Energy Pvt. Ltd. to set up a 32.7 MW residual fuel based power plant at Medak district so as to enable it to generate and supply power directly to specified industrial consumers by using the existing transmission and distribution network of APT. On 5.12.98, the State Government on a request made by RVK Ltd., allowed the change of location for the project to Krishna district. On 1.2.99, the 1998 Act was brought into force whereby the licensing provision under Section 14 became applicable in the State of Andhra Pradesh. In terms of Section 14(4), the State Government issued provisional licenses to all persons who were engaged in the business of supply of electricity. On 23.2.99, the State government permitted RVK to partly change the fuel for the project from Residual Fuel to Natural Gas. On 2.4.99, the Andhra Pradesh Electricity Regulatory Commission (APERC) was constituted under the Reform Act. On 6.5.99, a Power Purchase Agreement was signed between RVK Pvt. Ltd. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Super Spinnings/Precott mills for sale of electricity. The agreement noted that Super Spinnings/Precott Mills had notice of the terms of the Power Wheeling Agreement that had been entered into between RVK and APTRANSCO. 42. By its letter dated 10.12.99, RVK sought orders from APERC to sell electricity to third parties so as to avoid paying minimum guarantee charges of Rs. 2.40 lacs per day to the Gas Authority of India for non- utilization of the gas so allocated to generate electricity in the power project. In the light of the urgency shown by RVK, APERC by its interim order dated 3.1.2000 approved the W heeling Agreement and third party sales which specifically stated that the order would not prejudice the power of APERC to pass such an order as it may consider necessary at any stage of the proceedings. The proceedings were however kept pending. 43. On 10.2.2000, RVK entered into a Power Purchase agreement with Super Nagarjuna Agro-Tech for sale of electricity. The agreement referred to the Power Purchase agreement entered into between RVK and APTANSCO. 44. After hearing RVK on 28.3.2000, APERC by its order dated 31.3.2000. rejected the request of RVK for grant of licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement, it was agreed by Astha to set up a power generating plant to generate electricity of about 28 MW with H.F.O. as fuel in Medak district and to sell power through APTRANSCO to identified consumers via the APTRANSCO grid. It was also agreed by RVK to pay the transmission (wheeling) and banking charges as per the provisions of Section 26 of the Reform Act. Astha agreed to take a licence as required under Section 15 or an exemption under Section 16 of the Reform Act for the third party sale including supply to (other than a licensee) regardless of the general approval granted under G.O.M. No. 152 dated 29.11.1995. The agreement also provided for Astha to take the consent of APERC for wheeling of power and submit a list to APERC for its consent of the consumers to whom Astha proposed to sell the power. The agreement stipulated the submission of all disputes regarding third party sale and supply to sister concerns including the extent and manner of such supply and the tariff charged to the APERC. 51. On 23.12.1999, Astha made an application to APERC seeking exemption from the requirements of taking license to supply electricity to its consumers under Sections 15 & 16 of the Refo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted to any private party. 62. Sections 2(4)(A), 2(5), 2(6) of the 1948 Act provide for the definitions of "Generating Company", "Generating Station" and "licensee", respectively. 63. Section 18A specifies the duties of a generating company. 64. Section 26A of the 1948 Act provides for exemption grant of a licence so far as a generating company is concerned. 65. Section 43A of the 1948 Act provides for terms, conditions and sale of electricity by generating company. 66. The State of Andhra Pradesh enacted the 1998 Act to provide for the constitution of an Electricity Regulatory Commission, restructuring of the Electricity Industry, rationalisation of the generation, transmission, distribution and supply of electricity avenues for participation of private sector in the Electricity Industry and generally for taking measures conducive to the development and management of the Electricity industry in an efficient, economic and competitive manner and for matters connected therewith or incidental thereto. 67. "APTRANSCO" has been defined in Section 2(b) of the 1998 Act to mean Transmission Corporation of Andhra Pradesh Limited incorporated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of transmission of electricity in a specified area of transmission and supply electricity in a specified area of supply including bulk supply to licensees or any person. 75. Section 16 of 1998 Act provides for exemption from the requirements of having a licence. 76. Section 17 of 1998 Act provided for general duties and powers of the licensees. Section 21 imposes restrictions on licensees and generating companies. 77. The Parliament enacted Indian Electricity Act, 2003 (in short 2003 Act). Sub-section (2) of Section 10 of the said Act enables a generating company to supply electricity to third parties. It reads: Section 10 - Duties of generating companies (2) A generating company may supply electricity to any licensee in accordance with this Act and the rules and regulations made thereunder and may, subject to the regulations made under Sub-section (2) of Section 42, supply electricity to any consumer. 78. Section 14 of 2003 Act provides for grant of licence. 79. The Schemes of 1910 Act, 1948 Act and 1998 Act being different, any licence or sanction granted in terms of Section 3 and 28 of the 1910 Act or permission under Section 43A of the 1948 Act would not mean th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al energy in terms of Section 11 of the 1998 Act, it had no jurisdiction to compel the APTRANSCO to enter into a Power Purchase Agreement. 2) Power of the Commission in terms of Sub-section (4) of Section 21 being limited, the High Court committed a serious error in issuing the impugned directions. 3) The High Court while exercising its appellate jurisdiction in terms of Section 39 of 1998 Act could not have issued any direction which was beyond the power of the Commission. 4) In any event the High Court being not an expert body should not have ordinarily interfered with an order of the Commission which is an expert body, as has been held by this Court in West Bengal Electricity Regulatory Commission v. C.E.S.C. Ltd. etc. etc. AIR2002SC3588 . 85. Mr. Ramachandran, learned Counsel, appearing on behalf of the Commission would submit: 1) That sanction granted in terms of Section 28 of 1910 Act or permission granted under Section 43A of the 1948 Act would not lead to the conclusion that the MPPs were not required to take fresh licence or apply for grant of exemption. 2) Applications for grant of exemptions were filed by the MPPs, as even they as also the financial institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more having suffered two directions of the Commission as contained in its orders dated 18th August, 2001 and 26th November, 2001 whereby and whereunder the Commission directed the APT to purchase electrical energy from the company subject to fixation of rate by negotiations, and in the event of failure, to come back to the Commission cannot now turn round and question its jurisdiction to do so and, thus the High Court was within its jurisdiction to issue the directions. 4) APTRANSCO had been changing its stand from stage to stage, in so far as at one point of time it complained of the capital costs being too high; when the company came down to fix costs, it did not accept the same and asked for the factor of variable costs for the purpose of fixation of tariff and when the company, as an act of desperation, keeping in view its commitments to various financial institution, had even agreed therefore, took a complete turn about to contend that they do not require the power. 5) The Government of Andhra Pradesh having referred the matter to Central Electricity Authority for its opinion and having obtained the same, the Commission was bound to compel APTRANSCO to agree thereto. 6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 17 thereof. 89. The permission granted in terms of Section 43A of 1948 Act having been repealed by 1998 Act, the Central Government had recognized the same by introducing the Electricity (Removal of Difficulties) Second Order, 2005 in the light of Section 10(2) of the Electricity Act, 2003 The sanction and permission granted by the State, which was the only competent authority therefore, having conferred a benefit upon the MPPs by granting licences, as a result whereof the legal rights vested in them, the same could not have been taken away. While issuing a direction that MPPs must sell the electricity only to APTRANSCO the Commission had not only failed to address the question raised before., it passed an order only on the basis of misplaced conception. 90. The State took a policy decision. It was with a view to develop growth of generation and supply of electrical energy. Monopoly of the State Electricity Board was sought to be given a go bye. The intention of the State to lay down the policy decision in regard to privatization of generation and supply of electrical energy is manifest from the GOMs. issued by it. 91. There is absolutely no doubt whatsoever that the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of electricity but when the Act speaks of regulation, the same would not ordinarily mean that it can totally prohibit supply to third parties. It may do so in exceptional situations. Such an order is not to be passed. 97. The Commission, keeping in view the purported object of the Act, ordinarily was bound to give effect to the policy decision of the State. The Act was enacted to encourage competition. It speaks of privatization of generation of power. The Commissioner's power to regulate supply of power must be considered keeping in view the purport and object of the Act. 98. In Advanced Law Lexicon, 3rd edition, page 4026 "Regulation" has been defined as under: A regulation is a rule or order prescribed by a superior for the management of some business or for the government of a company or society or the public generally. 99. In State of Tripura and Ors. v. Sudhir Ranjan Nath [1997]2SCR29 , this Court held: This in turn raises the question, what is the meaning and ambit of the expression "regulate" in Section 41(1) of the Act? (Section 41(1) empowers the State government "to regulate the transit of all timber and other forest-produce".) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of electrical energy generated by the MPPs, the Commission save and except for cogent and compelling reasons could not have directed the sale of entire production of electricity energy to APTRANSCO. If that was the stand of the Commission and the APTRANSCO, the question of entering into any Wheeling Agreement did not arise. It is one thing to say that the privileges conferred by G.O.Ms. issued by the State Government were prior to the coming into force of the 1998 Act and appointment of the Commission, but then the Commission was bound to give due weight to the policy decision taken by the State even prior to its establishment and coming into force of the 1998 Act, particularly when the Act was enacted in furtherance thereof. 103. Indisputably respondents were entitled to produce electrical energy under Section 28 of 1910 Act. They were authorized to generate electrical energy. The question which arises is as to whether they were required to file appropriate applications for grant of licence or for exemption which should have been dealt with accordingly. At that point of time, the Commission was not exercising its other functions. A condition, which is per se unreasonable should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Ltd. [1998]3SCR375 , which reads: 15. Another question which was seriously contested on behalf of GRIDCO before the Regulatory Commission as well as before the High Court was that ICCL is not a licensee within the meaning of Section 2(h) of the Indian Electricity Act, 1910 and also under Sections 2(e) and (f) of the Reform Act, 1995. The High Court recorded a finding that ICCL is a licensee under the Indian Electricity Act, 1910 and it continued to be a licensee even after the Reform Act, 1995 came into force. The High Court placed reliance on Section 14 (1) of the Reform Act and held that ICCL is authorised by the State Authority in the business of supplying the electricity. It was thus concluded that ICCL in view of Section 14 of the Reform Act, 1995 shall continue to be a licensee. In view of this finding the High Court held that the dispute is arbitrable under Section 37(1) read with Section 33 of the Reform Act, 1995. It is not seriously disputed that ICCL after a long-drawn correspondence with the Orissa Government had received no objection to put up the Captive Power Plant at Choudwar to generate power. Accordingly in 1989 the Captive Power Plant started generating powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, does not extend to prohibition or positive direction that the supply of total energy produced must be made to APTRANSCO while exercising the said jurisdiction. In fact there was no occasion for issuing such a direction. It is one thing to say that the Commission is entitled to fix tariff but therefore then it cannot take into consideration the case of APTRANSCO alone. 112. What should be the basis for issuing any tariff could have been the question which was to be posed by the Commission to itself. For the said purpose, the Commission was required to take into consideration all aspects of the matter including the fact that Wheeling Agreement had already been entered into and only by reason thereof, the APTRANSCO may generate a lot of revenue. The decision of the Commission, therefore, being illegal has rightly been set aside by the High Court. 113. This takes us to the case of LVS Powers Ltd. So far as LVS Powers Ltd. is concerned it had acted on the basis of the directions of the Commission. It for all intent and purport proceeded on the basis thereof. It not only held negotiations with APTRANSCO for the purpose of arriving at a mutually settled tariff, it having re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own jurisdiction. On the one hand, it was conscious of its functions but, on the other hand, it failed to determine the issues between the parties. 120. However, the order dated 30th March, 1992 was not challenged by APTRANSCO. The Commission furthermore noticed that wheeling agreement had been entered into by and between the parties on or about 25th February, 1999. After taking into consideration some submissions of the parties, directions were issued as has been noticed hereinbefore. 121. What for, it asked the parties to negotiate is evident from that in the event of their failure to agree on the price and the other terms and conditions, the Commission itself would do it. The aforementioned order dated 4th May, 2001 has also not been challenged by APTRANSCO. 122. It is in the aforementioned backdrop that we will notice the letter dated 17th August, 2001 written by Chief Engineer, Vidyut Soudha to the Commission where after duly noticing that since finalization of PPA has to be done after the above cited GoAP approvals are received, it was proposed to purchase power produced at the above cited rate from the COI as the plant, subject to consent of the Commission. From the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o need to consider variable costs. What would be the effect of power purchase beyond 30th November, 2001 was stated in the letter of APTRANSCO dated 3rd December, 2001 to the Commission, which was in the following terms: This has reference to the correspondence cited regarding purchase of power from M/s. LVS Power Ltd. 2) In the reference 4 dated 26.11.2001 cited above. APERC permitted the APTRANSCO to purchase power from M/s. LVS Power Ltd. at the rate as per APERC Order in the reference (2) cited and extended the period of purchase of power from 31.10.2001 to 30.11.2001 purely as an interim measure and directed APTRANSCO to send the firm tariff proposal with the approved project cost from competent authority latest by 30.11.2001 for the commission to pass appropriate order. 3) In this connection, the following are submitted - i) The GOAP have been requested vide this office letter dated 26.11.2001 ref (5) cited to limit the capital cost of the LVS Power Ltd. to Rs. 125.33 Crs. and for approval of the capital cost to fix the final fixed cost of the tariff and seek the approval of APERC to continue purchase of power. ii) After the project cost is approved by GOAP the tari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects for IPPs have cleared the estimated completion capital cost in the range of Rs. 3.62 crores to Rs. 3.8 crores per MW as the ceiling cost depending on the scope of work, site specific features, financial package, debt-equity ratio, exchange rate, taxes and duties, foreign exchange etc. GOAP may please take further action based on the above. 131. The Government of Andhra Pradesh in view of that letter asked APTRANSCO to proceed with the exercise for arriving at PPA and submit the same to the Commission for approval. APTRANSCO by its letter dated 11th April, 2002 addressed to the Commission, inter alia stated: After detailed examination of the above offer by APTRANSCO, I am directed to convey that in the context of surplus power situation and APTRANSCO's proposal to surrender NTPC Eastern Region Power and not to draw Power from Central Generating units due to Merit Order Dispatch, dispatch from the power station poses a serious problem. Further, APTRANSCO's inability to dispatch the station will lead to payment of fixed charges irrespective of generation by this power station. In view of the above, it is requested to take necessary action and pass appropriate orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of engaging the business of promoting and supply of electrical energy. It is required to obtain licence for the said purpose. Sub-sections (4) and (5) of Section 13 of the 1998 read as under: 13.(4) APTRANSCO shall undertake the functions specified in this section and such other functions as may be assigned to it by the licence to be granted to it by the Commission under this Act. (5) Upon the grant of licence to the APTRANSCO under Clause (a) of Sub-section (1) of Section 15 of this Act, the APTRANSCO shall discharge such powers and perform such duties and functions of the Andhra Pradesh State Electricity Board including those under the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 or the rules framed thereunder as the Commission may specify in the licence and it shall be the statutory obligation of the APTRANSCO to undertake and duly discharge the powers, duties and functions so assigned. 135. We have held hereinbefore that licence under Section 14 is necessary but the same is only for transmission and supply and not for generation of electrical energy. Such a licence is required so as to enable the Commissioner to effectively control and regulate trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iculturist, but then when a situation came that it must purchase the power pursuant to the impugned directions of the Commission from MPPs it made a contradictory stand that MPPs can sell the power outside the State. 141. Before us IDBI intervened. Indisputably it had granted financial assistance to the first respondent-LVS Power. IPDB granted loan only on the basis that the unit shall be functional. 142. This Court on 11th October, 2002 and 2nd December, 2002 passed interim orders 143. Mr. Shanti Bhushan states that the first respondent has been paid a huge amount pursuant to the said orders and this Court may issue a direction for refund thereof. We do not agree. The interim order by this Court was passed to maintain a balance and in the interest of the parties. 144. We are, therefore, of the opinion that in this case interest of justice would be subserved if in modification of the order passed by the High Court, the impugned judgments are set aside and the Commission constituted under the 2003 Act is directed to consider the matter afresh in the light of the new statute. 145. We hope and trust that the Commission shall pass appropriate orders upon taking into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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