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Before the MAHARASHTRA ELECTRICITY
REGULATORY COMMISSION
World Trade Centre,
Centre No.1, 13th floor, Cuffe Parade, Mumbai 400 005.
CASE No. 5
of 2003
In the matter of Petition of
Maharashtra State Electricity Board for Review of Order dated 11.2.2003
in respect of MSEB Tariff rate applicable to streetlight services for Murbad and Additional Murbad Industrial Areas and differential
tariff recovery through supplementary bill raised by the MSEB.
Shri P. Subrahmanyam, Chairman
Shri Jayant Deo, Member
Dr Pramod Deo, Member
ORDER
Dated: May 02, 2003
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Maharashtra
State Electricity Board (MSEB) have filed a Petition on 10th
April 2003 for review of the Order dated 11.2.2003 passed by the Commission
in Case No.24 of 2001, in the matter of the MSEB tariff applicable to
street light services for Murbad and Additional Murbad Industrial areas,
and differential tariff recovery through supplementary bills.
The Review Petition also seeks that, pending its hearing and
final disposal, the operation and implementation of the Order be stayed,
and that MSEB be allowed to raise supplementary bills in respect of
retrospective recovery. The Review Petition was heard for admission
on 29th April 2003.
2. In their affidavit for review, MSEB have argued
that the Commission's Order dated 11.2.2003 suffers from errors apparent
from the face of the record, and also requires review on account of
sufficient reasons either not being taken into account, or being incorrectly
appreciated in the Order, which include the following:
(a)
Although the Commission determines the tariff
applicable for different purposes of power supply by fixing tariff for
different categories, it cannot determine the category of an individual
consumer.
(b)
Given MSEB’s scale of operation, errors can occur
in the categorisation of a consumer for a number of reasons, and may
not be detected for some time.
(c)
In such cases, corrective changes made by MSEB
upon detection do not amount to recategorization, but only to a rectification
of errors in billing.
(d)
The Commission erred in stating that any reclassification
would affect the revenue projected in the Commission’s Tariff order.
Moreover, the revenue collection would be hardly affected when
there are only a few such cases.
(e)
The effect of erroneous billing or categorisation
results in the consumer not paying what he is required to pay for the
electricity supplied to him, and the Order restrains MSEB from adopting
corrective remedy.
(f)
Such erroneous billing, if not corrected, would
result in undue gain to individual consumers, and in discrimination
between consumers similarly situated.
(g)
By taking away MSEB’s power to make retrospective
corrections / recovery when mistakes are detected, MSEB are deprived
of legitimate revenue and, therefore, their right to sue for such recovery
has been wrongly superceded.
(h)
There may be many reasons for a change in category,
and the Commission erred in passing a blanket Order requiring either
the affected consumer or MSEB to approach the Commission for rectification
of such categorisation in such cases, which amounts to requiring the
ratification of the day-to-day administrative actions of MSEB. Moreover, it would affect MSEB's internal operations and staffing
requirements.
(i)
The Commission failed to appreciate the Order
of the Supreme Court in the matter of Swastic Industries v/s MSEB to
the extent of the right of the Petitioner in respect of retrospective
recovery.
(j)
Moreover, administrative action of correcting
an error in revenue collection is not circumscribed by any law of limitation.
3. In
oral arguments at the time of hearing, Counsel for MSEB, while drawing
attention to the written submissions made in the Review Petition, submitted
that the application was for review of the general directions contained
in the Commission’s Order dated 11.2.2003, and was not specifically
directed against the original Applicant in that case, i.e. the Maharashtra
Industrial Development Corporation.
These directions, contained at paras 23 and 24 of the Commission’s
Order concern a number of issues which have been spelt out at para 19
of the Order, and restrict the right of MSEB to correct errors in billing
or categorization, and to recover on that basis for the appropriate
period with retrospective effect, with serious adverse implications
for the revenue to which they would otherwise be rightfully entitled.
A review of the Commission’s Order would necessarily involve
a substantive reconsideration of the issues as decided by the Commission.
4. Section 27 of the Electricity Regulatory Commissions
Act, 1998 provides that “any person aggrieved by any decision or
order of the State Commission may file an appeal to the High Court”. The ambit of review by the Commission itself
is constrained by the provisions of Regulation 87(1) of the MERC (Conduct
of Business) Regulations, 1999, which reads as follows:
“Any person aggrieved by a decision or
order of the Commission, from which no appeal is preferred or allowed,
and who, from the discovery of new and important matter or evidence
which, after the exercise of
due diligence was not within his knowledge or could not be produced
by him at the time when the decision / order was passed by the Commission
or on account of some mistake or error apparent from the face of the
record, or for any other sufficient reasons, may apply for a review
of such order, within 60 days of the date of decision / order, to the
Commission.”
5. It is clear from the Review Petitioner’s written
and oral submissions that what is sought is a substantive reconsideration
of the findings and directives of the Commission, without any supporting
claim that they meet the test for the admissibility of review as laid
down in Regulation 87(1). The
appropriate forum for redressal of MSEB’s concerns with regard to the
Order, would, therefore, be the High Court in terms of the clear provisions
of Section 27 of the ERC Act, 1998.
The Commission cannot
ascribe to itself the powers of the High Court by entertaining an application
in the guise of a review when it goes beyond and does not meet the parameters
laid down by the provisions of Regulation 87. The Commission, therefore, dismisses the Petition
for Review as inadmissible.
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