Harish Tandon, J.
1. A mandamus is sought declaring the admission of an application filed by the Damodar Valley Corporation (in short ''DVC'') on 23rd July, 2014 before the West Bengal Electricity Regulatory Commission (in short ''WBERC'') being violative of the provision contained under the Electricity Act, 2003.
2. Admittedly, the DVC is generating, transmitting and distributing the electricity in two states i.e. State of West Bengal and Jharkhand.
3. The dispute arose when the Electricity Act, 2003, was enacted and the DVC was subjected to the jurisdiction of the Electricity Regulatory Commission for determination of the tariff.
4. Several litigations came to be filed and it was a unanimous stand of the DVC that they are governed by their own act, which cannot be overridden by enacting the Electricity Act, 2003.
5. It was ultimately decided that so far as generation and transmission part is concerned, the Central Electricity Regulatory Commission (CERC) is competent to determine the tariff and the West Bengal State Electricity Regulatory Commission is competent to determine the retail tariff.
6. According to the petitioner, after the generation and transmission tariff is determined by the Central Electricity Regulatory Commission, the retail tariff can only be determined taking the same as the input cost by the West Bengal Electricity Regulatory Commission.
7. A challenge was made to an order dated 3rd October, 2005 passed by the Central Electricity Regulatory Commission before the Appellate Tribunal, which was dismissed being devoid of merit.
8. While arriving at the ultimate conclusion, the Appellate Forum observed that the DVC being a generating company established by the Central Government, the Central Government have a pervasive control over it and in view of Section 79 of the Electricity Act, 2003, the Central Commission is required to regulate the tariff of DVC. So far as the retail tariff is concerned, the Appellate Forum held that it can be determined by the West Bengal State Electricity Regulatory Commission and the DVC was directed to approach the said Commission.
9. Both the parties before me have relied upon the said order of the Appellate Authority and are unanimous on the point that the generating and transmission tariff is within the domain of the Central Electricity Regulatory Commission, which is competent to determine the same and so far as the retail tariff is concerned, the State Electricity Regulatory Commission is competent to determine.
10. According to the petitioner, since the generation and/or transmission tariff are treated as input costs for the purpose of retail tariff unless it is determined by the Central Electricity Regulatory Commission, the said commission cannot assume the jurisdiction or proceed to determine the retail tariff.
11. It is also not in dispute that the tariff for the period 2014 - 2019 has not been determined by the Central Electricity Regulatory Commission.
12. The sheet anchor of the argument of Mr. Sarkar, learned advocate appearing on behalf of the petitioner is that the DVC has approached the West Bengal Electricity Regulatory Commission by filing impugned application for determination of the retail tariff when the Central Electricity Regulatory Commission has not fixed the generation and transmission tariff for the period as aforesaid. It is strongly submitted that certain expenditures have been projected on estimation for the said period which is impermissible and cannot be taken into account unless the determination of tariff is done by Central Electricity Regulatory Commission.
13. He strongly refers to paragraph 9 of the said application to say that there is no scope for cost projection beyond 2013-2014 with necessary assumptions for financial modeling which is generally adopted by the Central Electricity Regulatory Commission to be a basis for the retail tariff. He further submits that the escalation of the fixed cost or further escalation in the subsequent years cannot be a basis for determining the retail tariff by the West Bengal Electricity Regulatory Commission.
14. While saying that there is no provision for determination of provisional tariff by the Regulatory Commission, Mr. Sarkar relies upon the judgment of this Court in case of
15. He further contends that in an earlier Writ Petition being W.P. 27044 (W) of 2013, the DVC has conceded that the provisional tariff was quashed and set aside by this Court and the West Bengal Electricity Regulatory Commission has signified that they would not proceed the matter any further. The present proceeding without determining the generating and transmission tariff by the Central Electricity Regulatory Commission is incompetent and in violation of the stand shown before this Court in an earlier writ petition.
16. To sum up the argument that has been advanced by the petitioner is that unless the generation and transmission tariff are determined by the Central Electricity Regulatory Commission, the West Bengal Electricity Regulatory Commission cannot assume the jurisdiction and entertain an application for determination of the retail tariff.
17. Mr. Dhar, the learned advocate appearing for the West Bengal Electricity Regulatory Commission, submits that West Bengal Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2011, notified on 25th April, 2011 contains full mechanism for determination of tariff by the State Regulatory Commission. According to him the tariff may be determined for a particular financial year or for a period of five years which is normally called as Multi Year Tariff (MYT) Framework. Paragraph 2.5 which broadly covers the Multi Year Tariff Framework provides the broad methodology for determination of the tariff which require a composite application with the projection of Annual Revenue Requirement (ARR) and the Expected Revenue Collection (ERC) for each ensuing year of the control period. The ''control period'' is defined in paragraph 1.2.1. (xxx) to mean a period consisting of number of years fixed by the Commission from time to time under the multi year tariff framework for which the licensee or generating company will file the application for tariff determination. Third control period will consist of three ensuing years of 2011-12, 2012-13 and 2013-14. Thereafter, each control period shall be normally for a period of five ensuing years or such other periods of number of ensuing years, as may be decided by the Commission from time to time.
18. By referring Clause 2.7.1. Mr. Dhar submits that the procedure for entertaining the application while determining the tariff under the multi year tariff framework is provided which require such application to be submitted at least 120 days in advance of the effective date of the start of the control period.
19. He brought to the notice of this Court Clause 8 of the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2014, as notified on 21st February, 2014, to support his contention that once the tariff is determined and approved by the Commission and is applicable as on 31st March, 2014, until the determination is made for the ensuing years, such tariff would remain a basis for generating the bills to the beneficiaries.
20. He thus submits that there were several litigations between the year 2009-2013 pertaining to the competence of the Central Electricity Regulatory Commission to determine the tariff and ultimately the same was resolved. Such tariff was approved which is applicable in case of DVC and such approved tariff would be the basis for determining the retail tariff for the ensuing years until the same is finally determined by the Central Electricity Regulatory Commission.
21. Mr. Kar, learned advocate appearing for the DVC, submits that the application before the West Bengal Electricity Regulatory Commission came to be filed on the basis of an order dated. 19th July, 2013 communicated to his client vide a letter dated. 11th December, 2013 and, therefore, his client has no other alternative but to submit to the jurisdiction of the West Bengal Electricity Regulatory Commission.
22. Relying upon the decision as cited by Mr. Kar, it is further submitted that the aforesaid regulation permits the variable components to be the factors for determining the retail tariff, taking the tariff determined by the Central Electricity Regulatory Commission as a base cost. He further submits that the West Bengal Electricity Regulatory Commission has not adjudicated the points and no determination has been arrived as yet, therefore, the writ petition challenging the very action of West Bengal Electricity Regulatory Commission to receive the application, is not maintainable. He strongly submits that the tariff which was applicable as on 31st March, 2014 can be taken as the base cost and be treated as an input for onward determination of the retail tariff on the basis of variable components, including Annual Revenue Requirement (ARR) and the Expected Revenue Collection (ERC).
23. Bearing in mind that a challenge is made at a stage of receiving an application by West Bengal Electricity Regulatory Commission, this Court does not intend to go the intricacies of the factual disputes and do not delve to go deeper into it. This Court is basically concerned with the initiation of the proceedings and receiving of an application by the West Bengal Electricity Regulatory Commission. DVC is the company of integrated utility as it not only generate and/or transmit but also distributes electricity.
24. Since the DVC is operating in two States, namely, State of West Bengal and Jharkhand and is controlled by the Central Government, the dispute arose whether the Central Electricity Regulatory Commission or the State Regulatory Commission is competent to determine the tariff. The said point is resolved by an order of the Appellate Forum retaining the jurisdiction of Central Electricity Regulatory Commission to determine the cost for generation and transmission and further upheld the jurisdiction so far as the retail tariff is concerned. It is not in dispute that the generating or transmitting tariff is the basis for the purpose of determining the retail tariff as the same is treated as input. There is no quarrel on the fact that the Central Electricity Regulatory Commission has determined the tariff for the period of 2009-2014 which was very much in vogue as on 31st March, 2014.
25. Paragraph 2.5.1, imbibe within itself the mechanism for determining the multi year tariff which on the basis of calculation of the Annual Revenue Requirement (ARR) and the Expected Revenue Collection (ERC) for each ensuing year and the application should contain the projection of the same including the principles of tariff structure for each ensuing year of the control period separately. The projection of the Annual Revenue Requirement (ARR) and the Expected Revenue Collection (ERC) of each ensuing year is based on the reasonable assumption related to the expected behaviour of the various operational and financial variables subject, however, to the restrictions engrafted under Schedule 9A and Schedule 9D of the regulations.
26. Even the petitioner has not disputed that variable components cannot be taken into account while arriving at the retail tariff but according to him the striking feature in determining the retail tariff is the tariff to be determined by the Central Electricity Regulatory Commission and approved for the said period. It is not in dispute that the Central Electricity Regulatory Commission has not determined the tariff for the period 2014 onwards and the application filed by the DVC would reveal that such tariff which was determined for the period 2009-2014 was taken as the input cost and then the projection of Annual Revenue Requirement (ARR) and the Expected Revenue Collection (ERC), which are the requirements for determining the retail tariff. The reference to regulation 8 of the regulations 2014 is germane to the present controversy. It specifically provided that the generation company or the transmission licensee may be allowed tariff by the Commission based on admitted case on 1.04.2014 and projected additional capital expenditure for the respective years of the tariff period 2014-2015 to 2018-2019. The proviso inserted thereto mandates that the generation or the transmission licensee shall continue to bill the beneficiaries or the transmission consumers of the West Bengal Electricity Regulatory Commission at the tariff approved by the Commission and applicable as on 31st March, 2014 till the approval of tariff by the Commission in accordance with the regulations.
27. What could be deduced from the aforesaid provisions of the regulations that if the tariff is determined and approved by the Central Electricity Regulatory Commission in respect of generating company or the transmitting licensees such rate would continue even after 31.3.2014 until the same is determined by the Commission.
28. This Court does not find any difficulty in treating the said approved tariff as a base cost or input for determining the retail tariff by the West Bengal Electricity Regulatory Commission.
29. This Court must hasten to record that so far as variable components are concerned, whether they are to be taken into account or not is the subject matter of determination before this Court in dealing with the matter when challenge is made at stage of receiving the application by the West Bengal Electricity Regulatory Commission. The scrutiny of the Court should be microscopic and limited. The appellate Forum in an earlier litigation have recognized the jurisdiction and power of the West Bengal Electricity Regulatory Commission to determine the retail tariff and have further held that so far as the generating and transmitting tariff is concerned, it is to be determined by the Central Electricity Regulatory Commission.
30. It is not demonstrated before this Court that the West Bengal Electricity Regulatory Commission is wholly incompetent to receive the application but what is contended is that the ingredients indicated in the said application for determination of the retail tariff is impermissible as those are not the requirement of the regulations.
31. In view of the undisputed fact that the Central Electricity Regulatory Commission has determined the tariff for the period 2009 to 2014 which was applicable as on 31.03.2014, there is no justification in holding that the same cannot be treated as the input cost for the purpose of the retail tariff.
32. This Court, therefore, does not find that there any ground made out in the writ petition warranting the interference and passing of the declaration as sought for.
33. With these observations, the writ petition dismissed.
34. There shall be no order as to costs.
