M/S. JAYASAWALS NECO LTD.versusCHHATTISGARH STATE ELECTRICITY REGULATORY COMMISSION AND ANOTHER

                            [2017] 2 S.C.R. 752



A                   MIS. JAYASAWALS NECO LTD.

                                     v.

        CHHATTISGARH STATE ELECTRICITY REGULATORY
                 COMMISSION AND ANOTHER
B                     {Civil Appeal No. 1368 of2007)
                           FEBRUARY 22, 2017
             [DIPAK MISRA, A.M. KHANWILKAR AND
               MOHAN M. SHANTANAGOUDAR, JJ.)
c           Electricity Act, 2003 - ss.45, 46, 64. 94 - Power intensive
    industry - Consumption pattern - Load factor - Calculation_ of
    monthly minimum charges - Petition filed by Respondent No.2-State
    Electricity Board (CSEB) ulss. 45, 46 and 64 for determination of
    Retail Supply Tariff for the financial year 2005-2006 - Stale
    Electricity Regulatory Commission while taking into consideration
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    the pattern of consumption fixed 30% of load factor as minimum
    charges - Appellant filed petilion u!s.94 whereupon taking note of
    consumption in the year in question, the Commission reduced the
    monthly payment of charges to 10% of load Jae/or - Propriety of -
    Held: Commission has returned a ca/egorical finding Iha/ appellant
E   no/ liable to pay minimum charges, however, it is not a determination
    in absoluteness - it depends upon !he scrutiny and analysis of the
    factual score - Factual ana~vsis is necessary and certain conditions
    precedent are required lo be gone info for purpose of determination
    as regards the aspect whether there should be abolition of the
    minimum charges for financial year 2005-2006 or no/ - Commission
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    lo dwell upon the same and then only such analysis could be
    scrutinised in appeal by the appellate aulhority in ifs proper
    perspective - Thus, mailer remilledback to !he Commission for fresh
    delermination.
            Allowing the appeal, the Court
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            HELD: 1. Both the appellants and the respondent-
    Commission lay emphasis on the "consumption pattern nf the
    load factor" for the calculation of monthly minimum charges. It
    is the admitted positiou that the Commission has returned a
    categorical finding that the likes of the appellant are not liable to
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  MIS. JAYASAWALS NECO LTD. v. CHHATTISGARH STATE                         753
           ELECTRICITY REGULATORY COMMISSION

pay the minimum charges. However, it is not a determination in             A
absoluteness. It depends upon the scrutiny and analysis of the
factual score. To elucidate, abolition of minimum charges is not
stated as a principle of law but has been so adjudicated on the
basis of certain conditions precedent being satisfied. Therefore,
the factual score, delin~ation thereof and the ultimate analysis
                                                                           B
thereon constitute the structural pillar of the discussion. [Para
12) [757-G-H; 758-A]
        2. The Tribunal did not go into the said aspect. In the
order passed by the tribunal, it has really not taken note of the
order, wherein as a concept which is founded on factual analysis,
the minimum charges stood abolished. Needless to say, as the
                                                                           c
conclusion is based on appreciation of relevant facts and other
enquiry, it was incumbent on the Commission to dwell npon the
same and then only such analysis could be scrutinised in appeal
by the appellate authority in its proper perspective. It is a statutory
obligation. At this juncture, it is fairly stated by the counsel for       D
the Commission that the factual analysis can be made in an
apposite manner by the Commission but not by the tribunal at
the first instance. The counsel for the appellant does not dispute
the said position. [Para 13) [758-B-Dj
        3. As the factual aualysis is necessary aud certain                E
couditions precedent are required to be gone into for the purpose
of determination as regards the aspect whether there should be
abolition of the minimum charges for the financial year 2005-2006
or not, the competent authority, the matter is remitted to the
Commission for fresh determination. [Para 14) [758-D-E)
                                                                           F
          CIViLAPPELLATE JURISDICTION: Civil Appeal No. 1368
of2007.
        From the Judgment and Order (i) dated 05.04.2006 in Appeal
No. 186 of2005 and (ii) dated 17.10.2006 in AFR No. 1208 in Appeal
No. 1.86 of2005 of the Appellate Tribunal for Electricity at New Delhi.    G
       . Devashish Bharuka, Ms. Anu Tyagi, Advs. for the Appellant.
       Ms. Swapna Seshadri, Nikunj Dayal, Pramod Dayal, Ms. Neha
Garg, Advs. for the Respondent.
          The Judgment of the Court was delivered by
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754             SUPREME COURT REPORTS                           (2017) 2 S.C.R.



A              DIPAK MfSRA, J. I. The respondent No.2. Chhattisgarh State
      Electricity Board (CSEB), tiled Petition No.5/2005 under Sections 45,
      46 and 64 of the Electricity Act, 2003 (for brevity, 'the Act') for
      determination of Retail Supply Tariff for the financial year 2005-2006.
      The Chhattisgarh State Electricity Regulatory Commission (for short,
      'the Commission'), while dealing with the power intensive industries
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      adverted to the tariff that is to be dcter111ined qua the present appellant.
      Paragraph 3 of the HV-5 Power Intensive Industries that deals with
      tariff reads thus:-

                       Categmy                Demand Charges Energy Charges
                       of consumers           [Rs./KVA/month] [Rs./KWh)
c
       HV-5            Power      Intensive
                       Industries

       5.1.            220/132                260             2.55
D                      KV Supply

       5.2.            At 33 KV Supply        275             2.65


              2. Paragraph 4(a) adverts to 111ini111um monthly payment of
      charges. It reads as fol lows:-
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              "4. Minimum Charge [a) For 220/132 KV Supply
              The consumer will guarantee a minimum monthly payment of
              charges of the unit.[Kwh) equivalent to 30% load factor on the
              contract demand plus demand charges on the billing demand for
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              the month irrespective of whether any energy is consumed during
              the month or not."
               3. In the present appeal, we are only concerned with minimum
      charges as nothing else is in dispute. The Commission, while dealing
      with ·minimum charges, fixed 30% of the load factor taking into
      consideration the pattern of consumption as minimum charges ..Be it
G     noted. the said tariff determination was applicable for the said tiiiancial
      year in respect of all the power intensive industries.
              4. After the said order was passed, the appellant tiled Petition
      No.19 of'2005 (M) under Section 9-1 of the Act. The Commission ride
      order dated 5'"·0ctober. 2005. taking note of the consumption in the said
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    MIS. JAYASAWALS NECO LTD. v. CHHATTISGARI-l STATE                       755
  ELECTRICITY REGULATORY COMMISSION [DIPAK MISRA, J.]

year, reduced the minimum monthly payment of charges to I 0% of the          A
load factor. The analysis of the Commission is reproduced below:-
      " 11. Based on last eight months consumption (January 2005 to
      August 2005), the average load factor is found to be as 11.4%. If
      the load factor is decided to be maintained at I 0% then the TMG
      unit comes to 12,31,200 as against the average consumption of B
       11,27.525 units which would appear to be reasonable though
      marginally more for which the petitioner has to pay the charges
      irrespective of his consumption. In that case the petitioner wi II
      still be required to pay the demand charges of Rs.41.26 lakh per
      month which he was not required to pay earlier, and Rs.31.39 · C
      lakh towards energy charges totalling to Rs. 72.65 lakh per month,
      as against Rs.60.50 lakh at the pre-revised tariff rate. According
      to this the average unit rate comes to Rs.6.44 as against Rs.S.37
      earlier, i.e. rise by about 20%. The request of the petitioner for
      reducing the demand charge to 33% on the ground that he draws
      power only for 8 hours and exports power to CSEB for 16 hours D
      has no logic as the concept of demand charge has been introduced
      to recover the fixed charges. In this case, the CSEB has to remain
      prepared to supply power to the petitioner· for 8 hom·s and the
      power not drawn or less drawn by the petitioner from CSEB can
      not be allotted to other consumers.
                                                                           E
       12. In view of the petitioner's peculiar pattern of power
      consumption, the Commission feels that the minimum guaranteed
      consumption of the petitioner should be different from the other
      industries in his tariff category and should be fixed at a much
       lower level. The Commission accordingly directs thatthe petitioner
      be required to guarantee a minimum monthly payment of charges        F
      of units equivalent to I 0% load factor on the contract demand
      plus demand charges on the billing demand per month irrespective
      of whether any energy is consumed during the month or not. This
      will not adversely affect the income of the CSEB, as it will be
       earning Rs. I 0 lakh extra per month as compared to the pre-revised G
      tariff. This will be further increased due to increased rate oflow
      P.F. penalty."
        5. The aforesaid order was assailed before the Appellate Tribunal
for Electricity (for short, 'the tribunal') in Appeal No.I 86 of2005.
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756            SUPREME COURT REPORTS                             [2017] 2 S.C.R.


A             6. During the pendency of the appeal, the appellant along with
      others approached the Commission in Petition No.17 of 2005, making
      manifold prayers. The Commission enumerated the following aspects
      for consideration:-
            "(i) Set off on contract demand (CD) of the CP.P-holder, captive
B                consumer and non-captive consumers availing power from
                 the CPP through open access.
            (ii) Parallel operation charges.
            (iii) Separate tariff for start up power.
c           (iv) Tariff for supply to CSEB/licensee and definition for firm and
                 infirm power.
            (v) Issue of sale of electricity to third parties.
            (vi) Wheeling charges.
            (vii) Introduction of ABT for CPP-holders."
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               7. While dealing with the minimum charges, which was the part
      of issue No. I, the Commission came to hold that:-
            "In view of the above, the Commission decides that for the present
            no set off on CD may be permitted. The Commission will review
E           the position when the intra-State ABT regime is fully operational
            and the Balancing and Settlement Code is fully implemented. The
            Commission, however, decides that both the captive as also the
            non-captive consumers of the CPPs, while paying demand charges
            including tariff minimum charge, will not be required to pay monthly
            minimum charges on consumption considering the fact that their
 F          requirement of power is to be met from the CPP only and they
            may take very little power from the licensee/CSEB. Thus such
            consumers, whether EHV or HT, shall be required to pay tariff
            minimum charges on the contract demand ot the recorded
            maximum demand, whichever is higher only. This dispensation
G           will, however, be available to these captive/non-captive consumers
            who avail power both from a CPP and the licensee, on the condition
            thatthe supply from the CPP is more than 50% of their requirement
             in terms of unit consumption. Every captive and non-captive
            consumer will have to declare that they will be drawing more
            than 50% of their monthly consumption from the CPP failing which
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     MIS. JAYASAWALSNECO LTD. v. CHHATTISGARH STATE                           757
  ELECTRICITY REGULATORY COMMISSION [DI PAK MISRA, J.]

       it will be presumed that their power requirement from the CSEB/         A
     · licensee .is more than 50% and they will not get the benefit of
       waiver.ofmonthly minimum charge on consumption."
        8. We may note here that the said order passed by the
Commission was chaJlenged in appeal before the appellate authority and
the appeal has been disposed of atlirmingthe same. It is also apt to note      B
here that the appellant is not a party to the same and in the instant case,
the only issue is levy of minimum charges at l 0% forthe financial year
2005-2006.
        9. We have heard Mr. Devashish Bharuka, learned counsel for
the appellant and Ms. Swapna Seshadri, learned counsel for the respondent      c
No.l.
         I 0. Mr. Bharuka, learned counsel for the appellant submits that
the minimum charge has been abolished as a concept in the case of likes
of the appellant and, therefore, there is no justification whatsoever to
levy the same forthe year 2005-2006. It is urged by him that though the        D
order passed in Petition No.17 of2005 was brought to the notice of the
tribunal, the same has neither been appropriately dealt with or addressed
to inasmuch as the tribunal has concurred with the order passed in review
by ascribing no reason.
          11. Ms. Swapna Seshadri, learned counse.1 for the respondent-        E
Commission, in support ofthe order contends that the appellant is enjoying
the benefit of the order of the Commission that has been affirmed by the
tribunal after the concept of levy of minimum charges has been abolished
in respect of subsequent years, but the said principle cannot be made
applicable to the year 2005-2006, for the "load factor", that is, I I .4%
was specifically taken into consideration by the Commission in respect         F
o.f the said year.
          I 2. From the rivalized submissions canvassed at the Bar, we
 find that both sides lay emphasis on the "consumption pattern of the load
 factor" forthe calculation of monthly minimum charges. It is the admitted
 position that the Commission while dealing with Petition No.17 of2005         G
 has returned a categorical finding that the likes of the appellant are not
 liable to pay the minimum charges. However, as we find, it is not a
·determination in absoluteness. It depends upon the scrutiny and analysis
 of the factual score. To elucidate, abolition of minimum charges is not
 stated as a principle of law but has been so adjudicated on the basis of
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758             SUPREME COURT REPORTS                             [2017] 2 S.C.R.



A     certain conditions precedent being satisfied. Therefore, the factual score,
      delineation thereof and the ultimate analysis thereon constitute the
      structural pillar of the discussion.
               13. Our duty wou Id have been easier had the tribunal adverted
      to the said aspect. As we find from paragraph 18 of the order passed by
B     the tribunal, it has really not taken note of the order passed on 6"' February,
      2006, wherein as a concept which is founded on factual analysis, the
      minimum charges stood abolished. Needless to say, as the conclusion is
      based on appreciation of relevant facts and other enquiry, it was incumbent
      on the Commission to dwell upon the same and then only such analysis
      could be scrutinised in appeal by the appellate authority in its proper
c     perspective. It is a statutory obligation. At this juncture, it is fairly
      stated by the learned counsel for the Commission that the factual analysis
      can be made in an apposite manner by the Commission but not by the
      tribunal at the first instance. Learned counsel for the appellant docs not
      dispute the said position.
D              14. As the factual analysis is necessary and certain conditions
      precedent are required to be gone into for the purpose of determination
      as regards the aspect whether there should be abolition of the minimum
      charges for the financial year 2005-2006 ornot, the competent authority,
      we are disposed to think, should be the Commission. Therefore, we are
 E    inclined to remit the matter to the Commission for fresh determination.
               I 5. In view of the aforesaid premises, the appeal is allowed, the
      order passed by the tribunal as well as by the Commission is set aside
      and the matter is remitted to the Commission for determination on the
      basis of the factual score keeping its own analysis that has been made
 F    while dealing with the grievance put forth in Petition No.17 of2005.
      We may repeat at the cost of repetition that levy or non-levy being
      determinable on the factual base, every aspect relatable to the same has
      to be considered. Accordingly, we direct that the said determination
      shall be done within a period of four months from the date ofreceipt of
      the order. We will be failing in our duty if we do not note that the tribunal
G     has dealt with other aspects. As the learned counsels have restricted
      the argument pertaining to contract demand, we have only delved into
      the same. There shall be no order as to costs.


      Ankit Gyan                                                       Appeal allowed.
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