KANAN DEVAN HILLS PLANTATION Vs. KERALA STATE ELECTRICITY

JUDGEMENT

(1.) JUDICIAL Member The two appellants, namely Kanan Devan Hills Plantations Company Private Limited, and M/S Tata Global Beverages Limited (formerly Tata Tea Limited) have preferred this appeal against the order dated 26.4,2011 passed by the Kerala State Electricity Regulatory Commission, the respondent no 1 herein, on series of grounds which we will notice as we proceed to consider the merit of the appeal.

(2.) THE first appellant who is the successor -in interest of the second appellant and supplies electricity as a distribution licensee u/s 14 of the Electricity Act,2003 to various consumers in Munnar including its captive load had filed ARR and ERC petitions for the year 2007 -08, 2008 -09, &2009 -10 for approval of the Commission, the respondent no 1 herein and prior thereto the appellant no 2 had also filed ARR and ERC before the Commission for the years 2 2005 -06 and 2006 -07. The first appellant said to be a transferee from the second appellant in the matter of business of distribution of electricity. The Commission passed orders thereon against which the two appeals were preferred by the first appellant, being the appeals no 160of 2009 and the appeal no 193 of 2009 before this Tribunal which were also disposed of on 24.11.2010.

(3.) IT is the case of the appellants that the Commission took up true up proceedings for a period of five years i.e., FYs 2005 -06 to 2009 -10 out of which the second appellant was the distribution licensee for two years and three months. The business of the second appellant was transferred to the first appellant along with transfer of license by the Commission in favour of the first appellant with effect from 1st July,2007. The Commission is said to have passed an order on 09.01.2007 transferring distribution license in favour of the first appellant. An Indenture was also executed by and between the two appellants on 23.6.2007 in respect of transfer of business of distribution in favour of the first appellant. The first appellant filed truing up petitions for the period of their operation, namely for FY 2007 -08,2008 -09, and 2009 -10 mentioning that it took over the business as a licensee from the second appellant on 01. 7.2007. After the initial hearing held on 3 16.8.2000 the Commission is alleged to had erroneously assumed the second appellant to be the first appellant's major stake holder and the distribution business as a continuing function, directed the first appellant to file true -up petition from the FY 2005 -06 onwards which was illegal because such direction should have been made against the second appellant and that the second appellant was not given an opportunity of being heard particularly when it was the separate distribution business of the second appellant having no nexus with the business of the first appellant. The Commission passed however a composite true -up order covering five financial years on the said truing up petitions on 26.4.2011 which is impugned herein. The grounds of the appeal are as follows: -