RCI POWER LIMITED CHENNAI Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioners in Writ Petition Nos.4770 and 4771 of 2002 are the appellants in CMA Nos.1351 and 1356 of 2001. These petitioners along with the appellants in other CMAs have established power generation units in private sector from time to time, both conventional and non-conventional, pursuant to the policy of the Central Government to encourage greater investments by private enterprises in power sector formulated in the year 1991 and in allowing private participation in generation, distribution, renovation and modernization of the power projects in its quest for increasing availability of electricity since the per capital electricity consumption in the country happened to be the lowest and to bridge the gap between demand and supply and entered into agreements with the then A.P. State Electricity Board the predecessor-in-interest to the 2nd respondent A.P. TRANSCO with the approval of the State Government for transmission of the energy generated by them to their consumers and were paying wheeling charges in kind as fixed by the Government to different categories of developers of energy. These power generation units can be categorized broadly into eight categories: (1) Rain Calcining Limited (RCL) Visakhapatnam - appellant in C.M.A. No. 1025 of 2002 involved in the manufacture of calcind petroleum coke which is also generating power from the flue gases developed in the process, (2) A.P. Gas Power Corporation Limited - appellant in C.M.A. No. 1049 of 2002, a major gas based power plant, which sells the power generated to its shareholders including A.P. TRANSCO, (3) Mini Power Plants established as per the changed policy of the Government of A.P. envisaged in G.O. Ms. No.1 16, dated 5-1-1995 and as modified in G.O. Ms. No. 152, dated 29-11-1995, (4) Developers of non-conventional energy, (5) Developers based on isolated gas wells. As per the information furnished by the licensee, out of 61 power generating plants (both Mini Power Plants and non-conventional energy developers) 41 Generating Companies entered into agreements with the Board before the Reforms Act came into force and 20 Generating Companies entered into agreements after the Act came into force. The payment of wheeling charges by these companies and the contractual periods were specified in the agreements entered into between the parties. Likewise, schedule consumers like Ferro Alloy Companies, purchasing power from N.T.P.C., A.P.G. Power Corporation and other Companies also filed appeals though there is no contract between them and A.P TRANSCO unlike the others.

(2.) The appellants in CMA Nos.1793 and 1794 of 2001, who are engaged in generation of electricity through non- conventional energy sources also filed Writ Petition Nos.4770 and 4771 of 2002, seeking issuance of a writ of prohibition against the Regulatory Commission, stating that the Commission has no jurisdiction to fix the charges for wheeling the energy generated by the petitioner companies, to be sold to or purchased by TRANSCO or other private parties. Subsequently, WPMP No. 13904 of 2002 was filed seeking amendment of the prayer to declare the proceedings of the Commission in OP No. 1075 of 2001 dated 20.6.2001 banning the sale of energy to third parties and a further direction to those generating companies to sell the power generated by them only to A.P. TRANSCO by issuance of a writ of mandamus and the following reliefs were sought for:

(3.) During the course of arguments the Counsel for the petitioner sought leave of the Court to withdraw the reliefs sought for, in grounds (A) and (B) with liberty to raise the contentions in appropriate proceedings as they are being dealt with separately by the Hon'ble Court in another batch of cases. Since the issues raised in these writ petitions are of public importance, we are inclined to allow this application and it is accordingly allowed.