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CASE NO.: Appeal (civil)  3109 of 2006

PETITIONER: M/s DLF Power Ltd

RESPONDENT: Central Coalfields Ltd. and Anr

DATE OF JUDGMENT: 11/07/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

(With Civil Appeal No.3561of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the order dated 11th May,  2006, passed by the Appellate Tribunal for Electricity (in short  ’Appellate Tribunal’). The appeal was filed by the respondent  No.1 to set aside the order dated 4th December, 2004 as  amended by order dated 28.2.2005 passed by the Jharkhand  State Electricity Regulatory Commission, Ranchi (in short the  ’State Commission’).  2.      While disposing of the appeal, the Appellate Tribunal  held as follows:                  "In the result-

(i)     On the first point, we hold that the  Regulatory Commission has neither the  authority nor jurisdiction in terms of The  Electricity Act 2003 to fix a tariff between the  appellant, a consumer and the second  Respondent a generator being a commercial  transaction pure and simple, which  relationship is governed by an existing PPA.  We also hold that it is not an order or a tariff  determination/order by the Regulatory  Commission falling under one or more the  provisions of The Electricity Act 2003, which  alone is appellable.

(ii) On the second point, we hold that the  Regulatory Commission as an expert Arbitral  Tribunal has resolved the dispute as referred  to it by parties to the dispute on invitation  and it is an award in terms of the PPA  entered between the parties and it is  enforceable as it has all the force of an  arbitral award passed by a validly constituted  Arbitral Tribunal.  (iii)   On the third point, we hold that no  appeal is maintainable before the Appellate  Tribunal for Electricity and appeal deserves  to be rejected as not maintainable, as it is not  in dispute that in law as against the award of

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an Arbitral Tribunal no appeal is  maintainable before this Appellate Tribunal.

(iv)    On the last point, we hold that the  resolution of dispute by the State Regulatory  Commission is by way of arbitral proceedings  and it is an award which is binding on the  parties. We have neither the jurisdiction nor  authority to interfere with the impugned  resolution of tariff by way of arbitration; and

(v)     In the result, all the points are answered  against the appellant and the appellant is not  entitled to any relief in this appeal."  

3.      The appeal was dismissed as incompetent and not  maintainable.  

4.      During the course of hearing of the appeal it appeared to  us that there is need for verification of the capitalization of the  costs incurred upto commissioning of appellants’ power plants  at Rajrappa and Gidi. For this purpose the reputed Cost  Accountants have to do the verification and for this purpose  we have required the parties to suggest the names. While the  appellants have suggested names of three Chartered  Accountants, respondents have suggested that it will be done  by Cost Accountants Unit of Neyvely Lignite Corporation Ltd.,  a public sector undertaking.    

5.      We have considered the names suggested. We direct that  let the Cost Accounts Wing of M/s Ernst & Young, Chartered  Accountants determine the actual capital costs based on the  formula for the power purchase agreement between Coal India  Ltd. and M/s DLF Power Company Ltd. for the aforesaid two  plants. Copies of the report of the Cost Accounts Wing shall be  given to the parties and also submitted to the State  Commission. On receipt of the report, the Commission shall  determine the tariff as per the terms of the power purchase  agreement between the parties for the two power plants.   Needless to say that for the purpose of verification, necessary  datas and information shall be made available to the Cost  Accounts Wing as may be required. Within a period of two  months from the date of receipt of the report from the Cost  Accounts Wing the State Commission shall determine the  tariffs. Copies of the tariff order shall be issued to the parties  and shall also be submitted before this Court. In case M/s  Ernst & Young Chartered Accountants express any difficulty,  within a period of three weeks, the Cost Accounts Wing of  Neyvely Lignite Corporation Ltd., shall undertake the  assignment as directed above  

6.      Call these matters in February, 2008.