JUDGMENT

Altamas Kabir, J. - As these three appeals arise out of a common judgment of the Appellate Tribunal for Electricity, they were taken up for final hearing together.

2. The genesis of these three appeals is a petition filed by M/s BSES Limited on 23.7.2002 before the Maharashtra Electricity Regulatory Commission (hereinafter referred to as MERC), under Section 22(2)(e) and (n) of the Electricity Regulatory Commissions Act, 1998 (hereinafter referred to as the ERC Act), complaining of alleged encroachment by Tata Power Company Limited (hereinafter referred to as TPC) within its area of supply. In the said application M/s BSES, inter alia, prayed for the following reliefs:

(a) That Tata Power Company Limited be restrained from in any manner selling, supplying and distributing electricity to the consumers situated within the area of supply of BSES in contravention of the terms and conditions of their licenses and the policy of the Government of Maharashtra.

(b) That TPC be ordered to pay BSES or to the Government of Maharashtra all profits and gains made from January 1998 until TPC discontinued sale of energy to such consumers, i.e. situated in BSESs licensed area of supply and having energy requirement below 1000 KVA (maximum demand) and/or with lighting consumption exceeding 20 per cent of the total;

(c) That, pending the disposal of the petition TPC be restrained in terms of the prayer at (a) above and from offering new connections to any entities for sale, supply or distribution of electricity in BSESs licensed area of supply, with energy requirement below 1000 KVA (maximum demand) and/or with lighting consumption exceeding 20 per cent of the total.

3. From the materials on record it appears that the principal question which fell for the decision of MERC was whether TPC was entitled under the licences granted to it to effect distribution of electricity directly to customers within the area of supply indicated in the licences granted to BSES.

4. In order to appreciate the circumstances giving rise to the above dispute, it is necessary to set out some of the facts as also the terms and conditions of the licences granted to the contesting parties for distribution of electricity within Bombay city and its suburbs.

5. At the relevant time TPC was holding four licences for the aforesaid purposes, as described hereinbelow:

(i) The 1907 Licence- Commonly known as the Bombay (Hydro-electric) Licence, which was originally granted on 5.3.1907 to Dorabji J. Tata and Ratanji J. Tata;

(ii) 1919 Licence - Known as the Andhra Valley (Hydro-electric) Licence, which was issued on 3.4.1919 in favour of the Tata Hydro Electricity Supply Company Ltd.;

(iii) The 1921 Licence - Known as Nila Mula Valley Licence, which was issued on 15.11.1921 in favour of Tata Power; and

(iv) The 1953 Licence - Known as Trombay Thermal Power Electric Licence which was issued on 19.11.1953 in favour of the Tata (Hydro-Electric) Power Supply Company Limited, the Andhra Valley Power Supply Company and Tata Power.

6. Consequent upon amalgamation of the Tata Hydro- Electric Power Supply Company Limited and the Andhra Valley Power Supply Company Limited with Tata Power, the Government of Maharashtra on 12.7.2001 transferred the said 1907 licence, 1919 licence and the 1953 licence to Tata Power and accordingly on and from 12.7.2001 Tata Power came to hold the aforesaid four licences on the basis of which it had been contended on behalf of Tata Power that it was entitled to sell, supply and distribute electricity not only to other distributing licensees, such as Reliance Energy Limited and The Bombay Electric Supply and Transport Undertaking (hereinafter referred to as the BEST), but also to direct consumers of electricity.

7. As far as M/s Reliance Energy Limited, hereinafter referred to as "R.E.L.", is concerned it acquired a licence known as the Bombay Suburban Electric Licence which had initially been issued on 29.5.1926 in favour of Killick, Nixon and Company an