IMPORTANT POINT
Provisions for duty of distribution licensee and open access has to be read conjointly.

JUDGMENT

A.K. SIKRI, J. –

1. Respondent No.3 is a consumer (hereinafter referred to as the "consumer") of electricity (LT-II Category) whose premises are situated within area of supply of the appellant namely Brihanmumbai Electricity Supply and Transport Undertaking (BEST). In April 2009, he approached respondent No.2 i.e. Tata Power Company Limited (TPC) with a request that he be supplied the electricity by TPC. In nutshell, he wants to switch over from BEST to TPC for his electricity requirement. In response to his request, TPC advised the consumer vide letter dated 8.7.2009 to approach the BEST for its permission to use its distribution network of the BEST to enable TPC to supply electricity to the consumer using that network.

The consumer, accordingly, turned to BEST requesting it to give the said permission. It was, however, denied by BEST vide letter dated 31.7.2009 and again on 10.8.2009. After receiving this rejection, the consumer approached Mumbai Electricity Regulatory Commission (hereinafter referred to as the "Regulatory Commission") with petition seeking the following directions:

"(a) That this Hon'ble Commission may be pleased to direct TPC to provide electricity supply to the Petitioner and make such supply available as early as possible, either on BEST Network or by extending its own network, as may be necessary, failing which TPC's distribution license should be cancelled by this Hon'ble Commission;

(b) that the Hon'ble Commission may be pleased to direct the respondent to pay compensation to the petitioner under Regulations 3.2 and 12 of MERC (Standards of Performance of Distribution Licensees, Period of Giving Supply and Determination of Compensation) Regulations 2005;"

2. In the meantime, respondent Nos.4 to 8 also filed similar petitions before the Regulatory Commission with same relief as they also wanted to switch over to TPC for their electricity requirement. Since direction was sought for TPC, only TPC was made party. However, at the instance of Regulatory Commission BEST and Reliance Industries Limited (RIL) were also impleaded in these matters. After hearing all the parties, Regulatory Commission passed orders dated 22.2.2010 holding that TPC was bound to supply electricity in terms of applicable Regulations and therefore direction was given to the TPC to supply electricity to the consumers either through BEST wires or its own wires.

The operative part of that order reads as under: "In view of the above there is no requirement to issue a direction in regard to the Petitioner's claim of compensation under Regulation 3.2 and 12 of the SOP regulations. However, TPC is bound by Regulation 4.7 of MERC (Standards of Performance of Distribution Licensees, Period for Giving Supply and Determination of Compensation) Regulations, 2005 in terms of the timelines as mentioned in the said Regulation. Time has started ticking from the date of receipt of applications by TPC from the Petitioners who have requisitioned for electricity supply. TPC will have to adhere to the timelines specified in the regulations."

3. We may point out here that the BEST (the appellant herein) had resisted the demand of the consumers in their petitions with the following contentions:

(a) The Regulatory Commission did not have the jurisdiction to entertain a dispute between the consumer and a distribution licensee;

(b) TPC was not a deemed distribution licensee for the area in question and therefore was not permitted to supply the electricity to any consumer in that area;

(c) that unlike other distribution licensees, BEST being a local authority, no persons situated in BEST's area of supply could avail electricity from any other licensee, on account of BEST invoking a statutory exemption available to a local authority under Section 42(3) of The Electricity Act, 2003 Act (hereinafter referred to as the Act). (d) Since TPC had clarified that it was willing to extend its network and supply electricity, BEST also contended that TPC could not extend its