Pinaki Chandra Ghose, ACJ.

This writ appeal is directed against the order dt.28.9.2010 passed by the Hon'ble Single Judge, in W.P. No.8231 of 2005.

Respondent -writ petitioner filed the writ petition to declare the action of the respondents in not adjusting the import energy during the months of August 202 and November 2003 against the banked energy of the writ petitioner and raising the bills for the said two months against the petitioner, as arbitrary, illegal and without jurisdiction.

The facts of the case briefly are as follows.

Respondent -writ petitioner, which is an integrated sugar factory with co-generation of power, was sanctioned 8 Mega Watts (MW) bagasee cogeneration plant at its sugar factory by NEDCAP vide sanction letter dt.7.4.1997. The petitioner was permitted for captive consumption of 3 MW during the season and 1.2 MW during off-season. The sugar mill with 3 MW power generation went operational on 22.11.1997. Subsequent thereto, 5 MW power generator was added and commissioned on 9.6.1999. The season for sugar crushing factory commences from the first week of December and ends in April of the succeeding year. During such crushing season, the writ petitioner consumes around 3 MW of power for crushing and auxiliary needs. During off-season, it consumes around 1.2 MW of power.

It is not in dispute that that the A.P. Transmission Corporation (hereinafter referred to as 'the TRANSCO') was also receiving power supply through the grid of the petitioner cogeneration plant supplied under the power purchase and wheeling agreement dt.29.1.2000 entered into between the petitioner and the TRANSCO and the petitioner was entitled to sell its excess power to third parties through the transmission and distribution systems of the TRANSCO. The TRANSCO had a right to charge from the petitioner company for such utilization of their system. The petitioner company was also entitled to bank the excess energy after meeting the captive consumption and third party sales with the TRANSCO, as a result whereof and in accordance with the provisions of the Power Purchase & Wheeling Agreement dt.29.1.2000, the petitioner and the TRANSCO were bound by the clauses in the agreement and thereby agreed to give bills as per the terms of the agreement.

It appears that the Chief General Manager of the TRANSCO by letter dt.9.11.2004 addressed to the petitioner, issued C.C. bills for the excess of import energy supplied by Southern Power Distribution Company of A.P. Limited (APSPDCL) over the export energy by the petitioner during the months of August, 2002 and November, 2003. The case of the appellants -respondents is that in spite of the bills raised, the respondent writ petitioner did not pay the bills and the appellants had a right in terms of the said agreement that if such payment is not made, services to the scheduled consumers of the writ petitioner will be disconnected by the appellants. The writ petitioner has received a combined bill for August, 2002 and November, 2003 with huge surcharge from the Senior Accounts, Officer APSPDCL on 22.12.2004. Under these circumstances, the petitioner filed a representation dt.5.1.2005 to the Chairman and the Managing Director of the TRANSCO requesting his intervention to resolve the problem cropped up at that point of time. Subsequently, the Chief General Manager (Expr.) on 10.3.2005 addressed a letter to the petitioner directing them to pay the amounts raised in the said bills along with the surcharge within seven days from the date of receipt of the letter, failing which the wheeling of the delivered energy of the petitioner will be stopped from the billing month of March, 2005 and all the live services to the scheduled consumers will be disconnected. Hence, the writ petition was filed. According to the petitioner, as pointed out before the Hon'ble Single Judge, it is not bound to pay the said surcharge bills which were raised on it and requested for setting aside of the said bills. The appella