The WBERC is competent to receive and process an application for determination of retail tariff, even if the CERC has not yet determined the generation and transmission tariff for the relevant period, provided that the CERC had previously determined the tariff for a period that was applicable as on the date specified in the regulations.

Harish Tandon, J.

1. A mandamus is sought declaring the admission of an application filed by the Damodar Valley Corporation (in short ‘DVC’) on 23rd July, 2014 before the West Bengal Electricity Regulatory Commission (in short ‘WBERC’) being violative of the provision contained under the Electricity Act, 2003.

2. Admittedly, the DVC is generating, transmitting and distributing the electricity in two states i.e. State of West Bengal and Jharkhand.

3. The dispute arose when the Electricity Act, 2003, was enacted and the DVC was subjected to the jurisdiction of the Electricity Regulatory Commission for determination of the tariff.

4. Several litigations came to be filed and it was a unanimous stand of the DVC that they are governed by their own act, which cannot be overridden by enacting the Electricity Act, 2003.

5. It was ultimately decided that so far as generation and transmission part is concerned, the Central Electricity Regulatory Commission (CERC) is competent to determine the tariff and the West Bengal State Electricity Regulatory Commission is competent to determine the retail tariff.

6. According to the petitioner, after the generation and transmission tariff is determined by the Central Electricity Regulatory Commission, the retail tariff can only be determined taking the same as the input cost by the West Bengal Electricity Regulatory Commission.

7. A challenge was made to an order dated 3rd October, 2005 passed by the Central Electricity Regulatory Commission before the Appellate Tribunal, which was dismissed being devoid of merit.

8. While arriving at the ultimate conclusion, the Appellate Forum observed that the DVC being a generating company established by the Central Government, the Central Government have a pervasive control over it and in view of Section 79 of the Electricity Act, 2003, the Central Commission is required to regulate the tariff of DVC. So far as the retail tariff is concerned, the Appellate Forum held that it can be determined by the West Bengal State Electricity Regulatory Commission and the DVC was directed to approach the said Commission.

9. Both the parties before me have relied upon the said order of the Appellate Authority and are unanimous on the point that the generating and transmission tariff is within the domain of the Central Electricity Regulatory Commission, which is competent to determine the same and so far as the retail tariff is concerned, the State Electricity Regulatory Commission is competent to determine.

10. According to the petitioner, since the generation and/or transmission tariff are treated as input costs for the purpose of retail tariff unless it is determined by the Central Electricity Regulatory Commission, the said commission cannot assume the jurisdiction or proceed to determine the retail tariff.

11. It is also not in dispute that the tariff for the period 2014-2019 has not been determined by the Central Electricity Regulatory Commission.

12. The sheet anchor of the argument of Mr. Sarkar, learned advocate appearing on behalf of the petitioner is that the DVC has approached the West Bengal Electricity Regulatory Commission by filing impugned application for determination of the retail tariff when the Central Electricity Regulatory Commission has not fixed the generation and transmission tariff for the period as aforesaid. It is strongly submitted that certain expenditures have been projected on estimation for the said period which is impermissible and cannot be taken into account unless the determination of tariff is done by Central Electricity Regulatory Commission.

13. He strongly refers to paragraph 9 of the said application to say that there is no scope for cost projection beyond 2013-2014 with necessary assumptions for financial modeling which is generally adopted by the Central Electricity Regulatory Commission to be a basis for the retail tariff. He further submits that the escalation of the fixed cost or further escalation in the subsequent years cannot be