Writ petitions challenging regulatory fixation of normative O&M charges as tariff component not maintainable due to statutory appeal to expert Appellate Tribunal under Electricity Act, absent jurisdictional defect or natural justice violation.

JUDGMENT :

Jyotsna Rewal Dua, J.

All these petitions are based upon almost similar pleadings, claiming almost similar reliefs arising out of similar cause of actions, hence, are taken up together.

2. Grievance of the petitioners emanates from an order passed by the respondent—Himachal Pradesh Electricity Regulatory Commission (HPERC), Shimla on 23.02.2024 in Suo Motu Petition No. 08/2023, fixing normative Operation & Maintenance (O&M) charges. Challenge has also been laid to the consequent demand notices issued to the petitioners by the respondent— Himachal Pradesh State Electricity Board Limited.

A petition under Section 86 of the Electricity Act, 2003 was filed before the HPERC by the ‘Bonafide Himachalies Hydro Power Developers Association’. This petition, bearing No. 29/2023, pertained to the adjudication of a dispute between independent power producers and the H.P. State Electricity Board Limited concerning Operation & Maintenance (O&M) charges being levied by the Board in respect of inter connection facility/bay provided to the generating companies, who had set up Small Hydro Electric Power Projects in the State. HPERC decided the petition on 16.10.2023, observing that the proposal to fix normative O&M charges of bay(s) was required to undergo a prior publication process by floating the proposal on the website of HPERC, so as to provide equal opportunity to all stakeholders to file their objections/suggestions. Pursuant to the directions issued in the order dated 16.10.2023, a proposal was placed before the Commission, which was registered as Suo Motu Petition No. 08/2023, on the subject of Fixation of normative O&M charges to be paid by the Small Hydro Power Project(s) and other RE generators connected at Sub-Stations owned by the Distribution Licensee where maximum nominal voltage level at any point in such Sub- stations does not excess 33 kV. The Commission proceed to fix normative O&M charges to be paid by Small Hydro Power Producers and other Renewable Energy Generators selling power to the Distribution Licensee, as well as Renewable Energy Developers selling power under open access for utilizing its infrastructure. HPERC invited public objections and suggestions by issuing public notices in newspapers as well as on its website. HPERC, vide its letter dated 06.11.2023, requested all major stakeholders, including the Small Hydro Project Welfare Association, State Government, Directorate of Energy HIMURJA, and the Distribution Licensee, to submit their objections/suggestions in terms of the aforesaid public notices. HPERC received comments/suggestions on the draft proposal from some of the stake holders. ‘Bonafide Himachalies Hydro Power Developers Association’ approached HPERC for sharing data inputs, which was allowed to be collected from HPSEBL. Public hearing in the matter was held on 06.12.2023. Thereafter, order was passed by HPERC on 23.02.2024 in Suo Motu Petition No. 08/2023 fixing normative O&M charges. Petitioners are aggrieved against order dated 23.02.2024 passed by the HPERC in Suo Moto Petition No.8 of 2023, as also the consequent demand notices issued to them by the HPSEBL on the strength of above order.

3. According to the petitioners, HPERC lacks the jurisdiction to issue the impugned order fixing O&M charges. The impugned order has re-written the contracts entered into between the parties fixing the O&M charges for use of interconnection facilities. It has also been submitted that though in some cases, O&M charges agreement have been entered into between parties and those agreements have been rewritten by HPERC under the impugned order, but in number of the cases, such agreements have not be