IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

COURT-II APPEAL NO.182 OF 2020&

IA NO. 137 OF 2019 Dated: 26.10.2021 Present: Hon’ble Mr. Justice R.K. Gauba, Judicial Member Hon’ble Mr. Sandesh Kumar Sharma, Technical Member In the matter of:

Himachal Pradesh Power Transmission Corp. Ltd. .… Appellant (s)

Versus Central Electricity Regulatory Commission &Ors. .… Respondent(s)

Counsel for the Appellant (s) : Mr. Anand K. Ganesan Ms. Swapna Seshadri Counsel for the Respondent (s) : Mr. Sethu Ramalingam for R-1 Mr. R B Sharma Mr. Mohit Mudgal Mr. Sachin Dubey for R-13 Mr. Sitesh Mukherjee Mr. Aryaman Saxena for R-19 JUDGMENT (ORAL)

Per Hon’ble Mr. Justice R.K. Gauba, Judicial Member:

This matter has been taken up by video conference mode on account of pandemic conditions, it being not advisable to hold physical hearing.

The background facts and the narrow issue that requires to be addressed in thematter at this stage by us was captured in the proceedings recorded on 12.10.2021 which, to the extent relevant, reads thus:

“…The learned counsel for the appellant submits the issue is narrow and if the appeal itself can be taken up for final hearing and disposal, he will not press for any interim order.

With the consent of the parties, we take up the main appeal for final hearing and disposal.

The appeal is directed against the Order dated

20.07.2018 passed by the Central Electricity Regulatory Commission (CERC) in Petition No. 116/TT/2017 whereby liability of paying transmission charges for Asset-V of the transmission system of 19th respondent i.e. Power Grid Corporation of India Limited (PGCIL) has been fastened on the appellant. The prime grouse of the appellant is that principles of natural justice have not been followed in as much as the order has been rendered without any notice to the appellant, inspite of specific directions by the CERC by earlier Order dated 22.08.2017 for impleadment of the appellant and due notice to it.

It is fairly conceded that in the petition before the CERC, originally presented by PGCIL, the appellant was not impleaded as a party respondent. Since relief against the interest of the appellant was being pressed, the CERC by Order dated 22.08.2017 directed the appellant to be added as a party, fresh memorandum of parties having been filed in compliance, the appellant being reflected as 18th respondent therein.

The CERC, by its Order dated 22.08.2017, had also directed notice to be issued to the appellant upon such impleadment. It is the contention of the appellant that no notice was served, the requisite steps taken by the 19th respondent (PGCIL) in the wake of the order dated 22.08.2017 being incorrect and inappropriate. It is pointed out from record that on the e-filing portal of CERC, instead of the appellant, another entity Himachal Pradesh Power Corporation Limited (HPPCL) was mapped. The parties agree that no formal notice was issued by CERC at any stage. There is no claim to the contrary by CERC in its reply. CERC instead accepted the affidavit dated 10.01.2018 submitted by PGCIL as a “proof of service”. The document filed with the said affidavit dated 10.01.2018 submitted by PGCIL was in fact proof of dispatch, copy of speed post receipt having been submitted therewith. It is the submission of the appellant that since the speed post receipt does not mention full particulars of the appellant, due service cannot be inferred.

The short issue that requires to be addressed is as to whether there is due service on the appellant. If the answer is in the negative, the impugned order would be rendered bad as violative of the doctrine of Audi Alteram Partem. Conversely, if the conclusion is in the affirmative, the contention of the appellant about denial of opportunity of hearing will have to be rejected.

The learned counsel for the 19th respondent seeks adjournment to come up with tracking report so that the issue can be conclusively answered. In all fairness, such opportunity deserves to be granted. T