KARNATAKA POWER TRANSMISSION CORPORATION LIMITED v. JSW ENERGY LIMITED (EARLIER KNOWN AS JINDAL THERMAL POWER COMPANY LIMITED & JINDAL TRACTABEL POWER COMPANY LIMITED) & ORS.

LTD. (EARLIER KNOWN AS JINDAL THERMAL POWER CO. LTD. & JINDAL TRACTABEL POWER CO. LTD.) & ORS. [K. M. JOSEPH, J.] the Doctrine of Invidious Discrimination and Arbitrariness in the facts of the case.

94Copy pinpoint94. Next, the High Court proceeded to find fault with the fixing of the heat rate disregarding the norms laid down by the Ministry of Power/ CEA or whichever is lower. The High Court has been critical of the Commission fixing of the plant load factor disregarding the norms under the Electricity Supply Act or the negotiated plant load factor. There are no reasons forthcoming to support this finding. High Court next found fault with the Commission for doubling the penalty. There is no rationale. There is no appreciation within the limits of its qualified jurisdiction. Reduction of escalation by the Commission from five per cent to two and a half per cent per annum, is apparently with reference to what transpired during the negotiations and, therefore, proceeding on the basis that the matter was a concluded contract, as it was, indeed, the finding of the High Court. It is without considering the ambit of the power of the Commission and the objects of the Act. There are similar findings with respect to fixed costs, disproportionate loading, tantamounting to cross subsidisation being contrary to the Judgement of this Court in West Bengal Electricity Regulatory Commission v. CESC Ltd.12. Again, there is no discussion and the High Court has purported to proceed as if it is itself an Expert Body. At least, the reasons have not been furnished for justifying the Commission being arraigned in the manner done. Likewise, there is impugning of the findings of the Commission in regard to grid support charges being unjustified and ultra vires the Act. It is also stated that objections filed by the first respondent were not considered by the Commission. Lastly, it was found that the Commission has not given reasons.

95Copy pinpoint95. We are of the view that the High Court has apparently proceeded on the basis that there existed a concluded contract within the meaning of proviso to Section 27(2). We have found that it is unsustainable. We are of the view that findings which have been rendered under Point No. 4, have been considerably influenced by the finding relating to there being negotiations and the emergence of the concluded contract. We are of the view that, at any rate, particularly bearing in mind, the limited nature of the jurisdiction of the High Court under Section 41 of the Act, the approach and the findings of the High Court under Point No. 4, may not be sustainable. But, at the same time, we are of the 12 (2002) 8 SCC 715 H

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A view that, being an assessment of the findings of an Expert Body, the High Court must reconsider the matter. To the said extent, the matter must be remitted back to the High Court in regard to Point No.4. CPP V. IPP (POINT NO.3)

96Copy pinpoint96. The last question which remains relates to point no.3 that is, whether the first respondent was a CPP or an IPP.

97Copy pinpoint97. Under point no.3, the High Court has relied upon the orders of GoI dated 09.10.1995, 31.01.1996, 06.11.1996 and 09.01.1997. The High Court has found that under these orders there is a distinction between the IPP and CPP and the first respondent has complied with the requirement under the Supply Act for establishing a generating company with reference to Sections 29 to 31 for sale, pursuant to Section 43A, making it an IPP. It is found that CPP would have to get clearance under Section 44 of the Electricity (Supply) Act, whereas an IPP would require to process the matter under Sections 29 to 31 of the Electricity (Supply) D Act, 1948. Reliance was placed on the fact that the first respondent was granted techno-economic clearance by order dated 22.03.1996.

98Copy pinpoint98. It is further found with reference to the G.O. dated 07.03.1994, which we have referred to that GoK gave approval so that continuous power could be supplied to the grid making it more stable. Reliance is E also placed on letter dated 01.03.1995 allegedly issued by the appellant (whereas it is actually issued by the KEB) confirming to the CEA, that the first respondent was an IPP. It is next found that under the Wheeling and Banking Agreement dated 26th January, 1996 sale of firm capacity to the appellant was provided for. GoK also confirmed to the CEA that the first respondent was an IPP under Section 43A of the Supply Act. F GoK order dated 2nd March, 1996 providing for consent for sale of power under Section 43A of the Supply Act is referred to. The techno economic clearance granted by the CEA dated 22nd March, 1996 is adverted to and it is further found that such a clearance was unnecessary if the first respondent was a CPP. The appellant is alleged to have, by letter dated G 29th March, 1996, supported the project cost and forwarded the same for the approval of GoI. The appellant is also alleged to have participated in the discussion with the CEA for approval of the project and started the transmission system as availed by all IPPs. It was further found that the procedure for payment of charges for supply of electricity was to be a standard procedure followed in case of IPP projects. Next, the High H Court reasons that if the first respondent was a CPP, it would have set

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LTD. (EARLIER KNOWN AS JINDAL THERMAL POWER CO. LTD. & JINDAL TRACTABEL POWER CO. LTD.) & ORS. [K. M. JOSEPH, J.] up a 140 MW plant to meet the requirements of JVSL and not 260 MW A plant. 260 MW plant was contemplated to provide firm capacity to the appellant as evident from the order dated 7th March, 1994. The detailed project report provided that the requirement of steel plant was only 150 MW and rest 110 MW will be supplied to KEB to reduce the power deficit in the State. If the first respondent was a CPP, it could not have dedicated firm capacity to the appellant and guaranteed continuous supply of power. The Commission itself, having recognised the fact that the status of IPP was granted, it could not treat it as CPP for determining the tariff. The mere use of common infrastructure for coal handling and water supply could not render the first respondent a CPP. The power plant was designed to fire either corex gas or coal as fuel which confirmed that the first respondent plant was not a captive plant and it was intended to supply power to the appellant even with the Steel plant not working and not producing corex gas. The first respondent and JVSL were distinct corporate entities having obtained financial assistance and project approval on stand-alone basis. The fact that the capacity of 240 MW D was underwritten by JVSL was also found not germane to conclude that the first respondent was a CPP. The Commission, it was found, erred in arriving at 1637 MUs at 77 per cent PLF and fixed charges at 1150 MUs supplied to appellant ignoring that the first respondent was supplying energy to JVSL at 85 per cent PLF. Such direction was based on the wrong conclusion that the first respondent was CPP. The High Court E concluded that the power plant of the first respondent was having the status of IPP and not CPP.

99Copy pinpoint99. According to the appellant, the operation of first respondent and JVSL was intertwined and interdependent. It is contended by the appellant that they share common infrastructure for coal handling, water F supply and the coal is purchased for the first respondent by its sister company, JVSL, and JVSL raised invoices on the first respondent. Therefore, the first respondent is to be treated as a CPP as it is supplying power to JVSL. Reliance is placed on the Wheeling, Banking and Grid Support Agreement dated 23.01.1996. The priority of the sales was to begin with sales being made to its dedicated customers firstly. Secondly, G power was to be wheeled to third party exclusive customers, and only if excess power is available, it was to be supplied to the KEB on negotiated terms. The Government Order dated 12.05.1999 itself makes it clear that the first respondent was selling surplus power to the appellant and indicates that the same principle of negotiated tariff for CPP would be H

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A applicable to the first respondent. The agreement dated 14.10.1999 entered into between KEB and the first respondent for supply of power from KEB to JVSL on barter basis makes it clear that the entire net capacity is underwritten by JVSL and it has permitted the first respondent to enter into a Wheeling and Banking Agreement as well as PPA with B KEB for sale of excess power. It is further pointed out that the Government of Karnataka has extended concessions for payment of electricity taxes by treating it as a captive unit by Government Order dated 21.12.2000. The power proposed to be supplied by the first respondent to the appellant was surplus power and the grant of status of IPP by GoK would make no difference. The appellant has a case that C the grant of status of IPP was also based on the difference in the shareholding of the companies but that cannot overlook the other aspects about the transactions from which it could be concluded that the first respondent was a CPP, it is contended.

100Copy pinpoint100. The first respondent would support the findings of the High D Court. Reliance is undoubtedly placed on the Government of India policies stressing the distinction between the IPP and CPP. Having obtained consent under Sections 29 to 31 of the Supply Act, 1948, it is contended that it is an IPP. Prior to the Electricity Act, 2003, there was no definition of a CPP nor were their requirements set out. Such requirements evolved E only with the Electricity Rules of 2005. The first respondent has been recognised by the KEB and the GoK as an IPP. Reliance is placed on GoK order dated 07.03.1994, KEB letter dated 01.03.1995 confirmation by GoK of the IPP status, GoK Order dated 02.03.1996, CEA letter dated 22.03.1996, granting techno-economic clearance, and GoK letter dated 22.03.1996, supporting project cost. G.O. dated 02.03.1996, F according the exemption to the first respondent from electricity tax only on the power supplied to JVSL, its sister concern. The alleged CPP status was only qua power sold to the sister concern to benefit it and not the first respondent and it is not as projected. The establishment of the plant of 260 MW can be explained not with it being CPP, in which latter G case, it would have sufficed to set up a plant of 140 MW. The letter dated 01.03.1995 sent by KEB confirmed that the first respondent was an IPP. An affidavit of the appellant dated 18.10.2001 admitted that the first respondent was an IPP. The DPR contemplated the need to supply power to the grid and the appellant and GoK approved the project cost as an IPP and it was forwarded to the CEA for approval. H

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LTD. (EARLIER KNOWN AS JINDAL THERMAL POWER CO. LTD. & JINDAL TRACTABEL POWER CO. LTD.) & ORS. [K. M. JOSEPH, J.]

101Copy pinpoint101. The guaranteed minimum supply of threshold power is compatible with the first respondent being an IPP. Penalties for failure to sell the firm capacity or rather for short supplies is relied upon. Payment of charges for supply of electricity was based on procedure in IPP projects. The tariff order of the commission for the years 2000, 2002 and 2003 shows that the first respondent was an IPP. Sharing of common infrastructure did not necessarily imply that the power plant of the first respondent was a CPP. There were other projects taking advantage of such infrastructure. It was intended only to optimise the project cost. FINDINGS

102Copy pinpoint102. It is not in dispute that it is with the Electricity Rules of 2005 C that the requirements of a captive generating plant were laid down. It is the admitted position that at the relevant time there was no definition of a CPP in existence. The requirements of a captive generating plant was, according to the first respondent, not available.

103Copy pinpoint103. It would appear that the private power policy of the GoI was D announced in the year 1991. GoI letter dated 09.10.1995 would show that there were a number of proposals through IPP route. It was found however that it would have a long gestation period. Captive power plants provided an alternative. GoI decided that captive power plants of industries could be allowed to sell the surplus power, if any, to the grid on a E remunerative tariff as per mutually agreed terms. This would add to the generating capacity in the country. There is mention of co-generation as also small power production. It was therefore suggested to all Chief Secretaries of the states that they may create an institutional mechanism which may allow captive power units an easy automatic entry into power sector by quickly clearing such applications by the state governments by giving them rational tariff for purchase of surplus power by the grid and the third-party access for direct sale of power to other industrial units. We may notice that this communication is after GoK order dated 07.03.1994 by which the first respondent was permitted to be set up. Moreover, what is contemplated under captive power plant was that it could sell surplus power, if any, to the grid as per mutually agreed terms. Therefore, in the case of the captive power plant, primarily, the industries could satisfy their power requirements from the captive units.

104Copy pinpoint104. On 01.03.1995 the KEB responding to the request from the Director of the CEA to clarify whether the generating plant set up by H

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A the first respondent was captive plant under Section 44 of the Supply Act, 1948 or a generating plant, stated that it was an independent generating plant. The copy of the approval granted by the GoK for setting up the generating plant was enclosed. This would take us to G.O. dated 07.03.1994 which we have already adverted to. What is stated therein is that the first respondent’s sister company namely Jindal Iron and Steel B Company was setting up a combined gas cycle plant of 300 MW x 150 MW within the site allotted for a steel plant for which GoK had already given approval. There is reference to the financial aspects. Thereafter, it is recited that the advantage of setting up the power plant at Bellary- Hospet was that the excess power generated will be fed to the KEB C grid and can sell to other industrial units in the area, besides generation of additional employment. The KEB was found seeking a detailed project report indicating the cost of the project inter alia. It is thereafter that the first respondent was permitted to set up the plant in two phases of 300 MW of 150 MW each. This was subject to approval of the GoI in respect of the foreign investment. It was also subject to obtaining statutory clearances under the relevant Acts. The first respondent was permitted to sell power directly to industrial units in the area at mutually negotiated rates again subject to approval of the state government. The first respondent had to sell the balance power to KEB at tariff to be determined as per norms dated 31.03.1992. We may get the prima facie impression that the said terms would appear to be in tune with the concept of a captive unit, as contemplated in GoI letter dated 09.10.1995.

105Copy pinpoint105. It would appear it is not in dispute that the capacity has been reduced from 300 MW to 260 MW. The circumstances in which it stood reduced is not borne out by any order produced before us. The next development in chronological order, we notice, is the Wheeling and Banking Agreement dated 23.01.1996. The agreement is entered into between the first respondent and the KEB. The agreement refers to the company or the first respondent as a generating company and that it proposed to set up a 2x120MW dual fire which is to be understood with reference to the statement that it is fired, namely, with corex gas with coal firing to supplement it. Next it is stated that the first respondent intended to sell the ‘majority’ of the power to dedicated or third-party exclusive customers as defined. Dedicated customers has been defined in the agreement as those consumers of power supplied solely by the first respondent through transmission lines set up by it and it was to H

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LTD. (EARLIER KNOWN AS JINDAL THERMAL POWER CO. LTD. & JINDAL TRACTABEL POWER CO. LTD.) & ORS. [K. M. JOSEPH, J.] include the sister concern, JVSL. Third party exclusive customer was A defined to mean the consumer who had contracted for its entire demand and energy requirements from the first respondent. However, the power was to be supplied through the KEB’s transmission system. It is as we have already noted provided in Clause 2.4 that ‘if at any stage’ the first respondent offered ‘excess’ firm capacity for sale to the board (KEB), B then, the Board ‘may purchase’ the same from the first respondent. Such purchase was to be based on agreement on price and other terms to be negotiated at the time of such sale. Therefore, it would appear that what was contemplated was the sale of the majority or most of the power generated to its dedicated customers which included the JVSL and to other third party exclusive customers. Clause 2.4 appears to C provide that if at any stage it was found that there was excess power which could be firmly offered to KEB, KEB may purchase such power. The order dated 30.01.1996 is not seen produced. It is one of the letters of the GoI which has been referred to by the High Court and the first respondent. D

106Copy pinpoint106. On 02.03.1996 GoK after referring to the G.O. dated 07.03.1994 and the request by the first respondent for support in various matters offered certain concessions. GoK gave its consent under Section 43A(1)(c) and paragraph-3.2 of the GoI Tariff Notification dated 13.03.1992 as amended for sale of power by the first respondent directly to any customer at rates to be mutually negotiated by the first respondent. E It is also provided that the consent was also to be deemed as previous sanction under Section 28 of the Indian Electricity Act, 1910. Still further exemption was granted under Section 3 of the Karnataka Tax on Consumption of Electricity Act, 1959 on the consumption of electricity generated by it for five years from the date on which the power plant of the first respondent went into commercial operation. Likewise, the consumer was exempted. Certain other concessions were promised.

107Copy pinpoint107. Section 43A(1)(c) of the Supply Act, 1948 provided inter alia that a generating company could enter into a contract for sale of electricity generated by it with any other person with the consent of the competent government or governments. The Order, thus, must be viewed in the said perspective. This is apart from it operating as consent for sale within the meaning of Section 28 of the Electricity Act, 1910.

108Copy pinpoint108. On 22.03.1996, we may notice that the ‘scheme’ for establishment of a 2x130 MW corex/ coal based thermal power station H

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A was accorded techno economic clearance by the CEA subject to certain conditions which are indicated therein.

109Copy pinpoint109. Next in chronological order is the communication dated 06.11.1996 issued by the GoI. The heading in fact of the said communication is promotion of co-generation power plants. In the said B communication after noticing the energy shortage and referring to letter dated 09.10.1995 it was indicated that by the subsequent communication dated 30th January, 1996 (a communication which we are not provided with) regarding clearance process of captive power that the captive power plants of any other persons including the juristic persons and excepting generating companies was not subject to Section 29(2) of the C Supply Act. It is further indicated that the Electricity Board [KEB] was to send to the Authority under Section 44(2)(A) if the capacity of a new generation station, inter alia, exceeded 25 MW. Thus, in terms of Section 44 of the Act captive power/ co-generation plants required the approval of the board only. The Board were to refer the proposal for consultation D with the CEA where the capacity exceeded 25 MW under Section 44 (2A). Thereafter, the order went on to deal with co-generational units which were understood as units which simultaneously produce two or more forms of energy.

110Copy pinpoint110. The last communication is dated 09.01.1997. Therein, E reference is made to the order dated 30th January, 1996 and that it was therein clarified that proposals for setting up captive power plants under Section 44 would not come under the purview of Sections 29 to 31 of the Supply Act, 1948, which related to the CEA’s detailed scrutiny and techno economic clearance. It was added that the intention was that in view of the large demand supply gap existing industries should be encouraged to set up their own captive power plants to add quick captive capacity in the electricity supply industry. The letter dated 9th January, 1997, further noticed that there were suggestions from some States that some of the industries found it difficult to set up power plants through the existing companies and they favoured setting up of power plants by an independent entity (IPP) with total dedication of power generated to the existing industry/group of industries but without any sale of power to the State Grid. In the letter dated 01.01.1997, it is further observed pertinently that however these would be generating companies by definition and reference is made to GoI instructions dated 18.01.1995, which required that selection of IPP be through competitive bidding by the government H

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LTD. (EARLIER KNOWN AS JINDAL THERMAL POWER CO. LTD. & JINDAL TRACTABEL POWER CO. LTD.) & ORS. [K. M. JOSEPH, J.] or electricity board. The industries preferred to have the choice of negotiations with parties on a bilateral basis instead of the IPP being selected through competitive bidding. GoI decided to facilitate setting up of ‘generating stations’ by ‘IPP’ exclusively for ‘the captive use’ of an industry or a group of industries without involving any sale to the State Grid. The selection of such IPP through competitive bidding was no longer required. Thus, letter dated 9th January, 1997, appears to indicate that IPP generating stations could be set up exclusively for the ‘captive use’ of the industry or a group of industries without any sale to the State Grid. Secondly, such IPPs could be selected without competitive bidding. We do not have the letter dated 18.01.1995, which is referred to in letter dated 9th January, 1997. We do not also have the order dated 21.12.2000 C which appears to have been relied upon by the Commission and which is relied upon by the appellant before us, as per which the first respondent availed concessions from payment of electricity taxes holding out to be a CPP. We further notice that the High Court in the impugned judgment does not appear to have dealt with order dated 21.12.2000. There is a D case for the appellant that when IPP desires to contract for power with the appellant on two-part tariff basis, KEB/ the appellant must be involved in every stage of project formation, finalisation of capital costs. According to appellant, KEB/ KPTCL would be involved during the discussions stage to accord techno economic clearance as well as for whole supply agreement to ensure the least cost and these formalities have not been complied with. In this case the High court has referred to the appellant (KEB) vide its letter dated 29th March, 1996, supporting the project cost and forwarding the same for approval to the GoI. It is also further stated that the appellant participated in discussion with the CEA for approval of the project and supported the transmission system. We are unable to locate the letter dated 29th March, 1996. No doubt, the appellant must be understood as its predecessor the KEB. But there is no communication dated 29th March, 1996 indicating that the KEB supported the project cost. It would appear that a copy of such a letter (29.03.1996) was annexed as Annexure 14A before the High Court. Further, in the appeal memorandum, in paragraph 9 thereof, it would appear that what was contended by the first respondent was that the appellant and GoK approved the project cost and DPR and letter dated 29.03.1996 was produced. Appellant is stated to have participated in the discussion before the CEA and the second respondent (GoK) actively supported the project by granting approval and various benefits. The High Court has apart H

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A from finding that the appellant participated also stated that appellant supported the transmission system as availed by all IPPs. Prima facie, we would think also that what was contemplated in the Wheeling and Banking Agreement dated 23.01.1996 was that, if there was any excess which meant after fulfilling its obligations to the dedicated and third- party customers, it would be offered to KEB. B

111Copy pinpoint111. The appellant has a case that what in ‘substance’ was agreed to be sold to the appellant was only surplus available power. The status of IPP being established also would not by itself be relevant in the determination of the cost, it is contended. We would think that the interest of justice require that taking note of also the fact that first respondent had allegedly specifically claiming to be a CPP availed benefits and this has also not been considered by the High Court, the matter must be reconsidered by the High Court. The findings therefore, that the first respondent was CPP will stand set aside and High Court will undertake a consideration of the matter based on a study of the documents and also taking note of the proceedings by which, the first respondent allegedly claimed as CPP and availed benefits. The High Court will also consider the argument of the appellant that even treating the first respondent as IPP, in the context of the contention of the appellant that the sale contemplated to the appellant was only of ‘surplus power’, only after the demand of the first two categories were fulfilled on the aspect of fixation of tariff.

112Copy pinpoint112. The upshot of the above discussion is that the appellant is entitled to succeed in the manner we shall hereinafter immediately indicate. The appeal is partly allowed. The finding that there was a concluded contract within the meaning of the proviso to Section 27(2) of the Act will stand set aside. The findings which have been rendered under point no. 4 about perversity, arbitrariness in the findings of the Commission are set aside. The finding relating to the first respondent being an IPP is also set aside. The matter will now stand remitted back to the High Court. It will proceed on the basis that there was no concluded contract within the meaning of the proviso to Section 27(2) of the Act. It will proceed, however, to deal with the appeal under Section 41 of the Act in regard to point no.3 and 4, namely, whether the findings of the Commission are such that they are required to be interfered under the jurisdiction available under Section 41 of the Act including the question whether the first respondent is a CPP or an IPP. H

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LTD. (EARLIER KNOWN AS JINDAL THERMAL POWER CO. LTD. & JINDAL TRACTABEL POWER CO. LTD.) & ORS. [K. M. JOSEPH, J.]

113Copy pinpoint113. We must also deal with the request made by the learned A Counsel for the appellant that as Rs.100 crores has been received by the first respondent on the strength of a bank guarantee based on the impugned judgment, under the interim Order passed by this Court, if the appeal is allowed, the first respondent is duty bound to pay the aforesaid amount to the appellant. This was countered by the first respondent by pointing out in the ‘unlikely event’ of the appeal being allowed only on the point that there was no concluded contract and if the other two aspects are to be reconsidered by the High Court, then the first respondent cannot till these matters are reconsidered be directed to repay the amount. It is also the contention of the first respondent that there will be undue enrichment as the appellant would have shifted the burden to the end customer.

114Copy pinpoint114. This line of argument is sought to be met by the learned counsel for the appellant by pointing out that the appellant is a public authority, and more importantly, the appellant being erroneously compelled to pay under the orders of the court, has witnessed a deprivation of valuable funds from the appellant, which would otherwise have been available to it. Furthermore, what is more important is, if the appellant succeeds in regard to the point canvassed, namely, that there was no concluded contract within the meaning of proviso to Section 27 of the Act and if the amount is ordered to be given to the appellant, then, it would have a bearing on the interest of the consumers. This is for the reason that in working out the rate to be charged from consumers, even now this amount if it is brought into the coffers of the appellant, it would result in a corresponding reduction in the burden which the consumer would have to bear. F

115Copy pinpoint115. We have considered this aspect of the matter. We are remitting the matter back after finding that the High Court was clearly in error in finding that there was a concluded contract. We have also interfered with the other findings. However, at the same time we may not overlook the fact that we are not allowing the appeal entirely. The validity and G correctness of the order of the Commission must be decided with reference to the boundaries of the jurisdiction of High Court under Section 41 in regard to the matter. We would at the same time find that the appellant has succeeded in a substantial manner. We would think that the equities must be balanced. H

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116Copy pinpoint116. We would think that the interest of justice would be met if the first respondent be directed to pay a sum of Rs.50 crores from out of Rs.100 crores which has been paid. The payment of the amount is to be made within a period of 8 weeks from today.

117Copy pinpoint117. Disbursement of further amounts as also the fate of the payment of Rs.50 crores by the first respondent will await the final decision of the High Court in regard to the determination for which we remit the matter.

118Copy pinpoint118. The appeal filed by Karnataka Power Transmission Corporation Limited is partly allowed and the impugned Judgment shall stand set aside. We find that there was no contract concluded within the meaning of Section 27(2) of the Act. We remand the case back to the High Court for reconsidering the points ‘3’ and ‘4’ formulated by the High Court. The first respondent shall pay to the appellant a sum of Rs.50 crores (fifty crores) within eight weeks. As regards further liability to pay, it will await and depend upon the decision of the High Court. So D also, the payment of Rs.50 crores (fifty crores) by the first respondent, under this Judgment, will be subject to the determination to be made by the High Court.

119Copy pinpoint119. The appeal filed by Karnataka Electricity Regulatory Commission will stand allowed to the extent that the remarks made against E it in the impugned judgment shall stand set aside as indicated hereinbefore. Parties will bear their respective costs.

Bibhuti Bhushan Bose Appeals disposed of. (Assisted by : Shashwat Jain, LCRA) F