CASE NO. 4 of 1997
T. R. - 97 - 007

14.02.97 A letter dated 05.02.97 from Orissa Consumar's Association has been placed before the commission.

The said letter is with reference to a Public Notice issued by the OERC and published in newspapers on 2nd February ,1997 inviting objection to the proposal for tariff for the year 1997-98 filed by Gridco before the commission. The Public Notice has called for objections to be filed by 18.02.97 in person or through registered post after perusing the details of the tariff proposal in the office of Gridco at Bhubaneswar.

The Commission has noted that the language used and the insinuation made in the letter are not proper. However this aspect of the letter is being ignored for the purpose of order as it appears that the applicant has not briefed himself with the laws and procedure with regard to the composition and functioning of the Orissa Electricity Regulatory Commission. The commission has been vasted with the powers of a civil court under the code of civil procedure 1908 with regard to enquiry or proceedings under the Orissa Electricity Reform Act, 1995. Hence the Commission is obliged by law to take up procedure accordingly.

It is neither prescribed by law nor it is feasible for the Commission dealing with the matter of public utility to issue notices either individually or to representatives of interest groups and therefore in accordance with the prescribed procedure, a public notice has been given with reasonable time to enable genuinely interested parties to take note of the details and to file objections. The procedure adopted with regard to public utility matters is new and possibly therefore, there is some misapprehension and inadequate appreciation of the legal issues as well as procedure adopted. the commission is bound by the statute and regulations to proceed in the time bound manner so as to ensure that the proceeding for the electricity tariff for the year 1997-98 is completed and notified before the end of the financial year. Keeping this in view, the Commission has carefully charted out its proceedings making provision for resonable opportunity to be given to the interest groups and ensuring open hearing for the sake of transparency in the decision making .The Commission has also noted that a number of genuinely interested groups and individual have already collected information and have submitted/are submitting their objections indicating their objection and wishing to be heard in person on the appointed day of hearing,. The commission has carefully considered all aspects and does not find it possible to grant any time in the matter.

Case No.4 of 1997

T. R.-97-007

Order No. 007 dated 21st February, 1997

21.02.97 At the initial stage of hearing today with reference to the tariff application, preliminary objections were raised by three objectors who expressed the desire that the formal order of the Commission on these issues should be delivered before the Commission proceeds with the hearing on the merits of the tariff application. The Commission heard Mr. K.N. Jena, speaking on behalf of Orissa Consumers Association, Sri L. Pangari representative of IPI Steel Limited and Sri Rajat Kumar Rath, Advocate representing Orissa Sponge Iron Ltd. These objections had also been indicated in the written submissions submitted in response to the public notice of the hearing. These have, therefore, received the attention of the Commission. Further, the arguments and objections advanced before us have been heard. These have been carefully considered. The issues raised and orders of the Commission on them are as follows.

2. The first objection is that Commission has not been properly constituted. In support of this objection, it was stated that the Commission is presently composed of two members and is without a Chairman and therefore, it is not a full-fledged Commission. It was argued that in the absence of the Chairman, the Commission was not entitled to conduct its proceedings.

The Commission is unable to find any validity in this objection in view of clear and specific provisions of the law at sub-sections (4) and (5) of Section 3 which are as under:

Sub-section (4) of Section 3: When the Chairman of the Commission is unable to discharge the functions owing to absence, illness or any other cause, the senior most member of the Commission shall discharge the functions of the Chairman, until the day on which the Chairman assumes the charge of his functions.

Sub-section (5) of Section 3 : No act or proceedings of the Commission shall be invalid by reason only of the existence of any vacancy among its members or any defect in the constitution thereof.

It is also noted by the Commission that sub-section (4) of Section 9 stipulates that quorum for the meeting of the Commission shall be two. In view of these provisions, the Commission considers that there is no bar for holding proceedings of the Commission with two members including the senior member Sri A.R. Mohanty acting as Chairman and discharging the functions as the Chairman under sub-sections (3) and (4) of Section 3 of the OER Act, 1995.

3. The second objection was that sufficient notice has not been given to the affected parties and therefore, the proceedings should not be continued. In this connection, it was argued that giving only seven days time to peruse the papers and making it obligatory to come to Gridco's office for perusal of the application was a hindrance for the affected parties to get sufficient notice. It was also argued that all papers, documents, statistics and references in respect of the tariff proposal were not made available and therefore the affected parties did not get sufficient opportunity. Two weeks time for submitting objections was also stated to be not sufficient.

The Commission has carefully considered all aspects regarding granting of sufficient opportunity for all the affected parties. The Commission is bound by the statute to confirm to certain time limit. In this particular tariff proceeding for the Financial Year 1997-98 all the legal requirements, proper scrutiny and analysis have to be completed and decision of the Commission has to be conveyed to the Gridco well in time, so as to enable it to give a public notice of tariff seven days before the end of current Financial Year. Keeping these statutory requirements and other activities of the Commission in view, total time of sixteen days allowed for perusal and submission of the Objection is considered adequate.

4. The third preliminary objection is with regard to infirmity of the proceeding due to non-notification of the Regulation for conduct of proceeding and for laying down the parameters for tariff proposal. In this connection, it was claimed that the Commission has not discharged its function in framing Regulations for conduct of its proceedings and discharge of its functions as required by sub-section (2) of Section 9 read with Section 54 of the OER Act, 1995. It was also claimed that the tariff proceeding is illegal because the Commission has not yet prescribed the terms and conditions for determination of the licensee's revenues and tariff as required under sub-section (2) of Section 26 of the OER Act, 1995.

The Commission finds no validity in this objection in view of the fact that the Orissa Electricity Regulatory Commission (Conduct of Business) Regulation, 1996 has been framed, notified on 28th November, 1996 and has been published in the Orissa Gazette No. 1413 dated December 30, 1996. The said Regulation includes the methodology of tariff proposal.

5. The next objection relates to the locus standi of Gridco and the validity of its application for tariff. On the basis of sub-section (4) of Section 14 of the OER Act, 1995, the Gridco had been issued a provisional license by the Govt. of Orissa vide letter dated 31.03.96. For all purposes, therefore, Gridco is a licensee under the OER Act, 1995. Further, the Commission observes that it is not only that Gridco has to be considered a licensee but, Gridco is bound by law under Section 26 (4) to submit details of calculation for the ensuing Financial Year regarding revenue and tariff. This provision of the law enables Gridco to submit the tariff proposal for 1997-98 and obliges the Commission to consider the same for taking its decision.

6. Another objection raised was that Gridco is not entitled to submit proposal of tariff within one year.

The Commission has noted that the present tariff proposal relates to Financial Year 1997-98 and therefore, the proposal is in order. The provisions of law refer to Financial Year and does not refer to a period of twelve months.

7. Objections were raised with regard to consultations with the Commission Advisory Committee on tariff matters.

The Commission Advisory Committee has been duly constituted as required under Section 32 of the OER Act, 1995 and the Commission has already initiated the process of consultation with the Commission Advisory Committee.

8. Another issue raised by the objectors is with regard to the status of the Commission. It was stated that the Commission was a Court in view of the provisions of OER Act, 1995 and therefore the Commission has to observe all the formalities and obliged to grant unlimited time to objectors for presenting the facts before it. In this connection, it was also claimed that copy of Gridco's application and all details should have been served on the parties and in this view of procedure, the objector could not be asked to peruse files and collect the information from the GRIDCO.

The Commission cannot agree with the above interpretation of the law. Under Section 10 (1) of the Act, the Commission has been given powers of a Civil Court under the code of Civil Procedure, 1908 only with regard to six specified areas. Similarly under the provision of Section 52, the proceeding of the Commission shall be deemed to be judicial proceeding only for specified provisions of the Code of Criminal Procedure. The Commission has no doubt in its mind that it is a quasi-judicial body which is obliged to observe the procedure and formalities of legal procedure so as to the afford reasonable opportunity and to make final finding of facts and at the same time it has the authority to lay down its own procedure so as to avoid needless legal trappings. The legislature in its wisdom has constituted a Commission which is designed to have certain trapping of the Court and yet the flexibility of a quasi-judicial body so that it can get into all relevant issues and take a decision on legal, technical and accounting issues in an objective manner without delay but keeping in mind the interest of the Consumers, the Electricity Industry and the overall interest of the State. The Commission has accordingly prescribed its own procedure for which it has been authorised by the Act to do so. The essential distinction between a Civil Court as a part of regular hierarchy of judiciary and quasi-judicial tribunal entrusted with adjudicatory function outside that hierarchy emphasised in a number of pronouncement of the apex court has not to be lost sight of.

9. Objection has been raised with regard to adequacy of information supplied. It has been claimed by learned objector Sri K.N. Jena that the proceeding should not be continued without supplying the documents listed by him.

The Commission has gone through the elaborate list and finds that it is neither practicable nor essential for GRIDCO to make all the listed documents available to the Objectors. The Commission will go through all relevant documents and accounts as considered necessary. The Commission is aware of its responsibility in this regard. The objection cannot be admitted.

10. The Commission, therefore, does not admit any of the above preliminary objections raised by the objectors the Commission orders that the proceeding should continue.

Typed to my dictation and corrected by me.

(D.K. ROY)
MEMBER

I agree

(A.R.MOHANTY)
MEMBER

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