A full bench of the AP High Court comprising three judges will hear an appeal by the Central Discom that there is no delay in the imposition of fuel surcharge adjustment for the years 2008-09 and 2009-10. The fuel charge for these two years were imposed ea-rlier this year. (This is different from the FSA impos-ed on Sunday for the years 2010-11 and 2011-12, which works out to about 75 paise per unit.) A single judge had earlier directed the recovery of FSA for 2009-2010 but not until disposal of special leave petitions on the matter pending before the Supreme Court.

The Central Discom challenged the judge’s order and, on Wednesday, a division bench comprising acting Chief Justice P.C. Ghose and Justice Vilas V. Afzulpurkar of the AP High Court decided to refer the appeal to a full bench. The bench directed the registry to place the matter before the acting Chief Justice to constitute a full bench to deal with the case.

The power utilities conte-nd there is no time limit set in the rules for charging FSA. However, the discoms have secured approval from the AP Electricity Regulat-ory Commission for the ye-ars 2010-11 and 2011-12 well in time. Sources said they are securing approval for the FSA for the first quarter of 2012-13 as well. The discoms had maintained that the delay in filing FSA claims for 2008-09 and 2009-10 was not their fault as the state had compelled them to delay the process through internal order. They claim that 2008-09 was an election year and that the regulatory commission took a long time to take a decision. This delay imp-acted the FSA for 2009-10.

HC to decide if time limit on FSA breached
A full bench of the AP High Court comprising three judges will decide whether the time limit prescribed under Regulation 45-B(4) of the Andhra Pradesh Electricity Regulatory Commission (Business Rules of the Commission) Regulations 1999 is ultra vires the provisions of Sections 56, 45, 61 and 62 of the Electricity Act, 2003. It will also decide whether the regulatory commission is empowered to condone the delay under Regulation 55 read with Regulation 59 of the Regulations 1999 if the claims preferred by the discoms for determination of FSA are beyond the time limit prescribed by Regulation 45-B(4).

The single judge had earlier directed that recovery of FSA for the financial year 2009-2010 shall not be enforced against any of the consumers of four power distribution companies till disposal of the special leave petitions (SLP) pending before the SC and enforceability or otherwise of the said orders would depend on the result of the SLPs.

The power distribution companies moved the SC after a division bench held in Jairaj Ispat Ltd vs AP Regulatory Commission that the time limit prescribed under Regulation 45-B (4) for making application within the time stipulated was mandatory and the regulatory commission has no power to condone the delay and undo irreversible conclusions of forfeiture of FSA claimed by discoms for such a period. Even as the SLPs were still pending, M/s Thermal Systems (Hyderabad) Pvt Ltd and others moved for recovery of FSA from them by the discoms for the year 2009-2010. The single judge granted the order in their favour. Then the present appeal was raised.

The bench said, “We have closely examined the decision of the division bench in Jairaj Ispat Ltd’s case. We, however, find that neither of the provisions of Sections 56, 45, 61 and 62 of the Electricity Act were brought to the notice of the bench nor the power of the Regulatory Commission under Regulation 55 was brought to the notice of it.” The bench felt that “it requires that if this bench is unable to subscribe to the views expressed in the judgment, the appropriate course would be to refer this appeal for consideration before a full bench so as to seek an authoritative pronouncement on the questions involved.”