South East U.P. Power Transmission Company Limited vs Uttar Pradesh Electricity Regulatory Commission & Ors on 6 April 2026

J U D G M E N T

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The Appellant, a transmission licensee in the State of Uttar Pradesh has assailed the order dated 13th December, 2018 passed by 1st Respondent – Uttar Pradesh Electricity Regulatory Commission (hereinafter referred to as “the Commission”) in Petition No. 1328 of 2018 filed by the Appellant seeking directions to 2nd Respondent – Uttar Pradesh Power Transmission Corporation Ltd. (in short UPPTCL/Uttar Pradesh Power Corporation Ltd. in short UPPCL) to release tariff payments to the Appellant with regards to the 765KV S/C Mainpuri Bara Line with 765 KV/400KV AIS at Mainpuri and associated Schemes/Works (hereinafter referred to as “Project”) with effect from 27th July, 2017.

2. The Appellant is a transmission service provider and has been developing the above noted project on Build, Own, Operate, Maintain and Transport (BOOT) basis. It has entered into a Transmission Service Agreement (TSA) with the Long Term Transmission Customers (LTTCs) on 20th January, 2012. The Commission granted transmission license to the Appellant on 29th April, 2013.

3. The Appellant was required to develop the project within 30 months from the award of the work which expired on 5th January, 2014. The delay

in commissioning the project was caused by reasons beyond reasonable control of the Appellant as well as Respondent Nos. 3 to 6 and it was mutually decided to revise the Scheduled Commissioning Operation Date by execution of a supplementary Transmission Service Agreement (TSA).

4. The Appellant had approached the Commission on 27th April, 2016 with Petition No. 1116 of 2016 seeking inter alia, approval, adoption and execution of supplementary TSA. In pursuance to order dated 29th May, 2018 passed in the said petition, a supplementary TSA was executed between the parties on 9th June, 2018.

5. Thereafter, since UPPTCL was not making payments to the Appellant towards tariff of the project in question, the Appellant again approached the Commission by way of Petition No. 1328 of 2018 inter alia seeking directions to UPPTCL to release payments due since July, 2017 i.e. when the entire Group-I elements had been commissioned in terms of TSA dated 9th June, 2018.

6. It appears that upon urgency being shown in the matter by the Appellant, the Commission took up the petition for hearing on 12th July, 2018 and upon hearing all the parties passed an interim order to the following effect :-

“6. In view of above observations of the Commission it is directed that instead of 23.03.2018 the group-1 shall be treated as commissioned w.e.f. 27.10.2017 and the transmission charges as per the provisions of original TSA and the Supplementary TSA will become due from 27.10.2017. The UPPTCL/UPPCL are directed to make the payment accordingly without any delay so that the petitioner and their lenders do not suffer unnecessarily. These orders are interim orders and shall apply till the final disposal of the petition. The Respondents are directed to file their counter affidavit within 2 weeks.”

7. Record would show that thereafter an additional statement of facts was filed by the Appellant in which prayer was made for revision of effective date of payment from 27th October, 2017 (as directed vide interim order 12th July, 2018) to 27th July, 2017. Accordingly, the Commission heard the matter again on 1st November, 2018 and passed order dated 13th December, 2018 which has been impugned in this appeal. We find it pertinent to extract the said impugned order dated 13th December, 2018 hereunder :-

ORDER

Hearing on 01.11.2018)

“In this petition the petitioner had prayed for directions to UPPTCL to release payment of their bills from July 2017. After hearing both the parties, the Commission passed an order on 12.07.2018. The Commission has directed UPPTCL, for payment of tariff for Group-1 w.e.f. 27.10.2017 instead of 23.03.18 as requested by UPPTCL.

2. After the orders of the Commission the Petitioner filed additional statement of facts and prayed for revision of effective date for payment from 27.10.17 to 27.7.17. The Petitioner has only reiterated the old facts stating the date of Commissioning of different works included in Group-1. The Commission heard the matter on 01.11.2018. Mr Alfanso, Director, SEUPPTCL argued that all the elements of Group-1 had been commissioned by 27.7.2017, therefore tariff payable for Group-1 should be allowed from 27.7.2018. He also pleaded that due to non admissibility of tariff during the period 27.7.17 to 27.10.17 they are not able to service their debts and their account is likely to come under NPA.

3. The Commission noted that there is a provision of deferment of interconnection under Clause 6.1.2 of the TSA which allows deferment at one time not exceeding 15 days of the notice by the TSP but such deferment on one or more occasion cannot exceed for more than an aggregate period of 90 days. In this case the interconnection with Meja TPS, it was held up due to reasons not attributable to TSP and also not to UPPTCL since the lines cannot be used till March 2018 but as per the TSA, UPPTCL can save its liability only up to a period of 90 days. In this case the Commission has decided the effective date of payment on the basis of provisions in the TSA and has considered the arguments extended by the Petitioner before passing the order dated 12.7.18. The Commission does not find any reason to change the effective date or payment to 27.7.2017.

4. The additional submissions are rejected and the order dated 12.07.2018 will continue.”

8. The Appellant would contend that the Commission has erred in invoking suo-moto Article 6.1.2 of the TSA to defer the commissioning

date of the project in question to 27th October, 2017 and consequentially the Commercial Operation Date of the project as well.

9. On behalf of Respondent Nos. 2 & 8, it is contended that the instant appeal has been filed against the order dated 13th December, 2018 of the Commission vide which the Commission refused to review/modify its earlier interim order dated 12th July, 2018 and, therefore, the same is not maintainable at all. It is submitted that the Appellant ought to have assailed the main interim order dated 12th July, 2018 and that having not been done, instant appeal is not maintainable. It is also contended that having chosen not to assail the interim order dated 12th July, 2018 before this Tribunal, it was incumbent upon the Appellant to await the final decision of the Commission on the petition and to assail the final decision before this Tribunal by way of an appeal, if so advised.

10. It is contended on behalf of the Appellant on this aspect that impugned order dated 13th December, 2018 of the Commission is the final order as no further proceedings were conducted by the Commission thereafter in petition and the petition was disposed off. It is submitted that the said order dated 13th December, 2018, being the final order of the Commission on the petition, is assailable by way of an appeal before this Tribunal.

11. We have heard Learned Senior Counsel appearing on behalf of the Appellant, Learned Senior Counsel appearing for Respondent No. 8 and Learned Counsels appearing for Respondent Nos. 1 & 2.

12. We have also perused the written submissions filed on behalf of the Learned Counsels.

13. At the outset, we may note that having regard to the controversy raised by the Learned Counsels during course of hearing of the appeal as to whether the impugned order dated 13th December, 2018 of the Commission was an interlocutory order or a final order disposing off the petition, we had directed the Commission to file an affidavit in this regard. An affidavit dated 4th August, 2025 has been filed by the Commission in pursuance to these directions issued by us wherein it has been stated that as per the record maintained in the office of the Commission, the status of the Petition No. 1328 of 2018 is marked as “Disposed”.

14. We are unable to accept the statement of the Commission made in the above noted affidavit that vide order dated 13th December, 2018 the Petition No. 1328 of 2018 was disposed off. It is true that after passing the order dated 13th December, 2018, no further hearing was conducted by the Commission in the said petition. However, that alone does not make the order dated 13th December, 2018 a final order on the petition thereby

disposing it off. In order to ascertain whether an order passed by the Commission is an interlocutory order or a final order, the tone and tenor of the order as well as the circumstances in which the order is passed, are to be seen and analyzed.

15. We have already reproduced the entire order dated 13th December, 2018 hereinabove. It appears that after interim order dated 12th July, 2018 was passed by the Commission thereby directing that the date of commissioning of entire Group-I elements of the project would be considered as 27th October, 2017 and UPPTCL/UPPCL is liable to pay transmission charges from the said date, an additional statement of facts was filed by the Appellant wherein prayer was made for revision of effective date of payment of transmission charges from 27th October, 2017 to 27th July, 2017. It is this additional statement of facts which was taken up for hearing by the Commission on 1st November, 2018 and passed the impugned order dated 13th December, 2018, thereby rejecting the prayer of the Appellant. The said order of the Commission would patently appear to be an unusual order. The Commission proceeded to determine whether the interim order dated 12th July, 2018 ought to be reviewed or modified in the absence of any specific application in this regard from the Appellant. The right course to be followed by the Commission in these circumstances

would have been to take the additional statement of facts on record, call for response to the same on behalf of respondents and then to decide the petition finally. The Commission has chosen absolutely unusual course, unknown to law, in treating additional statement of facts filed by the Appellant as an application for review/modification of order dated 12th July, 2018 which was not permissible.

16. Having regard to these circumstances in which the Commission passed the impugned order dated 13th December, 2018 and the language used therein one cannot by any stretch of imagination, say that it is a final order disposing off the petition. Manifestly, in this order, the Commission was dealing with only additional statement of facts filed by the Appellant wherein prayer had been made for modification of the order dated 12th July, 2018 by holding the effective date of payment of transmission charges by UPPTCL/UPPCL as 27th July, 2017. It is for this reason that in the concluding paragraph No. 4 of the order, the Commission has held that the “additional submissions are rejected and the order dated 12th July, 2018 will continue”. It is evident that the Commission has not taken up the petition for final disposal and it was only dealing with the additional statement of facts filed by the Appellant. The language of the order itself, particularly used in concluding paragraph No. 4 of the order, would clearly

indicate that something more needed to be done in the petition and further proceedings were to be conducted therein. It is amply clear that the said order dated 13th December, 2018 is only an interlocutory order passed on the additional statement of facts filed by the Appellant and which cannot be treated as a final order on the petition merely for the reasons that petition was never taken up for disposal thereafter and the status of the petition in the records of the Commission has been shown as “Disposed”.

17. Coming to the aspect of maintainability of the appeal as having been filed against the order dated 13th December, 2018 of the Commission. As already noted hereinabove, in the said order, the Commission was only dealing with the request of the Appellant to review/modify interim order dated 12th July, 2018. Since, the said request of the Appellant for review/modification of the interim order dated 12th July, 2018 stood rejected, the order is clearly not appealable in view of the provisions of Order 47 Rules 7 of the Code of Civil Procedure, 1908. It is elementary that an order rejecting the prayer for review/modification of an earlier order is not appealable at all.

18. Further, even if it is assumed for the sake of arguments that we are convinced by the grounds taken in the instant appeal by the Appellant and set aside the order dated 13th December, 2018, in that case also, the

interim order dated 12th July, 2018 would continue to remain in force. Therefore, it was incumbent upon the Appellant to assail the said interim order dated 12th July, 2018 and not the subsequent order dated 13th December, 2018 vide which its request to review/modify order dated 12th July, 2018 was rejected.

Conclusion :

19. Having regard to the above noted facts and circumstances of the case, we are of the considered opinion that the instant appeal is not maintainable. The same stands dismissed as such. However, we hasten to add that the Commission has erroneously shown and treated the Appellant’s petition No. 1328 of 2018 as “Disposed” in its records whereas it had never been taken up for final disposal. Accordingly, we direct the Commission to take up the petition for final disposal forthwith and pass a final order after affording the parties a reasonable opportunity of hearing. Since the petition has remained on the docket of the Commission since the year 2018 without being finally disposal off, we further direct the Commission to pass a final order within two months from the date of this judgement.

20. We make it clear that we have not expressed any opinion on the merits of the rival contentions of the parties in the appeal and leave those

to be decided by the Commission upon hearing the parties. The parties are at liberty to approach this Tribunal again by way of an appeal if feeling aggrieved by the final order to be passed by the Commission.

21. The appeal stands dismissed accordingly. Pronounced in the open court on this 6th day of April, 2026.

(Virender Bhat)

(Seema Gupta)

Judicial Member

Officiating Chairperson

✓ REPORTABLE / NON REPORTABLE

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