The Supreme Court Monday asked the Appellate Tribunal for Electricity (APTEL) to defer the Feb 12 hearing on petitions by three power generation and transmission PSUs seeking payment of current dues by discoms BSES Rajdhani and BSES Yamuna for the year 2014 as directed by the court March 26 last year.
A bench of Justice Kurian Joseph and Justice N.V. Ramana asked the APTEL not to proceed with the hearing as BSES Rajdhani and BSES Yamuna's counsel told the court that the power generation and transmission companies could not raise the issue before the tribunal as it was pending before the apex court and was listed for hearing Feb 18.
The companies involved in the dispute with BSES Rajdhani and BSES Yamuna are Indraprastha Power Generation Company Limited, Pragati Power Company Limited and Delhi Transco Limited.
As the court enquired how could the companies move the APTEL when the matter was pending before it, Additional Solicitor General (ASG) Tushar Mehta said the companies too have filed a contempt plea before the apex court for non-compliance of its March 26, 2014 order on payment of dues.
The Reliance-owned discoms counsel told the court that the companies could not take recourse to section 142 of the Electricity Act, 2003, seeking to enforce the March 26 order by the APTEL and they have already filed a contempt plea before the apex court on the same issue.
The court by its March 26 order had said: "In the meantime, the distribution companies will continue to pay the current payments to the generating and transmission companies with effect from March 1, 2014 which will relate to the billing period from Jan 1, 2014."
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At the outset of the hearing, counsel Kapil Sibal told the court that the matter before it concerned the subsidies to be paid by the Delhi government to the distribution companies and could not be mixed up with the issue of tariff structure pending before another bench of the court.
"This is a matter of subsidy, nothing to do with outstanding dues," he said.
The matter of tariff structure and the outstanding dues is pending before a bench headed by Justice J. Chelameswar.
Counsel C.S. Vaidyanathan, also appearing for the Reliance discoms, told the court that Rs.20,000 crore was owed to them by the government, and being treated as a regulatory asset. If this was paid, then there would not be even current dues, he argued.
Mehta told the court that by its March 26 order, the discoms were asked to pay current dues.
"They did not pay their current dues. In October 2014, they moved the court seeking to pay 70 percent of the current dues. Even that has not been paid. We have filed a contempt petition," he said.
There are three discoms supplying power in Delhi -- the third is owned by Tata, Mehta told the court.
"They (Tata) are paying as per the existing structure of tariff. May be there is some delay in payment of current dues here and there by them."
As Sibal objected to Mehta going into the merit of the case, Vaidyanathan said there was no comparison between the customer base of the Reliance discoms and that of the Tata discom.
Vaidyanathan told the court that on one hand, the power generation and transmission companies were seeking enforcement of the order for payment of their current dues, on the other hand, the BSES companies were not getting their outstanding and subsidies amount.
Giving an example, Sibal said: "Out of Rs.100, you (government) are subsidising 50 percent and that 50 percent is not coming."
At this, the court observed: "You don't even pay 70 percent."
"Why did you undertake (to pay the current dues)", the court asked as Sibal said that they could not do so.