ANDHRA
PRADESH ELECTRICITY REGULATORY COMMISSION
Hyderabad
Dated: 01-04-2006
Present
Sri K. Swaminathan,
Chairman
Sri. K.Sreerama Murthy, Member
Sri Surinder Pal, Member
O. P. No. 9 of 2006
Between
M/s
Hyderabad Chemical Products Limited,
#
A-24/25, APIE, Balanagar, Hyderabad.
rep.
by its Managing Director.
… Petitioner
and
Central Power Distribution Company of A.P. Ltd., ... Respondent
O. P. No. 10 of 2006
Between
M/s
Hyderabad Chemical Limited,
(formerly
Hyderabad Chemical Supplies Limited)
Bank
Street, Hyderabad.
rep.
by its Managing Director. ... Petitioner
and
M/s.
A.P. Central Power Distribution Co. LTD.,
3rd
Floor, Singareni Bhavan, Red Hills, Hyderabad,
rep. by its Chairman &
Managing Director ... Respondent
These
petitions coming on for hearing on 25.02.2006 and 18.03.2006 in the presence of
Sri C. Kodanda Ram, Advocate, for the petitioners in both the cases and Sri P.
Shiva Rao, Advocate, for the respondent in both the cases and having stood over
for consideration to this day, the Commission delivered the following common:
O
R D E R
1. The
petitioner in O.P.No.9/2006, which set up a 0.75 MW wind-based power project at
Kadavakallu in Anantpur district, is a wholly owned subsidiary of Hyderabad
Chemical Supplies Limited (for short, ‘HCSL’).
The said HCSL which also set up a 3.75 MW wind power project at the same
location, subsequently changed its name to Hyderabad Chemical Limited, the
petitioner in O.P.No.10
of 2005.
2. Since both these petitions are filed
based on the same set of facts, with similar prayer, they are clubbed and
decided by this common order. In the said petitions, it is prayed:
(i) to direct the respondent to purchase
electricity from the petitioners as obligated u/s 86(1)(e) of the Electricity
Act, 2003 and in terms of the orders passed by the Commission in O.P.No.9 of
2005 dated 27.09.2005 and R.P.No.84 of 2003 dated 20.03.2004; and
(ii) to direct the respondent to pay the
petitioners for the power pumped into the
grid from the petitioners’ generating stations with effect from
31.03.2005 and pass such other order or orders as this Commission deems fit and
proper in the interest of justice.
3. In
both the petitions, it is further prayed that the Commission may also direct
the respondent to pay the petitioners herein for the power pumped into grid
from the generating stations of the petitioners @ Rs.2.70 per unit pending
disposal of the petitions. However, as
the petitions are being disposed of finally, there is no necessity to pass
interim order in either of the cases.
4. The
following are the similar averments made in both the petitions:
(i) Both
the petitioners are involved in the business of manufacture of pesticides. Encouraged by the Non-Conventional Energy
(for short, ‘NCE’) policies of the Government of India (for short, ‘GoI’), the
Government of Andhra Pradesh (for short, ‘GoAP’) and its nodal agencies and the
tariff policy announced by the Commission, both the petitioners set up wind
power projects of different capacities, at Kadavakallu village in Anantapur
district for their respective captive consumption as well as for sale of power
to APTRANSCO, after obtaining necessary sanctions from Non Conventional Energy
Development of Corporation of Andhra Pradesh Limited (for short,
‘NEDCAP’).
(ii) Recognising
the need to bridge the energy deficit with environment- friendly energy
sources, GoAP announced a number of initiatives to develop NCE projects in the
State. G.O.Ms.No.93 dated 18.11.1997, issued by it, allowed uniform incentives
to all projects based on renewable sources of energy. By G.O.Ms.No.112 dated 22.12.1998, the GoAP made certain
amendments and encouraged by such various promotional incentives, the
petitioners made substantial investments to establish their respective
generating plants.
(iii) The
Commission examined the issue of continuance of incentives, initiated suo-motu
proceedings in O.P.No.1075 of 2000 and passed an order on 20.06.2001. HCSL was
arraigned as one of the parties to the above-said proceedings and was totally
governed by the provisions of the said order on applicability of tariff for
sale to respondent, with a bar on third party sales. As per the above order, a
review of the provisions had to be undertaken by the Commission and in
pursuance of the same, APTRANSCO submitted proposal before the Commission along
with a proposal to buy power from the wind energy projects, etc. After
conducting public hearings, order dated 20.3.2004 came to be passed by the
Commission in the suo-motu Review Petition No. 84/2003 in
O.P.No.1075/2000. The said order came to be accepted by APTRANSCO, as it did
not file any review or appeal against the same.
(iii) Placing
complete reliance on the said order and in pursuance of the sanctions,
permissions and approvals, the petitioners decided to set up wind power
projects and made substantial investments for procurement of land,
infrastructure development and all other project-related activities were
undertaken.
(iv) Before
the evacuation scheme proposals of the petitioners were considered, the Indian
Wind Power Association sought clarification on the Commission’s Tariff Order
dated 20.03.2004 with respect to the projects to be commissioned during
01.04.2004 to 31.03.2009 and continuation of compulsory NCE procurement
obligation. In response, the Commission through its letter dated 29.10.2004
stated that the tariff fixed by it in its order dated 20.03.2004 is applicable
for sale of power to APTRANSCO/DISCOMs by all existing as well as new projects
and that compulsory NCE procurement obligation of licensee would however, be
also subject to the extent of percentage of electricity to be purchased from
NCE sources to be fixed by the Commission u/s 86(1)(e) of the Electricity Act,
2003.
(v) On 11.11.2004 and on 24.11.2004 letters
were written by HCSL to APTRANSCO expressing intention to sell the power to be
generated by the petitioners and requested APTRANSCO to enter into power
purchase agreement(s) (in short, ‘PPA’).
Subsequently, several letters
were also written by HCSL, repeatedly requesting APTRANSCO to make evacuation
arrangement and also to sign the PPAs.
In response, APTRANSCO wrote a letter dated 18.01.2005 stating that the
projects may opt for third party sales.
On 20.01.2005, HCSL again wrote
APTRANSCO stating that the petitioners
are only interested in signing PPAs and do not want to avail of Open
Access. Thereafter, HCSL wrote several
letters to APTRANSCO stating that the power to be generated by the petitioners
be evacuated through a common feeder, stating further that they (the
petitioners) agree to lay feeder at their own cost from the project sites for
evacuating the total capacity and have them terminated through a bay at 132/33
KV at Komatikuntla sub-station. That
apart, the petitioners have been requesting APTRANSCO to enter into PPAs or
Wheeling-cum-banking Agreement, so that power generated would either be sold to
APTRANSCO or till such time it is signed the power is banked with
APTRANSCO. The petitioners were granted
evacuation arrangement on 11.03.2005 and in pursuance of which the petitioners
also paid supervision charges vide letter dated 16.03.2005.
(vi) By
letter 29.03.2005, HCSL also requested
APTRANSCO to energize the projects through the existing Bay at 133/33 kV
Komatikuntla Sub-station, for testing
and commencing the projects. On 07.05.2005, NEDCAP also issued separate “Wind
Farm Commissioning Certificate” to each of the petitioners.
(vii) While
advising the petitioners to enter into Open Access and expressing its inability
to execute PPAs, APTRANSCO executed PPAs with several of NCE project
developers, including NEDCAP for its 2.5 MW project at Narasimha Konda.
Further, KCP Sugar and Industries Limited and RDF Power Projects have been
allowed to execute PPAs with APTRANSCO on 15.12.2004 and 14.03.2005, respectively
(viii) Thereafter,
HCSL wrote another letter dated 18.10.2005 to the respondent stating that in
view of Third Transfer Scheme, projects of the petitioners fall within the
jurisdiction of the respondent and requesting the respondent to enter into PPAs
and also to make payments for the power so far supplied by the petitioners. For
the reasons best known to APTRANSCO, it had consistently followed hostile
discrimination against the petitioners in particular and Wind Energy developers
in general.
(ix) By
the order dated 27.09.2005 in O.P.No. 9 of 2005, the Commission specified that
every person to whom the order applies, shall purchase not less than 5% of its
consumption of energy from NCE sources and one half of 1% of the quantum
specified above, shall be kept reserved by the distribution licensees for
procurement of wind based energy and shall be diverted, if necessary, to other
NCE sources only on temporary basis. By virtue of Third Transfer Scheme
notified by GoAP, vide G.O.Ms No. 58, Energy (Power-III) dated 07.06.2005, the
rights, obligations, agreements and contracts relating to procurement and bulk
supply of electricity or trading of electricity are now vested with
Distribution Companies and the petitioners’ projects fell under the
jurisdiction of the respondent herein.
(x) The
petitioners invested substantial sums of money in setting up of wind energy
projects after borrowing it from the banks and financial institutions and have
made infrastructure additions in one of the most underdeveloped parts of the
State. The petitioners are under
obligation to service the loans, but their projects are not generating any cash
flows. If these projects which are already commissioned and completed in all
respects are rendered futile, a great injustice will be caused and that
petitioners will be put to irreparable loss. Hence, these petitions.
5. The
respondent filed separate counter affidavits in both the petitions. The identical replies submitted by the
respondent are as under:
(i). The
petitions are not maintainable as they do not indicate provisions of the
Electricity Act, 2003, under which they are filed. The petitions purported to be filed u/s 30 of the Andhra Pradesh
Electricity Reform Act, 1998 (in short, ‘APER Act’) are not maintainable as the
said Act as far as it is inconsistent with the provisions of the Electricity
Act, 2003, is repealed and therefore, it is doubtful whether recourse to
section 30 of the APER Act is available to the petitioners.
(ii). The
petitioners entered into wheeling agreements with APTRANSCO, the
predecessor-in-interest of the respondent, in respect of their respective wind
power projects for captive wheeling of energy and energy from the said projects
was not for purchase by licensees. The circumstances that prompted the
petitioners to establish the power projects are not relevant and the respondent
is not concerned with the investments made by them.
(iii). It is
false to say that APTRANSCO accepted the orders dated 20.03.2004 passed by the
Commission in R.P.No.84 of 2003.
APTRANSCO filed R.P.No.1 of 2004 against the said order and after
disposal of the same, preferred appeals before Appellate Tribunal for Electricity
at New Delhi. Thus order dated
20.03.2004 did not attain finality and therefore, the contention that APTRANSCO
accepted this order dated 20.03.2004 is false.
(iv). As seen from paragraph 20(A) of the order
dated 20.03.2004, the Commission in the said order was dealing with those NCE
developers who had accepted the order dated 20.06.2001 and voluntarily agreed
to sell electricity to APTRANSCO on the terms and conditions contained in the
order dated 20.06.2001. The other NCE developers may also sell electricity to
APTRANSCO, if they choose to accept the terms and conditions as may be laid
down by the Commission. Further, in paragraph 20(C) of the said order, it is
mentioned that the Commission is now undertaking review of the prices of those
NCE developers who are currently selling electricity to APTRANSCO, as per the
terms of sale prescribed in the order dated 20.06.2001. Thus it is clear that
orders passed by the Commission either on 20.03.2004 or on 20.06.2001 are
concerned with the parties who were selling energy at that time to APTRANSCO.
For the said reason, the petitioners herein cannot claim any advantage or
benefit from the said two orders. Neither of the petitioners in respect of
their new projects, was a party to the aforesaid two orders. It is also false to state that the Commission
through its orders made any proclamation by inviting prospective developers to
invest in wind energy projects and to that extent the order of the Commission
is either mis-conceived or mis-quoted.
(v). APTRANSCO
never gave either express or tacit consent to either of the petitioners to make
investments or for purchase of power from them. Providing evacuation facility or providing energy for testing of
the project or giving consent for laying transmission facility or
interconnection facility, per se, should not be construed by any stretch of
imagination that APTRANSCO ever gave its tacit consent to purchase power from
the petitioners. On the other hand,
APTRANSCO through its letter dated
18.01.2005 made it clear that the petitioners may opt for third party sales as
is permitted under the Electricity Act, 2003, subject to the regulations made by the Commission from time to time.
(vi). The
respondent is not concerned with the clarification sought by the Indian Wind
Power Association and the clarification given. Therefore, it needs no
reply. However, suffice to say that
subsequent to the said clarification dated 29.10.2004, APTRANSCO through its
letter dated 18.01.2005 responded by stating that the petitioners may opt for
third party sales as per the provisions of the Electricity Act, 2003, after
taking into consideration the fact that power is available in the market at
much lesser price than the Rs.3.37 ps per unit. APTRANSCO being a public
undertaking cannot ignore the object of the Electricity Act, 2003, and burden
the end-consumers by procuring energy at higher price than the market
price. Permitting the petitioners to
lay feeders at their cost from their respective project sites up to 132/33 kV
at Komatikuntla
sub-station is irrelevant and has no material bearing on the matter in
issue. The respondent or its
predecessor is not obligated upon to enter into PPA with unjustified terms and
conditions at the cost of end-consumers.
(vii). The
letter of APTRANSCO dated 15.04.2005 denotes that power is extended temporarily
for testing and it does not mean that APTRANSCO agreed for commissioning of the
projects of the petitioners. The
respondent is not concerned whether NEDCAP has issued commissioning certificates
to the projects of the petitioners. It
is not true to say that APTRANSCO has been consistently following hostile
discrimination against the petitioners in particular and wind energy sources in
general. The petitioners are trying to
create unwarranted prejudice against the respondent. As some other wind energy developers came forward to supply
energy at reasonable prices, the respondent entered into agreements with four
of such developers to purchase power at Rs.2.70 per unit. The fact of entering into such agreements was also
intimated to the petitioners and the petitioners required to follow the same.
(viii). The
respondent is aware that it is bound by the orders of the Commission dated
27.09.2005 in O.P.No.9 of 2005 but the said order does not command the
respondent to oblige the demand of the petitioners herein, dehorns the fact
that other wind energy developers, who established their projects during the
period when the petitioners herein established their projects, entered into
agreements to sell energy at Rs.2.70 per unit and further agreed to comply with
the directions to be issued by the Commission reducing ceiling limit price of
wind energy. Paragraph 21 of the order
dated 27.09.2005 clearly shows that the Commission fixed ceiling for the tariff
and not the tariff in respect of prospective wind energy developers. Therefore,
within the said ceiling limit, the respondent made negotiations with the wind
power developers and entered into PPAs.
The petitioners were also requested to enter into PPAs on the said
terms, but the petitioners for the reasons best known to them, want a higher
price than that of the similarly placed developers. The respondent being a
public undertaking cannot give different prices to similarly placed developers.
Moreover, in paragraph 78 of its order dated 20.03.2004, the Commission took note of the MNES
publication on wind power which states that “present wind turbines are highly
sophisticated machines incorporating advanced technologies and are designed to
derive energy across range of wind speeds.
The cost of generation has reduced dramatically as manufacturing and
other costs have come down.”
(ix). The letter dated 31.03.2005 written by
HCSL clearly stated that energy that is going to be pumped into the grid would
not be claimed whenever the plants are under operation, without finalizing the
PPAs or banking arrangements. As PPAs have not been entered into till date, the
petitioners are estopped from claiming charges for energy pumped. The respondent or its predecessor never
requested either of the petitioners to pump energy into the grid and therefore,
it is not liable to pay any amount to either of the petitioners. For the said reason, the question of
granting any interim orders also does not arise.
(x). The
object of the Electricity Act is to promote competition in the electricity
sector and to protect the interest of the consumers. Therefore, the relief sought by the petitioners herein is
tantamount to compelling/thrusting on the respondent to purchase electricity,
only to get undue benefit, even if it is un-economical, which is not permitted
under law. For all these reasons, the
petitions are devoid of merits and may be dismissed.
6. On the date of hearing i.e. on
25.02.2006, the counsel for the petitioners in the both the cases reiterated
the identical averments made in both the petitions and stated that:
(i) The
petitioners are seeking implementation of the order passed by the Commission in
O.P. No.1075 of 2000 and R.P. No.84 of 2003, read with that in O.P. No. 9 of
2005.
(ii) The
petitioners established wind farms in view of the guidelines issued by Ministry
of Non-conventional Energy Sources (for short, ‘MNES’) which were also approved
by the Commission. In its order dated 21.06.2001 in O.P. No. 1075 of 2000, the
Commission made it clear that the said order would be applicable to all energy
developers. During the hearing in R.P. No. 84 of 2003, it was urged that the
Commission is required to specify the percentage of electricity to be purchased
from NCE sources, and unless, the purchase quantum is decided, the price should
not be fixed. However, the Commission went ahead and issued order on 20.03.2004
stating that the total quantum to be purchased from NCE sources is being
determined by the Commission and shall form part of the tariff order which the
Commission will issue for the year 2004-05. It was further stated that it would not be
possible for the Commission to fix quantity of electricity to be purchased from
each developer of NCE sources. Similarly, the Commission also observed that
tariff determination for each of the projects would be a difficult task and
instead fixed tariff for a class or category of consumers. It was also made
clear that this order will be applicable to all NCE energy developers.
(iii) The
respondent is negotiating with some developers and purchasing energy at Rs.2.70
per unit. Those developers who do not want to sell power at that rate, are
being left out. Thus wind energy developers are being forced to reduce rates.
There is a statutory obligation on the respondent to purchase energy from the
petitioners and it should endeavour to encourage NCE developers. As per
National Electricity Policy and Plan, the respondent shall not only take into
consideration the interest of consumers, but also those of every stakeholder,
including NCE developers.
(iv) A
combined reading of Preamble, Section 4, Section 61(h) and Section 86(1)(e) of
the Electricity Act, 2003 and various provisions of National Electricity Policy
and Tariff Policy published on 12.02.2005 and on 6.1.2006 respectively, as
required u/s 3 of the said Act, shows that there is a legislative mandate
creating bias in favour of NCE developers while fixing tariff and every effort
should be made to encourage NCE projects.
Similarly, the absence of requirement to take licence for generation of
electricity is meant to encourage generation.
U/s 86(1)(e), a positive mandate has been given, making licensees to
purchase a part of requirement from NCE sources. The Commission while specifying the terms and conditions for
determination of tariff u/s 61 of the Electricity Act shall also be guided by
the promotion of co-generation and generation of electricity from renewable
sources of energy.
(v) In
compliance with the above-mentioned legislative mandate, the Commission in its
order dated 27.09.2005 in O.P.No.9 of 2005 directed that not less than 5% of
energy be purchased from NCE sources. Thus, the respondent shall be required to
purchase 5% of its energy requirement from NCE sources and the order of the
Commission did not leave any choice other than purchasing the said percentage
of energy from NCE sources. Further,
one-half of one percent of total consumption
shall always be kept reserved by distribution licensees, including the
respondent herein, for procurement of wind-based energy. The said order of the Commission applies to
future projects also. The contention of
the respondent that it is permissible to negotiate price with individual
developers is not correct, in view of the fact that the Commission negated the
request to fix tariff for individual developers as mentioned supra and fixed
tariff for a class or category of consumers.
(vi) At
paragraph 80 of the order dated 20.03.2004 in R.P.No.84 of 2003, the Commission
after considering the uncertainties being faced by wind electricity generation
plants retained the base unit price of Rs.2.25 as on 01.04.1994 and further
held that after escalation the same would be Rs.3.37 / kwh as on 01.04.2004 and
froze the tariff for a period of 5 years.
Thus, the price fixed by the Commission does not leave any scope for
negotiation and any negotiation supposed to be undertaken by the respondent
amounts to arm-twisting. At more than
one place, the Commission stated that the tariff fixed by it is not only for
existing developers who entered into PPA with licensees, but also future
projects.
(vii) Considering
the above, it is prayed that suitable orders be passed directing the respondent
to purchase electricity from the petitioners and the respondent also directed
to pay the petitioners for the power pumped into the grid from the petitioners’
generating stations with effect from 31.03.2005.
7. In
response, the counsel for the respondent in both the petitions, reiterated
identical replies mentioned in the counters filed on behalf of the respondent
and stated further that
(i) The
petitions filed are in the nature of enforcement petitions and the burden lies
on the petitioners to clarify which order of the Commission has to be enforced. The present petitions are akin to execution
petitions. While dealing with execution
petitions, courts are not required to go into various provisions of law as are
being urged at length by the petitioners.
That itself shows the petitioners are not sure which order of the
Commission they are urging it to enforce.
It is common knowledge that civil courts pass decrees in addition to
judgments, and execution petitions will
be filed based on the decrees passed by such courts. While executing decrees, courts are not required to go into the
details mentioned in the judgments. In the absence of any specific direction in
favour of any individual NCE developer in general, and that of the petitioners
herein in particular, in any of the orders passed by the Commission referred to
by the petitioners, the petitioners cannot be permitted to urge for enforcement
of such order or orders. Doing so would be based on surmises and would not be
permitted under law, apart from the contention of the respondent that the petitions
filed u/s 30 of the APER Act are not maintainable under law.
(ii) Under
law, the only recourse available to the petitioners is to file complaints u/s
142 of the Electricity Act, 2003, for
contravention of any direction supposed to have been given by the Commission.
In view of Section 142 of the Electricity Act, 2003, Section 30 of the APER Act
becomes redundant and petition under the latter provision of law is not
maintainable. As per Section 142 of the Electricity Act, 2003, the Commission
is only empowered to punish for non-compliance of its directions by imposition
of monetary penalty, but it is not empowered to grant the relief(s) as sought
by the petitioners herein. Moreover, the petitioners have failed to show which
direction of the Commission is contravened by the respondent herein As seen
from the record, nowhere is it mentioned that the respondent would not purchase
electricity from either of the petitioners.
Therefore, the further question of violating any order or direction of
the Commission by the respondent would not arise. Even on this count also, the
petitions are not maintainable and are liable to be dismissed.
(iii) Even
the order dated 27.09.2005 passed by the Commission, states that the purchases
from relevant category of NCE developers up to and including the level of
percentage specified therein and the ceiling for tariff of such purchases shall
be as per order dated 20.03.2004. Therefore, there is no gainsay in stating
that the respondent is mandated to purchase electricity at a fixed rate by the
Commission.
(iv) In
the order dated 20.03.2004, nowhere is it mentioned that it applies to all
developers and on the other hand, at more than one place in the said order, it
is stated that the order applies only to those developers who were then selling
power to APTRANSCO. For example, at
paragraph 20(C) of the order, it is
mentioned that the Commission is now undertaking review of the price of those NCE
developers who are currently selling electricity to APTRANSCO as per the terms
of sale prescribed in the order of the Commission in O.P.No. 1075 of 2000.
(v) HCSL
informed the Superintending Engineer (TL&SS), APTRANSCO, by letter dated 31.03.2005 stating that
energy that is going to be pumped into grid of APTRANSCO at 132/33 kV Komatikuntla
Sub-station will not be claimed, whenever the plant (4.5 MW) is in operation
without finalizing PPA or banking arrangement or wheeling-cum-banking
arrangement with APTRANSCO and therefore the petitioners are now estopped from
claiming any amount. For all these reasons, it is submitted that both the
petitions may be dismissed.
8. On
02.03.2006, the petitioners filed
separate, but identical reply affidavits stating that the legal preposition
that APER Act is repealed is contrary to the express provisions contained in
Section 185(3) of the Electricity Act, 2003.
The counsel for respondent did not mention which provision of the
Electricity Act, 2003, is inconsistent with APER Act or vice-versa. In such
circumstances, both the Acts would govern as held by the Hon’ble Supreme Court.
The policies notified under various G.O.s were given statutory status
empowering the Commission to specify a mandatory purchase of electricity from
NCE sources.
(ii) By
its order dated 27.09.2005, the Commission specified 0.5% to be purchased by
the licensee and the price at which the same has to be purchased is fixed in
exercise of the Commission’s power u/s 62 of the Electricity act, 2003. The contention that the respondent had not
accepted orders of the Commission dated 20.03.2004 is incorrect as there is no
appeal filed so far as the purchase price relating to wind energy is
concerned. Appeal Nos.46, 48 and 49 do
not relate to wind energy, but relate only to Biomass, Bagasse, Waste-based
energy and Hydel energy developers.
(iii) After
being informed that the petitioners may opt for third party sale as permitted
under the Electricity Act, 2003, HCSL sent letter dated 20.01.2005 appraising APTRANSCO
that various technical and commercial parameters (Open Access regulations)
relating to third party sale were not yet finalized by the Commission and in
view of the same, once again requested the respondent to enter into PPA. The respondent did not bother to respond to
this representation/request made on behalf of the petitioners, till date.
(iv) The
contention that power supply was extended temporarily only for testing and not
for commissioning of the project is contrary to the contents mentioned in the
letter written by APTRANSCO dated 15.04.2005.
(v) The petitioners planned commissioning of
their projects within the financial year 2004-05 and paid the advance taxes to
the Government. However, till
30.03.2005 power was not extended for commissioning of the projects and on the
last day of the financial year i.e., 31.03.2005, the petitioners gave
handwritten letter as against normal practice of typewritten one, under duress
and coercion at the behest of the Divisional Engineer of the respondent at the
site, just before releasing power for
testing and commissioning of the project.
The petitioners gave this letter in good faith and in expectation that
soon after commissioning of the project, PPAs would be signed in terms of order
dated 20.03.2004 as was done in the case of KCP Sugars Limited and RDF Power
Projects. Copies of the letter dated
29.10.2004, article published in print media, National Electricity Policy and
Tariff Policy have been filed in addition to the documents filed along with the
petitions.
9. On
10.03.2006, the respondent filed separate interlocutory applications in these
cases, under clause 55 of APERC(Conduct of Business) Regulations, 1999, stating that the petitioners without serving
copies on it had filed reply affidavits together with some documents after the
conclusion of arguments. As the petitioners
filed reply affidavits, the respondent stated that it also intended to file
additional written arguments, and requested to reopen the cases and receive the
additional written arguments. Both the
applications were allowed, and the cases posted to 18.03.2006 for further
arguments. The common written arguments
filed on behalf of the respondent are as follows:
(i) On
the aspect of minimum percentage of quantum of wind energy to be purchased by
the DISCOMs, it is submitted that order passed by the Commission in O.P.No.9 of
2005 has no binding effect. As per the
section 86(1)(e) of the Electricity Act, 2003, the Commission has to specify
percentage by way of Regulation, but not by an order. Till a Regulation is passed, the order in O.P.No.9 of 2005 has no
legal status and cannot be enforced under law.
(ii) Further
the said order is passed in September, 2005, by giving effect from
01.04.2005. Since the said order is
passed in the middle of the year, the assessment of percentage of quantum of
wind energy cannot be made for the entire year in pursuance of the said
order. Thus the minimum percentage of
wind energy to be purchased by the DISCOMs does not bind the respondent.
(iii) In
the order dated 20.03.2004, the Commission made it clear that the said order
deals with only those developers who were supplying energy to APTRANSCO. Therefore, the petitioners cannot claim that
it applies to prospective developers of wind energy also.
(iv) In
the order passed by the Commission in O.P.No.9 of 2005, the Commission made it
very clear that tariff of Rs.3.37 per unit as decided in R.P.No.84 of 2003, is
only a ceiling limit, but not the fixed tariff at which the licensees has to
purchase. When the order uses the word ‘ceiling
limit’, to claim that the earlier order of the Commission dated 20.03.2004 has
to be construed as if the Commission had fixed the tariff at which the
respondent has to purchase power from future wind energy developers is not
permitted under law.
(v) To
enforce an order of the Commission, there must be an earlier
order/direction/agreement concerning the issue between the parties, then only
can such order be enforced. In the
instant case, there is no such order/direction/agreement. Moreover as the order specifying percentage
is unenforceable as mentioned above, the question of enforcement will not
arise. The petitioners have to get
their tariffs fixed as contemplated under the Electricity Act, 2003.
(vi) The
clarification issued by the Commission dated 29.10.2004 without hearing the parties
as required under law has no legal status.
Moreover, long after the alleged clarification, Commission held in
O.P.No.9/2005 that the tariff price decided in R.P.No.84 of 2003 is only a
ceiling limit. In view of the later
order which was passed after hearing the parties concerned, the earlier
clarification has no legal sanctity or force of law. For all these reasons, it is prayed that both the petitions may
be dismissed.
10. Heard
counsel for both the parties.
11. The
issues that arise for consideration are:
Issue (i) Whether the respondent can be directed that it is obligated u/s 86(1)(e) of the Electricity Act, 2003, and in terms of the orders passed by the Commission in O.P.No.9 of 2005 dated 27.09.2005 and R.P.No.84 of 2003 dated 20.03.2004 to purchase electricity from the petitioners at the purchase price fixed therein; and
Issue (ii). Whether the respondent can be directed to
pay for the power pumped into grid from the petitioners’ generating stations
with effect from 31.03.2005.
12. Before
adverting to the various rival contentions, it is necessary to dwell briefly on
the history leading to review by the Commission of incentives including price
for the purchase of power from NCE projects in its order dated 20.03.2004 and
the events following. The APER Act came into force on 01.02.1999 and in
pursuance of the said Act, the Commission was constituted on 03.04.1999. After the Commission came into existence,
it noticed that the uniform incentives (comprising pre-determined power
purchase price and annual escalation thereon, concessional wheeling charges,
banking of power, third party sales, etc. as per GoAP G.O.Ms.No.93
dated:18.11.1997) to non-conventional energy developers earlier granted by GoAP
were available up to 17.11.2000 and were due for a review. Since GoAP was no longer vested with the
power to undertake this review after the coming into force of the APER Act, the
said function came to be vested with the Commission.
13. After
hearing of the parties concerned, the Commission passed an order dated
06.03.2000 which was set aside by the Hon’ble High Court mainly on the ground
that the developers were not put on notice with regard to the departure from
the principles laid down in GoAP G.O.Ms. dated:17.11.1997 nor about the proposal
for sale only to APTRANSCO. Therefore,
the Commission undertook fresh proceedings, issued notices to all concerned,
and after conducting a hearing issued orders on 20.06.2001 in O.P.No.1075/2000
stating that sale of power generated by NCE developers to third parties will
not be in public interest. Developers
of NCE projects shall supply power to APTRANSCO and the incentives, including the
price at which electricity was purchased by APTRANSCO were also
determined specifying simultaneously that a suo-motu review to take effect from
1st April, 2004 would be undertaken by the Commission. The directions in the order dated 20.06.2001
for the sale of electricity from NCE sources only to APTRANSCO and prohibiting
third party sale were challenged by some NCE developers in the Hon’ble High
Court of Andhra Pradesh which suspended the enforcement of the Commission’s
order, in their case, as prayed for by them.
However, some other developers entered into PPAs with APTRANSCO accepting
the terms and conditions set out in the order dated 20.06.2001. As the said order was due for review after
31.03.2004, the Commission undertook further proceedings to determine
incentives including the purchase price, applicable to NCE projects to take
effect from 01.04.2004 onwards. In the
meantime, the Electricity Act, 2003 had come into force w.e.f. 10.06.2003. After hearing representatives of APTRANSCO,
IREDA, NEDCAP, developers of NCE
projects and other stakeholders, including on certain provisions of the
Electricity Act, 2003, the Commission
determined inter-alia the purchase price applicable to various categories of
NCE projects in its order dated 20-03-2004 in R.P.No.84 of 2003. It is relevant to note here that after
coming into force of the Electricity Act, 2003, restrictions on sale of power
to third parties sought to be imposed in the Commission’s Order dated
20.06.2001, are no longer valid under law and developers of electrical energy,
including those of NCE are free to sell power to persons of their choice. The Commission too specifically clarified in
paragraph 20(A) of its order dated 20.03.2004, that it is not giving any
direction that NCE developers shall not sell electricity to third parties or
that they shall sell electricity to only to APTRANSCO. That apart, the Electricity Act, 2003,
brought some fundamental changes in the electricity sector like Open Access in
transmission, trading as a distinct activity, etc.
14. Several
review petitions were filed before the Commission against its order dated
20.03.2004 by various categories of NCE developers either individually or
collectively, by and large for upward
revision of tariffs, and by APTRANSCO
in essence for downward revision of the tariffs determined in that order. The Commission disposed of all the review petitions
in July – August, 2004 either individually or by common orders with certain
clarifications/modifications of some of the incentives. Aggrieved by the said orders, several
developers either individually or collectively filed writ petitions before the
High Court of A.P. as by that time the Appellate Tribunal for Electricity
(hereinafter, the Appellate Tribunal) as envisaged under the Electricity Act,
2003, was not constituted. The High
Court was pleased to admit the petitions and issued certain interim
directions. Soon after constitution of
the Appellate Tribunal, however, all
the writ petitions were disposed of by the Hon’ble High Court with liberty to
the petitioners therein to prefer appeals with the Appellate Tribunal, which
was pleased to continue the interim orders as passed by the High Court
earlier. In view of Third Transfer
Scheme notified by GoAP in June, 2005, all the four distribution licensees,
including the respondent herein, individually but jointly with APTRANSCO, also
filed appeals with the Appellate Tribunal with a prayer to direct the
Commission to refix the tariffs for NCE projects applicable from 01.04.2004.
After conclusion of arguments in the batch of appeals, the Appellate Tribunal
has reserved them for orders.
15. In
discharge of its functions, the Commission issued Regulation No.2 of 2005
prescribing terms and conditions of Open Access for Intra-State Transmission
and Distribution networks and notified the same in the Gazette of Andhra
Pradesh on 01.07.2005, after first notifying the draft Regulation on
04.08.2004. Similarly, the Commission sought for views of the licensees
(APTRANSCO, and the four distribution licensees) and the NEDCAP, the nodal
agency of GoAP for promotion of NCE vide letters dated 06.11.2004 and 25.02.2005,
published a discussion paper seeking comments/suggestions from public through a
public notice on 28.05.2005 and conducted a public hearing on 30.06.2005 and
finally issued the order dated 27.09.2005 in O.P.No.9 of 2005, specifying a
percentage of the total consumption of the electricity in the areas of a
distribution licensee for purchase of electricity from NCE sources.
16. The
proceedings / orders / regulations mentioned above were taken up / issued by
the Commission in discharge of its functions dealing with regulation of
purchase, distribution, supply and utilization of the electricity and such
regulatory power is held to be plenary over the entire subject matter. As can
be seen, the said proceedings / orders / regulations are not adversarial in nature
with regard to any matter in controversy between rival parties.
17. In the
light of above backdrop, the rival contentions are examined as follows:-
Point (1):
18. The
petitioners have taken quite some pains to drive home the point that relying upon
the various promotional and fiscal incentives initiated and provided by the GoI
and the GoAP, order dated 20.03.2004 of this Commission and the sanctions,
permissions and approvals granted by agencies concerned, substantial
investments were made by them for generation of wind energy. Also that unless
the respondent is directed to purchase electricity from the petitioners, great
injustice would be caused and the petitioners would suffer irreparable loss,
implying that the respondent is bound to purchase electricity from the
petitioners. There is no denying the fact that the Governments have been trying
to encourage generation of electricity from NCE sources by granting various
incentives. The contention of the petitioners,
however, that the sanctions, permissions and approvals granted by various
agencies lead to the irresistible conclusion that the respondent is bound to
enter into PPA for purchase of power from the petitioners, is fallacious on the
face of it. The Commission notices for example that paragraph 9 of each of the
NEDCAP’s proceedings, dated 15.07.2004 and 05.02.2005, as filed, sanctioning
the establishment of projects with capacities of 3 MW and 0.75 MW respectively
in the case of the petitioner in O.P.No.10, and dated 05.02.2005 in the case of
the petitioner in O.P.No.9 make it amply clear that “no guarantee is being
extended either on the power purchase price or APTRANSCO entering into PPA as
these are dependent upon the power supply position in the state at a given
point of time and requirement of power by APTRANSCO”, the
predecessor-in-interest of the respondent herein. The petitioners were also
cautioned that the “developer will be proceeding at his own risk with regard to
either regulatory clearances for supply license or power purchase agreement
with APTRANSCO.” The contention is
therefore devoid of merit and is not accepted.
Point (2):
19. The
next contention of the petitioner is that they were arraigned as one of the
parties to the proceedings in O.P.No. 1075 of 2000 and were totally governed by
the provisions of that order on applicability of the tariff for sale to
respondent (utilities) and barring third party sales. As mentioned earlier,
soon after it came into existence, the Commission initiated the process for
review of incentives to NCE developers and issued notice to all NCE developers
who had either established projects or were in the process of establishing the
projects to hear their views on incentives in general and third party sales in
particular. In all, notices were sent to about 140 developers, including HCSL,
by which name the petitioner in O.P.No.10 herein was then known, besides APEDA,
APTRANSCO and NEDCAP. About 58 developers appeared before the Commission either
personally or through their representatives or Associations and presented their
views. The Commission had initiated these proceedings as per the law in vogue
then, in exercise of its plenary power, conducted the proceedings in a
transparent manner by giving notice to all the stakeholders and issued orders on
20.06.2001. Thus simply because HCSL was invited (and not arraigned) to present
their views if they so desired, it cannot be said that the petitioners are totally governed by the provisions of
the order in O.P.No.1075/2000. As
mentioned earlier, some of the developers challenged the said order which
specified inter-alia that the power generated by NCE developers is not
permitted to be sold to third parties and obtained stay orders; some other
developers on the other hand, have entered into PPAs with APTRANSCO
voluntarily, accepting the terms and conditions set out in the order dated
20.06.2001. Thus rights and obligations are not created by the said order.
Instead, such rights and/or obligations have come to be created only upon
entering into agreements with the APTRANSCO/DISCOMs in pursuance of terms and
conditions mentioned in the said order, and upon receipt of consent of the
Commission to such agreements, under Section 21(4)(b) of the APER Act.
20. So is
the case with the order dated 20.03.2004 which is an extension of the order
dated 20.06.2001. It is only when a developer and the licensee enter into an
agreement and obtain the consent of the Commission as required under law, that
they are vested with enforceable rights and / or obligations against each other
and only thereafter, the Commission can be called upon to enforce the right(s)
of one party against the non-obliging party. Thus there is no gain in
contending that the petitioners had decided to set up the projects by placing
reliance on the order dated 20.03.2004, and therefore, the Commission is
required to direct the respondent-distribution licensee to purchase electricity
generated by the petitioners or that being arraigned as one of the parties to a
proceedings of the nature mentioned above before the Commission, automatically
results in accrual of rights in favour of the petitioners. The contention put forth is therefore not
tenable.
Point (3):
21. The next contention of the petitioners is
that in response to a letter from M/s Indian Wind Power Association, the
Commission in its reply dated 29.10.2004 clarified that the tariff fixed in the
order dated 20-03-2004 is applicable for sale of power to APTRANSCO / DISCOMs
by all existing as well as new projects. On the other hand, the counsel for the
respondent strongly contended that the said order applies to only those NCE
developers who had accepted the order dated 20.06.2001 and voluntarily agreed
to sell electricity to APTRANSCO on the terms and conditions contained in the
said order. Irrespective of the rival contentions, the fact remains that
neither of the orders dated 20.06.2001 nor the order dated 20.03.2004 created
any rights and/or obligations in favour of any party as discussed supra. The orders merely lay down certain
regulatory guidelines or terms and conditions for entering into contracts for
sale of electricity by one party and purchase by the other. Thus the
clarification does not help the cause of the petitioners.
Point (4):
22. The other contention of the petitioners
is that the respondent is obligated u/s 86(1)(e) of the Electricity Act, 2003
and in terms of the orders passed by the Commission in O.P.No. 9 of 2005 to
purchase electricity from the petitioners. In this connection, it is necessary to refer to paragraphs 9, 10
and 11 of the Order dated 27.9.2005 in
O.P.No.9 of 2005 which are reproduced
below for ready reference :-
“9. The
Commission after careful consideration of all these responses, comments and
suggestions specifies the percentage required to be specified by it under
section 86(1) (e) of the Act (hereinafter referred to as the “Renewable Power
Purchase Obligation” or “RPPO”) and the terms and procedure for its computation and procurement and the matters
incidental and ancillary thereto as detailed in the paragraphs that follow.
10. Every person to whom this order applies, shall purchase not less than five
percent (5%) of his consumption of energy from NCE sources under RPPO during
each of the years 2005-06 to 2007-08 (each year commencing on 1st
April of the calender year and ending on 31st March of the
subsequent calender year).
11. One-half of one percentage point out of the RPPO specified hereinabove (one half
of one percent of total consumption) shall always be kept reserved by the
distribution licensees for procurement
of Wind-based energy and shall be diverted, if necessary, to other NCE, only on
a temporary basis and also that all energy
available from this source shall
be purchased until it reaches the aforementioned one-half of one percentage
point even if consequently, the total NCE purchase exceeds the total RPPO
considering the NCE power purchase commitments made under the power purchase
agreements (hereinafter, “the PPAs”) already entered into and consented by the
Commission.”
The
persons to whom this order applies are described in paragraph 16 of the said
order, as extracted below:-
“16. Every Distribution Licensee, captive power
consumer, open access consumer and scheduled consumer (to the extent of power
availed through open access) shall be required to purchase electricity at the
percentage specified hereinabove of his total consumption of electricity within
the area of a distribution licensee from non-conventional energy sources.”
From the above, there is no doubt
that the respondent, being a distribution licensee, is obligated to procure
wind based energy to the extent of
one-half of one percent of its total consumsption.
Point (5):
23. The next contention of the petitioners is
that the respondent should not be permitted to negotiate with prospective
developers of wind energy and force them to reduce rates. In other words, the
contention of the petitioners is that the respondent is bound to enter into
PPAs with the petitioners and in pursuance of RPPO, purchase electricity from
them at the rate mentioned in the order dated 20-03-2004. In this context, it is pertinent to note that the respondent
too accepts that it is obligated to purchase wind based energy to the extent of
one-half of one percent and is willing to buy from the petitioners also. Now, the question arises, whether the rates
fixed by the Commission in its order dated 20.3.2004 in R.P. No.84/03 in
O.P.No.1075/2000 automatically apply to the purchase of renewable energy by the
respondent-licensee under RPPO. In this
context, the Commission made a
stipulation regarding the purchase price of energy in paragraph 21 of its
order dated 27.9.2005 in O.P.No.9 of 2005,
on renewable power purchase obligation, which is reproduced below:
“21. Upto
and including the level of percentage specified in paragraphs 10 and 11 above,
the distribution licensees can enter into long term PPAs with the NCE
developers of relevant category. The
ceiling for the tariff of such purchases shall be as per order dated 20.03.2004
in R.P.No.84 of 2003 in O.P.No.1075 of 2000, as amended. In case of purchase of electricity other
than through long term PPAs, the ceiling tariffs shall be the total
tariffs (fixed plus variable), as
worked out for each source of energy (co-generation, mini hydel etc.) on the
basis of aforementioned order of the
Commission.”
Thus, clearly, the prices determined by the Commission in its order dated 20.3.2004 are only ceiling prices for the procurement of renewable energy under RPPO by the respondent and the respondent is at liberty to negotiate a competitive price within the overall ceilings specified by the Commission, as above.
Point (6):
24. The
other contention of the petitioners is that the respondent while advising the
petitioners to go in for open access
and its inability to execute PPAs went ahead and executed PPAs with several
other NCE developers and stated that the respondent is discriminating against
the petitioners herein in particular and wind energy developers in general. The three projects specifically identified
by the petitioners in support of this allegation and the Commission’s findings
thereon are as follows:
(a) PPA with NEDCAP for its project at
Narasimhakonda soon after the issue of order dated 20.03.2004 by the
Commission.
This is a demonstration project approved by GoI, MNES. Further, much prior to the issue of the order dated 20.03.2004, APTRANSCO had submitted a PPA entered into by it with NEDCAP vide its letter dated 04.10.2003 for grant of consent by the Commission. The Commission granted its consent on 31.12.2003, subject however, to a modification of one of the provisions of the PPA. The consent was communicated by the Commission on 24.05.2004.
(b) Entering
into PPA with KCP Sugar and Industries Limited on 15.12.2004.
It is a bagasse-based 5 MW co-generation
power project. PPA dated 15.12.2004 was
returned on 28.10.2005 with the advice that all PPAs yet to be consented to by
the Commission may be re-examined in the light of RPPO order dated 27.09.2005
and Open Access Regulations. In response, on 05.12.2005, APSPDCL submitted a revised PPA dated
03.12.2005 in line with RPPO and with negotiated tariff varying from year to
year but lower than the tariffs determined in Commission’s order dated
20.03.2004. The revised PPA has been consented to by the Commission.
(c) Entering into PPA with RDF Power Projects
on 14.03.2005.
It is a Municipal Waste-based power
project. APTRANSCO submitted the PPA dated 14.03.2005 which was returned to it
on 22.10.2005 with the same observations as in the case of the PPA of KCP Sugar
and Industries Limited, referred to at (b) above. The PPA is yet to be received
back and has not been consented to by the Commission.
25. From
the above, it is clear that no undue favours have been extended to the other
NCE developers, as alleged.
Point (7):
The
petitioners have laid great emphasis on the Commission being obligated to
promote NCE. The learned counsel for
the petitioners has cited inter-alia, Sections 4, 61 (h) and 86 (1) (e) of the
Electricity Act, 2003, and clauses 5.12.1 and 5.12.2 of National Electricity
Policy and clause 6.4 of the Tariff Policy in support of his contention. The
Commission acknowledges that the point is well taken and that it is indeed one
of its functions to promote NCE. The Commission has also taken quite a few
steps expected of it towards promotion of NCE. In accordance with Section 86
(1)(e) of the Act, it has specified the percentage of total consumption in the
area of a distribution licensee to be procured from renewable sources of energy
vide its order dated 27.09.2005 in O.P.No.9 of 2005; it has made open access
available vide Regulation No.2 of 2005 dated 01.07.2005 and in its order in
O.P.No.16 of 2005 passed on 21.09.2005 fixing cross-subsidy surcharge, it has
provided a rebate of 50% to NCE
sources. In its Order dated: 27.09.2005, the Commission has directed that one
half of one per cent of the energy purchased by the distribution licensees
should be from wind-based generation. This is a major, positive step taken by
the Commission to promote wind-based energy recognizing its importance as a
clean and green source of electrical power.
It is pertinent however, that, the National
Electricity Plan (NEP) and the Tariff Policy, on which much reliance has been
placed by the petitioners, too apart from seeking promotion of NCE, also speak
of reduction in cost of energy “by promoting competition within such projects”
(clause 5.12.1 of NEP) and that “such procurement by Distribution Licensees for
future requirements shall be done, as far as possible, through competitive
bidding process under Section 63 of the Act within suppliers offering energy
from same type of non-conventional sources” (clause 6.4(2) of the Tariff
Policy).
The
respondent too has demonstrated by cogent evidence that there is scope for
reducing cost of wind energy. This was
indeed also observed by the Commission in paragraph 78 of its order dated
20.03.2004 when it quoted from the October, 2002 MNES publication on Wind Power
Development in India that “the cost of generation has reduced dramatically as
manufacturing and other costs have come down………… It is expected that cost could fell as a result of economics of
scale as market expands.” The Commission notes that the respondent has been
able to procure wind energy at a price of Rs.2.70/unit from developers who are
placed similarly as the petitioners herein. Under these circumstances, the
Commission would be failing in its various statutory duties including that of
safeguarding of consumers’ interest if it compels the respondent to buy the
power at the rate fixed in the order dated 20.03.2004, which is only a ceiling
price for power procurement under the Commission’s order on RPPO.
Further, the very signing of PPAs with
the four wind-based energy developers as above, also belies the contention of
the petitioners that the respondent is discriminating against the wind energy
developers in general.
Point
(8):
27. A further contention of the petitioners
is that they were granted evacuation arrangement on 11-03-2005, in pursuance of
which the petitioners also paid supervision charges in the same month. Also
that power supply was also extended for testing and commissioning of the
projects by APTRANSCO vide its letter dated 15.04.2005. On the other hand, it is contended by the
respondent that power supply was extended temporarily, only for testing, and
not for commissioning. Further, HSCL informed APTRANSCO by letter dated 31.03.2005 stating that the energy
that is going to be pumped into grid will not be claimed whenever the plants
are in operation, without finalizing PPAs or banking arrangement or
wheeling-cum-banking arrangement and therefore, the petitioners are estopped
from claiming otherwise.
28. Irrespective
of the rival contentions, one thing is clear from the letter dated 15.04.2005
that the extension of supply of power is meant to be only a temporary
arrangement and that even otherwise, the petitioners would require evacuation
arrangement for availing of various options available to them under law
including for third party sale as advised by the respondent in its letter dated
18.01.2005. The mere fact that
evacuation arrangement was provided and that power supply was extended does not
ipso facto create an obligation on respondent to purchase
electricity from the petitioners.
Point (9)
29. Another
point put forward by the learned counsel for the petitioners is that in
requesting the petitioners to negotiate the purchase price for energy generated
by them, the respondent is trying to derive undue benefit of its monopoly in
the field of procurement of energy. The
Commission is not persuaded to accept the contention. The petitioners have various avenues open to them for sale of the
energy generated by them: the avenue of selling power to traders was open to
them from the very date (10.06.2003) the Electricity Act, 2003 came into force;
they can go in for sale to third parties through the Open Access route; and
there are now more than one distribution licensee – four to be precise -- in the State itself, to whom they can choose
to sell the power, in addition to
selling the power to users/traders/distribution licensees, outside the State.
30. Conclusion
Issue (i). For all the reasons stated above, the
Commission finds no merit in the various contentions of the petitioners that
the respondent has an obligation to purchase electricity generated by the
petitioners’ plants at the purchase price fixed in Commission’s order
dated:20.03.2004 in R.P.No.84 of 2003 in O.P.No.1075 of 2000.
Issue (ii). It is not under dispute that the
petitioners have been pumping electricity into the grid with a clear written
commitment that no payments will be claimed for such energy unless appropriate
PPA(s) etc., are entered into. Since, no such PPA(s), etc., are in place, the
Commission finds itself in no position at all to issue any direction in the
matter. As to the claim that such understanding was reached under duress or
coercion, no evidence is produced in support of this contention.
31. For all these reasons, the Commission
finds no merit in the contentions of the petitioners and, accordingly, both the
petitions are dismissed.
32. Before
parting with the petitions, the Commission observes that the issue as to
whether or not Section 30 of the APER Act survives after the coming into force
of Electricity Act, 2003, is not relevant to the issues raised in the petitions
herein and does not like to dwell upon it.
Similarly, it also does not like to deal with the contention of the
respondent that though the Commission’s order in O.P.No.9 of 2005 was issued in
the middle of the year 2005-06, on 27.09.2005, making it applicable from
01.04.2005 casts an undue burden on the respondent, as the Commission is of the
view that the present petitions are not the appropriate occasion to agitate
this issue. As to the plea that the
Commission was required to issue Regulations, instead of an Order dated
27-09-2005 in O.P.No.9 of 2005, the Commission is satisfied that the said Order
is fully in accordance with the provisions of the law.
This Order is corrected and
signed this 1st day of April 2006.
|
Sd/- |
Sd/- |
Sd/- |
|
Surinder
Pal |
K.Sreerama
Murthy |
K.Swaminathan |
|
MEMBER |
MEMBER |
CHAIRMAN |
CERTIFIED COPY