East Godavari District … Petitioner

and

Eastern Power Distribution Company of A.P. Ltd.,

Visakhapatnam. ... Respondent

This petition coming on for hearing on 05.05.2007 in the presence of Sri K.Gopal Choudary, Advocate, for the Petitioner, and Sri P.Shiva Rao, Advocate, for the Respondent, and having stood over for consideration to this day, the Commission delivered the following:

O R D E R

This petition is filed under Section 86(1)(b) read with Section 86(1)(e) of the Electricity Act, 2003 (for short, ‘the Act’) and Regulations 6(4), 7, 8(1) of APERC (Conduct of Business) Regulations, 1999 (for short, ‘CBR’) praying the Commission to :-

(a) recall the order/direction communicated by letter No.APERC/Secy/ Dir-Engg / DD-Trans/E:523/ D.No.48/2005 dated 10.01.2005, and

(b) declare that the amendment required by the Commission to paragraph 7 of the Power Purchase Agreement (for short, ‘PPA’) dated 28.07.2004 in the aforesaid letter dated 10.01.2005 is not necessary;

Or, in the alternative, to

direct amendment of paragraph 7 of the said agreement in accordance with the proposal made by the petitioner so as to provide that the agreement will be effective from 24.06.2004 and will be valid up to 16.01.2021, and that for tariff fixation the period and year of commencement of operation shall be considered from 17.01.2001 in respect of the existing 2 x 1.5 MW (3 MW) generating units and the actual date of synchronization in respect of the additional 1.5 MW (3^rd generating unit);

(c) pass such other or further orders as the Commission considers fit and just in the facts and circumstances of the case.

2. The following are the averments made in the petition:

(a) The petitioner is a generating company engaged in the activity of generating electricity from mini-hydel power projects and established a 3 MW (2 x 1.5 MW) mini-hydel project at Yeleru Reservoir Gap-2. It was commissioned on 17.01.2001.

(b) Thereafter, the Non-Conventional Development Corporation of Andhra Pradesh Limited (for short, ‘NEDCAP’) issued permission to the petitioner for enhancement of the project capacity from 3 MW to 4.5 MW with the addition of one more machine of 1 x 1.5 MW. This additional generating unit of 1.5 MW is yet to be installed.

(c) PPA dated 28.07.1004 was entered into between the petitioner and the Transmission Corporation of A.P.Limited (for short, ‘APTRANSCO’) for purchase of electricity from the existing 3MW units and also from the proposed additional 1.5 MW unit. The energy generated from the project was being delivered and sold to the APTRANSCO with effect from 24.06.2004.

(d) The Commission to which the above mentioned PPA was submitted for consent by APTRANSCO, in its letter dated 10.01.2005, directed the latter to modify paragraph 7 of the preamble to the PPA dated 28.07.2004 and to submit the same for the issue of the consent.

(e) In response to the letter dated 26.02.2005 of CE/IPC, APTRANSCO, the petitioner sent a letter dated 02.07.2005 suggesting that the paragraph 7 of the PPA be modified as suggested by it in the said letter, instead of the modification said to have been approved by the Commission.

(f) Meanwhile, by virtue of the Third Transfer Scheme notified by the State Government vide G.O.Ms.No.58 dated 07.06.2005, the respondent herein stood substituted for the APTRANSCO in the PPA.

(g) By letter dated 12.09.2005, the CE/IPC of the Andhra Pradesh Power Co-ordination Committee (for short, ‘APPCC’) stated that the modification proposed by the petitioner does not comply with the order dated 10.01.2005 issued by the Commission and that therefore the petitioner’s proposal has not been considered.

(h) By letter dated 29.09.2005, the petitioner addressed another letter to the respondent submitting that the PPA dated 28.07.2004 is for (2 x 1.5 MW) + (1 x 1.5 MW) and that the commercial operation date (for short, ‘COD’) of 17.01.2001 relates to 2 x 1.5 MW capacity machines. COD will be different for the third 1 x 1.5 MW unit and requested the respondent to confirm whether the order of the Commission takes into account the above fact. The petitioner did not receive any reply from the respondent to the specific issues raised in the said letter.

(i) By letter dated 17.06.2006, the respondent made available, for the first time, a copy of the Commission’s letter dated 10.01.2005 and further stated that delay in signing the amendment to the PPA as approved by the Commission may lead to stern action including stopping of power purchase from the plant of the petitioner without further notice. By letters dated 30.08.2006 and 10.10.2006, the respondent reiterated the warnings that it would initiate appropriate action if the petitioner does not come forward for signing the amendment as per the directions of the Commission. By letter dated 30.10.2006, petitioner sent a detailed reply to the respondent and further stated that it would file a formal petition to the Commission to recall its order dated 10.01.2005. Hence the petition.

3. The respondent submitted its counter / reply as follows:

(a) The Commission directed the APTRANSCO to modify paragraph 7 of the preamble and to submit the same for issue of the consent by it (the Commission).

(b) Explanation to definition of COD in Article 1.3 of the PPA contemplates that any additional capacity (new generator units) that is proposed / sanctioned at a later date would be entitled to receive tariff, considering the COD of the project, but not otherwise.

(c) The petitioner must have already created the necessary infrastructure facilities while commissioning the existing 3 MW capacity (1^st and 2^nd units) and recovering the fixed cost of the project which was already factored in the tariff being paid, and for installing the 3^rd unit, the petitioner will not incur such costs again. Moreover, the contention of the petitioner is not in consonance with the specific clauses in the PPA, especially the definition of COD of the project. As such the petitioner’s claim for declaring the COD for each new unit separately is unwarranted and will not sustain. Hence, the same deserves to be rejected.

(d) The contention of the petitioner that the respondent has made available for the first time a copy of the Commission’s letter dated 10.01.2005 directing the APTRANSCO to modify the PPA is not correct and is a blatant falsehood against its own record.

(e) APTRANSCO gave reasonable time and chances to the petitioner to sign the amendment to the PPA and after exhausting all options, the respondent resorted to the issue of notice of stoppage of power purchase from the petitioner’s power plant in a bid to ensure compliance with the directions of the Commission.

(f) Though the petition is registered as an O.P., yet the prayer of the petition clearly shows that in substance it is for review of the earlier order dated 10.01.2005 on the ground that the petitioner was not heard when the said order was passed. But the limitation to file petition for review of the orders of the Commission is only 90 days. In this case, the petitioner was informed of the order by the respondent through its letter dated 26.02.2005. As such, the petition is hopelessly barred by limitation.

(g) For the above-mentioned reasons, it is humbly prayed that the Commission may be pleased to dismiss the petition and direct the petitioner to execute the amended PPA as ordered by the Commission within a specified time and to pass orders imposing penalties in default of compliance, as per Sections 142 and 146 of the Act.

4. Heard the arguments of the counsel for the parties concerned on 05.0.2007.

5. On behalf of the petitioner, its counsel submitted that :

(a) The letter dated 10.01.2005 issued by the Commission directing APTRANSCO, the predecessor-in-interest of the respondent herein, to modify paragraph 7 of the preamble of the PPA between the parties herein is required to be recalled as the same is issued without giving an opportunity to the petitioner. Even according to the CBR, the Commission is required to consult the party which is likely to be affected before giving / passing direction / order.

(b) Even though the capacity of the station is 4.5 MW as mentioned in Schedule 1 of the PPA, only 3 MW (2 x 1.5 MW) was established, and commissioned on 17.01.2001. The third 1.5 MW-unit is not commissioned even till date. The fact that only 3 MW Mini Hydel project was commissioned on 17.01.2001 is recorded in paragraph 3 of the preamble to the PPA. Therefore, relegating COD of the third 1.5 MW-unit which is yet to be established to the year 2001 is unacceptable and for that reason also, the letter dated 10.01.2005 referred to above is required to be recalled.

(c) The proposed modification to paragraph 7 to the preamble of the PPA implies that COD of the third 1.5 MW-unit which is yet to be commissioned will be the same as that of 2 x 1.5 MW units commissioned on 17.01.2001. Consequently for tariff fixation, the period and year of commencement of operation i.e. COD, even for yet-to-be- commissioned third 1.5 MW-unit will be considered as from 17.01.2001, which is irrational.

(d) By G.O.Ms.No.98, I & CAD(PW:Reforms) Department, dated 25.05.2006, the State Government accorded permission to the petitioner for installation of the third unit of 1.5 MW (i.e. Stage II) for increasing the capacity of the project, long after permission was accorded to it for construction of 3 MW project vide G.O.Ms. No. 123, I & CAD(PW:GV) Dept., dated 1.9.1999. The petitioner was permitted to lay penstock from the right side vent for increasing capacity of the project from 3 MW to 4.5 MW and using both the left and right vents within allocated 600 c/s discharge from the downstream of DCR sluice in gap 2 of Yeleru Reservoir Project . As seen from the figurative off-take chart (submitted during the hearing) the yet-to-be-installed third 1.5 MW-unit has a completely different off-take. Water flows to Stage-I of the project (2 x 1.5 MW) and to Stage-II of the project (third 1.5 MW unit) through two different penstocks i.e., penstock I and II respectively, as shown in the chart. Thus it is clear that there are two different projects at the same site and COD cannot be same for these two projects. Consequently for the purpose of tariff fixation, COD for the third 1 x 1.5 MW-unit cannot be considered as 17.01.2001

6. On behalf of the respondent, its counsel submitted that :

(a) The point that arises for consideration before the Commission is whether the third 1.5 MW-unit is extension of the mini-hydel project of the petitioner at Yeleru Reservoir Gap.II or different from it. Proceedings of NEDCAP dated 29.08.2002 reveals that permission was accorded to the petitioner for enhancement of the station capacity from 3 MW to 4.5 MW by addition of one more machine of 1 x 1500 KW capacity to the existing 2 x 1500 KW station. Thus, it is clear that the project is one, and not two different projects as is sought to be made out by the petitioner. Even in the petition filed by the petitioner, it is stated at paragraph 4 thereof that “Thereafter, the NEDCAP issued permission to the petitioner for enhancement of the project capacity from 3 MW to 4.5 MW the addition of one more machine of 1.15 MW. This additional generating unit of 1.5 MW is yet to be installed.”

(b) The direction of the Commission in its letter dated 10.01.2005 was communicated to the petitioner by APTRANSCO through its letter dated 26.02.2005. As early as in its letter dated 02.07.2005 and in subsequent letters dated 06.09.2005, 13.09.2005 and 15.09.2005, the petitioner referred to the said letter dated 10.01.2005 of the Commission which contained direction to modify para 7 of the preamble to the PPA. The petitioner should have filed petition u/s 94 (1) (f) of the Act for review of the direction of the Commission. Whatever it might be, the review or recall of the direction dated 10.01.2005 issued by the Commission is time-barred. Even otherwise, there is no justification to recall the order / direction of the Commission dated 10.01.2005, especially in view of lapses on the part of the petitioner.

(c) Even on merits of the case, there is no necessity to recall the order/direction of the Commission. Explanation to Article 1.3 of the PPA is significant and states that

“In respect of Non-conventional based power projects, the date of synchronization of the first unit of the project will be treated as the Commercial Operation Date of the project”.

Similarly, definition provided under Article 1.10 makes it very clear that

“project: means, the 4.5 MW capacity Mini Hydel power project at Yeleru Reservoir Project Gap-2....”.

Thus even on merits of the case, the petitioner is not entitled for any of the reliefs claimed by it, much less the recall of the letter dated 10.01.2005.

7. The point that arises for consideration is “whether the petitioner is entitled for the reliefs prayed for”

8. Facts regarding the setting up of the project, permissions / sanctions obtained for establishing it from the authorities concerned, etc., are not in dispute and therefore, it is not necessary to delve into those details except to the extent necessary at the appropriate point of discussion.

9. The crux of the issue revolves around letter dated 10.01.2005 issued by the Commission informing APTRANSCO to modify paragraph 7 of the preamble to the PPA entered into by it with the petitioner on 28.07.2004, which was submitted to the Commission for its consent u/s 21(4) of the Andhra Pradesh Electricity Reform Act, 1998 (forshort,‘the Reform Act’).

10. In this connection, it is necessary to briefly delve into the facts leading to entering into PPA on 28.07.2004 by the petitioner with APTRANSCO. Originally, APTRANSCO entered into a Power Purchase and Wheeling Agreement (for short, ‘PPWA’) with the petitioner on 05.01.2000 for purchase of power from 3 MW mini-hydel project of the petitioner, which was commissioned on 17.01.2001. By order dated 20.06.2001 passed in O.P.No.1075 of 2000, the Commission issued directions that from the billing month of August, 2001, all generators of NCE shall supply power to APTRANSCO as per certain terms and conditions. Several NCE developers, including the petitioner herein, filed appeals before the Hon’ble High Court of Andhra Pradesh challenging the said order of the Commission. On 30.10.2001 the petitioner submitted revised ‘Detailed Project Report (for short, ‘DPR’) to NEDCAP with a request for enhancement of station capacity of its project from 3 MW to 4.5 MW. By its proceedings dated 29.08.2002, NEDCAP accorded permission for such enhancement of project capacity. On the same date, the petitioner also entered into an agreement with NEDCAP, inter-alia agreeing to bind itself by the regulations, proceedings, etc., to be issued by the Commission. The petitioners herein also withdrew the appeal CMA No.1776 of 2001 filed by it against the order of the Commission dated 20.06.2001. Thereafter, on 28.07.2004, the petitioner entered into PPA with APTRANSCO for 4.5 MW project capacity (3 MW existing plus 1.5 MW proposed capacity) superseding in its entirety the PPWA entered into between the parties on 05.01.2000 and subsequently amended on 13.02.2001.

11. The PPA entered into by the petitioner with APTRANSCO which was submitted for consent of the Commission as required u/s 21(4) of the Reform Act contains a Preamble comprising of paragraphs 1 to 10, Articles 1 to 10 and Schedules 1, 2A to 2D, 3A and 3B. The relevant provisions are extracted below:

Paragraph 7 of the preamble reads as follows:

“ 7. This Agreement will be effective from 24.6.2004.”

Article 1.3 of the PPA reads as follows:

“Commercial Operation Date (COD): means, with respect to each Generating unit, the date on which such Generating unit is declared by the company to be operational, provided that the company shall not declare a Generating unit to be operational until such Generating unit has completed its performance acceptance test as per standards prescribed.

Explanation : In respect of Non-conventional based power projects, the date of synchronization of the first unit of the project will be treated as the Commercial Operation Date of the project since Ministry of Non-Conventional Energy Sources not specified any guidelines for declaration of the Commercial Operation Date (COD). (emphasis supplied)

Article 1.10 of the PPA reads as follows:

Project: means the 4.5 MW capacity Mini Hydel power project at Yeleru Reservoir Project Gap-2 on the downstream of diversion cum reverse sluice within a distance of 750 Mts., Yeleswaram, East Godavari District with a proposal of 0.045 MW for Auxiliary Consumption and 4.455 MW for sale to APTRANSCO as detailed in Schedule 1 attached herewith, entrusted to the Company for construction and operation as detailed in Agreement entered into with NEDCPA as shown in Schedule 3 attached herewith and includes the metering system.” (emphasis supplied)

Article 2.2 of the PPA reads as follows:

The Company shall be paid the tariff for the energy delivered at the interconnection point for sale to APTRANSCO as applicable as on date of commercial operation subject to the reviews of the prices by the APERC from time to time. Notwithstanding these reviews there will be a special review of purchase price on completion of 10 years from the date of commissioning of the project, when the purchase price will be reworked on the basis of Return of Equity, O&M expenses, and the Variable Cost. (emphasis supplied)

Article 7 of the PPA reads as follows:

DURATION OF AGREEMENT

This Agreement shall be effective upon its execution and deliver thereof between parties hereto and shall continue in force from the Commercial Operation Date (COD) i.e., 17.1.2001 and until the twentieth (20^th) anniversary that is for a period of twenty years from the Commercial Operation Date (COD). This Agreement may be renewed for such further period of time and on such terms and conditions as may be mutually agreed upon by the parties, 90 days prior to the expiry of the said period of twenty years, subject to the consent of the APERC. Any and all incentives/conditions envisaged in the Articles of this Agreement are subject to modification from time to time as per the directions of APERC. (emphasis supplied)

12. In order to ascertain the intention and understanding with which the petitioner as well APTRANSCO entered into the PPA on 28.07.2004, it is also necessary to refer to the relevant portions of the appropriate proceedings issued by NEDCAP and agreements entered by the petitioner with NEDCAP, which are as follows:

Proceedings of the NEDCAP dated 29.08.2002:

“…….NEDCAP had issued sanction for the said project of 3 MW station capacity and accordingly agreement was entered.

The project was commissioned in February 2001. Vide reference (5) cited, the developer has requested for enhancement of station capacity of the project from 3.0 MW to 4.5 MW.

After careful consideration of the developer’s request and provision of 600 cusecs discharge permitted by department of Irrifation, NEDCAP accords permission for enhancement of station capacity from 3.0 MW to 4.5 MW by addition of 1 more machine of 1 x 1500 KW capacity to the existing 2 x 1500 KW station”.

Agreement entered on 29.08.2002 between NEDCAP and the petitioner:

“And whereas NEDCAP sanctioned 2 x 1500 KW capacity Mini-Hydel Power Project as per Board sub-committee approval dated 03.05.1999 basing on the DPR submitted by the company and NOC issued by the Department of Irrigation & CAD, Government of AP vide G.O.Ms. No. 123 of I&CAD, (PW) Dept. dated 01.09.1999.

And whereas the company has submitted Detailed Project Report for a revised station capacity of 3 x 1500 KW by the addition of 1 x 1500 KW machine to the existing 2 x 1500 KW station capacity at the same location.

And whereas NEDCAP has considered the request of the developer for enhancement of capacity duly placing before the Board sub-committee for projects of NEDCAP Ltd., held on 24.06.2002”.

13. After carefully considering the material, including that referred to above, at the time when the PPA entered on 28.07.2004 was submitted for the grant of consent, the Commission noticed that paragraph 7 of the preamble of the PPA requires modification in terms of the various clauses of the PPA, especially the Explanation below Article 1.3, Article 1.10, Article 2.2 and Article 7 of the PPA. The modification advised by the Commission in its letter dated 10.01.2005 (which was communicated to the petitioner by APTRANSCO through its letter dated 26.02.2005) was for substitution of the existing provision which states that:

“7. This agreement will be effective from 24.06.2004.”

with the following proposed modification

“7. This agreement for sale of power to APTRANSCO will be effective from 24.06.2004 and will be valid up to 16.01.2021. For tariff fixation the period and year of commencement of operation shall be considered from 17.01.2001 i.e. commercial operation date.”

The above proposed modification is in consonance with ‘Explanation’ below Article 1.3 which provides that date of synchronization of the first unit of the petitioner’s project will be treated as the COD of the whole project; Article 1.10 according to which the project means the 4.5 MW capacity Mini-Hydel power project and Article 2.2 which provides that the petitioner company shall be paid the tariff for the energy delivered at the interconnection point for sale to APTRANSCO as on date of commercial operation or COD, which as mentioned above is 17.01.2001. The validity of the agreement was mentioned as up to 16.01.2021 i.e. 20 years from the COD of the first unit of the project, in accordance with provisions of Article 7 stated above.

14. The petitioner in its letter dated 02.07.2005 informed APTRANSCO that it desires to accept the modification proposed by the Commission, subject, however, to further modification to the effect that for the purpose of tariff fixation, the period and year of commencement of the operation shall be considered from 17.01.2001 for 2 x 1.5 MW and actual date of synchronization in respect of third unit of project. APTRANSCO as well as its successor-in-interest, the respondent herein, have been insisting the petitioner to come forward to sign the amendment to the PPA entered between them on 28.07.2004 in terms of letter of the Commission dated 10.01.2005, but to no avail.

15. The request of the petitioner that for the purpose of tariff fixation, the period and year of commencement of the operation shall be considered from 17.01.2001 for 2 x 1.5 MW and actual date of synchronization in respect of third unit of project, is untenable. All through, the 2 x 1.5 MW-units and the third 1.5 MW-unit are conceived by the petitioner as one project, and not as two different projects and accordingly proceedings / agreements / orders were issued in favour of the petitioner enhancing station capacity of the project from 3 MW to 4.5 MW as discussed above. Accordingly, the petitioner also entered into PPA with APTRANSCO on 28.07.2004 with a clear understanding that the date of synchronization of 2 x 1.5 MW-unit will also be treated as COD of the third 1.5 MW-unit in terms of ‘Explanation’ to Article 1.3 and that the project of the petitioner means entire 4.5 MW unit capacity mini-hydel power project (Article 1.10 of the PPA). The petitioner cannot now be permitted to resile from the terms of agreement already entered into by it to claim a different date of COD for the third 1.5 MW-unit. Simply because, the third 1.5 MW- unit is yet to be installed, the petitioner cannot be permitted to claim different COD for that, other than 17.01.2001, having already entered into agreement with APTRANSCO. In view of the ‘Explanation’ below Article 1.3 of the PPA in respect of Non-conventional projects, irrespective of date of installation of third 1.5 MW-unit, its COD will be 17.01.2001. It is pertinent that the said Explanation, the definition of ‘Project’ as 4.5 MW capacity Mini-Hydel power project in Article 1.10 and the Articles 2.2 and 7, referred to above are integral part of the PPA entered into by the petitioner on 28.07.2004 and the amendment required by the Commission too was fully in consonance with these provisions, as already stated above. Similarly, merely because of the contention that the said third 1.5 MW-unit has a completely different off-take, penstock etc., it cannot be accepted that the said unit should be considered as a separate project altogether different from the 2 x 1.5 MW-units. Therefore, viewing from any angle and judging from any standard, the request of the petitioner that for the purpose of tariff fixation, the period and year of commencement of the operation should be considered from 17.01.2001 for the 2 x 1.5 MW units and the actual date of synchronization in respect of third unit of project cannot be accepted as the same is contrary to the record on the subject matter. Accordingly, therefore, there is no necessity or justification to recall the order / direction of the Commission dated 10.01.2005.

16. In this context, it is also useful to refer to G.O.Ms.No. 98 dated 25.05.2006 issued by GoAP wherein it is mentioned that the petitioner “for improving the working efficiency and minimizing the hydraulic losses, it is proposed to draw water within the allocated limits (i.e. 600 c/s) from right side vent, suitably laying penstock from the right side vent as an alternative, as per site conditions and requested the Government to accord approval and necessary technical details will be furnished to the Chief Engineer, Central Designs Organization for laying the additional penstock.” Accordingly, permission was granted to the petitioner by GoAP as follows :

“5. Government after careful examination of the proposal hereby consider and accord permission to M/s. Manihamsa Power Projects Ltd for installation of third unit of 1.5 MW (i.e., State-II) for increasing the capacity of the Mini-Hydel Project from 3.00 MW to 4.50 MW by using both left and right vents within the allocated 600 c/s discharge from the downstream of DCR sluice in gap 2 of Yeleru Reservoir Project for power generation subject to the terms and conditions stipulated in G.O.Ms.No.123, I&CAD(PW) Department dated 1-9-1999 and that the firm ensures and discharges 600 c/s from the present bye-pass with installation of necessary measuring devices in addition to the calibration charts and also subject to payment of water rate at Rs.5.50/1000 gallons for industrial use. “

As seen from the above, permission granted to the petitioner by GoAP would also disclose that the third 1.5 MW unit of the petitioner was treated as part and parcel of the mini-hydel project of the petitioner originally commissioned with 3 MW capacity. Thus, on this count also, the contention of the counsel for the petitioner that the third 1.5 MW unit of the petitioner is a separate entity and different from 2 x 1.5 MW units stands negated.

17. Next the Commission examines whether in terms of the petition filed under clauses (b) and (e) of sub-section (1) of Section 86 of the Act, it ought to or can or is required to recall the order / direction dated 10.01.2005 and declare that amendments required by the Commission to paragraph 7 of the PPA dated 28.07.2004 in the aforesaid letter dated 10.01.2005 is not necessary, as prayed by the petitioner. Section 86 of the Act deals with “Functions of State Commission”. The said provisions of law are extracted hereunder, for easy reference:

“86. Functions of the State Commission :- (1) The State Commission shall discharge the following functions, namely:

(a) …………..

(b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State;

(c) ………….

(d) ………….

(e) promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity in the area of a distribution licensee;”

18. As seen from the above, the said provisions of law do not empower the Commission to grant reliefs of the nature claimed by the petitioner. Being regulator of the power sector, the Commission is required to discharge several functions, like regulation of the electricity purchase and procurement process of distribution licensee including the price at which electricity shall be procured from the generating companies through agreements u/s 86 (1) (b) of the Act and to promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and related functions u/s 86 (1) (e) of the Act. By any stretch of imagination, it cannot be stated that under the said provisions of law, the Commission is empowered to recall an order issued by it and further declaring that direction given in that order by the Commission is not necessary. Thus there is force in the contention of the counsel for the respondent that the provision of law under which relief is sought by the petitioner is misconceived.

19. The plea that the petitioner had no knowledge of the Commission’s letter dated 10.01.2005 is not borne out from record. The petitioner had knowledge of not only the letter dated 10.01.2005 issued by the Commission, but also its content. The modification to paragraph 7 of the preamble of the PPA by the Commission was extracted and communicated to the petitioner by APTRANSCO in its letter dated 26.02.2005. Soon after, by letter dated 02.07.2005, the petitioner communicated to APTRANSCO that it accepts the modification approved by the Commission, subject to certain additions /modifications suggested by it and exchanged correspondence in this regard at regular intervals. Thus it can be safely concluded that the petitioner is not prejudiced by the fact that a copy of the letter dated 10.01.2005 was communicated to it only during the month of June, 2006. Making available a copy of the letter dated 10.01.2005 of the Commission to the petitioner for the first time in the month of June, 2006, by itself does not absolve the petitioner of its failures to initiate appropriate proceedings to safeguard its interests if they were affected adversely in any unjust manner. The petitioner should have initiated appropriate proceedings to safeguard its interests, if so warranted, and desired by it, under appropriate provision of law, soon after it came to know of the proposed amendment to paragraph 7 of the preamble of PPA.

20. In this context, it is necessary to refer to the other provisions of law under which this petition is filed. Apart from clauses (b) and (e) of sub-section (1) of Section 86 of the Act, the petitioner has invoked clauses 6(4), 7 and 8 (1) of the CBR. The different clauses in the CBR are in the nature of guidelines with regard to conduct of business by the Commission in discharge of its statutory functions, but are not substantial provisions of law under which reliefs claimed by the petitioner can be granted. Even if it is conceded that a petition of this nature can be filed before the Commission, the same is time-barred, having been filed much after the expiry of the 90 days’ time allowed in clause 49 of the CBR, within which the Commission may on its own motion, or on the application of any of the person or parties concerned, within 90 days of making of any decision, direction or order, review such decision, direction or order and pass such appropriate orders as the Commission may think fit.

15. For all the reasons stated above, the petitioner is not entitled for any of the reliefs claimed by it. Accordingly, the petition is dismissed.

The order is corrected and signed on this 19^th day of May, 2007

Sd/-	Sd/-	Sd/-
(R.RADHA KISHEN)	(SURINDER PAL)	(K.SWAMINATHAN)
MEMBER	MEMBER	CHAIRMAN

East Godavari District … Petitioner

O R D E R

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