M/s. Jeypore Sugar Co. Limited,

CHAGALLUR,

West Godavari District. …… Petitioner

and

1. M/s Transmission Corporation of A. P. Limited,

Vidyut Soudha, Somajiguda, Hyderabad.

2. M/s Central Power Distribution Company of A. P. Limited,

11-5-423/1/A, 1^st Floor, Singareni Colleries Bhavan, Hyderabad.

3. M/s Southern Power Distribution Company of A. P. Limited,

Upstairs, Hero Honda Showroom, Renigunta Road, Tirupati.

4. M/s Northern Power Distribution Company of A. P. Limited,

1-7-668, Postal Colony, Hanumakonda, Warangal.

5. M/s Eastern Power Distribution Company of A. P. Limited,

Sai Shakti, Opp: Saraswathi Park, Daba Gardens, Visakhaptnam.

(Respondents No.2 to 5 impleaded as per orders dated 27-07-2005 of the Commission in I.A No. 36 of 2005)

……… Respondents

This petition coming on for hearing on 17-08-2005 and 23-09-2005 in the presence of Sri C.Kodanda Ram, Advocate, for the petitioner and Sri N. Jayasurya, Advocate, for the respondents and having stood over for consideration to this day, the Commission delivered the following:

O R D E R

1. This petition is about the mode of calculation of Plant Load Factor (PLF) of the bagasse-based cogeneration unit of the petitioner. The contention of the petitioner is that the PLF has to be calculated on annual basis, even according to the order of the Commission dated 20.03.2004 in R.P. No.84 of 2003 in O.P. No.1075/2000 and subsequent order dated 11-08-2004 in R.P. Nos.1, 2 and 11 of 2004. The petitioner has, therefore, questioned the computation of PLF by the respondents on monthly basis (billing period).

2. All the respondents filed counters and took up a preliminary objection with regard to maintainability of the petition in view of the pendency of appeal filed by South Indian Sugar Mills Association (SISMA), of which the petitioner is a member, challenging the order of the Commission dated 20.03.2004 referred to above, on several grounds, including the quantum of PLF fixed by the Commission for arriving at the tariff fixed for sale of per unit of electrical energy (for brief, ‘the Tariff’) to the licensee. It is further submitted by the learned counsel for the respondents that the appeals filed by SISMA and others are posted for hearing finally on 19-10-2005 before the Appellate Tribunal for Electricity.

3. The Commission heard arguments on the preliminary objection raised by the respondents.

4. The respondents contended that in the writ petition filed before the High Court, and later in the appeal filed before the Appellate Tribunal for Electricity consequent upon the constitution of the Tribunal, challenging the correctness of the Tariff, including the quantum of PLF fixed by the Commission, is also pending decision. Therefore, it is contended that this petition before the Commission is not maintainable.

5. The learned counsel for the petitioner on the other hand stated that the relief sought by the petitioner in this petition is altogether different from the issues involved in the appeal pending consideration before the Appellate Tribunal.

6. The present petition though filed for directions to respondents to implement the aforementioned orders as passed by this Commission in R.P.No.84 of 2003 in O.P.No.1075/2000 and R.P.Nos.1, 2 and 11, is in essence a petition seeking adjudication of a dispute with the respondents.

7. In the Appeal No. 21 of 2005 filed before the Appellate Tribunal by the SISMA (the petitioner is one of its members) challenging the order dated 20.03.2004 of the Commission mentioned above including the orders on Review Petitions thereon, impleading this Commission in addition to the respondents herein, the appellant in ‘Detail of Appeal’ has specifically contended that the calculation should be on annual basis. Relevant paragraphs are as extracted below:

“ 5.50 The respondent Commission ought to have seen, that should it desire to adopt two part tariff system in the case of bagasse based co-generation units, having seasonal nature of operations, the capacity on 55% PLF should be calculated on annualized basis and not on settlement period (billing period) basis, apart from directing APTRANSCO / DISCOMS to purchase power and pay both fixed and variable costs till such time the aggregate units in a financial year reach the threshold level of PLF.

5.51 The respondent Commission ought to have seen that in case the first option i.e. single part tariff is not acceptable, the respondent commission ought to direct APTRANSCO / DISCOMS to pay both fixed costs and variable costs upto 100% capacity utilization during any month subject to overall annualized threshold limit of PLF.”

8. When an appeal is pending before the Appellate Tribunal for Electricity for consideration of the validity and enforcement of the Order dated 20.03.2004 of the Commission involving all incidental aspects like percentage of PLF, its calculation on annual basis etc, taking up of adjudication proceedings by the Commission in respect of PLF would be tantamount to taking up a matter which is sub-judice. Therefore, the objection raised by the respondents is well taken and hence further proceedings in the matter are stayed till the disposal of appeal filed by SISMA by the Appellate Tribunal for Electricity.

The order is corrected and signed on this 1^st day of October, 2005

Sd/- Sd/- Sd/-

Surinder Pal K.Sreerama Murthy K.Swaminathan

MEMBER MEMBER CHAIRMAN