Appellate Tribunal For Electricity
Sasan Power Limited vs Central Electricity Regulatory ... on 12 August, 2013
Appeal no. 149 of 2013
Before the Appellate Tribunal for Electricity
(Appellate Jurisdiction)
Appeal no. 149 of 2013
Dated: 12th August, 2013
Present: Hon'ble Mr. Justice M. Karpaga Vinayagam, Chairperson
Hon'ble Mr. Rakesh Nath, Technical Member
In the matter of:
Sasan Power Limited ...Appellant(s)
H-Block, Dhirubhai Ambani Knowledge City
Thane Belapur Road, Koparkhairane
Navi Mumbai - 400 710
Versus
1. Central Electricity Regulatory ...Respondent(s)
Commission
3rd and 4th Floor, Chanderlok Building
36, Janpath, New Delhi - 110 001
2. Western Regional Load Despatch Centre
F-3 MIDC Area, Marol
Andheri (East)
Mumbai - 400 093
3. MP Power Management Company Limited
Shakti Bhawan
Jabalpur - 482 008
Madhya Pradesh
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Appeal no. 149 of 2013
4. Paschimanchal Vidyut Vitran Nigam Limited
Victoria Park
Meerut - 250 001
Uttar Pradesh
5. Purvanchal Vidyut Vitran Nigam Limited
Hydel Colony, Bhikaripur
Post-DLW, Varanasi - 221 004
Uttar Pradesh
6. Madhyanchal Vidyut Vitran Nigam Limited
4 A- Gokhale Marg
Lucknow - 226 001
Uttar Pradesh
7. Dakshinanchal Vidyut Vitran Nigam Limited
220 kV Vidyut Sub-Station
Mathura Agra By-pass Road,
Sikandra, Agra - 282 007
Uttar Pradesh
8. Ajmer Vidyut Vitran Nigam Limited
Hathi Bhata, City Power House,
Ajmer - 305 001
Rajasthan
9. Jaipur Vidyut Vitran Nigam Limited
Vidyut Bhawan
Jaipur - 302 005
Rajasthan
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Appeal no. 149 of 2013
10. Jodhpur Vidyut Vitran Nigam Limited
New Power House
Industrial Area
Jodhpur - 342 003
Rajasthan
11. Tata Power Delhi Distribution Limited
Grid Sub-station Building
Hudson Lines
Kingsway Camp
New Delhi - 110 009
12. BSES Rajdhani Power Limited
BSES Bhawan
Nehru Place
New Delhi 110 019
13. BSES Yamuna Power Limited
Shakti Kiran Building
Karkardooma Delhi - 110 096
14. Punjab State Power Corporation Limited
The Mall, Patiala - 147 001
Punjab
15. Haryana Power Purchase Centre
Room No. 239, Shakti Bhawan
Sector 6, Panchkula - 134 109
Haryana
16. Uttarakhand Power Corporation Limited
Urja Bhawan, Kanwali Road
Dehradun - 248 001
Uttarakhand
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Appeal no. 149 of 2013
17. Central Electricity Authority
Sewa Bhawan, R.K. Puram
New Delhi - 110 066
18. Lahmeyer International (India) Limited
Intec House, 37, Institutional Area
Sector - 44, Gurgaon - 122 002
Counsel for the Appellant (s) : Mr. J.J. Bhatt, Sr. Adv.
Mr. Amit Kapur
Mr. Vishrov Mukherjee
Ms. Ritika Arora
Counsel for the Respondent(s): Mr. M.G. Ramachandran
Ms. Swagatika Sahoo for R.1
Mr. Pradeep Misra
Mr. Shashank Pandit
Mr. Manoj Kr. Sharma for R.4 to 7
Mr. Gopal Jain
Mr. Alok Shankar for R.11
Mr. Sanjay Sen, Sr. Adv.
Ms. Shikha Ohri for R.18
Mr. G. Umapathy
Ms. Mekhala for R.3
Mr. Sitesh Mukherjee
Mr. Gautam for R.2
Mr. Apoorve Karal for R.15
Mr. Rahul Dhavan
Mr. S Raj Saxena for R.12 & 13
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Appeal no. 149 of 2013
JUDGMENT
RAKESH NATH, TECHNICAL MEMBER This Appeal has been filed by Sasan Power Limited against the order dated 20.6.2013 passed by the Central Electricity Regulatory Commission quashing the certificate given by the Independent Engineer for declaration of Commercial Operation Date for the first unit of the Appellant's power project and directing the Appellant to undertake fresh testing of the unit.
2. The Central Commission is the Respondent no.1. Western Regional Load Despatch Centre ("WRLDC") is the Respondent no.2. The Respondent nos. 3 to 16 are the procurers of power from the Appellant's power project. The Respondent no. 18 is the M/s. Lahmeyer International (India) Limited, the Independent Engineer appointed jointly by the Appellant and the procurers.
3. The brief facts of the case are as under:- Page 5 of 15
Appeal no. 149 of 2013
a) The Appellant is a generating company which is setting up an Ultra Maga Power Project at Sasan with a capacity of 6 x 660 MW following a tariff based competitive bidding process conducted in the year 2006. Subsequent to being declared a successful bidder in the competitive bidding, a Power Purchase Agreement was executed between the Appellant and the 14 procurers (R-3 to R-16) on 7.8.2007.
b) On 25.3.2012, the first unit of Sasan Ultra Maga Power Project was synchronized to the Grid. Subsequently, the commissioning test was conducted on the unit and on 30.3.2013 the Independent Engineer issued its certificate declaring the first unit as having achieved commercial operation with a tested capacity on 101.38 MW ex-bus.
c) On 25.4.2013, WRLDC, the Respondent no.2, filed petition no. 85/MP/2013 requesting the Central Commission to look into the veracity of the certificate issued by the Independent Page 6 of 15 Appeal no. 149 of 2013 Engineer and also into the matter of the Appellant indulging into intentional mis-declaration of parameters related to commercial mechanism in vogue and issue suitable direction in the matter. WRLDC also requested the Central Commission to issue specific guidelines with respect to declaration of COD of the generators who were not governed by the Tariff Regulations.
d) On 9.5.2013, the petition filed by the WRLDC was listed before the Central Commission wherein the Appellant raised the issue of maintainability of the petition and requested permission to file a reply on maintainability of the petition which was allowed. Accordingly, the Appellant on 20.5.2013 filed its submissions on the issue of maintainability of petition while reserving right for a detailed reply on merits.
e) On 23.5.2013, the Commission heard the arguments and reserved orders. Subsequently, the impugned order dated Page 7 of 15 Appeal no. 149 of 2013 20.6.2013 was passed by the Central Commission quashing the certificate given by the Independent Engineer and directing the Appellant to undertake fresh testing of the unit to achieve the tested capacity in accordance with the provisions of the PPA.
f) Aggrieved by the impugned order dated 20.6.2013, the Appellant has filed this Appeal.
4. Shri J.J. Bhatt, Learned Senior Advocate representing the Appellant submitted that the Central Commission had violated the principles of natural justice in passing the impugned order deciding the case on merits at the stage of admission without giving the Appellant the opportunity of placing relevant facts and documents on record and hearing on merits thereby depriving the Appellant of its right to place its case for consideration by the Central Commission. On 9.5.2013, when the case first came up before the Central Commission, the Appellant had raised Page 8 of 15 Appeal no. 149 of 2013 the issue of maintainability and sought the permission of the Central Commission to file a reply on the maintainability of the petition which was granted and the case was listed for hearing on maintainability on 23.5.2013. Thereafter, the Appellant filed its submissions on the issue of maintainability on 20.5.2013, reserving its right to file detailed reply on merits. However, the Central Commission without giving the Appellant opportunity of being heard on merits passed the impugned order deciding the issue on merits without considering the issue of maintainability raised by the Appellant. He requested that the Tribunal may set aside the impugned order and remand the matter to the Central Commission giving an opportunity to the Appellant to place relevant documents and submissions before the Central Commission for consideration of the issue afresh.
5. Shri Sitesh Mukherjee, the Learned Counsel for Respondent no. 2 vehemently opposed the prayer for Page 9 of 15 Appeal no. 149 of 2013 remanding of the matter to the Central Commission stating that the matter could be heard and decided by the Tribunal itself instead of remanding the matter back to the Central Commission. When the Appellant has failed to submit its reply on merits when opportunity was given by the Central Commission to all the parties by its order dated 9.5.2013, they could not find fault with the impugned order on the issue of violation of principles of natural justice. Further, the Appellant has submitted new documents at appellate stage which is not permissible as these documents were never placed before the Central Commission.
6. We have also heard Shri M.G. Ramachandran, Learned Counsel for Respondent no. 1.
7. Considering the contentions of the rival parties the only question which arises for our consideration is "Whether the Central Commission has violated the principles of natural justice while passing the impugned order by not providing opportunity to the Appellant of being heard on merits and Page 10 of 15 Appeal no. 149 of 2013 without deciding the issue on maintainability raised by the Appellant?"
8. Let us first examine the order dated 9.5.2013 of the Central Commission when the petition filed by WRLDC came up before the Central Commission for the first time. The relevant extracts of the order are as under:
"3.Learned counsel for the SPL submitted that the petitioner has made certain false and baseless allegations against the respondent in the petition. Learned counsel for the SPL referred to Section 28 of the Electricity Act as well as the stand taken by the petitioner before CERC in Petition Nos. 289/2010 and 290/2010 and submitted that WRLDC has no role to play in the commissioning Activities except to facilitate injection of infirm power into grid. Since WRLDC is seeking general guidance, it should revise the petition and the prayer accordingly. Learned counsel for the SPL requested the Commission to grant permission to file a reply on the maintainability of the petition, which was allowed.
4. After hearing the representatives of the petitioner and learned counsel of the SPL, the Commission directed the petitioner to serve copy of the petition to the respondents immediately, if already not served.
5.The Commission directed the respondents to file their replies, with an advance copy to petitioner, on or before Page 11 of 15 Appeal no. 149 of 2013 17.5.2013. The petitioner may file its rejoinder, if any, by 21.5.2014.
6. The petition shall be listed for hearing on maintainability on 23.5.2013."
9. Thus, on 9.5.2013 when the petition came up before the Central Commission for the first time, the Appellant raised the issue of maintainability and requested the Commission to grant permission to file a reply on maintainability of the petition. This was allowed by the Central Commission. Thereafter, the petition was listed for hearing on the question of maintainability on 23.5.2013.
10. The Appellant filed its submissions before the Central Commission on the issue of maintainability on 20.5.2013. We have gone through the submissions of the Appellant dated 20.5.2013. In these submissions, the Appellant clearly mentioned that the submissions were being tendered on the limited question of maintainability of the petition while reserving its right to file a detailed reply should the petition to be admitted.
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Appeal no. 149 of 2013
11. Let us examine the impugned order dated 20.6.2013 which was passed subsequent to the hearing dated 23.5.2013.
12. The impugned order records the submissions of WRLDC and the submissions made by the Appellant on 20.5.2013 on the issue of maintainability. However, we find that the Central Commission has decided the issue on merits without giving an opportunity of being heard to the Appellant on the merits of the case and without deciding the issue of maintainability raised by the Appellant.
13. We noticed in the impugned order that the Central Commission has observed that considering the urgency of the matter it was disposing of the main petition at the admission stage itself. However, no circumstances were shown in the impugned order with reference to the nature of urgency of the matter. We do not understand why the Central Commission decided the matter on merits hurriedly Page 13 of 15 Appeal no. 149 of 2013 at the admission stage itself without deciding the issue on maintainability raised by the Appellant and without hearing the Appellant and the procurers of power (R-3 to R-16) on merits of the case. Thus, we find that it is a clear case of violation of principles of natural justice.
14. We are not convinced by the arguments of Shri Sitesh Mukherjee that the matter should be heard on merits and decided by the Tribunal. Firstly, we do not want to usurp the powers of the Central Commission. Secondly we do not want to deny the opportunity to the Appellant of being heard by the first court and the right of first Appeal. Therefore, we deem it fit to remand the matter to the Central Commission to reconsider the issue afresh including the issue of maintainability raised by the Appellant and decide the same after hearing the Appellant and other concerned parties without being influenced by its earlier findings. Accordingly ordered.
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Appeal no. 149 of 2013
15. We make it clear that we have not examined the matter on merits and as such we do not express any opinion on this issue. As stated earlier the Central Commission is directed to consider the issues afresh without being influenced by its earlier findings in the matter.
16. Accordingly, the Appeal is allowed. The impugned order is set aside and the matter is remanded back to the Central Commission to decide the issues afresh after hearing of the Appellant and other concerned parties. No order as to costs.
17. Pronounced in the open court on this 12th day of August, 2013.
(Rakesh Nath) (Justice M. Karpaga Vinayagam)
Technical Member Chairperson
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REPORTABLE/NON-REPORTABLE
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