Appellate Tribunal For Electricity
Acme Phalodi Solar Energy Pvt. Ltd. & Ors vs Central Electricity Regulatory ... on 14 December, 2023
Order in IA No. 752 of 2023 in Appeal No. 260 of 2022
And
IA No. 751 of 2023 in Appeal No. 261 of 2022
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
Appeal No. 260 of 2022 &
IA No. 995 of 2022 and IA No. 752 of 2023
and
Appeal No. 261 of 2022 &
IA No. 992 of 2022 and IA No. 751 of 2023
Dated: 14th December, 2023
Present: Hon'ble Mr. Justice Ramesh Ranganathan, Chairperson
Hon'ble Mr. Sandesh Kumar Sharma, Technical Member
Appeal No. 260 of 2022 &
IA No. 995 of 2022 and IA No. 752 of 2023
IN THE MATTER OF:
1. ACME Phalodi Solar Energy Pvt. Ltd.
Through its Authorised Signatory
104, Munish Plaza,
20 Ansari Road, Darya Ganj,
New Delhi- 110002.
2. ACME Raisar Solar Energy Pvt. Ltd.
Through its Authorised Signatory
104, Munish Plaza,
20 Ansari Road, Darya Ganj,
New Delhi- 110002.
3. ACME Solar Holdings Pvt. Ltd.
Through its Authorised Signatory
Plot No. 152, Sector 44.
Gurugram, Haryana- 122002 ...Appellants
Vs.
1. Central Electricity Regulatory Commission
Through its Secretary,
3 rd & 4 th Floor, Chanderlok Building, 36, Janpath,
New Delhi - 110001
Page 1 of 21
Order in IA No. 752 of 2023 in Appeal No. 260 of 2022
And
IA No. 751 of 2023 in Appeal No. 261 of 2022
2. Solar Energy Corporation of India Limited
Through its Authorised Representative
1 st Floor, D-3, A Wing,
Prius platinum Building District Centre,
Saket, New Delhi- 110017
3. Central Transmission Utility of India Limited
Through its Authorised Representative
"Saudamini", Plot No.2,
Sector-29, Near IFFCO Chowk,
Gurgaon, Haryana- 122001
4. Fatehgarh Badhla Transmission Limited,
Through its Authorised Representative
First Floor 'Urjanidhi', 1, Barakhamba lane,
Connaught Place, New Delhi-110001
5. BSES Yamuna Power Limited
Through its Authorised Representative
BSES Bhawan, Nehru Place,
New Delhi- 110019
6. BSES Rajdhani Power Limited
Through its Authorised Representative
BSES Bhawan, Nehru Place,
New Delhi- 110019
7. Tata Power Delhi Distribution Limited
Through its Authorised Representative
Mumbai House, 21, Homi Modi Street,
Mumbai, Maharashtra- 400001
8. Power Grid Corporation of India Ltd. (PGCIL)
Through its Dy. General Manager (Commercial)
"Saudamini", Plot No-2, Sector-29,
Gurgaon, Haryana- 122001 ...Respondent(s)
Counsel on record for Appellant(s): Mr. Sanjay Sen, Sr. Adv.
Mr. Vishrov Mukerjee
Mr. Rohit Venkat V
Mr. Janmali Gopal Rao manikala
Mr. Yashaswi Kant
Page 2 of 21
Order in IA No. 752 of 2023 in Appeal No. 260 of 2022
And
IA No. 751 of 2023 in Appeal No. 261 of 2022
Mr. Girik Bhalla
Ms. Priyanka Vyas
Mr. Damodar Solanki
Ms. Juhi Senguttuvan
Ms. Anamika Rana
Ms. Neha Dabral
Ms. Mandakini Ghosh
Counsel on record for Respondent(s):Ms. Pritha Srikumar Iyer
Mr. Sulabh Rewari
Ms. Neha Mathen
Mr. Kaustav Saha
Ms. Nikita Garg
Mr. Anirudh Gotety
Ms. Mansi Binjrajka
Ms. Mansvini jain
Mr. Aditya Rajagopal
Mr. Atharv Gupta
Mr. Abhyudaya Shishodia For Res1
Ms. Anushree Bardhan
Ms. Tanya Sareen
Ms. Srishti Khindaria
Ms. Surbhi Kapoor
Mr. Aneesh Bajaj
Ms. Anukrit SinghFor Res2
Ms. Suparna Srivastava
Mr. Tushar Mathur
Ms. Astha Jain
Ms. Divya Sharma
Ms. Soumya Singh For Res3
Mr. Hemant Singh
Mr. Mridul Chakravarty
Mr. Biju Mattam
Ms. Supriya Rastogi Agarwal
Mr. Lakshyajit Singh Bagdwal
Ms. Ankita Bafna
Mr. Chetan Kumar Garg
Mr. Harshit Singh
Ms. Lavanya Panwar
Page 3 of 21
Order in IA No. 752 of 2023 in Appeal No. 260 of 2022
And
IA No. 751 of 2023 in Appeal No. 261 of 2022
Ms. Alchi Thapliyal
Mr. Robin Kumar For Res4
Mr. Hasan Murtaza
Mr. Sameer Sharma for R 5&6
Appeal No. 261 of 2022 &
IA No. 992 of 2022 and IA No. 751 of 2023
1. ACME Deoghar Solar Power Pvt. Ltd.
Through its Authorised Signatory
Plot No. 152, Sector 44.
Gurugram, Haryana- 122002
2. ACME Dhaulpur Powertech Pvt. Ltd.
Through its Authorised Signatory
104, Munish Plaza,
20 Ansari Road, Darya Ganj,
New Delhi- 110002
3. ACME Solar Holdings Pvt. Ltd.
Through its Authorised Signatory
Plot No. 152, Sector 44.
Gurugram, Haryana- 122002
Vs.
1. Central Electricity Regulatory Commission
Through its Secretary,
3 rd & 4 th Floor, Chanderlok Building, 36, Janpath,
New Delhi - 110001
2. Solar Energy Corporation of India Limited
Through its Chairman cum Managing Director
1 st Floor, D-3, A Wing,
Prius Platinum Building District Centre,
Saket, New Delhi- 110017
3. Central Transmission Utility of India Limited
Through its Chairman cum Managing Director
"Saudamini", Plot No.2,
Sector-29, Near IFFCO Chowk,
Page 4 of 21
Order in IA No. 752 of 2023 in Appeal No. 260 of 2022
And
IA No. 751 of 2023 in Appeal No. 261 of 2022
Gurgaon, Haryana- 122001
4. Fatehgarh Badhla Transmission Limited,
Through its General Manager (Regulatory Affairs)
First Floor 'Urjanidhi', 1, Barakhamba lane,
Connaught Place, New Delhi-110001
5. Haryana Power Purchase Centre,
Through its Chief Engineer (Power Procurement)
Sakti Bhawan Sector-6,
Panchkula, Haryana- 134109
6. North Bihar Power Distribution Company Limited,
Through its Managing Director
Third Floor, Vidyut Bhawan,
Bailey Road, Patna- 800001
7. South Bihar Power Distribution Company Limited,
Through its Managing Director
Second Floor, Vidyut Bhawan,
Bailey Road, Patna- 800001
8. Government of Puducherry,
Through the Under Secretary (Power)
Chief Secretariat, Goubert Avenue,
Puducherry- 605001
9. Power Grid Corporation of India Ltd. (PGCIL)
Through its Dy. General Manager (Commercial)
"Saudamini", Plot No-2, Sector-29, Near IFFCO Chowk,
Gurgaon, Haryana- 122001
Counsel on record for the Appellant(s) : Mr. Sanjay Sen, Sr. Adv.
Mr. Vishrov Mukerjee
Mr. Rohit Venkat V
Mr. Janmali Gopal Rao manikala
Mr. Yashaswi Kant
Mr. Girik Bhalla
Ms. Priyanka Vyas
Mr. Damodar Solanki
Ms. Juhi Senguttuvan
Ms. Anamika Rana
Ms. Neha Dabral
Page 5 of 21
Order in IA No. 752 of 2023 in Appeal No. 260 of 2022
And
IA No. 751 of 2023 in Appeal No. 261 of 2022
Ms. Mandakini Ghosh
Mr. Raghav Malhotra
Counsel on record for the : Ms. Pritha Srikumar Iyer
Respondent(s) Mr. Sulabh Rewari
Ms. Neha Mathen
Mr. Kaustav Saha
Ms. Mansi Binjrajka
Mr. Anirudh Gotety
Ms. Mansvini jain
Mr. Aditya Rajagopal
Mr. Atharv Gupta
Mr. Abhyudaya Shishodia For
Res1
Ms. Anushree Bardhan
Ms. Tanya Sareen
Ms. Srishti Khindaria
Ms. Surbhi Kapoor
Mr. Aneesh Bajaj
Ms. Anukirat Singh For Res2
Ms. Suparna Srivastava
Ms. Divya Sharma
Mr. Tushar Mathur
Ms. Astha Jain
Ms. Soumya Singh For Res3
Mr. Hemant Singh
Mr. Mridul Chakravarty
Mr. Biju Mattam
Ms. Supriya Rastogi Agarwal
Mr. Lakshyajit Singh Bagdwal
Ms. Ankita Bafna
Mr. Chetan Kumar Garg
Mr. Harshit Singh
Ms. Lavanya Panwar
Ms. Alchi Thapliyal
Mr. Robin Kumar For Res4
Page 6 of 21
Order in IA No. 752 of 2023 in Appeal No. 260 of 2022
And
IA No. 751 of 2023 in Appeal No. 261 of 2022
ORDER
IA No. 752 of 2023 in Appeal No. 260 of 2022 & IA No. 751 of 2023 in Appeal No. 261 of 2022 PER HON'BLE MR. SANDESH KUMAR SHARMA, TECHNICAL MEMBER
1. M/s Fatehgarh Badhla Transmission Limited (in short "FBTL" or "Applicant") has filed the subject Interlocutory Applications (in short "IAs") i.e. IA No. 751 of 2023 and IA No. 752 of 2023 in captioned Appeal No. 261 of 2022 and 260 of 2022 respectively, seeking vacation of the two separate ex parte ad interim Stay Orders (in short "Stay Orders") dated 08.07.2022 granted by this Tribunal in IA No. 995 of 2022 and 992 of 2022 filed by the Appellants in captioned Appeal Nos. 260 of 2022 and 261 of 2022, respectively.
2. The relevant extract of the Stay Order is reproduced here under:
"The main decision having the effect of permitting the third respondent to raise invoices for recovery of transmission charges, prima facie, appears to be in the teeth of the directives of the Central Government under Section 107 of Electricity Act, 2003. In the facts and circumstances, there will be no precipitative action taken by the third respondent till further orders."
3. The captioned Appeal No. 260 of 2022 has been filed by three Appellants i.e. ACME Phalodi Solar Energy Pvt. Ltd. (Appellant No. 1) and ACME Raisar Solar Energy Pvt. Ltd. (Appellant No. 2) alongwith ACME Solar Holdings Pvt. Ltd., the parent company (Appellant No.3).
4. The captioned Appeal No. 261 of 2022 has also been filed by three Appellants i.e. ACME Deoghar Solar Power Pvt. Ltd. (Appellant No. 1) and Page 7 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 ACME Raisar Solar Energy Pvt. Ltd. (Appellant No. 2) alongwith ACME Solar Holdings Pvt. Ltd. (in short "ASHPL"), the parent company (Appellant No.3).
5. The captioned Appeals assail the common Order dated 08.06.2022 (hereinafter referred to as the "Common Impugned Order"), passed by the Central Electricity Regulatory Commission (hereinafter referred as "Central Commission" or "CERC") in Petition Nos. 104/MP/2021 & 35/MP/2022.
6. The Applicant i.e. the Respondent No. 4 in the two captioned Appeals is an Inter-State Transmission licensee having been granted the transmission license by the CERC vide order dated 27.08.2019 passed in 94/TL/2018 to establish Transmission System for Ultra Mega Solar Park in Fatehgarh, District, Jaisalmer, Rajasthan.
7. The two captioned appeals are identical in nature, as also, the IAs filed by the Applicant for vacation of stay.
8. The Appellants in Appeal No. 260 of 2022, the Solar Power Project Developers (in short "SPPDs") i.e. ACME Phalodi and ACME Raisar ACME Phalodi and ACME Raisar are SPVs incorporated by ASHPL for development of two 300 MW solar power projects in Rajasthan after being declared as a successful bidder by Solar Energy Corporation of India Limited (in short "SECI") pursuant to a competitive bidding process for setting up of 2000 MW ISTS- connected Solar Power Projects under Global Competitive Bidding (ISTS-II) whereas the Appellants in Appeal 261 of 2022, ACME Deoghar and ACME Dhaulpur, are also the SPVs incorporated by ASHPL for development of two 300 MW solar power projects in Rajasthan after being declared as a successful bidder by Solar Energy Corporation of India Limited (in short "SECI") pursuant Page 8 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 to a competitive bidding process for setting up of 3000 MW ISTS-connected Solar Power Projects under Global Competitive Bidding (ISTS-II).
9. The Central Transmission Utility (in short "CTU"), pursuant to the applications made by ASHPL for Stage I and Stage II connectivity, granted connectivity at 400 kV Fatehgarh Substation to the four projects of 300 MW each of ASHPL to be commissioned through its SPVs, therefore, all the four projects were granted connectivity at the same location.
10. In terms of Stage II connectivity granted by the CTU, the Appellants were required to construct the 400 kV line bays alongwith line reactors at Fatehgarh Pooling Station, for which required space was to be provided by the Respondent No. 4, the developer of the Fatehgarh Pooling Station, for connecting the power projects of the SPPDs to the sub-station, in terms of the TSA dated 10.01.2018 executed by the said Respondent with the Solar Park Developer/ Adani Renewable Energy Park Rajasthan Limited.
11. The aforesaid arrangement was necessary for enabling the Appellants to evacuate power from their generating station.
12. The Scheduled Commercial Operation Date (in short "SCOD") for ACME Phalodi and ACME Raisar was 25.10.2020 and for ACME Deoghar and ACME Dhaulpur was 08.11.2020 as per the Power Purchase Agreements (in short "PPA") signed by the SPPDs with SECI on 06.12.2018 and 07.12.2018 respectively, i.e. 24 months from the Effective Date of the PPA.
13. Subsequently, on 17.01.2019, the CTU intimated the grant of Long Term Access (LTA) to ASHPL through four separate letters for these four projects, the date of commencement of LTA for ACME Phalodi and ACME Raisar was Page 9 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 19.10.2020 or commissioning of the Associated Transmission System, whichever is later and for ACME Deoghar and ACME Dhaulpur, the date of commencement of LTA was 26.10.2020 or commissioning of Associated Transmission System, whichever is later, accordingly, the SPPDs signed the Long Term Agreements (in short "LTA") with CTU.
14. However, the Appellants submitted that the projects were delayed on account of delay in finalisation of land coordinates of the sub-station by FBTL due to status quo orders on land acquisition by High Court of Rajasthan and disruption of supply chain due to outbreak of Covid-19 pandemic in China and later account of Supreme Court order in respect of Great Indian Bustard (GIB) Habitat.
15. Pursuant to Office Memorandums issued by the Ministry of New & Renewable Energy (in short "MNRE") on account of Covid-19 Lockdown, these projects were granted extension by SECI on 21.05.2020, 20.07.2020 and 08.09.2020, thereby extending the SCOD for all the four aforesaid projects i.e. the SCOD for ACME Phalodi & ACME Raisar was extended to 17.02.2022 and the SCOD for ACME Deoghar & ACME Dhaulpur was extended to 03.03.2022 respectively.
16. Separately, Ministry of Power (in short "MoP") vide order dated 27.07.2020 granted extension of five months to all the under construction inter- State transmission projects in light of nationwide lockdown including the start date of the LTA, consequently, on the request of ASHPL, the CTU extended the start date of the LTA by five months i.e. start date of LTA for ACME Phalodi and ACME Raisar was extended from 19.10.2020 to 19.03.2021 and for ACME Deoghar and ACME Dhaulpur was extended from 26.10.2020 to 26.03.2021 respectively.
Page 10 of 21Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022
17. Thereafter, ASHPL requested FBTL to provide access to the substation land at the earliest to undertake construction of the bays for connectivity of its projects vide letters dated 01.07.2021 and 12.07.2021, which were responded by FBTL vide letter dated 19.07.2021 allowing ASHPL access to the sub- station land to commence activities for construction of bays at FBTL sub- station.
18. Vide order dated 12.06.2021, MoP again granted extension of three months to all the under construction inter-State transmission projects considering nationwide lockdown, consequently, the CTU vide letter dated 10.08.2021 again extended the start date of LTA by three months for ACME Phalodi and ACME Raisar from 19.03.2021 to 19.06.2021 and from 26.03.2021 to 26.06.2021 for ACME Deoghar and ACME Dhaulpur.
19. Thereafter, on 12.08.2021, CTU intimated that the LTA granted for all the four SPVs of ASHPL would be made effective from 01.09.2021 along with the liability to bear the transmission charges in accordance with CERC Sharing Regulations 2020, however, ASHPL vide letters dated 19.08.2021 opposed operationalization of LTA considering extension of SCOD granted by SECI and the projects having been delayed due to Force Majure events.
20. Separately, on 08.10.2021, ASHPL sought extension of SCOD for its projects up to 18.07.2023 from SECI in the light of the judgment rendered by Supreme Court regarding GIB which mandated undergrounding of all existing and future transmission lines passing through potential and priority GIB habitat and the requirement of 24 months for construction of bays and dedicated transmission line from grant of access to the land for Fatehgarh sub-station, which was acceded to by SECI relying on the MNRE decision to allow time Page 11 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 extension on account of second wave of COVID 19 inter-alia extending the SCOD of ACME Phalodi & Raisar from 17.02.2022 to 04.05.2022 and SCOD of ACME Deoghar & Dhaulpur from 03.03.2022 to 18.05.2022.
21. Being aggrieved by the limited extension granted by the SECI as against sought by them, the Appellants seeking further extension on account of delay in grant of access to Fatehgarh sub-station and uncertainty caused by Supreme Court order on GIB, ACME Phalodi & ACME Raisar filed Petition No 35/MP/2022 and ACME Deoghar & ACME Dhaulpur filed Petition No 36/MP/2022 seeking extension of SCOD of the projects up to 18.07.2023 and also alignment of the date of commencement of LTA with the revised SCOD of the projects.
22. Consequently, SECI vide letter dated 28.04.2022 extended the SCOD of ACME Phalodi & ACME Raisar to 20.01.2023 and SCOD of ACME Deoghar & Dhaulpur 03.02.2023 on account of status quo orders passed by the Division Bench of the Rajasthan High Court.
23. Separately, the Central Commission vide the Common Impugned Order dated 08.06.2022, disposed of the Petition No 104/MP/2021 & 35/MP/2022 and Petition No 103/MP/2021 & 36/MP/2022 inter-alia rejecting the prayer of the Appellants herein for the extension of SCOD and consequential alignment of the operationalisation of LTA with revised SCOD, with the direction that the SPPDs are liable to pay transmission charges from the date of operationalisation of the LTA upto actual COD of the project.
24. Being aggrieved, the Appellants filed the two captioned appeals seeking direction to SECI to extend the SCOD of the projects up to 18.07.2023 and direction to CTU to align the date of commencement of LTA with the revised Page 12 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 SCOD inter-alia declaration that the Appellants are not liable to pay transmission charges for the period of mismatch.
25. This Tribunal vide its separate orders dated 08.07.2022 in IA No. 995 of 2022 in Appeal No 260 of 2022 and IA No. 992 in Appeal No. 261 of 2022 of 2022 filed by the Appellants restrained the third Respondent i.e. CTU from taking any precipitative action in the light of Central Government direction under Section 107, the relevant extract is quoted again as under:
"The main decision having the effect of permitting the third respondent to raise invoices for recovery of transmission charges, prima facie, appears to be in the teeth of the directives of the Central Government under Section 107 of Electricity Act, 2003. In the facts and circumstances, there will be no precipitative action taken by the third respondent till further orders."
26. Consequently, the Applicant, FBTL aggrieved by the non-recovery of transmission charges due to the interim protection granted to the Appellants has filed the present IAs seeking vacation of the interim protection granted to the Appellants.
27. It is the submission of the Applicant that his transmission project including the Fatehgarh sub-station was commissioned on 31.07.2021, however, the Appellants have not yet commissioned their generating station, which has left the asset of the Applicant/ Respondent No. 4, as stranded.
28. The Applicant argued that the SPPDs are liable to pay transmission charges in case of mis-match in commissioning by the generating station qua the transmission system, as also settled by this Tribunal vide judgment dated Page 13 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 01.09.2020 in Appeal Nos. 51 of 2018 (batch), wherein similar issue of mis- match i.e. where a generating station delays its commissioning, has been dealt with, the relevant extract is quoted as under:
"10.26 In view of the above, we are of the considered opinion that pending COD of their entire generating stations (generating units & dedicated transmission lines), the Appellant generators are liable to bear the transmission charges for the completed assets of the second Respondent till the commissioning of their dedicated transmission lines. Hence, the appeals are liable to be dismissed."
29. The Applicant also submitted that the aforesaid Judgment has been upheld by a three Judge Bench of the Supreme Court in CA No. 3366 of 2020 titled Vedanta Limited vs. CERC & Ors., wherein vide an Order dated 16.10.2020 it was held as under:
"We see no reason to interfere with the impugned order(s). The appeals are, accordingly, dismissed."
30. It is further argued by the Applicant that the CERC Sharing Regulations 2010 and also CERC Sharing Regulations 2020, mandates payment of transmission charges by the generators i.e. SPPDs herein, even for the period of mismatch in the actual COD i.e. where COD of the SPPD is achieved with a delay as against the COD of the transmission asset, even where the generating project is impacted by Force Majeure events, the Applicant, further, claimed an amount as payable by the Appellants in the two captioned Appeals from July 2021 onwards till February 2023 as Rs 7.96 crore, additionally claiming late payment surcharge also.
Page 14 of 21Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022
31. On the contrary, the Appellants argued that the SECI vide letter dated 28.04.2022 has extended the SCOD of the projects to 20.01.2023 and 03.02.2023 respectively in the two captioned appeals, also MNRE vide OM dated 03.02.2022 had directed that SCOD of all projects in the priority and potential GIB habitat will stand extended up to a date which is 30 days after the judgment passed by Supreme Court in the modification application (IA 142880 of 2021) filed jointly by the Ministry of New and Renewable Energy, Ministry of Power and Ministry of Environment, Forest & Climate Change before the Hon'ble Supreme Court of India in WP(C) No. 838 of 2019 titled M.K. Ranjitsingh vs Union of India.
32. It is the submission of the Appellants that the Ministry in the joint application sought, inter-alia, high voltage and extra high voltage lines i.e. 66 KV and above power lines in priority GIB Habitat to be laid as overhead power lines with installation of appropriate mitigation measure like Bird Diverters and laying of overhead, accordingly, SECI vide letter dated 06.02.2023 has extended the SCOD of all the projects of the Appellants to a date which is 30 days after the judgment by the Supreme Court in the aforesaid IA.
33. It is not disputed by either of the parties that there is delay in Commissioning of the power projects of the Appellants and are also not contesting the right of FBTL to receive transmission charges, thus, there is no contest on the FBTL's eligibility to recover Monthly Transmission Charges, however, the Appellants are aggrieved only in respect of the imposition of the liability to pay entire transmission charges after receiving extension of SCOD from SECI.
34. It is important to note here that this Tribunal vide orders dated 08.07.2022 in the separate IAs filed by the Appellants had granted interim protection Page 15 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 considering the 'directives of the Central Government under Section 107 of Electricity Act, 2003' issued vide MoP letter dated 15.01.2021, however, in a subsequent order, this Tribunal examined the MoP letter and scope of Section 107 of the Act in Appeal No 352 of 2022 titled Fatehgarh Bhadla Transmission Company Limited vs CERC & Ors. to hold that the directions under Section 107 of the Act is guiding in nature which cannot bind the Central Commission to amend Sharing Regulations in accordance with such directions, the relevant extract of the judgment is extracted as under:
"B.SECTION 107 OF THE ACT: ITS SCOPE:
36. ................Section 108 of the Electricity Act is in pari-materia with Section 107 of the Act, except that Section 108 relates to 'Direction by the State Government' to the 'State Commission', and Section 107 relates to 'Direction by the Central Government' to the 'Central Commission'. While the Central Commission is required to be guided by such directions in the matters of public interest, the directions of the Central Government, under Section 107 of the Act, are not binding on them.
44. For the CERC to be guided by the directions issued under Section 107(1) of the Act, such directions should have been issued by the Central Govt, in writing, on a policy matter involving public interest. Firstly, not every direction issued by the Central Govt would fall within the ambit of Section 107(1). The directions in writing must relate to a matter of policy. Again not all matters of policy, but only those policy directives which involve public interest fall within the ambit of the said provision. Further Section 107(1) only requires the CERC, in the discharge of its functions, to be guided by such directives. The meaning of the words "guided by" is to be "assisted Page 16 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 by in reaching a conclusion". The directives of the Central Govt, under Section 107(1), can only be of assistance to the CERC in taking a decision and, while the CERC should take such directives into consideration while discharging its functions, it is not bound by such guidance.
46. Unlike Section 79 under PART X of the Act which relates to the functions of the CERC, Section 178, under PART XVIII of the Act, relates to the powers of the Central Commission to make regulations. Under Section 178(1), the Central Commission may, by notification, make regulations, consistent with the Act and the Rules, generally to carry out the provisions of the Act. Section 178(2) provides that, in particular and without prejudice to the generality of the power contained in sub-section (1), such regulations may provide for any of the matters enumerated in clause (a) to (ze) thereunder. Section 178(2)(ze) relates to any other matter which is to be, or may be, specified by regulations. Section 2(62) defines "specified" to mean specified by regulations made by the Appropriate Commission or the Authority, as the case may be, under this Act.
47. Section 2(46) defines "notification" to mean notification published in the Official Gazette, and the expression "notify" shall be construed accordingly. The only fetters placed by Section 178(1), on the CERC exercising its powers to make regulations, are (1) they should generally be made to carry out the provisions of the Act; (2) they must be consistent with the Act and the Rules; and (3) they must be notified in the Official Gazette. The power to make regulations under Section 178(1) is not subject to any other Page 17 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 restrictions, much less to the directives under Section 107(1). As the directives of the Central Govt, under Section 107(1), serve only as a guide to the CERC in the discharge of its functions, the guidance is applicable only when the CERC discharges its functions under Section 79, and not while exercising its powers to make regulations under Section 178 of the Act. The directives, in the letter of the Ministry of Power dated 15.01.2021, for the CERC to suitably amend the 2020 sharing regulations, thus falls well beyond the scope of Section 107(1) of the Act."
35. Therefore, the transmission charges need to be levied in accordance with the Sharing Regulations framed by the Central Commission in the exercise of its regulation making power under Section 178 of the Act, the Regulation 13(3) of the CERC Sharing Regulations 2020 provides that the Yearly Transmission Charges (YTC) for the Associated Transmission System shall be paid by the generating station which has not achieved COD i.e. in case of delay in COD of a generating station, prima facie, it seems that such levy of transmission charges is not linked in any manner, to SCOD of the generating project or its extension, neither any exception is carved out in Regulation 13(3) in respect of delay in COD/SCOD on account of Force Majeure events, the only objective is to protect the transmission assets from getting stranded, the Regulation 13(3) of the Sharing Regulations, 2020 is extracted as under:
"13. Treatment of transmission charges and losses in specific cases 8. Determination of specific transmission charges applicable for a Designated ISTS Customer.
------
(3) Where COD of a generating station or unit(s) thereof is delayed and the Associated Transmission System has achieved Page 18 of 21 Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 COD, which is not earlier than its SCOD, the generating station shall pay Yearly Transmission Charges for the Associated Transmission System corresponding to Long Term Access granted for the generating station or unit(s) thereof, which have not achieved COD:
Provided that Yearly Transmission Charges in respect of Associated Transmission System shall be included for determination of transmission charges of DICs in accordance with Regulations 5 to 8 of these regulations upon the generating station or unit(s) thereof achieving COD."
36. On being asked, the Appellants have failed to place before us any other express provision which negates the applicability of Regulation 13(3) of the Sharing Regulations, 2020 in the instant case, the Applicant has commissioned the transmission project with huge investment and deserves revenue in terms of the transmission charges as per the law.
37. It is a settled principle of law, that the ex-parte injunction could be granted only under the exceptional circumstances, and only when the three principles are satisfied that is (i) where there is a prima facie case in the favour of applicant seeking the order, (ii) when failure to issue the order may result in an irreparable damage to the applicant and such damage may not be ascertained in terms or money and may not be compensable and (iii) The balance of convenience favours the applicant who is requesting the order.
38. In the instant cases, the Applicant herein seeking vacation of stay orders have made huge investments in commissioning the transmission project, and non-recovery of legitimate dues may result the transmission project of FBTL becoming un-viable, thus balance of convenience favours the FBTL.
Page 19 of 21Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022
39. Also, the interim protection granted to the Appellants was on account of "the directives of the Central Government under Section 107 of Electricity Act, 2003", the issue has already been dealt and settled by this Tribunal in Appeal No 352 of 2022 titled Fatehgarh Bhadla Transmission Company Limited vs CERC & Ors. wherein it was held that the directions under Section 107 of the Act is guiding in nature which cannot bind the Central Commission to amend Sharing Regulations in accordance with such directions, therefore, no prima- facie case made up in favour of the Appellants.
40. It is also seen that no irreparable injury shall be caused to the Appellants in case the interim injunction is vacated as they can always recover the amount i.e. the transmission charges paid during the interregnum period, till the Appeal is disposed of.
41. At this stage, we are not adjudicating the main appeals, the limited scope is whether the two separate ex parte ad interim Stay Orders (in short "Stay Orders") dated 08.07.2022 granted by this Tribunal in favour of the Appellants in IA No. 995 of 2022 and 992 of 2022 justify to be recalled, we are satisfied that the IAs filed by the Applicant i.e. Respondent No. 4 (FBTL), have merit and are allowed.
ORDER For the foregoing reasons as stated above, we are of the considered view that the IA No. 751 of 2023 and IA No. 752 of 2023 in captioned Appeal No. 261 of 2022 and 260 of 2022 respectively filed by the Respondent No. 4 i.e. M/s Fatehgarh Badhla Transmission Limited have merit and are allowed.
Page 20 of 21Order in IA No. 752 of 2023 in Appeal No. 260 of 2022 And IA No. 751 of 2023 in Appeal No. 261 of 2022 The ex parte ad interim Stay Orders dated 08.07.2022 granted by this Tribunal, in IA No. 995 of 2022 and 992 of 2022 filed by the Appellants in captioned Appeal Nos. 260 of 2022 and 261 of 2022, respectively, stand vacated.
The IAs are disposed of accordingly, the captioned Appeals are included in the list of Finals to be taken up from there in their turn.
PRONOUNCED IN THE OPEN COURT ON THIS 14th DAY OF DECEMBER, 2023.
(Sandesh Kumar Sharma) (Justice Ramesh Ranganathan)
Technical Member Chairperson
pr/mkj
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