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f) On 7/2/2014, NPCL wrote a letter to UPPTCL with a request to issue directions to UPSLDC to provide its NOC for availing Inter-State Open Access. Similar letters were sent by NPCL on 8/2/2014 and 10/2/2014.

g) On 12/2/2014, NPCL filed Petition No.934 of 2014 before the State Commission under Section 86(1)(c) & (f), 35 and 36 of the Electricity Act, 2003 alleging that UPSLDC was arbitrarily holding back its NOC. The NPCL prayed that the Respondents be directed to facilitate Open Access as per the application submitted/to be submitted for transmission of power to NPCL.

A. Nos. 231 & 251 of 2015

h) The long term and medium term Power Procurement to the Appellant will be curtailed to provide STOA power to NPCL. In fact Curtailing transmission of power to the Appellant will cause irreparable loss and injury to the Appellant and consumers of Appellant's distribution companies ("Discoms").

i) The communication from UPPTCL and UP SLDC before State Commission only recommends that a capacity of 237 MW can be made available to NPCL only if NPCL executes a long term Power Purchase Agreement and consequently seeks long term open access. Even after directions issued by State Commission in the Impugned Order dated 10.09.2014, till date NPCL has not executed any long term PPA. As such in the absence of any long term PPA, the short term open access can be allowed only if any surplus capacity is available in the system. Appellant is also procuring power through inter-State STOA, which alike NPCL is granted to the Appellant on day ahead basis only.

j) NPCL has failed to place on record any BPTA executed with Central Transmission Utility. NPCL has executed BPTA with UPPTCL on 27.03.2014. The said BPTA was not in existence at the time when the PPA in dispute was executed between NPCL and Shree Cements Ltd. The BPTA treats NPCL as Long Term Customer since, at the relevant time, NPCL had a long term PPA with Essar Power Ltd. and accordingly, NPCL was a Long Term Customer in line with the definition of "Open Access Customer" in the UPERC Open Access Regulations, 2004. The said long term between NPCL and Essar Power is now stands terminated. Accordingly, the BPTA cannot be said to be in existence. Even otherwise, an Agreement cannot A. Nos. 231 & 251 of 2015 override express terms of Electricity Act, 2003 and the Regulations framed hereunder.

l) It has been brought to our notice that despite State Commission direction that NPCL must tie-up for long / medium term power, NPCL has not entered so far in long term contracts for purchase of power. We would like to put a remark on this count that the directions of State Commission are to be followed by NPCL in order to provide secure and reliable power supply to the consumers of NPCL.

However, these are aspects on the nature of power purchase. The Commission is well within its right to direct NPCL to arrange for the power purchase on Long Term Basis considering the interest of the consumers in the area of distribution of NPCL. The issue whether the Short Term purchase made by NPCL for meeting the requirements of the consumers, which NPCL claims to be for the benefit of the consumers, as it is able to procure at cheaper price, based on the prevalent circumstances, is independent of this aspect A. Nos. 231 & 251 of 2015 whether NPCL is using the Intra State Transmission System of UPPTCL on a Long Term basis or Medium Term basis or Short Term basis. Further NPCL is paying to UPPTCL the Long Term usage charges for the use of the transmission system of UPPTCL.