Indian Kanoon - Search engine for Indian Law

vii) The Appellant filed a tariff petition before the State Commission as per the CERC tariff Regulations,2009. The Haryana Power(R2) also took a stand before the State Commission that CERC Tariff Regulations alone should apply. The PTC contended before the State Commission that the tariff should be determined as per the provisions of the Electricity Act,2003 and Regulations framed thereafter. Even the terminated PPA provided for the applicability of the CERC tariff Regulations. However, the State Commission has applied the State Commission's Regulations,2008 for certain components and applied CERC Regulations for operation and maintenance component. Thus, the State Commission adopted a pick and choose policy while determining the tariff. The only reason given by the State Commission in not uniformly applying the CERC Tariff Regulations is that the Hon'ble Supreme Court had remanded the matter only to pg. 18 State Commission and not the Central Commission and that therefore, the State Commission could not adopt CERC Regulations. This approach is quite wrong.

ix) Merely because the Hon'ble Supreme Court directed the State Commission to make tariff determination for the disputed period and not the Central Commission, the State Commission could not exclude the application of the CERC Tariff Requlations, especially when the facts of the case otherwise call for the applicability of such Regulations. The Hon'ble Supreme Court did not observe anything to preclude the State pg. 19 Commission from applying CERC tariff Regulations. In any event, even the terminated PPA on which heavy reliance is placed by the State Commission, itself provides for applicability of the Central Commission's Regulations,2009. Therefore, the approach of the State Commission in applying CERC Tariff Regulations,2004 only for one component and applying the State Commission's Regulations for other component is blatantly illegal.

"(f) The Appellant terminated the PPA vide letter dated 11.1.2011. This termination has been challenged by Respondent No. 3 by invoking the arbitration clause in the terminated PPA vide a notice of arbitration dated 25th March 2011. The Arbitral Tribunal has been constituted and the pleadings have been completed and subsequent hearings have been fixed. The Arbitral Tribunal has not passed any order staying the termination of the PPA. In the circumstances when the issue of termination of the PPA was not an issue in the appeal before the Appellate Tribunal, the Appellate Tribunal ought not to have been continued the operation of the interim order by way of the Impugned Order directing supply of power under the PPA which has since been terminated and separate proceedings are pending in connection with the termination of the PPA.

3. In the absence of any rate for supply of power fixed in the Interim Order dated 23.3.2011 by the Appellate Tribunal and continued by way of the Impugned Order, the power being supplied by the Appellant to respondent No. 5 and Respondent No. 3 is being charged at a price arrived based on the Central Electricity Regulatory Commission (CERC) Regulations / Norms, which is a fair mechanism widely used in India for purchase of power by distribution licensees/state utilities from generating pg. 34 stations of State and Central sectors. The Appellant states that on the one hand, for the 35% power supplied the Respondent No. 5, is paying the Appellant in terms of the CERC norms and on the other hand Respondent No. 3 is only paying Rs. 2.32 per kwh, which is the rate contained in the terminated PPA. This issue was raised before the Appellate Tribunal orally during the course of the hearing of the arguments, however, the Appellate Tribunal paid no heed to the submissions of the Appellant and went onto even continue the interim arrangement even after rendering the final order. The conduct of Respondent No. 3 in not paying the Appellant in terms of the invoices being raised; is neither supported by the Impugned Order and/or the Interim Order dated 23.03.2011 and is in fact severally prejudicing the interests of the Appellant. As has been stated above and in the accompanying appeal, the Government of Chhattisgarh requires the Appellant to supply power in consideration of the various facilities and benefits granted to the Appellant to set up the plant in Chhattisgarh and the Appellant apprehends that if it is not in a position to supply power due to non-payment by Respondent No. 3, the Appellant may have to suspend generation which may lead to withdrawal of benefits by the Government of Chhattisgarh thereby putting the whole project in jeopardy.