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5.3 The Hon'ble Madras High Court, by the judgment in W.P. No. 22097 of 2013, while upholding the powers of the TNERC to pass such an amendment, nevertheless accepted the position that the Explanatory Statement to the Amendment showed that the Amendment was introduced since 'in the long run Pooled Cost of Power Purchase may exceed the preferential Tariff fixed by the Commission due to escalation of fuel cost' and that it was prudent that a limit has to be fixed. Therefore since the object to introduce the cap was in that context, the need to implement cap had not arrived since the APPC had not exceeded the Preferential Tariff. The Hon'ble High Court therefore held that the notification can be implemented with effect from the date of such breach as notified by the TNERC and granted liberty to the petitioners to move the TNERC for appropriate directions.

The High Court further observed that the notification dated 19.06.2013 can be implemented only with effect from the date of such breach as notified by the TNERC.

7.9.2. TNERC has arrived at erroneous conclusion by taking the rate of preferential tariff, which as per TNERC Order No. 3 dated 15.05.2006, is applicable to '... wind power projects commissioned, and to be commissioned based on agreements executed prior to the date of this order (i.e. from 2001 to 15.05.2006)' was prevailing before 2006 as the basis for arriving at the conclusion that the breach occurred in 2013-14, when APPC was fixed at Rs. 3.11 / kWh from Rs. 2.54 / kWh. It is wholly irrational to make a comparison to a rate which was much prior to even the introduction of REC mechanism. The order of the TNERC seeks to nullify a binding judgment of the High Court.

7.9.3 Out of the two respondents (TANGEDCO and TNERC), only TNERC has filed their counter-affidavit. The TNERC counter-affidavit is more or less on the same lines as their order in the matter and the Written Submissions deal with the stand.TANGEDCO has not filed their counter-affidavit but has filed Written Submissions on 14.03.2019 before the APTEL. In as much as the present appeal exclusively deals with an amendment, the directions of the Hon'ble High Court and the order passed by the TNERC as a consequence thereto, the stand of the TANGEDCO and its submissions to the extent they seek to supply reasons, provide justifications and support the impugned order are irrelevant. It would however be necessary to point out that, there are several errors and many portions of the written submissions are factually and legally incorrect. Some of such submissions are:-

9.3 The main prayer of the appellants in the writ petition No.22097 of 2013 was to issue a writ of declaration that the impugned amendment to regulations TNERC (Renewable Energy Purchase Obligation) Regulations 2010 issued in Notification No. TNERC/RPO/19/3 dt.21.1.2013 and all consequential orders including the consequential order No. TNERC/M.04- 2/E/RPO/dt.15.7.2013 as being arbitrary, illegal and ultravires the powers of the TNERC and contrary to the provisions of the Electricity Act,2003 and the regulations framed thereunder.