Appeal No. 338 of 2016 and IA Nos. 732, 733, 734 of 2016 and 69 of 2017. Case: M.P. Biomass Energy Developers Association and Ors. Vs Madhya Pradesh Electricity Regulatory Commission and Ors. APTEL (Appellate Tribunal for Electricity)
| Case Number | Appeal No. 338 of 2016 and IA Nos. 732, 733, 734 of 2016 and 69 of 2017 |
| Counsel | For Appellant: M.G. Ramachandran, Anand K. Ganesan, Swapna Seshadri and Aditi Mohapatra andFor Respondents: P.K. Kaurav, Venkatesh, Varun Singh, Pratyush Singh, Shashank Khurana and Natabrata Bhattacharya |
| Judges | Ranjana P. Desai, J. (Chairperson), T. Munikrishnaiah and I.J. Kapoor, Members (T) |
| Issue | Electricity Act, 2003 - Sections 111, 142, 15, 178, 3(xi), 42, 61, 62, 62(1), 79, 86(1)(c), 86(1)(e) |
| Judgement Date | March 20, 2017 |
| Court | APTEL (Appellate Tribunal for Electricity) |
Judgment:
T. Munikrishnaiah, Member (T)
1. Facts leading to constitution of Full Bench.
The Appeal No. 211 of 2015, filed by Biomass Energy Developers Association and Others against the State Commission's Order dated 13.08.2015 by Madhya Pradesh State Commission, was heard at length by the Bench comprising Hon'ble Justice Mr. Surendra Kumar, the then Judicial Member and Hon'ble Mr. T. Munikrishnaiah, Technical Member and the Judgment was passed on 04.05.2016, determined the GCV of biomass fuels and station heat rate and directed the State Commission of Madhya Pradesh to re-determine the tariff passed on these values. The State Commission passed an Impugned Order dated 30.11.2016 considering the GCV of fuel and station heat rate as decided by this Tribunal in the Judgment dated 04.05.2016. The State Commission in the Impugned Order dated 30.11.2016 incorporated certain terms and conditions and stated that the tariff order shall be subject to terms and conditions mentioned in the Impugned Order dated 30.11.2016.
1.1 Aggrieved by the Order of the State Commission, the Appellants filed the Appeal against the Order dated 30.11.2016 under Section 111 of the Electricity Act, 2003 passed by Madhya Pradesh Electricity Regulatory Commission.
1.2 The Counsel of both the parties requested this Tribunal to constitute a Full Bench and hear the Appeal. Accordingly, the Hon'ble Chairperson of this Tribunal felt that the matter in the Appeal involves complicated technical issues and hence felt it necessary to have the assistance of both the Technical Members. Hence, this full bench was constituted.
2. The appellant No. 1, M.P. Biomass Energy Developers Association, has been formed by the developers setting up biomass based generating stations in the State of Madhya Pradesh and takes up the matters concerning the developers at various levels. The appellant No. 2, M/s. Orient Green Power Ltd., is a company incorporated under the Companies Act, 1956 and has set up a 10 MW biomass based power plant in District Narsinghpur in the State of Madhya Pradesh. The plant was commissioned on 22.01.2014. The appellant No. 3, M/s. Arya Energy Ltd. is another developer has set up a 12 MW biomass based plant in District Annuppur in Madhya Pradesh. The appellant No. 4, M/s. Shalivahana Green Energy Limited is another developer has set up a 15 MW biomass based plant in District Chhindwara in Madhya Pradesh.
2.1. The respondent No. 1 is the State Commission exercises regulatory and tariff determination functions under the Electricity Act, 2003 read with the Madhya Pradesh Vidyut Sudhar Adhiniyam, 2000. The respondent No. 2, Madhya Pradesh Power Management Company is the holding company of all the distribution companies in the State of Madhya Pradesh.
3. Brief facts of the case:
3.1. The State Commission passed a Tariff Order dated 02.03.2012 determining the Tariff for procurement of power by the distribution licensees from the biomass based projects for the period 2012-14.
3.2. The Tariff Order dated 02.03.2012 was challenged before this Tribunal in Appeal No. 93 of 2012 by Biomass project developers. The State Commission passed the Impugned Order dated 03.05.2013 re-determining the tariff for biomass projects as per the directions of this Tribunal in the judgment dated 18.02.2013 in Appeal No. 93 of 2012.
3.3. Aggrieved by the order dated 03.05.2013 passed by MPERC the Appellants have filed Appeal No. 144 of 2013 before this Tribunal.
3.4. This Tribunal in the Judgment dated 29.05.2014, in Appeal No. 144 of 2013 remanded the matter to the State Commission to re-determine the Gross Calorific Value (GCV) of the fuel and the Station Heat Rate (SHR) as the State Commission has not given reasoned findings for considering the same values with regard to GCV of fuel and SHR.
3.5. The State Commission, as per the directions of this Tribunal in the judgment dated 29.05.2014, issued a public notice to the appellants, respondents and Department of New and Renewable Energy, Government of Madhya Pradesh and hearing was held on 03.07.2014. The Dept. of New and Renewable Energy of the Government of Madhya Pradesh was directed by the State Commission to furnish a report on the issue of GCV and SHR of the fuels available in the State of Madhya Pradesh. The Deputy Commissioner, NRED, Bhopal vide letter No. 1174 dated 08.09.2014 submitted the GCV test results of two samples of rice husk, one sample of wheat husk and mulberry each. The State Commission did not consider the values given by NRED stating that the size of the samples taken by NRED was too small and did not represent the GCV on biomass fuel in the State as a whole and considered the earlier GCV for the biomass at 3600 Kcal/kg and station heat rate of 3800 Kcal/Kwh.
3.6. Aggrieved by the Order dated 13.08.2015, the Appellant, Biomass Energy Developers Association, filed Appeal No. 211 of 2015 for fixing of GCV of fuel and SHR.
3.7. This Tribunal in the judgment dated 04.05.2016, in Appeal No. 211 of 2015, based on the test reports submitted by Deputy Commissioner, NRED, Bhopal and as per the CERC's (Terms and Conditions for tariff determination from Renewable Energy Resources) Regulations 2012 and as per the expert committee of Central Electricity Authority in its report of September, 2005 on operational norms for biomass based power plants and as per the study report of the National Productive Council who has conducted the detailed assessment study for the biomass plants, this Tribunal concluded the GCV as 3100 kCal/Kg and SHR at 4200 kCal/kWh. This Tribunal directed the State commission to re-determine the tariff of biomass generating power plants in the State of Madhya Pradesh, considering GCV as 3100 kCal/Kg and SHR 4200 kCal/kWh.
3.8. The M.P. Biomass Developers Association had filed an Execution Petition No. EP-7 of 2016 before this Tribunal against the Commission towards non-execution of order of this Tribunal passed on 04.05.2016 in Appeal No. 211 of 2015. The case was heard on 03.10.2016 and the Execution Petition No. EP-7 of 2016 was disposed of with the direction that the order dated 04.05.2016 is to be implemented within a period of 8 weeks from 03.10.2016.
3.9. M.P. Power Management Company Ltd. filed a Civil Appeal No. 6547/4016 before Hon'ble Supreme Court and the Hon'ble Supreme Court dismissed the Civil Appeal with the following directions:
We find no substantial questions of law arising for an order of formal adjudication of the appeal. The Appeal is accordingly dismissed. Consequently I.A. No. 2 for stay is also dismissed
3.10. The State Commission filed Review Petition No. 21 of 2016, before this Tribunal regarding GCV of fuel and SHR determined in the judgment dated 04.05.2016. The Review Petition was dismissed by this Tribunal in the order dated 03.10.2016. The operative part of the order is reproduced below:
"9. The Hon'ble APTEL has not taken into cognizance of this fact and passed the order dated 04.05.2016 wherein specific numbers have been provided for the GCV and SHR, which could only have been arrived at by the Commission scientifically based upon the data to be furnished by the Appellant.
"This Review Petition has been filed by Review Petitioner seeking review of order dated 04.05.2016 passed in Appeal No. 211 of 2015. Admittedly, from order dated 04.05.2016 an appeal was carried to the Supreme Court by MP Power Management Company Ltd. and on 25.07.2016 the Supreme Court dismissed the said appeal by passing the following order:
"UPON hearing the counsel the Court made the following
ORDER
Exemption from filing certified copy of the impugned judgment is granted.
We find no substantial question of law arising for an order of formal adjudication of the appeal. The appeal is accordingly dismissed. Consequently, I.A. No. 2 for stay is also dismissed."
In view of the above, this Review Petition cannot be entertained Review Petition is dismissed accordingly."
3.11. In compliance to the directions of this Tribunal passed in its judgment dated 04.05.2016, the Gross Calorific Value (GCV) at 3100 kCal/Kg and State Heat Rate (SHR) at 4200 kCal/kWh are considered. Accordingly, by its order dated 30.11.2016 the State Commission set the year wise tariff for generation of electricity from new biomass energy projects commissioned on or after 02.03.2012 as under:
The tariff mentioned above of this order shall be subject to the following terms and conditions:
(a) This tariff shall be applicable till 31.03.2017 or the new tariff order is issued, whichever is earlier.
(b) The projects for more than 2 MW are subjected to the 'scheduling' and 'merit order dispatch principles' in terms of the para 8.10 of the tariff order dated 02.03.2012 since date of commissioning.
(c) This tariff order is applicable to the projects using rice husk, wheat husk, mulbury and coal (limited to 15% of the total fuel on annual basis) only as a fuel based on which GCV has been decided by the Hon'ble APTEL in its Judgment dated 04.05.2016.
(d) This tariff shall be applicable for the projects for which Power Purchase Agreement has already been executed at the time of commissioning of the project.
(e) The M.P. Power Management Co. Ltd., Jabalpur shall submit, the draft of the Power Purchase Agreement to be executed, if any, with the developer of biomass based power projects to be commissioned after the date of this order, for approval of the Commission.
(f) The developers shall have to submit monthly information, as required under para 8.25 of the tariff order dated 02.03.2012, to the M.P. Power Management Co. Ltd., Jabalpur by 10th day of each month following the month of information failing which action as per the provisions of para 8.26 of the tariff order dated 02.03.2012 must be ensured by the M.P. Power Management Company Limited.
3.12. Aggrieved by the State Commission's Impugned Order dated 30.11.2016, passed by Madhya Pradesh Electricity Regulatory Commission, the appellants filed this...
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