Petition No. 274/2010. Case: Maithon Power Ltd. Vs North Delhi Power Ltd. and Ors.. Central Electricity Regulatory Commission
| Case Number | Petition No. 274/2010 |
| Counsel | For Appellant: Shri Amit Kapur and Shri Aveek Chatterjee, Advocate, MPL |
| Judges | Pramod Deo, Chairperson, V.S. Verma, Member and M. Deena Dayalan, Member |
| Issue | Arbitration And Conciliation Act, 1996 - Section 34; Electricity Act, 2003 - Sections 10(2), 121, 42(2), 62, 62(1), 62(1)(a), 63, 66, 79, 79(1), 79(1) (a), 79(1)(a), 79(1)(a)(b), 79(1)(b), 79(1)(f), 79(4), 86, 86(1)(a), 86(1)(j) |
| Judgement Date | June 08, 2013 |
| Court | Central Electricity Regulatory Commission |
Order:
1. This petition has been filed by Maithon Power Ltd. (MPL) for approval of capital cost and determination of generation tariff of Maithon Right Bank Thermal Power Plant (Units-I and II) (2 x 525 MW) (hereinafter referred to as "the generating station") for the period from the anticipated date of commercial operation of Unit-I i.e. 25.12.2010 and Unit-II (25.4.2011) till 31.3.2014, based on the provisions of the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009 ('the 2009 Tariff Regulations'). The Maithon Right Bank Power Project is situated in Dhanbad District of the State of Jharkhand. The project is envisaged as a Mega Power Project in terms of Ministry of Finance's Notification No. 63/99 dated 13.5.1999 and 100/99-Customs dated 28.7.1999.
2. The petitioner is a public limited company incorporated on 26.7.2000 under the provisions of the Companies Act, 1956. MPL is a joint venture between Tata Power Trading Company Ltd. (TPTCL) having an equity participation of 74% and Damodar Valley Corporation (DVC) having an equity participation of the remaining 26%.
3. The petitioner had filed Petition No. 112/2006 before this Commission seeking exemption from the requirement of competitive bidding for procurement of power under Clause 5.1 of the National Tariff Policy (NTP) on the ground that it was a State controlled entity. The Commission by its order dated 17.1.2007 disposed of the said petition by observing that the adjudication of the petition was without any lis and was beyond the scope of Section 79(1) of the Electricity Act, 2003 (the Act) and the exemption under clause 5.1 of the Tariff Policy could be sought from the Ministry of Power, Government of India.
4. The petitioner entered into Power Purchase Agreement (PPA) with DVC on 28.9.2006 for sale of 300 MW of power on round the clock basis for a period of 30 years. The petitioner also entered into PPA with NDPL on 28.3.2008 for sale of 300 MW power from the project. Subsequently, based on the PPA dated 23.4.2008 between MPL and TPTCL for sale of 750 MW power from the project, Power Supply Agreements (PSA) were entered into by TPTCL for sale of power to the following distribution licensees as detailed under:
5. While so, Petition No. 60/2008 was filed by NDPL before the Delhi Electricity Regulatory Commission (DERC) for approval of long term PPA dated 28.3.2008 with MPL and on 30.4.2009, the PPA was approved by DERC subject to the approval of tariff by this Commission. Against this order dated 30.4.2009 some of the other distribution companies, namely, BRPL and BYPL filed appeals before the Appellate Tribunal for Electricity ('the Appellate Tribunal') bearing Appeal Nos. 106 and 107 of 2009 on the ground that the approval of PPA dated 28.3.2008 was against the provisions of Section 62 and 63 of the Act, the Tariff Policy dated 6.1.2006, the guidelines for competitive bidding for procurement of power dated 19.1.2005 and also on the ground that the order of DERC dated 30.4.2009 suffered from want of jurisdiction as the Central Commission only had the jurisdiction to approve tariff. Thereafter, the Appellate Tribunal by its judgment dated 31.3.2010 in Appeal Nos. 106 and 107/2009 dismissed the above said appeals. Against this judgment, the Union of India and the respondents namely, BRPL and BYPL, have filed appeals before the Hon'ble Supreme Court of India and the same are pending.
6. On 16.2.2010, the West Bengal Electricity Regulatory Commission (WBERC) approved the PSA dated 24.12.2008 executed between TPTCL and WBSEDCL for supply of 150 MW of power from the generating station.
7. In the above background, the present petition has been filed by the petitioner for determining the tariff for the generating station from the date of commercial operation of the units till 31.3.2014.
8. During the pendency of the petition, the petitioner filed Interlocutory Application (IA No. 11/2011) and revised the expected date of commercial operation of Unit-I as 15.6.2011 along with a prayer for determination of provisional tariff from 15.6.2011 to 31.3.2012 in terms of Regulation 5(4) of the 2009 Tariff Regulations for supply of 150 MW power from Unit-I to the respondent No. 2, DVC. The petition was heard on 24.5.2011 and the Commission after hearing the parties directed the petitioner to submit additional information and listed the matter for further hearing on 21.7.2011. Thereafter, on 22.6.2011 the petitioner filed another Interlocutory Application (IA No. 14/2011) and submitted that Unit-I was expected to achieve commercial operation from 23.6.2011 and Unit-II from 23.12.2011. In the said application, the petitioner also prayed for grant of provisional tariff for Unit-I and II from their anticipated dates of commercial operation upto 31.3.2014 and also for determination of appropriate fuel price adjustment mechanism in terms of Regulation 5(4) of the 2009 Tariff Regulations.
9. The matter was heard on 21.7.2011 on the issue of jurisdiction of this Commission to determine the tariff of the generating station under Section 62 read with Section 79(1)(b) of the Act for sale of 750 MW of power from the generating station to the respondent Nos. 1, 3 and 4 through the respondent No. 5, TPTCL. The Commission after hearing the parties reserved its order on the issue. While so, the petitioner by its letter dated 9.9.2011 submitted that Unit-I of the generating station has been declared under commercial operation on 1.9.2011 and prayed that provisional tariff for supply of power to the respondent No. 2, DVC may be granted from that the said date of commercial operation. Pending decision of the Commission on the issue of jurisdiction to determine tariff for supply of power to the respondent No. 5, TPTCL for further sale to the respondent Nos. 1, 3 and 4 herein, the Commission by its order dated 11.11.2011 disposed of the Interlocutory Application Nos. 11 and 14/2011 and allowed provisional tariff for supply of 150 MW of power from the Unit-I of the generating station to the respondent No. 2, DVC for the period from 1.9.2011 to 31.3.2012 based on the capital cost of ` 203063 lakh as claimed by the petitioner.
10. Thereafter, the petitioner filed Interlocutory Application (I.A. No. 20/2012) stating that it has been granted Long Term Open Access (LTOA) by PGCIL on 29.3.2012 and based on the PPA, the sale of power to the respondents under LTOA in respect of shares in the generation capacity has commenced from Unit-I of the generating station from 1.4.2012. Accordingly, the petitioner prayed that the provisional tariff granted in respect of Unit-I for the period from 1.9.2011 to 21.3.2012 by order dated 11.11.2011 may be further extended from 1.4.2012 till the final disposal of the petition. It was also submitted by the petitioner that Unit-II of the generating station was likely to achieve commercial operation by 1.7.2012. Thereafter, the petitioner also filed Interlocutory Application (I.A. No. 21/2012) for amendment of the petition taking into consideration the revised capital cost from the date of commercial operation of Unit-I (1.9.2011) and the anticipated date of commercial operation of Unit-II (from 1.7.2012) and accordingly prayed, amongst others, for determination of tariff of the generating station upto 31.3.2014.
11. Taking into consideration the submissions of the petitioner, the Commission by its order dated 15.5.2012 extended the provisional tariff granted for Unit-I by order dated 11.11.2012 in respect of 150 MW supply of power to the respondent No. 2 DVC from 1.4.2012 to 31.3.2014 or till the final disposal of the petition whichever was earlier. Accordingly, the Interlocutory Applications (I.A. Nos. 20 & 21/2012) were disposed of. As regards the question of the jurisdiction of the Commission to determine the tariff of the generating station for sale of 750 MW of power to the respondent Nos. 1, 3 and 4 through the respondent No. 5, TPTCL, the same was kept pending as the Commission was considering a similar question of law in Petition No. 184/2009 in respect of Talcher TPS.
12. By letter dated 22.8.2012, the petitioner was advised to file Interlocutory Application giving details of the revised capital cost as per COD of Unit-II of the generating station i.e. 24.7.2012, with copies to the beneficiaries. In compliance with this, the petitioner has filed Interlocutory Application No. 4/2013 seeking approval of capital cost of the project and generation tariff for Unit I and II of the generating station.
13. As regards the sale of power to PSPCL (erstwhile PSEB) vide PSA dated 26.2.2009, the...
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