Petition No. 38/MP/2012. Case: Noida Power Company Limited, Noida Vs Uttar Pradesh State Load Despatch Centre, Lucknow and Ors.. Central Electricity Regulatory Commission
| Case Number | Petition No. 38/MP/2012 |
| Counsel | For Appellant: Shri M.G. Ramchandran, Advocate, Shri Vishal Gupta, Advocate, Shri S. Ganguly, Ms. Mayuri Patel and Shri Gautam Ghosh, NPCL and For Respondents: Shri Rahul Srivastava, Advocate for the UPPTCL and SLDC, Shri Sunil Kumar Jain, UPPCL, Shri Mukesh Kumar Gupta, UP SLDC, Shri Chandrakant Shukla, UP SLDC and Shri Gaurav Maheshwari, IEX |
| Judges | Dr. Pramod Deo, Chairperson, Shri S. Jayaraman, Member, Shri V.S. Verma, Member and Shri M. Deena Dayalan, Member |
| Issue | Electricity Act, 2003 - Sections 142, 31 |
| Judgement Date | January 07, 2013 |
| Court | Central Electricity Regulatory Commission |
Order:
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The petition has been filed by Noida Power Company Ltd with the following prayers, namely:
(a) Direct the Respondents No. 1 to 4 to accord clearance/no objection/prior standing clearance in Format PX-1 to the Petitioner to enable the Petitioner in the Power Exchanges(s) to buy/sell power as may be required for efficient management of power supply in its licensed area with immediate effect;
(b) Initiate action against Respondents 1 to 4 under Section 142 of the Electricity Act, 2003 for acting contrary to the provisions of the Act, Rules and Regulations and Orders of the Hon'ble Commission; and
(c) Pass such orders as this Hon'ble Commission may deem just and proper in the circumstances of the case.
The petitioner is a distribution licensee for Greater Noida area in the State of Uttar Pradesh. The petitioner intended to purchase up to 25 MW of power through the power exchanges. Accordingly, during 2008, 2009 and 2010 the petitioner made several attempts with the State Load Despatch Centre, Uttar Pradesh, (Respondent 1) (SLDC) for obtaining "Concurrence/No Objection/Standing Clearance" for purchase of power by making applications in terms of the Central Electricity regulatory Commission (Open access in Inter-State Transmission) regulations, 2008 (the Open access regulations). However, the petitioner did not receive any response from SLDC.
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Feeling aggrieved by the attitude of Respondents 1 to 3 (hereinafter collectively referred to as the respondents), the petitioner filed petition No. 118/MP/2011 before this Commission inter alia to seek appropriate directions to the respondents to accord Concurrence/No Objection/prior Standing Clearance to enable the petitioner to participate in the power exchanges. The said petition was disposed of by order dated 30.11.2011. This Commission after analysis of the provisions of the Open Access Regulations decided that in absence of any response from SLDC within the specified period, Concurrence/No Objection/Standing Clearance was deemed to have been granted and thereafter the petitioner could approach the nodal agency for grant of open access on the basis of deemed Concurrence/No Objection/Standing Clearance. In the facts and circumstances of the case, further direction to SLDC for grant of Concurrence/No Objection/Standing Clearance was unnecessary and as such no such direction was issued.
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In the aforesaid petition the petitioner had also made a prayer for initiation of proceedings under Section 142 of the Electricity Act for non-compliance of the Open Access Regulations. In that context this Commission observed that SLDC had statutory responsibility to reply the applications made for Concurrence/No Objection/Standing Clearance and existence of provision for deemed concurrence did not absolve SLDC of discharging its statutory obligations. The respondents were therefore directed to comply with the Open Access Regulations and to reply to the applications made in future, within the time period specified under the Open Access Regulations.
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The relevant parts of the order dated 30.11.2011 are extracted hereunder:
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The petitioner has requested Respondent Nos. 1 to 3 for concurrence/no objection/standing clearance vide its letters dated 7.11.2008, 12.1.2009, 29.6.2009, 30.10.2009, 30.12.2009, 15.6.2010 and 27.9.2010. It is an admitted fact that the Respondent Nos. 1 to 3 have not responded to these letters. After expiry of the stipulated period, the petitioner has a right to approach the concerned RLDC in terms of clause (4) of Regulation 8 of Open Access Regulations. Obviously, the petitioner has not availed the statutory remedy provided in the Open Access Regulations. The petitioner has not explained the reasons for not approaching the RLDC for open access after expiry of the stipulated period of response by SLDC. In our view, the petitioner has to strictly follow the provisions of the regulations to avail the remedy. It cannot bypass the remedy available to it and approach the Commission for issue of directions to SLDC. It is pertinent to mention that only under Regulation 26 of the Open Access Regulations, an aggrieved person can approach the Commission for adjudication of dispute. Regulation 26 provides that "all disputes arising out of these regulations shall be decided by the Commission based on an application made by the person aggrieved". The petitioner has not been able to establish existence of any dispute between the petitioner and Respondent Nos. 1 to 3, particularly in view of the submission of the respondents that the petitioner could have availed the open access in terms of Regulation 8(4) of Open Access Regulations.
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The petitioner has sought appropriate directions to Respondents Nos. 1, 2 and 3 to accord Concurrence/No Objection/prior Standing Clearance in format-PX-1 to the petitioner to participate in Power Exchange (s). This prayer of the petitioner needs to be considered in the light of the fact whether the petitioner was prevented by the Respondent Nos. 1 to 3 from trading at the power exchange. As already discussed in the preceding paragraph, the petitioner in the absence of any response from the Respondent Nos. 1 to 3 has a statutory remedy in the form of deemed clearance or no objection or prior standing clearance for trading at the power exchange(s). The regulations do not provide for issue of directions to SLDCs in such circumstances.
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The petitioner has also prayed for appropriate action...
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