correction required copy of appeal
TRANSCRIPT
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
I.A.No. of 2012
APPEAL No. OF 2012
Between
TAMILNADU SPINNING MILLS ASSOCIATION
#2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001
Tamilnadu,
Represented by Dr.K.Venkatachalam
Chief Advisor, …APPELLANT
Versus
1.TAMIL NADU ELECTRICITY REGULATORY
COMMISSION,
19-A, Rukumini Lakshmipathy Salai,
Egmore, Chennai – 600 008.
2. TAMILNADU GENERATION AND DISTRIBUTION
CORPORATION LTD
144, Anna Salai,
Chennai – 600 002.
represented by its Chairman and Managing Director,
3.TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…RESPONDENTS
PAPER BOOK
ADVOCATE FOR THE APPELLANT: Mr.R.S.PANDIYARAJ
INDEX
Sl.No. Date Particulars Page
I Synopsis and List of Dates and
Events
II Appeal with Affidavit
III Application for Interim Stay with
Affidavit
IV List of Enclosures
1. 08.02.2008 TNERC-Power procurement from
New and Renewable Sources of
Energy Regulations, 2008
2. 08.04.2011 Tariff Order No.1 of 2011 of 1st
Respondent
3. 08.09.2011 Public Notice of 1st Respondent
4. 29.09.2011 Comments filed by the Appellant in
pursuance of the Public Notice
5. 15.12.2011 Tariff Order No.4 of 2011 of 1st
Respondent
6. 24.05.2012 Notice fixing the Stakeholder’s
Hearing on 8th June 2012
7. 04.06.2012 Letter of the 1st Respondent
Commission sent to the Appellant
intimating no Consultative Paper
would be released
8. 08.06.2012 Written Submission filed during the
Stakeholder’s Hearing on
08.06.2012 by the Appellant
9. 30.06.2012 Order No.3 of 2012 of the 1st
Respondent
10. 31.07.2012 The Impugned Order of the 1st
Respondent Tamilnadu Regulatory
Commission in T.R.No.6 of 2012
11. . 08.2012 Working Instruction issued by the
2nd Respondent TANGEDCO
12. 30.08.2012 Memo of 2nd Respondent providing
instructions to withdraw deemed
demand concept
13. 24.09.2012 Model Demand raised by the SE of
2nd Respondent based on the
working instruction
V Vakalathnama
OPENING SHEET
Appeal/
AF
R.No. of
2012
Date of
Filing/201
2
AppellantRespondent
s
Counsel of
Appellant
DD
Detail
s
Relief
sought
briefly &
accurately
for
permanent
record
purpose
with
provisions
of law
involved
13.09.2012
Tamilnadu
Spinning
Mills
Associatio
n
1)Tamilnadu
Electricity
Regulatory
Commission
and others
R.S.Pandiyar
aj
SYNOPSIS
A. The Appellant is an Association of yarn spinning mills having member
strength of 501 spinning mills and all of them are HT electricity consumers in
the State of Tamil Nadu. The Appellant had earlier filed Petitions before
various fora on issues relating to the rights of its members in the Electricity
Sector including the Hon'ble Tribunal.
B. The First Respondent is the Tamil Nadu Electricity Regulatory Commission
(Commission) who has issued the impugned Order.
C. The Second Respondent is Tamilandu Generation and Distribution
Corporation Ltd. (TANGEDCO) who has issued subsequent working
instructions based on the impugned Order.
D. The 3rd Respondent is the Tamilnadu Transmission Corporation Ltd
(TANTRANSCO) who has strong interests in the appealed matters.
E. The First Respondent issued the impugned Comprehensive Tariff Order on
Wind Energy in TR No. 6 of 2012 on 31.07.2012 covering tariff and other
various matters relating to wind energy and it is to be enforced by the 2nd
Respondent as far as the members of the Petitioner’s Association, who are
having windmills and such other windmill owners in the State of Tamilnadu.
F. The tariff fixation exercise was initially handled by the Tamilnadu Electricity
Board (TNEB) for the wind energy generators in the State of Tamilnadu.
Thereafter coming in to force of Electricity Act 2003, as the powers to regulate
Tariff and other related issues for NCES based industries are vested with the
State Regulatory Commissions, the 1st Respondent has started these
exercises and accordingly, they were periodically being taken up by the
Respondent Commission. Accordingly, the first Order of the Commission was
passed on 15.05.2006 in Order No. 3 of 2006. Thereafter another Order was
passed in Order No. 1 of 2009 dated 20.03.2009 which has to expire on
31.03.2011 in the normal course. However, owing to reasons attributable to
the 1st Respondent Commission, the next Order was not passed when it was
due. Instead three extensions have been ordered by the Respondent
Commission extending the Order dated 20.03.2009 for three spells namely
from 01.04.2011 to 31.12.2011, from 01.01.2012 to 30.06.2012 and from
01.07.2012 to 31.07.2012. Finally the impugned Order was passed on
31.07.2012.
G. After the receipt of the impugned Order dated 31.07.2012 from the
Respondent Commission, the 2nd Respondent started issuing the working
instructions as how the impugned order should be implemented in various
spheres.
H. The Respondent Commission has issued the impugned order on 31.07.2012,
under the powers vested under Section 61 of the Electricity Act 2003,
notifying various procedures to be followed in the case of wind energy
generators in the State both for selling to 2nd Respondent and for those
consuming their power for their own captive purposes.
I. As per the Impugned Order, from 01.08.2012 onwards, if any WEG (Wind
Energy Generator) is newly installing in the State of Tamilnadu and wants to
sell its power to the 2nd Respondent, it is eligible to claim a tariff of Rs.3.51
per unit under non REC Scheme. Inter-alia for those who are already in
agreement with the 2nd Respondent for making use of the wind energy for
their captive purposes drastic changes have been ordered in the impugned
Order dated 31.07.2012 without the authority of law. The Impugned Order has
taken out the privileges and promises so far made available to the captive
consumers of wind energy as per the orders dated 15.05.2006 and
20.03.2009 by which they are covered.
J. Therefore, the impugned Order dated 31.07.2012 passed by the 1st
Respondent in Order No. 6 of 2012 in so far as it is made applicable to even
the existing WEGs, needs to be set aside in total and to the extent submitted
below under the following grounds.
K. The said impugned Order dated 31.07.2012 is therefore, under challenge
before this Hon'ble Tribunal in the present Appeal.
LIST OF DATES AND EVENTS
S.No. Date Event
1. 01.01.1994
Policy announcement was made by the
Ministry of Non-Conventional Energy Sources,
Government of India on remunerative tariff for
non-conventional energy sources
2. 25.11.1994
Government of India issued guidelines for
fixation of Purchase Price for Power Produced
from Non-Conventional Energy
3. 10.06.2003 Electricity Act 2003 is brought into force
4. 12.02.2005
National Electricity Policy was issued pursuant
to the provisions of the Electricity Act, 2003
which suggested providing promotional
measures for increasing capacities in non-
conventional sources based energy production
5. 15.05.2006
Tariff Order No. 3 of 2006 issued by the Tamil
Nadu Electricity Regulatory Commission for
Non-Conventional Energy Sources based
Generating Plants and Non-Conventional
Energy Sources based Co-generation Plants.
Pertinently, this order provided that it would
apply to all plants commissioned after
15.05.2006 and power purchase agreements
in existence prior to the date would continue to
remain in force.
6. 08.02.2008
Power Procurement from New and Renewable
Sources of Energy Regulation 2008 was
framed by TNERC
7.
19.09.2008 Common Order in MP Nos. 9, 14, 23 of 2008
by the TNERC waiving the application of Tariff
Order No. 3 of 2006 from 19.09.2008 onwards
8. 20.03.2009 The Commission has issued Comprehensive
Tariff Order on Wind Energy (Order No.1 of
2009) with an operative period of two years
from 20.03.2009 to 31.03.2011.
9. 08.04.2011 The Commission has issued an Order No.1 of
2011 dated 08.04.2011 extending the validity
of the Order dated 20.03.2009 for the period
from 01.04.2011 to 31.12.2011.
10. 08.09.2011 The Commission issued Public Notice inviting
the views of stakeholders on three main areas
11. 29.09.2011 In pursuance of the Public Notice dated
08.09.2011, the Appellant filed Written
Submission before the Commission
expressing the comments and suggestions
12. 15.12.2011 The Commission has issued an Order No.4 of
2011 dated 15.12.2011 extending the validity
of the Order dated 20.03.2009 for the further
period from 01.01.2012 to 30.06.2012.
13. 24.05.2012 The Commission has informed the Appellant
and other Stakeholders to participate in the
Stakeholders’ Hearing on 08.06.2012 at
Chennai.
14. 04.06.2012 The 1st Respondent Commission sent a letter
to the Appellant intimating that no Consultative
Paper would be released
15. 08.06.2012 Public Hearing held at Chennai and the
Appellant filed Written Submission during the
hearing
16. 30.06.2012 The Commission has issued an Order No.3 of
2012 dated 30.06.2012 extending further the
validity of the Order dated 20.03.2009 for the
period from 01.07.2012 to 31.07.2012.
17. 31.07.2012 The Commission has issued the impugned
Order No.6 of 2012 dated 31.07.2012.
18. .08.2012 The 2nd Respondent TANGEDCO has issued
suitable working instruction for the
implementation of the Impugned Order.
19 30.08.2012 Memo of 2nd Respondent providing instructions
to withdraw deemed demand concept
20 24.09.2012 Demands raised by the SEs of 2nd Respondent
based on the working instruction
FORM I
(See Rule 20)
Memorandum of Appeal
preferred under sub-section 1 and 2
of Section 111 of The Electricity Act, 2003
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
APPELLATE JURISDICTION
APPEAL No. _____ of 2012
BETWEEN
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001
Tamilnadu.represented by Dr.K.Venkatachalam
its Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND
DISTRIBUTION CORPORATION LTD,
represented by its Chairman and Managing Director,
144, Anna Salai,
CHENNAI – 600 002.
(3). TAMIL NADU TRANSMISSION
CORPORATION LTD
Represented by its Chairman and Managing Director,
144, Anna Salai,
CHENNAI – 600 002.
…Respondents
1. Details of Appeal
Appeal under sub-section 1 and 2 of Section 111 of the Electricity Act,
2003 is hereby preferred against the impugned Order of the Tamil Nadu
Electricity Regulatory Commission (TNERC), Chennai – 600 008 dated
31.07.2012 passed under the provisions of the Electricity Act 2003.
2. The said order was communicated to the Appellant on 01.08.2012.
3. The address of the Appellant for service is as set out hereunder:
i) TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001
Tamilnadu.
represented by Dr.K.Venkatachalam its Chief Advisor,
Phone No. 0451- 6454666, 6454667, 6454668
Mobile No. 98421 33318
E-mail [email protected]
Fax No. 0451- 2433637
Address of Counsel:
MR. R.S. PANDIYARAJ
Advocate,
B-1, Sai Sadan, No.27, North Mada Street,
Thiruvanmiyur,
Chennai – 600 041.
Mobile No. 99621-47678, 94443-62252
Mail ID [email protected]
4. The address of the Respondents for service of all notices in the
Appeal is as set out hereunder:
i) Tamil Nadu Electricity Regulatory Commission,
TIDCO Office Building,
19A, Rukmani Lakshmipathy Salai,
Marshall Road,
Chennai – 600 008.
Phone number: 044 2841 1378, 044 2841 1379
E-mail: [email protected]
Fax Number 044 2841 1377
ii) Tamil Nadu Generation and Distribution Corporation Ltd,
144, Anna Salai,
Chennai – 600 002.
represented by its Chairman and Managing Director,
Phone number: 044 2852 0167
E-mail [email protected], [email protected]
Fax Number: 044 2852 0167
iii) Tamil Nadu Transmission Corporation Ltd,
144, Anna Salai,
Chennai – 600 002.
represented by its Chairman and Managing Director,
Phone number: 044 2852 0167
E-mail [email protected]
Fax Number: 044 2852 0167
5. Jurisdiction of the Appellate Tribunal
The Appellant declares that the subject matter of the Appeal is within the
jurisdiction of this Tribunal.
6. Limitation
The Appellant declares that the Appeal is filed within the period specified
in sub-section (2) of section 111 of the Act as the Appeal is preferred well
before the expiry of 45 days (i.e., 15.09.2012) from the date of Order of
Tamil Nadu Electricity Regulatory Commission (31.07.2012) against which
this Appeal is preferred.
7. The facts of the case are given below:
7.1 The Appellant Association had earlier filed Petitions before various fora on
issues relating to the rights of its members in the Electricity Sector,
including this Tribunal.
7.2 Before the Electricity Act 2003 came in to force, the sale of wind energy,
the price on the sale and all other issues relating to captive consumption
of wind energy were all being regulated by Power Purchase Agreement
(PPA) as decided by the then Tamilnadu Electricity Board (TNEB) and
accordingly, all matters have been regulated as per the PPA. After coming
in to force of the Electricity Act 2003, the First Respondent has started
issuing orders on tariff on wind energy and on other allied issues from time
to time as per the powers vested under Section 61 of the Electricity Act
2003. Accordingly, the first Order of its kind was issued on 15.05.2006 in
Order No.3 of 2006. Thereafter a second Order of its kind was issued on
20.03.2009 in Order No. 1 of 2009. This Order was having the validity
originally up to 31.03.2011. However, owing to reasons attributable to the
1st Respondent, no fresh order was issued and the Order dated
20.03.2009 itself was extended thrice by the 1st Respondent Commission
by its orders dated 08.04.2011 (up to 31.12.2011), 15.12.2011 (up to
30.06.2012) and 30.06.2012 (up to 31.07.2012). Finally, the impugned
order was issued on 31.07.2012 in Order No. 6 of 2012 which came in to
effect from 01.08.2012 onwards and the same is being appealed through
this present appeal petition.
7.3. The Respondent Commission while issuing orders on wind energy took
care about the tariff to be paid for the wind energy generators when it is
sold to the 2nd Respondent and accordingly, various parameters have
been considered to calculate the capital cost of the wind energy generator.
Accordingly, after taking in to certain percentage of RoE, the Respondent
Commission has been fixing tariff for the wind energy generators on
various dates through the Tariff Orders. Accordingly, there are at present
three tariffs in operation till the impugned order was issued depending up
on the dates of commissioning of the wind electric generators (WEGs).
One tariff relates to the WEGs commissioned before 15.05.2006 at
Rs.2.75 per unit. The next tariff is Rs.2.90 when the WEGs have
commissioned after 15.05.2006 and however before 18.09.2008. The third
tariff is Rs.3.39 which is applicable to WEGs commissioned after
19.09.2008 and up to 31.07.2012. Any WEG commissioned on or after
01.08.2012 is now eligible for a tariff of Rs.3.51 per unit as per the
impugned Order. The above tariff prices are fixed ones and do not change
by true value of money. However, the matter is pending before the
Supreme Court of India and as such, the Appellant is not raising the
issues in any manner in the present Appeal petition.
7.4. Before any tariff Order is made, the Respondent Commission is in the
practice of circulating consultative papers for getting opinion from the
stakeholders on various parameters to be decided in the exercise of fixing
tariff and other related issues on wind energy generation and captive
consumption. This is mandatory under the provisions of Section 61 of the
Electricity Act 2003 and as well under the provisions of Guidelines for
Fixation of Purchase Price for Power Produced from Non-Conventional
Energy and also under the provisions of Policy announcement made by
the Ministry of Non-Conventional Energy Sources, Government of India on
remunerative tariff for non-conventional energy sources. However, during
the course of issuing the impugned order alone, no such consultative
paper was circulated among the stakeholders as was done before the
issuance of orders dated 15.05.2006 and 20.03.2009. Even when the
Appellant attempted to insist for the circulation of the consultative paper,
the Respondent Commission has not issued the consultative paper and
unilaterally refused to issue the consultative paper by its letter dated
04.06.2012 written to the Appellant.
7.5. Even though the earlier Tariff Order dated 20.03.2009 has to expire by
31.03.2011, for no reasons it was extended for more than 19 months
making the control period of two years also extended without any rhyme or
reason. For extension of the order dated 20.03.2009 no sufficient reason
was provided. Hence, it amounts to change and extension of control
period also indirectly from the agreed period of two years (24 months) to
43 months.
7.6. Instead of making the consultative papers circulated among all
stakeholders, the Respondent Commission has issued public notices
calling for comments and suggestions only on certain selective areas
totally denying opportunity in all other parameters. Particularly in the
matter of calculating the capital cost no opportunity was provided to all the
stakeholders as was done before passing the earlier orders on 15.05.2006
and 20.03.2009.
7.7 Further, the Respondent Commission has now made drastic changes
through the Impugned Order and altered the status in respect of wind
energy captive consumers by introducing certain new charges like
Transmission Charge, Transmission Loss Compensation Charge. Further,
it has also made some changes by converting the existing Wheeling
Charge and Banking Charge from kind to cash. Even though such
changes have been ordered in the Impugned Order, in the absence of
circulation of any prior Consultative Paper the objective for such changes
were not brought to the knowledge of the stakeholders. Hence, the
stakeholders were not provided with any opportunity to make comments
for introduction of new charges and altering certain existing charges from
kind to cash. Thereby, the Respondent Commission has totally denied the
opportunity for the stakeholders to provide suitable comments. Non
circulation of Consultative Paper is therefore, a clear violation of the
TNERC -Power procurement from New and Renewable Sources of
Energy Regulations, 2008, under Regulation 4(1)(b) as far as the
requirement of public response is concerned.
7.8. Further, the Respondent Commission has not critically analyzed various
submissions and comments made by the Stakeholders including the
Appellant before passing the impugned Order. The comments and
suggestions made by stakeholders including the Appellant were not taken
in to consideration in their letter and spirit and they were not even found
discussed in suitable manner while deciding the matters. It has almost
become a ceremonious way of dealing the entire matter and accordingly,
nothing was considered or discussed in detail before passing the
Impugned Order. As such, the Impugned Order besides to this reason
needs to be struck down for all other reasons submitted below in the
Appeal Petition.
8. Formulate (i) the facts in issue or specify the dispute between the
parties and (ii) summarize the questions of law that arise for
consideration in the appeal:
8.1 (a) Question of Law:
The questions of law leading to the filing of this Appeal are as follows:
1. WHETHER the 1 st Respondent is legally correct in fixing the purchase price of wind energy at Rs.3.51 per unit without taking into account of various capital cost like IDC(infrastructure development charge), O & M charges(Operation and maintenance), Panchayat taxes, MAT(Minimum alternative tax), insurance cost, etc. which procedure is against National Tariff Policy and and also against the TNERC-Power procurement from New and Renewable Sources of Energy Regulations, 2008?
2. WHETHER the impugned order is legally sustainable when the Wind Energy Generators are totally covered by a separate energy wheeling agreement(EWA)?
3. WHETHER the impugned order is legally maintainable when no consultative process was properly followed which mandatory under the Act?
4. WHETHER the impugned order issued by the 1 st Respondent is legally valid in so far as para 9.2 compelling the WEGs commissioned before the date of impugned order, viz., 31.07.2012 inspite of the Regulation 6 of the TNERC-Power procurement from New and Renewable Sources of Energy Regulations, 2008 which seeks to exempt such a coverage totally?
5. WHETHER the order issued by the 1 st Respondent goes consistent between para 4 and para 9.2?
6. WHETHER the order of the 1 st Respondent in withdrawing deemed demand benefit to the Wind Energy Generators is legally correct when demand and energy are inseparable?
7. WHETHER the impugned order issued by the 1 st Respondent is correct in so far as para 9.2 to bring all existing WEGs under the impugned order totally neglecting the principles of promissory estoppels and legitimate expectation?
8. WHETHER the 1 st Respondent is legally correct in fixing the transmission charge on capacity basis when the wind power is infirm?
9. WHETHER the 1 st Respondent has correctly fixed the transmission charge, wheeling charge and transmission loss compensation charge on actual basis?
10.WHETHER the 1 st Respondent has correctly fixed the banking charge on actual basis?
11.WHETHER the 1 st Respondent is legally correct in the matter of collection of grid connectivity charges when the total grid is maintained by the 2 nd Respondent and 3 rd Respondent and no grid is exclusively available for the WEGs?
12.WHETHER the 1 st Respondent is legally correct in fixing the Scheduling and system operation charges when the wind power cannot be scheduled in the present circumstances?
The Appellant deals with every question of law under separate heading here below:
8.2 The complexities of making the Applicability of the Order:
The appellants submits that after coming in to force of the Impugned
Order, there are four categories of WEGs now functioning in the State of
Tamilnadu and each are governed by a separate practice and Order and
accordingly, with separate Power Purchase Agreement or Energy
Wheeling Agreement as the case may be depending up on the date of
commissioning of the WEG.
a) Those WEGs commissioned prior to 15.05.2006 are covered by PPA
(Power Purchase Agreement) and not interfered by the Commission’s
Order dated 15.05.2006 on wind energy in any manner. These WEGs
however, have the option to renegotiate and can come to the benefits
of the Commission’s Tariff Order on Wind Energy dated 15.05.2006 by
renegotiating the PPA in to EPA (Energy Purchase Agreement) or
EWA (Energy Wheeling Agreement) as the case may be. In order to
make applicable the Order dated 15.05.2006 of the Commission, there
was a specific provision made available in the Order itself to
accommodate the option of renegotiation under Clause 4. Further, they
have the option to continue with the existing arrangement under PPA
Scheme itself if they are not willing for a renegotiation and as such, if
they are not willing, they can continue in the old scheme itself without
renegotiation towards the EPA/EWA Scheme.
b) Same is the case when the next Tariff Order No.1 of 2009 dated
20.03.2009 came in to force from 19.09.2008 onwards. Accordingly,
except for the purpose of Tariff for all other terms and conditions,
renegotiation scope was provided for re-entering in to new EWA in
Clause 4 of the Order dated 20.03.2009.
c) However, in the present impugned Order, the Respondent Commission
has issued orders totally contradicting the existing schemes by which
an existing WEG can either opt for the new scheme or to continue with
the old scheme which was under the sole option of the WEG owner.
Even though such a scheme has to be provided under the concept of
promissory estoppels and legitimate expectation, the Respondent
Commission has greatly erred in this matter and accordingly, no such
option was made available in the Impugned Order. Besides to the
same, the Impugned Order is having confusing contents in Para 4 and
Para 9.2 totally contradicting with each other.
d) Para 4 of the Impugned Order says as follows:
“Since changes are made in various provisions of the previous Order,
the Commission considers it appropriate to give effect to all of the
provisions contained in this Tariff Order only prospectively. This Order,
therefore, shall come in to effect from 01.08.2012.”
But whereas Para 9.2 of the Impugned Order says as follows:
“Other related charges and terms and conditions specified in the Order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning”
The impugned Order therefore, mandates heavy costs on captive
consumption of wind energy with effect from 01.08.2012 and however,
the EWA already in force is not in support of the said costs to be
collectable from the executants of the EWA. Hence, any WEG owner
could opt to continue to be in the old agreement and therefore, there is
no mandatory necessity to switch over to the new system from
01.08.2012 onwards. This liberty was provided in both the earlier
orders and however, only in the Impugned Order, it has been fully
wiped out. For no reason, the existing WEG owner could be
compelled to go for the new Order which costs him heavily on various
areas and therefore, such a compulsion is against the principles of
natural justice.
e) Each WEG is covered by a separate Energy Wheeling Agreement and
as new charges are likely to be levied in place of old charges as per
the impugned Order, the existing WEG owners may not opt to come for
the new Order and they may like to continue to remain in the existing
EWA itself without altering their status. Based on the terms and
conditions prevailed during the time of taking investment decisions, the
WEG owners has come forward for going to the wind power. It is not
therefore fair to drive them to a new set of costs which were not even
thought of, when the investment decision was originally taken. Now
asking them for a sweep change is not fair and reasonable on the
principles of promissory estoppels and legitimate expectation. All
investments prior to 31.07.2012 (i.e.,) before the issuance of the
impugned Order have happened only based on either Order No.3 of
2006 dated 15.05.2006 or Order No.1 of 2009 dated 20.03.2009. Now
without any rhyme or reason, to ask them also to come for the new
Order with high costs is against the principles of the natural Justice,
promissory estoppels and legitimate expectation.
8.3 In para No. 4 of the impugned Order, the 1st Respondent Commission has
made as follows:
……… This order contains many provisions not only relating to tariff but
also relating to other terms and conditions. Since charges are made in
various provisions of the previous order, the Commission considers it
appropriate to give effect to all the provisions contained in this tariff Order
only prospectively. This Order, therefore, shall come into effect from
01.08.2012.
But, very much contrary to its own Order in Para No.4, in Para No.9.2 the
1st Respondent Commission has made it as follows.
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
8.4 Hence, from the contradictory statements of the 1st Respondent
Commission, the 2nd Respondent TANGEDCO has given working
instructions to make applicable all the new charges and all other new
terms and conditions to all WEGs who are totally controlled by a different
Energy Wheeling Agreement and accordingly, the 2nd Respondent has
started raising bills for new charges even though there is no provision in
the Energy Wheeling Agreement to claim such charges. The existing
benefits like deemed demand charges were totally withdrawn even without
a notice. Hence, due to the erroneous and anomalous nature of the
impugned Order of the 1st Respondent, all WEG owners/members of the
Appellant are put in too much of financial difficulty and hardship leading to
irreparable loss during every month from 01.08.2012 onwards.
8.5 Further, under the TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008, under Regulation 6, it has been
made as follows:
6. Agreement and Control period
The tariff as determined by the Commission by a general or
specific order for the purchase of power from each type of
renewable source by the distribution licensee as referred to in
clause 4(3) shall remain in force for such period as specified by the
Commission in such tariff orders. The control period may ordinarily be
two years. When the Commission revisits the tariff and allied issues,
the revision shall be applicable only to the generator of new and
renewable energy sources commissioned after the date of such
revised order.
8.6 However, much contrary to the above Regulation, the Respondent
Commission in Para 9.2 of the Impugned Order, makes it mandatory the
contents of the Order totally applicable for all the WEGs irrespective of the
date of commissioning. The Regulation mandates that When the
Commission revisits the tariff and allied issues, the revision shall be
applicable only to the generator of new and renewable energy
sources commissioned after the date of such revised order. But much
contrary to the same in Para 9.2 of the Impugned Order the Respondent
Commission states as follows:
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
Hence, the Impugned Order is totally against the very letter and spirit of
the Regulation and on this score alone, the Impugned Order needs to be
set aside.
8.7 While the 1st Respondent Commission dealing with execution of Energy
Wheeling Agreement (EWA) in the impugned Order in Para No.8.17 it has
made it as follows:
8.17. Energy Wheeling Agreement (EWA)
The format for Energy Wheeling Agreement (EWA) shall be evolved as
specified in the Commission’s regulation in force. The period of agreement
and other terms and conditions shall be as per the terms of open access
regulations in force issued by the Commission.
Hence, even assuming that the Order is applicable for all WEGs
irrespective of the date of commissioning, in order to enforce the various
terms and conditions stipulated in the impugned Order, it requires an
Energy Wheeling Agreement and accordingly, after getting it signed by the
parties concerned only, this Order would be given effect and whereas the
2nd Respondent has not cared to proceed to get the EWA draft vetted and
approved by the Commission after following the due process of
stakeholders’ consultation. This again makes the working instructions
invalid as no new Energy Wheeling Agreement was executed and no text
of Energy Wheeling Agreement was circulated for providing opportunity for
the stakeholders in the matter of finalization of the text of new Energy
Wheeling Agreement.
8.8 The Appellant submits that each WEG has a specific commissioning date
and according to the date of commissioning, the said WEG is governed by
an Order of the Commission and therefore, unless the WEG owner opts
for renegotiation of the existing agreement, the new Order and the various
terms and conditions stipulated in the new Order cannot become
automatically enforceable with the WEGs commissioned before the date
of issuance of the Order in any manner. All the previous orders have very
specifically made this clause under the heading of “Applicability of the
Order” under Para 4 both in Order No. 3 dated 15.05.2006 and in Order
No.1 dated 20.03.2009. Such an arrangement is required and goes in
concurrence with the Regulation 6 of TNERC-Power procurement from
New and Renewable Sources of Energy Regulations, 2008 quoted supra.
For the sake of convenience of reference the said paragraph in Order
No.3 dated 15.05.2006 is reproduced below:
4.0 APPLICABILITY OF ORDER
This order shall come in to force from the date of its issue. This order shall
be applicable to all future and renewal of existing contracts/agreements for
the Non-Conventional Energy Sources (NCES) based Generating Plants
and Non-Conventional Energy Sources based Co-Generation Plants
located within the State of Tamilnadu. It should be noted that the existing
contracts and agreements between NCES based generators and the
distribution licensee signed prior to the date of issue of this order would
continue to remain in force. However, the NCES based generators and the
distribution licensees shall have the option to mutually re-negotiate the
existing agreements or contracts if any, in line with this order even before
the expiry of the existing agreements or contracts. Any renewal of the said
contracts/agreements, new contracts/agreements shall be in line with this
order.
8.9 Likewise in Para No.4 in Order No.1 of 2009 dated 20.03.2009 the
Commissioned has made as follows:
4. Applicability of this Order
Order No.3 dated 15.05.2006 of the Commission lays down a control
period of three years for that order and therefore, normally the next order
should have taken effect from 15.05.2009. The Commission in the
Common Order in M.P.Nos.9, 14 and 23 of 2008 dated 19.09.2008 has
ruled that the control period of three years specified in order No.3 dated
15.05.2006 is waived from the date of issue of that Order. The control
period of three years, thus, stands terminated on 19.09.2008. Therefore,
the Commission holds that all the wind energy generators commissioned
on or after 19.09.2008 shall become eligible for the benefits of the present
order, subject to the condition that the monetary benefits shall accrue from
the date of this order. The existing agreements between the wind energy
generators and the distribution licensee shall continue to be valid. The
parties to the agreement are at liberty at any time to renegotiate the
existing agreement mutually in accordance with this order. The agreement
between the wind generators and the distribution licensee in relation to all
machines commission on or after 19.09.2008 shall be in conformity with
this order.
8.10 The above two orders of the Commission perfectly fit with the Principles of
natural Justice coupled with the theory of promissory estoppels and
legitimate expectation. Further, such a provision is also in line with the
Regulation 6 of TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008. Each WEG has come in to being by
a large capital investment. Hence, what set of terms and conditions are
applicable at the time of making investment would continue to be in force
till the WEG promoter opts to continue with it as the investment decision
has happened only with reference to the knowledge, information, rights
and responsibilities made available at the time of making investment
decisions. The members of the Appellant having altered their status based
on certain terms and conditions prevailed at a point of time when they
invested on wind energy, cannot now be unilaterally forced to come for
new terms and conditions. Then it becomes an arbitrary exercise and the
impugned Order could only be construed to have the effect of unilateral
and arbitrary exercise of power. Further it is violative of the principles set
out under Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008.
8.11 Further, as per the Clause 11 of the existing Energy Wheeling Agreement
(EWA) by each of the members of the Appellant executed, it has been
made as follows:
“11. Terms and Conditions agreement period:
(1) The agreement shall be valid for a minimum period of 5 years.
(2) The parties to the agreement shall be given the option to exit for
violation of the agreement after serving a notice of three months on the
other party.
(3) The parties to the agreement are at liberty at any time to renegotiate
the existing agreement mutually in accordance with the Commission’s
order in force.”
8.12 From the Clause 11 (3) of the existing EWA, it could be seen that there is
a liberty extended to parties that either they can renegotiate the existing
agreement for going to the new agreement as per the new orders if any or
they can continue to remain as such in the existing agreement itself. The
option is therefore, vested with the party concerned and therefore, no
party could be compelled or forced to accept any new terms and
conditions for which no agreement was signed earlier. This option made
available to the WEGs is totally wiped out in the impugned Order. The
impugned Order unilaterally forces all the WEG owners irrespective of the
date of commissioning to come for the new arrangement whereby heavy
costs are involved with large civil consequences.
8.13 Due to the implementation of the working instructions of the 2nd
Respondent based on the impugned Order of the 1st Respondent, every
member of the Appellant is losing heavy money every month due to
certain new charges as leviable due to the fresh terms and conditions of
the new Order with effect from 01.08.2012 onwards. All the members of
the Appellant are totally unaware of the terms and conditions while they
made investments and altered their status to erect and commission the
WEGs for the purpose of captive consumption. All their investment plans,
RoE, etc., have been based only on the available terms and conditions as
enumerated in either Order No.3 dated 15.05.2006 or 1 dated 20.03.2009.
Hence, even though the Commission has made it clear in Para No.4 that
the terms and conditions are to be applied prospectively, it has
contradicted its own versions and accordingly, in Para No.9.2 it made it to
applicable to all WEGs irrespective of the date of commissioning.
Therefore, the 1st Respondent Commission has committed a serious error
and hence it needs to be corrected and rectified by this Hon'ble Tribunal.
9. Therefore, the Appellant humbly prays that the members of the Appellant
having made investments and altered their status based up on certain
terms and conditions stipulated by such orders which were in force during
those points of taking investment decisions, cannot now unilaterally and
arbitrarily be directed to come for a new set of terms and conditions by the
impugned Order which has a very strong impact on their financial
workings and thereby the entire operation becomes totally unviable. The
impugned Order imposes serious civil consequences and therefore, it
could never be retrospective for any reason. Further, the impugned Order
contradicts with each other as far as Para No.4 and Para No.9.2 are
concerned. Further, Para 9.2 of the Impugned Order is in total
contradiction of Regulation 6 of TNERC-Power procurement from New
and Renewable Sources of Energy Regulations, 2008. Hence, it needs to
be set aside on this very score alone.
10. Further, in having ordered that all WEGs irrespective of their date of
commissioning to come for the new Order which casts serious civil
consequences to pay more charges, the 1st Respondent has clearly
violated the Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008. Therefore, it is nothing
but arbitrary exercise of powers, against the approved cannons of law,
against the Principles of natural Justice and against the Principles of
promissory estoppels and legitimate expectation and therefore, it is
expropriatory under Article 14 of the Constitution of India and hence, the
Order needs to be struck down for this score also.
(b) Question of facts:
11. This appeal is of two parts. The first part deals with the matter of
applicability of the Order for the existing WEGs also which were
commissioned prior to the issuance of the impugned Order and the same
was dealt in the earlier paragraphs. The second part of the Appeal deals
with the various charges notified in the Impugned Order. When it is
considered to be made applicable even only to the future WEGs,
considering the future investment that has to happen in the State of
Tamilnadu in the wind energy sector and also considering the fairness of
the charges, the method of arriving charges and all other related matters,
the appeal has to pass through the second stage also. Hence, those
matters are dealt in the second part of the Appeal in the below
paragraphs. Now the Appellant proceeds for the second part of the
appeal.
12. Section 61 of the Electricity Act 2003, permits the 1st Respondent
Commission to specify terms and conditions for determination of tariff and
however, such a Tariff determination exercise should be guided by the
Principles laid down by the Act itself and also by the Principles and
Methodologies specified by the Central Commission for the determination
of tariff and also by the National Electricity Policy and Tariff Policy.
13.1 Much contrary to the policies laid down both by Central Commission and
also by National Electricity Policy and Tariff Policy, the Respondent
Commission has issued the impugned Order in very many areas totally
neglecting the legal and regulatory provisions.
13.2 Any fixation of tariff on energy particularly through NCES, needs to be in
consonance with the National Electricity Policy. The National Electricity
Policy mandates the following manner of approach on power from
Cogeneration and NCES.
“5.12 COGENERATION AND NON-CONVENTIONAL ENERGY
SOURCES
5.12.1 Non-conventional sources of energy being the most environment
friendly there is an urgent need to promote generation of electricity based
on such sources of energy. For this purpose, efforts need to be made to
reduce the capital cost of projects based on non-conventional and
renewable sources of energy. Cost of energy can also be reduced by
promoting competition within such projects. At the same time, adequate
promotional measures would also have to be taken for development of
technologies and a sustained growth of these sources.
5.12.2 The Electricity Act 2003 provides that co-generation and generation
of electricity from non-conventional sources would be promoted by the
SERCs by providing suitable measures for connectivity with grid and sale
of electricity to any person and also by specifying, for purchase of
electricity from such sources, a percentage of the total consumption of
electricity in the area of a distribution licensee. Such percentage for
purchase of power from non-conventional sources should be made
applicable for the tariffs to be determined by the SERCs at the earliest.
Progressively the share of electricity from non-conventional sources would
need to be increased as prescribed by State Electricity Regulatory
Commissions. Such purchase by distribution companies shall be through
competitive bidding process. Considering the fact that it will take some
time before non-conventional technologies compete, in terms of cost, with
conventional sources, the Commission may determine an appropriate
differential in prices to promote these technologies.”
13.3 Accordingly, even the Central Electricity Regulatory Commission while
issuing the Regulation on CERC (Terms and Conditions of Tariff)
Regulations, 2009 has specified that the terms and conditions of Tariff
need to aim the promotion of cogeneration and generation from renewable
resources under Regulation 3 (5)(g). Therefore, the Green Energy Sector
needs to be given priority from other sectors considering the following
facts;
(1) Clean Energy
(2) Non-depletion of conventional sources and
(3) Harnessing the natural resource i.e. wind for the generation of
electricity.
The Government of India and all other State Governments are very much
particular about promoting the green energy through renewable sources
and accordingly, a specific Ministry is operating at the Center in the name
and style of Ministry for New and Renewable Energy (MNRE).
13.4 Inter alia, the Commission whenever attempts to fix the tariff for the Wind
Energy Generators (WEGs) has to consider the capital cost involved from
time to time and based on a RoE (Return on Investment) working, the
Commission has to fix the retail tariff for the wind energy. However, even
though various parameters have been considered, the following important
parameters in spite of strong suggestions made by the Appellant have not
been considered for arriving the total cost per MW and accordingly, the
Commission has failed to correctly arrive the actual capital cost involved.
Costs not considered for calculation of total cost of WEG
a) Infrastructure Development Charges (IDC) at the rate of Rs.30 Lakhs
per MW – One time.
b) O&M charges at the rate of Rs.1.6 Lakhs per year with 5% annual
escalation - Recurring
c) Panchayat Taxes coming to Rs.10 Lakhs per MW at the first year and
goes with Rs.3 Lakhs every year per MW – Recurring
13.5 The Commission has decided to allow 19.85% pretax return on equity in
the Impugned Order as adopted in the previous order. The Commission
has greatly erred by omitting to note that the RoE calculated as 19.85%
in the previous order was based on the 10% MAT which prevailed at the
time of issue of previous order. At present the MAT is 20%. Therefore
RoE should be calculated based on the present rate of 20% MAT.
13.6 It is to be noted that the Commission in its order merged the insurance
cost with O & M expenses and considered both at only 1.1% of the
capital cost towards the single head of O & M expenses. At present the
insurance charge is around 0.7%. Out of 1.1% of the O & M expenses,
on exclusion of insurance charges of 0.7%, it would be difficult and
practically not possible to maintain the WEGs with the balance of 0.4%
towards the O & M expenses. Therefore, a reasonable percentage of
around 1.8% inclusive of insurance should have been considered while
taking the cost on O&M with insurance cost. Therefore, failure to consider
the same, amounts to wrong calculation of arriving the capital cost and as
such, all consequential working becomes not actual and correct and
therefore, it needs to be revised.
13.7 Hence the capital cost arrived by the Respondent Commission for issuing
the impugned Order is not true and does not reflect the real state of
affairs which would have been otherwise extremely more on actual facts.
The Commission has taken Rs.5.75 Crores as the capital cost per MW
and however, no break up was provided for the same. It is not found
included with the left out cost of Rs.45 Lakhs on IDC, O&M Charges and
Panchayat Taxes. Besides to them considering the increased rate of
MAT and right calculation of insurance costs it would work out more and
accordingly, a Tariff of not less than Rs.3.90 per unit needs to be fixed.
Hence, the Appellant prays the Hon'ble Tribunal to Order to remand back
the matter to the Commission to consider all left out expenses and
investments and accordingly, direct to arrive a real capital cost and
thereby to fix the reasonable cost for the wind energy generators in line
with the National Tariff Policy. It is painful to note that no explanation
was provided in the Impugned Order as why the above costs have not
been taken in to account while arriving the total capital cost.
13.8 Hence, to the above extent, the Order of the 1st Respondent should be set
aside insofar as fixation of tariff of Rs.3.51 per unit and accordingly, based
on the real costs, the Tariff should be fixed at Rs.3.90 per unit of energy
generated from windmills and the same should be made applicable from
01.01.2012 by which date the earlier Tariff Order dated 20.03.2009 would
have been expired but for its extension. Unless the new tariff is ordered to
be effective from 01.01.2012, the control period of 24 months as notified in
Regulation 6 of TNERC Power Procurement from New and Renewable
Sources of Energy Regulations, 2008 would become in-operative.
14 When coming in to the various charges leviable on the wind energy
captive consumers, the Commission has gone again beyond its scope in
fixing such charges and for the sake of convenience, the Appellant deals
with each charge separately in the forthcoming paragraphs.
15 Transmission Charges/Wheeling Charges/Transmission Loss
Compensation Charge:
15.1 Hither to, the Commission has ordered to collect only one charge namely
wheeling charge which included the charge on Transmission, the Charge
on Wheeling and the Charge on Transmission Loss. This is how Order
No.3 of 2006 dated 15.05.2006 and Order No.1 of 2009 dated 20.03.2009
have specified. For the sake of convenience, the relevant portions of the
above orders are extracted below:
Extract of Order No.3 dated 15.05.2006:
“Guidelines of MNES and orders of other Commissions on
Transmission and Wheeling Charges.
MNES Guideline is 2 % of the energy fed into the grid
TNEB’s existing charges is 5%
Charges in other States
UP, MP, Maharashtra and West Bengal - 2 %
Gujarat - 4 %
Rajasthan -10 %
UP – 12.5%
Andhra 50 paise / unit as network charge and 28.4 % of energy.
Commission’s Views / Decisions
The contention that wind energy generation is distributed and helps the
grid as distributed generation is no longer valid as far as Tamil Nadu is
concerned. There is a phenomenal growth of wnd Energy generators in
Tamil Nadu and they are mostly concentrated in Palghat, Shencottah
and Aralvoimozhi passes. These areas are considered to be “poor load /
demand regions” and most of the power generated in these places have to
be evacuated to the far off load centres.
Regarding the transmission and wheeling charges, the existing practice
(which includes the line losses in kind) is given below:
Wind Energy Generators 5%
Biomass 10%
Co-generation Within 25 KM usage 2%
Beyond 25Km usage 10%
Total transmission and wheeling charges including transmission and
distribution losses for various voltage levels of injection and drawal have
been specified in the orders of the Commission on transmission and
wheeling charges against the petition of TNEB in TP1/2005. As per that
order, if the point of injection and point of drawal is at 33 KV level, the total
transmission and wheeling charges will be very much less than the
existing 10% mentioned above. Also the transmission and wheeling
charges fixed by the Commission for fossil fuel based Cogeneration in
another order is 7%. To give encouragement for promotion of renewable
energy and Co-generation, the Commission decides the following
transmission and wheeling charges which include the line losses in kind:
Wind Energy Generators 5 % of energy
Biomass Within 25 KM usage : 3 %
Beyond 25 KM usage : 6 %
Co-generation Within 25 KM usage : 3 %
Beyond 25 KM usage : 6 %
The transmission and wheeling charges fixed as above will get reduced, if
the voltage level at the point of injection and at the point of drawal is equal
to or more than 110 kV. The reduction will be based on the Commission’s
order against the petition no TP1/2005 from TNEB. As an example, if the
injection voltage by the NCES generator is at 110 kV and the drawal for
captive usage is also at 110 kV, the transmission charges specified by the
Commission in the above said order will work out to around 5.80 %. Such
cases shall be specifically brought to the Commission and the rate
revised.
Regarding the captive usage for LT consumers, Commission accepts the
difficulties expressed by TNEB. Further, since the LT services do not have
ToD metering arrangement, it may not be possible to uniformly implement
the various provisions covered in this order. Hence it is decided to restrict
the captive usage to HT services only for the present.
The third party sale is permitted subject to the Commission’s regulation on
open access.”
15.2 Likewise the extract of orders in Order No.1 of 2009 dated 20.03.2009 is
also provided below for the sake of convenient reference:
“8.3 Transmission and wheeling charges
The transmission and wheeling charges were initially fixed by the TNEB at
2% in 1986 The charges were enhanced to 5% by the TNEB in September
2001. They remained at that level till 2006. The Commission adopted the
same rate of 5% towards the transmission and wheeling charges including
line losses in order No.3 dated 15-5-2006. The TNEB has now pleaded for
stepping up the charges to 15% on the ground that transmission and
distribution losses have gone up in the recent years. The transmission and
distribution losses of the TNEB has remained static at 18% since 2003
and therefore, the Commission does not see merit in the plea of the TNEB
to abruptly raise the charges to 15%. The Commission decides to retain
the wheeling and transmission charges including line losses at 5%
uniformly for captive use and third party sale of wind energy in the case of
HT / EHT consumption. However, the charges in regard to captive use
and third party sale in LT services are fixed at 7.5%.”
15.3 From the above extracted portions of the earlier Orders, it could be seen
that the charge on Transmission, Wheeling and Loss on Transmission
was considered as one component and accordingly, the Commission has
fixed 5% of the units so wheeled as wheeling charges to compensate all
the three charges. The Commission has also commented that no merit
was found in the plea of the then TNEB to increase the charges to 15%
abruptly as the Transmission and Distribution Losses of the TNEB has
remained static at 18% since 2003. This was the position during 2009
also. Thereafter there was no considerable change in the position and as
such the Transmission and Distribution Losses continued without any
considerable increase. But however, the Respondent Commission has
now steeply increased the charges and accordingly, one component so far
maintained for Transmission, Transmission Loss and Wheeling, was split
in to three separate components namely Transmission Charge, Wheeling
Charge and Transmission Loss Compensation charge in the impugned
Order which view is nothing but totally taking a U turn against its own
views observed in earlier occasions while issuing orders on 15.05.2006
and 20.03.2009.
15.4 The justification provided for making the single charge in to three separate
charges as adduced by the Commission is that the TNEB has now
become unbundled and therefore, it has to be collected separately for
Transmission and Wheeling as the Transmission Charges would go to the
Third Respondent and the Wheeling Charges would go to the Second
Respondent. However, what is neglected in splitting up one single charge
in to three separate charges, is that the quantum of charges all put
together. If all the charges put together works out to 5% of the total units
wheeled, then the rationale behind the argument would be justified.
However, without adopting such a course, the Respondent Commission
has increased manifold the charges which come to almost 1188% of the
old charges.
15.5 The following table would prove how the charges have been exorbitantly
increased.
Sl.No. Name of the
Charge
As per previous
Orders
As per the
Impugned Order
1 Wheeling Charge 5% of the units
wheeled which
converts in to 9.31
paise per unit
23.27 paise per
unit
2 Transmission
Charge
No such charge 47.33 paise per
unit
3 Transmission
Loss
Compensation
Charge
No such charge 40 paise per unit
4 Total 9.31 paise 110.6 paise
5 Percentage of
increase
1188%
15.6 The Commission has failed to observe that the Loss in Transmission has
not been changed and remained constant throughout the period.
Therefore, if the Commission wanted to notify the charges in to 3 different
components, it would have notified all the 3 charges and however, the
total of which should not have been increased from the existing price of
9.31 paise per unit and accordingly, the total of all the 3 charges should
have been remained only at 9.31 paise per unit and not at the exorbitant
cost of 110.6 paise per unit which is almost 12 times of the existing cost.
Hence the Appellant submits that the Commission has not properly
applied its mind before passing the impugned order to the above extent.
The Commission has not justified why such a steep increase is required at
present. The above charges are therefore, unilateral, without mind
application and against the concept of fairness and equity.
15.7 Further, the Respondent Commission knows well that the wind power is
totally infirm in nature and WEGs are having only the lowest plant load
factor (PLF) or capacity utilization factor (CUF). In the TNERC-Power
procurement from New and Renewable Sources of Energy Regulations,
2008, the firm and infirm power were defined. According to the definitions,
wind power is always infirm by nature. Transmission Charges taken at a
basis of Rs.6,483/- per MW per day is for the firm power which is capable
of producing power during all the 24 hours in a day, all the 7 days in a
week and all the 365 days in a year. But whereas, the WEGs are seasonal
and their PLF is influenced by various factors like grid availability, wind
availability and machine availability. Even the Respondent Commission in
the same impugned Order has observed that the wind energy in
Tamilnadu is enjoying a CUF of 27.15% in Para No.7.3.2 which is
extracted below:
“7.3.2 The assessment of CUF has widely varied from a figure of 25%
suggested by Indian Wind Power Association, 25% suggested by Indian
Wind Turbine Manufacturers Association, 24.26% suggested by Tamil
Nadu Spinning Mills Association and 25% suggested by The Southern
India Mills’ Association. IREDA suggested CUF in the range of 22 – 30%.
TANGEDCO stated that the higher size wind machines may even run at
low wind speed. Commission observes that the new wind machines are
technically advanced, more efficient, can run even at low speed and are
with higher hub heights. Therefore, the Commission decides to retain the
present CUF of 27.15% for the new machines also for this control period.”
15.8 The Association of the Appellant has already made strong studies and
accordingly, arrived at a figure of 24.26% as the CUF in Tamilnadu for the
WEGs and based on these studies only, it has recommended to consider
the CUF at 24.26%. But however, without making any study, the
Respondent Commission has taken the CUF as 27.15% without any
supporting document. Further, the impugned Order says that the
Commission has decided to retain the present CUF of 27.5% for the new
machines also for this control period. But whereas the Transmission
Charge, according to the impugned Order is applicable not only to new
machines but also for all the old machines and that too irrespective of the
date of commissioning. Hence, the rational way of collecting the
Transmission Charge would be only on the units transmitted in to the grid
and not on the capacity of the WEG as a whole.
15.9 Even though each WEG by virtue of its make and size has a notified
capacity, due to the seasonal factors of wind which is further influenced by
grid availability and machine availability has only a lower CUF. This fact
was rightly admitted by the Respondent Commission itself. Hence, a
Transmission Charge which is applicable to a power plant which has an
inherent character of having 70-80 % CUF cannot be made applicable
directly to a WEG which is having only one fourth of the CUF. This means
that un-equals are treated as equals and therefore, it is bad in law. The
Transmission charge of Rs.6483 per MW per day is applicable only for a
firm power plant which has the capacity to run and generate the energy
throughout the year on a nonstop basis. But a WEG has its own natural
constraints and prone to wind availability which again is only a natural and
seasonal factor. For that reason only, wind power is called as infirm
power. Hence, the rate of Transmission charge prescribed for a firm power
plant cannot be applied directly as such for a power plant which is totally
infirm by all possibilities. Hence the impugned Order needs to be set aside
on this very score also.
15.10 It would be appropriate that as existed earlier, even assuming that
Transmission Charge has to be levied besides wheeling charge, it should
be levied only on the units transmitted and not based on the capacity of
the WEG. The Commission has forgot to consider the infirm nature of wind
power and erroneously taken the wind power also as confirmed power and
accordingly, taken the Transmission charge available for a power plant of
firm nature to the WEG of infirm nature. The 40% of Transmission charge
ordered for collection for WEGs is only on promotional measure as the
WEGs are generating power through NCES and therefore, that
concession is nothing to do with the taking of Transmission charge
squarely equivalent to that of a firm power plant.
15.11 In the matter of collection of above charges, from the earlier orders, the
present impugned Order differs only on one area and accordingly, it
requires the collection of Transmission and Wheeling Charge in cash
instead of units which was in kind as per the earlier orders. Hence, when
the basis is not totally changed it has a change only from kind to cash. As
such any levy of charge should be based on the units generated and not
on capacity as a whole. When the WEG cannot produce energy based on
the capacity at any point of time, ordering to collect Transmission charge
based on capacity is totally void of the whole concept of wind power and
its nature as infirm power. Therefore, the Appellant prays that the Order to
collect Transmission Charge based on capacity should be modified in
such a way to collect the same based on the units transmitted. Therefore,
to that extent the Impugned Order needs to be set aside with a direction
for collection of transmission charges based on actual energy generated
and transmitted by the WEGs instead of their capacity being taken as
yardstick.
15.12. Further the rate of transmission charge sought to be levied in the present
impugned order is abnormal and unrealistic. It ought to have been fixed
based on the value of 5% of the units transmitted and not at such a
exorbitant rate as explained above.
16. Banking issues:
16.1 The Commission in its order, while discussing the Banking issue in the
paragraph 8.2.1 of the impugned Order, considered that the estoppels
cannot be invoked with regard to banking. This goes against the very spirit
and observations of the Hon'ble APTEL in Appeal No.53, 94 and 95 of
2010 to the extent extracted below.
“25. It is also to be pointed out that it is only because promises made by
the Government and the Electricity Board in respect of wind power
generation which included the concept of banking, the generators set up
the facilities by incurring heavy expenditure. Therefore, the Board is
estopped from making claims contrary to the said promises. The Electricity
Board is one of the pioneers in developing regime for wind energy. It has
introduced the concept of banking. It was on the basis of the said policy
initiative that substantial investments came to be made in the wind sector.
After permitting the same for more than 25 years, the Electricity Board
now is seeking to take such a different stand.
26. Therefore, the Electricity Board cannot be allowed to deny the benefit
of banking which has been contractually and judicially recognized. The
tariff orders were also passed recognizing the same. The concept of
banking is contained in the tariff order applicable to wind energy
generators. This order has already been upheld by this Tribunal in Appeal
No.98 of 2010. Hence, the grounds of this Appeal have no basis.
27. (d) The concept of “banking” was evolved by the State Commission
which is in line with the provisions of the Act, 2003, National Electricity
Policy and the National Tariff Policy. Therefore, the impugned order
promotes the object of the Act/Rules and the purpose it serves. It would be
impossible to set-up the Wind Energy Units without the banking facilities
due to the very characteristics of wind power generation. It was only
because of the promises made by the Government and the Appellant in
respect of Wind Power Generation which included the concept of banking,
the wind generators set-up their facilities by incurring heavy expenditure.
Therefore, the Appellant is estopped from making claims contrary thereto.”
16.2 Hence, taking totally a contrary view over the views and observations
already expressed by the Hon'ble Tribunal is amounting to rewriting of the
Judgment ordered in the above case in Appeal No.53 of 2010 to the extent
explained above.
16.3 Further, it is discussed in the Impugned Order that the banking charges
were initially fixed as 2% in kind and line losses were fixed as 2% in kind
and increased to 5% during March 2002. This increase in banking charge
was discussed in the Impugned Order. It is to be noted that when the
utility wants to install the wind energy generators in Tamil Nadu, huge
investment was required to harness the wind potential in the State which
could not be made by the TNEB. Hence, various promotional measures
were announced to attract developers since 1992 onwards. During initial
days of wind energy generator installations, most of the generators are
connected in to the local net work (even most of the old generators are still
continuing in the same distribution net work) and hence lower line losses
were expected and fixed on lower side. Further, during the year 2000, the
average line losses for TNEB was around 15% only. By considering the
capacity utilization factor of the wind energy generator at around 24%, the
banking charges are fixed reasonably at 5%. Hence, it is to be noted that
the banking charges are fixed so far only at a reasonable rate based on
the line losses which were worked out with the proper logical conclusion to
facilitate both win-win situation for the distribution utility and the generator.
Even if there is a grievance on the quantum of losses to the utility, the
same should have been agitated at that time itself. Having allowed to go
with 5% banking charge for years together and coming with a different
concept and explanation now may not help to justify the changes as made
in the Impugned Order.
16.4 Further, the Commission in its order has observed that the captive use of
wind energy has been on increase year after year. It is to be noted that
the Commission has not compared the captive consumption to the total
generation from wind sources. In the recent period, most of the
investments made in wind generation are through IPPs and REC route.
This statement is made based on the comparison on absolute terms
where the total capacity of the State is expected to grow at the rate 8 -
10% per annum. The captive use has been decreased year after year.
Even assuming for argument sake that there is an increase any
investment made on captive generation is a welcome measure, as it
happens to the green power segment and therefore, it should not to be
criticized.
16.5 The Commission in the order at paragraph No. 8.2.9 observed that the
banking of wind energy in other States is meager and it does not have
considerable impact on the finances of the distribution utilities whereas in
Tamil Nadu due to its high installed capacity, the impact is more. Further,
in the paragraph No. 8.2.12, it is stated that for reasonably compensating
the loss of the distribution licensee on account of banking of wind energy,
the Commission has examined different alternatives. It is to be noted that
the discussion about the loss to the distribution licensee has never been
made available public and is therefore, the whole statement is vogue.
Hence, without substantiating the same with facts and figures the
allegation of loss due to banking cannot be considered as a true
statement.
16.6 The TANGEDCO through CE/NCES has attempted to file MP No. 1 of
2012 for the removal of banking facility before the Commission. During
the course of admission of the petition itself, the Commission wanted to
have certain clarification in the petition and accordingly, directed the
TANGEDCO to modify the same. However the TANGEDCO has not
bothered to supply the details till today to the Commission and the matter
is still pending without admission. Based on the period furnished by
TANGEDCO in the said petition on the calculation of banked units, a
detailed working is given below to establish that there is only profit and not
loss to TANGEDCO. With the present situation of huge power shortage
across the Country, the distribution licensee is forced to buy power from
outside throughout the year. With the average sale realization of Rs. 4.99
per unit as per the ARR filed and approved in the Retail Tariff Order No. 1
of 2012, the distribution licensee is not making any loss on account of
banking, but only gains.
Table – Gain Accrued by TANGEDCO on account of Banking
S.N
o.
Description In
Million
Units
Rate
Per Unit
Rs.
Rs.
Crores
I. TANGEDCO EXPENDITURE:
a) TANGEDCO – Purchase from November to
March for supply to wind mill banked users
676 5.62 380
b) TANGEDCO – Payment for the lapsed units
after March to WM owners
169 3.05 52
C) Total Expenses to TANGEDCO for 845
Million Units
845 431
II. TANGEDCO INCOME
d) TANGEDCO realization from consumers
from April to October by selling wind units
845 4.99 422
e) Realization through sale of 5% of banked
units
44 4.99 22
f) Total Income of TANGEDCO 889 444
h) Net Gain to TANGEDCO on account of
banking facility
13
The Commission has therefore, greatly erred in its observation in the last
line of para 8.2.11 of the Impugned Order to discuss the rate at which
energy will be banked and the rate at which energy will be redrawn from
the bank. When there is no rate for the energy to be banked, there arises
no question to compare the rate at which the energy will be redrawn from
the bank. Energy is banked only for redrawing. That banked energy is
sold at that moment to the consumers by the Utility in this case it is
TANGEDCO at an average realization cost of Rs.4.99 per unit as per
latest Commission’s order.
16.7 Therefore the Commission has committed a serious error in its observation
“for reasonably compensating the loss to Distribution Licensee”. This
statement is devoid of any merit and made without going through the
calculation based on the petition filed by TANGEDCO. While examining the
different options, the Commission has bench marked the rate specified in
the market monitoring report published by the CERC. The Commission
stated that it had examined the details available for the period from April
2010 to March 2012 for the sake of better approximation of traded prices. It
is evident from the details of the prices referred that the average traded
price for the year 2010 -11 is Rs. 4.74 per unit and Rs. 4.23 per unit for the
year 2011 -12. Further, it is to be noted that the average price per unit is
more in the months of April and May of the years which is no way connected
with the redrawn of wind energy banked units. When the banking period
begins with April of every year and the wind season starts with the month of
May, these two months will neither have any banked units to redraw nor
would sufficient generation be there for banking. Hence, the average rate
bench marked for power purchase rate of banked unit redrawn has no
justification in any manner.
16.8 Further, the Commission has considered that the maximum preferential tariff
for wind energy as contained in the Impugned order as the bench marked
rate for the wind energy banked with the utility. The Commission has failed
to understand that the captive wind energy generators have not made their
investment to supply their generation to the distribution licensee. They are
not for selling the energy, but they bank the energy for re-drawl. There is no
rate for units to be banked. TANGEDCO realizes for these banked units at
a price of Rs.4.99. All the captive investments are made to secure their
energy requirement for future and fixing the rate of preferential tariff as the
bench mark for the rate for the banked units is not justifiable in any course
of law. It indirectly forces the captive consumers to go out of captive
consumption. It would be proper to consider the average sale realization of
the utility which is the actual income to the utility by selling the energy so
generated and banked by the captive consumers at the time of wind
season. It is to be noted that the average sale realization for the year 2012
-13 for the utility is Rs. 4.99 per unit as per Tariff Order No. 1 of 2012 dated
31.03.2012. When the energy generated is sold and realized at the rate of
Rs. 4.99 per unit with the average purchase rate of Rs. 4.45 as per the so
called bench mark rate less than the sale realization rate, the discussion
made in the Impugned Order on the losses to the utility due to banking does
not arise at all. The Commission has seriously erred in calculating the
maximum preferential tariff as the rate on wind energy banked for the
captive consumers and the conclusion made in terms of losses to utility due
to banking is totally wrong and unsustainable.
16.9 In the nut shell, the following are the issues; The system of banking is no
more a facility for windmill captive consumers and according to the words of
this Hon'ble Tribunal it is a system contractually and judicially recognized.
However, in spite of the same, the Commission considers that estoppels
cannot be invoked. This statement is therefore, contrary to the findings of
the Hon'ble Tribunal.
16.10 Hence accepting the above observation of the Hon'ble Tribunal, the
Commission should come forward to continue the banking charges at 5% of
the energy banked either in kind or in cash. The Commission in the
Impugned Order has observed that the wind energy for captive use has
been on the increase year after year. The Commission did not justify the
statement with relevant statistics. The Commission has failed to appreciate
the wind turbine erection and captive consumption at various periods. The
percentage of captive consumption in total generation would be the relevant
factor to consider this aspect.
16.11 The Commission has compared two incomparable parameters in fixing the
banking charges. On one hand, the Commission has considered the CERC
market monitoring report for the year 2010 to 2012 and fixed as the power
purchase cost as Rs.4.45 per unit. But at the same time, the Commission
has considered the maximum wind tariff fixed under this order at Rs. 3.51
per unit. In fact, as per the Tariff Order dated 31.03.2012, the average cost
of realization was fixed by the Commission as Rs.4.99 per unit. The
Commission has reckoned the difference between Rs.4.99 and Rs.3.51 to
fix the banking charge in cash. There is no justification as loss when it
compared the power purchase cost and realization cost. This is an
apparent error in comparing two different incomparable parameters. The
energy cost realized by TANGEDCO during the banking period is to be
compared with the energy purchase cost when banked energy is redrawn.
This is the comparable parameter. Therefore, the conclusion of the
Commission that there is a loss to distribution licensee is a mistake of facts.
16.12 The Commission under paragraph 8.2.12 has come to the conclusion that
the distribution licensee is incurring the loss on account of banked wind
energy and that is to be compensated. The Commission did not justify
this conclusion with any statistics or figures and therefore, the findings of
the are not supported by documentary proof. The Commission is simply
carried away only by the letter of the TANGEDCO dated 02.06.2012 and
the letter of the Principal Secretary to Government, Energy Department
dated 28.03.12 which were also not found with documentary proofs. As a
matter of fact, there is only gain and not loss. Therefore, the Appellant
submits that if the Commission wants to order to collect the banking
charge in cash, it should be at the rate of 28.46 paise per unit of energy
banked and redrawn and not at the present system of compensating.
Hence it is prayed that the banking charges should be fixed at 28.46 paise
per unit of energy when banked and redrawn.
17. WEG availing REC
The Commission in its order at Paragraph No. 8.2.15 decided that with
respect to WEGs availing REC, one month adjustment period is allowed
as permitted for conventional power. The unutilized energy will get lapsed
as in the case of conventional power. The Commission is totally wrong
on deciding that the units at the end of every month for the captive wind
energy generators availing REC would get lapsed as in the case of
conventional power. It would be worth to note that there are number of
generators already wheeling the captive generation with the condition of
“Wheeling and surplus units as sale to board” category. This refers, the
generated units are adjusted for their consumption and remaining units
are considered as sale to utility and applicable tariff is paid to them. By
choosing the REC route, the captive generators are not to be denied with
the benefit of atleast treating the surplus units as sale to Utility since none
of the units generated is going to be wasted. It is only consumed through
the utility by other consumers as generation and consumption takes place
simultaneously and the Utility is also realizing money for such
consumption from other consumers. Hence, the concept of lapsing the
unutilized units for the captive consumers at the end of every month under
REC route is not correct and fair. It also amounts to unjust enrichment at
the cost of the REC captive consumers which is unsustainable in law.
Therefore, for surplus unit at the end of each month should be treated as
sold to Board and accordingly they should be allowed to get atleast the
APPC cost fixed by Commission from time to time. Therefore, the present
portion of the impugned order in para 8.2.15 in so far lapsing of the
unutilized units for REC captive consumers should be set aside and
direction may be issued to encash the same atleast for the APPC cost.
18. Grid availability Charges – Energy Charges
The Commission in the Impugned Order at Paragraph No. 8.7.2.1 has
stated that “if the captive user / third party user is not a consumer of the
distribution licensee, the user shall pay the charges as applicable to the
temporary supply of that voltage category”. It is to be noted that all the
users should become a consumer of the distribution licensee of their
region without which they will not be able to avail the open access with
any generator. Hence, the specified condition is not realistic and
therefore, it may not happen at all and hence, it liable to be set aside.
19.Demand Charges
The Commission in this order stated that the TANGEDCO has opposed to
continue the deemed demand concept which was originally introduced by
the Commission in 2006 and continued in 2009 stating that they are
unable to recover the full demand charges relating to providing all the
infrastructural facilities as well as tying up of the generation capacity. The
Commission has examined and observed as follows in the Impugned
Order that:
a. When the captive power plant is not generating power, the licensee is
obligated to provide power supply to the captive consumer. During this
period no wheeling charges is recoverable as the captive generators is not
injecting any power. The fixed charges payable to other generating
stations or procurement of power from the market to meet such
contingency will devolve on the licensee.
b. If the captive generator is generating throughout the year, he could always
reduce the sanctioned demand and control his demand charges for the
supply to be made by the licensee.
c. Since the open access regulation cast a duty on the licensee to provide
electricity to all open access customers whether captive or otherwise, the
fixed charge is getting shifted to the licensee.
19.1 In this context, it is worthwhile to look in to the tariff pattern of the
consumers. HT consumers are charged with two part tariff: The first part
is Energy charges based on the units actually consumed by them and
second part is Demand charges based on their Maximum demand
reached or 90% of the sanctioned demand whichever is higher.
19.2 After enactment of the Electricity Act 2003, all the distribution and
transmission companies are filing their ARR to the respective State
Commission and getting them approved. While doing so, the financial cost
of capital asset (Infrastructure) like depreciation, interest on debt, RoE,
O & M, etc. are considered for arriving at the average cost of supply. In
the case of energy supplied by the distribution companies, these
expenses are added to the cost of generation/energy purchased so as to
arrive the cost of supply. Similarly, wheeling charges are arrived by
considering all these financial costs for the distribution network. Hence,
the view of the TANGEDCO stating that the demand charges are collected
to provide the infrastructural facilities has no relevance in the present
scenario and is nothing but an attempt to totally mislead all. Therefore,
any separate charge collected for providing infrastructure facilities will
amount to double collection. The Commission in its Tariff Order No. 1 of
2012 calculated the average cost of realization at Rs.4.99 per unit. From
HT consumers, the tariff rate is more than Rs.4.99 per unit which includes
energy charges plus demand charges. The excess amount so collected is
only a cross subsidy component. The average cost of realization is
Rs.4.99 per unit which includes all cost i.e. Generation/Purchase cost plus
financial cost for transmission (transmission charges) and distribution
(wheeling charges). Therefore it is evident that the tariff includes all costs
including wheeling charges also. An open access consumer getting
access to the distribution network pays either tariff which is inclusive of
wheeling charges or more wheeling charges as open access charge. The
distribution network used by the consumer realizes its wheeling charge
either by tariff to the distribution licensee or by recovering wheeling
charges by open access transaction. At no point of time, there is no
stranded cost for distribution asset. The observation of the Commission in
sub para (a) of para 8.7 2.2.2 that no wheeling charge is recoverable as
the captive generator is not injecting any power is a mistake of fact and
error apparent on the very face of the record. It is to be noted that the
demand charges are made to maintain the grid stability and also to control
the grid by the distribution / transmission utility only. These charges
become the part of the consumption charges only so that the average cost
of supply is met by the distribution company.
19.3 Hence, the demand charges are being collected only in respect of erection
and maintenance of sub-stations. The Impugned Order of the
Commission clearly indicates that the cost of supply includes generation,
transmission and all other expenses including the development of
infrastructure. Hence, there won’t be any need of collecting separate
demand charges. However, when the Electricity Act 2003 was introduced
and separate companies are formed for transmission and distribution,
each company is filing ARR and took the approval of the Commission.
Accordingly, the transmission company is charging transmission charges
separately and collecting the same. If that be the position there should not
be any demand charges. However, during the past two orders, the
Commission came to the conclusion that the wind energy is bringing
energy in to the grid and based on the average PLF, it ordered that the
wind power also carried some demand on its generation. Now, the
present order removing the deemed demand has no justification. In fact,
the Commission in paragraph 6.1.5 confirmed that wind energy
contributes around 30% in terms of demand share during the peak wind
season. If that be the case, instead of continuing to provide deemed
demand charges, the Commission ordered for withdrawal of deemed
demand concept which is totally unfair.
19.4 When energy is injected in to a grid, automatically demand is also deemed
to be injected, as energy and demand are two sides of the same coin. A
quantum of energy injected would result in a quantum of MD and this
concept has been fully accepted and orders have been made to allow
deemed demand for the wind energy captive consumers in Order No.3 of
2006 dated 15.05.2006 and 1 of 2009 dated 20.03.2009. The last order
dated 20.03.2009 is extracted below for the sake of convenience.
“8.7.4 Demand charges
8.7.4.1. In the case of a wind energy generator, there are two components
of demand, namely, the demand supplied by the distribution licensee and
the demand supplied by the wind energy generator. In regard to the
former, the licensee is entitled to recover demand charges in terms of the
Tariff Order of the Commission dated 15-3-2003. The demand supplied by
the generator is estimated by the Commission in the following manner.
8.7.4.2. Assuming a capacity utilization figure of 27.15% and assuming
that an average 65% of wind energy generated, (as per the data available
with the Commission) is used for captive / third party consumption and
assuming an average power factor of 0.9, the Commission arrives at a
figure of 19.61% as the demand contributed by the generator. The energy
supplied in each month by the wind energy generator shall be converted
to an appropriate demand in KVA and the demand charges at 80.39% of
the rates prescribed in the Tariff Order is payable by the wind energy
generator in regard to that converted demand.
8.7.4.3. The example below illustrates the case. The demand charges
payable by the consumer on open access will be calculated as below:
Total generated units consumed by the consumer on open access
divided by (30 x 24 x actual PF recorded during the billing month) A
Recorded demand (or) 90% of sanctioned demand, whichever is higher B
The demand supplied by the Licensee (B – A) C
The demand charges payable by consumer on open access = [A x
(80.39%) of applicable demand charges + (C x applicable demand
charges)]
At current rate Demand Charges payable (Rs.)= [ (A x 0.8039 x 300) + (C
x 300)]
8.7.4.4. The TNEB has suggested that deemed demand concept may be
abandoned since the demand charges are meant to recover the fixed
charges incurred by the Board for creating the required assets. It needs to
be clarified here that the cost of the asset created by the TNEB including
the transmission and distribution lines are fully recovered in terms of the
Tariff Order of the Commission. The shortfall in tariff revenue on account
of the demand contributed by wind energy generators can be factored into
the Annual Revenue Requirement of the TNEB and accounted for in the
subsequent tariff revision as prescribed in the Electricity Act 2003 and the
Tariff Regulations 2005 of the Commission. On the other hand, the wind
energy generators have represented that the distribution licensee should
recover demand charges only for the net energy supplied by them. The
Commission rejects this proposition because the licensee is obliged at all
times to supply the committed demand to the consumer despite wide
ranging fluctuations in the availability of wind energy.”
19.5 With the above discussion as made in the earlier order, the Commission
has justified in allowing the deemed demand benefit to all the wind energy
captive consumers by assigning a formula. Hence, if we look in to the
Commission’s views made at that time it would be evident that the
allowing of deemed demand is fair. But however, without analyzing all the
above aspects, the Commission this time in issuing the Impugned Order
has taken a unilateral view and accordingly, ordered to withdraw the
deemed demand benefit for all wind energy captive consumers which is
arbitrary, unfair and therefore, requires to be set aside totally.
19.6 The Commission has seriously erred in coming in to the conclusion that
the captive generator generating throughout the year could reduce the
sanctioned demand and control their demand charges.
For example;
The sanctioned demand of the consumer is 1000 KVA
The consumer is consuming with the 80%
load factor for one hour 800 units
Assuming that he is availing open access
and receiving energy per hour 560 units
He is availing energy per hour from the
distribution Licensee 240 units
Will it be possible to reduce his sanctioned demand to 300 KVA to avail
240 units from the licensee?
Since, he needs 800 units, he has to retain the sanctioned demand only at
1000 KVA.
Otherwise, he is liable to pay excess demand charges if sanctioned
demand is reduced to 300 KVA.
Hence, it is not correct to state that there is a possibility to reduce the
sanctioned demand when the captive generator generating throughout the
year.
19.7 The last observation of the Commission in the Impugned Order is totally
wrong and untenable. The Commission observes in the Impugned Order
that since the open access regulations cast a duty on the licensee to
provide power to all open access consumers whether captive or
otherwise, the fixed charges get shifted to the licensee. This observation is
totally wrong. The tariff order for retail energy already covers the average
cost of realization by way of charging on energy and the transmission
company charging on the transmission of energy. Hence, there could not
be any more shifting of fixed charges on the licensee to recover further on
demand charges. Then it amounts to double charging.
19.8 When the Commission itself has justified in the introduction of deemed
demand concept based on certain principles in its Order dated 15.05.2006
which was again continued by Order dated 20.03.2009, the Commission
should not have taken totally a contrary decision based on certain grounds
which are totally unrealistic and unacceptable. As the retail tariff covers all
expenses and nothing is left over, there could not be any further fixation of
demand charges. Hence, the Commission was not justified in withdrawing
the deemed demand charges for the wind energy injected in to the grid.
19.9 Hence, the Impugned Order of the Commission in para 8.7.2.2 in so far as
it relates to withdrawal of deemed demand benefit for WEGs is liable to be
set aside and there should be a direction to continue the benefit of
deemed demand for all WEGs as available at present.
20 Scheduling and System Operation Charges
The Commission in Para 8.9 of the Impugned Order has fixed the
Scheduling and System Operation Charge at Rs.600 per 2 MW per day and
proportionately in accordance with the actual capacities. It is submitted that it
is well known fact that wind energy being an infirm power, could not be
scheduled at the present conditions. When the power itself could not be
scheduled due to the very infirm nature of the wind power, order to collect
the Scheduling and System Operation Charges would not be realistic and
reasonable. The Commission has greatly erred in the matter of fixing the
Scheduling and System Operation Charges which is not realistic to a power
which could not be scheduled at the present point of time. Hence, this
unrealistic charge of Scheduling and System Operation Charge should be
set aside totally.
21 Grounds raised with legal provisions
As in Para 8, 9 and 10
22. Matters not previously filed or pending with any other Court
The Appellant further declares that the Appellant had not previously filed
any writ petition or suit regarding the matter in respect of which this appeal
is preferred before any Court or any other authority nor any such writ
petition or suit is pending before any of them.
23. Specify below explaining the grounds for such relief (s) and the legal
provisions, if any, relied upon.
As set out in Paras 8 to 20 above.
24. Details of Interim Application, if any, preferred along with Appeal.
(i) The Impugned Order No.6 of 2012 dated 31.07.2012 vide para 9.2
makes the order applicable to all WEGs irrespective of the date of
commissioning. However, the Regulation No.6 of the TNERC-Power
Procurement from New and Renewable Sources of Energy
Regulations, 2008 makes it clear that when the Commission revisits
the tariff and allied issues, the revision shall be applicable only to the
Generator of New and Renewable energy sources commissioned after
the date of such revised order. Therefore, the impugned order is
totally inconsistent and contrary to the provisions as contained in
Regulation 6 of TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008. Therefore, it is just, reasonable
and necessary that this Hon'ble Appellate Tribunal may be pleased to
pass an Order of INTERIM STAY of operation and further proceedings
of the impugned Order No.6 of 2012 dated 31.07.2012 in so far as the
members of the petitioner Association are concerned in respect of their
WEGs having commissioning dates prior to the impugned order
pending disposal of the above Appeal and thus render justice.
(ii) Further, it is respectfully prayed that this Hon’ble Appellate Tribunal
may be pleased to pass an order of INTERIM INJUNCTION,
restraining the 2nd and 3rd Respondents, their men, agents,
representatives and sub-ordinates from demanding, collecting banking
charges(para 8.2), transmission charges, wheeling charges and line
loss charges(para 8.3), grid availability charge(8.7) and Scheduling
and system operation charges(para 8.9) in so far as the members of
the Petitioner Association are concerned pending disposal of the
above Appeal and thus render justice.
(iii) Further, it is respectfully prayed that this Hon’ble Appellate Tribunal
may be pleased to pass an order of INTERIM DIRECTION, directing
the 2nd and 3rd Respondents, their men, agents, representatives and
sub-ordinates to extend the deemed demand facility as usual as per
the existing Energy Wheeling Agreements in so far as the members of
the Petitioner Association are concerned pending disposal of the
above Appeal and thus render justice.
(iv) It is further submitted that unless this Hon’ble Appellate Tribunal is
pleased to pass the above interim orders, great irreparable prejudice
and heavy financial loss would be caused to the members of the
Petitioner Association who are already reeling under severe power
cuts and recession. On other hand, by passing such interims orders
as prayed for above, no prejudice would be caused to 2nd and 3rd
Respondents since they would be collecting all the usual charges as
agreed in the Energy Wheeling Agreement in force in compliance of
the earlier tariff orders passed by the 1st Respondent on 15.05.2006
and 20.03.2009.
25. Details of appeal/s, if any preferred before this Appellate Tribunal
against the same impugned order/direction, by Respondents with
numbers, dates and interim order, if any passed in that appeal (if
known).
No other appeal is filed against the same Impugned Order.
26. Details of Index
INDEX
Sl.No. Date Particulars Page
I Synopsis and List of Dates and
Events
II Appeal with Affidavit
III Application for Interim Stay with
Affidavit
IV List of Enclosures
1. 08.02.2008 TNERC-Power procurement from
New and Renewable Sources of
Energy Regulations, 2008
2. 08.04.2011 Tariff Order No.1 of 2011 of 1st
Respondent
3. 08.09.2011 Public Notice of 1st Respondent
4. 29.09.2011 Comments filed by the Appellant in
pursuance of the Public Notice
5. 15.12.2011 Tariff Order No.4 of 2011 of 1st
Respondent
6. 24.05.2012 Notice fixing the Stakeholder’s
Hearing on 8th June 2012
7. 04.06.2012 Letter of the 1st Respondent
Commission sent to the Appellant
intimating no Consultative Paper
would be released
8. 08.06.2012 Written Submission filed during the
Stakeholder’s Hearing on
08.06.2012 by the Appellant
9. 30.06.2012 Order No.3 of 2012 of the 1st
Respondent
10. 31.07.2012 The Impugned Order of the 1st
Respondent Tamilnadu Regulatory
Commission in T.R.No.6 of 2012
11. . 08.2012 Working Instruction issued by the
2nd Respondent TANGEDCO
12. 30.08.2012 Memo of 2nd Respondent providing
instructions to withdraw deemed
demand concept
13. 24.09.2012 Demands raised by the SEs of 2nd
Respondent based on the working
instruction
V Vakalathnama
27. Particulars of fee payable and details of bank draft in favour of Pay
and Accounts Officer, Ministry of Power, New Delhi in respect of the
fee for appeal.
Name of the Bank _________________
Branch ________
DD No. _________ Dated. ______ payable at New Delhi.
28. List of enclosures:
INDEX
Sl.No. Date Particulars Page
I Synopsis and List of Dates and
Events
II Appeal with Affidavit
III Application for Interim Stay with
Affidavit
IV List of Enclosures
1. 08.02.2008 TNERC-Power procurement from
New and Renewable Sources of
Energy Regulations, 2008
2. 08.04.2011 Tariff Order No.1 of 2011 of 1st
Respondent
3. 08.09.2011 Public Notice of 1st Respondent
4. 29.09.2011 Comments filed by the Appellant in
pursuance of the Public Notice
5. 15.12.2011 Tariff Order No.4 of 2011 of 1st
Respondent
6. 24.05.2012 Notice fixing the Stakeholder’s
Hearing on 8th June 2012
7. 04.06.2012 Letter of the 1st Respondent
Commission sent to the Appellant
intimating no Consultative Paper
would be released
8. 08.06.2012 Written Submission filed during the
Stakeholder’s Hearing on
08.06.2012 by the Appellant
9. 30.06.2012 Order No.3 of 2012 of the 1st
Respondent
10. 31.07.2012 The Impugned Order of the 1st
Respondent Tamilnadu Regulatory
Commission in T.R.No.6 of 2012
11. . 08.2012 Working Instruction issued by the
2nd Respondent TANGEDCO
12. 30.08.2012 Memo of 2nd Respondent providing
instructions to withdraw deemed
demand concept
13. 24.09.2012 Model Demand raised by the SE of
2nd Respondent based on the
working instruction
V Vakalathnama
29. Whether the order appealed as communicated in original is filed? If
not, explain the reason for not filing the same.
The Order appealed as communicated in original is filed herewith.
30. Whether the appellant/s is ready to file written submissions/
arguments before the first hearing after serving the copy of the same
on Respondents.
Yes
31. Whether the copy of memorandum of appeal with all enclosures has
been forwarded to all respondents and all interested parties, if so,
enclose postal receipt/courier receipt in addition to payment of
prescribed process fee.
Yes
32. Any other relevant or material particulars/details which the Appellant
deems necessary to set out:
Nil
33. Relief (s) Sought
INTERIM PRAYERS:
For the reasons stated above, it is prayed that this Hon'ble Appellate
Tribunal may be pleased to pass an Order of INTERIM STAY of operation
and all further proceedings of the impugned Order No.6 of 2012 dated
31.07.2012 issued by the 1st Respondent in so far as para 8.2, 8.3, 8.7
and 8.9 relating to banking charges, transmission, wheeling and
transmission loss compensation charges and grid availability charges and
Scheduling and system operation charges respectively and para 8.7.2.2
relating to withdrawal of deemed demand benefits in so far as the
members of the petitioner Association are concerned in respect of their
WEGs having commissioning dates prior to the impugned order pending
disposal of the above Appeal and thus render justice.
For the reasons stated above, it is prayed that this Hon’ble Appellate
Tribunal may be pleased to pass an order of INTERIM INJUNCTION,
restraining the 2nd and 3rd Respondents, their men, agents, representatives
and sub-ordinates from demanding and collecting banking charges(para
8.2), transmission charges, wheeling charges and line loss charges(para
8.3), grid availability charges(8.7) and Scheduling and system operation
charges(para 8.9) in so far as the members of the Petitioner Association
are concerned pending disposal of the above Appeal and thus render
justice.
For the reasons stated above, it is prayed that this Hon’ble Appellate
Tribunal may be pleased to pass an order of INTERIM DIRECTION,
directing the 2nd and 3rd Respondents, their men, agents, representatives
and sub-ordinates to extend the deemed demand facility as usual as per
the existing Energy Wheeling Agreements in so far as the members of the
Petitioner Association are concerned pending disposal of the above
Appeal and thus render justice.
MAIN RELIEF:
For the reasons stated above, it is prayed that this Hon’ble Appellate
Tribunal for Electricity may be pleased to call for the records of the 1st
Respondent Commission in its Order No.6 of 2012 dated 31.07.2012 in so
far as paras 8.2, 8.3, 8.7, 8.9 and 8.7.2.2 relating to banking charges,
transmission, wheeling and transmission loss compensation charges, grid
availability charges and Scheduling and system operation charges and
withdrawal of deemed demand benefit respectively, quash the same as
illegal, arbitrary, unsustainable in law and against the Regulation 6 of
TNERC Power procurement from New and Renewable Sources of Energy
Regulations, 2008 and pass such other order or orders as this Hon’ble
Appellate Tribunal for Electricity may deem fit and proper in the
circumstances of the case in so far as the members of the Petitioner
Association are concerned and thus render justice.
DATED AT DELHI ON THIS 13th DAY OF SEPTEMBER 2012.
COUNSEL FOR APPELLANT APPELLANT
DECLARATION BY APPELLANT
The Appellant above named hereby solemnly declares that nothing
material has been concealed or suppressed and further declares that the
enclosures and typed set of material papers relied upon and filed herewith are
true copies of the originals/fair reproduction of the originals thereof.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER 2012.
COUNSEL FOR APPELLANT APPELLANT
VERIFICATION
I, Dr.K.Venkatachalam, S/o.A.Karuppaih, Hindu aged 60 years
representing the Appellant – Tamil Nadu Spinning Mills Association as its Chief
Advisor and resident of Tamil Nadu do hereby verify that the contents of the
paras 1 to 21 are true to my personal knowledge/ derived from official record and
are believed to be true on legal advice and that I have not suppressed any
material facts.
DATE : 13-09-2012
PLACE :DELHI SIGNATURE OF THE APPELLANT
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
APPELLATE JURISDICTION
APPEAL No. _____ OF 2012
BETWEEN
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 00, Tamilnadu.
represented by Dr.K.Venkatachalam, its Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND DISTRIBUTION
CORPORATION LTD,
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
(3). TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…Respondents
AFFIDAVIT FILED BY THE APPELLANT
I, Dr. K.Venkatachalam, son of A.Karuppaih, Hindu, aged 60 years,
residing at Sindhu Illam, M2/27, 4th Cross, R.M.Colony, Dindigul – 624 001 Tamil
Nadu do hereby solemnly affirm and sincerely state as follows :
1. I am the Chief Advisor of the Appellant Association, viz., Tamil Nadu
Spinning Mills Association and I am duly authorized by the said Appellant to
swear this Affidavit on its behalf. I have been dealing with these matters relating
to the above mentioned case and I am conversant with the facts of the case.
2. I have read the accompanying Appeal filed against the Impugned Order
dated 31.07.2012 in T.R.No.6 of 2012 passed by the Tamilnadu Electricity
Regulatory Commission and I say that the facts stated therein in paras 1 to 33
are based on the records of the Appellant maintained in the ordinary course of its
business and believed by me to be true.
APPELLANT
VERIFICATION
I, the Deponent above named do hereby verify that the contents or my
above Affidavit are true to my knowledge, no part of it is false and nothing
material has been concealed therefrom.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER, 2012.
APPELLANT
FORM III
(See Rule 20)
INTERLOCUTORY APPLICATION
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
I.A. No. _____ OF 2012
In
APPEAL No. _____ OF 2012
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001, Tamilnadu.
represented by Dr.K.Venkatachalam, its Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND DISTRIBUTION
CORPORATION LTD,
represented by its Chairman and Managing Director,
144, Anna Salai,
CHENNAI – 600 002.
(3). TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…Respondents/Respondents.
PETITION FOR INTERIM STAY
The Applicant above named states as follows :
1. Set out the relief (s)
Pending final decision of the Appeal, the Applicant seeks the issuance of
the following Interim Stay :
For the reasons stated above, it is prayed that this Hon'ble Appellate
Tribunal may be pleased to pass an Order of INTERIM STAY of operation
and all further proceedings of the impugned Order No.6 of 2012 dated
31.07.2012 issued by the 1st Respondent in so far as para 8.2, 8.3, 8.7
and 8.9 relating to banking charges, transmission, wheeling and
transmission loss compensation charges and grid availability charges and
Scheduling and system operation charges respectively and para 8.7.2.2
relating to withdrawal of deemed demand benefits in so far as the
members of the petitioner Association are concerned in respect of their
WEGs having commissioning dates prior to the impugned order pending
disposal of the above Appeal and thus render justice.
2. Brief facts
A. The Applicant/Appellant is an Association of yarn spinning mills which
are HT electricity consumers in the State of Tamil Nadu. The Applicant
had earlier filed Petitions before various fora on issues relating to the
rights of its members in the Electricity Sector.
B. The First Respondent is the Tamil Nadu Electricity Regulatory
Commission and the second Respondent is Tamilnadu Generation and
Distribution Corporation Ltd and the Third Respondent is Tamil Nadu
Transmission Corporation Ltd
3. Basis on which Interim stay prayed for
3.1The Impugned Order in Para 9.2 makes it mandatory that all WEGs
irrespective of the commissioning dates should be brought under the
Impugned Order and accordingly, all costs have to be paid as per the
Impugned Order. But whereas, according to Regulation 6 of TNERC-
Power procurement from New and Renewable Sources of Energy
Regulations, 2008, any Order of the Commission would bind the WEGs
commissioned only after the date of the said Order and therefore, the
attempt of the Impugned Order to make it applicable for all WEGs having
the commissioning date prior to the date of Impugned Order is an arbitrary
exercise of power and therefore, it is against law.
3.2 The appellants submits that after coming in to force of the Impugned
Order, there are four categories of WEGs now functioning in the State of
Tamilnadu and each are governed by a separate practice and Order and
accordingly, with separate Power Purchase Agreement or Energy
Wheeling Agreement as the case may be depending up on the date of
commissioning of the WEG.
3.3 Those WEGs commissioned prior to 15.05.2006 are covered by PPA
(Power Purchase Agreement) and not interfered by the Commission’s
Order dated 15.05.2006 on wind energy in any manner. These WEGs
however, have the option to renegotiate and can come to the benefits of
the Commission’s Tariff Order on Wind Energy dated 15.05.2006 by
renegotiating the PPA in to EPA (Energy Purchase Agreement) or EWA
(Energy Wheeling Agreement) as the case may be. In order to make
applicable the Order dated 15.05.2006 of the Commission, there was a
specific provision made available in the Order itself to accommodate the
option of renegotiation under Clause 4. Further, they have the option to
continue with the existing arrangement under PPA Scheme itself if they
are not willing for a renegotiation and as such, if they are not willing, they
can continue in the old scheme itself without renegotiation towards the
EPA/EWA Scheme.
3.4 Same is the case when the next Tariff Order No.1 of 2009 dated
20.03.2009 came in to force from 19.09.2008 onwards. Accordingly,
except for the purpose of Tariff for all other terms and conditions,
renegotiation scope was provided for re-entering in to new EWA in Clause
4 of the Order dated 20.03.2009.
3.5 However, in the present impugned Order, the Respondent Commission
has issued orders totally contradicting the existing schemes by which an
existing WEG can either opt for the new scheme or to continue with the
old scheme which was under the sole option of the WEG owner. Even
though such a scheme has to be provided under the concept of
promissory estoppels and legitimate expectation, the Respondent
Commission has greatly erred in this matter and accordingly, no such
option was made available in the Impugned Order. Besides to the same,
the Impugned Order is having confusing contents in Para 4 and Para 9.2.
totally contradicting with each other.
3.6 Para 4 of the Impugned Order says as follows:
“Since changes are made in various provisions of the previous Order,
the Commission considers it appropriate to give effect to all of the
provisions contained in this Tariff Order only prospectively. This Order,
therefore, shall come in to effect from 01.08.2012.”
But whereas Para 9.2 of the Impugned Order says as follows:
“Other related charges and terms and conditions specified in the Order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning”
The impugned Order therefore, mandates heavy costs on captive
consumption of wind energy with effect from 01.08.2012 and however,
the EWA already in force is not in support of the said costs to be
collectable from the executants of the EWA. Hence, any WEG owner
could opt to continue to be in the old agreement and therefore, there is
no mandatory necessity to switch over to the new system from
01.08.2012 onwards. This liberty was provided in both the earlier
orders and however, only in the Impugned Order, it has been fully
wiped out. For no reason, the existing WEG owner could be
compelled to go for the new Order which costs him heavily on various
areas and therefore, such a compulsion is against the principles of
natural justice.
3.7 Each WEG is covered by a separate Energy Wheeling Agreement and as
new charges are likely to be levied in place of old charges as per the
impugned Order, the existing WEG owners may not opt to come for the
new Order and they may like to continue to remain in the existing EWA
itself without altering their status. Based on the terms and conditions
prevailed during the time of taking investment decisions, the WEG owners
has come forward for going to the wind power. It is not therefore fair to
drive them to a new set of costs which were not even thought of, when the
investment decision was originally taken. Now asking them for a sweep
change is not fair and reasonable on the principles of promissory
estoppels and legitimate expectation. All investments prior to 31.07.2012
(ie) before the issuance of the impugned Order have happened only
based on either Order No.3 of 2006 dated 15.05.2006 or Order No.1 of
2009 dated 20.03.2009. Now without any rhyme or reason, to ask them
also to come for the new Order with high costs is against the principles of
the natural Justice, promissory estoppels and legitimate expectation.
3.8 In para No. 4 of the impugned Order, the 1st Respondent Commission has
made as follows:
……… This order contains many provisions not only relating to tariff but
also relating to other terms and conditions. Since charges are made in
various provisions of the previous order, the Commission considers it
appropriate to give effect to all the provisions contained in this tariff Order
only prospectively. This Order, therefore, shall come into effect from
01.08.2012.
But, very much contrary to its own Order in Para No.4, in Para No.9.2 the
1st Respondent Commission has made it as follows.
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
3.9 Hence, from the contradictory statements of the 1st Respondent
Commission, the 2nd Respondent TANGEDCO has given working
instructions to make applicable all the new charges and all other new
terms and conditions to all WEGs who are totally controlled by a different
Energy Wheeling Agreement and accordingly, the 2nd Respondent has
started raising bills for new charges even though there is no provision in
the Energy Wheeling Agreement to claim such charges. The existing
benefits like deemed demand charges were totally withdrawn even without
a notice. Hence, due to the erroneous and anomalous nature of the
impugned Order of the 1st Respondent, all WEG owners/members of the
Appellant are put in too much of financial difficulty and hardship leading to
irreparable loss during every month from 01.08.2012 onwards.
3.10 Further, under the TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008, under Regulation 6, it has been
made as follows:
6. Agreement and Control period
The tariff as determined by the Commission by a general or
specific order for the purchase of power from each type of
renewable source by the distribution licensee as referred to in
clause 4(3) shall remain in force for such period as specified by the
Commission in such tariff orders. The control period may ordinarily be
two years. When the Commission revisits the tariff and allied issues,
the revision shall be applicable only to the generator of new and
renewable energy sources commissioned after the date of such
revised order.
3.11 However, much contrary to the above Regulation, the Respondent
Commission in Para 9.2 of the Impugned Order, makes it mandatory the
contents of the Order totally applicable for all the WEGs irrespective of the
date of commissioning. The Regulation mandates that When the
Commission revisits the tariff and allied issues, the revision shall be
applicable only to the generator of new and renewable energy
sources commissioned after the date of such revised order. But much
contrary to the same in Para 9.2 of the Impugned Order the Respondent
Commission states as follows:
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
Hence, the Impugned Order is totally against the very letter and spirit of
the Regulation and on this score alone, the Impugned Order needs to be
set aside.
3.12 While the 1st Respondent Commission dealing with execution of Energy
Wheeling Agreement (EWA) in the impugned Order in Para No.8.17 it has
made it as follows:
8.17. Energy Wheeling Agreement (EWA)
The format for Energy Wheeling Agreement (EWA) shall be evolved as
specified in the Commission’s regulation in force. The period of agreement
and other terms and conditions shall be as per the terms of open access
regulations in force issued by the Commission.
Hence, even assuming that the Order is applicable for all WEGs
irrespective of the date of commissioning, in order to enforce the various
terms and conditions stipulated in the impugned Order, it requires an
Energy Wheeling Agreement and accordingly, after getting it signed by the
parties concerned only, this Order would be given effect and whereas the
2nd Respondent has not cared to proceed to get the EWA draft vetted and
approved by the Commission after following the due process of
stakeholders’ consultation. This again makes the working instructions
invalid as no new Energy Wheeling Agreement was executed and no text
of Energy Wheeling Agreement was circulated for providing opportunity for
the stakeholders in the matter of finalization of the text of new Energy
Wheeling Agreement.
3.13 The Appellant submits that each WEG has a specific commissioning date
and according to the date of commissioning, the said WEG is governed by
an Order of the Commission and therefore, unless the WEG owner opts
for renegotiation of the existing agreement, the new Order and the various
terms and conditions stipulated in the new Order cannot become
automatically enforceable with the WEGs commissioned before the date
of issuance of the Order in any manner. All the previous orders have very
specifically made this clause under the heading of “Applicability of the
Order” under Para 4 both in Order No. 3 dated 15.05.2006 and in Order
No.1 dated 20.03.2009. Such an arrangement is required and goes in
concurrence with the Regulation 6 of TNERC-Power procurement from
New and Renewable Sources of Energy Regulations, 2008 quoted supra.
For the sake of convenience of reference the said paragraph in Order
No.3 dated 15.05.2006 is reproduced below:
4.0 APPLICABILITY OF ORDER
This order shall come in to force from the date of its issue. This order shall
be applicable to all future and renewal of existing contracts/agreements for
the Non-Conventional Energy Sources (NCES) based Generating Plants
and Non-Conventional Energy Sources based Co-Generation Plants
located within the State of Tamilnadu. It should be noted that the existing
contracts and agreements between NCES based generators and the
distribution licensee signed prior to the date of issue of this order would
continue to remain in force. However, the NCES based generators and the
distribution licensees shall have the option to mutually re-negotiate the
existing agreements or contracts if any, in line with this order even before
the expiry of the existing agreements or contracts. Any renewal of the said
contracts/agreements, new contracts/agreements shall be in line with this
order.
3.14 Likewise in Para No.4 in Order No.1 of 2009 dated 20.03.2009 the
Commissioned has made as follows:
4. Applicability of this Order
Order No.3 dated 15.05.2006 of the Commission lays down a control
period of three years for that order and therefore, normally the next order
should have taken effect from 15.05.2009. The Commission in the
Common Order in M.P.Nos.9, 14 and 23 of 2008 dated 19.09.2008 has
ruled that the control period of three years specified in order No.3 dated
15.05.2006 is waived from the date of issue of that Order. The control
period of three years, thus, stands terminated on 19.09.2008. Therefore,
the Commission holds that all the wind energy generators commissioned
on or after 19.09.2008 shall become eligible for the benefits of the present
order, subject to the condition that the monetary benefits shall accrue from
the date of this order. The existing agreements between the wind energy
generators and the distribution licensee shall continue to be valid. The
parties to the agreement are at liberty at any time to renegotiate the
existing agreement mutually in accordance with this order. The agreement
between the wind generators and the distribution licensee in relation to all
machines commission on or after 19.09.2008 shall be in conformity with
this order.
3.15 The above two orders of the Commission perfectly fit with the Principles of
natural Justice coupled with the theory of promissory estoppels and
legitimate expectation. Further, such a provision is also in line with the
Regulation 6 of TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008. Each WEG has come in to being by
a large capital investment. Hence, what set of terms and conditions are
applicable at the time of making investment would continue to be in force
till the WEG promoter opts to continue with it as the investment decision
has happened only with reference to the knowledge, information, rights
and responsibilities made available at the time of making investment
decisions. The members of the Appellant having altered their status based
on certain terms and conditions prevailed at a point of time when they
invested on wind energy, cannot now be unilaterally forced to come for
new terms and conditions. Then it becomes an arbitrary exercise and the
impugned Order could only be construed to have the effect of unilateral
and arbitrary exercise of power. Further it is violative of the principles set
out under Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008.
3.16 Further, as per the Clause 11 of the existing Energy Wheeling Agreement
(EWA) by each of the members of the Appellant executed, it has been
made as follows:
“11. Terms and Conditions agreement period:
(4) The agreement shall be valid for a minimum period of 5 years.
(5) The parties to the agreement shall be given the option to exit for
violation of the agreement after serving a notice of three months on the
other party.
(6) The parties to the agreement are at liberty at any time to renegotiate
the existing agreement mutually in accordance with the Commission’s
order in force.”
3.17 From the Clause 11 (3) of the existing EWA, it could be seen that there is
a liberty extended to parties that either they can renegotiate the existing
agreement for going to the new agreement as per the new orders if any or
they can continue to remain as such in the existing agreement itself. The
option is therefore, vested with the party concerned and therefore, no
party could be compelled or forced to accept any new terms and
conditions for which no agreement was signed earlier. This option made
available to the WEGs is totally wiped out in the impugned Order. The
impugned Order unilaterally forces all the WEG owners irrespective of the
date of commissioning to come for the new arrangement whereby heavy
costs are involved with large civil consequences.
3.18 Due to the implementation of the working instructions of the 2nd
Respondent based on the impugned Order of the 1st Respondent, every
member of the Appellant is losing heavy money every month due to
certain new charges as leviable due to the fresh terms and conditions of
the new Order with effect from 01.08.2012 onwards. All the members of
the Appellant are totally unaware of the terms and conditions while they
made investments and altered their status to erect and commission the
WEGs for the purpose of captive consumption. All their investment plans,
RoE, etc., have been based only on the available terms and conditions as
enumerated in either Order No.3 dated 15.05.2006 or 1 dated 20.03.2009.
Hence, even though the Commission has made it clear in Para No.4 that
the terms and conditions are to be applied prospectively, it has
contradicted its own versions and accordingly, in Para No.9.2 it made it to
applicable to all WEGs irrespective of the date of commissioning.
Therefore, the 1st Respondent Commission has committed a serious error
and hence it needs to be corrected and rectified by this Hon'ble Tribunal.
3.19 Therefore, the Appellant humbly prays that the members of the Appellant
having made investments and altered their status based up on certain
terms and conditions stipulated by such orders which were in force during
those points of taking investment decisions, cannot now unilaterally and
arbitrarily be directed to come for a new set of terms and conditions by the
impugned Order which has a very strong impact on their financial
workings and thereby the entire operation becomes totally unviable. The
impugned Order imposes serious civil consequences and therefore, it
could never be retrospective for any reason. Further, the impugned Order
contradicts with each other as far as Para No.4 and Para No.9.2 are
concerned. Further, Para 9.2 of the Impugned Order is in total
contradiction of Regulation 6 of TNERC-Power procurement from New
and Renewable Sources of Energy Regulations, 2008. Hence, it needs to
be set aside on this very score alone.
3.20 Further, in having ordered that all WEGs irrespective of their date of
commissioning to come for the new Order which casts serious civil
consequences to pay more charges, the 1st Respondent has clearly
violated the Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008. Therefore, it is nothing
but arbitrary exercise of powers, against the approved cannons of law,
against the Principles of natural Justice and against the Principles of
promissory estoppels and legitimate expectation and therefore, it is
expropriatory under Article 14 of the Constitution of India and hence, the
Order needs to be struck down for this score also.
4. Balance of convenience, if any
The Appellant has made out a prima facie case in favour of the Appellant
and the balance of convenience is also in favour of the Appellant only.
Since the members of the Appellant are already paying the notified
charges as per the orders in force and also as per the Energy Wheeling
Agreement they have entered with the 2nd Respondent there is no loss of
revenue to the 2nd or the 3rd Respondent in any manner and as such, the
Interim Order prayed for may kindly be granted.
DECLARATION BY APPLICANT
The Applicant above named hereby solemnly declares that nothing material has
been concealed or suppressed and further declares that the enclosures and
typed set of material papers relied upon and filed herewith are true copies of the
originals/fair reproduction of the originals thereof.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER 2012.
COUNSEL FOR APPLICANT APPLICANT
VERIFICATION
I, Dr. K. Venkatachalam, S/o. Late Karuppaiah aged about 60 years representing
the Applicant – Tamil Nadu Spinning Mills Association as its Chief Adviser and
resident of Tamil Nadu do hereby verify that the contents of the paras 1 to 4 are
true to my personal knowledge/ derived from official record and are believed to
be true on legal advice and that I have not suppressed any material facts.
DATE : 13-09-2012
PLACE :
SIGNATURE OF THE APPLICANT
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
I.A. No. _____ OF 2012
In
APPEAL No. _____ OF 2012
BETWEEN
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001, Tamilnadu.
Represented by Dr.K.Venkatachalam Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND DISTRIBUTION
CORPORATION LTD,
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
(3). TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…Respondents/Respondents.
AFFIDAVIT FILED BY THE APPLICANT
I, K. Venkatachalam, son of A. Karuppaiah, Hindu, aged about 60 years,
residing at M2/27, Sindhu Illam, 4th Cross, R.M. Colony, Dindigul-624 001, Tamil
Nadu do hereby solemnly affirm and sincerely state as follows : -
1. I am the Chief Adviser of the Applicant Association, viz., Tamil Nadu
Spinning Mills Association and am duly authorized by the said Applicant to swear
to this Affidavit on its behalf. I have been dealing with this matters relating to the
above mentioned case and I am conversant with the facts of the case.
2. I have read the accompanying Interlocutory Application seeking Interim
stay pending the Appeal filed against the Order dated 31.07.2012 in T.R.No.6 of
2012 passed by the Tamil Nadu Electricity Regulatory Commission and I say that
the facts stated therein in paras 1 to 4 are based on the records of the Applicant
maintained in the ordinary course of its business and believed by me to be true.
APPLICANT
VERIFICATION
I, the Deponent above named do hereby verify that the contents or my above
Affidavit are true to my knowledge, no part of it is false and nothing material has
been concealed therefrom.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER, 2012.
APPLICANT
FORM III
(See Rule 20)
INTERLOCUTORY APPLICATION
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
I.A. No. _____ OF 2012
In
APPEAL No. _____ OF 2012
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001, Tamilnadu.
represented by Dr.K.Venkatachalam, its Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND DISTRIBUTION
CORPORATION LTD,
represented by its Chairman and Managing Director,
144, Anna Salai,
CHENNAI – 600 002.
(3). TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…Respondents/Respondents.
PETITION FOR INTERIM INJUNCTION
The Applicant above named states as follows :
1. Set out the relief (s)
Pending final decision of the Appeal, the Applicant seeks the issuance of
the following Interim injunction :
For the reasons stated above, it is prayed that this Hon’ble Appellate
Tribunal may be pleased to pass an order of INTERIM INJUNCTION,
restraining the 2nd and 3rd Respondents, their men, agents, representatives
and sub-ordinates from demanding and collecting banking charges(para
8.2), transmission charges, wheeling charges and line loss charges(para
8.3), grid availability charges(8.7) and Scheduling and system operation
charges(para 8.9) in so far as the members of the Petitioner Association
are concerned pending disposal of the above Appeal and thus render
justice.
2. Brief facts
A. The Applicant/Appellant is an Association of yarn spinning mills
which are HT electricity consumers in the State of Tamil Nadu. The
Applicant had earlier filed Petitions before various fora on issues
relating to the rights of its members in the Electricity Sector.
B. The First Respondent is the Tamil Nadu Electricity Regulatory
Commission and the second Respondent is Tamilnadu Generation
and Distribution Corporation Ltd and the Third Respondent is Tamil
Nadu Transmission Corporation Ltd
3. Basis on which Interim injunction prayed for
3.1 The Impugned Order in Para 9.2 makes it mandatory that all WEGs
irrespective of the commissioning dates should be brought under the
Impugned Order and accordingly, all costs have to be paid as per the
Impugned Order. But whereas, according to Regulation 6 of TNERC-
Power procurement from New and Renewable Sources of Energy
Regulations, 2008, any Order of the Commission would bind the WEGs
commissioned only after the date of the said Order and therefore, the
attempt of the Impugned Order to make it applicable for all WEGs having
the commissioning date prior to the date of Impugned Order is an arbitrary
exercise of power and therefore, it is against law.
3.2 The appellants submits that after coming in to force of the Impugned
Order, there are four categories of WEGs now functioning in the State of
Tamilnadu and each are governed by a separate practice and Order and
accordingly, with separate Power Purchase Agreement or Energy
Wheeling Agreement as the case may be depending up on the date of
commissioning of the WEG.
3.3 Those WEGs commissioned prior to 15.05.2006 are covered by PPA
(Power Purchase Agreement) and not interfered by the Commission’s
Order dated 15.05.2006 on wind energy in any manner. These WEGs
however, have the option to renegotiate and can come to the benefits of
the Commission’s Tariff Order on Wind Energy dated 15.05.2006 by
renegotiating the PPA in to EPA (Energy Purchase Agreement) or EWA
(Energy Wheeling Agreement) as the case may be. In order to make
applicable the Order dated 15.05.2006 of the Commission, there was a
specific provision made available in the Order itself to accommodate the
option of renegotiation under Clause 4. Further, they have the option to
continue with the existing arrangement under PPA Scheme itself if they
are not willing for a renegotiation and as such, if they are not willing, they
can continue in the old scheme itself without renegotiation towards the
EPA/EWA Scheme.
3.4 Same is the case when the next Tariff Order No.1 of 2009 dated
20.03.2009 came in to force from 19.09.2008 onwards. Accordingly,
except for the purpose of Tariff for all other terms and conditions,
renegotiation scope was provided for re-entering in to new EWA in Clause
4 of the Order dated 20.03.2009.
3.5 However, in the present impugned Order, the Respondent Commission
has issued orders totally contradicting the existing schemes by which an
existing WEG can either opt for the new scheme or to continue with the
old scheme which was under the sole option of the WEG owner. Even
though such a scheme has to be provided under the concept of
promissory estoppels and legitimate expectation, the Respondent
Commission has greatly erred in this matter and accordingly, no such
option was made available in the Impugned Order. Besides to the same,
the Impugned Order is having confusing contents in Para 4 and Para 9.2.
totally contradicting with each other.
3.6 Para 4 of the Impugned Order says as follows:
“Since changes are made in various provisions of the previous Order,
the Commission considers it appropriate to give effect to all of the
provisions contained in this Tariff Order only prospectively. This Order,
therefore, shall come in to effect from 01.08.2012.”
But whereas Para 9.2 of the Impugned Order says as follows:
“Other related charges and terms and conditions specified in the Order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning”
The impugned Order therefore, mandates heavy costs on captive
consumption of wind energy with effect from 01.08.2012 and however,
the EWA already in force is not in support of the said costs to be
collectable from the executants of the EWA. Hence, any WEG owner
could opt to continue to be in the old agreement and therefore, there is
no mandatory necessity to switch over to the new system from
01.08.2012 onwards. This liberty was provided in both the earlier
orders and however, only in the Impugned Order, it has been fully
wiped out. For no reason, the existing WEG owner could be
compelled to go for the new Order which costs him heavily on various
areas and therefore, such a compulsion is against the principles of
natural justice.
3.7 Each WEG is covered by a separate Energy Wheeling Agreement and as
new charges are likely to be levied in place of old charges as per the
impugned Order, the existing WEG owners may not opt to come for the
new Order and they may like to continue to remain in the existing EWA
itself without altering their status. Based on the terms and conditions
prevailed during the time of taking investment decisions, the WEG owners
has come forward for going to the wind power. It is not therefore fair to
drive them to a new set of costs which were not even thought of, when the
investment decision was originally taken. Now asking them for a sweep
change is not fair and reasonable on the principles of promissory
estoppels and legitimate expectation. All investments prior to 31.07.2012
(ie) before the issuance of the impugned Order have happened only
based on either Order No.3 of 2006 dated 15.05.2006 or Order No.1 of
2009 dated 20.03.2009. Now without any rhyme or reason, to ask them
also to come for the new Order with high costs is against the principles of
the natural Justice, promissory estoppels and legitimate expectation.
3.8 In para No. 4 of the impugned Order, the 1st Respondent Commission has
made as follows:
……… This order contains many provisions not only relating to tariff but
also relating to other terms and conditions. Since charges are made in
various provisions of the previous order, the Commission considers it
appropriate to give effect to all the provisions contained in this tariff Order
only prospectively. This Order, therefore, shall come into effect from
01.08.2012.
But, very much contrary to its own Order in Para No.4, in Para No.9.2 the
1st Respondent Commission has made it as follows.
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
3.9 Hence, from the contradictory statements of the 1st Respondent
Commission, the 2nd Respondent TANGEDCO has given working
instructions to make applicable all the new charges and all other new
terms and conditions to all WEGs who are totally controlled by a different
Energy Wheeling Agreement and accordingly, the 2nd Respondent has
started raising bills for new charges even though there is no provision in
the Energy Wheeling Agreement to claim such charges. The existing
benefits like deemed demand charges were totally withdrawn even without
a notice. Hence, due to the erroneous and anomalous nature of the
impugned Order of the 1st Respondent, all WEG owners/members of the
Appellant are put in too much of financial difficulty and hardship leading to
irreparable loss during every month from 01.08.2012 onwards.
3.10 Further, under the TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008, under Regulation 6, it has been
made as follows:
6. Agreement and Control period
The tariff as determined by the Commission by a general or
specific order for the purchase of power from each type of
renewable source by the distribution licensee as referred to in
clause 4(3) shall remain in force for such period as specified by the
Commission in such tariff orders. The control period may ordinarily be
two years. When the Commission revisits the tariff and allied issues,
the revision shall be applicable only to the generator of new and
renewable energy sources commissioned after the date of such
revised order.
3.11 However, much contrary to the above Regulation, the Respondent
Commission in Para 9.2 of the Impugned Order, makes it mandatory the
contents of the Order totally applicable for all the WEGs irrespective of the
date of commissioning. The Regulation mandates that When the
Commission revisits the tariff and allied issues, the revision shall be
applicable only to the generator of new and renewable energy
sources commissioned after the date of such revised order. But much
contrary to the same in Para 9.2 of the Impugned Order the Respondent
Commission states as follows:
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
Hence, the Impugned Order is totally against the very letter and spirit of
the Regulation and on this score alone, the Impugned Order needs to be
set aside.
3.12 While the 1st Respondent Commission dealing with execution of Energy
Wheeling Agreement (EWA) in the impugned Order in Para No.8.17 it has
made it as follows:
8.17. Energy Wheeling Agreement (EWA)
The format for Energy Wheeling Agreement (EWA) shall be evolved as
specified in the Commission’s regulation in force. The period of agreement
and other terms and conditions shall be as per the terms of open access
regulations in force issued by the Commission.
Hence, even assuming that the Order is applicable for all WEGs
irrespective of the date of commissioning, in order to enforce the various
terms and conditions stipulated in the impugned Order, it requires an
Energy Wheeling Agreement and accordingly, after getting it signed by the
parties concerned only, this Order would be given effect and whereas the
2nd Respondent has not cared to proceed to get the EWA draft vetted and
approved by the Commission after following the due process of
stakeholders’ consultation. This again makes the working instructions
invalid as no new Energy Wheeling Agreement was executed and no text
of Energy Wheeling Agreement was circulated for providing opportunity for
the stakeholders in the matter of finalization of the text of new Energy
Wheeling Agreement.
3.13 The Appellant submits that each WEG has a specific commissioning date
and according to the date of commissioning, the said WEG is governed by
an Order of the Commission and therefore, unless the WEG owner opts
for renegotiation of the existing agreement, the new Order and the various
terms and conditions stipulated in the new Order cannot become
automatically enforceable with the WEGs commissioned before the date
of issuance of the Order in any manner. All the previous orders have very
specifically made this clause under the heading of “Applicability of the
Order” under Para 4 both in Order No. 3 dated 15.05.2006 and in Order
No.1 dated 20.03.2009. Such an arrangement is required and goes in
concurrence with the Regulation 6 of TNERC-Power procurement from
New and Renewable Sources of Energy Regulations, 2008 quoted supra.
For the sake of convenience of reference the said paragraph in Order
No.3 dated 15.05.2006 is reproduced below:
4.0 APPLICABILITY OF ORDER
This order shall come in to force from the date of its issue. This order shall
be applicable to all future and renewal of existing contracts/agreements for
the Non-Conventional Energy Sources (NCES) based Generating Plants
and Non-Conventional Energy Sources based Co-Generation Plants
located within the State of Tamilnadu. It should be noted that the existing
contracts and agreements between NCES based generators and the
distribution licensee signed prior to the date of issue of this order would
continue to remain in force. However, the NCES based generators and the
distribution licensees shall have the option to mutually re-negotiate the
existing agreements or contracts if any, in line with this order even before
the expiry of the existing agreements or contracts. Any renewal of the said
contracts/agreements, new contracts/agreements shall be in line with this
order.
3.14 Likewise in Para No.4 in Order No.1 of 2009 dated 20.03.2009 the
Commissioned has made as follows:
4. Applicability of this Order
Order No.3 dated 15.05.2006 of the Commission lays down a control
period of three years for that order and therefore, normally the next order
should have taken effect from 15.05.2009. The Commission in the
Common Order in M.P.Nos.9, 14 and 23 of 2008 dated 19.09.2008 has
ruled that the control period of three years specified in order No.3 dated
15.05.2006 is waived from the date of issue of that Order. The control
period of three years, thus, stands terminated on 19.09.2008. Therefore,
the Commission holds that all the wind energy generators commissioned
on or after 19.09.2008 shall become eligible for the benefits of the present
order, subject to the condition that the monetary benefits shall accrue from
the date of this order. The existing agreements between the wind energy
generators and the distribution licensee shall continue to be valid. The
parties to the agreement are at liberty at any time to renegotiate the
existing agreement mutually in accordance with this order. The agreement
between the wind generators and the distribution licensee in relation to all
machines commission on or after 19.09.2008 shall be in conformity with
this order.
3.15 The above two orders of the Commission perfectly fit with the Principles of
natural Justice coupled with the theory of promissory estoppels and
legitimate expectation. Further, such a provision is also in line with the
Regulation 6 of TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008. Each WEG has come in to being by
a large capital investment. Hence, what set of terms and conditions are
applicable at the time of making investment would continue to be in force
till the WEG promoter opts to continue with it as the investment decision
has happened only with reference to the knowledge, information, rights
and responsibilities made available at the time of making investment
decisions. The members of the Appellant having altered their status based
on certain terms and conditions prevailed at a point of time when they
invested on wind energy, cannot now be unilaterally forced to come for
new terms and conditions. Then it becomes an arbitrary exercise and the
impugned Order could only be construed to have the effect of unilateral
and arbitrary exercise of power. Further it is violative of the principles set
out under Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008.
3.16 Further, as per the Clause 11 of the existing Energy Wheeling Agreement
(EWA) by each of the members of the Appellant executed, it has been
made as follows:
“11. Terms and Conditions agreement period:
(7) The agreement shall be valid for a minimum period of 5 years.
(8) The parties to the agreement shall be given the option to exit for
violation of the agreement after serving a notice of three months on the
other party.
(9) The parties to the agreement are at liberty at any time to renegotiate
the existing agreement mutually in accordance with the Commission’s
order in force.”
3.17 From the Clause 11 (3) of the existing EWA, it could be seen that there is
a liberty extended to parties that either they can renegotiate the existing
agreement for going to the new agreement as per the new orders if any or
they can continue to remain as such in the existing agreement itself. The
option is therefore, vested with the party concerned and therefore, no
party could be compelled or forced to accept any new terms and
conditions for which no agreement was signed earlier. This option made
available to the WEGs is totally wiped out in the impugned Order. The
impugned Order unilaterally forces all the WEG owners irrespective of the
date of commissioning to come for the new arrangement whereby heavy
costs are involved with large civil consequences.
3.18 Due to the implementation of the working instructions of the 2nd
Respondent based on the impugned Order of the 1st Respondent, every
member of the Appellant is losing heavy money every month due to
certain new charges as leviable due to the fresh terms and conditions of
the new Order with effect from 01.08.2012 onwards. All the members of
the Appellant are totally unaware of the terms and conditions while they
made investments and altered their status to erect and commission the
WEGs for the purpose of captive consumption. All their investment plans,
RoE, etc., have been based only on the available terms and conditions as
enumerated in either Order No.3 dated 15.05.2006 or 1 dated 20.03.2009.
Hence, even though the Commission has made it clear in Para No.4 that
the terms and conditions are to be applied prospectively, it has
contradicted its own versions and accordingly, in Para No.9.2 it made it to
applicable to all WEGs irrespective of the date of commissioning.
Therefore, the 1st Respondent Commission has committed a serious error
and hence it needs to be corrected and rectified by this Hon'ble Tribunal.
3.19 Therefore, the Appellant humbly prays that the members of the Appellant
having made investments and altered their status based up on certain
terms and conditions stipulated by such orders which were in force during
those points of taking investment decisions, cannot now unilaterally and
arbitrarily be directed to come for a new set of terms and conditions by the
impugned Order which has a very strong impact on their financial
workings and thereby the entire operation becomes totally unviable. The
impugned Order imposes serious civil consequences and therefore, it
could never be retrospective for any reason. Further, the impugned Order
contradicts with each other as far as Para No.4 and Para No.9.2 are
concerned. Further, Para 9.2 of the Impugned Order is in total
contradiction of Regulation 6 of TNERC-Power procurement from New
and Renewable Sources of Energy Regulations, 2008. Hence, it needs to
be set aside on this very score alone.
3.20 Further, in having ordered that all WEGs irrespective of their date of
commissioning to come for the new Order which casts serious civil
consequences to pay more charges, the 1st Respondent has clearly
violated the Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008. Therefore, it is nothing
but arbitrary exercise of powers, against the approved cannons of law,
against the Principles of natural Justice and against the Principles of
promissory estoppels and legitimate expectation and therefore, it is
expropriatory under Article 14 of the Constitution of India and hence, the
Order needs to be struck down for this score also.
4. Balance of convenience, if any
The Appellant has made out a prima facie case in favour of the Appellant
and the balance of convenience is also in favour of the Appellant only.
Since the members of the Appellant are already paying the notified
charges as per the orders in force and also as per the Energy Wheeling
Agreement they have entered with the 2nd Respondent there is no loss of
revenue to the 2nd or the 3rd Respondent in any manner and as such, the
Interim Order prayed for may kindly be granted.
DECLARATION BY APPLICANT
The Applicant above named hereby solemnly declares that nothing material has
been concealed or suppressed and further declares that the enclosures and
typed set of material papers relied upon and filed herewith are true copies of the
originals/fair reproduction of the originals thereof.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER 2012.
COUNSEL FOR APPLICANT APPLICANT
VERIFICATION
I, Dr. K. Venkatachalam, S/o. Late Karuppaiah aged about 60 years representing
the Applicant – Tamil Nadu Spinning Mills Association as its Chief Adviser and
resident of Tamil Nadu do hereby verify that the contents of the paras 1 to 4 are
true to my personal knowledge/ derived from official record and are believed to
be true on legal advice and that I have not suppressed any material facts.
DATE : 13-09-2012
PLACE : DELHI
SIGNATURE OF THE APPLICANT
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
I.A. No. _____ OF 2012
In
APPEAL No. _____ OF 2012
BETWEEN
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001, Tamilnadu.
Represented by Dr.K.Venkatachalam Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND DISTRIBUTION
CORPORATION LTD,
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
(3). TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…Respondents/Respondents.
AFFIDAVIT FILED BY THE APPLICANT
I, K. Venkatachalam, son of A. Karuppaiah, Hindu, aged about 60 years,
residing at M2/27, Sindhu Illam, 4th Cross, R.M. Colony, Dindigul-624 001, Tamil
Nadu do hereby solemnly affirm and sincerely state as follows : -
1. I am the Chief Adviser of the Applicant Association, viz., Tamil Nadu
Spinning Mills Association and am duly authorized by the said Applicant to swear
to this Affidavit on its behalf. I have been dealing with this matters relating to the
above mentioned case and I am conversant with the facts of the case.
2. I have read the accompanying Interlocutory Application seeking Interim
injunction pending the Appeal filed against the Order dated 31.07.2012 in
T.R.No.6 of 2012 passed by the Tamil Nadu Electricity Regulatory Commission
and I say that the facts stated therein in paras 1 to 4 are based on the records of
the Applicant maintained in the ordinary course of its business and believed by
me to be true.
APPLICANT
VERIFICATION
I, the Deponent above named do hereby verify that the contents or my above
Affidavit are true to my knowledge, no part of it is false and nothing material has
been concealed therefrom.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER, 2012.
APPLICANT
FORM III
(See Rule 20)
INTERLOCUTORY APPLICATION
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
I.A. No. _____ OF 2012
In
APPEAL No. _____ OF 2012
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001, Tamilnadu.
represented by Dr.K.Venkatachalam, its Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND DISTRIBUTION
CORPORATION LTD,
represented by its Chairman and Managing Director,
144, Anna Salai,
CHENNAI – 600 002.
(3). TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…Respondents/Respondents.
PETITION FOR INTERIM DIRECTION
The Applicant above named states as follows :
1. Set out the relief (s)
Pending final decision of the Appeal, the Applicant seeks the issuance of
the following Interim Direction :
For the reasons stated above, it is prayed that this Hon’ble Appellate
Tribunal may be pleased to pass an order of INTERIM INJUNCTION,
restraining the 2nd and 3rd Respondents, their men, agents, representatives
and sub-ordinates from demanding and collecting banking charges(para
8.2), transmission charges, wheeling charges and line loss charges(para
8.3), grid availability charges(8.7) and Scheduling and system operation
charges(para 8.9) in so far as the members of the Petitioner Association
are concerned pending disposal of the above Appeal and thus render
justice.
2. Brief facts
A. The Applicant/Appellant is an Association of yarn spinning mills
which are HT electricity consumers in the State of Tamil Nadu.
The Applicant had earlier filed Petitions before various fora on
issues relating to the rights of its members in the Electricity
Sector.
B. The First Respondent is the Tamil Nadu Electricity Regulatory
Commission and the second Respondent is Tamilnadu
Generation and Distribution Corporation Ltd and the Third
Respondent is Tamil Nadu Transmission Corporation Ltd
3. Basis on which Interim injunction prayed for
3.1 The Impugned Order in Para 9.2 makes it mandatory that all WEGs
irrespective of the commissioning dates should be brought under the
Impugned Order and accordingly, all costs have to be paid as per the
Impugned Order. But whereas, according to Regulation 6 of TNERC-
Power procurement from New and Renewable Sources of Energy
Regulations, 2008, any Order of the Commission would bind the WEGs
commissioned only after the date of the said Order and therefore, the
attempt of the Impugned Order to make it applicable for all WEGs having
the commissioning date prior to the date of Impugned Order is an arbitrary
exercise of power and therefore, it is against law.
3.2 The appellants submits that after coming in to force of the Impugned
Order, there are four categories of WEGs now functioning in the State of
Tamilnadu and each are governed by a separate practice and Order and
accordingly, with separate Power Purchase Agreement or Energy
Wheeling Agreement as the case may be depending up on the date of
commissioning of the WEG.
3.3 Those WEGs commissioned prior to 15.05.2006 are covered by PPA
(Power Purchase Agreement) and not interfered by the Commission’s
Order dated 15.05.2006 on wind energy in any manner. These WEGs
however, have the option to renegotiate and can come to the benefits of
the Commission’s Tariff Order on Wind Energy dated 15.05.2006 by
renegotiating the PPA in to EPA (Energy Purchase Agreement) or EWA
(Energy Wheeling Agreement) as the case may be. In order to make
applicable the Order dated 15.05.2006 of the Commission, there was a
specific provision made available in the Order itself to accommodate the
option of renegotiation under Clause 4. Further, they have the option to
continue with the existing arrangement under PPA Scheme itself if they
are not willing for a renegotiation and as such, if they are not willing, they
can continue in the old scheme itself without renegotiation towards the
EPA/EWA Scheme.
3.4 Same is the case when the next Tariff Order No.1 of 2009 dated
20.03.2009 came in to force from 19.09.2008 onwards. Accordingly,
except for the purpose of Tariff for all other terms and conditions,
renegotiation scope was provided for re-entering in to new EWA in Clause
4 of the Order dated 20.03.2009.
3.5 However, in the present impugned Order, the Respondent Commission
has issued orders totally contradicting the existing schemes by which an
existing WEG can either opt for the new scheme or to continue with the
old scheme which was under the sole option of the WEG owner. Even
though such a scheme has to be provided under the concept of
promissory estoppels and legitimate expectation, the Respondent
Commission has greatly erred in this matter and accordingly, no such
option was made available in the Impugned Order. Besides to the same,
the Impugned Order is having confusing contents in Para 4 and Para 9.2.
totally contradicting with each other.
3.6 Para 4 of the Impugned Order says as follows:
“Since changes are made in various provisions of the previous Order,
the Commission considers it appropriate to give effect to all of the
provisions contained in this Tariff Order only prospectively. This Order,
therefore, shall come in to effect from 01.08.2012.”
But whereas Para 9.2 of the Impugned Order says as follows:
“Other related charges and terms and conditions specified in the Order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning”
The impugned Order therefore, mandates heavy costs on captive
consumption of wind energy with effect from 01.08.2012 and however,
the EWA already in force is not in support of the said costs to be
collectable from the executants of the EWA. Hence, any WEG owner
could opt to continue to be in the old agreement and therefore, there is
no mandatory necessity to switch over to the new system from
01.08.2012 onwards. This liberty was provided in both the earlier
orders and however, only in the Impugned Order, it has been fully
wiped out. For no reason, the existing WEG owner could be
compelled to go for the new Order which costs him heavily on various
areas and therefore, such a compulsion is against the principles of
natural justice.
3.7 Each WEG is covered by a separate Energy Wheeling Agreement and as
new charges are likely to be levied in place of old charges as per the
impugned Order, the existing WEG owners may not opt to come for the new
Order and they may like to continue to remain in the existing EWA itself
without altering their status. Based on the terms and conditions prevailed
during the time of taking investment decisions, the WEG owners has come
forward for going to the wind power. It is not therefore fair to drive them to a
new set of costs which were not even thought of, when the investment
decision was originally taken. Now asking them for a sweep change is not
fair and reasonable on the principles of promissory estoppels and legitimate
expectation. All investments prior to 31.07.2012 (ie) before the issuance of
the impugned Order have happened only based on either Order No.3 of
2006 dated 15.05.2006 or Order No.1 of 2009 dated 20.03.2009. Now
without any rhyme or reason, to ask them also to come for the new Order
with high costs is against the principles of the natural Justice, promissory
estoppels and legitimate expectation.
3.8 In para No. 4 of the impugned Order, the 1st Respondent Commission has
made as follows:
……… This order contains many provisions not only relating to tariff but
also relating to other terms and conditions. Since charges are made in
various provisions of the previous order, the Commission considers it
appropriate to give effect to all the provisions contained in this tariff Order
only prospectively. This Order, therefore, shall come into effect from
01.08.2012.
But, very much contrary to its own Order in Para No.4, in Para No.9.2 the
1st Respondent Commission has made it as follows.
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
3.9Hence, from the contradictory statements of the 1st Respondent Commission,
the 2nd Respondent TANGEDCO has given working instructions to make
applicable all the new charges and all other new terms and conditions to all
WEGs who are totally controlled by a different Energy Wheeling Agreement
and accordingly, the 2nd Respondent has started raising bills for new charges
even though there is no provision in the Energy Wheeling Agreement to claim
such charges. The existing benefits like deemed demand charges were totally
withdrawn even without a notice. Hence, due to the erroneous and
anomalous nature of the impugned Order of the 1st Respondent, all WEG
owners/members of the Appellant are put in too much of financial difficulty
and hardship leading to irreparable loss during every month from 01.08.2012
onwards.
3.10 Further, under the TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008, under Regulation 6, it has been made
as follows:
6. Agreement and Control period
The tariff as determined by the Commission by a general or
specific order for the purchase of power from each type of
renewable source by the distribution licensee as referred to in
clause 4(3) shall remain in force for such period as specified by the
Commission in such tariff orders. The control period may ordinarily be
two years. When the Commission revisits the tariff and allied issues,
the revision shall be applicable only to the generator of new and
renewable energy sources commissioned after the date of such
revised order.
3.11 However, much contrary to the above Regulation, the Respondent
Commission in Para 9.2 of the Impugned Order, makes it mandatory the
contents of the Order totally applicable for all the WEGs irrespective of the
date of commissioning. The Regulation mandates that When the
Commission revisits the tariff and allied issues, the revision shall be
applicable only to the generator of new and renewable energy
sources commissioned after the date of such revised order. But much
contrary to the same in Para 9.2 of the Impugned Order the Respondent
Commission states as follows:
9.2. Other related charges and terms and conditions specified in the order
shall be applicable to all the wind energy generators, irrespective of the
date of commissioning.
Hence, the Impugned Order is totally against the very letter and spirit of
the Regulation and on this score alone, the Impugned Order needs to be
set aside.
3.12 While the 1st Respondent Commission dealing with execution of Energy
Wheeling Agreement (EWA) in the impugned Order in Para No.8.17 it has
made it as follows:
8.17. Energy Wheeling Agreement (EWA)
The format for Energy Wheeling Agreement (EWA) shall be evolved as
specified in the Commission’s regulation in force. The period of agreement
and other terms and conditions shall be as per the terms of open access
regulations in force issued by the Commission.
Hence, even assuming that the Order is applicable for all WEGs
irrespective of the date of commissioning, in order to enforce the various
terms and conditions stipulated in the impugned Order, it requires an
Energy Wheeling Agreement and accordingly, after getting it signed by the
parties concerned only, this Order would be given effect and whereas the
2nd Respondent has not cared to proceed to get the EWA draft vetted and
approved by the Commission after following the due process of
stakeholders’ consultation. This again makes the working instructions
invalid as no new Energy Wheeling Agreement was executed and no text
of Energy Wheeling Agreement was circulated for providing opportunity for
the stakeholders in the matter of finalization of the text of new Energy
Wheeling Agreement.
3.13 The Appellant submits that each WEG has a specific commissioning date
and according to the date of commissioning, the said WEG is governed by
an Order of the Commission and therefore, unless the WEG owner opts
for renegotiation of the existing agreement, the new Order and the various
terms and conditions stipulated in the new Order cannot become
automatically enforceable with the WEGs commissioned before the date
of issuance of the Order in any manner. All the previous orders have very
specifically made this clause under the heading of “Applicability of the
Order” under Para 4 both in Order No. 3 dated 15.05.2006 and in Order
No.1 dated 20.03.2009. Such an arrangement is required and goes in
concurrence with the Regulation 6 of TNERC-Power procurement from
New and Renewable Sources of Energy Regulations, 2008 quoted supra.
For the sake of convenience of reference the said paragraph in Order
No.3 dated 15.05.2006 is reproduced below:
4.0 APPLICABILITY OF ORDER
This order shall come in to force from the date of its issue. This order shall
be applicable to all future and renewal of existing contracts/agreements for
the Non-Conventional Energy Sources (NCES) based Generating Plants
and Non-Conventional Energy Sources based Co-Generation Plants
located within the State of Tamilnadu. It should be noted that the existing
contracts and agreements between NCES based generators and the
distribution licensee signed prior to the date of issue of this order would
continue to remain in force. However, the NCES based generators and the
distribution licensees shall have the option to mutually re-negotiate the
existing agreements or contracts if any, in line with this order even before
the expiry of the existing agreements or contracts. Any renewal of the said
contracts/agreements, new contracts/agreements shall be in line with this
order.
3.14 Likewise in Para No.4 in Order No.1 of 2009 dated 20.03.2009 the
Commissioned has made as follows:
4. Applicability of this Order
Order No.3 dated 15.05.2006 of the Commission lays down a control
period of three years for that order and therefore, normally the next order
should have taken effect from 15.05.2009. The Commission in the
Common Order in M.P.Nos.9, 14 and 23 of 2008 dated 19.09.2008 has
ruled that the control period of three years specified in order No.3 dated
15.05.2006 is waived from the date of issue of that Order. The control
period of three years, thus, stands terminated on 19.09.2008. Therefore,
the Commission holds that all the wind energy generators commissioned
on or after 19.09.2008 shall become eligible for the benefits of the present
order, subject to the condition that the monetary benefits shall accrue from
the date of this order. The existing agreements between the wind energy
generators and the distribution licensee shall continue to be valid. The
parties to the agreement are at liberty at any time to renegotiate the
existing agreement mutually in accordance with this order. The agreement
between the wind generators and the distribution licensee in relation to all
machines commission on or after 19.09.2008 shall be in conformity with
this order.
3.15 The above two orders of the Commission perfectly fit with the Principles of
natural Justice coupled with the theory of promissory estoppels and
legitimate expectation. Further, such a provision is also in line with the
Regulation 6 of TNERC-Power procurement from New and Renewable
Sources of Energy Regulations, 2008. Each WEG has come in to being by
a large capital investment. Hence, what set of terms and conditions are
applicable at the time of making investment would continue to be in force
till the WEG promoter opts to continue with it as the investment decision
has happened only with reference to the knowledge, information, rights
and responsibilities made available at the time of making investment
decisions. The members of the Appellant having altered their status based
on certain terms and conditions prevailed at a point of time when they
invested on wind energy, cannot now be unilaterally forced to come for
new terms and conditions. Then it becomes an arbitrary exercise and the
impugned Order could only be construed to have the effect of unilateral
and arbitrary exercise of power. Further it is violative of the principles set
out under Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008.
3.16 Further, as per the Clause 11 of the existing Energy Wheeling Agreement
(EWA) by each of the members of the Appellant executed, it has been
made as follows:
“11. Terms and Conditions agreement period:
(10) The agreement shall be valid for a minimum period of 5 years.
(11) The parties to the agreement shall be given the option to exit for
violation of the agreement after serving a notice of three months on the
other party.
(12) The parties to the agreement are at liberty at any time to
renegotiate the existing agreement mutually in accordance with the
Commission’s order in force.”
3.17 From the Clause 11 (3) of the existing EWA, it could be seen that there is
a liberty extended to parties that either they can renegotiate the existing
agreement for going to the new agreement as per the new orders if any or
they can continue to remain as such in the existing agreement itself. The
option is therefore, vested with the party concerned and therefore, no
party could be compelled or forced to accept any new terms and
conditions for which no agreement was signed earlier. This option made
available to the WEGs is totally wiped out in the impugned Order. The
impugned Order unilaterally forces all the WEG owners irrespective of the
date of commissioning to come for the new arrangement whereby heavy
costs are involved with large civil consequences.
3.18 Due to the implementation of the working instructions of the 2nd
Respondent based on the impugned Order of the 1st Respondent, every
member of the Appellant is losing heavy money every month due to
certain new charges as leviable due to the fresh terms and conditions of
the new Order with effect from 01.08.2012 onwards. All the members of
the Appellant are totally unaware of the terms and conditions while they
made investments and altered their status to erect and commission the
WEGs for the purpose of captive consumption. All their investment plans,
RoE, etc., have been based only on the available terms and conditions as
enumerated in either Order No.3 dated 15.05.2006 or 1 dated 20.03.2009.
Hence, even though the Commission has made it clear in Para No.4 that
the terms and conditions are to be applied prospectively, it has
contradicted its own versions and accordingly, in Para No.9.2 it made it to
applicable to all WEGs irrespective of the date of commissioning.
Therefore, the 1st Respondent Commission has committed a serious error
and hence it needs to be corrected and rectified by this Hon'ble Tribunal.
3.19 Therefore, the Appellant humbly prays that the members of the Appellant
having made investments and altered their status based up on certain
terms and conditions stipulated by such orders which were in force during
those points of taking investment decisions, cannot now unilaterally and
arbitrarily be directed to come for a new set of terms and conditions by the
impugned Order which has a very strong impact on their financial
workings and thereby the entire operation becomes totally unviable. The
impugned Order imposes serious civil consequences and therefore, it
could never be retrospective for any reason. Further, the impugned Order
contradicts with each other as far as Para No.4 and Para No.9.2 are
concerned. Further, Para 9.2 of the Impugned Order is in total
contradiction of Regulation 6 of TNERC-Power procurement from New
and Renewable Sources of Energy Regulations, 2008. Hence, it needs to
be set aside on this very score alone.
3.20 Further, in having ordered that all WEGs irrespective of their date of
commissioning to come for the new Order which casts serious civil
consequences to pay more charges, the 1st Respondent has clearly
violated the Regulation 6 of TNERC-Power procurement from New and
Renewable Sources of Energy Regulations, 2008. Therefore, it is nothing
but arbitrary exercise of powers, against the approved cannons of law,
against the Principles of natural Justice and against the Principles of
promissory estoppels and legitimate expectation and therefore, it is
expropriatory under Article 14 of the Constitution of India and hence, the
Order needs to be struck down for this score also.
4. Balance of convenience, if any
The Appellant has made out a prima facie case in favour of the Appellant
and the balance of convenience is also in favour of the Appellant only.
Since the members of the Appellant are already paying the notified
charges as per the orders in force and also as per the Energy Wheeling
Agreement they have entered with the 2nd Respondent there is no loss of
revenue to the 2nd or the 3rd Respondent in any manner and as such, the
Interim Order prayed for may kindly be granted.
DECLARATION BY APPLICANT
The Applicant above named hereby solemnly declares that nothing material has
been concealed or suppressed and further declares that the enclosures and
typed set of material papers relied upon and filed herewith are true copies of the
originals/fair reproduction of the originals thereof.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER 2012.
COUNSEL FOR APPLICANT APPLICANT
VERIFICATION
I, Dr. K. Venkatachalam, S/o. Late Karuppaiah aged about 60 years representing
the Applicant – Tamil Nadu Spinning Mills Association as its Chief Adviser and
resident of Tamil Nadu do hereby verify that the contents of the paras 1 to 4 are
true to my personal knowledge/ derived from official record and are believed to
be true on legal advice and that I have not suppressed any material facts.
DATE : 13-09-2012
PLACE : DELHI
SIGNATURE OF THE APPLICANT
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
AT NEW DELHI
I.A. No. _____ OF 2012
In
APPEAL No. _____ OF 2012
BETWEEN
TAMIL NADU SPINNING MILLS ASSOCIATION
2, Karur Road, Near Beschi College,
Modern Nagar, Dindigul – 624 001, Tamilnadu.
Represented by Dr.K.Venkatachalam Chief Advisor,
…Appellant
AND
(1). TAMIL NADU ELECTRICITY
REGULATORY COMMISSION,
TIDCO Office Building,
19-A, Rukmani Lakshmipathy Salai,
Marshall Road,
CHENNAI – 600 008.
(2). TAMIL NADU GENERATION AND DISTRIBUTION
CORPORATION LTD,
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
(3). TAMIL NADU TRANSMISSION CORPORATION LTD
144, Anna Salai,
CHENNAI – 600 002.
represented by its Chairman and Managing Director,
…Respondents/Respondents.
AFFIDAVIT FILED BY THE APPLICANT
I, K. Venkatachalam, son of A. Karuppaiah, Hindu, aged about 60 years,
residing at M2/27, Sindhu Illam, 4th Cross, R.M. Colony, Dindigul-624 001, Tamil
Nadu do hereby solemnly affirm and sincerely state as follows : -
1. I am the Chief Adviser of the Applicant Association, viz., Tamil Nadu
Spinning Mills Association and am duly authorized by the said Applicant to swear
to this Affidavit on its behalf. I have been dealing with this matters relating to the
above mentioned case and I am conversant with the facts of the case.
2. I have read the accompanying Interlocutory Application seeking Interim
direction pending the Appeal filed against the Order dated 31.07.2012 in
T.R.No.6 of 2012 passed by the Tamil Nadu Electricity Regulatory Commission
and I say that the facts stated therein in paras 1 to 4 are based on the records of
the Applicant maintained in the ordinary course of its business and believed by
me to be true.
APPLICANT
VERIFICATION
I, the Deponent above named do hereby verify that the contents or my above
Affidavit are true to my knowledge, no part of it is false and nothing material has
been concealed therefrom.
VERIFIED AT DELHI ON THIS 13th DAY OF SEPTEMBER, 2012.
APPLICANT