RAKESH NATH - (1.)has been filed by M/s Indowind Energy Ltd. against the order dated 03.03.2011 in petition no.47 of 2009 passed by the Karnataka Electricity Regulatory Commission ("State Commission") in terms of its earlier order dated 06.01.2011 passed in the similar matter of M/s RPG Cables Limited Vs KPTCL and others. Appeal no. 100 of 2011 has been filed by M/s RPG Cables Limited against the State Commission's order dated 06.01.2011.
(2.)THE appellants are wind energy generators availing wheeling and banking facilities from the distribution licensees for supplying electrical energy to the consumers in the licensed area of the distribution licensees. The first respondent is the State Commission. The second respondent is KPTCL, the State transmission licensee. The third respondent is the State Load Dispatch Centre. The 4th to 6th respondents are the distribution licensees in the State of Karnataka.
(3.)THE brief facts of the cases are described below: 3.1 An agreement was entered into between the appellant and the State Government on 28.03.1998 under which the State Government permitted the appellant to set up a 5 MW wind energy project. According to the agreement, the appellant had to pay wheeling and banking charges, in kind, @ 2% of energy generated at the wind energy project for which a separate agreement had to be signed between the appellant and the erstwhile Karnataka Electricity Board. 3.2 Accordingly, an agreement dated 25.04.1998 was signed between the State Electricity Board and the appellant under which the Electricity Board agreed for banking and wheeling of the energy generated by the appellant to the industrial consumers after the appellant finalized the energy selling agreement. 3.3 On 02.09.2000 KPTCL, the respondent no.2 herein enhanced the wheeling charges from 2% to 20%. The appellant aggrieved by the increase in wheeling charges filed a writ petition with the High Court of Karnataka. This writ petition was disposed of by the High Court by an order dated 01.09.2006 by which the appellant and the respondent no.2 were given an option to forward their proposal -cum -agreement for approval of the State Commission. 3.4 In the meantime, the State Commission by its order dated 09.06.2005 determined the transmission charges, wheeling charges and cross subsidy charges under open access at 66 KV and above. Further, the State Commission by its order dated 20.04.2006 determined the cross subsidy charges at 66 KV and above and at 33 KV level. 3.5 On 25.04.2007, the State Commission refixed the transmission charges, wheeling charges and cross subsidy surcharges for 33 KV and 11 KV levels and retained the charge for 66 KV level and above. 3.6 The appellant approached the State Commission praying for certain relief in petition no.13 of 2008. The State Commission vide its order dated 26.03.2009 disposed of the petition with the direction to the appellant and the respondents to discuss and arrive at an agreement and approach the State Commission for further orders within a period of six months. 3.7 However, no agreement could be reached between the appellant and the respondent. In the meantime, the respondent - distribution licensee started collecting the cross subsidy surcharge in terms of the various orders of the State Commission relating to charges applicable to open access consumers. 3.8 Thereafter, the respondents stopped wheeling and banking facility to the appellant w.e.f. 01.10.2009. Consequently, the appellant on 03.12.2009 filed a petition with the State Commission numbered as OP 47 of 2009. 3.9 In another similar case filed before the State Commission in OP no.50 of 2009 by M/s RPG Cables, the appellant in appeal no.100 of 2011 herein, the State Commission by its order dated 06.01.2011 disallowed the claims of refund of cross subsidy charges collected by the respondent distribution licensees and charges for excess energy drawn at twice the rate at HT(2)(a) tariff. 3.10 Following the order dated 06.01.2011 passed in OP no.50 of 2009, the State Commission by order dated 03.03.2011 disposed of the petition filed by the appellant in OP no.47 of 2009, observing that the facts of both the cases were similar. 3.11 On 26.02.1997 an agreement was executed between the appellant and the Government of Karnataka permitting the appellant to set up a wind energy project. 3.12 On 15.05.1997 an agreement for wheeling and banking was signed by the appellant with the erstwhile Karnataka Electricity Board. 3.13 The first respondent vide its communication dated 02.09.2000 increased the wheeling charges from 2% to 20%. Aggrieved by this increase, the appellant and other similarly placed project developers filed a writ petition no.6697 of 2002 with the High Court of Karnataka. The High Court disposed of the writ petition by its order dated 16.10.2006. 3.14 Thereafter, the appellant approached the State Commission in OP 06 of 2008 praying for certain reliefs. The State Commission disposed of the petition in OP 06 of 2008 giving directions to the appellant and the respondents to discuss and arrive at a wheeling and banking agreement and approach the State Commission for further orders within a period of six months. 3.15 On 01.10.2009, the respondent - distribution licensees stopped the wheeling and banking facility to the appellant. 3.16 The appellant approached the State Commission by way of petition in OP no.50 of 2009 with request to issue directions to the respondent distribution licensees to resume wheeling and banking arrangement and to refund the cross subsidy surcharge recovered by them, etc. Consequently, the State Commission passed the impugned order dated 06.01.2011 disallowing the claims of the appellant. Aggrieved by impugned order dated 06.01.2011, the appellant has filed this appeal. 3.17 As the issues and the order of the State Commission in both the appeals are the same, a common judgment is being rendered.
The appellants have submitted the following: - 4.1 The wheeling and banking transaction in the present case pertains to the period when the Electricity (Supply) Act, 1948 was in vogue. Hence, without permission under section 43 -A of the Supply Act, it was not permissible for the appellant to supply electricity to the consumers. 4.2 The permission granted by the State government under section 43 -A of the 1948 Act continued even after the Karnataka Electricity Reforms Act, 1999 was enacted. 4.3 On 08.06.2005 the Ministry of Power, Government of India issued Electricity (Removal of Difficulties) (Second) order 2005 under section 42(2) of the Electricity Act, 2003 according to which the corss subsidy surcharge is not applicable to the wheeling transactions of the appellant. 4.4 The State Commission in the impugned order has also held that the open access charges could be collected from open access customer, which includes a generator. Therefore, once it is settled that a generator is an open access customer, then if such surcharge has been collected illegally then it should be refunded. 4.5 The collection of electricity charges at two times the HT 2 (a) tariff from the appellant is also illegal. For the parties who had signed the new agreements in the new formats, the respondents were charging tariff at one and half times HT 2 (a) rates. 4.6 The State Commission has not considered the relief sought by the appellant to designate the second respondent as the single window nodal agency due to which the appellant is facing difficulties. 4.7 The appellant is liable for the refund of the excess wheeling charges in terms of the High Court order but the State Commission has decided not to pass any order in this regard.

;