(1.) THE petitioner Sasan Power Limited (SPL) has filed the present petition under Section 79(1)(f) read with Section 79(1)(h) and (k) of the Electricity Act, 2003 (the Act) and Regulation 6.5 of the Central Electricity Regulatory Commission (Indian Electricity Grid Code) Regulations, 2010(Grid Code) seeking the following directions:
"(a) Hold that change in schedule for allocation of URS quantum of power shall be applicable for Sasan UMPP in accordance with the provision of the PPA without requiring the procurers and third parties to obtain short -term open access;
(b) Direct the WRLDC/NRLDC, to allow and treat the scheduling of URS quantum of power among the procurers of Sasan UMPP or to third parties as reallocation of power on temporary basis and not as open access transaction."
(2.) THE petitioner owns, operates and maintains a Coal Fired Ultra Mega Power Project based on linked captive coal mines using super critical technology with an installed capacity of 4000 Mw ( ± 10%) at Sasan, District, Singrauli, Madhya Pradesh. The petitioner is fully owned by Reliance Power Limited which was selected as the successful bidder on the basis of the process of tariff based international competitive bidding under section 63 of the Act. The petitioner has entered into a Power Purchase Agreement (PPA) on 7.8.2007 with 14 procurers in 7 States who have been impleaded as Respondent Nos. 3 to 16 in the present petition. The grievances of the petitioner in the present petition are as under: - -
"(a) Sasan UMPP has been declaring its availability on daily basis and all the procurers have been scheduling power as per their allocations under the PPA. Despite being the most competitive thermal power project, the power plant is not being fully scheduled owing to the surrender of entire/part of the entitlement of the available capacity by some of the procurers due to several factors, including transmission constraints and low demand. This has resulted in Un -requisitioned Surplus Power (URS Power) which is not being utilised and is being lost.
(b) URS Power includes (i) the quantum of power which has not been dispatched by the power plant owing to the original procurer not dispatching the same; (ii) the quantum of power which has not been taken within two hours by procurers entitled to exercise their first right to receive the quantum not dispatched by the original procurer; and (iii) the said quantum of power not being able to be sold to third parties.
(c) Articles 4.4.2 and 4.4.3 of the PPA dated 7.8.2007 provide for a mechanism for utilization of a part of the available capacity which remains un -dispatched either by the original procurer or by the third parties and also provides for a mechanism by which the original procurer could recall the available capacity. As per the said provisions, if there is part of available capacity which has not been dispatched by the procurer ordinarily entitled to receive such part, the petitioner is required to first offer such available capacity at the same tariff to other procurers which are not ordinarily entitled to receive such part. If within two hours of such offering, any of the procurers have not availed either full or part of available capacity, the petitioner can sell the same to third parties.
(d) Despite the aforesaid provisions in the PPA, and despite the fact that WRLDC has been uploading on its website the availability of URS Power from Sasan UMPP on account of backing down/surrender of capacity by some of the procurers, WRLDC has refused to schedule the URS to the other procurers without obtaining short -term open access, thereby rendering redundant the provisions of Articles 4.4.2 and 4.4.3 of the PPA.
(e) The pre -condition to obtain short -term open access put forth by the WRLDC would make it impossible for putting into operation the provisions of the PPA. The Central Electricity Regulatory Commission (Open Access in inter -State Transmission) Regulations, 2008 (Open Access Regulations) provides 24 hours to the SLDC to accord its concurrence as well as subjects the concurrence to checking of technical and operational constraints. Under Open Access Regulations, the SLDC has 3 working days to convey its concurrence to an application seeking short -term open access and 7 working days when short -term open access has been applied for the first time by any person. Moreover, SLDC can also return the application seeking short -term open access on the ground of any deficiency or defect within 2 days. Moreover, under the Open Access Regulations, a period of 2 days is required if the petitioner in accordance with Clause 4.4.3 of the PPA has to supply power to the original beneficiary which recalls the same after having waived of the requirements initially whereas as per the said Article, the petitioner has to schedule this power within 2 hours if the original procurers recalls the same. Further, as per the Grid Code, the procurer can revise the schedule by giving advance notice of four time blocks of 15 minutes each. As the procurers of Sasan UMPP normally surrender power at the last moment and again surrender of power is generally for a limited period of 2 -3 hours, it is difficult to take short term open access and schedule the power in such a short duration resulting into un -utilised URS.
(f) As per the Open Access Regulations, revision in schedule can be requested by an advance notice of two days. Therefore, once URS is scheduled to other procurers through short term open access, revision is possible only with an advance notice of two days. Consequently, URS transactions which are scheduled on contingency basis cannot be rescheduled in case the original beneficiary recalls the power resulting into schedule exceeding the declared capacity on account of recall and rescheduling by the original beneficiary of a part or whole of the URS power, leading to a possible liability of the generating station to pay the UI charges. Therefore, keeping in view the peculiarities of URS power, the provisions of short term open access are not applicable to the utilisation of URS power.
(g) Till 5.9.2014, approximately 105 MUs of power have been lost from Sasan UMPP on account of the unutilized URS power. On 3.7.2014, one of the procurers, namely, Haryana Power Purchase Centre surrendered its full share of 277 MW from 5.30 hrs to 11.15 hrs. On the same day, SLDC, Madhya Pradesh requested WRLDC to schedule the URS power to MPPMCL. However, WRLDC in its return message dated 3.7.2014 refused to schedule URS from the generating station on the ground that the dispensation available to NTPC for scheduling URS power without the need to be treated as open access transaction in terms of the Commission's order dated 11.1.2010 in Petition No. 134/2009, would not be available to the petitioner as the tariff of Sasan UMPP has been discovered through tariff based competitive bidding. Subsequently, the petitioner vide letter dated 4.7.2014 requested WRLDC to schedule URS power to other procurers in accordance with the provisions of the PPA providing for change in schedule and without requiring open access as directed by the Commission in its order dated 11.1.2010 for the stations of NTPC. In response, WRLDC vide its letter dated 9.7.2014 did not accede to the request on the ground that as per the Commission's order dated 11.1.2010, the provision of scheduling URS power as per the Grid Code to the other procurers without short -term open access is applicable only in case of the generating stations of NTPC. By its letter dated 31.7.2014, MPPMCL also requested WRLDC to schedule URS power from Sasan UMPP.
(h) The Commission in the said order dated 11.1.2010 observed that scheduling of URS power through the provision of short term open access prevents the use of full quantum of the URS power and creates a schedule for non -existent power thereby upsetting the load generation balance to some extent and directed that all the generating stations, governed by the Tariff Regulations of the Commission, be allowed to change schedule for the URS quantum of power from one beneficiary(s) to another beneficiary(s) within six time blocks or as per the Grid Code as amended from time to time. It was further directed in the said order that schedule revisions would be treated as reallocation of power on temporary basis and would not be taken as open access transactions.
(i) WRLDC has mis -interpreted the directions of the Commission in order dated 11.1.2010 in Petition No. 134/2009 and has wrongly refused to schedule the URS power without obtaining short term access on the ground that Sasan UMPP is not governed by the Tariff Regulations of the Commission. The finding rendered by the Commission in the said order that "all generating stations.....be allowed to change schedule...." manifestly shows that not only is the said order binding upon the parties to the said proceedings, but is a judgment in rem and would have an impact on the larger section of the power sector and not in personam simpliciter. The said order dated 11.1.2010 involves inter alia an interpretation of the Open Access Regulations which apply to all generating companies irrespective of the fact as to whether their tariffs are determined under Section 62 or are adopted under Section 63 the Act. Therefore, the said order dated 11.1.2010 would be considered as a judgment in rem and it would be just and equitable to extend the same relief to the petitioner, especially when the facts are substantially similar.
(j) The petitioner's tariff has been discovered through a competitive bidding and adopted by this Commission under section 63 of the Act. All aspects of the generating station, including its commissioning, commercial operation, supply of power, URS capacity, etc. to the procurers are governed by the terms and conditions of the PPA. This Commission has jurisdiction on the said PPA having adopted the tariff of the petitioner. An amendment to the PPA can be carried out only upon approval of this Commission. Accordingly, this Commission has the full jurisdiction for regulation of URS power under section 79(1)(c) of the Act. It is a settled law that power to regulate is of wide import and the Commission's power to regulate the inter -State transmission of electricity under section 79(1)(c) is wide enough to confer power to regulate scheduling of URS power and to lay down a mechanism for its full utilisation. Therefore, the Commission ought to provide for a framework for utilisation of URS power from Sasan UMPP treating the schedule revision as reallocation of power on temporary basis and not as open access transactions and to provide for the utilisation of URS power from Sasan UMPP without the compulsion of the procurers of Sasan UMPP/third parties of obtaining short term open access.
(k) Refusal of WRLDC to schedule the URS power on the ground that the dispensation under the Commission's order dated 11.1.2010 is not available to Sasan UMPP is misplaced as revision in schedule of power i.e. rescheduling is permissible under Regulation 6.5 of the Grid Code and the said provisions do not restrict rescheduling of power of Sasan UMPP irrespective of the said plant's tariff being competitively determined under section 63 of the Act. In the event, the URS power which is scheduled on contingency basis cannot be rescheduled in case the original beneficiary recalls the power, grave injury and irreparable loss would be caused as unscheduled interchange charges may become payable by Sasan UMPP and URS power would remain bottled up. Hence these crucial concerns need to be addressed by the Commission by treating the revision of bilateral transactions not as open access transactions in order to facilitate utilisation of URS power of Sasan UMPP."
(3.) THE petitioner has also filed IA 44/2014 in which it has been prayed that pending the disposal of the petition, WRLDC be directed to schedule the URS power of the petitioner to other beneficiaries and third parties without obtaining short term open access.;