Decided on April 16,2015

Indian Wind Power Association Appellant
Gujarat Electricity Regulatory Commission And Ors. Respondents


Rakesh Nath, Member (T) - (1.) APPEAL No. 258 of 2013 has been filed by Indian Wind Power Association challenging the order dated 8.8.2013 passed by the Gujarat Electricity Regulatory Commission ("State Commission") in the petitions filed by the Respondent distribution licensee whereby the State Commission has waived the shortfall in meeting the Renewable Purchase Obligation ("RPO") by the distribution licensees for FY 2012 -13. Appeal No. 21 of 2014 has filed by Indian Wind Energy Association & others challenging the same impugned order on the same grounds.
(2.) THE Appellants are associations representing the interest of various stakeholders in wind energy sector. The Respondent No. 1 is the State Commission. The other Respondents are the Gujarat Energy Development Agency, GUVNL and the distribution licensees/deemed distribution licensees in the State of Gujarat. The brief facts of the case are as under: - - "(a) The State Commission notified the Renewable Energy Regulations, 2010 ("RE Regulations") specifying the minimum quantum of purchase from renewable energy ("RE") sources to be fulfilled by the obligated entities in FYs 2010 -11 to 2012 -13. (b) The State Commission by order dated 17.8.2012 permitted the distribution licensees to carry forward their RPO of FY 2011 -12 to FY 2012 -13. An appeal was filed against this order dated 17.8.2012 before this Tribunal by the Wind Energy Project developers. The Tribunal by Judgment dated 25.4.2014 partly allowed the appeal and gave some directions to the State Commission to be followed in future. (c) In the meantime, GUVNL which is responsible for procurement of power for the four State distribution licensees, filed a petition before the State Commission under Regulation 4.2 of the RE Regulations, seeking waiver of the shortfall in meeting the RPO by its distribution licensees in FY 2012 -13. Similar petition was filed by Torrent Power Ltd., Ahmedabad and Surat, the distribution licensee, seeking revision of RPO in view of supply constraints and other factors beyond the control of the licensee. (d) No public notice was issued in the proceedings. However, Indian Wind Energy Association (Appellant No. 1 in Appeal No. 21 of 2014) and Indian Wind Power Association (Appellant in Appeal No. 258 of 2013) upon becoming aware of the aforesaid proceedings participated in the proceedings and furnished their suggestions and objections. (e) The State Commission passed the impugned order dated 8.8.2013 revising/exempting the RPO of the obligated entities of the State for FY 2012 -13 by exercising its powers under Regulation 4.2 and 12.1 of the RE Regulations. (f) Aggrieved by the impugned order dated 8.8.2013 revising/exempting the RPO of the distribution licensees, the Appellants have filed these Appeals."
(3.) THE Appellants have made the following submissions: "(a) The State Commission erred in holding that REC mechanism was evolved only to enable the States not having renewable energy potential to fulfill their RPO through the purchase of RECs generated in the resource rich States. (b) The State Commission wrongly waived the shortfall in RPO and revised the same at actual contrary to its own Regulations and the judgment of this Tribunal dated 25.4.2014. (c) The State Commission only has the power to carry forward the RPO in case of genuine difficulty being either non -availability of power from renewable energy source or non -availability of RECs and in the absence of both these difficulties, there was no reason for the State Commission to waive the shortfall. (d) The State Commission is not empowered to revise the RPO in terms of Regulation 4.2 as this Regulation only deals with revision in the percentage targets for a year at the beginning of the year and not at the end of the year as otherwise there will be inconsistency between Regulation 4.2 and Regulation 9.1 and the 5th proviso thereof dealing with default on the part of the obligated entities. Even otherwise, Regulation 4.2 can be invoked only in case of supply constraints or other factors beyond the control of the licensee. In the present case, as RECs were available, the RPO compliance was not beyond the control of the obligated entities. Revision of RPO after the expiry of the year amounts to waiver of the default on the part of the distribution licensees. (e) It is not correct that the Wind Energy Generators are selling power under captive and open access mode and are having windfall gain from such transactions. Significant capacity has been added under the preferential tariff mode in the State. (f) The State Commission has ignored the fact that GUVNL was not willing to enter into PPAs at the revised preferential tariff during the pendency of the review petitions against the said order dated 8.8.2012 and was insisting on signing PPAs at preferential tariff of the previous control period i.e. as per order No. 1 of 2010 dated 30.1.2010 which was not existing at that point of time and was not a valid tariff. (g) The State Commission has erroneously adjusted the excess purchase of solar energy by the distribution licensees to fulfill the non -solar RPO. This is contrary to Regulation 4.1 which only provides for adjustment of excess wind or other energy in the event minimum quantum of solar or other renewable energy is not available in a particular year and not vice versa. (h) Exercise of power to remove difficulty by the State Commission under Regulation 12.1 is wrong as the Regulation 12.1 does not vest judicial powers. This power can be exercised only if there is problem in implementation of a Regulation.";

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