V.J.TALWAR J. - (1.) KONARK Power Project Limited, a Biomass based Generating Company is the Appellant here in.
(2.) THE Bangalore Electric Supply Company Limited, a Distribution Licensee in the State of Karnataka is the first Respondent and Karnataka Electricity Regulatory Commission (the State Commission) is the second Respondent.
(3.) AGGRIEVED by the Order dated 16.9.2010 passed by the State Commission dismissing the Appellant's petition for revision of tariff, the Appellant, Konark Power Project Limited has filed this Appeal. The brief facts of the case are as follows: I. The Appellant Konark Power Project Ltd. (Generating Company) has established a 6 MW biomass based power generating plant at Ballapura village of Tumkur District in the State of Karnataka. On 4.4.2002 it entered into a Power Purchase Agreement (PPA) with Karnataka Power Transmission Corporation Limited (KPTCL) with tariff fixed as per prevalent MNES Guidelines. II. The PPA dated 4.4.2002 was terminated by KPTCL in 2003 unilaterally. KPTCL then asked the all the Biomass based Generating Companies in the state of Karnataka to enter into fresh PPAs at reduced tariff. III. In the mean time all PPAs entered into between the Generation Companies and KPTCL, a State Transmission Utility, were assigned to respective Distribution Licensees. IV. Since the project of the Appellant was already commissioned on 5.5.2005 and the Appellant had made huge investments, it was left with no choice but to enter into revised PPA with lower tariff. Thus PPA dated 4.4.2002 was revised with lower tariff and a supplemental PPA was entered into on 27.2.2006 for enhanced Capacity of 7.5 MW. V. Due to unforeseen increase in the price of Biomass fuel, the Appellant was not in a position to produce power and supply to the Licensee (R -1) with the lower tariff fixed. The Appellant, therefore, decided to stop the power generation by declaring lay off to employees and by suspension of all contracts and agreements. The generating plant of the Appellant remained closed from July 2009 to March 2010 VI. Government of Karnataka vide GO No. EN 65 EEB dated. 6.4.2010 issued directions under Section 11 of 2003 Act to all the Biomass based generators in the state to supply Electricity to the grid at a 'Realistic Tariff' of Rs 5 per unit. Accordingly, the Appellant restarted generation and fed power in to the Grid during the period between April 2010 and June 2010 i.e. during imposition of State Government's Order under Section 11 of the 2003 Act. The generating plant was again shut down in July 2010. VII. In the mean time, the Appellant filed a petition before the State Commission seeking amendment to PPA dated 4.4.2002 and Supplemental PPA dated 27.2.2006 and prayed for fixing tariff for electricity at generated by its plant Rs 5.60 per unit as the cost of Biomass fuel had increased enormously and it had become practically impossible for the Biomass Power Plants to generate power with the existing tariff. VIII. The State Commission vide its Impugned Order dated 16.9.2010 dismissed the petition on the ground that adequate material had not been placed before it by the Appellant to justify its claim for revision of tariff. IX. Aggrieved by the said order, the Appellant has filed this Appeal No. 35 of 2011 with the prayer to set aside the impugned Order dated 16.9.2010 and to suitably amend the PPA dated 4.4.2002 read along with the Supplemental PPA dated 27.2.2006 by fixing tariff at Rs 5.60 per unit. X. During the pendency of this Appeal the Appellant filed an Interlocutory Application bearing no. 82 of 2011 on 8.4.2011with a following alternative prayers. i. To grant open access to sell power to third party during the pendency of the Appeal OR ii. To direct the Respondent Distribution licensee to purchase power at least at a rate of Rs 4.27 being paid to other power companies OR iii. To direct the Respondent to permit the Appellant to Claim Renewable Energy Certificates (REC) component at existing tariff. XI. The said IA was listed and heard together along with the main Appeal and the same is being disposed off. ;