M.KARPAGA VINAYAGAM, J. - (1.) VIDHARBHA Industries Power Limited is the Appellant herein.
(2.) AGGRIEVED by the impugned order dated 31.5.2011, passed by the Maharashtra Electricity Regulatory Commission disallowing the increase in quantum of power from 134 MW to 404 MW but allowing the reduction of tariff from Rs.4.80/kWh to Rs.4.24/kWh, the Appellant being the successful bidder, has filed this Appeal. The facts are as follows: (a) The Appellant Vidharbha Industries Power Limited, is engaged in the business of generating power. The Reliance Infrastructure Limited is the Second Respondent. It is a generating Company as well as the Distribution Company. (b) After completion of the competitive bidding process, the Reliance Infrastructure Limited (R -2) entered into a Power Purchase Agreement dated 16.6.2010 with Vidharbha Industries Power Limited, the Appellant, being a successful bidder for a contract capacity of 134 MW at the tariff of Rs.4.80/kWh. (c) Thereupon, the Reliance Infrastructure Limited (R -2) asked the Appellant to increase the contract capacity from 134 MW to 404 MW and simultaneously to reduce the levelized tariff. Accordingly, the Appellant agreed to increase the quantum of power from 134 to 404 MW and to reduce the levelised tariff from Rs.4.80/kWh to Rs.4.24/kWh. On this basis, an Addendum Agreement to the Power Purchase Agreement was executed on 21.1.2011 for the increased supply of 404 MW of power at the reduced rate of Rs.4.24/kWh. (d) On the strength of these Agreements, the Reliance Infrastructure Limited (R -2) filed a Petition before the State Commission u/s 63 of the Electricity Act, 2003 for adoption of tariff for contract capacity of 404 MW at the tariff of Rs.4.24/kWh as per the PPA dated 16.6.2010 and the Addendum dated 21.1.2011 entered into between the Reliance Company and the Appellant Company. (e) After hearing the parties, the State Commission passed the impugned order on 31.5.2011 approving only a quantum of power of 134 MW as per the PPA executed on 16.6.2010 and disallowing the increase in quantum as fixed in the Addendum to PPA dated 21.1.2011 but reducing the rate from Rs. 4.80/kWh to Rs.4.24/kWh. (f) Aggrieved by this, the Vidharbha Industries Power Limited has presented this Appeal.
(3.) ACCORDING to the Appellant, the State Commission has considered the Addendum partly and not in toto only to the extent that it approved to the rate of 4.24/KWh but not considered the revised quantum as agreed between the parties i.e. 404 MW as finalized in the Addendum. The main prayer in this Appeal is seeking to set aside the impugned order and to approve the Power Purchase Agreement dated 16.6.2010 along with the addendum dated 21.1.2011 for supply of 404 MW power at the levelised tariff of Rs.4.24/kWh. Stoutly opposing this prayer of the Appellant, it is strenuously contended by the Wardha Power Company Limited (R -3) that the prayer made by the Reliance Company (R -2) before the Commission as well as the prayer of the Appellant made before this Tribunal is not bonafide since the original PPA was entered into between the Reliance Infrastructure Limited and Vidharbha Industries Power Limited on 16.6.2010 and during the same period, the Reliance Infrastructure Limited has signed other PPAs with other two bidders namely the Wardha Power Co Ltd (R -3) and AMNEPL and when the Reliance Infrastructure Limited Company filed the petition u/s 63 of the Act in respect of PPA as well as the Addendum executed with Vidharbha Industries Company before the State Commission, the Reliance Company had concealed about the PPA that was executed with the other two bidders and as such, the State Commission has correctly concluded that the addendum dated 21.1.2011 for the supply of additional quantum of 274 MW power is an afterthought and that therefore the Appellant cannot claim the quantum of supply as finalized in the Addendum Agreement dated 21.1.2011.;