RAKESH NATH, J. - (1.) WHETHER an enforceable Power Purchase Agreement between the rooftop solar power generator and the distribution licensee is a pre -requisite for the Joint Electricity Regulatory Commission to determine the tariff at which the energy is to be purchased by the distribution licensee is the issue that has been raised in the present Appeal.
(2.) SAHELI Exports Pvt. Ltd, the Appellant herein, is engaged in the business of establishing, operating and maintaining solar based generating stations in the country and has proposed setting up of 1 MW rooftop photo voltaic (PV) solar power project in the Union Territory of Puducherry. The Joint Electricity Regulatory Commission (hereinafter referred to as "Joint Commission") is the 1st Respondent. The Electricity Department, Government of Puducherry, responsible for distribution and retail supply of electricity in the Union Territory of Puducherry is the 2nd Respondent. The third Respondent is the Renewable Energy Agency, the state nodal agency for development of renewable energy sources in the UT of Puducherry.
(3.) AGGRIEVED by the order of the Joint Commission dated 02.01.2012 by which it refused to determine the tariff of the Solar Power Project for sale to the distribution licensee unless an enforceable PPA is entered into between the Appellant and the Respondent no.2, the Appellant has filed this Appeal. The brief facts of the case are as under: - 4.1 Pursuant to the policy decision taken by the Government of India to promote solar based generating capacity in the country, the Ministry of New and Renewable Energy ("MNRE"), Government of India framed guidelines for the programme known as 'Rooftop PV and Small Solar Power Generation Programme', herein referred to as the 'Scheme', providing for selection of project proponents for development of solar power Page 4 of 35 projects to be connected to the distribution network at voltage level below 33 kV. 4.2 The Indian Renewal Energy Department Agency Ltd., hereinafter referred to as "IREDA", an agency of the Government of India was appointed as the National Programme Administrator for the implementation of the guidelines issued by the MNRE. In terms of the guidelines, after complying with pre -registration formalities, the project proponents were required to apply for registration. 4.3 The scheme, inter -alia provided for the applicants fulfilling four conditions, viz., issuance of tariff order from the concerned Electricity Regulatory Commission, agreement with the local distribution utility for purchase of power, pre - Page 5 of 35 registration certificate from State Competent Authority and Commitment Guarantee of requisite account, to be eligible for registration. 4.4 The projects registered under the scheme would be eligible for the generation based incentive and substantial portion of the tariff determined by the concerned Electricity Regulatory Commission would be paid to the distribution licensee by the Government of India and the remaining portion of the tariff would be borne by the distribution licensee and passed on to the consumers in the retail supply tariff. 4.5 The scheme has been made applicable by the Government of India for the projects to be commissioned till 31.03.2013. 4.6 In pursuance of the above scheme, the Respondent no.3 which is the competent agency for issuance of pre -registration certificate in respect of Puducherry, issued an invitation for Expression of Interest (EOI) for pre -registration for setting up of 100 kW to 2 MW small solar power projects. The Appellant, accordingly, submitted its application for pre -registration on 07.07.2010 for setting up a 1 MW solar power project at Devanpuram village, Puducherry. The Respondent no.3 on being satisfied about the eligibility of the Appellant, issued a pre -registration certificate to the Appellant on 14.07.2010. 4.7 The Appellant also entered into a Memorandum of Understanding ("MOU") dated 21.07.2010 with the Respondent no.2. Subsequently, the Appellant submitted an application for registration with the IREDA. However, according to the Scheme, determination of tariff by the concerned Commission for a duration of 25 years is a pre - requisite for registration. The Joint Commission has so far not determined any generic tariff for procurement of power by the distribution licensee (R -2) from Solar Power Projects. 4.8 Aggrieved by the guidelines of the Government of India insisting upon the tariff determination as a pre -requisite for registration, the Appellant challenged the said provision of the scheme by way of Writ Petition being WP no.16983 of 2010 before the Madras High Court. The High Court Page 8 of 35 injuncted the Respondents in the Writ Petition from rejecting the Appellant's application. 4.9 Another Writ Petition being no. WP 19943 of 2010 was filed by the Appellant challenging the stipulation in the scheme regarding execution of PPA for being entitled for further participation in the selection process. By an interim order dated 31.08.2010, the Respondents in the Writ Petition were injuncted by the High Court from rejecting the application of the Appellant on the ground of non -execution of the PPA. 4.10 The Appellant also filed Writ Petition no.16984 of 2010 seeking directions of Madras High Court on the determination of tariff by the Joint Commission. The High Court by its order dated Page 9 of 35 12.04.2011 directed the Appellant to file a tariff petition before the Joint Commission for purchase of energy from the solar power project by the Respondent no.2. 4.11 In the meantime, the Respondent no.2 filed a petition before the Joint Commission for approval of the PPA to be signed with the Appellant for purchase of electricity under the Scheme. By order dated 19.10.2010, the Joint Commission rejected the said petition, inter - alia, on the ground that under the scheme the tariff determination was a pre -requisite and there was no tariff determined by the Joint Commission. 4.12 In pursuance of the order dated 12.04.2011, passed by the High Court, the Appellant filed a petition before the Joint Commission for determination of tariff for its 1 MW rooftop solar PV project. The Joint Commission vide order dated 02.01.2012, dismissed the petition of the Appellant on the ground that the Appellant had not executed a binding PPA with the distribution licensee (R -2). 4.13 Aggrieved by the impugned order dated 02.01.2012 of the Joint Commission, the Appellant has filed this Appeal. ;