RAKESH NATH, J. - (1.) THE appellant has filed IA No.12 of 2012 seeking directions of this Tribunal to the respondent no.1 to comply with the interim order dated 10.06.2011 passed by this Tribunal.
(2.) THE brief facts of the case are as under: - 2.1 The appellant is a generating company which has set up Allain Duhangan Hydro Electric Project of 192 MW capacity along with 220 kV Allain Duhangan - Nalagarh transmission line for evacuation of power in the state of Himachal Pradesh. M/s. Everest Power Pvt. Ltd., the respondent no.1 herein, is also a generating company engaged in development of Malana -II Hydro Electric Project of 100 MW capacity. The main appeal has been filed by the appellant against the order dated 01.06.2011 of the Central Electricity Regulatory Commission declaring 220 kV Allain Duhangan - Nalagarh transmission line of the appellant as inter -State transmission system and directing the appellant to provide connectivity to Malana -II Hydro Electric Project of the respondent no.1 on this transmission line. 2.2 IA 141 of 2011 filed by the appellant for grant of interim stay of the impugned order was disposed of by this Tribunal by its interim order dated 10.06.2011 giving the following directions : " i) The Appellant will allow connectivity in compliance with the applicable laws to Respondent no.1 on 220 KV Allain Duhangan - Nalagarh transmission line by loop in loop out of one of the circuits at 220/132 KV Chhuar sub -station of Respondent no.1. ii) In the interim period, the transmission charges will be worked out on the capital cost of the transmission line as per the audited accounts of the Appellant on the basis of norms of Central Commission's Tariff Regulations, 2009 and will be shared by the Respondent no.1 in proportion to the rated capacity of the unit commissioned, on pro -rata basis. iii) The first Respondent will share the transmission loss @ 4.75 % of the energy injected by Malana II Power Station at the tapping of 220 KV at Allain Duhangan - Nalagarh circuit at Chhuar Sub -Station of Respondent no.1. iv) The Northern Region Load Desptach Centre will schedule and dispatch the power generation and prepare UI accounts and energy accounts for both Allain Duhangan Hydro Power Station of the Appellant and Malana - II Power Station of Respondent No.1 and will control the switching operations at 220/132 KV at Chhuar sub -station of the Respondent no.1." 2.3 Consequent upon to the order of this Tribunal, the appellant provided connectivity to Malana -II Hydro Electric Project of the respondent no.1. The appellant and the respondent no. 1 also entered into an Interim Power Transmission Agreement ('IPTA') on 09.08.2011. 2.4 On 03.08.2011 and 12.08.2011 respectively, the 1st and the 2nd unit each of 50 MW capacity of Malana -II were synchronized and commenced injection of power through 220 KV Allain Duhangan - Nalagarh transmission line of the appellant. Respondent no.1 made payments to the appellant for the months of August and September, 2011 according to the Interim Power Transmission Agreement but refused to make payment for the subsequent months. the respondent no. 1 approached the appellant intimating that due to some unexpected problems in the project structure they were unable to complete commissioning process and the process of commissioning of the project had to be stopped w.e.f. 02.10.2011 to carry out inspection of water conductor system and undertake required repairs and rectifications which could take around 4 to 5 months. The respondent no.1 also requested the appellant to waive of the payment of monthly transmission charges from October 2011 till generation is restored from Malana -II, after completion of repairs. The appellant by its letter dated 09.12.2011, asked the respondent no.1 to make payment as according to them the transmission charges were payable even when the generating plant was closed for maintenance and repairs. 2.7 On 09.12.2011, the respondent no.1 again wrote to the appellant that as they were not generating and transmitting any power from the project, therefore, as per the terms and conditions of the IPTA they were not obligated to pay the transmission charges. 2.8 Aggrieved by non -payment of transmission charges by the respondent no.1, the appellant has filed IA No.12 of 2012 seeking the directions of the Tribunal to respondent no.1 to comply with the Page 7 of 29 IA No.12 of 2012 in Appeal No.81 of 2011 agreement dated 09.08.2011 entered into by the parties following Tribunal's order dated 10.06.2011.
(3.) LD . Counsel for the appellant submitted as under: - 3.1 The transmission charges are payable by the respondent no.1 for the capacity of the appellant's transmission line booked for its generating station irrespective of injection and sale of energy from the generating station. According to Central Commission's Tariff Regulations of 2009, the transmission charges are computed on the basis of fixed cost of the transmission system and its availability factor. The bills raised by the appellant on the respondent no.1 are according to the directions and the Tribunal in its interim order and the Central Commission's Tariff Regulations. 3.2 According to the IPTA entered into between the respondent and the appellant, the transmission charges are payable from the date of synchronization of the units. Even otherwise, as per CEA's monthly report the 1st and 2nd units at Malana -II were commissioned on 06.08.2011 and 14.08.2011 respectively. 3.3 The respondent no.1 was very much part of the process of finalization of the agreement and cannot now turn back and say that it was forced by the appellant to enter into the agreement. The respondent no.1 on one hand is placing reliance on the interim order and the agreement to have access to the transmission capacity of appellant's transmission system and on the other hand it is alleging that the agreement is not in compliance with the interim order. The respondent no.1 cannot be approbate and reprobate at the same time. Having obtained benefit out of the agreement, the respondent cannot be allowed to question its validity at this stage. In this connection, he relied on the following judgments. (i) Shyam Telelink Limited Vs. Union Of India: reported as (2010) 10 SCC 165 (ii) Karam Kapahi and Ors Vs. Lal Chand Public Charitable Trust: (2010) 4 SCC 753 (iii) R.N. Gosain Vs. Yashpal Dhir: (1992) 4 SCC 683 3.4 By not paying the transmission charges for having booked the capacity on the appellant's transmission system the respondent no.1 was seeking unjust enrichment. In this regard, reliance was placed upon the following judgments: (i) K.T. Venkatgiri Vs State of Karnataka reported as (2003)9 SCC 1 (ii) State of Maharashtra Vs Swanstone Multiplex Cinema Pvt Ltd. reported as (2009) 8 SCC 235 3.5 Assuming without admitting that the respondent no.1 was forced by the appellant to enter into the agreement, the respondent no.1 could have approached the Tribunal. On the contrary, the respondent no.1 proceeded in terms of the agreement to connect Malana -II to the appellant transmission system and injected energy into the system. Even after the shutdown of the power plant, the respondent no.1 continued to withdraw energy from the transmission system. The Ld. Counsel for the respondent no.1 has made the following submissions: - 4.1 In terms of interim order of the Tribunal, the transmission charges are payable for the units which are transmitted after the commissioning of the generation project of the respondent no.1. There has been no commissioning of the generating units and there has been no sale of generating unit by the respondent no.1 to a third party which requires the conveyance of the electricity generated from the generating station to Nalagarh by use of the transmission line. Accordingly, the purpose for which the transmission charges have been specified under the interim order dated 10.06.2011, and with specific reference to the commissioned generating stations, has not occurred and, therefore, no transmission charges are payable. 4.2 The synchronization of the units was for testing purpose and not for commercial operation. He relied on the definition of commercial operation given in the Government of India notification dated 30th March, 1992, the Standard Bidding Documents of Ministry of Power, Government of India and Central Electricity Regulatory Commission's Regulations. He emphasized that commissioning and the commercial operation are one and the same thing. During synchronization and testing, the electricity was not sold to any third party but respondent no.1 was entitled to Unscheduled Interchange (UI) charges for the delivered energy. 4.3 Malana - II is expected to be commissioned only in June, 2012 and, therefore, there will no usage of transmission line till June, 2012 and the respondent no.1 is not required to pay the transmission charges till then. ;