- (1.) The petitioner, Jhajjar Power Limited (JPL) has set up, owns and operates the Mahatma Gandhi Thermal Power Plant (MGTPP) with a capacity of 1320 MW (2x660 MW) in the State of Haryana has filed the present petition for adjudication of disputes with regard to the date of commercial operation and payment of capacity charges among other issues between the petitioner and the Uttar Haryana VijliVitran Nigam Limited and Dakshin Haryana VijliVitran Nigam Limited represented through the Haryana Power Purchase Centre (HPPC). Facts in brief
(2.) The facts leading to the filing of the petition are capitulated in brief as under: "(a) Haryana Power Generation Company Limited (HPGCL) which was vested with the right related to procurement and bulk supply of electricity by the Government of Haryana was authorised by Uttar Haryana VijliVitran Nigam Limited (UHVNL) and Dakshin Haryana VijliVitran Nigam Limited (DHVNL) to procure power on their behalf. HPGCL conducted the International Competitive Bidding (ICB) in accordance with the 'Guidelines for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees' (Bidding Guidelines) issued by the Government of India on 19.1.2005 under Sec. 63 of the Electricity Act, 2003 (the Act). (b) As per the Bidding Guidelines, Case 2 projects refer to "hydro power projects, load centre projects or other location specific projects with specific fuel allocation such as captive mines available, which the procurer intends to set up under tariff based bidding process." In accordance with the Guidelines, HPGCL incorporated Jhajjar Power Limited as a Special Purpose Vehicle for setting up MGTPP which would be transferred to the successful bidder on conclusion of the bidding process. (c) HPGCL conceived MGTPP under Case 2 to be located at Matenheil, District Jhajjar, Haryana with fuel linkage to be procured from Government of India, Ministry of Coal. On 25.5.2006, HPGCL issued the Request for Qualification (RfQ) for development of MGTPP at the identified location for a capacity within the range of 1000 -1200 MW. It was made clear in the RfQ that a bidder could quote more than 1200 MW if it was possible to accommodate the same in the identified project site. Para 2.3 of the RfP provided that MGTPP would have a minimum capacity of 1000 MW and maximum capacity of 1320 MW at the generation bus bar in accordance with the PPA. The RfP further provided that the procurers would contract 90% of the Available Project Capacity or Contracted Capacity from the date of commercial operation of MGTPP and the seller would have to sell the balance 10% of the Available Project Capacity outside the State of Haryana. The RfP also made it clear that MGTPP would fall within the Mega Power Policy as notified by the Ministry of Power, Government of India. Para 2.4.(iv) of the RfP clarified that the coal linkage for MGTPP had been secured with the likely coal mines and specification of coal indicated in Annexure 13 of the RfP, though the exact location of mine/subsidiary of Coal India Limited wherefrom coal would be supplied was yet to be notified. (d) China Light and Power Limited (CLP) was issued the RfQ on 19.2.2007 and after being shortlisted, was issued the RfP documents on 24.12.2007. CLP submitted its bid on 10.3.2008. On conclusion of the bidding process, CLP emerged as the successful bidder and Letter of Intent (LOI) was issued on 23.7.2008. Thereafter, CLP acquired 100% equity shares in Jhajjar Power Limited and entered into PPA dated 7.8.2008 with DHBVNL and UHBVNL (Haryana PPA) for supply of power from 90% net capacity of the power project. The petitioner, Jhajjar Power Ltd. negotiated sale of 10% of the net capacity to New Delhi Power Company Ltd. (presently known as Tata Power Delhi Distribution Ltd. or TPDDL) in order to meet the qualification requirement of a Mega Power Project. The sale was executed through an inter -State trader namely, Tata Power Trading Company Limited (TPTCL) through a Power Purchase Agreement dated 20.1.2009 (Tata PPA) for sale of 10% power at the same tariff as under Haryana PPA. TPTCL entered into a back to back Power Sale Agreement dated 20.1.2009 with TPDDL at the same tariff for sale of the entire contracted capacity. (e) Based on the PPAs dated 7.8.2008 and 20.1.2009 and confirmation of compliance by the Government of Haryana and Government of NCT of Delhi with the terms and conditions of the Mega Power Policy of Government of India, Ministry of Power vide its letter dated 13.5.2009 accorded Mega Power status to the 1320 MW MGTPP of Jhajjar Power Ltd. (f) Central Coalfield Ltd. (CCL) vide its letter dated 14.10.2008 issued the Letter of Assurance (LOA) in favour of Jhajjar Power Ltd. for supply of 5.21 million metric tonnes per annum of E grade coal. It was clarified in the LOA that the assurance was subject to review and assessment by CCL of the total coal requirement of the Jhajjar Power Ltd. as well as the incremental availability of coal from the mines of CCL and of the imported coal. (g) The petitioner raised with CCL/CIL certain critical issues in the Model FSA which had adverse impact on the availability of power from the plant and sought resolution of such issues before signing the FSA. The Standing Linkage Committee -Long Term in its meeting held on 8.4.2010 noted the petitioner's readiness to sign the FSA and directed CEA and CIL to jointly resolve the issue raised by the petitioner. (h) CEA in its letter dated 20.8.2010 advised the petitioner that due to limited availability of indigenous coal, FSAs between the Coal Companies and Power Project Developers would be signed once the unit was commissioned and its operation stabilised. CEA has further stated that all efforts are made by the CEA to ensure supply of coal to the power plant at the time of their commissioning and accordingly, MOUs would be signed between the coal companies and project developers for this purpose. CEA advised the petitioner to get in touch with the office of CEA prior to commissioning of the project so that CEA would advise CIL to issue necessary orders for commencement of supply of coal by the coal companies. (i) The petitioner taking note of the provisions in New Coal Distribution Policy of Ministry of Coal and Letter of Assurance regarding import of coal to meet the shortfall in supply by CIL and in due consideration of CEA's advice to thermal power generators and boiler manufacturers to design the boilers with a blend ratio of 30:70 imported/High GCV coal: indigenous coal, sought in principle approval of the Haryana Utilities vide its letter dated 17.5.2011 to import coal in the range of 20 -30% of the plant's annual coal requirements. The petitioner further sought advice of the Haryana Utilities on whether the petitioner would import coal directly from overseas coal suppliers or through CIL/CCL under the linkage/LOA or through an Independent Agency designated by the procurers. The petitioner through HPGCL requested HERC to opine on the mode of procurement of coal, in reply to which HERC vide letter dated 8.7.2011 clarified that since the tariff of Jhajjar Power Limited was discovered through competitive bidding, any issue that might arise between the parties would be dealt with in accordance with the provisions of the concluded PPA. The petitioner vide its letters dated 7.12.2011, 30.12.2011, 9.1.2012, 31.1.2012, 21.2.2012, 9.4.2012 and 18.5.2012 followed up with HPCC/Haryana Utilities/Government of Haryana for permission for import of coal and mode of procurement. HPCC vide its letter dated 20.7.2012 accorded approval for import of 1 million tonnes of coal during 2012 -13 out of which 0.4 million tonnes was to be procured from any of the bidders who would participate in the tender process of HPGCL and 0.6 million tonnes of coal was to be procured through ICB or CPSU route. The blending ratio was restricted to 15% of imported coal. After HPGCL selected the coal supplier on 18.10.2012, the petitioner placed orders for import of coal which was supplied with effect from 15.11.2012. (j) The petitioner vide its letters dated 21.6.2012, 22.6.2012, 25.6.2012 and 29.6.2012 sought permission from HPPC to procure coal on 'as is where is' basis. HPPC vide its letter dated 30.6.2012 granted in principle approval for procurement of additional coal on 'as is where is' basis from the pithead through the petitioner's own arrangement. However, the parties were in correspondence with regard to the transportation/handling charges and in a meeting held on 7.10.2012 between the representatives of JPL, HPPC and Haryana Utilities, HPPC opined that procuring coal on 'as is where is' basis would not be economically viable for the procurers and accordingly, the petitioner dropped the proposal to procure such coal. (k) As the Fuel Supply Agreement did not materialise before the Scheduled Commercial Operation Date (SCOD), the petitioner declared commercial operation of Unit 1 of MGTPP on 29.3.2012 by arranging coal through MOU route. The petitioner entered into a Fuel Supply Agreement with Central Coalfield Ltd., a subsidiary of Coal India Ltd., on 7.6.2012 for an Annual Contracted Capacity of 5.21 million tonnes of coal. The petitioner declared commercial operation of Unit 2 of MGTPP on 19.7.2012. (l) On account of shortfall in generation and supply of power by the petitioner to Haryana Utilities to the extent of contracted capacity, Haryana Utilities have disallowed capacity charges and also imposed penalties for not achieving the threshold limits as per the PPA, apart from not recognising 29.3.2012 as the date of commercial operation of Unit 1 of MGTPP. In the above factual background, disputes have arisen between the petitioner and Haryana Utilities which has led to the filing of the present petition." Disputes between the petitioner and HPCC/Haryana Utilities
(3.) The petitioner has enumerated the disputes between the petitioner and respondents in para 14 of the petition as under: "(a) Non -payment of petitioner's claims of capacity charges for availability which the petitioner would have achieved, had the Haryana Utilities granted timely approvals for procurement of alternate coal such as as -is -where -is coal, e -auction coal and imported coal in terms of PPA with Haryana Utilities; (b) Haryana Utilities' claim of penalty from the petitioner for failure to achieve threshold of 75% under the PPA; (c) Non -acceptance by the Haryana Utilities of the date of commercial operation of Unit 1 of MGTPP as 29.3.2012; (d) Non -payment of the capacity charge by Haryana Utilities which was payable to the petitioner in terms of Article 11 read with Schedules 7 and 11 of the PPA for availability declared by the petitioner and power scheduled by SLDC Haryana. (e) Non -Payment of transit losses claimed by the petitioner @1.5% as part of transportation charges. (f) Non -Payment of the costs incurred by the petitioner towards railway staff charges, charges towards bank guarantee given by the petitioner to the railway and the coal supplier with respect to the purchase and transportation of coal from the mines to the power station and charges to third party agents for coal linkage to supplement or to achieve coal requirements on account of shortfall in coal under the FSA read with LOA. (g) Refusal of Haryana Utilities to apply Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009 with respect to application of UI charges.";