- (1.) THE appellants in the MAT and the appellants in the COT all are aggrieved by a decision of a single Judge dated August 14,2012 disposing of a WP No.12995(W) of 2011 filed by the MAT appellants under Article 226 of the Constitution of India.
(2.) IN exercise of power conferred by s.86(1)(e) read with sub -s.(1) and subs. 2(zp) of s.181 of the Electricity Act,2003 the West Bengal Electricity Regulatory Commission (in short WBERC) made the West Bengal Electricity Regulatory Commission(Cogeneration and generation of electricity from Renewable Sources of energy) Regulations, 2006. The regulations were published in the Kolkata Gazette on May 4,2006. They came into force on that same date. Section 86 of the Electricity Act,2003 has specified the functions of a State Commission such as the WBERC under the Act, and cl.(e) of sub -s.(1) of the section provides as follows: "(e) Promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licensee;"
(3.) THE 2006 regulations were made by the WBERC in the discharge of its functions specified in s.86(1)(e) of the Act. Regulation 4 of the regulations deals with determination of tariff of electricity from cogeneration and renewable sources. Relevant part of reg.4.1 of the regulations is quoted below: " 4.1 Tariff for purchase of electricity from cogeneration and renewable sources shall be agreed mutually by the licensees and the suppliers at a level not above the price cap indicated by the Commission in these regulations. Price cap for similar type of renewable sources of energy shall be the same " Regulation 5 of the regulations deals with price capping for energy from cogeneration and renewable sources and in reg.5.1 it was provided that the price at which the renewable energy from biomass source could be sold to the licensee was capped at '3.35 per KWh and that it should remain fixed for three years from the date of commissioning. In reg.4.3 it was provided that in case the parties referred to in reg.4.1 were unable to agree mutually, the matter should be referred to the WBERC by filing a petition by either or both the parties for settlement. West Bengal State Electricity Board (in short WBSEB) was a licensee under the regulations. West Bengal Renewable Energy Development Agency allotted a biomass based power plant to the first appellant, Kamarhatty Power Limited (in short KPL) for development. KPL intended to sale the exportable power generated at the plant to WBSEB that agreed to purchase the power. Hence KPL and WBSEB entered into a Power Purchase Agreement (in short PPA) on November 15,2006. Clause 8 of the PPA deals with tariff and it is quoted below: "8. TARRIFF 8.1 The tariff applicable for the energy to be supplied by the DEVELOPER at delivery point shall be 335 paise/unit being the upper price cap set by WBERC. However, the same will be finalised based on actual expenditure incurred for completion of the Project along with cost of connectivity through suitable transmission line up to delivery point and other admissible charges as per Electricity Act,2003 and Regulations framed there under subject to upper price cap set by WBERC from time to time. This rate shall remain valid for the entire period covered under this power purchase Agreement." Clause 11 of the PPA provided as follows: - "11.0.REBATE FOR TIMELY PAYMENT AND LATE PAYMENT: 11.1.The DEVELOPER shall allow a Rebate @1% on the amount of the bill to the Distributing Licensee in case the payment is made within due date. 11.2.Delayed payment surcharge @ 1% per month or pro -rated for part thereof on the total amount of the bill shall be paid by the Distributing licensee to the Developer from the due date of the bill in the event non -payment of such bill within due date." Clause 12 of the PPA deals with arbitration and it provided that all differences or disputes between the parties arising out of or in connection with the PPA should be resolved through arbitration. Clause 15 of the PPA deals with effective date and duration of the PPA. Clause 15 of the PPA is quoted below: "15.EFFECTIVE DATE AND DURATION OF AGREEMENT: This Agreement shall come into force from the date of commercial operation of the power plant and shall remain operative for 10 years provided that this Agreement may be mutually extended, renewed or replaced by another Agreement on such terms and for such further period of time as the parties may agree to. However, the provisions of this Agreement shall continue to operate till this Agreement is formally renewed, extended or replaced, in case Distributing Licensee continue to get power from the plant even after expiry of this Agreement without further renewal or formal extension thereof.";