Surendra Kumar, J. - (1.) THE instant Appeal under Section 111 of the Electricity Act, 2003, has been preferred by Rajasthan Rajya Vidyut Prasaran Nigam Ltd. (in short, the 'Appellant/Petitioner'), against the Order, dated 29.5.2014, passed by the Rajasthan Electricity Regulatory Commission, Jaipur (in short, the 'State Commission)/Respondent No. 2 herein, in Petition No. RERC -253 of 2011 in the matter of M/s. Rajasthan Rajya Vidyut Prasaran Nigam Ltd. vs. M/s. Shree Cement Ltd., whereby the petition filed by the petitioner/State Transmission Utility, under section 86(l)(f) read with section 61 of the Electricity Act, 2003, praying for determination of losses in the temporary arrangement made as per Agreement, dated 29.7.2010, was dismissed.
(2.) THE Appellant/petitioner is the State Transmission Utility. The Respondent No. 1 is the captive generating plant. The Respondent No. 2 is the State Electricity Regulatory Commission which is empowered to discharge the functions as provided under the provision of the Electricity Act, 2003. The relevant facts giving rise to the instant Appeal are as under: (a) that the Respondent No. 1 has its Captive Generating Plant of 2x50 MW Power plant at Ras at Beawar and Ras in the State of Rajasthan and accordingly, it applied for connectivity to the State Transmission Utility, i.e. the Appellant herein, on 220 KV Beawar - Merta Line for evacuation of power from the said Captive Power Plants. (b) that the Appellant insisted on the installation of another Switching Station on the LILO near about the Switchyard of Respondent No. 1 for the purpose of giving connectivity to Respondent No. 1. (c) that the Respondent No. 1 was in urgent need for getting the connectivity through LILO as its power was getting stranded in the absence of the requisite evacuation facilities to the Grid, therefore, the Respondent No. 1 had no option but had to execute the agreement, dated 29.7.2010, with the Appellant for providing connectivity to the transmission network. (d) that the Respondent No. 1 again and again raised the issue that no additional Switching Station was necessary and it also placed before the Appellant the expert opinion of CEA on the issue. Despite the same, the Appellant continued to insist on the Respondent No. 1 agreeing to the construction of the additional Switching Station and imposition of notional loss of 0.4% as a condition for grant of connectivity. (e) that aggrieved by the imposition of notional loss of 0.4%, the Respondent No. 1 filed a petition No. 241 of 2010 before the State Commission under section 86(1)(f) and section 61 of the Electricity Act, 2003 stating therein that the Appellant permitted temporary connectivity subject to the condition that metering will be done at the generating station of the Respondent No. 1 and the Respondent No. 1 shall have to bear notional loss of 0.4%. (f) that the State Commission vide its order, dated 8.4.2011, passed in petition no. 241 of 2010 inter -alia, held that the imposition of Notional loss was not valid as the imposition of losses was within the jurisdiction of the State Commission and the STU on its own cannot impose any notional loss. The State Commission, had further, directed the Appellant/STU to file a petition within 30 days for determination of losses in the temporary arrangement mentioned therein, further making observation that losses as per agreement be continued on a provisional basis subject to adjustment as per decision of the State Commission in the said petition on levy of losses and its quantum. (g) that the Respondent No. 1 also approached the Rajasthan State Commission vide a separate Petition No. 251 of 2011 challenging the condition of construction of Switching Station on 19.4.2011 to declare such condition as unwarranted, unreasonable and contrary to law. (h) that the State Commission appointed Shri K.L. Vyas (former Technical member of the State Commission) as amicus curie who submitted his report on 9.3.2012 stating that no switching station was required and that as the meter was to be placed at outgoing feeder of Respondent No. 1 under CEA metering Regulations, no notional loss should be imposed and losses should be determined on a pooled basis for the whole system. (i) that the State Commission, thereafter, vide its order, dated 28.12.2012, passed in Petition No. 251 of 2011 held that the condition of constructing of a 'switching station' at Respondent No. 1's cost for providing LILO for inter -connection to their captive power plant was unreasonable and contrary to the provisions of law and directed the Appellant not to insist on this for providing connectivity concluding that the condition of construction of a switchyard at the cost of the Respondent No. 1 is contrary to provision of law and on account of the dominant position of the Appellant, the agreement arrived at is unsustainable as far as the said condition is concerned. (j) that the Appellant filed a review petition being RERC -384 of 2013 before the State Commission against the said order, dated 28.12.2012. The Rajasthan State Commission after considering the above, dismissed the said review petition vide its order, dated 14.8.2013, and reiterated that the switching station as insisted upon by the Appellant was not necessary and uncalled for. (k) that the Appellant, thereafter, approached this Appellate Tribunal, by filing an Appeal numbered DFR No. 2309 of 2013 after a delay of 293 days. The said Appeal was dismissed by this Appellate Tribunal on 10.1.2014 after duly considering the application of condonation of delay filed by the Appellant. (l) that the Appellant herein challenged the said order, dated 10.1.2014, passed by this Appellate Tribunal in I.A. No. 416 of 2013 in DFR No. 2309 of 2013 before the Hon'ble Supreme Court vide Civil Appeal No. 3787 of 2014 and the Hon'ble Supreme Court vide its order, dated 14.8.2014, dismissed the said civil appeal filed by the Appellant holding that the Appellate Tribunal had correctly refused to condone the delay. (m) that, during the pendency of the civil appeal before the Hon'ble Supreme Court, the Appellant filed the impugned petition being Petition No. 253 of 2011 before the State Commission for determination of notional losses. The State Commission, vide impugned order, dated 29.5.2014, rejected/dismissed the impugned petition being Petition No. 253 of 2011 in the light of State Commission's order, dated 28.12.2012, review order, dated 14.8.2013, this Appellate Tribunal's order, dated 10.1.2014 whereby the condition of construction of switching station had been held to be illegal and uncalled for. (n) Determination of notional losses in the temporary arrangement made as per the order, dated 8.4.2011, on the ground that the questions of determination of losses does not arise as the Commission had already held the condition of construction of 220 KV switching station as unwarranted and contrary to the law. (o) that according to the State Transmission Utility, the Respondent No. 1/M/s. Shree Cement Limited, after posing themselves as Open Access Consumer specifically agreed to accept the condition of switching station by the letter, dated 13.5.2009. On 29.7.2010, a mutually agreed agreement between the Appellant and Respondent No. 1 for providing connectivity was entered with two conditions mentioned at SI. No. 1 from 1.1 to 1.11. The condition No. 1.1 was regarding the construction to 220 KV switching station at RAS. Vide condition No. 1.5, the Respondent was allowed to temporarily connect the line at their switch yard till the switching station is developed by the Appellant. The condition No. 1.9 of the agreement permits the Appellant to levy notional losses @ 0.4% on energy injected by the Respondent in the system of Appellant till switching station is constructed and metering system is shifted to switching station.
(3.) WE have heard Mr. S.S. Shamshery, the learned counsel for the Appellant and Mr. Kumar Mihir, the learned counsel for the Respondent No. 1 and Mr. C.K. Rai, the learned counsel for the Respondent No. 2 and gone through the written submissions filed by the rival parties. We have deeply gone through the evidence and other material available on record including the impugned order passed by the State Commission and written submissions.;