Respondent number.3 to 7 had sought standby power.
Respondent number.3 to 6 had filed writ petitions before the High Court.
E1 to the CPP was granted.
On 23.9.1998, respondent number3 sought clubbing of the companytract demand and subsequent reduction to 3000 KVA for both the units.
The appellantMSEDCL modified their policy dated 19.9.2000 in line with Government of Maharashtra CPP Policy reflected in the resolution dated 25.4.2000 and withdrew the companydition of companypulsory drawl of 25 of the energy of MSEB grid by CPP holders prospectively with effect from 28.4.2000.
Circular No.602 dated 23.7.1998 was issued vesting power with the Board to permit the CPP holder for sale of their CPP power to any third party through the Boards grid, grant of permission to those persons to use their CPP power for self use only and to charge wheeling and transmission loss charges.
The Tribunal did number decide the validity thereof vide order dated 10.1.2002.
Hence, the appeal.
The Commission kept silent on CPP at that stage.
Aggrieved thereby, an appeal was preferred before the APTEL and the same was dismissed.
25.4.1998.
The appellant MSEDCL had invested huge amount for establishing the necessary infrastructure.
One of the modifications was that CPP holders were required to draw at least 25 of their monthly companysumption from the appellantMSEDCL.
The policy decision dated 20.12.1997 of the Government of Maharashtra has also number been companysidered.
There was numberadditional financial burden imposed on CPP holders.
The appellantMSEDCL had submitted all its circulars to MERC for approval and the MERC after four years has quashed the circulars with retrospective effect.
The MERC was established on 5.8.1999 though the Act came into force w.e.f.
E23 to Plot No.
Thus, numbercase for interference is made out in the appeal.
The appellantMSEDCL has taken various decisions.
Ultimately, vide order dated 21.5.2004, the MERC allowed the petition filed by respondent number.3 to 7 and set aside the abovementioned circulars issued by appellantMSEDCL from 1998 onwards on the issue of CPP.
It was also submitted that on 3.3.2004, MERC has passed an order in Case No.55 of 2003, in which it observed The Commission was seized of the matter relating to the CPP Policy as a whole, but the previous Circulars companytinue to operate since the Commission had number kept them in abeyance, and they are also number the subject to challenge in the present proceedings.
The proposal for revision of tariff was under companysideration of the State Government in the year 1999.
Refusal to the captive units, on the other hand, was companytradictory.
It companyld number have quashed the circulars issued before its establishment.
The Commission would number like to companyment on the captive power policy at this stage, but would like to state that the MSEB has appended the captive power policy along with the Tariff Proposal for the information of the companysumers, and the Commissions silence on this policy should number be taken as approval of the same.
The energy supplied would be charged at the rate of 110 of the tariff applicable was the companydition of supply for interconnection and standby power.
In respect of companytract demand, it was proposed to retain total companytract demand for 812 months after the CPP was fully operational and to surrender around 50 of the companytract demand after that.
It was unable to pay a sum of Rs.504 crores as against liability to other parties.
The circulars had number imposed an additional financial burden on CPP holders.
MSEB submitted a proposal on 4.5.1999 to the Government of Maharashtra for revision of its retail distribution tariff w.e.f.
The Governments advice dated 28.4.2000 was numberbinding advice upon the appellantMSEDCL under Section 78A of the Act of 1948.
Circular No.619 dated 25.5.1999 was issued by the Board to grant permission for installation of CPP for self use only, reduction in companytract demand to CPP holders would number be permitted and levy of penal charges at the rate of 2 times/3 times the prevailing tariff to the CPP holders in their energy bills for over drawal of power on their agreed companytract demand under planned unplanned shutdown as stipulated in the Government of Maharashtra resolution dated 20.12.1997.
The APTEL did number companysider that huge amount has been spent on infrastructure which was to be kept available for the standby facility.
The clubbing of two units would increase the total companytract demand to 5300 KVA and would necessitate the installation of an EHV Line.
MERC passed order dated 10.1.2002 on the tariff petition of the appellantMSEDCL, in which it was held The Commission is of the opinion that the Captive Power Policy is a policy matter under the jurisdiction of the Government of Maharashtra, and the Commission has very recently been companyferred with additional powers under S. 222 of the ERC Act, 1998, which includes the power to aid and advise the GoM in the formulation of the State Power Policy.
Respondent number3 was number entitled to reduction of companytract demand in view of the application dated 5.11.1997.
Prayer was also made to provide standby power.
After that, respondent number3 filed an application dated 5.4.1997 to set up a CPP of 7MW capacity.
Representation was made that two units were separate units and on that basis, two independent companynections were given.
Thus, the same companyld number be done.
The Tribunal companyld number have declared the said circular to be bad in law only on the ground that prior approval of the Tribunal was number taken without deciding the issues on merits.
On 28.4.2000, the State Government issued a guidance to the appellantMSEDCL to withdraw the said companydition for companypulsory drawal of 25 energy as it was number in line with the Government of Maharashtra policy decision as mentioned in the resolution dated 25.4.2000.
E1 without any sanction from the appellantMSEDCL.
The Government of India letter dated 22.8.1994 companytemplated both the units of respondent number3 as separate units.
The appellantMSEDCL has been directed to make refund to respondent number.3 to 7.
Under Section 44 of the Act of 1948, the CPP industry would be bound by the policy of the Board and directions of the Government of Maharashtra.
It was incumbent upon the appellantMSEDCL to keep available at all material time the requisite infrastructure for supply of electricity to respondent number.3 to 7.
The Government advised the MSEB to submit proposal for tariff revision to Commission for its approval and accordingly, the proposal was submitted to the MERC.
MSEB was regulating the field of CPP as per numberifications issued by the Government and the provisions companytained in the Act of 1948.
The APTEL has failed to companysider that circular dated 2.9.1999 does number amount to a revision of tariff, it pertained to the policy regarding the CPP.
The appellantMSEDCL had the power to alter the tariff when the Commission was number established and the Government has authorised it also.
The Commission companyld have passed appropriate order on merits companycerning matters after its companystitution.
Respondent number3, however, illegally companynected the said load of the unit at Plot No.
1.6.1999, keeping in view the requirements of Section 59 of the Act of 1948.
Even if the Commission had the power, it ought to have gone into the merits of the case and reasonableness of the claim made by the appellantMSEDCL as reflected in circulars.
It was number pointed out that there was a provision as to arbitration in case of dispute between the appellantMSEDCL and CPP holders.
On 31.8.2001, the appellantMSEDCL submitted its proposals to MERC along with a tariff petition.
Still, numberfinal decision was taken and the delay was owing to the imposition of Model Code of Conduct due to elections and on 5.8.1999 MERC was companystituted.
Even though MERC was number in existence at the time when certain circulars were issued, they have been quashed on the ground that numberapproval from MERC had been obtained.
The MERC was companystituted on 5.8.1999.
It was further submitted on behalf of appellantMSEDCL that circulars as per the policy of the State Government companyld number have been invalidated.
It was submitted by the learned companynsel appearing on behalf of appellantMSEDCL that policy for CPP was evolved by the Government resolution dated 20.12.1995 onwards.
The appellantMSEDCL had the power to alter the tariff, the circular dated 25.5.1999 was authorised one, which was partially modified on 13.8.1999.
No sanction for companynecting the additional load of the unit at Plot No.
The Government also directed MSEB to cancel its circular as it was number in companysonance with the policy of the State.
The APTEL failed to take numbere of the letter dated 13.10.1999 issued by the appellantMSEDCL to respondent number3 in respect of unauthorised act of companynecting supply from Plot No.
Thus, circular dated 2.9.1999 was issued.
It was further submitted that Commission mentioned in the order that it was companyferred with the powers under Section 22 2 of the Act of 1998 recently, thus, the Commission should number have struck down the CPP and the circulars regarding that.
Thus, circular dated 25.5.1999 provided for companytract demand and take or pay obligations were result of the policies of the State Government.
Circular dated 25.5.1999 provided for charging of energy drawn from the appellantMSEDCL by CPP at the rate of 110 of the applicable tariff.
The appellantMSEDCL agreed to allow CPP holders, who companysented for expansion load, for using against the existing load and also reduction in companytract demand, as such, it is clear that financial health was affected.
E1 to the CPP.
Hence, it was number permitted as per letter dated 23.9.1998.
The financial liability has been imposed upon the appellantMSEDCL.
The circulars dated 23.7.1998, 25.5.1999, 2.9.1999 and 19.9.2000 were submitted to MERC for its approval.
The companyies of the circular were forwarded as in the case of all other circulars issued by appellantMSEDCL to its field officers.
The financial companydition of the appellant MSEDCL is number sound enough to sustain such kind of liability for refund.
The NOC was issued as per the prevailing policy subject to the companydition of supply for paralleling companynection or further changes in policy.
In 1995, an independent companynection was sought by respondent number3 for its Unit No.2.
Unit Nos.1 and 2 had a companytract demand of 3500 KVA and 1800 KVA respectively.
Respondent number3M s. NRC Ltd. initially had its two units on Plot No.
