The main legal point established in the judgment is that the interpretation and enforcement of Regulation 17 of the CERC Tariff Regulations fall within the adjudicatory powers of the Central Electricity Regulatory Commission, and the petitioner should avail its remedy before the Commission.

JUDGMENT

Sanjeev Sachdeva, J. - Petitioner in W.P.(C) 4167 of 2020 seek quashing of letter dated 02.05.2020 issued by Respondent No. 2 NTPC Limited, whereby NTPC has opined that the provisions of Regulation 17 of the Central Electricity Regulatory Commission (CERC for short) (Terms & Conditions of Tariff) Regulations, 2019 (hereinafter referred to as the (CERC Regulations) are optional and may be exercised after completion of the useful life of a thermal generating station, if both the beneficiary and the generating company agree and further that presently NTPC was not considering the said provision of Regulation 17 for any of its stations and if any such arrangement was considered in future, same shall be communicated to the beneficiaries including the Petitioner. Petitioner further seeks a mandamus to NTPC to consider the request of the Petitioner to enter into an arrangement under Regulation 17.

2. Petitioner in W.P.(C) 10026 of 2020, seeks quashing of letter dated 30.11.2020 issued by Respondent No. 2 NTPC Limited, whereby NTPC has declined to accept the request of the Petitioner not to schedule any power from Dadri - I power generating station or raise any bills against the Petitioner after 30.11.2020. Petitioner further seeks a declaration that the useful life of 25 years and Power Purchase Agreement validity qua Dadri - I generating station have ended on 30.11.2020 and seeks a restraint on NTPC Limited from scheduling any power from Dadri - I generating station or to raise any bill for the period after 30.11.2020 and further to make a reasoned offer of an arrangement as per Regulation 17 (2) of the CERC Regulations.

3. Petitioner and Respondent No. 2 - NTPC entered into a consolidated Power Purchase Agreement consisting of a Power Purchase Agreement dated 08.05.2008 read with a Supplementary Power Purchase Agreement dated 22.03.2012 (hereinafter collectively referred to as the PPAs) for procuring power from various generating stations of NTPC including the subject generating station called Dadri-I.

4. As per the Petitioner in terms of Clause 13.1 (A) of the PPAs, the validity of the PPAs qua the subject generating station Dadri - I was till the end of life of the said station considered in the tariff orders or Regulations issued by Respondent No. 1 (Central Electricity Regulatory Commissioner) or Government of India allocations, whichever is later.

5. It is the case of the Petitioner that as per the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009, useful life of a thermal generating station was 25 years and as the Commercial Operation Date of Dadri - I was 01.12.1995, Dadri - I completed its useful life of 25 years on 30.11.2020 and consequently the validity of PPAs qua Dadri - I expired on the said date.

6. As per the Petitioner, Regulation 17 of the CERC Tariff Regulations provides for a special provision for tariff of thermal power stations which have completed 25 years from the Commercial Operation Date. It is contended that the said special provision allows a generating station to continue supply of power to beneficiaries based on a mutually agreeable arrangement, even though such generating station has completed 25 years from its Commercial Operation Date.

7. It is contended by learned senior counsel for the Petitioner that Sub clause (1) of Regulation 17 provides for an arrangement between the generating company and the beneficiary which includes transmission/distribution companies, regarding target availability and incentives. It is contended that the energy charges and capacity charges shall be payable only as per the power scheduled for generation as against the concept of fixed charges based on availability for the thermal generating plants having life less than 25 years old even if no power is scheduled.

8. It is contended that a thermal generating plant having useful life of 25 years from date of commercial operation and tariff recovery is determined by CERC in such a wa