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IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.P. SAHI, SUBRAMONIUM PRASAD, JJ.
Vaayu (India) Power Corporation (P) Limited, Rep. by V. Chandrasekar - Appellant
Versus
Tamil Nadu Electricity Regulatory Commission, Chennai & Others - Respondent
Writ Petition No. 31798 of 2019 & W.M.P. Nos. 32035 & 32036 of 2019
Decided On : 10-02-2020
REC Regulations - Renewable Energy Power Obligation - Regulation 2 (1) (h) - Summary of Acts and Sections: The court discussed the CERC REC Regulations, the Electricity Act, 2003, and the Tamil Nadu Electricity Regulatory Commission (Renewable Energy Power Obligation) Regulations, 2010. The court highlighted the powers of the state commissions to fix tariffs, the delegation of power under the act, and the role of the regulatory commissions in determining tariffs and specifying terms and conditions for tariff determination.
Fact of the Case:
The petitioner challenged the amendment to Regulation 2 (1) (h) of the REC Regulations, which capped the preferential tariff at 75%. The petitioner argued that the amendment violated the principles of legitimate expectation and promissory estoppel, as it would affect their substantial investments made based on the existing factors at the time of entering into power purchase agreements.
Finding of the Court:
The court found that the issues raised in the instant writ petition had already been extensively considered and dismissed by a previous Division Bench. The court held that the figure of 75% in the amendment was not arbitrary and was justified to prevent generators from unjustly enriching themselves. The court also emphasized that the TNERC had the authority to deviate from its earlier notification and that the amendment was enacted in the public interest.
Issues: The issues raised in the instant writ petition had already been extensively considered and dismissed by a previous Division Bench. The court found that the TNERC had the authority to deviate from its earlier notification and that the amendment was enacted in the public interest.
Ratio Decidendi: The court emphasized that the TNERC had the authority to deviate from its earlier notification and that the amendment was enacted in the public interest. The court also highlighted that the issues raised in the instant writ petition had already been extensively considered and dismissed by a previous Division Bench.
Final Decision: The court dismissed the writ petition, stating that the issues raised had already been extensively considered and dismissed by a previous Division Bench. The court found that the TNERC had the authority to deviate from its earlier notification and that the amendment was enacted in the public interest.
JUDGMENT :
SUBRAMONIUM PRASAD, J.
Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records pertaining to the first respondent being Regulation 2 (1) (h) of the Tamil Nadu Electricity Regulatory Commission (Renewable Energy Power Obligation) Regulations, 2010 amended vide the impugned Notification No.TNERC/RPO/19/3 dated 21/1/2013 published by the Tamil Nadu Electricity Regulatory Commission (Respondent No.1) and all consequential orders, including its Order No.TNERC/M.O.4-7/E/RPO dated 6/9/2018 and Demand/Letter LR.No.SE/TEDC/TIN/DFC/AO/WIND/AS/F.REC/D.No.1763/19 dated 17/10/2019 of the fourth respondent and quash the same as invalid.
1. Instant writ petition challenges the Regulation 2 (1) (h) of the Tamil Nadu Electricity Regulatory Commission (Renewable Energy Power Obligation) Regulations, 2010 [hereinafter called as the REC Regulations], amended vide impugned Notification No.TNERC/RPO/19/3, dated 21/1/2013, and consequential orders passed, after the amendment.
2. Petitioner a Company incorporated under the Companies Act, 1956, itself a Renewable Generating Company. Petitioner has established thirty six units 800 KW each, total capacity of 28.80 MW under the provisions of REC Regulations in Tirunelveli District of Tamil Nadu.
3. It is the submission of the petitioner that in pursuance of the policy of the Government, for promotion of renewable energy under Section 86 (1) (e) read with Section 181 of the Indian Electricity Act, 2003. Various State Commissions have been fixing separate Renewable Purchase Obligations (RPO), in their respective States. Since the availability of renewable energy is not equal in all the States and certain States are unable to fulfill their Renewable Purchase Obligations. Government of India framed the Central Electricity Regulatory Commission (Terms and Conditions for recognition and issuance of Renewable Energy Certificates for Renewable Energy Generation) Regulations, 2010, hereinafter called as the CERC REC Regulations.
4. CERC REC Regulations provide that Central Electricity Regulatory Commission shall designate the agency to undertake various functions such as registration of eligible entities, issuance of certificates, maintaining and settling accounts in respect of certificates, repository of transactions in certificates, and such other functions incidental to the implementation of REC mechanism as may be assigned by the Central Commission from time to time. It is pertinent to mention herein that for the promotion of renewable energy, the State Commissions have been fixing separate Renewable Purchase Obligations, because of the difference in the renewable energy and options and the capacity to produce electricity from various renewable energy source is different in various States. A report was prepared for promotion of renewable energy which provided for renewable energy certificate mechanism.
5. Under the CERC REC Regulation, the Central Commission designated the National Load Dispatch Centre as the central agency, vide its order, dated 29/1/2010. The Central Commission issued the CERC (Terms and Conditions for recognition and issuance of Renewable Energy Certificate for Renewable Energy Generation (First Amendment) Regulations, 2010.
6. A detailed procedure was notified for registration of eligible entities, verification of electricity generation and its injection into the grid by the eligible entity and issuance of certificates, etc., under the REC mechanism wherein cost of electricity generation from Renewable Energy Sources is divided into two parts as (a). cost of electricity generation equivalent to conventional energy source and (b). cost of green/environmental attributes containing various distinct features to be complied by the Renewable Energy Generating Companies to ensure that the RE Generators
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