IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

APPEAL NO. 308 OF 2024 & IA NO. 893 OF 2024 Dated: 30th August, 2024 Present: Hon’ble Mr. Justice Ramesh Ranganathan, Chairperson Hon’ble Smt. Seema Gupta, Technical Member (Electricity)

In the matter of:

1. UTTAR PRADESH POWER CORPORATION LIMITED Through its Managing Director (Power Purchase Agreements), 14^th Floor, Shakti Bhawan Extension, 14-Ashok Marg, Lucknow, Uttar Pradesh – 226 001. … Appellant No. 1

2. PASCHIMANCHAL VIDYUT VITRAN NIGAM LIMITED Through its Managing Director, Urja Bhawan, Victoria Park, Meerut, Uttar Pradesh – 250 001. … Appellant No. 2

3. PURVANCHAL VIDYUT VITRAN NIGAM LIMITED Through its Managing Director, DLW Bhikaripur, Varanasi, Uttar Pradesh – 221004. … Appellant No.3

4. MADHYANCHAL VIDYUT VITRAN NIGAM LIMITED Through its Managing Director, 4-A, Gokhale Marg, Block I, Gokhale Vihar, Butler Colony, Lucknow, Uttar Pradesh – 226001. … Appellant No. 4 VERSUS

1. UTTAR PRADESH ELECTRICITY REGULATORY COMMISSION Through its Secretary, Vidyut Niyamak Bhawan, Vibhuti Khand, Gomti Nagar, Lucknow, Uttar Pradesh – 226010. ... Respondent No.1

2. INOX AIR PRODUCTS PRIVATE LIMITED Through its Chairman, A-2, TTC Industrial Area, Off Thane Belapur Road, Pawane Navi Mumbai, Thane – 400710 Maharashtra. ... Respondent No.2

3. UTTAR PRADESH STATE LOAD DESPATCH CENTRE Through its Director, Phase-II, Vibhuti Khand Lucknow – 226010, Uttar Pradesh. ... Respondent No.3

4. NOIDA POWER COMPANY LIMITED Through its Director, Electric Subv-Station, Knowledge Park-IV, Park – IV, Greater Noida, Gautam Buddha Nagar, Uttar Pradesh – 201310. ... Respondent No.4 Counsel on record for the Appellant(s) : Shankh Sengupta Abhishek Kumar Nived Veerapaneni Sujoy Sur Vedant Kumar Karan Arora Shubham Mudgil for Appellant 1 to 4 Counsel on record for the Respondent(s) : C. K. Rail for Res.1 Dipali Sheth Shubham Mehta for Res.2 Divyanshu Bhatt Shashwat Singh Savyasachi Saumitra for Res.3 J U D G M E N T PER HON’BLE MR. JUSTICE RAMESH RANGANATHAN, CHAIRPERSON The present appeal is filed by the Uttar Pradesh Power Corporation Limited (“UPPCL” for short), and the distribution licensees in the State of UP, questioning the legality and validity of the impugned order passed by the UPERC in Petition No. 1994 of 2023 dated 11.03.2024.

I. CONTENTS OF THE IMPUGNED ORDER PASSED BY THE UPERC: (ORDER IN PETITION NO. 1994 OF 2023 DATED

11.03.2024)

The 2^nd Respondent herein, ie M/s. Inox Air Products Pvt. Ltd, filed Petition No. 1994 of 2023 before the UPERC seeking the following reliefs: (a) to direct UPPCL to sign a banking agreement for allowing 100% banking for the Petitioner's Project; and (b) to direct UPPCL/PVVNL to give credit of energy in the bills of the Petitioner facility based on the energy account maintained in respect of the power generated from the project from the date of commissioning and upto the date of signing of the banking agreement for the power injected by the Project, and not consumed by the Petitioner's Facility.

In the impugned order dated 17.10.2023, the UPERC held that the principal issue involved in the present Petition was the restriction imposed on the Petitioner's utilization of the banking facility to only up to 25% of the energy generated, and the prohibition on drawl of such banked energy for the Petitioner's energy consumption; and the Petitioner had referred to Regulation 31 of the 2019 Regulations.

The UPERC observed that, while evolving a framework for banking, the provisions of the 2019 Regulations needed to be understood against the conjoint fulcrum of twin legal maxims viz. "CONTEMPORANEA EXPOSITO EST OPTIMA ET FORTISSIMA IN LEGE." Viz The best and surest mode of construing an instrument is to read it in the sense in which it would have been applied when it was drawn up, and "VERBA GENERALIA RESTRINGUNTER AD HABILITATEM REI VEL PERSONAE" viz General words may be aptly restrained according to the matter or person to which they relate; the import of clause 31(a) (ii)