IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

APPEAL No. 78 OF 2022 Dated : 31^st July, 2024 Present : Hon’ble Mr. Sandesh Kumar Sharma, Technical Member Hon’ble Mr. Virender Bhat, Judicial Member In the matter of :

Jindal India Thermal Power Limited Through its Authorized Representative Plot No. 2, Pocket-C, Nelson Mandela Marg, Vasant Kunj, New Delhi – 11007 Email: jitpl.ra.@jindalgroup.com …Appellant Versus

1. Central Electricity Regulatory Commission Through its Secretary, 3^rd & 4^th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 Email: info@cercind.gov.in

2. GRIDCO Limited Through its Chairman, Janpath, Bhubneshwar-751020 Odisha Email: gridcofca@gridco.co.in …Respondents Counsel for the Appellant(s) : Sajan Poovayya, Sr. Counsel Matrugupta Mishra Swagitika Sahoo Ritika Singhal Vignesh Srinivasan Sanjeev Singh Thakur Ishita Thakur for App. 1 Counsel for the Respondent(s) : Raj Kumar Mehta for Res. 2

JUDGMENT

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The Appellant in this appeal is aggrieved by order dated 12^th February, 2022 passed by the 1^st Respondent – Central Electricity Regulatory Commission (CERC) whereby the petition filed by the Appellant under Section 62 of the Indian Electricity Act, 2003 for determination of tariff for its 1200 MW coal-based power project in the State of Odisha for the period from 12^th February, 2015 till 31^st March, 2019, has been held to be not maintainable in view of pendency of the Writ Petition No. 18150 of 2018 filed by the Appellant itself in the Hon’ble High Court of Odisha.

2. The facts which are relevant for our consideration in this appeal are as under :-

(i) The Appellant is a company incorporated under the Companies Act, 1956 and is a generating company within the meaning of Section 2(28) of the Electricity Act, 2003. It is operating 2x600 MW coal-based power plant at Village-Derang, District-Angul, Odisha.

(ii) The Respondent No. 2/ GRIDCO is the nominated agency to act on behalf of the Government of Odisha to receive the delivery of power from the Appellant’s plant.

(iii) Initially, the power plant was owned by Jindal Photo Limited (JPL) which had entered into Memorandum of Understanding (MOU) dated 26.9.2006 with the State Government of Odisha for setting up of the Project. PPA dated 28.9.2006 was also executed by JPL with State Government of Odisha, wherein, the nominated agency of the State Government had the right to purchase up to 25% power sent out from the Project in terms of the PPA, and tariff for such purchase was to be determined by the appropriate Regulatory Commission. Later on, JPL assigned the Project to the Appellant on 14.5.2008. Constantly, fresh MOUs (Memoranda of Understanding) dated 17.10.2008 and 30.12.2010 were signed by the Appellant with the State Government. Subsequently, Appellant also signed PPA dated 05.01.2011 and supplementary PPA dated 23.07.2013 with the State Government which were approved by Odisha Electricity Regulatory Commission (OERC) on 4^th June, 2019 with some modifications.

(iv) Aggrieved by the said order of OERC, the Appellant filed Appeal No. 297 of 2019 before this Tribunal and by interim order dated 28^th August, 2020, this Tribunal stayed the operation of the said order as well as all consequential action taken therein. The appeal is still pending disposal.

(v) Thereafter, the Appellant filed Petition No. 26 of 2014 before OERC on 27^th December, 2014 under Section 62 read with Section 86(1)(a) of the electricity Act, 2003 read with relevant Tariff Regulations for Determination of Tariff for the said project for the control period 2014-2019. The petition had been filed before OERC because till that date the Appellant had not executed the PPA with any other entity/State Govt. except the GRIDCO. During the pendency of the Petition before OERC, the Appellant executed multiple long-term and medium-term PPAs with Distribution Licensees situated in several States of India. Accordingly, in pursuance to execution of