APPELLATE TRIBUNAL FOR ELECTRICITY AT NEW DELHI (APPELLATE JURISDICTION)

Dated : 15.11.2022 Present: Hon’ble Mr. Justice R. K. Gauba, Officiating Chairperson Hon’ble Mr. Sandesh Kumar Sharma, Technical Member IN THE MATTER OF Jaiprakash Power Ventures Limited Having its corporate office at:

JA House, 63 Basant Lok, Vasant Vihar, New Delhi – 110057 … Appellant VERSUS

1. Uttar Pradesh Power Corporation Limited Shakti Bhawan, 14 Ashok Marg, Lucknow – 226 001.

2. Uttar Pradesh Electricity Regulatory Commission, Through its Secretary, Vidyut Niyamak Bhawan, Vibhuti Khand, Gomti Nagar, Lucknow –226010.

3. Government of Uttar Pradesh Through its Principal Secretary (Energy), Bapu Bhawan, Lucknow – 226001. 4. Government of Uttarakhand, Through its Principal Secretary (Irrigation and Power), Dehradun, Uttarakhand. …. Respondent(s)

Counsel for the Appellant(s) : Mr. Basava Prabhu Patil, Sr. Adv.

Mr. Ramanuj Kumar Mr. Manpreet Lamba Ms. Priyal Modi Mr. Geet Ahuja Counsel for the Respondent(s) : Mr. Hemant Sahai Mr. Nitish Gupta Ms. Parichita Chowdhary Mr. Allan Massey Ms. Puja Priyadarshini Mr. Shreshth Sharma Mr. Nitish Gupta Mr. Sagnik Maitra Mr. Nipun Sharma Mr. Nehul Sharma Ms. Shefali Mr. Saurobroto Dutta Mr. Utkarsh Singh Mr. Nishant Talwar Mr. Avdesh Mandloi for R-1

J U D G M E N T

PER HON’BLE MR. SANDESH KUMAR SHARMA, TECHNICAL MEMBER

1. The present appeal has been filed by M/s Jaiprakash Power Ventures Limited (hereinafter referred to as “the Appellant”) against the Order dated 22.02.2021(in short “the Impugned Order”) passed by the Uttar Pradesh Electricity Regulatory Commission (in short “the State Commission”) in Petition No. 1376 of 2018.

2. The Appellant is aggrieved by the decision of the State Commission for not considering its prayer inter alia revision of Design Energy due to Change in Law (in short “CIL”) event, occurred in the light of judgment passed by the National Green Tribunal (in short “NGT”) and the Government of India (in short “GOI”) notifications and also seeking direction for change in the computation of saleable Design Energy under the provisions of the PPA.

3. The Appellant is a generating company, a subsidiary company of Jaiprakash Power Industries Limited (in short “JIL”) having been set up the Vishnuprayag Hydro-electric Project (in short “VHEP”) with a capacity of 400 MW in the erstwhile State of Uttar Pradesh, now in the State of Uttarakhand having signed PPA with Uttar Pradesh Power Corporation Limited (in short “UPPCL”).

4. The UPPCL, the Respondent No. 1 is a Government company under the control of the Government of Uttar Pradesh, responsible for planning and managing the Transmission, Distribution and Supply of electricity.

5. The second Respondent, the State Commission has been established under the Uttar Pradesh Electricity Regulatory Reforms Act, 1999 and has the power to adjudicate the dispute in hand.

6. The third and fourth respondents are the Government of Uttar Pradesh and Government of Uttarakhand.

7. On 14.10.1992, the parent company, JIL has signed an MoU with the Government of Uttar Pradesh and subsequently with the erstwhile Uttar Pradesh State Electricity Board (in short “UPSEB”) which was under the direct control of the Government of Uttar Pradesh.

8. In pursuance to the MoU an agreement was signed on 20.09.1994 (in short “Agreement”) with the UPSEB, giving permission to the Appellant to establish, operate and maintain the said Vishnuprayag Hydro Electric Project with the installed capacity of 400 MW. The initial period of the agreement has been maintained as 30 years from the date of commissioning with the condition that it can be extended further for 20 years on mutually agreed terms and conditions.

9. Under the said Agreement, the entire power generated from the project shall be supplied to the UPSEB, subsequently, the Government of Uttar Pradesh transferred all the rights of the project to the Appellant including the rights, entitlements, assets and liability, also laying down a condition that