IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

APPEAL NO. 104 OF 2020 Dated: 18^th August, 2022 Present: Hon’ble Mr. Justice R.K. Gauba, Officiating Chairperson Hon’ble Mr. Sandesh Kumar Sharma, Technical Member In the matter of:

M/s Malana Power Company Limited Through its Managing Director Bhilwara Towers, A – 12, Sector – I, NOIDA – 201 301 ............. Appellant Versus

1. Himachal Pradesh State Electricity Board Limited Through its Chief Engineer-Commercial Vidyut Bhawan, Shimla – 171 004

2. Himachal Pradesh State Load Dispatch Centre Through its Chief Engineer (SLDC)

Totu, Shimla-171011

3. Himachal Pradesh Electricity Regulatory Commission Through its Secretary, Regulatory Commission, Kusumpati, Shimla -171009 ......... Respondents Counsel for the Appellant(s) : Mr. Basava P. Patil, Sr.Adv.

Dr. Seema Jain Mr. Dushaynt Mahant Mr.Vimlesh Kumar Mr. Geet Ahuja Counsel for the Respondent(s): Mr. Anand K. Ganesan Ms. Swapna Seshadri Mr. Amal Nair Ms. Kriti Soni Mr. Jai Dhanani Mr. Utkarsh Singh for R-1 Mr. Pradeep Misra Mr. Manoj Kumar Sharma for R-3

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 Malana Power Company Limited (hereinafter “Appellant” or “MPCL”) assailing the Multi Year Tariff (MYT) Order dated 29.06.2019 (“Impugned Order”) passed by Himachal Pradesh Electricity Regulatory Commission (hereinafter referred to as the “HPERC” or the “State Commission” or the “Respondent Commission”) in Tariff Petition No.28 of 2019 for the Control Period 2019-20 to 2023-24. The Appellant is aggrieved by the determination of single wheeling charge for 66 kV and above voltage levels inter-alia same wheeling charge for all open access consumers connected at voltage of 66 kV and above, contrary to the Regulations specified by the State Commission.

Parties: -

2. The Appellant is a Private Generating Company within the meaning of Section 2(28) of the Electricity Act, 2003, and is engaged in the business of setting up a grid connected Hydro Electric Project (HEP) in the State of Himachal Pradesh.

3. Respondent No.1 is Himachal Pradesh State Electricity Board Limited (in short “HPSEBL”), formed after the reorganisation of erstwhile Himachal Pradesh State Electricity Board (HPSEB) under the Electricity Act, 2003, Respondent No.2 is Himachal Pradesh State Load Despatch Centre (HPSLDC) entrusted with the function of integrated operation of the Power System in the State of Himachal Pradesh and Respondent No.3 is Himachal Pradesh Electricity Regulatory Commission established under the Electricity Act, 2003 having jurisdiction to regulate and adjudicate the matter under reference.

Factual Matrix: -

4. The Appellant, engaged in the business of generation of electricity, has setup a HEP with Pondage with an installed capacity of 86 MW (2X43MW) on Malana Nallah, a glacier fed tributary of Parbati River in District Kullu, Himachal Pradesh.

5. On 28.08.1993, the Appellant signed Memorandum of Understanding (MOU) with the Government of Himachal Pradesh (in short “GoHP”), as per the condition incorporated therein, the Appellant shall supply 12% of the net power generated, free of cost, from the said HEP to the State of Himachal Pradesh or its Agent and further that the Himachal State Utility shall have the first option to purchase the whole or part of the remaining power generated from the project at the rate to be mutually agreed upon and/or in accordance with the guidelines of the Central Government.

6. Subsequently, in succession of the MOU, the Appellant signed an Implementation Agreement (“IA-1997”) on 13.03.1997 with GoHP for implementation and operation of the said 86 MW hydro power project of the Appellant.

7. Thereafter, on 03.03.1999, in terms of the Implementation Agreement, the Appellant entered into an Agreement (“Agreement-1999”) with erstwhile HPSEB, for 40 years from the Commercial Operation Date (COD), thereby incorporating the modalities for free power, evacuation