ORDER:

Heard learned Senior Designate Counsel Sri A.Venkatesh, representing the counsel on record Sri P.Mohit appearing on behalf of the Petitioner, Sri R.Vinod Reddy, learned Standing Counsel appearing on behalf of respondent No.1 and learned Government Pleader for Energy appearing on behalf of respondent No.2.

PRAYER:

2. The Petitioner approached the Court seeking prayer as under :

“declaring (A) the inaction of the Respondent No 1 and

2 to pay Petitioner the amounts owed towards unutilized banked energy injected by Petitioners Power Plant into the grid as per the applicable Pooled Cost of Power Purchase for the period of 27.12.2017 up till 31.03.2022 in accordance with the provisions of the Solar Power Policy 2015 and orders dated 26.11.2018, 02.03.2020, 09.03.2021 and 14.09.2021 in O.P. No. 60 of 2018 and O.P. No. 07 of 2020 and O.P. No. 7 of 2021 and O.P. No. 28 of 2021 respectively as illegal arbitrary high handed in violation of the provisions of the Solar Power Policy 2015 in violation of the Rights guaranteed under the Constitution of India under Article 14, 21 of the Constitution of India, (B) with a consequential prayer to direct the Respondents to pay the amounts due to the Petitioner as per the settlement reports as per the appropriate Pooled Cost of Power Purchase fixed in O.P. No. 60 of 2018, O.P. No. 07 of 2020, O.P. No. 7 of 2021 and O.P. No. 28 of 2021 along with costs and interest or 18 percentage p.a. for the delay in payment of the dues”.

PERUSED THE RECORD :

3. The counter affidavit has been filed by the 1st respondent, in particular, at para Nos. 9, 11, 30, 31, 33, 34, read as under:

“ 9. It is further submitted that, as per Clause 10.3 of the Regulation 2 of 2006 the solar generator is not entitled to claim any amount in respect of the injection of such unscheduled energy into the grid. Clause 10.3 of the Regulation 2 of 2006 is extracted below for ready reference :-

The under drawals by scheduled consumers and/or OA consumers shall have impact on the Generator and on the DISCOM in whose area of supply the Exit point is located. Such under drawals at Exit point shall be treated as inadvertent energy supplied by the Generator to the DISCOM(s) and shall not be paid for by the DISCOM."

11. It is further submitted that, the Hon'ble TSERC issued Regulation 1 of 2017 i.e., Third Amendment to (Interim Balancing and Settlement Code for Open Access Transactions) Regulation 2 of 2006 on 25-03-2017, wherein, the commission has amended the Appendix-3 of Principal Regulation and the relevant banking clauses of the said amendment are reproduced below :-

"6. For captive generator, the energy injected into the grid from date of synchronization shall be considered as deemed banked energy.

7. For third party sale, the energy injected into the grid from the date of synchronization till the date prior to captive consumption to open access approval date will be considered as deemed banked energy.

8. The unutilized banked energy shall be considered as deemed purchase by DISCOM(s) at the average pooled power purchase cost as determined by TSERC for the relevant year."

Clause 2 of Regulation 1 of 2017 clearly postulates that the Third Amendment to (Interim Balancing and Settlement Code for Open Access Transactions) Regulation 2 of 2006, (Regulation 1 of 2017) shall apply to a generating company having captive consumption who has no open access agreement with the licensees but having connection agreement only which is extracted below.

1. Extent of Application The amendment to the Interim Balancing & Settlement code set out in this regulation shall apply to a generating company (having captive consumption) who has no open access agreement with the licensee and having connection agreement only.

As the petitioner neither had open access agreement nor had banking agreement till 05.11.2020 as provided under Regulation 1 of 2017, it is not entitled to claim for the unscheduled energy injected into the grid from the date of synchronization as conte