Appeal No. 148 of 2021

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IN THE APPELLATE TRIBUNAL FOR ELECTRICITY

NEW DELHI

(APPELLATE JURISDICTION)

APPEAL NO.148 OF 2021

Dated:

20.09.2022

Present:

Hon’ble Mr. Justice R.K. Gauba, Officiating Chairperson

Hon’ble Mr. Sandesh Kumar Sharma, Technical Member

In the matter of:

EAST DELHI WASTE PROCESSING

COMPANY LIMITED

Through Mr. Sumeet Salhotra,

217-A, Okhla Phase – III,

New Delhi – 110 020

….

Appellant(s)

VERSUS

1. DELHI ELECTRICITY REGULATORY COMMISSION (DERC)

Office at Vinayamak Bhawan

C Block, Shivalik, Malviya Nagar,

New Delhi – 110017

Email:secyderc@nic.in

2. STATE LOAD DESPATCH CENTRE, DELHI

State Load Despatch Centre

33 KV Sub Station Building

Minto Road, New Delhi 110002

.… Respondent(s)

Counsel for the Appellant (s)

:

Mr. Sanjay Sen, Sr. Adv.

Mr. Tarbez Malawat

Mr. Sourajit Sarkar

Mr. Syed Hamza

Ms. Ruth Elwin

Counsel for the Respondent (s)

:

Mr. Dhananjay Baijal for R-1

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Mr. Pradeep Misra

Mr. Manoj Kumar Sharma for R-2

Mr. Gaurav Gupta

Mr. Naveen Goel

Ms. Sonali Garg Rep. for R-2

J U D G M E N T(Oral)

PER HON'BLE MR. JUSTICE R.K. GAUBA, OFFICIATING CHAIRPERSON

1.

Waste to Energy (“WtE”) is a concept and technology still at nascent

stage undergoing the process of development, steered by imperatives

primarily of environment and public health in as much as it statedly aids

and assists in reducing accumulation of toxic waste and its deleterious

effect on life. Having regard to its nature, however, it falls in the category of

non-conventional (renewable) source of energy, the quantum of electricity

thereby generated presently being minimal, having “extremely limited

operational proceedings”, nowhere in comparison to the other sources like

those based on hydro power, fossil-fuel, solar, wind etc.

2.

By a suo motu order passed on 21.01.2019 (no.F.9 (164) /DERC /

DS/2015-16/C.F 5110) – hereinafter referred to as the “2019 Exemption

Order”,

the

respondent

(hereinafter referred to as “DERC” or “the State Commission”), in exercise

of powers vested in it, inter alia, under section 86 of Electricity Act, 2003,

had decided to grant exemption, subject to conditions, to “generation

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projects based on Waste to Energysources” in the National Capital

Mechanism”, subject to certain conditions. By a subsequent order dated

15.02.2021 (on petition no.28/2020), the Commission has issued certain

clarifications with regard to the 2019 Exemption Order.

3.

The appellant feeling aggrieved with the import and effect of the said

clarifications given by the above-mentioned order dated 15.02.2021

(hereinafter referred to as “the impugned order”) has challenged the same

by appeal invoking the jurisdiction of this tribunal under section 111 of

Electricity Act, 2003, contending that the same is bad in law.

4.

The background facts pertaining particularly to the appellant may be

noted at the outset. The appellant –East Delhi Waste Processing

Company Limited– is a company incorporated under the provisions of the

Company law, engaged in activities of processing of Municipal Solid Waste

(“MSW”) and operating WtE Power Plant located in Ghazipur, Delhi,

commissioned on 24.08.2017, for producing electricity as a by-product. It

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had entered into a Power Purchase Agreement(“PPA”) on 29.10.2009 with

BSES Yamuna Power Limited(“BYPL”), the distribution licensee operating

in the eastern and central parts of National Capital Territory of Delhi (“NCT

of Delhi”) for generation and sale of 49 per cent net available electricity

from its said WtE Power Plant, it being at liberty, in terms of the said PPA,

for sale of the remainder 51 per cent of available capacity. The PPA was

approved by the State Commission by order dated 11.07.2008 in petition

no.26/2008 and had a tenure of 25 years. However, it contained a clause

(referred to as “forec