JUDGMENT

PER HON’BLE SMT. SEEMA GUPTA, TECHNICAL MEMBER (ELECTRICITY)

1. The instant appeal is preferred challenging the order dated 23.06.2023 passed by the Uttar Pradesh Electricity Regulatory Commission in Petition No. 1832 of 2022, whereby the Commission has permitted banking up to 85% to Amplus Green Power Private Limited (in short “AGPL”) qua three of its customers in terms of Regulation 31(a)(ii) of the CRE Regulations, 2019.

2. The Appellant No.1 is Uttar Pradesh Power Corporation Limited (“UPPCL”), the deemed transmission Licensee for the State and Appellant Nos. 2 to 4, are Distribution Licensees in the State of Uttar Pradesh, namely, Pashchimanchal Vidyut Vitran Nigam Limited (PVVNL), Purvanchal Vidyut Vitran Nigam Limited (PuVVNL) and Madhyanchal Vidyut Vitran Nigam Limited (MVVNL) [collectively referred to as UP DISCOMs].

3. The Respondent No 1, AGPL operates a 50 MW ground mounted Solar Power Project located at Mirzapur, Uttar Pradesh, a captive generation project with supply tied up with 13 consumers. Respondent No. 2 is Uttar Pradesh Electricity Regulatory Commission (in short “UPERC/State Commission”) which is the State Electricity Regulatory Commission. Respondent No. 3 is the Uttar Pradesh State Load Despatch Centre (in short “UP SLDC”) and Respondent No. 4, the Noida Power Company Limited (in short “NPCL”) is also a Distribution Licensee and operates in Greater Noida, Uttar Pradesh.

Facts of the Case

4. The UPERC, on 25.07.2019, notified “CRE Regulations 2019”, effective retrospectively from 01.04.2019 and valid till 31.03.2024. Under the CRE Regulations 2019, electricity banking is permitted under Regulation 31(a), which includes specific conditions; one of them being electricity banking would be permitted up to 100% contingent upon mutual agreement between the Renewable Energy (RE) generator and the concerned Distribution Licensee;

however subject to the technical feasibility of electricity evacuation.

5. On 02.12.2019, AGPL’s project was commissioned and Bulk Power Transmission Agreement (“BPTA”) and Bulk Power Wheeling Agreements (“BPWA”) were entered into between PVVNL, AGPL and UPPTCL on

07.11.2020.

6. On 24.01.2021, AGPL’s project achieved Commercial Operation Date. On 08.03.2021, 12.05.2021 & 12.08.2021, AGPL communicated UPPCL regarding the execution of a banking agreement for its captive consumers, HT- Media and DSL- Kasna Ecotech. On 01.12.2021, UPERC issued an order in Petition No. 1757 of 2021, declaring peak and off-peak hours for banking and withdrawal of banked electricity under Regulation 2(v) of the CRE Regulations 2019. The Peak hours were defined as 18:00 Hrs. to 24:00 Hrs., and off-peak hours as 00:00 Hrs. to 18:00 Hrs.

7. On 05.01.2022, UPPCL informed AGPL of its proposal to bank 25% of the electricity generated by AGPL's project, as per Regulation 31(a)(ii) of the CRE Regulations 2019 and requested AGPL to execute the banking agreement.

8. Subsequently, on 15.01.2022, AGPL responded, expressing that UPPCL should reasonably exercise its discretion under Regulation 31(a)(ii) regarding the extent of electricity banking. Further, AGPL stated that it had assumed that 100% banking would be permissible and had already entered into commercial agreements based on this understanding with its captive consumers. Consequently, UPPCL on 29.01.2022 responded, emphasizing that under the explicit provisions of the CRE Regulations 2019, electricity banking is capped at 100%, not guaranteeing an unconditional right. UPPCL referred to judicial decisions and regulations of other electricity regulatory commissions nation wide to underscore the practical and technical challenges which Distribution Licensees encounter in offering banking services and UPPCL reaffirmed its offer to bank 25% of AGPL's electricity.

9. AGPL filed Petition No. 1832 of 2022 with UPERC on 03.05.2022. The UPERC issued an interim order on 03.10.2022, directing UPPCL to execute a banking agreement with AGPL for 25% of electricity, qua its three c