IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

APPEAL No. 79 OF 2021 Dated: 19.12.2024 Present: Hon’ble Mr. Sandesh Kumar Sharma, Technical Member Hon’ble Mr. Virender Bhat, Judicial Member In the matter of:

VIYYAT POWER PRIVATE LIMITED Viyyat Kausthubham Kariyavattom, Trivandrum – 695 581 viyyatpower@yahoo.com … Appellant Versus

1. KERALA STATE ELECTRICITY REGULATORY COMMISSION Through its Secretary, K.P.F.C. Bhavanam, C.V. Raman Pillai Road, Vellayambalam, Thiruvananthapuram – 695 010 kserc@erckerala.org

2. KERALA STATE ELECTRICITY BOARD LIMITED Through its Chairman & Managing Director Vydyuthi Bhavanam, Pattom, Thiruvananthapuram – 695004, Kerala trac@kseb.in

3. GOVERNMENT OF KERALA Through the Power Secretary, Power Department, Government Secretariat, Thiruvananthapuram – 695001 powerbdepartment@gmail.com

4. THE DIRECTOR, ENERGY MANAGEMENT CENTRE Through its Chairman & Managing Director Srikrishna Nagar, Sreekaryam PO, Thiruvananthapuram – 695017, Kerala emck@keralaenergy.gov.in … Respondent(s)

Counsel on record for the Appellant(s) : Anand K. Ganesan Swapna Seshadri Amal Nair Counsel on record for the Respondent(s) : M.T. George for Res. 1 Subhash Chandran K.R Krishna L.R for Res. 2 J U D G M E N T PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The appellant, a small hydro project in the state of Kerala, is aggrieved by the order dated 24.04.2020 passed by 1^st respondent Kerala State Electricity Regulatory Commission (hereinafter referred to as the Commission) whereby appellant’s prayer for compensatory tariff for its power project has been declined.

2. The facts of the case, stated briefly, are that the Government of Kerala (3^rd respondent) allotted 13 small hydro power projects in 2004 by way of public tender floated in the year 2002-02 i.e. before the enactment of Indian Electricity Act, 2003, on the basis of competitive tariff bidding. The appellant is the allottee of two small hydro projects at Iruttukkanam, District Udupi, Kerala. Accordingly, it established the two small hydro projects i.e. 2x1.50 MW stage I and 1x1.5MW stage II which are at the at the same location using the same weir and water conductor system but having separate power houses. It may be noted here that the hydro projects had been allotted to the appellant on build, own, operate and transfer (BOOT) basis at the tariff as quoted by it in its bid.

3. An implementation agreement dated 10.12.2004 was signed between the appellant and the 3^rd respondent Government of Kerala in which the scheduled date of commissioning was stated as 10.09.2010. With the approval of the Commission, a Power Purchase Agreement (PPA) dated 07.06.2007 was executed between the appellant and 2^nd respondent Kerala State Electricity Board Limited (in short “the Board”) for supply of energy generated in the hydro project to the Board at the tariff quoted by the appellant in the bid. 4. The three MW stage I project was commissioned on 04.11.2010 and the 1.5 MW stage II was commissioned on 10.04.2012. We may note here that the PPA dated 07.06.2007 is only with regards to the stage I project. No PPA has till date been executed between the parties with regards to the stage II project for the reason that the appellant has been demanding revised generic tariff @ Rs.4.88/unit applicable for the projects commissioned on or after 01.01.2013 even though this SHP of the appellant achieved commercial operation on 10.04.2012 and the dispute is stated to be still pending before Hon’ble Supreme Court.

5. A landslide disaster is stated to have occurred in the month of August, 2018 triggering huge flood in the area where the power projects are situated which heavily damaged the stage I and stage II projects of the appellant including the office room, control room, switch gear room, battery room etc. The equipments were thrown over the turbine as well as the generator and the generator hall were covered with mud, rock and debris up to the height of 28- 30 ft. Admittedly, the appellant