WP/20224/2004 of M/s. Agri Gold Projects Limited, Vs Andhra Pradesh State Electricity Regulatory Commission, on 31 December 2004

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

FRIDAY, THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND FOUR

PRESENT

THE HON'BLE MR JUSTICE L.NARASIMHA REDDY

WRIT PETITION NO : 20224 of 2004

Between:

M/s. Agri Gold Projects Limited, Regd. Office at 40-21/21,Catholic Complex, M.G. Road, Vijayawada.

AND

..... PETITIONER

1 Andhra Pradesh State Electricity Regulatory Commission, 2nd Floor, SingareniBhavan, Red Hills, Hyderabad Rep. by its Secretary. 2 Transmission Corporation of Andhra Pradesh Limited, Vidyut Soudha,Khairatabad, Hyderabad, Rep. by its Chairman & Managing Director.

3 Non-Conventional Energy Development Corporation Limited, (NEDCAP)Nampally, Hyderabad, Rep. by its Chairman & Managing Director.

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court will be pleased toissue an appropriate Writ, order or direction more particularly one in the nature ofCertiorari by calling for the records of the 1st respondent in R.P.(SR) No.11 of 2004filed seeking review of the orders dated 25-09-2003 in O.P.NO. 262 of 2003 andquash the orders dated 21-04-2004 and 25-09-2003 and consequently direct the 2nd respondent topurchase the entire power generated by the petitioner company forthwith by enteringinto necessary agreements.

Counsel for the Petitioner:MR.B.ADINARAYANA RAO

Counsel for the Respondent No.1: MR. RAGHURAM

Counsel for the Respondents: SMT.M.VINOBHA DEVI

The Court at the stage of admission made the following ORDER:

The petitioner had established a power generating unit with the approval of theconcerned agencies. It entered into Power Purchase Agreement with the secondrespondent. The capacity of its unit is 4 MWs and it is running with the Biomassfuels. It intended to enhance its capacity from 4 MWs to 6 MWs. For this purpose, itsubmitted necessary proposal before the Non-conventional Energy Development Corporation Limited (NEDCAP).

The petitioner contends that the NEDCAP cleared its proposal through its letterdated 02-12-2002. Based on that, the petitioner approached the Andhra PradeshState Electricity Regulatory Commission (APSERC) for appropriate orders in thematter of issuing a direction to the second respondent to revise the Power PurchaseAgreement. The APSERC rejected the application of the petitioner through its orderdated 25-09-2003 in O.P.No.262 of 2003.

The petitioner submitted an application for review, which was numbered as R.P.(SR).No.11 of 2004. It was urged that some of the important aspects such as thecommunications, which emerge from NEDCAP, were not considered by theAPSERC while passing orders in O.P.No.262 of 2003. The APSERC dismissed thereview application through its order dated 21-04-2004. The same is challenged inthis petition.

Learned counsel for the petitioner, Sri B.Adinarayana Rao, submits that in thereview, the petitioner specifically pleaded that it holds necessary quantity ofBiomass fuel for enhancing the capacity of the unit and the condition imposed by theAPSERC for upgradation of the capacity of the petitioner is contrary to the record and material placed before it. According to him, the plantation referred to in the orderof APSERC, has already grown and become ripe for being used as Biomass fuel.Several other contentions were also urged.

Learned Standing Counsel for the second respondent, Smt. M.Vinobha Devi, on the other hand, submits that the initial sanction in favour ofthe petitioner itself was subject to certain conditions and the present proposal doesnot accord with the same. She contends that in its original order as well as the orderpassed in review, the APSERC had taken the relevant factors into account and nointerference is called for.

After hearing the learned counsel for the parties and after perusing the materialpapers placed before this Court and in particular, the orders passed by theAPSERC, this Court is of the view that the Power Purchase Agreement between thepetitioner and the respondent is governed by the factors, which are in the realm oftwo separate agencies. So far as the mode of generation of power is concerned, it istotally within the scope of NEDCAP. The nature of fuel and the capacity ofgeneration in the particular area through that process are to be determined by theNEDCAP. The parameters of Power Purchase Agreement with particular referenceto the need of the respondent and capacity of the petitioner are to be determined bythe APSERC. While dealing with the applications or while passing the order inO.P.262 of 2003 or in the review petition, the APSERC has taken up on itself, toassess certain factors, which are totally in the realm of the NEDCAP. For example,the age of the plantation, the nature of the fuel, its utility for additional captivity etc.,are the matters exclusively within the scope of the NEDCAP, whereas, they wereextensively dealt with by the APSERC for rejecting the application of the petitioner. Itis not as if the NEDCAP had rejected the case of the petitioner and the same istaken into account by the APSERC. This Court is of the view that the matter needs tobe considered afresh by the APSERC confining itself to the requirement of therespondent to purchase additional power and fixation of the terms of the contract inthe event of enhancement of the generating capacity. As regards the other aspectsnamely, the category of Biomass, the utility of the plantation grown by the petitioneretc., are concerned, the APSERC shall have to take the opinion expressed by theNEDCAP.

In that view of the matter, the order under challenge is set aside and theAPSERC is directed to consider the matter afresh duly taking into account the opinion expressed by the NEDCAP on the application submitted by the petitioner.

The writ petition is accordingly allowed. There shall be no order as to costs.

31[st] DECEMBER, 2004.

___________________________

(L.NARASIMHA REDDY, J)

Kvni/sh

To

1 The Secretary, Andhra Pradesh State Electricity Regulatory Commission, 2nd Floor, Singareni Bhavan, Red Hills, Hyderabad. 2 The Chairman & Managing Director, Transmission Corporation of AndhraPradesh Limited, Vidyut Soudha, Khairatabad, Hyderabad.

3 The Chairman & Managing Director, Non-Conventional Energy DevelopmentCorporation Limited, (NEDCAP) Nampally, Hyderabad.

4 Two CD copies.