SEIL Energy India Limited vs Central Electricity Regulatory Commission & Ors on 31 July 2026

O R D E R

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The review petitioner M/s SEIL Energy India Limited (formerly known as Sembcorp Energy India Limited) has sought review of common judgment dated 11.04.2019 passed by this Tribunal in appeal nos.363/2017 and 16/2018. Appeal no.16/2018 had been filed by the review petitioner against the order dated 30.10.2017 passed by the Central Electricity Regulatory Commission in its petition no.240/MP/2016, whereas appeal no.363/2017 had been filed by M/s GMR Warora Energy Limited against the order dated 17.10.2017 passed by the Central Commission in its petition no.153/MP/2016.

2. A bird’s eye view of the facts in both these appeals, which are relevant for deciding the instant review petition, are that the review petitioner entered into bulk power transmission agreement for Long Term Access (LTA) on

24.12.2010 for supply of 500MW power from its super critical coal fired power plant in District Nellore, Andhra Pradesh. The Power Grid Corporation of India Limited (in short PGCIL) respondent no.2 herein, was required to operationalize the LTA by January, 2014. Since the review petitioner entered into Power Purchase Agreement (PPA) on 01.04.2013 and the two units of its power plant were commissioned on 02.03.2015 and 15.09.2015 respectively by which date LTA had not been operationalized, it applied for Medium Term Open Access (MTOA) on 30.07.2015. MTOA was granted to it by PGCIL on 10.09.2015. Subsequently, PGCIL intimated the review petitioner about operationalization of LTA on 21.06.2016. Vide letter dated 09.08.2016, review petitioner sought confirmation from PGCIL whether its MTOA had already stood terminated/downsized on account of operationalization of LTA and further asked for relinquishment of MTOA in case such termination had not taken place. However, vide letter dated 06.09.2016, PGCIL informed the review petitioner about acceptance of its request for relinquishment of MOTA and also declined the request for non- applicability of relinquishment charges in respect of relinquishment of MTOA. Therefore, PGCIL raised PoC bill for the month of August, 2016 demanding Rs.8,94,56,167/-(Rupees eight crores ninety four lakhs fifty six thousand one hundred sixty seven only) from the review petitioner towards transmission charges under the CERC (Sharing of Inter State Transmission Charges and

Losses) Regulations, 2010 (hereinafter referred to as the 2010 Sharing Regulations). Aggrieved by the decision of PGCIL to double charge it (i.e. for LTA Charges as well as MTOA relinquishment charges), the review petitioner approached the Commission by way of petition no.240/MP/2016 which was disposed of vide order dated 30.10.2017 whereby the Commission held review petitioner bound to pay relinquishment/transmission charges for the termination of MTOA. This order of the Commission was assailed by the review petitioner before this Tribunal in appeal no.16/2018.

3. In so far as M/s GMR Warora Energy Limited (appellant in appeal no.363/2017) is concerned, it had participated in the tender floated by TANGEDCO, a distribution licensee in the State of Tamil Nadu, in the year 2012 for procurement of power on Long Term basis and was declared successful bidder on 30.10.2013 for supply of 150MW of power. Accordingly, PPA dated 27.11.2013 was executed between TANGEDCO and GMR Warora for supply of 150MW of power w.e.f. 01.06.2014 for a period of 14 years. Subsequently, GMR Warora applied to PGCIL for grant of LTA for the said quantum of 150MW in the Southern Region for onward supply to TANGEDCO. At the same time GMR Warora also applied for grant of MTOA for 150MW in Southern Region. On 27.07.2015, GMR Warora

received letter from PGCIL informing it that notional LTA was granted in pursuance to the meeting dated 15.07.2015. The LTA was for a period from 01.04.2015 to 30.09.2028.

4. On 24.07.2015 GMR Warora received a letter from PGCIL asking it to open a Letter of Credit of Rs.901.03 lakhs with respect to the MTOA dated 22.07.2015. Thereafter, MTOA agreement was executed by GMR Warora with PGCIL on 04.08.2015. In pursuance to the grant of LTA dated 22.07.2015, GMR Warora executed an LTA agreement dated 11.08.2015 with PGCIL. Vide letter dated 18.08.2015, PGCIL informed GMR Warora that LTA was expected to be operationalized by October, 2015 subject to fulfilment of conditions mentioned in the intimation for grant of LTA and payment of relinquishment charges corresponding to 150MW MTOA. Thereafter, PGCIL further informed GMR Warora that LTA would be operationalized w.e.f. 22.01.2016 and also rejected its request for not claiming relinquishment charges towards stoppage of MTOA. Vide letter dated 09.06.2016, PGCIL raised a demand upon GMR Warora towards payment of Rs.2,14,71,750/- as relinquishment charges for closure of MTOA dated 22.07.2015. Aggrieved by the same, GMR Warora approached the Commission by way of petitionno.153/MP/2016 which was dismissed by the Commission vide order dated 17.10.2017. This order of the Commission was impugned by GMR Warora in appeal no.363/2017.

5. As already noted hereinabove, both these appeals were disposed of by this Tribunal vide common judgment dated 11.04.2019, which is under review, thereby affirming the impugned orders dated 17.10.2017 and 30.10.2017 of the Central Commission. The said judgment of this Tribunal was assailed by the review petitioner in the Hon'ble Supreme Court by way of Civil Appeal No.5169/2019 which came to be dismissed vide order dated 15.07.2019. However, liberty was given to the review petitioner to approach this Tribunal for non-consideration of any issue raised by it in the said judgment dated 11.04.2019 and also the finding recorded in the same that review petitioner had agreed to pay the relinquishment charges. The said order of the Hon'ble Supreme Court is extracted hereinbelow: - “ORDER Having heard learned counsel for the appellant and on perusing the relevant material, we are not inclined to interfere. The civil appeal is accordingly dismissed.

However, if the appellant is aggrieved by the non- consideration of any issue raised by it and the finding recorded by the Appellate Tribunal for Electricity that the appellant had agreed to pay the relinquishment charges is factually incorrect it will be open for the appellant to move the Appellate Tribunal for Electricity once again.”

6. Accordingly, the instant review petition has been filed by the review petitioner.

7. We have heard Shri Sajan Poovayya, learned senior counsel appearing for the review petitioner and Ms. Ranjitha Ramachandran, learned counsel for the 3rd respondent CTUIL. We have also perused the written submissions filed by the learned counsels.

8. The primary ground on which the instant review petition is founded is that this Tribunal, in the “Analysis” part of the judgment dated 11.04.2019, has considered and discussed only the facts related to the appeal no.363/2017 (filed by GMR Warora) and the facts involved in petitioner’s appeal no.16/2018 have not been referred to at all. It is argued that the review petitioner was constrained to apply for MTOA for the reason that LTA granted to it had not been operationalized by the time it entered into PPA with Andhra Pradesh discoms and two units of its power plant were commissioned whereas GMR Warora had applied for both LTA as well as MTOA simultaneously which makes its case distinct from the case of the petitioner.

9. It is further argued on behalf of the petitioner that GMR Warora had given a specific consent for payment of relinquishment charges vide its letter dated 13.01.2016 sent to PGCIL, which has been relied upon by this Tribunal

while dismissing the appeal but no such undertaking had been given by the petitioner. The submission is that the judgment under review has been rendered in the facts and circumstances unrelated to the petitioner and is based upon the undertaking/acceptance given by GMR Warora, not by the petitioner, and therefore, the same cannot be applied to the petitioner’s case.

10. Thus, it is contended that the judgment dated 11.04.2019 suffers a patent error which makes it unsustainable qua the review petitioner and calls for rectification of those factual errors.

11. The review petition is vehemently contested on behalf of the 3rd respondent CTUIL. It is argued that though there is slight variation between the facts involved in the two appeals yet that was too insignificant to be taken to differentiate the case of petitioner from that of GMR Warora. It is argued that in essence, both the petitioner as well as GMR Warora were aggrieved by levy of relinquishment charges for relinquishment of MTOA upon operationalization of LTA in their favour, which aspect has been discussed and decided in the judgment under review. It is further submitted that the fact that petitioner has not consented to pay the relinquishment charges, as was done by GMR Warora, was not relevant at all for the reason that this Tribunal has reached the final conclusion upon perusal of the relevant

regulations as well as the facts involved in the two appeals de hors any such consent given by GMR Warora.

12. It is, thus, argued that the judgment dated 11.04.2019 does not suffer from any error apparent on the face of record and the review petition merits dismissal.

Our Analysis: -

13. In both the above noted appeals, the appellants had challenged the levy of relinquishment charges on them upon relinquishment of the respective MTOAs when LTA granted in their favour were operationalized by the 2nd respondents. However, there appears clear distinction between the facts of the two appeals even though the relief claimed was identical.

14. Perusal of the judgment under review does reveal that it notes the facts involved in appeal no.16/2018 (filed by petitioner herein) and the contentions of the appellant in Paragraph nos.3.2 to 3.26. The submissions of the petitioner’s counsel have been noted in Paragraph nos.4.1 to 4.22. However, in Paragraph no.6.0 which precedes the “Consideration and Analysis” part of the judgment, this Tribunal has observed that the issues/facts as well as the submissions in appeal no.363/2017 alone are

being taken up for the sake of brevity. We find it apposite to extract the said Paragraph of the judgment hereunder: - “6.0 The issue and facts of the case and the submissions of the Appellant and the Respondents in Appeal No. 363 of 2017 are similar to that in Appeal No. 16 of 2018, except for the dates of various orders and, therefore, for the sake of brevity we shall take up the issue and facts of the case and the submissions of Appeal No. 363 of 2017 and, therefore, a common judgment is being rendered.”

15. In the “Consideration and Analysis” part of the judgment, the Tribunal has referred to the relevant regulations i.e. CERC Open Access Regulations, 2004 under which the concept of LTA and STOA was evolved as well as the CERC Open Access Regulations, 2009 wherein the concept of MTOA evolved. Thereafter, in Paragraph 7(vii), Regulation 24 of the CERC Open Access Regulations, 2009 has been extracted which makes provision for relinquishment of MTOA.

16. Subsequent Paragraph nos.7(viii), 7(ix), 7(x) and 7(xi) of the judgment are very material and are extracted herein below: -

“viii) In the meeting for processing of LTA and MTOA applications held on 15.7.2015, the Appellant requested for grant of MTOA as per the application made in the month of November, 2013 and it would relinquish MTOA rights and pay the applicable relinquishment charges in line with the Commission’s regulations as and when the LTA for the application made in December, 2013 is operationalized. Relevant portion of minutes of meeting dated 15.7.2015 is extracted as under:

“11.0 CTU stated that GMR EMCO Energy Ltd. has applied MTOA for 150 MW in Nov, 2013 and also applied LTA for 150 MW in Dec, 2013 and enclosed same PPA in both the referred applications. Towards this, the representative of GMR stated that as per the directions given in the CERC order, the applications shall have to be processed sequentially i.e. the MTOA application of Nov, 2013 shall have higher priority than the LTA application received in Dec, 2013. He accordingly requested that MTOA may be granted as per their applications made in the month

of Nov‟2013 and they shall relinquish MTOA rights and pay the applicable relinquishment charges in line with the CERC regulations as and when the LTA for the application made in Dec ‟2013 is operationalized.”

ix) The liability to bear charges for relinquishment of MTOA under Regulation 24 was also a condition of the LTA intimation dated 22.7.2015 issued by PGCIL which contained the following condition:

“As decided in the meeting held on 15.7.2015 for processing of pending LTA & MTOA applications received in Nov' 13 & Dec' 13, the above grant of LTA shall not be operationalized until the earlier granted MTOA of 150 MW for the same PPA against the application made in Nov' 13 is relinquished.”

x) The Appellant vide its letter dated 13.1.2016 requested PGCIL to operationalize 150 MW LTA by foreclosing the corresponding 150 MW under MTOA and gave consent for payment of relinquishment charges as per the

applicable regulations, rules and guidelines. The said letter is extracted as under:

“We are in receipt of your letter dated 30th December, 2015 (Ref No. 8 above) received by us on 08.01.2016, wherein you had sought our consent for payment of relinquishment charges prior to operationalization of the LTA of 150 MW. We would like to reiterate that vide our letter dated 17th December, 2015 we had only sought for conversion of our MTOA of 150 MW to LTA of 150 MW for purpose of meeting our commitment for supply of power to TANGEDCO on long term basis. As such there is no relinquishment of open access capacity of 150 MW per se but the same capacity which is presently under MTOA will get converted to LTA. We will therefore, continue to utilize and seek scheduling of 150 MW in accordance with extant rules and regulations. Your reliance on Regulation 24 of the CERC Regulations for connectivity and open access 2009 is, therefore, misplaced and not applicable as there is neither any relinquishment of the capacity allocated to us nor will PGCIL suffer any loss as we will continue to avail open access of 150 MW.

We would like to draw your kind attention to our earlier letter dated 30th Oct‟‟15 cited at 6 above under numbered para 2 our MTOA in existence as on that date of operationalizing the LTA, may be short closed for the balance period of grant”. This in our view suffices the requirement of prior notice for foreclosure of MTOA especially in the circumstance in the instant case where the same transaction of dispatch would be converted to LTA.

In view of the above, it is requested to immediately operationalize the LTA of 150 MW by closing the corresponding 150 MW under MTOA.

Further as required by you vide your letter dated 30th December, 2015 we consent to payment of any relinquishment of charges as per applicable regulations, rules and guidelines.”

xi) The grant of MTOA to November, 2013 application and grant of LTA to December, 2013 application was made with the consent of the Appellant and with the clear

understanding that whenever the LTA got operationalized for full quantum, the MTOA was to be relinquished along with payment of relinquishment charges.”

17. Concededly, none of these facts or events referred to in these Paragraphs of the judgment are related to the review petitioner herein. These are unique to the appeal filed by GMR Warora. Neither had the petitioner made any statement in the meeting dated 15.07.2015 that it would pay relinquishment charges in line with CERC Regulations for relinquishment of MTOA nor had it sent letter dated 13.01.2016 to PGCIL giving its consent for payment of relinquishment charges as per applicable regulations.

18. On the basis of these facts, which relate to GMR Warora alone, this Tribunal has observed in Paragraph 7(xi) that grant of LTA and MTOA was made with the consent of the appellant and with clear understanding that whenever the LTA got operationalized for full quantum, the MTOA was to be relinquished along with payment of relinquishment charges.

19. It is true that the Paragraphs 7(xii), 7(xiii) and 7(xiv) this Tribunal has referred to Regulation 24 to say that the Regulation is couched in absolute terms and does not admit any interpretation which exempts an MTOA

customer from payment of relinquishment charges if the capacity covered under MTOA is utilized for LTA. This, at best, can be construed as an additional ground for rejection of the prayer of the appellant in the appeal.

20. The fact remains that factual context in which the petitioner had filed the appeal no.16/2018 as well as the submissions made by its counsel have been totally overlooked in the “Analysis” part of the judgment under review and the judgment has been rendered only upon consideration of the facts involved in appeal no.363/2017. This Tribunal clearly appears to have been influenced by the facts/circumstances noted in Paragraphs 7(viii) to 7(xi) which have been extracted hereinabove, in dismissing the appeals. Undisputedly, these facts/circumstances are nowhere related to the case of petitioner in appeal no.16/2018.

21. We are, thus, satisfied that a patent and glaring mistake has occurred in the judgement dated 11.04.2019 which not only undermines its soundness but also has resulted in serious miscarriage of justice. The error is very material and stares in the eye, which is not only difficult but impossible to ignore. This is a fit case in our opinion where the power of review must be exercised to correct the patent mistake in the judgement under review. There is no escape from the conclusion that the facts and circumstances upon

which the judgement dated 11.04.2019 has been rendered are not borne out from the record of appeal no.16/2018 and therefore, it needs to be corrected.

22. We may note here that we would be failing in our duties and would be perpetuating the glaring mistake in case we don’t review the judgement dated 11.04.2019 by making much needed corrections in it. To rectify in the compulsion of judicial conscience. In saying so, we derive strength and support from the wise and inspiring words of Justice Bronson in Pierce Vs. Delameter 1 NY3 (1847), “a judge ought to be wise enough to know that he is fallible and therefore ever ready to learn; great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead; and courageous enough to acknowledge his errors”.

23. Thus, we have no hesitation acknowledging that this Tribunal has erred in dismissing the appeal no.16/2018 of the review petitioner vide common judgment dated 11.04.2019 along with appeal no.363/2017 upon considering the facts and circumstances related to appeal no.363/2017 alone. The said judgment dated 11.04.2019 is manifestly based upon misconception of facts vis-à-vis the review petitioner herein and thus suffers from an error apparent on the face of record.

24. Accordingly, we allow the review petition and set aside the judgment dated 11.04.2019 qua the review petitioner herein. We make it clear that the said judgment would remain in force qua M/s GMR Warora, the appellant in appeal no.363/2017.

25. The appeal no.16/2018 be now listed for hearing on 21.08.2026.

Pronounced in the open court on this the 31st day of July, 2026.

(Virender Bhat) Judicial Member (Seema Gupta) Officiating Chairperson

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REPORTABLE / NON-REPORTABLE

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