Major APTEL Relief For Maharashtra Wind Developers

In an order marked as much by the final order as adverse comments and notings on two key Maharashtra government undertakings, namely MSEDCL and MEDA, APTEL (Appellate Tribunal for Electricity) has provided relief to multiple wind developers in the state. In doing so, APTEL has also seen fit to note that even MERC (Maharashtra Electricity Regulatory Commission) erred in it’s last order on the same issue to an extent. The order dated August 18 was published on the weekend.

The Issue:

APTEL had clubbed together multiple appeals filed by WTG’s/WPP’s (wind turbine generators/wind power producers) versus the Maharashtra undertakings, besides appeals by MSEDCL itself that was contesting even the marginal relief granted to the developers by MERC.

Tracing it’s genesis back to 2014, when the majority of the developers involved commissioned their wind farms, the key issue here was the refusal of MSEDCL to sign APAs (Energy purchase agreements), citing change in policy after 2015. However, with MSEDCL playing a key role right upto the commissioning stage pre 2015, APTEL did not find merit in its argument.

Another issue raised, of delays in the registration of the projects post the new policy, where an added requirement of registration with MEDA had been added, APTEL again found fault with the delays at MEDA end, disagreeing with MERC That the developers were ‘equally responsible’. The process, which took upto 4 years for most of these developers, was blamed on bureaucratic lethargy by APTEL.

APTEL Judgement:

Taking a dim view of MSEDCL’s contentions, and its clear attempts to delay and even misled, the APTEL judgement was clear.

(a) MSEDCL is directed to execute forthwith EPAs with Bothe Windfarm Development Pvt Ltd., Khandke Wind Energy Private Limited, Lalpur Wind Energy Private Limited and WinIndia Ventures Pvt. Ltd. respecting wind turbine generators which are subject matter of the present cases, such EPAs to be made effective from the respective dates of submission of application for registration with MEDA, reference being made in this regard to the registration certificates issued by MEDA;

(b) MSEDCL will be obliged to pay to the respective WPPs compensation equivalent to the average power purchase cost from the date of COD as prevailing at the time of commissioning Appeal Nos. 119, 125, 132, 193, 194 & 227 of 2020 Appeal Nos. 226 & 227 of 2021 and 269 of 2022 Page 62 of 63 of the respective projects and at generic tariff prevalent on the date on which the EPA is to become effective in terms of the above direction for the supply injected by the WPPs, the said supply/procurement being regularized, post facto in terms of the EPAs which have been directed to be executed as above, the liability on this account to be discharged by MSEDCL against invoices that shall be raised by the concerned WPPs; and

(c) MSEDCL shall restore the supply of electricity of the appellant WPPs, wherever the same has been disrupted, on the basis of impugned decisions without any delay.

The judgement, while explanatory, wouldn;t be complete without quoting from the final para of the APTEL order.

To quote the APTEL judgement, “We have found the action of MEDA and MSEDCL remiss. We are particularly disturbed over the fact that MSEDCL made an attempt to mislead this Tribunal by misrepresenting the facts. Its endeavor appears to have been to gain wrongfully at the cost of the WPPs which cannot be approved of, it being in the teeth of avowed objectives of the Electricity Act which mandates, inter alia, balancing of the interest of the consumers at large and recovery of cost of electricity in a reasonable manner besides encouraging competition, optimum investment as indeed promotion of generation of electricity from renewable sources of energy. Having invited entrepreneurs to make investments under the government policy, encouraging them to set up WTGs, denial of formal contractual arrangement constitutes an attempt to cause wrongful loss which adds the element of colorable exercise of  power. We condemn this approach but refrain from imposing any costs on this account in the hope that such liberties will not be taken in future”.