AJMER VIDYUT VITARAN NIGAM LIMITED THROUGH ITS CMD HATHIBHATA POWER HOUSE ROAD Vs. HINDUSTAN ZINC LIMITED (HZL) YASHAD BHAWAN, UDAIPUR (RAJ )

JUDGEMENT

(1.) By this Miscellaneous appeal under Section 37 of the Arbitration & Conciliation Act, 1996 (hereafter 'the Act of 1996') a challenge has been laid to the judgment dated 25-2-2017 passed by the Commercial Court dismissing the appellant AVVNL's (hereafter 'AVVNL') objections under Section 34 of the Act of 1996 to the award dated 25-8-2007 passed by the sole Arbitrator appointed by the Rajasthan Electricity Regulatory Commission Jaipur (hereafter 'the Commission') vide order dated 12-2-2007 purporting to exercise its power under Section 4, 94, and 158 of the Electricity Act, 2003 (hereafter 'the Act of 2003') read with clause 30 of the Rajasthan Electricity Commission terms and Conditions of (open access) Regulations, 2004 (hereafter 'Regulations of 2004') .

(2.) The necessary facts relevant to adjudication of the appeal are that the respondent Hindustan Zinc Limited (hereafter 'HZL') has four high tension Electricity Connections for its units at Chanderiya, Debari, Aghucha and Dariba for which four contracts with AVVNL obtain for purchase of electricity. HZL also set up a captive power plant (hereafter ' CPP') of 154 MW (2x77 MW) at Chanderiya, which was commissioned in February, 2005 and synchronized with the Rajasthan Vidyut Prasaran Nigam Limited Grid (hereafter 'the RVPNL') . Short term open access to transmission and distribution systems of RVPNL and AVVNL for electricity generated at the CPP was sought under the Regulations of 2004 framed under Sections 42(2) and 181 of the Act of 2003. Requisite permission for open access to the transmission system was granted by RRVPNL on 28-1- 2005 and open access thereafter obtained under agreement dated 11-3-2005. HZL also entered into three open access agreements with the AVVNL on 10-3-2005 for wheeling of power from its CPP on AVVNL's distribution system. The open access capacity allocation agreement between AVVNL and HZL was for Rampura Aghucha- 20000 KW, for Debari-15000 KW and for Dariba-5000 KW. Open access commenced 24-3-2005 and the power generated by the respondent HZL at its CPP after meeting the requirements of its industrial unit at Chanderiaya was injected at 132 KV and 220 KV grid substations at Chittorgarh from where it was transmitted on RVPN's transmission system and supplied to respondent HZL's units at Aghucha, Debari and Dariba through AVVNL's distribution lines. Under the open access agreements dated 10-3-2005 between AVVNL and HZL it was agreed that charges for existing connections for the sanctioned contract demand of HZL as a Discom consumer and charges as open access consumer would be governed by the tariff and regulatory order/s in force from time to time. The agreements specifically provided for daily scheduling of injection and drawl for each 15 minutes time block. It was also agreed that Availability Base Tariff (ABT) complaint meters capable of recording deviation from schedules of the generating system station contracted by open access consumer for supplying/ injection open access power were to be provided at injection point. Other salient features of the agreement dated 10-3-2005 relevant for this miscellaneous appeal were as under:-

(3.) On the basis of open access agreements dated 10-3-2005, as mutually agreed the AVVNL billed HZL as per the scheduled/ actual injection and scheduled/ actual drawl under open access and contract demand. However for want of requisite data and software no specific amounts were indicated as UI charges for the mismatch of scheduled and actual drawls simultaneously with other associated charges payable by HZL under the agreements. Instead AVVNL deducted 10% of the energy injected by HZL under the agreements from its CPP towards unscheduled interchange charges as leviable under the agreement dated 10-3-2005. These rule of thumb deductions pending finalization of unscheduled interchange pricing mechanism by the Commission under clause 20 of the Regulations of 2004 aggregated to Rs.9.43 crore for the period April, 2005 to December, 2005.