Microsoft word - peitonst no 106-2009 & 130-2009

CENTRAL ELECTRICITY REGULATORY COMMISSION
NEW DELHI
Coram
1. Dr. Pramod Deo, Chairperson
2. Shri R.Krishnamoorthy, Member
3. Shri S.Jayaraman, Member
4. Shri V. S. Verma, Member
Petition No 106/2009
(Suo-motu)

In the matter of

Maintenance of Grid Discipline – Non -compliance of provisions of the Indian
Electricity Grid Code by Tamil Nadu Electricity Board.
Petition No 130/2009
(Suo-motu)
In the matter of

Maintenance of Grid Discipline – Non -compliance of provisions of the Indian
Electricity Grid Code by Tamil Nadu Electricity Board during May 2009

And in the matter of

Tamil Nadu Electricity Board,

The following were present:

1. Shri P Soma Sundaram, Advocate, TNEB 2. Shri V Chandran, TNEB 3. Shri. V. Suresh, SRLDC, 4. Shir. M. L. Batra, SRLDC (Date of Hearing 30.7.2009)
On receipt of report from the Southern Regional Load Despatch Centre (SRLDC), the Commission, vide its order dated 12.6.2009 in Petition No. 106/2009 (suo motu) directed the respondent to show cause as to why it should not be held guilty of contravention of and non-compliance with the provisions of clauses 5.4.2 and 6.4.7 of the Indian Electricity Grid Code (Grid Code) for over- drawl of electricity at frequency below 49.2 Hz. The respondent was also directed to explain as to why penalty under Section 142 of the Electricity Act, 2003 (the Act), be not imposed on it for over-drawl of electricity as aforesaid during each time-block during the period 10.4.2009 to 10.5.2009. A similar notice dated 2.7.2009 for over-drawal during the period 25.5.2009 to 31.5.2009 was also issued in Petition No. 130/2009 (suo motu). This notice in addition pointed out violations by the respondent of clause (1) of Regulation 7 of the Central Electricity Regulatory Commission (Unscheduled Interchange charges and related matters) Regulations, 2009 (the UI charges regulations) by over-drawing in excess of 12% of its scheduled drawal or 150 MW (whichever is lower) when frequency was below 49.5 Hz. The necessary details of over-drawals were The respondent filed its separate replies (dated 26.6.2009 and 21.7.2009) to the show cause notices. We have gone through these replies and heard the learned counsel of the respondent and its representative. Before we deal with the respondent’s submissions on merits, we propose to consider certain legal issues raised by the respondent in the replies to the According to the respondent, sub-section (5) of Section 29 of the Act provides that any dispute between the Regional Load Despatch Centre (RLDC) and the State transmission licensee is to be referred to the Commission. Therefore, it has been urged, the Commission is not empowered under the law to initiate suo motu proceedings under Section 142 of the Act for alleged violation of the Grid Code, particularly so when Section 29 of the Act specifically provides for penal action for violation of directions of the Regional Load In our opinion the objection is without any substance. The proceedings were initiated against the respondent on the ground of contravention of provisions of the Grid Code specified by the Commission in exercise of powers under Section 178 of the Act. By virtue of provisions of Section 142 of the Act, the Commission is empowered to take appropriate proceedings either on the basis of a complaint made by any person affected by the non-compliance of the Act, rules or regulations made thereunder or by the Commission on its own. Non- compliance of the directions of the Regional Load Despatch Centre made punishable under sub-section (6) of Section 29 of the Act is a separate and distinct offence. Therefore, even though the proceedings have been started based on reports from the Southern Regional Load Despatch Centre, these proceedings are maintainable under Section 142 of the Act as subject matter of the show cause notices essentially relate to contravention of the provisions of the Grid Code, which is statutory in nature. The respondent has further submitted that competency of the Commission to initiate suo motu proceedings is sub judice in the Writ Petition No 10384/2009 before the Madras High Court who has issued a stay order in an earlier proceeding taken against the respondent under similar circumstances. In view of this, the respondent has pleaded, it is appropriate that the Commission defers the proceedings till a final verdict is given by the Hon’ble High Court. It bears notice that the Civil Writ Petition No 10384/2009 has been filed by the respondent before Madras High Court against the Commission’s order dated 8.5.2009 in suo motu proceedings in Petition No. 81/2009. The Hon’ble High Court has passed the order dated 15.6.2009 as under - “Writ petitions under Article 226 of the Constitution of India praying that in the circumstances stated therein and in the respective affidavits filed therewith the High Court will be pleased to (i) issue a Writ of Certiorari calling for the entire records of the respondents relating to the order dt 8.5.2009 in suo motu petition No. 81/2009 and quash the same [in WP. No/ 10384/09] and (ii) Stay all further proceedings pursuant to the order of the respondent dated 8.5.2009 in Suo Motu Petition No. 81/2009 [ in MP. No. 1/09] pending WP. No. 10384/09 respectively. Order : These petitions coming on for orders upon perusing the petitions and the respective affidavits filed in support thereof and upon hearing the arguments of M/s. P. Srinivas, Advocate for the petitioner in both the petitions, the court made the following order:- A bare reading of the said order reveals that it is based on the circumstances stated in the writ petition and the affidavits of the respondent. The stay order of the Hon’ble High Court cannot be said to be an order in rem. In fact, no suggestion to that effect is made in the reply by the respondent. And nothing was so suggested at the hearing. We are satisfied that the interim order of the Hon’ble High Court or the fact of pendency of the writ petition do not, in any manner, interdict the Commission in discharge of its statutory responsibilities of It has been next urged by the respondent that clauses 5.4.2 and 6.4 of the Grid Code whose violation has been alleged in the show cause notices, call upon the utilities to “endeavour” to restrict their net drawal from the grid. The argument made is that so long as the respondent attempted to curtail over-drawal – it is the case of the respondent that it made efforts to curtail over-drawal - and, therefore, it cannot be proceeded against. The argument made is too naïve to merit any serious consideration. For proper understanding it may be appropriate to have a look at the statutory provisions and accordingly they are extracted hereunder - “5.4.2 Manual Demand Disconnection (a) As mentioned elsewhere, the constituents shall endeavour to restrict their net drawal from the grid to within their respective drawl schedules whenever the system frequency is below 49.5 Hz. When the frequency falls below 49.2 Hz, requisite load shedding (manual) shall be carried out in the concerned State to curtail the over-drawal.” 6.4 Demarcation of responsibilities ………………. 7. Provided that the States, through their SLDCs, shall always endeavour to restrict their net drawal from the grid to within their respective drawal schedules, whenever the system frequency is below 49.5 Hz. When the frequency falls below 49.2 Hz, requisite load shedding shall be carried out in the concerned State(s) to curtail the over-drawal.” Under the above extracted provisions, which are identically worded, the actions required to be taken by the utilities over-drawing electricity from the regional grid are that they are mandated to endeavour or make efforts to limit their over-drawal when frequency resort to “requisite” load-shedding when frequency is below 49.2 The purpose of the above provisions is that the frequency be restored to the normative level of 49.5 Hz. Although load-shedding is not mandatory immediately after fall of frequency below 49.5 Hz, this so when the frequency falls below 49.2 Hz as evidenced by use of the word “shall” in the second leg of the provision. The submission that the provisions of the Grid Code consciously employ the word “endeavour” and thereby the utilities concerned are required only to “attempt” to restrict over-drawal, seems to be a deliberate effort to evade The result of the above discussion is that the preliminary objections urged by the respondent on the maintainability of the show cause notices stand rejected. This leads to consideration of the respondent’s claim on merits. The submissions made on merits are generally common in the two replies filed by the 14. The respondent while seeking discharge of the notice issued under Section 142 of the Act has not denied the fact of over-drawals given in the show cause notices dated 12.6.2009 and 2.7.2009. The respondent has sought to justify its over-drawals by stating that demand increased due to extreme hot weather conditions, lack of any significant capacity addition in the State, parliamentary elections, low generation at the atomic power stations in the region due to fuel shortage, forced outages of the State and Central sector generating units, and uncertainty of wind generation which, according to the respondent, contributes 15% to 20% of peak demand during wind season. The respondent has stated that it had since 1.11.2008 taken various Load Management measures in the State which include imposition of power cut of 40% on the HT industries and commercial establishments and 20% on LT-CT industries and commercial consumers, restricting power supply to the farmers, load-shedding for 2 hours in rotation on urban and rural feeders, carrying out of tripping of additional 110 kV feeders, and procuring power round the clock from other States and through Power Exchange at a high cost. The respondent has further stated that its fair expectation of other constituents picking up their standby generation when there was fall in the regional frequency due to drop in wind generation, did 15. In its reply affidavit in Petition No. 130/2009, the respondent has urged certain additional pleas. It has been stated that NEW Grid frequency prevailed at comfortable level in many blocks during 25.5.2009 to 30.5.2009 and was even going beyond 50.2 Hz. Under these circumstances, the respondent has stated, non-availing the UI support might have pushed NEW Grid frequency beyond the operational band. the respondent has claimed to have under drawn from the grid on 28.5.2009 and 29.5.2009and that in many time blocks over-drawal was when the frequency was just hovering around 49.5 Hz. We are not impressed by the extenuating circumstances or the corrective measures narrated by the respondent. It is pointed out that there is nothing new in the pleas taken by the respondent in reply to the show cause notices .Similar pleas were taken in the past in the proceedings initiated by the Commission. The replies are generally the replica of the replies filed by the respondent in response to the earlier proceedings. Therefore, we do not intend to deal with each of these pleas in great detail. Hot weather conditions, parliamentary elections, low generation at the atomic power stations in the region are not the factors specific to the respondent. They were common to all the constituents in the region. The other constituents facing similar difficulties were entitled to draw as per the schedule. Even that was prevented because of reckless over-drawal by the respondent. We are of the considered view that these factors cannot provide valid justification for over-drawal by the respondent at the cost of other regional constituents. Under the extreme situations of power scarcity, adherence to the schedule was the primary responsibility of the respondent as over-drawal did not provide any solution to overcome shortage situation. Drawal of other constituents’ share particularly when frequency was low, cannot be viewed leniently under any circumstances. The respondent reportedly took some measures to curtail its demand. These measures proved totally inadequate for the reason that over-drawals continued at frequency which could be termed as sub-optimal. Thus, over-drawal under the circumstances does not absolve the respondent of its responsibility to adhere to the statutory provisions or a licence to flout them with impunity. We wish to emphasize that neither the Grid Code nor the UI charges regulations provide for any leniency in case of over-drawal under the circumstances relied upon by the respondent. Based on the above, we hold the respondent guilty of contravention of and non-compliance with the provisions of clauses 5.4.2(a) and 6.4.7 of the Grid Code during the periods 10.4.2009 to 9.5.2009 and 25.5.2009 to 31.5.2009.Besides, the respondent is found guilty of violation of clause (1) of Regulation 7 of the UI charges regulations also during 25.5.2009 to 31.5.2009. The next question is regarding the penalty to be levied on the respondent after it has been found guilty of contravention of and non-compliance with the provisions of the Grid Code and the UI charges regulations. According to the respondent, even in the proceedings under Section 142, penalty is to be imposed only after considering the conditions specified in Section 144. The respondent’s contention that the conditions prescribed in Section 144 of the Act are to be considered in the proceedings before imposition of penalty under Section 142 is manifestly untenable. Section 144 applies to the adjudication proceedings before the adjudicating officer appointed under Section 143 of the Act for inquiry into instances of default or non-compliance of directions of the Regional Load Despatch Centre issued under Section 29 of the Act. Inasmuch that the present proceedings by the Commission are under Section 142, strictly there is no need to have any recourse to Section 144. However, at the instance of the respondent we propose to examine applicability of the principles provided in Section 144 of the Act to the facts of the proceedings In terms of Section 144, the adjudicating officer appointed under Section 143 of the Act is enjoined to have due regard to the following factors while adjudicating on the quantum of penalty, namely, the amount of disproportionate gain or unfair advantage, wherever
quantifiable, made as a result of the default;
In the past, the respondent has been found guilty of contravention of and non-compliance with the provisions of the Grid Code on several occasions. Proceedings in Petitions No 137/2008 and 81/2009 are just two instances of violation of the Grid Code. Thus, the contraventions for which the present proceedings have been taken are of repetitive nature. The respondent has certainly been beneficiary of the defaults committed. The acts of the respondent have caused wrongful loss to other constituents in the region and their consumers inasmuch as they have been deprived of the opportunity to supply power to their own consumers. However, it may not always be possible to quantify with any degree of exactitude the extent of unlawful advantage drawn by the respondent on account of such over-drawals. But the respondent has certainly drawn the advantage since otherwise it would not have resorted to over- drawals of high magnitude, the details of which are given in the show cause notices. Thus, even though it is not necessary to invoke provisions of Section 144 in the present proceedings, their application at the insistence of the respondent does not come to its rescue. . The respondent has further submitted that imposition of maximum penalty of Rs. one lakh multiplied by the number of time blocks is patently illegal and The respondent’s submission in this regard is not supported by any rationale and lacks any legal force. For the purpose of grid frequency management, each day has been divided into 96 time-blocks of 15 minutes duration. In this fashion, each time-block constitutes a separate unit, Therefore, depending upon the facts and circumstances of each case, the maximum penalty prescribed under the law can be imposed separately for each contravention. For the reasons already recorded, we feel that the respondent, for the contraventions forming the basis of the present proceedings does not deserve any indulgence and penalty not less than the maximum of the penalty for each contravention will be justified. However, for this purpose, we have decided to exclude the instances of over-drawal up to 150 MW during a time-block indicated in the show cause notices.There are 335 instances of such over-drawals during 10.4.2009 to 10.5.2009 and 102 (as given in the show cause notice dated 2.7.2009) such instances during 25.5.2009 to 31.5.2009. Accordingly, we direct that penalty at the rate of Rs one lakh for each of the time-blocks listed in the Commission’s orders dated 12.6.2009 and 2.7.2009, where over-drawals were more than 150 MW (total 335+102 = 437) be imposed on the respondent. The details of such instances are contained in Annexure I and Annexure II attached to this order. The total penalty works to Rs. 4.37 crore. The penalty shall be deposited latest by 31.8.2009. With the above order, the present proceedings stand disposed. [V. S. VERMA] [S. JAYARAMAN] [R. KRISHNAMOORTHY] [DR. PRAMOD DEO]
MEMBER MEMBER
CHAIRPERSON
New Delhi, dated 21st August 2009
Annexure I
Details of over-drawals during 10.4.2009 to 10.5.2009 in excess of schedule 
by more than 150 MW.   
BLOCK NO.
Over Drawl (Avg. MW)
Annexure II
Details of over‐drawals during 25.5.2009 to 31.5.2009 in excess of schedule by 
more than 150 MW.   

Source: http://cercind.gov.in/2009/August09/Signed-Order-Pet-No-106-2009-&-130-2009.pdf