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Rajasthan Electricity Regulatory Commission
Petition No. RERC-245/11
In the matter of application filed for approval of draft tender document for
selection of Mine Developer-cum-Operator for extraction of lignite from Kapurdi
and Jalipa lignite mines.
Coram:
Shri Vishvanath Hiremath, Chairman
Shri Vinod Pandya, Member
Petitioner
:
M/s Barmer Lignite Mining Company Ltd.
Respondent
:
1. M/s Jaipur Vidyut Vitran Nigam, Jaipur
2. M/s Ajmer Vidyut Vitran Nigam, Ajmer
3. M/s Jodhpur Vidyut Vitran Nigam, Jodhpur
Date of hearing
:
Present
:
25.08.2014
1.
2.
3.
4.
5.
Order Date
Sh. Umesh Gupta, MD, BLMCL
Sh. Aman Anand, BLMCL
Sh. Nitesh Gangwal, Company Secretary, BLMCL
Sh. P. N. Bhandari, Advocate, Discoms
Sh. Rajesh Mathur, SE, JVVNL
:
2.9.2014
ORDER
1. Petitioner M/s Barmer Lignite Mining Company Ltd. (BLMCL), a mining entity,
has filed an application for approval of draft tender document to be issued for
selection of Mine Developer-cum-Operator for extraction of lignite from
Kapurdi and Jalipa lignite mines.
2. In the application, petitioner has submitted that:
(i)
The Petitioner had earlier filed a Petition (245/11) for Assessment of transfer
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price of lignite from Kapurdi and Jalipa lignite mines to the 1080 MW (8 x
135 MW) Thermal Power Station of M/s Raj WestPower Limited (RWPL).
The said petition was filed under regulation 12(7) of the “Rajasthan
Electricity Regulatory Commission (Terms and Conditions of
Determination of Tariff) Regulations 2009, and in consonance with the
process of determination of transfer price of lignite as outlined in the
Implementation Agreement dated 29.05.2006 executed between the
Govt. of Rajasthan and RWPL. The transfer price claimed therein was
arrived at after conducting an International Competitive Bidding (ICB)
for price discovery of the outsourcing cost of mining operations;
(ii)
Commission vide its orders dt. 17.08.2011 & 05.01.2012 had rejected the
entire process of selection of MDO and directed that a fresh ICB be
conducted for selection of the MDO. Petitioner had filed an appeal
against the Commission’s orders dt. 17.08.2011 & 05.01.2012 before the
Hon’ble Appellate Tribunal for Electricity (APTEL) and APTEL vide its
judgments dt. 8.4.2013 & 28.5.2013 rejected the appeal. In compliance
of the directions of the Commission and the APTEL, the petitioner is
conducting a fresh bidding for selection of the MDO.
(iii)
For this purpose, the Board of Directors of the Petitioner appointed the
Engineers India Limited (EIL), a Govt. of India enterprise to prepare the
draft tender document and constituted a committee to peruse and
give its suggestions on the draft tender document submitted by EIL.
(iv)
After
incorporating
suitable
modifications
based
on
the
recommendations of the committee and its own deliberations the Board
of the Petitioner has decided that the final tender documents, be
submitted to this Commission for its review and approval before calling
for bids.
(v)
In view of the above, the Petitioner is hereby submitting a copy of the
tender documents for International Competitive Bidding (ICB) for
outsourcing of lignite extraction from Kapurdi and Jalipa lignite mines for
review and approval of this Commission.
3. The matter was listed on 8.7.2014 for orders. Sh. P.N. Bhandari, Advocate
appearing for the Discoms submitted that Discoms have a preliminary
objection on the maintainability of the application and therefore some time
may be granted for filing the same. Commission accordingly granted time to
Sh. Bhandari to file his preliminary objection and also to file comments on the
bid document by 11.8.2014.
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4. In order to decide the preliminary objections raised on behalf of the
respondents, both parties have been heard on 25.8.14.
5. It is submitted by Shri P.N.Bhandari, Advocate on behalf of Discoms that the
interim application filed by the petitioner is not maintainable in petition
No.245/2011 as the same has been disposed of as long back on 17.8.11 and
the same has attained finality as Hon’ble APTEL has dismissed the appeal filed
against the same on 8.4.13. Once the order of this Commission dt. 17.8.11 has
attained finality, no further applications in the disposed of petition could be
filed by the petitioner. Shri Bhandari, Advocate also submitted that they have
no objection if petitioner files a fresh petition for approval of the bidding
documents separately and this Commission considering the same.
6. In reply, it was submitted on behalf of the petitioner that the contention of the
respondents that the petition has been finally disposed of is not correct.
Reading of the order in the said petition dt. 17.8.11 makes it clear that the
matter was not disposed of finally. When matter has not been finally disposed
of, petitioner is entitled to file an application. It is submitted by the petitioner
that present application for approval of bidding document is not a fresh
petition but filed only in compliance of the order passed by this Commission for
carrying out the fresh bidding as directed by this Commission.
7. We have heard the arguments addressed by both the parties on the
preliminary issue raised by Shri Bhandari, Advocate appearing for the
respondents.
8. Before deciding the preliminary issue, we deem it proper to look into the very
order by this Commission on 17.8.11. The said order read as under :
“24. Decision of the Commission on various issues are summarized as under:
(1) ----------------------------------------.
(2) ------------------------------------------.
(3) -------------------------------------------------.
(4) The bidding undertaken for outsourcing of lignite extraction is not in
accordance with earlier order dated 19.10.2006. Therefore, the variable
cost of lignite transfer price endorsed by the independent person cannot
be accepted and as a result, lignite transfer price is not determinable.
(5) Interim tariff, therefore, also cannot be worked out for want of fuel cost.
(6) A fresh bidding for outsourcing would need to be undertaken as per
directions given in 2006 order.
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(7) The outsourcing bidding may be undertaken only for Kapurdi, as Jalipa
mines would become operational not earlier than FY 13-14, as indicated in
the petition.
(8) For bidding, BLMCL is advised to give due consideration to short term
bidding in case such a tender is likely to lead to lower cost, as discussed
earlier. A supplementary petition would need to be filed after completion of
the said bidding for determination of lignite transfer price.
(9) The petitioner BLMCL could work out the lignite extraction cost based on
lignite mines being operated by RSMML with due adjustment in respect of
stripping ratio, depth of mine and variation in other relevant parameters
and furnish that to the Commission for working out lignite transfer price for
the interim period till the rate, based on transparent bidding for outsourcing,
gets finalised.
(10) Further hearing in the matter would be fixed based on option as emerges
in respect of lignite transfer price or as deemed appropriate. -------------------.”
9. From careful reading of the above order in particular paras 6 to 10, it is clear
that the petition No.245/2011 has not been finally disposed of on dt.17.8.11 as
contended on behalf of the respondents. The order contemplated further
orders to be passed by the Commission in the matter. Merely because the
appeal filed against the said order has been dismissed by the Hon’ble APTEL
does not change the colour of the order. Order remains as it is.
10. From the records it is also noticed that the order dt.17.8.11 has not been
considered by the parties as disposed of once for all. On the contrary,
applications dated 6.9.2011, 25.11.2011 filed by the petitioner were
entertained and considered by the Commission and necessary orders were
passed after hearing the respondents in each application. The respondents
significantly did not raise any objection to those applications.
11. Considering the wordings of the order dt.17.8.11 and subsequent orders by this
Commission, we are of the view that the present application is maintainable.
Therefore parties are directed to address the arguments on merits of the
application on the next date i.e. 9.9.2014 and Commission will pass
appropriate orders in accordance with law thereafter.
(Vinod Pandya)
Member
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(Vishvanath Hiremath)
Chairman

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