Will the TN government or the TN Electricity Regulatory Commission order an investigation?

Explosive allegations made by Adanis own lawyer could blow lid off Tamil Nadu solar scamFile image. By Vinaykumar8687 via Wikimedia Commons
news Energy Monday, February 29, 2016 - 18:18

Adani group’s proposed 648MW solar power plant in Ramanathapuram district in Tamil Nadu is in the eye of a controversy yet again, and this time, the group’s own lawyer is threatening to expose alleged regulatory and land-purchase violations by the Adani group.

In July 2015, Adani group had signed a contract with Tamil Nadu Generation and Distribution Corporation (TANGEDCO) to set up a solar power plant and supply power to the state at the rate of Rs. 7.01 per unit.

Recently the Adani group, in an unusual petition to the Madras High Court, sought to gag its own lawyer, Kabilan Manoharan of Ms KabiLaw Attorneys-at-law, after he threatened to publicize illegalities in the project unless his remuneration was increased. Taking cognizance of Adani group’s argument that all the information shared with Kabilan fell under attorney-client privilege, Justice KK Sasisharan of the HC ordered an interim injunction gagging the lawyer from speaking out against the client, noting that this was indeed prima facie blackmail by the lawyer.

Ironically, the interim order by the judge also contained the “fraudulent and illegal acts” listed out by the lawyer in his letter to Adani while seeking an increase in remuneration. In effect, all the alleged violations are now in the public domain.

Here’s a gist of the alleged violations listed out by Adani’s own lawyer, as quoted by the Madras HC order:

1. Illegal purchase of lands at the ground level.

2. Non-compliance with many regulations.

3. Illegal and fraudulent documentation submitted to meet TANGECO specifications for power-purchase agreement (PPA). The lawyer further says that it was on the basis of the PPA that loans amounting to Rs. 2300 crore were taken from IndusInd Bank, SBICaps and Standard Chartered.

4. Violation of SEBI regulations and listing agreements by non-disclosure of material information.

Interestingly, the lawyer states that “no amount of political patronage will ever be able to sweep under the carpet the illegalities, non-compliance and surreptitious circumvention of procedure in the bid to meet TANGEDCO's specification” – hinting at the fact that the project has been moving on in spite of the illegalities is due to political backing.

The question here is what was the necessity for these alleged violations? The project was a Memorandum of Understanding with the Tamil Nadu government, not a competitive bid through tender, so there were no direct competitors as such. What was the hurry to get the power-purchase agreement with TANGEDCO, possibly in violation of regulations and through fraud as the lawyer alleges?

For this, we have to go back to another controversy, which broke out in July 2015.

The Tamil Nadu Electricity Regulatory Commission had then released a suo motu order extending the ‘control-period’ for fixing the price of solar power, and one of the beneficiaries of the ‘arbitrary’ decision taken by the TNERC was the Adani group. As a result of the order by the commission, Adani group could still avail a price of Rs. 7.01 per unit, which was considered higher than the market price, since Adani was willing to sell solar power in Madhya Pradesh at Rs. 6.04.

If there was no extension of the ‘control-period’ by the TNERC, and if Adani group did not start production by March 2016 (which the group has), then they could not avail the higher price of Rs. 7.01. This was exposed through a dissent note by one of the TNERC’s own members, and questions were raised as to whether the TNERC extended the ‘control period’ to benefit Adani specifically. You can read about it in detail here.

Activists and industry observers are now raising questions as to whether the alleged fraud was to hurriedly avail higher unit prices, and are calling for an investigation.

“The TNERC has all the powers to intervene. The nature of allegations are serious, and the commission has the authority to follow up with the licensees and also summon the chairman of the TNEB and TANGEDCO officials to explain the allegations,” said S Nagalswamy, former member of the TNERC whose dissent note raised questions in July 2015. “The TNERC is being inactive and acting as an extended arm of the government.”

A sitting member of the TNERC, Akshaykumar, however told The News Minute that no such intervention is possible by the TNERC. “Unless we receive a petition from someone regarding this, we cannot act,” he said. Akshaykumar was one of the members who signed the suo motu order extending the ‘control period’ in 2015, the decision which benefitted the Adani group.

In fact, activists argue that there is no necessity for the TN government to purchase solar power at such a high rate. “They say that they are under obligation to buy solar power, which is not true. That order has not been executed yet. The ‘Renewable Purchase Obligation’ for solar power is still at 0.05% of total power procured, and TNEB is meeting it,” says Gandhi, an activist based in Chennai.

Renewable Purchase Obligation (RPO) is the obligation mandated by Central/State Regulatory Commission and is applicable to procure power from power exchange traders and through bilateral agreements. To encourage renewable power, such obligations are mandated on state-owned power companies.

Nagalswamy agrees with Gandhi on the non-requirement of the project and says, “What I don’t understand is why no one is taking up such an issue. If Adani’s own lawyer is making such allegations, then it has to be enquired.”

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