9.24 Mr Buddy Ranganadhan, the counsel for the M/s BLA, vehemently submitted that the various provisions of the MoU, IA and PPA make it clear that the State of MP and its nominee MPPMCL guaranteed purchase of only 30% capacity and 5% energy from M/s BLA’s generating station and that M/s BLA is free to deal with the balance capacity of its plant is any manner it so chooses. He emphasized that the term “IPP” is missing from the Act, Rules, MoU, I.A. and the PPA. On a perusal of the MoU, IA and PPA, we are inclined to agree with this view. As we see, the MOU, IA etc don’t use the term “IPP” or record that any such representation was made by M/s BLA. A power plant cannot be expected to operate only at 35% of its capacity and a generating company is required to find procurer(s) of its balance capacity. If such procurer(s) satisfy the twin-test under Rule 3, the generating station or a unit thereof, as the case may be, will qualify as a Captive Generating Plant. In our view, it could not make any difference if the generating company has a long term PPA or not. As observed above, there is nothing in the Act or Rules which prohibits a generating station from subsequently acquiring the status of a CGP. Merely because the generating company has a long term PPA, does not take away the captive status of the power plant or a unit thereof if the twinconditions under Rule 3 are satisfied. It is well permissible for a power plant to qualify as a CGP and simultaneously fulfill its obligations under a long term PPA with a distribution licensee. There is nothing in the Act or the Rules which prohibits such a situation. Section 9 of the Act in fact
