Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5684 OF 2021
UTTAR HARYANA BIJLI VITRAN
NIGAM LIMITED AND ANOTHER ...APPELLANT(S)
VERSUS
ADANI POWER (MUNDRA) LIMITED
AND ANOTHER ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. The present appeal challenges the judgment and order
th
dated 30 June 2021, passed by the Appellate Tribunal for
Electricity, New Delhi (hereinafter referred to as “APTEL”) in
Appeal No. 358 of 2019, thereby dismissing the appeal filed
by the Uttar Haryana Bijli Vitran Nigam Limited and Dakshin
Haryana Bijli Vitran Nigam Ltd. (hereinafter referred to as
“Haryana Utilities”), appellants herein, and maintaining the
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judgment and order dated 13 June 2019 passed by the
Central Electricity Regulatory Commission (hereinafter
referred to as “CERC”) in Petition No. 251/MP/2018.
Signature Not Verified
Digitally signed by
Narendra Prasad
Date: 2023.04.20
11:59:45 IST
Reason:
2. The facts, in brief, giving rise to the present appeal are
as under:
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Haryana Utilities had entered into two Power Purchase
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Agreements (for short, “PPA”) dated 7 August 2008 with the
first respondent-Adani Power (Mundra) Limited (hereinafter
referred to as “AP(M)L”) for a contracted capacity of 1424 MW
from the generating Units 7, 8 and 9 established by AP(M)L in
the State of Gujarat on the terms and conditions contained in
the said PPAs. The said PPAs were entered into between
Haryana Utilities and AP(M)L in pursuance to a Tariff Based
Competitive Bidding Process initiated by the Haryana Utilities
under Section 63 of the Electricity Act, 2003 as per the
guidelines notified by the Central Government.
3. AP(M)L filed a petition being Petition No. 155/MP/2012
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on 5 July 2012 seeking, inter alia , relief of increase in tariff
from the quoted tariff mentioned in the bid on various
grounds. The CERC had passed orders in the said petition
nd st
on 2 April 2013 and 21 February 2014. The said orders
were challenged before the APTEL. Finally, a batch of
appeals challenging the order of APTEL reached this Court by
way of Civil Appeal Nos. 5399-5400 of 2016. This Court, in
the case of Energy Watchdog v. Central Electricity
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| Regulatory Commission and Others1 decided on 11th April<br>2017, observed thus: | ||
|---|---|---|
| “57. Both the letter dated 31-7-2013 and the<br>revised Tariff Policy are statutory documents<br>being issued under Section 3 of the Act and have<br>the force of law. This being so, it is clear that so<br>far as the procurement of Indian coal is<br>concerned, to the extent that the supply from<br>Coal India and other Indian sources is cut down,<br>the PPA read with these documents provides in<br>Clause 13.2 that while determining the<br>consequences of change in law, parties shall have<br>due regard to the principle that the purpose of<br>compensating the party affected by such change<br>in law is to restore, through monthly tariff<br>payments, the afef cted party to the economic<br>position as if such change in law has not<br>occurred. Further, for the operation period of the<br>PPA, compensation for any increase/decrease in<br>cost to the seller shall be determined and be<br>effective from such date as decided by the Central<br>Electricity Regulation Commission. This being the<br>case, we are of the view that though change in<br>Indonesian law would not qualify as a change in<br>law under the guidelines read with the PPA,<br>change in Indian law certainly would. | ||
| 58. ……….The Central Electricity Regulatory<br>Commission will, as a result of this judgment, go<br>into the matter afresh and determine what relief<br>should be granted to those power generators who<br>fall within Clause 13 of the PPA as has been held<br>by us in this judgment.” | ||
1 (2017) 14 SCC 80
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4. In pursuance to the aforesaid order passed by this
Court, AP(M)L filed a petition being Petition No. 97/MP/2017
before the CERC, claiming relief on the ground of Change in
st
Law. The CERC, vide order dated 31 May 2018, allowed the
said petition in terms of Change in Law.
5.
A review petition being Review Petition No. 24/RP/2018
was also filed by the Haryana Utilities before the CERC. The
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CERC, vide judgment and order dated 3 December 2018,
rejected the said review petition. Being aggrieved thereby, the
appellants filed an appeal before the APTEL. The APTEL, vide
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judgment and order dated 3 November 2020, dismissed the
said appeal. Challenging the same, Civil Appeal No. 4143 of
2020 came to be filed before this Court. By an order of even
date, this Court dismissed the said appeal.
6. In the meantime, the Ministry of Coal, Government of
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India (for short, “MoC”), on 22 May 2017, brought into effect
a new regime for allocation of coal under SHAKTI Policy.
Under SHAKTI Policy, the projects, which were approved
under the old regime, were entitled to continue to get supply
of 75% of the Assured Coal Quantity (for short, “ACQ”) even
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beyond 31 March 2017.
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7. Contending that there was a shortfall from 75% ACQ,
AP(M)L filed a petition being Petition No. 251/MP/2018
claiming relief for shortfall on account of Change in Law. The
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CERC, vide order dated 13 June 2019 allowed the said
claim. Being aggrieved thereby, an appeal, being Appeal No.
358 of 2019, was filed before the APTEL.
8. Three basic grounds, along with other grounds, were
raised before the APTEL. The first ground was that the
SHAKTI Policy could not be considered to be Change in Law.
The second ground was that the AP(M)L had not given a
Notice of Change in Law and, as such, was not entitled to the
benefit on the ground of Change in Law. The third ground
was with regard to award of Carrying Cost. The APTEL, vide
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impugned judgment and order dated 30 June 2021,
dismissed the said appeal.
9. Being aggrieved thereby, the Haryana Utilities have
preferred the present appeal.
10. By an order of even date, we have decided the appeals
filed by Maharashtra State Electricity Distribution Company
Limited (MSEDCL), wherein all these grounds were raised
and considered, and held against DISCOMs. The findings
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| given by the APTEL in the present appeal are identical with<br>the findings given in the judgment and order dated 28th<br>September 2020, which has been upheld by us in Civil<br>Appeal Nos. 677-678 of 2021. | |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 11. It will further be relevant to note that the present appeal<br>arises out of concurrent findings of fact arrived at by both the<br>authorities. | |||||||||||||
| 12. This Court, in the case of Maharashtra State<br>Electricity Distribution Company Limited (MSEDCL) v.<br>Adani Power Maharashtra Limited (APML) and Others2,<br>after considering the relevant provisions under the Electricity<br>Act, 2003 with regard to appointment, qualifications and<br>Members of the CEA, CERC and the learned APTEL, held that<br>these bodies are bodies consisting of experts in the field.<br>After considering various judgments on the issue, this Court<br>observed thus: | |||||||||||||
| “ | 123. | Recently, the Constitution Bench of this | |||||||||||
| Court in the case of | Vivek Narayan | ||||||||||||
| Sharma | v. | Union of India | has held that the | ||||||||||
| Courts should be slow in interfering with the | |||||||||||||
| decisions taken by the experts in the fei ld and | |||||||||||||
| unless it is found that the expert bodies have | |||||||||||||
| failed to take into consideration the mandatory | |||||||||||||
| statutory provisions or the decisions taken are |
2 2023 SCC OnLine SC 233
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| based on extraneous considerations or they | |||||||
|---|---|---|---|---|---|---|---|
| are | ex facie | arbitrary and illegal, it will not be | |||||
| appropriate for this Court to substitute its | |||||||
| views with that of the expert bodies.” | |||||||
| 13. In our opinion, the concurrent view taken by the CERC<br>& APTEL cannot be said to be a view taken in ignorance of<br>the mandatory statutory provisions nor can it be said that it<br>is based on extraneous consideration. The view also cannot<br>be said to be ex-facie arbitrary or illegal. As such, no<br>interference would be warranted in the present appeal. | |||||||
| 14. In the result, the appeal is dismissed. Pending<br>application(s), if any, shall stand disposed of. No costs. | |||||||
…….........................J.
[B.R. GAVAI]
…….........................J.
[VIKRAM NATH]
NEW DELHI;
APRIL 20, 2023
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