MADHYA PRADESH POWER MANAGEMENT CO. LTD. & ANR. M/S DHAR WIND POWER PROJECTS PVT. LTD. & ORS. versus M/S DHAR WIND POWER PROJECTS PVT. LTD. & ORS. on 25 July 2019

[2019] 10 S.C.R. 73

MADHYA PRADESH POWER MANAGEMENT CO. LTD. &ANR.

v.

M/S DHAR WIND POWER PROJECTS PVT. LTD. & ORS.

(Civil Appeal Nos. 9218-9219 of 2018)

JULY 25, 2019

[DR. DHANANJAYA Y CHANDRACHUD AND

INDIRA BANERJEE, JJ.]

Electricity Act, 2003: ss. 61 and 86(1)(e) – Procurement ofpower from Wind Electricity Generator – Issuance of Tariff Order –Tariff Order dated 26.03.13 prescribing rate of Rs 5.92 per unit forthe project commissioned during the period from 01.04.13 till31.03.16 – New Tariff order dated 17.03.16 whereby earlier tarifforder at Rs. 5.92 per unit reduced to Rs. 4.78 per unit, for projectcommissioned on or after 01.04.2016 – First respondent seekingbenefit of the unit rate of Rs. 5.92 fixed under the earlier tarifforder on the basis that it commissioned its project on 31.03.2016 –Appellant’s case that on the basis of the data provided, power wasinjected into the grid on or from 01.04.2016, thus, not entitled tobenefit of the unit rate of Rs. 5.92, and as such would not enter intoPower Purchase Agreement under the earlier tariff order – Writpetition by the first respondent – Allowed by the High Court –Issuance of direction to first appellant to enter into a PPA with thefirst respondent for the purchase of electricity at the rate of Rs 5.92per unit – Thereafter, the appellant revoked the certificate ofcommissioning – Review petition filed thereagainst, dismissed –Second set of writ petition, wherein the High Court stayed therevocation – On appeal, held: Project of the first respondent wascommissioned on 1 April 2016 since the SLDC data indicates theinjection of power into the grid with effect from that date – However,it would be unfair to deny to the first respondent the benefit of therate which came to be prescribed by the Tariff Order dated 17.03.16– Rate prescribed by Tariff Order of Rs 4.78 per unit was to applyduring the control period beginning from 01.04.2016 and endingon 31.03.2019 and that rate would continue to govern the life cycle

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Aof 25 years – First respondent cannot be denied a parity of treatment,as has been allowed to other projects of a similar nature whichwould be governed by the control period stipulated in the TariffOrder dated 17.03.2016 – Orders of the High Court set aside –First respondent entitled to the benefit of the Tariff Order dated17.03.2016 – Appellants to process the application of the firstBrespondent for execution of a PPA on that basis.

Partly allowing the appeals, the Court

HELD: 1.1 The Tariff Order of March 2013 stipulated thatit would be applicable to all new wind electric generation projectsCwhich were commissioned on or after 1 April 2013 for the sale ofelectricity to distribution licensees in the State. The control periodof the Tariff Order commenced on 1 April 2013 and would end on31 March 2016. The Tariff Order fixed a levelized tariff of Rs5.92 per unit for new wind energy projects to be commissionedafter the issuance of the Order for a project life of 25 years. ParaD12.30 provided that all existing projects which werecommissioned before 1 April 2013 would be governed by theterms and conditions applicable at the time of commissioning.Hence, the crucial ingredient in determining the tariff was theactual date on which the project was commissioned. The TariffEOrder of 17 March 2016 which replaced the earlier Tariff Orderapplied to all new wind electric generation projects which werecommissioned at 00.00 hrs on 1 April 2016 or thereafter. TheSLDC was required by Para 4.2 of the Tariff Order to submit alist of WEGs commissioned during the month of March 2016 from00.00 hrs of 1 March 2016 to 24.00 hrs of 31 March 2016. ThisFdata was sought in order to provide an objective basis ofdetermining whether a project had been commissioned beforethe new Tariff Order became applicable to projects which werecommissioned with effect from 1 April 2016. [Para 22] [82-F-H;83-A-G]G

1.2 In line with the said provisions, the guidelines that wereissued by the first appellant on 18 March 2016 provided a formatfor the issuance of commissioning certificates. The formatrequired readings of: (i) WTG meters; (ii) main billing meters;and (iii) check billing meters. The format required the submission H

of this data in order to establish the date on which a particularproject had been commissioned. The actual date of commissioningwould determine the applicable tariff; the tariff of Rs 5.92 perunit would apply to projects which were commissioned on orbefore 31 March 2016, while the new rate of Rs 4.78 per unitwould apply to projects which were commissioned on or after 1April 2016. Requiring the SLDC to submit data of the actualinjection of power into the grid was with the objective ofestablishing the actual commissioning of the project. [Para 23][83-G-H; 84-A-G]

1.3 On reviewing the documentary material on the record,the view which weighed with the High Court, namely, that thecommissioning of the project was completed by 31 March 2016cannot be accepted. The certificate of commissioning which hasbeen issued by the Superintending Engineer is belied by theobjective factual data available from the SLDC which is astatutory body constituted under Section 31 of the Act. Theobjective data on the record indicates that the injection of powerinto the grid took place on 1 April 2016. Hence, that this shouldbe the basis on which the claim for the entering into a PPA shouldbe founded. [Para 25] [85-C]

1.4 The project of the first respondent was commissionedon 1 April 2016 since the SLDC data indicates the injection ofpower into the grid with effect from that date. On the basis of thecommissioning of the project on 1 April 2016, there is merit inthe alternative submission that the Tariff Order that must applyis the Tariff Order dated 17 March 2016. The first respondentwas before the High Court in writ proceedings espousing its claimto the benefit of a higher rate of Rs 5.92 per unit on the basis ofthe earlier Tariff Order and on the basis that the commissioningof its project had taken place on 31 March 2016. The firstrespondent was bona fide pursuing its claim in that regard whichfound acceptance in the impugned judgment and order of the HighCourt. Though this Court has differed with the view taken by theHigh Court, it would be unfair to deny to the first respondent thebenefit of the rate which came to be prescribed by the Tariff Orderof 17 March 2016. The rate which was prescribed by that Tariff AB

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AOrder of Rs 4.78 per unit was to apply during the control periodbeginning from 1 April 2016 and ending on 31 March 2019 andthat rate would continue to govern the life cycle of 25 years, asprescribed by Para 5 of the Tariff Order. The first respondentcannot be denied a parity of treatment, as has been allowed toother projects of a similar nature which would be governed byBthe control period stipulated in Para 5 of the Tariff Order dated17 March 2016. [Para 26] [85-D-F]

1.5 The competitive bidding guidelines were formulatedby the Union Ministry of Power subsequently on 8 December2017. Moreover, Para 3.1 of those guidelines is not applicable toCthe project of the first respondent. The guidelines apply to grid-connected Wind Power Projects with an individual size of 5 MWand above at one site with a minimum bid capacity of 25 MW forintra-State projects. Since the first respondent is admittedly anintra-State project and does not fulfil the above requirement, theDguidelines (which in any event came into force subsequently)would have no application. [Para 27 and 28] [85-G-H; 86-A-C]

1.6 The impugned judgments and orders of the High Courtare set aside. It is directed that the first respondent would beentitled to the benefit of the Tariff Order dated 17 March 2016.EThe appellants would process the application of the firstrespondent for execution of a PPA on that basis with effect from1 April 2016. In view thereof, the second writ petition which hasbeen filed by the first respondent before the High Court shallnot survive and shall stand disposed of in terms of the instantjudgment. [Para 29] [86-E-G]F

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9218-9219 of 2018.

From the Judgment and Order dated 29.01.2018 by the High Courtof Madhya Pradesh, Bench at Indore in RP No. 1303/2017.

GNitin Gaur, Ranjit Kumar Sharma, Advs. for the Appellants.

Vivek K. Tankha, Sr. Adv., Gopal Sankaranarayanan, SumeerSodhi, Aman Nandrajog, Ashish Tiwari, Vaibhav Gulia, Ms. GayatriVerma, Ms. Rakhi Ray, Advs. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. These appeals arise from a judgment and order dated 21September 2017 of the High Court of Madhya Pradesh at its Bench atIndore and an order in review dated 29 January 2018. In the companionappeals, the correctness of an interim order of the High Court dated 15May 2018 in a subsequent petition under Article 226 of the Constitutionis in question.

2. The Government of Madhya Pradesh issued a notification on30 January 2012 laying down a policy to govern the generation of windenergy in the State. The policy was amended on 21 February 2013. Thepolicy, which was known as the Wind Power Project Policy 2012,stipulated inter alia that the purchase/sale of power would beadministered and governed by the Madhya Pradesh Electricity RegulatoryCommission[1].

3. On 26 March 2013, the State Commission, in exercise of powerunder Sections 61 and 86(1)(e) of the Electricity Act 2003[2] issued aTariff Order[3] for procurement of power from Wind ElectricityGenerators[4]. Para 4.1 of the Tariff Order stipulated that it would beapplicable to all new wind electricity generation projects commissionedon or after 1 April 2013 for sale of electricity to distribution licenseeswithin the State of Madhya Pradesh. Para 5 provided for the “tariffreview period/control period”:

“5. TARIFF REVIEW PERIOD/CONTROL PERIOD

5.1 The control period to which this order shall apply shall startfrom 01.04.2013 and will end on 31.03.2016 (i.e. end of FY 2015-16). The tariff decided in this order shall apply to all projects whichcome up during the above mentioned control period and the tariffdetermined shall remain valid for the project life of 25 years.”

4. The tariff prescribed by the Order was (i) to apply to all projectswhich came up during the period from 1 April 2013 till 31 March 2016;and (ii) to remain valid for 25 years.

1 “State Commission”2 “Act”

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A5. Para 11 of the Tariff Order provided for the determination oftariff. Insofar as is material, it provided that the State Commission hadset a tariff at the rate of Rs 5.92 per unit of generation from new windenergy projects to be commissioned after the issuance of the order forthe project life of 25 years. Para 11.2 is extracted below:

B“11.2 Considering the above parameters, the Commission setsthe levelized tariff @ Rs. 5.92 per unit for generation from newwind energy projects to be commissioned after issue of this orderfor its project life of 25 years.”

6. Under the terms of Para 12.4, developers were permitted toCexecute agreements with the Madhya Pradesh Power ManagementCompany Limited[5] before commissioning plants for the exclusive saleof electricity for a period of 25 years and the commissioning certificatewas to form a part of the agreement.

7. Para 12.30 provided thus:

D“12.30 All existing projects i.e. projects commissioned before01.04.2013 shall continue to be governed by the terms andconditions applicable at the time of their commissioning.”

8. On 10 November 2014, the first respondent applied forpermission to set up a 12 MW project in Dhar District in pursuance ofEthe Wind Power Project Policy 2012. The project was registered withthe nodal agency. The registered capacity was subsequently enhancedto 15 MW comprising of ten wind turbine generators each of 1.5 MW.Final project approval was received from the competent agency of theState government for setting up 12 MWs on private land on 2 March2016 and 3 MWs on revenue land on 10 March 2016. The first respondentFacted on the basis of the project approval, completed construction andmade the project ready for commissioning.

9. On 17 March 2016, the State Commission issued a fresh TariffOrder. Para 4 which dealt with applicability of the Order and Para 5which specified the tariff review period/control period were in theGfollowing terms:

“4. APPLICABILITY OF THE ORDER

4.1 This tariff Order will be applicable to all new wind electricgeneration projects in the State of Madhya Pradesh commissionedH5 “first appellant”

at 00.00 hrs. on 01.04.2016 or thereafter for sale of electricity tothe distribution licensees within the State of Madhya Pradesh.This order also specifies the terms & conditions (other than tariff)for captive user or for sale to third party.

4.2 It will be mandatory for the distribution licensees to submit tothe Commission, quarterly progress reports on the capacity addition,purchase of energy and other relevant details in respect of windelectric generation projects commissioned in their licensed area,and also post them on their websites on a regular basis. TheSLDC is also required to submit through e-mail/fax immediately,a list of WEGs commissioned during the month of March 2016i.e. from 00.00 hrs. of 01.03.2016 to 24.00 hrs. of 31.03.2016.

5. TARIFF REVIEW PERIOD/CONTROL PERIOD

5.1 The control period to which this order shall apply shall startfrom 01.04.2016 and will end on 31.03.2019 (i.e. end of FY 2018-19). The tariff decided in this order shall apply to all projects whichcome up during the above mentioned control period and the tariffdetermined shall remain valid for the project life of 25 years.”

10. Para 11 of the new Tariff Order provided for determination ofthe tariff. The tariff which was fixed under the earlier tariff order at Rs5.92 per unit was reduced to Rs 4.78 per unit:

“11.2 Considering the above parameters, the Commission setsthe levelized tariff @ Rs. 4.78 per unit for generation from newwind energy projects to be commissioned after issue of this orderfor its project life of 25 years.”

11. Para 12.29 provided that:

12.29 All existing projects i.e. projects commissioned before 00.00hrs. of 01.04.2016 shall continue to be governed by the terms andconditions applicable at the time of their commissioning.

12. On 18 March 2016, a communication was addressed by thefirst appellant to distribution licensees and generators stating that:

Subject :- Issue of commissioning certificate for Renewable EnergyProjects.

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Procurement of Renewable Energy from Non-Solar REprojects, is being done by MPPMCL at preferential tariff till theissuance of bidding guidelines by Central Govt. Control period ofmost of the RE tariffs is being completed by 31.03.2016 anddetermination of the tariff for next control period are under process.Looking to the financial year target and change of tariff, most ofRE generators are trying to commission their projects on or before31.03.2016. Tariff for the RE capacity commissioned on or after01.04.2016 shall be governed by the tariff to be determined byMPERC. Therefore, it would be appropriate that while issuingcommissioning certificate for these projects (especially wind basedRE projects), status of actual capacity successfully injected powerinto the grid should be properly checked before issuing ofcommissioning certificate for the project.

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In view of above, a format containing the commissioningdetails to establish the actual injection of power into the grid byDparticular WTG/Unit has been achieved, is enclosed. It is requestedthat concerning field officers may please be instructed to providerequired information in the format and submit the same withcommissioning certificate for the wind projects. Commissioningcertificate for other Non-Solar RE category should also be preparedin the same line with the meter reading details to establishEsuccessful power injection into the grid by the RE plants.

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It may please be noted that the commissioned capacity upto 31[st] March 2016 and after 31[st] March 2016 will have differenttariff and will be fixed for entire plant life. Any dispute regardingcommissioned capacity would yield considerable financialimplications. Therefore, to avoid any controversy, commissioningcertificate should be issued with due diligence and responsibility.”

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13. A format for the commissioning of wind power projects wasannexed to the letter.

G14. Essentially, the letter took notice of the fact that since thetariff was to change for projects which were commissioned on or after1 April 2016, most generators of renewable energy were trying tocommission their projects before 31 March 2016 to get the benefit of thehigher tariff under the earlier Tariff Order. Hence, it was specified thatthe “status of actual capacity successfully injected power into the grid”Hshould be verified before issuance of the certificate of commissioning.

15. According to the appellants, the then Superintending Engineer(O&M), Madhya Pradesh Paschim Kshetra Vidyut Vitran CompanyLimited, which is the concerned distribution licensee, issued a certificateto the first respondent on 31 March 2016 stating that as of the date ofthe certificate, the project had been commissioned. The appellants havesought to dispute the certificate on the ground that the commissioningcertificate was not in accordance with the format attached with theguidelines dated 18 March 2016, according to which the actual injectionof power into the grid was the relevant criterion.

16. On 1 April 2016, the first respondent addressed a letter to thefirst appellant seeking the execution of a Power Purchase Agreement[6]on the basis that it commissioned its project on 31 March 2016. Theappellants dispute the factual contention that the project wascommissioned on 31 March 2016 and submit that the data provided bythe State Load Despatch Centre[7], which maintains accounts of energytransmission to the grid, shows that the injection of power into the gridtook place for the first time on 1 April 2016. The SLDC was requestedto confirm the status of power injected into the grid in respect of theproject of the first respondent on 2 April 2016. The data furnished bySLDC and its report for active power readings from 31 March 2016 to2 April 2016 sets out time blocks during which power flowed into thegrid. The data which has been placed on the record indicates the injectionof three units in Block 1 as on 1 April 2016 and, thereafter, injectioncommenced with Block 8 on 2 April 2016, going up to Block 16.Thereafter, the data indicates that there was an injection of power intothe grid during the course of several blocks on 2 April 2016. Accordingto the appellants, on the basis of the SLDC data, power was injectedinto the grid on or from 1 April 2016 and not before. In consequence,the first respondent was not entitled to the benefit of the unit rate of Rs5.92 fixed under the earlier Tariff Order.

17. On 30 April 2016, the first appellant informed the firstrespondent that since its project had not been commissioned before 31March 2016, it would not enter into a PPA under the earlier Tariff Orderdated 26 March 2013 under which the unit price was fixed at Rs 5.92.The letter, however, indicated that if the first respondent signified itsconsent by 30 May 2016, the tariff would be governed by the new Tariff 6 “PPA”

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AOrder dated 17 March 2016 for procurement of power from WEGs.On 1 February 2017, the first appellant informed the first respondentthat if it did not enter into a PPA under the subsequent Tariff Orderdated 17 March 2016, which fixed the unit price for power at Rs 4.78, itwould not enter into any PPA with the first respondent nor allow injectionof power into the grid.B

18. The first respondent filed a writ petition under Article 226 ofthe Constitution before the High Court of Madhya Pradesh in order tochallenge the letters dated 30 April 2016 and 1 February 2017. By ajudgment and order dated 21 September 2017, the High Court allowedthe writ petition and set aside the letters of the first appellant dated 30CApril 2016 and 1 February 2017 and directed the first appellant to takeappropriate steps in accordance with the Tariff Order dated 26 March2013. In other words, by and as a result of the directions of the HighCourt, the first appellant was required to enter into a PPA with the firstrespondent for the purchase of electricity at the rate of Rs 5.92 per unit.

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19. After the decision of the High Court, the appellant revokedthe certificate of commissioning dated 31 March 2016.

20. A review petition was filed before the High Court which wasdismissed on 29 January 2018.

E21. The revocation of the commissioning certificate gave rise tothe institution of the second set of writ petitions in the High Court inwhich, by an interim order dated 15 May 2018, the revocation has beenstayed. That has given rise to two appeals before this Court.

22. Appearing on behalf of the appellants, Mr. Nitin Gaur, learnedcounsel submitted that:F

(i) The crucial provision for the application of the TariffOrder which came into force on 17 March 2016 is that itwould apply to all new wind electric generation projectscommissioned on or after 00.00 hrs on 1 April 2016;

(ii) The appellants had, by the guidelines dated 18 March2016, required the submission of data in the prescribedformat to indicate the actual injection of power into thegrid so as to furnish an objective basis for determiningas to whether the project had been commissioned beforeor after the cut-off prescribed; G

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(iii) As a result of the data which was obtained from theSLDC, it has emerged that the actual injection of powerinto the grid took place on 1 April 2016; A

(iv) In consequence, the first appellant offered to the firstrespondent that it was ready and willing to execute aPPA in terms of the new Tariff Order dated 17 MarchB2016 which was applicable to projects which had beencommissioned on or after 1 April 2016;

(v) The first respondent failed to take the benefit of theoffer which was made by the first appellant and insteadpursued its writ petition before the High Court; C

(vi) The High Court has erred in relying on the commissioningcertificate issued by the Superintending Engineer, ignoringthat the certificate was not in accordance with the formatin which data was required by the first appellant for thepurpose of establishing the actual commissioning of theproject before 31 March 2016; D

(vii) As a result of the subsequent developments, the firstappellant is now bound by the guidelines which havebeen issued by the State of Madhya Pradesh on 1 August2014. Moreover, under the guidelines formulated by theUnion Ministry of Power in the Government of India on8 December 2017, the first appellant is required to pursuea competitive bidding process for the purpose of enteringinto a PPA; E

(viii) As a result of the PPAs which have been entered intoby the first appellant following the competitive biddingprocess, it has been able to secure electric power atcheaper rates ranging between Rs 2.30 to Rs 2.59 perunit; and F

(ix) The first appellant would now be willing to enter into aPPA on the basis of competitive bidding and having dueregard to the interests of the consumers, it would beappropriate if the first respondent is directed to do so.

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23. On the other hand, it has been urged on behalf of the firstrespondent in the appeals by Mr Vivek K Tankha and Mr Gopal H

ASankaranarayanan, learned senior counsel, that:

(i) Under the terms of the earlier Tariff Order which heldthe field for the period 2013-16, a rate of Rs 5.92 perunit was prescribed for all new wind generating units,which had been commissioned until 31 March 2016; B

(ii) The rate of Rs 5.92 per unit was to remain frozen for alife cycle of 25 years;

(iii) In the present case, in terms of the Tariff Order, whichreferred to the successful commissioning of the project,the first respondent commissioned its project on 31 MarchC2016 as evidenced by the certificate issued by theSuperintending Engineer;

(iv) The High Court has not erred in directing the appellantsto act on the basis of the certificate of commissioningand in staying the revocation which was issued only onD17 November 2017 after the writ petition was decided;

(v) In the alternative, and without prejudice to the abovesubmissions, in any event, there is no justification on thepart of the first appellant not to enter into a PPA withthe first respondent on the basis of the Tariff Order whichEwas notified on 17 March 2016 for the control period2016-19;

(vi) The notification of the Union of India dated 8 December2017 has no application since it applies to projects havingan individual size of 5 MW and above at one site with aFminimum bid capacity of 25 MW for intra-State projects.

(vii) The revocation of the commissioning certificate was aunilateral act of the first appellant without allowing anopportunity of being heard to the first respondent and noshow cause notice was issued.

G24. The Tariff Order of March 2013 stipulated that it would beapplicable to all new wind electric generation projects which werecommissioned on or after 1 April 2013 for the sale of electricity todistribution licensees in the State. The control period of the Tariff Ordercommenced on 1 April 2013 and would end on 31 March 2016. The H

Tariff Order fixed a levelized tariff of Rs 5.92 per unit for new windenergy projects to be commissioned after the issuance of the Order fora project life of 25 years. Para 12.30 provided that all existing projectswhich were commissioned before 1 April 2013 would be governed bythe terms and conditions applicable at the time of commissioning. Hence,the crucial ingredient in determining the tariff was the actual date onwhich the project was commissioned.

25. The Tariff Order of 17 March 2016 which replaced the earlierTariff Order applied to all new wind electric generation projects whichwere commissioned at 00.00 hrs on 1 April 2016 or thereafter. TheSLDC was required by Para 4.2 of the Tariff Order to submit a list ofWEGs commissioned during the month of March 2016 from 00.00 hrsof 1 March 2016 to 24.00 hrs of 31 March 2016. This data was soughtin order to provide an objective basis of determining whether a projecthad been commissioned before the new Tariff Order became applicableto projects which were commissioned with effect from 1 April 2016.

26. In line with the above provisions, the guidelines that wereissued by the first appellant on 18 March 2016 provided a format for theissuance of commissioning certificates. The format required readingsof: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters.The format required the submission of this data in order to establish thedate on which a particular project had been commissioned. The actualdate of commissioning would determine the applicable tariff; the tariffof Rs 5.92 per unit would apply to projects which were commissionedon or before 31 March 2016, while the new rate of Rs 4.78 per unitwould apply to projects which were commissioned on or after 1 April2016. Requiring the SLDC to submit data of the actual injection of powerinto the grid was with the objective of establishing the actualcommissioning of the project.

27. In the present case, the principal submission of the appellantsis that the data which was furnished by the SLDC indicates that theactual injection of power into the grid by the first respondent took placeon 1 April 2016. It is on that basis that the first appellant has submittedthat the commissioning certificate was not in accordance with theprescribed format and had to be revoked. Before this Court, the datawhich has been furnished by the SLDC is not in dispute. Indeed, that isthe basis on which Mr Vivek K Tankha, learned senior counsel urged hisalternative submission that in any event, even going by the SLDC data, AB

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Ait is evident that the power was injected into the grid on and from 1 April2016.

28. On reviewing the documentary material on the record, we arenot prepared to accept the view which has weighed with the High Court,namely, that the commissioning of the project was completed by 31 MarchB2016. The certificate of commissioning which has been issued by theSuperintending Engineer is belied by the objective factual data availablefrom the SLDC which is a statutory body constituted under Section 31of the Act. The objective data on the record indicates that the injectionof power into the grid took place on 1 April 2016. Hence, we are of theview that this should be the basis on which the claim for the entering intoCa PPA should be founded.

29. Since the factual data has been placed before this Court, weare of the view that the project of the first respondent was commissionedon 1 April 2016 since the SLDC data indicates the injection of powerinto the grid with effect from that date. On the basis of the commissioningDof the project on 1 April 2016, we find merit in the alternative submissionwhich has been urged on behalf of the first respondent in the appealsthat the Tariff Order that must apply is the Tariff Order dated 17 March2016. The first respondent was before the Madhya Pradesh High Courtin writ proceedings espousing its claim to the benefit of a higher rate ofERs 5.92 per unit on the basis of the earlier Tariff Order and on the basisthat the commissioning of its project had taken place on 31 March 2016.The first respondent was bona fide pursuing its claim in that regardwhich found acceptance in the impugned judgment and order of theHigh Court. Though we have differed with the view which has beentaken by the High Court, we are of the view that it would be unfair toFdeny to the first respondent the benefit of the rate which came to beprescribed by the Tariff Order of 17 March 2016. The rate which wasprescribed by that Tariff Order of Rs 4.78 per unit was to apply duringthe control period beginning from 1 April 2016 and ending on 31 March2019 and that rate would continue to govern the life cycle of 25 years, asGprescribed by Para 5 of the Tariff Order. The first respondent cannotbe denied a parity of treatment, as has been allowed to other projects ofa similar nature which would be governed by the control period stipulatedin Para 5 of the Tariff Order dated 17 March 2016.

30. The competitive bidding guidelines upon which reliance hasHbeen placed by Mr Nitin Gaur, learned counsel appearing on behalf of M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWERPROJECTS (P) LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]

the appellants, were formulated by the Union Ministry of Powersubsequently on 8 December 2017. Moreover, Para 3.1 of thoseguidelines is not applicable to the project of the first respondent. Para3.1 provides thus:

“3. APPLICABILITY OF GUIDELINES

3.1 These Guidelines are being issued under the provisions ofSection 63 of the Electricity Act, 2003 for long-term procurementof electricity through competitive bidding process, by the‘Procurer(s)’, from grid-connected Wind Power Projects (‘WPP’)having, (a) individual size of 5 MW and above at one sitewith minimum bid capacity of 25 MW for intra-state projects;and (b) individual size of 50 MW and above at one site withminimum bid capacity of 50 MW for inter-state projects.”

(emphasis supplied)

31. The above guidelines apply to grid-connected Wind PowerProjects with an individual size of 5 MW and above at one site with aminimum bid capacity of 25 MW for intra-State projects. Since the firstrespondent is admittedly an intra-State project and does not fulfil theabove requirement, the guidelines (which in any event came into forcesubsequently) will have no application.

32. For the above reasons, we allow the appeals in part and setaside the impugned judgments and orders of the High Court dated 21September 2017 and 29 January 2018. We direct, in consequence of theabove discussion, that the first respondent in the appeals shall be entitledto the benefit of the Tariff Order dated 17 March 2016. The appellantsshall process the application of the first respondent in the appeals forexecution of a PPA on that basis with effect from 1 April 2016. In theview which we have taken, the second writ petition which has been filedby the first respondent before the High Court of Madhya Pradesh shallnot survive and shall stand disposed of in terms of the present judgment.There shall be no order as to costs.

33. Pending application, if any, stands disposed of.

Nidhi Jain

Appeals partly allowed.

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