UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ANR versus ADANI POWER (MUNDRA) LIMITED & ORS. on 20 April 2023

468

[2023] 5 S.C.R.

AUTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ANR.

v.

ADANI POWER (MUNDRA) LIMITED & ORS.Civil Appeal No. 4143 of 2020

BAPRIL 20, 2023

[B. R. GAVAI AND VIKRAM NATH, JJ.]

Electricity Act, 2013 : s. 63 – Determination of tariff by biddingprocess – Change in law – Haryana Utilities-appellants enteredinto Power Purchase Agreements-PPAs with the APML – PPAs enteredCpursuant to tariff based Competitive Bidding Process – Petition byAPML before CERC seeking relief of increase in tariff on accountof change in law, increase in coal price due to change in IndonesianRegulations – CERC allowed the petition granting change in lawrelief for the shortfall in the availability of 100% coal which wasDupheld by the APTEL – On appeal, held: No document on recordthat representation was given by APML that its bid is based on 70%domestic and 30% imported coal – APML entitled to benefit onaccount of the Change in Law if there was any shortfall of 70% ofthe domestic coal as was decided to be allotted by the SLC (LT) –No error with the concurrent findings that APML entitled to ChangeEin Law relief for 100% of the contracted capacity, which is 70% ofthe installed capacity of the Project – As regards, the methodologyfor computation of Change in Law compensation laid down in GMRKamalanga Energy Ltd.’s case, Haryana Utilities are indulging intoapprobation and reprobation – After accepting before the CERCFthat they would adopt the methodology as given in the case of GMRKamalanga Energy Limited’s case, it would not be appropriate onthe part of the appellants-instrumentalities of the State, to changeits stand after final orders are passed by the CERC – Thus, theconcurrent findings of facts by two expert bodies does not call forinterference.G

Dismissing the appeal, the Court

HELD: 1.1 None of the documents placed on record wouldreveal that a representation was given by AP(M)L that its bid isbased on 70% domestic and 30% imported coal. It could thus beHseen that what has been stated in the Executive Summary by AP(M)L is that its Power Plant had a strategic advantage inasmuchas it had proximity to Mundra Port. It further states that MundraPort possesses World Class Coal handling facilities with 17 meterdeep draft permitting capsize vessels to berth alongside. By thesaid document, it has proposed to supply 1425 MW to HaryanaPower Generation Corporation Limited (HPGCL) from 1980 MW(3 x 660 MW) Phase IV extension of Mundra Project. Therepresentation given is that it would use either imported orindigenous coal. [Paras 29, 30][479-B-C; D-F]

1.2 It could thus be seen that AP(M)L would be entitled tobenefit on account of the Change in Law if there was any shortfallof 70% of the domestic coal as was decided to be allotted by theSLC (LT) in its meeting dated 12th November 2008, culminatingin the Ministry of Coal - MOC issuing a LoA dated 25th June2009 and the Fuel Supply Agreement - FSA being signed byAP(M)L with CIL on 9 th June 2012. [Para 34][480-B-D]

1.3 The claim of AP(M)L is with regard to shortfall in theassured quantity of 70%, and not above that. From the orderpassed by the APTEL, it is clear that it has been the consistentstand of the appellants that AP(M)L was in a position to generateand supply contracted capacity of 1424 MW out of the fuel linkagearising out of the FSA dated 9th June 2012 with Mahanadi CoalField Limited. It has been its stand that AP(M)L should use theentire domestic coal availability towards the contracted capacityof the appellants first, and then use the imported coal for thedeficit to reach the targeted PLF. It has further been its standthat the entire domestic coal available should be accountedtowards 1424 MW contracted to Haryana Utilities. [Paras 35 and36][480-D-F]

1.4 The entire domestic coal linkage came to be utilizedfor supplying power to Haryana Utilities, it is unjust on the partof Haryana Utilities to say that 70% of the installed capacity shouldbe further bifurcated and the Change in Law benefit should berestricted only to 70% of the installed capacity which was allottedby the SLC (LT). [Para 40]P481-C-D]

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A1.5 Even according to Haryana Utilities, the entire coalcovered under FSA was required to be utilized for generatingpower to be supplied to it as per the Memorandum ofUnderstanding. Therefore, denial of the benefit of shortfall of thecoal assured under FSA, would be contrary to the restitutionaryprinciple. In any case, the APTEL has clarified that AP(M)L wasBneither claiming nor was entitled to claim any Change in Lawcompensation beyond the one which was covered by linkage coal,i.e. 1386 MW. [Paras 41, 42][481-D-F]

1.6 To a specific query by the APTEL, it was fairly concededby the counsel for Haryana Utilities that the MoUs were generalCin nature and not specific for Phase IV Mundra Power Plant. Assuch, the finding of the APTEL that the MoUs annexed with thebid were only to show its competence to participate in the bid,and that it cannot be stretched to hold that the bidder was toprocure imported coal to the extent of 30% for the project, cannotDbe said to be perverse. [Para 44][481-F-H]

1.7 No error could be found with the concurrent findingsthat AP(M)L was entitled to Change in Law relief for 100% ofthe contracted capacity i.e. 1386 MW, which is 70% of the installedcapacity of 1980 MW of the Phase IV extension of Mundra Project.EThe finding of the CERC and the APTEL is to the effect thatAP(M)L would not be entitled to any benefit of Change in Lawbeyond 70% of the installed capacity i.e. 1386 MW. The saidfindings cannot be said to not be based on the material on record,or based on extraneous considerations. [Para 46][482-C-E]

F1.8 The Perusal of the order passed by the APTEL wouldreveal that AP(M)L had proposed a methodology based on themethodology approved by the CERC in the GMR KamalangaEnergy Limited and Another v. Dakshin Haryana Bijli Vitran NigamLimited and Others’s case considering the quoted tariff under thePPAs as the base. Haryana Utilities are indulging into approbationGand reprobation. They cannot be permitted to blow hot and coldat the same time. After accepting before the CERC that theywould adopt the methodology as given in the case of GMRKamalanga Energy Limited’s case, it would not be appropriate on H

the part of the appellants, which are, after all, instrumentalitiesof the State, to change its stand after final orders are passed bythe CERC. [Paras 49, 53][482-G-H; 483-G-H]

1.9 The concurrent findings of fact recorded by the twoexpert bodies could have been interfered with only if they failedto take into consideration the mandatory statutory provisions orif the decisions had been taken by them on extraneousconsiderations or that they were ex facie arbitrary and illegal.Nothing of that sort can be found in the impugned judgment andorder to warrant interference. [Para 55][484-D-E]

Energy Watchdog v. Central Electricity RegulatoryCommission and others (2017) 14 SCC 80; AshokaSmokeless Coal India (P) Ltd. and others v. Union ofIndia and others (2007) 2 SCC 640 : [2006] 9 Suppl.SCR 954; Maharashtra State Electricity DistributionCompany Limited v. Adani Power Maharashtra Limitedand Others 2023 SCC OnLine SC 233; Jaipur VidyutVitaran Nigam Ltd. and others v. Adani Power RajasthanLimited and another 2020 SCC Online SC 697; GMRKamalanga Energy Limited and Another v. DakshinHaryana Bijli Vitran Nigam Limited and Others PetitionNo. 79/MP/2013 dated 03.02.2016 – referred to.

Case Law Reference

(2017) 14 SCC 80referred toPara 7[2006] 9 Suppl. SCR 954referred toPara 19

Para 19

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4143of 2020.

From the Judgment and Order dated 03.11.2020 of the AppellateTribunal for Electricity, New Delhi in Appeal No. 168 of 2019.

M. G. Ramachandran, Sr. Adv., Nikunj Dayal, Shubham Arya,Ravi Nair, Ms. Srishti Khindaria, Ms. Reeha Singh, Advs. for theAppellants.

Mukul Rohatgi, Sr. Adv., Mahesh Agarwal, Hemant Singh, ArshitAnand, Lakshyajit Singh Bagdwal, Ms. Lavanya Panwar, Ms. Geetika A

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ASharma, E. C. Agrawala, Amit Kapur, Ms. Poonam Sengupta, SaunakRajguru, Ms. Sakshi Kapoor, Advs. for the Respondents.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

B1. The appellants challenge the judgment and order passed by theAppellate Tribunal for Electricity, New Delhi (hereinafter referred to as“APTEL”) dated 3[rd] November 2020, thereby dismissing the appeal filedby them and maintaining the judgment and order dated 31[st] May 2018passed by the Central Electricity Regulatory Commission (“CERC” forshort) in Petition No. 97/MP/2017.C

2. The facts, in brief, giving rise to the present appeal are asunder:

3. Uttar Haryana Bijli Vitran Nigam Ltd. and Dakshin HaryanaBijli Vitran Nigam Ltd. (hereinafter referred to as “Haryana Utilities”/”Appellants”) are distribution licensees undertaking the distribution andDretail supply of electricity to consumers in the State of Haryana. HaryanaUtilities had entered into two Power Purchase Agreements (“PPAs”for short) on 7[th] August 2008 with Adani Power Mundra Limited(hereinafter referred to as “AP(M)L”) for procurement of contractedcapacity of 1424 MW from generating units 7, 8 and 9 established byEAP(M)L at Mundra in the State of Gujarat.

4. The PPAs were entered into pursuant to a tariff basedCompetitive Bidding Process initiated by the Haryana Utilities under theprovisions of Section 63 of the Electricity Act, 2003, as per the StandardBidding Guidelines notified by the Central Government.F[[th]]

5. AP(M)L had filed Petition No. 155/MP/2012 on 5[[th]] July 2012before the CERC seeking, inter alia, relief of increase in tariff on variousgrounds. One of the grounds was that the Indonesian Regulations,promulgated by the Government of Indonesia, providing for the applicationof benchmark price for export of coal from Indonesia resulted in higherGprice of coal resulting in higher cost of generation of power.

6. AP(M)L had also claimed Force Majeure Event within thescope of Article 12 and Change in Law within the scope of Article 13 ofthe PPAs.

7. The orders dated 2[nd] April 2013 and 21[st] February 2014 passedHby the CERC in the said Petition No.155/MP/2012 were challenged before the learned APTEL by way of a batch of appeals, the lead beingAppeal No. 100 of 2013. The order dated 7[th] April 2016 passed by thelearned APTEL in Appeal No. 100 of 2013 and the batch of appealswere challenged before this Court in the case of Energy Watchdog v.Central Electricity Regulatory Commission and others[1]. This Courtdisposed of the said appeals on 11[th] April 2017 in terms of the followingdirections:

“57. Both the letter dated 31-7-2013 and the revised Tariff Policyare statutory documents being issued under Section 3 of the Actand have the force of law. This being so, it is clear that so far asthe procurement of Indian coal is concerned, to the extent thatthe supply from Coal India and other Indian sources is cut down,the PPA read with these documents provides in Clause 13.2 thatwhile determining the consequences of change in law, parties shallhave due regard to the principle that the purpose of compensatingthe party affected by such change in law is to restore, throughmonthly tariff payments, the affected party to the economic positionas if such change in law has not occurred. Further, for the operationperiod of the PPA, compensation for any increase/decrease incost to the seller shall be determined and be effective from suchdate as decided by the Central Electricity Regulation Commission.This being the case, we are of the view that though change inIndonesian law would not qualify as a change in law under theguidelines read with the PPA, change in Indian law certainly would.

58. ……….The Central Electricity Regulatory Commission will,as a result of this judgment, go into the matter afresh and determinewhat relief should be granted to those power generators who fallwithin Clause 13 of the PPA as has been held by us in thisjudgment.”

8. It may be mentioned that this Court, in the case of EnergyWatchdog (supra), specifically rejected the claim that the increase inprice of coal due to change in Indonesian Regulations would also amountto Change in Law. This Court held that only Change in Law in Indiawould entitle the Generator to the benefit of restitution on account ofsuch Change in Law.

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A9. Pursuant to the orders passed by this Court in the case ofEnergy Watchdog (supra), AP(M)L filed Petition No.97/MP/2017before the CERC. The CERC, vide order dated 31[st] May, 2018, allowedthe Petition and directed the working out of the relief based on theformulation given in Paragraph 46 of its judgment for the period from 1[st]April 2013 to 31[st] March 2017. Subsequently, a Review Petition bearingBNo.24/RP/2018 also came to be filed. The same was rejected by theCERC vide order dated 3[rd] December 2018. Being aggrieved thereby,the appellants preferred appeal before the learned APTEL.

10. The learned APTEL framed the following four issues forconsideration:C

“Issue No.1:-Whether the Central Commission was justified inholding that Adani Power’s bid was based entirelyon domestic coal availability and hence entitled toChange in Law relief on account of domestic coalshortfall?

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Issue No.2:-Whether shortfall in domestic coal was due toChange in Law and compensation should be limitedto the difference between 100% of ACQ and 65%,65%, 67% and 75% of ACQ as specified in NCDP2013?

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Issue No.3:-Whether the start date of Change in Lawcompensation allowed by the Central Commissionamounts to retrospective operation of Ministry ofPower’s letter dated 31.07.2013?

FIssue No.4:-Whether the Central Commission erred in ignoringthe methodology for computation of Change in Lawcompensation laid down in its earlier Order inPetition No. 79/MP/2013 - GMR KamalangaEnergy Ltd. & Anr. vs. DHBVNL &Ors. (“GMRGCase”)?

11. After hearing the learned counsel for the parties, the learnedAPTEL held all the issues in favour of the respondent No.1-Generatorand dismissed the appeal. Being aggrieved thereby, the appellants havefiled the present appeal.H

12. We have heard Shri M.G. Ramachandran, learned SeniorCounsel appearing on behalf of the appellants and Dr. A.M. Singhvi,learned Senior Counsel appearing on behalf of the respondent No.1-AP(M)L.

13. Shri Ramachandran submits that the CERC as well as thelearned APTEL have grossly erred in granting Change in Law relief forthe shortfall in the availability of 100% coal. He submits that AP(M)L’sbid and the PPA were admittedly premised both on domestic coal andimported coal in the ratio of 70:30. As such, the relief could be grantedonly insofar as the shortfall in the 70% domestic coal is concerned. Hesubmits that AP(M)L has submitted the bid on the premise that 30% ofthe coal would be imported, while 70% of the coal would be procuredindigenously. He submits that the effect of the orders passed by theCERC and the learned APTEL is that AP(M)L has been granted benefiton the consideration that its bid was premised on 100% domestic coal.

14. Shri Ramachandran further submits that a perusal of thevarious pleadings of AP(M)L would clearly reveal that AP(M)L’s bidwas premised on domestic and imported coal in the proportion of 70:30.However, all these documents have been ignored by the learned APTEL.Shri Ramachandran submits that the documents placed on record wouldreveal that AP(M)L had represented that it will use imported coal forgeneration of power. He submits that the Executive Summary of the bidsubmitted by AP(M)L would reveal that AP(M)L had represented thereinthat the strategic advantage of the Power Plant was its proximity toMundra Port, where coal is being imported. Learned counsel submitsthat in view of the pleadings of AP(M)L, it was clear that it was itsresponsibility to procure 30% imported coal. He, therefore, submits thatgranting of relief for shortfall of 30% imported coal is nothing else but aperversity.

15. Shri Ramachandran further submits that the methodology ofcomputation of compensation on account of the Change in Law eventhas also been erroneously applied by the CERC and affirmed by thelearned APTEL. He submits that the methodology that ought to havebeen applied was the difference between landed cost of alternate coalon the one part and the prevalent landed cost of domestic coal or quotedenergy charges, whichever was higher, on the other part. He submitsthat had there been no Change in Law and AP(M)L had received theentire quantum of domestic coal, it would have had to bear the prevalent A

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Aprice of landed domestic coal on its own, irrespective of whether suchcost is below or above the quoted energy charges in the bid. He submitsthat if such landed cost of domestic coal is higher than the quoted energycharges, AP(M)L was not entitled to claim the difference between thelanded cost of domestic coal and the quoted energy charges.

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B16. Shri Ramachandran further submits that the learned APTELis wrong in proceeding on the basis that there was no objection by theappellants before the CERC on the methodology for computation ofChange in Law compensation laid down in its order in Petition No. 79/MP/2013-GMR Kamalanga Energy Ltd. & Anr. v. DHBVNL & Ors.C(hereinafter referred to as “GMR Case”)

17. Shri Ramachandran further submitted that the appellants haveno objection for giving benefit on account of Change in Law for shortfallin 70% of coal to be procured indigenously.

18. Dr. A.M. Singhvi, on the contrary, submits that the bid submittedDby AP(M)L was on the basis of National Coal Distribution Policy, 2007(for short, “NCDP 2007”). He submits that there was no bifurcation inthe bid with regard to 70% domestic coal and 30% imported coal. LearnedSenior Counsel submits that the cut-off date for Change in Law claimwould be 17[th] November 2007, i.e. minus 7 days from the last date forEsubmission of the bid, i.e. 24[th] November 2007. It is submitted that evenin the PPAs signed with Haryana Utilities on 7[th] August 2008, there is nobifurcation of domestic and imported coal. He submits that though theStanding Linkage Committee (Long-Term) (hereinafter referred to as“SLC (LT)”) has considered AP(M)L’s application for 100% coal of itsFtotal capacity, it has granted linkage only for 70% of 1980 MW, i.e. 1386MW only. He submitted that linkage of balance 30% was deferred tothe future.

19. Dr. Singhvi further submitted that the SLC (LT) is a statutorybody and its decision would amount to Change in Law. In this respect,Ghe relies on the judgment of this Court in the case of Ashoka SmokelessCoal India (P) Ltd. and others v. Union of India and others[2].

20. When we heard this batch of Electricity appeals, it was agreedbetween all the parties that this Court should first decide Civil Appeal A

No. 684 of 2021 (Maharashtra State Electricity Distribution CompanyLimited v. Adani Power Maharashtra Limited and Others[3])[“MSEDCL v. APML and Others”, for short] and Civil Appeal No.6927 of 2021 (Maharashtra State Electricity Distribution CompanyLimited v. GMR Warora Energy Ltd. and Others) inasmuch as threeof the issues involved in all the appeals in the batch were common. Itwas submitted that those two appeals could be decided by deciding thethree common issues. However, insofar as the other appeals areconcerned, it was submitted that, in addition to the three common issues,certain additional issues were also involved and it was agreed that afterthose two appeals are decided, the other appeals should be heard forconsidering these additional issues.

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21. The said three common issues are thus:

(i) Whether ‘Change in Law’ relief on account of NCDP 2013should be on ‘actuals’ viz. as against 100% of normativecoal requirement assured in terms of NCDP 2007 ORDrestricted to trigger levels in NCDP 2013 viz. 65%, 65%,67% and 75% of Assured Coal Quantity (ACQ)?

(ii) Whether for computing ‘Change in Law’ relief, theoperating parameters be considered on ‘actuals’ OR as pertechnical information submitted in bid?

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(iii) Whether ‘Change in Law’ relief compensation is to begranted from 1[st] April 2013 (start of Financial Year) or 31[st]July 2013 (date of NCDP 2013)?

22. After extensively hearing all the learned counsel for the parties,vide the judgment and order dated 3[rd] March 2023 in the case of MSEDCLv. APML and Others (supra), this Court decided those two appealsafter considering the aforesaid three issues.

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23. The first issue was answered by this Court, holding that the‘Change in Law’ relief for domestic coal shortfall should be on ‘actuals’i.e. as against 100% of normative coal requirement assured in terms ofNCDP, 2007. Insofar as the second issue is concerned, it was held thatthe Station Heat Rate (“SHR” for short) and Auxiliary consumptionshould be considered as per the Regulations or actuals, whichever is G

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Alower. The third issue was answered holding that the Start date for the‘Change in Law’ event for the NCDP, 2013 is 1[st] April 2013.

24. As such, Issue Nos. 2 and 3, which were framed by the learnedAPTEL in the impugned judgment and order dated 3[rd] November 2020stand fully covered by the judgment of this Court in the case of MSEDCLBv. APML and Others (supra). The remaining two issues that are requiredto be considered in the present appeal are thus:

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25. Before we proceed to consider the aforesaid two issues, wemay note that the present appeal arises out of the concurrent orderspassed by the CERC and the learned APTEL.

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26. This Court, in the case of MSEDCL v. APML and Others(supra), after considering the relevant provisions under the ElectricityAct, 2003 with regard to constitution of various expert bodies like theCEA, CERC and the learned APTEL, held that these bodies are bodiesFconsisting of experts in the field. After considering various judgments onthe issue, this Court observed thus:

“123. Recently, the Constitution Bench of this Court in the caseof Vivek Narayan Sharma v. Union of India has held that theCourts should be slow in interfering with the decisions taken bythe experts in the field and unless it is found that the expert bodiesGhave failed to take into consideration the mandatory statutoryprovisions or the decisions taken are based on extraneousconsiderations or they are ex facie arbitrary and illegal, it will notbe appropriate for this Court to substitute its views with that ofthe expert bodies.”

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27. Though the present appeal arises out of the concurrent orderspassed by CERC as well as APTEL, in view of the submissions made,we will proceed to consider the rival submissions.

28. Insofar as the first issue with regard to the bifurcation of 70%domestic and 30% imported coal is concerned, we have examined thedocuments placed on record by the parties.

29. None of the documents placed on record would reveal that arepresentation was given by AP(M)L that its bid is based on 70% domesticand 30% imported coal. Insofar as the document on which ShriRamachandran has relied i.e. the Executive Summary of the bid isconcerned, the same reads thus:

“Adani Enterprises Ltd., the promoter of APL, is the largest coalimporting company of the country. The strategic advantage of thePower Plant is its proximity to MUNDRA PORT, where coal isbeing imported. Mundra Port possesses World Class Coal handlingfacilities with 17 meter deep draft permitting capsize vessels toberth alongside.”

30. It could thus be seen that what has been stated in the ExecutiveSummary by AP(M)L is that its Power Plant had a strategic advantageinasmuch as it had proximity to Mundra Port. It further states that MundraPort possesses World Class Coal handling facilities with 17 meter deepdraft permitting capsize vessels to berth alongside. By the said document,it has proposed to supply 1425 MW to Haryana Power GenerationCorporation Limited (HPGCL) from 1980 MW (3 x 660 MW) Phase IVextension of Mundra Project. The representation given is that it will useeither imported or indigenous coal.

31. If the argument of the appellants is to be accepted that at thetime of bid there was no assurance of domestic coal supply, then thecontention of the appellants that AP(M)L is entitled to shortfall of 70%of the coal itself is contradictory.

32. In any case, even on facts, it is to be noted that the contentionis without substance. AP(M)L has offered to supply 1425 MW of powerfrom its Phase IV extension of Mundra Project, having a capacity of1980 MW. The PPA entered into between Haryana Utilities and AP(M)Lis for 1424 MW.

33. The SLC(LT), in its meeting dated 12[th] November 2008, basedon the recommendation of the Central Electricity Authority (“CEA” for A

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Ashort), Ministry of Power (“MoP” for short) had authorized the issuanceof LoA for 1386 MW i.e. 70% of 1980 MW installed capacity of PhaseIV extension of the Mundra Project. This was done in accordance withthe provisions of the NCDP 2007. Insofar as the remaining capacity isconcerned, the decision was deferred to be taken by the SLC (LT) inthe future, based on the recommendation of MoP and other relevantBfactors.

34. It could thus be seen that AP(M)L would be entitled to benefiton account of the Change in Law if there was any shortfall of 70% ofthe domestic coal as was decided to be allotted by the SLC (LT) in itsmeeting dated 12[th] November 2008, culminating in the Ministry of CoalC(for short, “MoC”) issuing a LoA dated 25[th] June 2009 and the FuelSupply Agreement (for short, “FSA”) being signed by AP(M)L withCIL on 9[th] June 2012.

35. Undisputedly, the claim of AP(M)L is with regard to shortfallin the assured quantity of 70%, and not above that.D

36. From the order passed by the learned APTEL, it is clear thatit has been the consistent stand of the appellants that AP(M)L was in aposition to generate and supply contracted capacity of 1424 MW out ofthe fuel linkage arising out of the FSA dated 9[th] June 2012 with MahanadiCoal Field Limited (“MCL” for short). It has been its stand that AP(M)LEshould use the entire domestic coal availability towards the contractedcapacity of the appellants first, and then use the imported coal for thedeficit to reach the targeted PLF. It has further been its stand that theentire domestic coal available should be accounted towards 1424 MWcontracted to Haryana Utilities.

F37. In its reply dated 31[st] July 2017, Haryana Utilities havecategorically stated thus:

“Thus the actual coal received from MCL is required to beconsidered towards power supplied under Haryana PPAs for thepurpose of relief under force majeure.”

G38. In its I.A. No.12 of 2018 dated 4[th] March 2018 in PetitionNo.97/MP/2017, the Haryana Utilities have reiterated thus:

“It is submitted that the entire quantum of domestic coal availablefrom MCL under the FSA dated 9.6.2012 was to be exclusivelyused for generation and supply of electricity to the Haryana UtilitiesHunder the PPA dated 7.8.2008.

39. It is further to be noted that the learned APTEL had, duringthe course of the hearing, put a pertinent query to the learned counselappearing for Haryana Utilities, as to whether the entire actual coalreceived from MCL was used towards the power supplied under theHaryana PPAs. To this query, it was replied thus:

“During the hearing, Mr. Ramachandran admitted that AdaniPower has been using entire actual coal received from MCLtowards the power supplied under the Haryana PPAs”

40. In view of this factual position that the entire domestic coallinkage came to be utilized for supplying power to Haryana Utilities, it isunjust, in our opinion, on the part of Haryana Utilities to say that 70% ofthe installed capacity should be further bifurcated and the Change inLaw benefit should be restricted only to 70% of the 70% of the installedcapacity which was allotted by the SLC (LT).

41. Even according to Haryana Utilities, the entire coal coveredunder FSA was required to be utilized for generating power to be suppliedto it as per the Memorandum of Understanding (“MoU” for short).Therefore, denial of the benefit of shortfall of the coal assured underFSA, in our view, would be contrary to the restitutionary principle, asheld by this Court in the cases of Energy Watchdog (supra) and JaipurVidyut Vitaran Nigam Ltd. and others v. Adani Power RajasthanLimited and another[4].

42. In any case, the learned APTEL has clarified that AP(M)L wasneither claiming nor was entitled to claim any Change in Law compensationbeyond the one which was covered by linkage coal, i.e. 1386 MW.

43. The other limb of argument in this regard is that AP(M)L hadMoUs with foreign companies for import of coal.

44. To a specific query by the learned APTEL, it was fairlyconceded by the learned counsel for Haryana Utilities that the MoUswere general in nature and not specific for Phase IV Mundra PowerPlant. As such, the finding of the learned APTEL that the MoUs annexedwith the bid were only to show its competence to participate in the bid,and that it cannot be stretched to hold that the bidder was to procureimported coal to the extent of 30% for the project, cannot be said to beperverse.

4 2020 SCC Online SC 697

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45. In the case of MSEDCL v. APML and Others (supra), thisCourt has elaborately referred to the earlier judgments of this Court andobserved thus:

“132. Undisputedly, in the case of Energy Watchdog (supra) aswell as in Adani Rajasthan case (supra) this Court has held thatBon account of the Change in Law, the generating companies wereentitled to compensation so as to restore the party to the sameeconomic position as if such Change in Law had not occurred.Had the Change in Law not occurred, the generating companieswould have been entitled to the supply as assured by the CIL/CCoal Companies under the FSA.”

46. We are, therefore, of the considered view that no error couldbe found with the concurrent findings that AP(M)L was entitled to Changein Law relief for 100% of the contracted capacity i.e. 1386 MW, whichis 70% of the installed capacity of 1980 MW of the Phase IV extensionDof Mundra Project. In other words, the finding of the CERC and thelearned APTEL is to the effect that AP(M)L would not be entitled toany benefit of Change in Law beyond 70% of the installed capacity i.e.1386 MW. The said findings cannot be said to not be based on the materialon record, or based on extraneous considerations.

E47. We are now left with the second issue with regard tomethodology.

48. The grievance of Haryana Utilities is that the methodologyfor granting benefit on account of the Change in Law adopted by theCERC and affirmed by the learned APTEL is contrary to the oneFwhich was previously arrived at in the earlier cases of GMR, DB Poweretc.

49. Perusal of the order passed by the learned APTEL wouldreveal that AP(M)L had proposed a methodology based on theGmethodology approved by the CERC in the GMR Kamalanga EnergyLimited and Another v. Dakshin Haryana Bijli Vitran NigamLimited and Others[5 ]considering the quoted tariff under the PPAs asthe base.

50. The learned APTEL had referred to the Record of Proceedingsof the CERC dated 10[th] August, 2017, which read thus:

“3. In response to the Commission’s query as to whether themethodology adopted by the Petitioner in the light of themethodology given in GMR case is acceptable to the HaryanaUtilities, learned counsel replied in the positive.”

51. The learned APTEL had also referred to the order of theCERC dated 28[th] September 2017 in I.A. No.57 of 2017 in PetitionNo.97/MP/2017, which reads thus:

“7…… Haryana Utilities who is the only respondent has notobjected to the calculation made by the Applicant.”

52. The learned APTEL had also referred to the order dated 3[rd]December 2018 passed by the CERC in Review Petition bearing No.24/RP/2018, which reads thus:

“25... It is apparent from the above that the Commission, afterdue consideration of the submissions of the Adani Power andPrayas had consciously decided on the methodology forcomputation of relief due to shortage of domestic coal underchange in law for the period from 1.4.2013 to 31.3.2017 in Para46 of the impugned order. The Review Petitioners had notsuggested any methodology of calculation of the relief due toshortage of domestic coal. On the other hand, the ReviewPetitioners in their reply dated 28.7.2017 in the Petition No. 97/MP/2017 had stated that “the reliance to the decision of GMR iswholly in appropriate”. The Review Petitioners are now suggestingan alternative formula for computation of the relief under changein law. As already reiterated in the earlier part of the order, thereview cannot be used for substitution of a view already takenwith a new view. Therefore, the review on the ground is notmaintainable.”

53. We find that Haryana Utilities are indulging into approbationand reprobation. They cannot be permitted to blow hot and cold at thesame time. After accepting before the CERC that they would adopt themethodology as given in the case of GMR Kamalanga Energy Limited(supra), it would not be appropriate, in our view, on the part of theappellants, which are, after all, instrumentalities of the State, to changeits stand after final orders are passed by the CERC.

A

B

C

D

E

F

G

H

A54. In the case of MSEDCL v. APML and Others (supra), thisCourt observed thus:

“150. In spite of this legal position and the stand taken by theUnion of India, the DISCOMS are taking a stand which is contraryto the stand of the Union of India. In Energy Watchdog (supra),Bit was also sought to be urged by DISCOMS that even on accountof Change in Law, adjustments would not be permissible, whichcontention was outrightly rejected. We have come across a numberof matters wherein concurrent orders passed by the RegulatoryBody and the Appellate Forum are assailed. Such a litigation would,in fact, efface the purpose of the Electricity Act. As alreadyCdiscussed herein above, one of the major reasons for the enactmentof the Electricity Act was the deterioration in performance of theState Electricity Boards.”

55. In the present case also, we find that the concurrent findingsof fact recorded by the two expert bodies could have been interferedDwith only if they failed to take into consideration the mandatory statutoryprovisions or if the decisions had been taken by them on extraneousconsiderations or that they were ex facie arbitrary and illegal. Nothingof that sort can be found in the impugned judgment and order to warrantinterference.

E56. The appeal is, therefore, found to be without substance andthe same is accordingly dismissed. No costs.

F

Nidhi Jain

(Assisted by : Rakhi, LCRA)

Appeal dismissed.

G

H