Supreme Court of India
HARYANA POWER PURCHASE CENTRE (HPPC) AND OTHERSversusGMR KAMALANGA ENERGY LIMITED AND OTHERS
- Citation
- 2025 INSC 1079
- Decided
- 8 September 2025
- Disposal
- Dismissed
Holding
The Court held that, in the absence of a substantial question of law and given the concurrent factual findings of the CERC and APTEL, the appeals under Section 125 must be dismissed and the orders of the lower bodies upheld.
Summary
The Supreme Court considered two civil appeals challenging the Appellate Tribunal for Electricity's (APTEL) dismissal of appeals that upheld the Central Electricity Regulatory Commission's (CERC) orders directing Haryana utilities to pay supplementary bills for change‑in‑law adjustments. The disputes centered on whether coal supplied under firm and tapering linkages should be apportioned pro‑rata among three distribution companies (Haryana utilities, GRIDCO, and Bihar utilities) and whether GRIDCO needed to be impleaded in the CERC proceedings. The Court reiterated that expert regulatory bodies' findings of fact are to be respected unless they are arbitrary, illegal, or ignore mandatory statutory provisions, and that appeals under Section 125 of the Electricity Act are permissible only on substantial questions of law under CPC Section 100. Finding no substantial question of law and noting the concurrent factual findings of CERC and APTEL, the Court dismissed both appeals and upheld the lower tribunals' orders. The decision emphasized the need to avoid unnecessary litigation and to maintain the balance between generator profitability and consumer protection.
Issues considered
- When may an appeal under Section 125 of the Electricity Act, 2003 be entertained under the grounds specified in Section 100 of the CPC?
- Whether the coal allocation under firm and tapering linkages should be apportioned pro‑rata among all three DISCOMs or can be limited to the Haryana utilities alone?
- Whether GRIDCO, as a party to a Section 62 PPA, needed to be impleaded in the CERC petitions filed under Section 79/63 concerning change‑in‑law adjustments?
Legislation cited
Headnote
663 : 2025 INSC 1079 Haryana Power Purchase Centre (HPPC) and Others v. GMR Kamalanga Energy Limited and Others (Civil Appeal No. 1929 of 2020) 08 September 2025 [B.R. Gavai,* CJI and K. Vinod Chandran, J.] Issue for Consideration The APTEL dismissed the appeals (Appeal no.135 of 2018 along with – Electricity Appeals – When experts bodies like the CERC, the APTEL and the Central Electricity Authority have taken a particular view: Held: When various expert bodies like the CERC, the APTEL and the Central Electricity Authority after considering the relevant material on record
Subjects
Concurrent findings of CERC and APTELElectricity AppealsSection 100 of Code of Civil Procedure, 1908Priority for supply of powerForce majeure eventsChange in law during the operation periodSubstantial question of lawSecond appealComputing the Energy Charge RateNone of the DISCOMS can claim a priorityPower purchase agreementPro rata allocation of coalSlow in interferingExpert bodies
Judgment
[2025] 9 S.C.R. 663 : 2025 INSC 1079
Haryana Power Purchase Centre (HPPC) and Others
v.
GMR Kamalanga Energy Limited and Others
(Civil Appeal No. 1929 of 2020)
08 September 2025
[B.R. Gavai,* CJI and K. Vinod Chandran, J.]
Issue for Consideration
The APTEL dismissed the appeals (Appeal no.135 of 2018 along
with Appeal no.54 of 2019) and upheld the order dated 20.03.2018
passed by the Central Electricity Regulatory Commission (CERC)
in Petition No.105/MP/20173.
Headnotes†
Electricity Act, 2003 – Electricity Appeals – When experts
bodies like the CERC, the APTEL and the Central Electricity
Authority have taken a particular view:
Held: When various expert bodies like the CERC, the APTEL
and the Central Electricity Authority after considering the relevant
material on record have taken a particular view, the Court should
be slow in interfering with the decisions taken by them – Unless
the Court finds that the expert bodies have failed to take into
consideration the mandatory statutory provisions or if their decisions
are 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. [Para 20]
Electricity Act, 2003 – s.125 – Code of Civil Procedure, 1908 –
s.100 – Appeal u/s.125, when permissible:
Held: The appeal u/s.125 of the 2003 Act is only permissible on
any of the grounds as specified in s.100 of the CPC – As such,
it is permissible only on substantial questions of law. [Para 23]
Electricity Act, 2003 – ss.79, 125 – The two instant appeals
challenge the same judgment and final order of the APTEL –
The first appeal being Civil Appeal No. 1929 of 2020 has been
* Author
664 [2025] 9 S.C.R.
Supreme Court Reports
filed by Haryana Power Purchase Centre and two others
(HPPC) whereas the second appeal being Civil Appeal No.3429
of 2020 has been filed by one GRIDCO – Earlier, Petition
No.79/2013 came to be filed by GKEL-respondent no.1 before
CERC against the Haryana Utilities for compensation due to
force majeure events and change in law during the operation
period – In the said petition, the GKEL-respondent no.1 sought
adjustment of tariff on account of events of Change in Law
which affected the power project during the operation period
in order to restore GKEL to the same economic position that
it would have been in if the concerned events had never
occurred – CERC vide order dt. 03.02.2016 disposed of the
said petition by allowing all such claims which fell within the
parameters of Change in Law events – GKEL had preferred a
similar petition being Petition No.112/MP/2015 against Bihar
Utilities, the CERC vide order dt. 07.04.2017 disposed of the
petition by allowing all such claims – The CERC vide another
order dated 20.03.2018 disposed of the Petition No. 105 by
directing the Haryana Utilities to pay the supplementary bills
raised by GKEL – Appeals before the APTEL – The APTEL
vide the common judgment and final order dated 20.12.2019
dismissed both the appeals and upheld the order of the
CERC – Correctness:
Held: In the first Appeal No. 1929 of 2020, there are concurrent
findings of facts not only in the impugned judgment passed by the
APTEL and the order passed by the CERC in Petition No.105,
but also in the order dated 03.02.2016 passed by the CERC in
Petition No.79 during the first round of litigation – The Court will,
therefore, have to be very slow in interfering with the said findings
of fact – Unless it is found that the findings are perverse, arbitrary
or in violation of the statutory provisions, it will not be permissible
for this Court to interfere with the same – Also, this Court does
not find any substantial question of law arises for consideration
in the present appeal – The petition was filed by GKEL seeking
relief on account of Change in Law on various grounds – One
of the grounds was with regard to deviations from the New Coal
Distribution Policy, 2007 (the NCDP) and changes in coal distribution
policy of the Government of India and Coal India Limited – The
perusal of paragraphs 54, 55 and 73 of the order passed by the
CERC dated 03.02.2016 would reveal that it devised a formula
for computing the Energy Charge Rate which required pro rata
[2025] 9 S.C.R. 665
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
allocation of coal among all three DISCOMS – It is pertinent to
note that the Haryana Utilities did not challenge the said order and
paid the amounts due – The perusal of the aforesaid judgment and
orders (CERC and APTEL) would reveal that they are based upon
interpretation of various documents – Considering the concurrent
findings of fact by the CERC on two different occasions and
the APTEL in impugned order and also taking into note of the
communication dated 02.02.2022 issued by MCL, this Court sees
no merit in the appeal of Haryana Utilities – In the second appeal
being Civil Appeal No.3429 of 2020 by GRIDCO is concerned, the
main contention of GRIDCO is that the order dated 03.02.2016
in Petition No.79 and order dated 20.03.2018 in Petition No.105
were passed without impleading GRIDCO – It will be relevant to
note that the PPA with GRIDCO is u/s.62 of the 2003 Act whereas
the PPAs with the Haryana Utilities and Bihar Utilities are u/s.63
of the 2003 Act – As such there was no occasion for GKEL to
implead GRIDCO as a party to the said petitions – Earlier, while
considering the appeal of Haryana Utilities, this Court has already
upheld the concurrent findings of the CERC and the APTEL that
the coal supply from all the sources has to be apportioned amongst
all the three DISCOMS in proportion to the energy supplied to
them – None of the DISCOMS can claim a priority for supply of
power based either on the prior date of agreement or the recital
as to the source of coal – There is no merit in the present appeal
as well – Appeals dismissed. [Paras 24, 28, 31, 34, 40, 41, 45]
Case Law Cited
Maharashtra State Electricity Distribution Company Limited v. Adani
Power Maharashtra Limited and Others [2023] 7 SCR 648 : (2023)
7 SCC 401 – relied on.
GMR Warora Energy Limited v. Central Electricity Regulatory
Commission (CERC) and Others [2023] 8 SCR 183 : (2023) 10
SCC 401; Uttar Haryana Bijli Vitran Nigam Ltd. & Another v. Adani
Power (Mundra) Limited and Others [2023] 5 SCR 468 : (2023)
14 SCC 736; Energy Watchdog v. Central Electricity Regulatory
Commission and Others [2017] 3 SCR 153 : (2017) 14 SCC
80 – referred to.
GMR-Kamalanga Energy Limited v. Dakshin Haryana Bijli Vitran
Nigam Ltd., 2016 SCC OnLine CERC 43 – referred to.
666 [2025] 9 S.C.R.
Supreme Court Reports
List of Acts
Electricity Act, 2003; Finance Act 2010; Code of Civil Procedure,
1908; New Coal Distribution Policy, 2007; CERC (Terms and
Conditions of Tariff) Regulations, 2009.
List of Keywords
Concurrent findings of CERC and APTEL; Electricity Appeals;
Section 100 of Code of Civil Procedure, 1908; Priority for supply of
power; Force majeure events; Change in law during the operation
period; Substantial question of law; Second appeal; Computing the
Energy Charge Rate; None of the DISCOMS can claim a priority;
Power purchase agreement; Pro rata allocation of coal; Slow in
interfering; Expert bodies.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1929 of 2020
From the Judgment and Order dated 20.12.2019 of the Appellate
Tribunal for Electricity at New Delhi in AN No. 135 of 2018
With
Civil Appeal No. 3429 of 2020
Appearances for Parties
Advs. for the Appellants:
M.G. Ramachandran, C. Aryama Sundaram, Sr. Advs., Ms. Poorva
Saigal, Shubham Arya, Nikunj Dayal, Ms. Pallavi Saigal, Abhishek
Gupta, Harshwardhan Singh, Raj Kumar Mehta, Ms. Himanshi
Andley.
Advs. for the Respondents:
Dr. Abhishek Manu Singhvi, Damma Seshadri Naidu, S.B.
Upadhyay, Sr. Advs., Vishrov Mukerjee, Pukhrambam Ramesh
Kumar, Yashaswi Kant, Ms. Juhi Senguttuvan, Ms. Priyanka
Vyas, L. Nidhiram Sharma, Avishkar Singhvi, Karun Sharma,
Ms. Rajkumari Divyasana, Vishrov Mukerjee, Pukhrambam Ramesh
Kumar, Yashaswi Kant, Ms. Juhi Senguttuvan, Ms. Priyanka Vyas,
L. Nidhiram Sharma, Avishkar Singhvi, Karun Sharma,
Ms. Rajkumari Divyasana, Ms. Prerna Singh, Ravi Kishore, Guntur
Prabhakar, Raj Kumar Mehta, Ms. Himanshi Andley, Nishant Kumar,
Abhinav Kathulia, Ms. Anisha Upadhyay.
[2025] 9 S.C.R. 667
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
Judgment / Order of the Supreme Court
Judgment
B.R. Gavai, CJI.
FACTUAL ASPECTS
1. These appeals take exception to the judgment and final order dated
20th December 2019 passed by the Appellate Tribunal for Electricity,
New Delhi1 in Appeal No. 135 of 2018 along with Appeal No. 54
of 2019, whereby the learned APTEL dismissed the said appeals
and upheld the order dated 20th March 2018 passed by the Central
Electricity Regulatory Commission, New Delhi2 in Petition No. 105/
MP/20173.
2. We have two appeals before us, both of which challenge the same
judgment and final order of the learned APTEL. The first appeal
being Civil Appeal No. 1929 of 2020 has been filed by Haryana
Power Purchase Centre and two others4 whereas the second appeal
being Civil Appeal No. 3429 of 2020 has been filed by one GRID
Corporation of Orissa Limited5. For the sake of clarity and to avoid any
confusion, the parties will be referred to according to their positions
in the first of the two civil appeals.
3. Before we proceed with the facts of the case, it would be apposite
to give a brief overview of the parties before us.
3.1 HPCC (Appellant No.1) is the nodal agency for the procurement
of power on behalf of the distribution licensees in the State of
Haryana, being Dakshin Haryana Bijli Vitran Nigam Limited
(Appellant No.2) and Uttar Haryana Bijli Vitran Nigam Limited
(Appellant No.3). Haryana Power Generation Corporation
Limited (Proforma Respondent No.6) is the body corporate
that was responsible for the initiation of the competitive bid
process on behalf of Appellant Nos. 2 and 3 for procurement
1 Hereinafter referred to as the ‘APTEL’
2 Hereinafter referred to as the ‘CERC’
3 Hereinafter referred to as ‘Petition No. 105’
4 Hereinafter referred to as the ‘HPCC’
5 Hereinafter referred to as ‘GRIDCO’
668 [2025] 9 S.C.R.
Supreme Court Reports
of power in the State of Haryana. Together, the said parties
may be referred to as the “Haryana Utilities”.
3.2 GMR Kamalanga Energy Limited 6 (Respondent No.1) is a
generating company within the meaning of the Electricity Act,
20037. Notably, GKEL is a special purpose vehicle of GMR
Energy Limited8 which was the predecessor-in-interest of the
Respondent No.1.
3.3 PTC India Limited9 (Respondent No.2) is a trading licensee
within the meaning of the 2003 Act. Respondent No. 2 had an
arrangement with GKEL for the procurement of power.
3.4 CERC (Respondent No.3) is the regulatory commission under
the 2003 Act.
3.5 GRIDCO (Respondent No.4) is a licensee under the 2003 Act
which is responsible for procuring power for supply within the
State of Odisha.
3.6 Similarly, Bihar State Power (Holding) Company10 (Respondent
No.5) is a licensee under the 2003 Act which is responsible for
procuring power for supply within the State of Bihar.
4. Having given a brief overview of the parties in the civil appeals, we
may now proceed to examine the facts which lead to the present
appeals. The facts are as follows:-
4.1 With the intention to set up a thermal power plant of about 1,000
MW comprising of two units of about 500 MW each at village
Kamalanga, Dhenkanal in the State of Odisha, GEL entered into
a Memorandum of Understanding (MoU) with the Government of
Odisha on 9th June 2006. Per the terms of the MoU, the power
project as envisaged was to operate with coal as the primary
fuel, for which purpose the State of Odisha was to either allot
coal blocks upon receipt of sanction from the Government of
India or allot long-term coal linkage of such quality and quantity
6 Hereinafter referred to as ‘GKEL’
7 Hereinafter referred to as the ‘2003 Act’
8 Hereinafter referred to as ‘GEL’
9 Hereinafter referred to as ‘PTC’
10 Hereinafter referred to as ‘Bihar Utilities’
[2025] 9 S.C.R. 669
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
as required for the project. The MoU further necessitated that
a nominated agency authorized by the Government of Odisha
would have the right to purchase up to 25% of power sent
out from the thermal power plants. While initially, the MoU
envisaged the setting up of thermal plants with an aggregate
capacity of 1,000 MW (500 x 2), by way of alteration carried
out subsequently, it was decided that GKEL would develop
four power plants each having a capacity of 350 MW. Three
out of the four said units have been installed, however, the
fourth unit of 350 MW is yet to be installed. Subsequently, this
project was accorded the Mega Power Project status by the
Ministry of Power, Government of India vide its letter dated 1st
February 2012.
4.2 In terms of the MoU, on 28th September 2006, GKEL executed
a Power Purchase Agreement with GRIDCO (Respondent No.4)
being the nominated agency of the State of Odisha for the sale
of 25% of the gross power generated by GKEL to GRIDCO,
which came to 262.5 MW, upon the installed capacity reaching
1050 MW (350 MW x 3).
4.3 Thereafter, on 5th January 2007, GKEL addressed a letter to the
Government of Odisha requesting the State Government for a
recommendation to the Ministry of Coal, Government of India
for the allotment of long-term coal linkage in favour of GKEL.
Accordingly, the Department of Energy, Government of Odisha
vide letters dated 19th December 2005 and 12th January 2007
pursued the matter with the Government of India.
4.4 While this was underway, on 1st March 2007, the Haryana
Power Generation Corporation (Respondent No.6) issued a
Request for Proposal11 on behalf of the Haryana Utilities for
procurement of 2,000 MW power on a long-term basis. The
said RfP envisaged the procurement of power by way of a
tariff-based bidding process as provided for under Section 63
of the 2003 Act. In order to qualify for the bid, all the bidders
were required to submit proof of fuel arrangements in terms of
Clauses 2.1.5 and 2.1.5 A of the RfP which read thus: -
11 Hereinafter referred to as ‘RfP’
670 [2025] 9 S.C.R.
Supreme Court Reports
“2.1.5 All Bidders are required to submit copies of
one or more of the following :-
(a) Linkage letter from the fuel supplier; or
(b) Fuel Supply Agreement between the Bidder and
Fuel Supplier; or
(c) Coal Block Allocation letter/In principle approval
for allocation of captive block from Ministry of Coal; or
(d) Other details submitted by Bidders subject to
acceptance by the Procurer as sufficient proof for
demonstration of ability,
The above proof of fuel arrangement is not required in
case the fuel to be used by the Bidder is imported fuel.
2.1.5 A The Successful Bidder is required to show a
firm fuel supply agreement/linkage by the time limit
specified for fulfilment of Conditions Subsequent as
mentioned in the PPA”
4.5 Subsequently, the Standing Linkage Committee (Long Term)12
of the Government of India in a meeting dated 2nd August 2007
approved a firm coal linkage of 2.14 MTPA13 for a 500 MW
power plant as had been originally envisaged under the 1,000
MW (500 MW x 2) configuration.
4.6 In addition to the said approval, the Ministry of Coal, Government
of India intimated its decision to allocate Rampia and Dip Side
Rampia coal blocks in Odisha to a consortium of six generating
companies including GEL. GEL’s share was 4.6 MTPA which
corresponded to the project capacity of 1,000 MW. The
approval came to pass when the Ministry of Coal, Government
of India confirmed the allotment of the said coal blocks to the
aforementioned consortium vide letter dated 17th January 2008.
4.7 In the meanwhile, on 31st October 2007, GEL entered into an
agreement with PTC in order to enable the latter to participate
in the bidding process initiated by Haryana Power Generation
12 Hereinafter referred to as ‘SLC-LT’
13 Short for ‘million tonnes per annum’
[2025] 9 S.C.R. 671
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
Corporation (Respondent No. 6) by way of the RfP. In pursuit of
the same, PTC submitted its bid for sale of 300 MW of power
to the Haryana Utilities and the bid was accepted. Thereafter,
vide an order dated 31st July 2008, the Haryana Electricity
Regulatory Commission (HERC) adopted the tariff successful
bidders including PTC under Section 63 of the 2003 Act.
4.8 Subsequently, upon the allocation of the Rampia and Dip Side
Rampia coal blocks to GEL and the remaining allottees of the
consortium, Mahanadi Coalfields Limited14 issued a Letter of
Assurance15 dated 25th July 2008 in favour of GEL for providing
firm linkage of 2.14 MPTA coal, being the normative requirement
of one of the power plants having capacity of 500 MW.
4.9 Thereafter, on 7th August 2008, PTC executed two separate
Power Purchase Agreements16 with the Dakshin Haryana Bijli
Vitran Nigam Limited (Appellant No.2) and Uttar Haryana Bijli
Vitran Nigam Limited (Appellant No.3) for supply of 150 MW
of power to each, aggregating to 300 MW with the Haryana
STU-Inter Connection Point being the delivery point. Notably, the
fuel type proposed to be utilized was Coal India Limited (CIL)
coal linkage and it was proposed to be sourced from the MCL.
4.10 As the captive coal from Rampia and Dip Side Rampia had not
become available, on 12th November 2008, the SLC-LT approved
the tapering coal linkage of 2.384 MTPA for 550 MW of the
power project, against the coal block allocation to the concerned
project. In view of the same, on 8th July 2009, MCL issued a
LoA to GEL providing tapering linkage as aforementioned till
captive coal blocks became available.
4.11 Subsequently, as aforementioned, GKEL and GRIDCO executed
an amended and restated PPA on 4th January 2011 which altered
the configuration of the thermal power plants and their output
capacity, while keeping intact the entitlement of GRIDCO to
25% gross power generated by GKEL.
4.12 On 9th November 2011, GKEL entered into a PPA with Bihar
State Electricity Board, being the predecessor to Bihar Utilities
14 Hereinafter referred to as ‘MCL’
15 Hereinafter referred to as ‘LoA’
16 Hereinafter referred to as ‘PPA’
672 [2025] 9 S.C.R.
Supreme Court Reports
for supply of 260 MW of net power/282 MW of gross power. Per
the said PPA, the fuel source proposed to be utilized was Coal
India Limited (CIL) coal linkage and the coal was proposed to
be sourced from MCL and the Rampia and Dip Side Rampia
coal blocks allocated to GKEL.
4.13 Thereafter, on 26th March 2013, MCL signed a Fuel Supply
Agreement17 with GKEL for supply of coal to the power plants
(3 x 350 MW) being 500 MW under normal linkage and 425
MW generation capacity covered under long term PPA i.e., an
aggregate of 1.819 MTPA/18.19 lakh tonnes. The FSA was
amended from time to time, initially to increase the quantum
of coal supplied from 1.819 MTPA to 2.0009 MTPA for the
same capacity of 425 MW and thereafter, the FSA was further
amended on 18th September 2014 to increase the quantum of
coal supplied to 2.14 MTPA on account of operationalization
of the PPA with Bihar Utilities.
4.14 Subsequently, on 28th August 2013, GKEL entered into another
independent FSA with MCL for tapering linkage.
4.15 In the meanwhile, on 23rd April 2013, GKEL preferred Petition
No. 79/MP/201318 before the CERC against Haryana Utilities,
being a petition under Section 79 of the 2003 Act read with the
statutory framework governing the procurement of power through
the competitive bidding process and Articles 12, 13 and 17 of
the PPA dated 7th August 2008 executed between PTC and the
Haryana Utilities and the back-to-back PPA dated 12th March
2009 executed between GEL and PTC for compensation due to
force majeure events and Change in Law during the operation
period. In the said petition, the GKEL sought adjustment of
tariff on account of events of Change in Law which affected the
power project during the operation period in order to restore
GKEL to the same economic position that it would have been
in if the concerned events had never occurred. It is notable that
GRIDCO was not made a party to this petition.
4.16 Soon thereafter, Unit I of the power project achieved commercial
operation and GKEL began supplying power to GRIDCO w.e.f.
17 Hereinafter referred to as ‘FSA’
18 Hereinafter referred to as ‘Petition No. 79’
[2025] 9 S.C.R. 673
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
30th April 2013. Within a few months, Unit II of the power project
achieved commercial operation and GKEL commenced the
supply of power to Haryana Utilities w.e.f. 7th February 2014.
Subsequently, Unit III of the power project achieved commercial
operation on 25th March 2014 and thereafter GKEL began
supplying power to Bihar Utilities w.e.f. 1st September 2014.
4.17 At this stage, it would be apposite to run through the quantum
of power that was contracted to be delivered under each of the
long-term PPAs, which are as follows:-
(a) Supply of 350 MW of gross power (Stage 1: 262.5 MW
and Stage 2: 87.5 MW) to GRIDCO in terms of PPA dated
28th September 2006 (as amended on 4th January 2011,
with delivery point as Odisha STU Interconnection point).
(b) Supply of 350 MW of gross power (300 MW net of
transmission losses and auxiliary consumption) to Haryana
Utilities based on PPA dated 7th August 2008 and back-
to-back PPA dated 12th March 2009 executed between
GEL and PTC.
(c) Supply of 282 MW of gross power (260 MW net of auxiliary
consumption) to Bihar State Electricity Board in term of
PPA dated 9th November 2011, with delivery point as the
Bihar STU Interconnection point.
4.18 The CERC vide order dated 3rd February 2016 disposed of the
Petition No. 79 filed by GKEL in the following terms:-
(i) At the time of bid submission, the notified rate of royalty
on coal was Rs. 55+5% of ROM price per tonne. This was
subsequently increased to an ad-valorem rate of 14% on
price of coal. The CERC held that GKEL would be entitled
to compensation for the same from Haryana Utilities.
(ii) At the time of bid submission, there was no clean energy
cess on coal. However, this was subsequently introduced
by way of the Finance Act 2010 whereby statutory cess
of Rs. 100 per tonne had been levied on coal. This was
subsequently reduced to Rs. 50 per tonne. The CERC held
that GKEL would be entitled to recover clean energy cess
from Haryana Utilities in proportion to the coal consumed
for generation and supply of electricity to the appellants.
674 [2025] 9 S.C.R.
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(iii) At the time of bid submission, there was no excise duty on
coal. Excise duty @ 6% on the determined sale price of
coal was introduced by the Finance Act 2012. The CERC
held that GKEL would be entitled to compensation through
adjustment in tariff on account of the freshly applicable
excise duty on coal.
(iv) Owing to shortfall in the linkage coal and also due to
transfer of certain quantum of tapering linkage from MCL
to Eastern Coalfields Limited, GKEL had to import coal and
also source open market coal. This had led to an additional
cost of Rs. 46.10 crores in the generation of power for
the Haryana Utilities during the months of February and
May to July 2014. The CERC held that GKEL would be
entitled to compensation for the same and accordingly set
out a mechanism for computing the actual additional cost
incurred in a month to mitigate the shortfall in linkage coal.
The actual compensation payable was to be calculated
and certified by the auditor in terms of the method laid
down by the CERC.
(v) At the time of submission of the bid, the pricing of coal
was based on the UHV19 method which was Rs. 400
per tonne for F-grade, run-of-mine coal. Thereafter, the
Government of India directed a switchover from UHV-
based pricing system to GCV20-based pricing system.
This led to a significant increase in price. The resultant
impact of the change was an increase in cost of Rs. 10.76
crores for a full year. The CERC disallowed this claim,
holding that any decision affecting the price of inputs for
generating electricity including coal could not be covered
under Change in Law.
(vi) GKEL had also raised claims for increase in rail freight
charges owing to busy season surcharge and development
surcharge. CERC disallowed this claim.
19 Short for ‘Useful Heat Value’
20 Short for ‘Gross Calorific Value’
[2025] 9 S.C.R. 675
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
(vii) GKEL also raised claims towards compensation/payment
for increase in MAT21 rate from 11.33% to 20.01% as
brought in by the Finance Act, 2012. This claim was also
disallowed.
(viii) A claim was raised by GKEL for payment towards the
increase in VAT22 from 4% to 5%. This claim was disallowed.
(ix) A claim was also raised for payment/compensation owing
to increase in water charges, which was disallowed.
4.19 It is notable that GKEL had preferred a similar petition being
Petition No. 112/MP/201523 against the Bihar Utilities with regard
to the PPA executed between the said parties for compensation
due to Change in Law which impacted revenues and costs
during the operating period. Vide order dated 7th April 2017,
the CERC disposed of the petition by allowing all such claims
which fell within the parameters of Change in Law events.
4.20 Subsequently, in terms of the order dated 3rd February 2016
passed in Petition No. 79, GKEL raised supplementary bills
towards compensation for ‘Change in Law’ events as approved
by the CERC, by pro-rating coal received from various sources
for the period commencing from February 2014 onwards. The
bills were accompanied by Form 15, detailed annexures and
calculations which clearly showed apportionment of firm linkage
coal corresponding to respective PPA capacities.
4.21 Disputing the supplementary bills raised by GKEL, Haryana
Utilities wrote to PTC on 22nd September 2016 seeking certain
clarifications as to whether the bills were as per the order of
the CERC dated 3rd February 2016. GKEL responded to the
letter on 6th October 2016 wherein it contended that as per
CERC’s order, it was entitled to claim additional cost incurred
during a month in respect of imported coal, open market coal
and tapering coal or any other coal purchased to make up the
shortfall in the firm linkage coal supplied by MCL.
21 Short for ‘Minimum alternate tax’
22 Short for ‘Value added tax’
23 Hereinafter referred to as ‘Petition No. 112’
676 [2025] 9 S.C.R.
Supreme Court Reports
4.22 Being dissatisfied with the response, Haryana Utilities refused to
make payments. To resolve the issue, a meeting was held on 25th
January 2017, however, the matter could not be resolved. In light
of the same, it was decided by PTC that the supplementary bills
raised by GKEL for the period between July 2016 to November
2016 would be considered to be disputed bills.
4.23 In order to resolve the issue, another meeting was convened
between the parties on 24th April 2017 wherein it was jointly
agreed that a clarificatory petition/review petition would be filed
before the CERC.
4.24 Thereafter, GKEL preferred Petition No. 105 before the CERC
under Section 79(1)(b) and (f) of the 2003 Act read with Articles
11.6 and 17 of the PPA dated 7th August 2008 for the recovery
of the outstanding amount from the Haryana Utilities raised
vide supplementary bills.
4.25 The CERC vide order dated 20th March 2018 disposed of
the said petition by directing the Haryana Utilities to pay the
supplementary bills raised by GKEL for the period from July
2016 to March 2017 along with late payment surcharge as
per the provisions of the PPA executed between the parties
within one month. The CERC held, in terms of the previous
order dated 3rd February 2017 as well as the decision of this
Court in Energy Watchdog v. Central Electricity Regulatory
Commission and Others24, GKEL would be eligible for relief for
any shortfall in the firm linkage and tapering linkage met through
import and open market coal. To avoid putting GRIDCO and
Bihar Utilities at a disadvantage, the CERC further directed that
the firm and tapering linkage coal supplied to GKEL would have
to be apportioned on a pro rata basis to all the beneficiaries of
the project and the cost of procurement of coal from alternate
sources to meet the shortfall would also be apportioned pro
rata based on power supplied to beneficiaries.
4.26 Aggrieved thereby, Haryana Utilities preferred Appeal No. 135
of 2018 before the learned APTEL. Subsequently, GRIDCO
preferred Appeal No. 54 of 2019 before the learned APTEL.
24 (2017) 14 SCC 80
[2025] 9 S.C.R. 677
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
4.27 The learned APTEL vide the common judgment and final order
dated 20th December 2019 dismissed both the appeals and
upheld the order of the CERC.
4.28 Hence, these civil appeals under Section 125 of the 2003 Act.
SUBMISSIONS
5. We have heard Shri M.G. Ramachandran, learned Senior Counsel
appearing for the appellants, Dr. Abhishek Manu Singhvi, learned
Senior Counsel and Shri Vishrov Mukherjee, learned counsel
appearing for Respondent No.1, Ms. Prerna Singh, learned counsel
appearing for Respondent No.2, Shri Raj Kumar Mehta, learned
counsel appearing for Respondent No. 4 and Shri S.B. Upadhyay,
learned Senior Counsel appearing for Respondent No.5.
6. Shri Ramchandran, learned Senior Counsel appearing on behalf of
the Haryana Utilities submitted that from the perusal of the RfP issued
by Haryana Utilities in March, 2007 and the bid submitted by GKEL
on 23rd November 2007 through PTC, it is clear that the bidders
were required to submit the details with regard to fuel arrangement,
source of fuel among other particulars. It is equally clear that while
submitting the bid, GKEL had shown the source of fuel to be firm
linkage granted by way of SLC-LT meeting held on 2nd August 2007.
It is further submitted that the perusal of PPA dated 7th August 2008
between Haryana Utilities and PTC would also show that the PPA
was based on firm linkage coal from MCL. It is submitted that as
against this, the PPA dated 9th November 2011, entered into by
GKEL with Bihar Utilities clearly indicated the sources of fuel as
firm linkage as well as Rampia and Dip Side of Rampia coal block
allotment (tapering linkage).
7. Shri Ramchandran further submitted that FSA as well as the LoA in
favour of GKEL for the first phase was unit specific. It is submitted
that FSA becomes operational in proportion to the generation covered
under long term PPAs. It is submitted that at the time when the FSA
dated 26th March 2013 was signed, even though the linkage was
for 500 MW, only 425 MW was considered as generation capacity.
This was so since the PPAs with Haryana Utilities for 300 MW as
well as with GRIDCO for 125 MW were the only long term PPAs at
that time. Shri Ramchandran further submitted that subsequently,
when the Bihar PPA became operational, the capacity under the
678 [2025] 9 S.C.R.
Supreme Court Reports
FSA vis-à-vis firm linkage was modified by specific additional 29.55
MW (out of a total Bihar PPA capacity of 260 MW).
8. Shri Ramchandran contended that the Haryana Utilities would be
entitled to supply of 300 MW of energy from the firm linkage whereas
GRIDCO would be entitled to supply of 125 MW energy produced
using the coal available from the firm linkage. It is, therefore, submitted
that the Haryana Utilities cannot be burdened with the additional cost
incurred on account of production of coal from the MCL tapering
linkage. Shri Ramchandran submitted that the difference on account
of the use of fuel from tapering linkage will have to be borne only
by the GRIDCO and Bihar Utilities inasmuch as the said coal was
used for production of power for Unit II of 200 MW and Unit III of 350
MW. It is, therefore, submitted that both the CERC as well as the
learned APTEL erred in putting the burden on the Haryana Utilities
whereas the same should have been apportioned to Bihar Utilities
and GRIDCO.
9. Shri Raj Kumar Mehta, learned counsel appearing on behalf of
GRIDCO submitted that it was the PPA with GRIDCO which came to
be operationalized first in April 2013. It is submitted that even though
GRIDCO’s share in the installed capacity of the thermal station of
GKEL was 25%, the order dated 3rd February 2016 in Petition No. 79
and order dated 20th March, 2018 in Petition No. 105 were passed
without impleading GRIDCO. It is submitted that GRIDCO was a
necessary and proper party as its rights were adversely affected.
It is submitted that GRIDCO was also not impleaded in the appeal
being Appeal No. 135 of 2018 filed by the Haryana Utilities before
the learned APTEL. It is submitted that on account of the order dated
28th November 2018 of the learned APTEL, GRIDCO came to be
impleaded in the said appeal.
10. Shri Mehta further submitted that the reasoning given by the learned
APTEL that since GRIDCO’s PPA was Cost Plus Tariff PPA under
Section 62 of the 2003 Act whereas the proceedings before the CERC
and the learned APTEL were initiated seeking compensation on the
grounds of Change in Law with regard to Haryana Utilities and Bihar
Utilities which fell under Section 63 of the 2003 Act and therefore,
GRIDCO was not necessary party, is wholly unsustainable. It is
submitted that GKEL had specifically prayed for pro rating of linkage
coal amongst all the three utilities namely GRIDCO, Haryana Utilities
and Bihar Utilities and as such GRIDCO was a necessary party.
[2025] 9 S.C.R. 679
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
11. It is submitted that the project sought to be installed by GKEL was
at the instance of the Government of Odisha. It is submitted that the
State of Odisha had provided all the necessary facilities to GKEL
to install the project. It is therefore submitted that it is the GRIDCO
which had the first right to the power generated from the coal made
available from the firm linkage.
12. Dr. Abhishek Manu Singhvi appearing on behalf of the respondent
No. 1 submitted that the appeals are liable to be dismissed on
the short ground that they do not raise any substantial question of
law as is required under Section 125 of the 2003 Act. It is further
submitted that the order dated 20th March 2018 in Petition No. 105
is passed by the CERC on the basis of its earlier order dated 3rd
February, 2016 in Petition No. 79. It is submitted that the CERC in
Petition No. 79 had clearly held that coal supplied to GKEL under
linkage by Government of India is to be apportioned on pro rata
basis to all the three Distribution Companies25 i.e. Haryana Utilities,
GRIDCO and Bihar Utilities. It is submitted that since the Haryana
Utilities had not challenged the said order, it was not permissible for
them to challenge the order passed in Petition No. 105. It is further
submitted that supply of coal from all the modes of procurement
has to be considered for the power project inasmuch as allocation
by Government of India was for the whole project and not specific
to any particular DISCOM.
13. Dr. Singhvi further submitted that the concurrent orders passed by
the CERC and the learned APTEL are equitable orders inasmuch
as it has been held that coal supplied under the linkage is to be
apportioned on pro rata basis to all the DISCOMS. However, if the
contentions of the Haryana Utilities are accepted, it will amount to
burdening the consumers in the State of Odisha and Bihar. It is
further submitted that if the contentions of both Haryana Utilities and
GRIDCO are accepted, it will amount to putting the total burden on
the consumers in the State of Bihar.
14. Dr. Singhvi further contended that the attitude of Haryana Utilities
is of approbation and reprobation. It is submitted that in the case
of Uttar Haryana Bijli Vitran Nigam Ltd. & Another v. Adani
25 Hereinafter referred to as ‘DISCOMS’
680 [2025] 9 S.C.R.
Supreme Court Reports
Power (Mundra) Limited and Others26, this Court noted that after
accepting before the CERC that they would adopt the methodology
as given in the case of GMR-Kamalanga Energy Limited v. Dakshin
Haryana Bijli Vitran Nigam Ltd.27, Haryana Utilities changed their
stand subsequently.
15. In the totality, Dr. Singhvi submitted that the appeals deserve to be
dismissed.
16. Shri S.B. Upadhyay, learned Senior Counsel appearing on behalf of
respondent No. 5 has supported the concurrent orders of the CERC
and the learned APTEL.
DISCUSSION AND ANALYSIS
17. At the outset, it can be noticed that all three DISCOMS agree that
GKEL is entitled to compensation on account of Change in Law
event. However, the Haryana Utilities and GRIDCO argued that the
said liability should not come to them but should instead be passed
on to the other two. It is only the Bihar Utilities which agrees that the
liability has to be equally shared by all three DISCOMS in proportion
to the energy supplied to them. We find it appropriate to deal with
both the appeals separately.
CIVIL APPEAL NO. 1929 OF 2020
18. Undisputedly, the present appeal filed by Haryana Utilities challenges
the impugned judgment and final order passed by learned APTEL
whereby the learned APTEL has upheld the order of the CERC. The
appeal to this Court has been filed under Section 125 of the 2003
Act. The perusal of Section 125 shows that the appeal is tenable
only on the grounds as available under Section 100 of the Code of
Civil Procedure, 190828, as such, it could be seen that appeal would
be tenable only on a substantial question of law.
19. One of us (B.R. Gavai, J, as he then was) had an occasion to deal
with a large batch of electricity appeals pertaining to Change in Law
event. This Court first decided the common issues involved in the
26 (2023) 14 SCC 736
27 (2016) SCC OnLine CERC 43
28 Hereinafter referred to as “CPC”
[2025] 9 S.C.R. 681
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
said batch of appeals in Maharashtra State Electricity Distribution
Company Limited v. Adani Power Maharashtra Limited and
Others29. It would be apposite to refer to following paragraphs of
the said judgment:
“118. It could thus be seen that two expert bodies i.e.
CERC and the learned APTEL have concurrently held, after
examining the material on record, that the factors of SHR
and GCV should be considered as per the Regulations or
actuals, whichever is lower. CERC as well as the State
Regulatory bodies, after extensive consultation with the
stakeholders, had specified SHR norms in the respective
Tariff Regulations. In addition, insofar as GCV is concerned,
the CEA has opined that the margin of 85-100 kcal/kg
for a non-pit head station may be considered as a loss
of GCV measured at wagon top till the point of firing of
coal in boiler.
119. In this respect, we may refer to the following
observations of this Court in Reliance Infrastructure
Ltd. v. State of Maharashtra [Reliance Infrastructure
Ltd. v. State of Maharashtra, (2019) 3 SCC 352] : (SCC
pp. 376-77, paras 38-39)
“38. MERC is an expert body which is entrusted
with the duty and function to frame regulations,
including the terms and conditions for the
determination of tariff. The Court, while exercising
its power of judicial review, can step in where
a case of manifest unreasonableness or
arbitrariness is made out. Similarly, where the
delegate of the legislature has failed to follow
statutory procedures or to take into account
factors which it is mandated by the statute to
consider or has founded its determination of
tariffs on extraneous considerations, the Court
in the exercise of its power of judicial review
will ensure that the statute is not breached.
29 (2023) 7 SCC 401, hereafter referred to as MSEDCL
682 [2025] 9 S.C.R.
Supreme Court Reports
However, it is no part of the function of the
Court to substitute its own determination for a
determination which was made by an expert
body after due consideration of material
circumstances.
39. In Assn. of Industrial Electricity Users v. State of
A.P. [Assn. of Industrial Electricity Users v. State
of A.P., (2002) 3 SCC 711] a three-Judge Bench
of this Court dealt with the fixation of tariffs and
held thus : (SCC p. 717, para 11)
‘11. We also agree with the High Court
[S. Bharat Kumar v. State of A.P., 2000
SCC OnLine AP 565 : (2000) 6 ALD 217]
that the judicial review in a matter with
regard to fixation of tariff has not to be as
that of an appellate authority in exercise
of its jurisdiction under Article 226 of the
Constitution. All that the High Court has to
be satisfied with is that the Commission has
followed the proper procedure and unless it
can be demonstrated that its decision is on
the face of it arbitrary or illegal or contrary
to the Act, the court will not interfere. Fixing
a tariff and providing for cross-subsidy is
essentially a matter of policy and normally
a court would refrain from interfering with a
policy decision unless the power exercised
is arbitrary or ex facie bad in law.’ ”
**** **** ****
121. Recently, the Constitution Bench of this Court in Vivek
Narayan Sharma (Demonetisation Case-5 J.) v. Union
of India [Vivek Narayan Sharma (Demonetisation Case-
5 J.) v. Union of India, (2023) 3 SCC 1] has held that the
Courts should be slow in interfering with the decisions
taken by the experts in the field and unless it is found that
the expert bodies have failed to take into consideration
the mandatory statutory provisions or the decisions taken
are based on extraneous considerations or they are ex
[2025] 9 S.C.R. 683
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
facie arbitrary and illegal, it will not be appropriate for this
Court to substitute its views with that of the expert bodies.”
20. It can thus be seen that this Court has held that when various
expert bodies like the CERC, the APTEL and the Central Electricity
Authority after considering the relevant material on record have
taken a particular view, the Court should be slow in interfering with
the decisions taken by them. It has been held that unless the Court
finds that the expert bodies have failed to take into consideration
the mandatory statutory provisions or if their decisions are 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.
21. After deciding the common issues involved in the batch of electricity
appeals in the case of MSEDCL (supra), this Court considered various
additional issues involved in individual matters pertaining to the
question of Change in Law event. One such case was GMR Warora
Energy Limited v. Central Electricity Regulatory Commission
(CERC) and Others30. This Court in the said case observed thus:
“VI. Epilogue
171. Before we part with the judgment, we must note that
we have come across several appeals in the present batch
which arise out of concurrent findings of fact arrived at
by two statutory bodies having expertise in the field. We
have also found that in some of the matters, the appeals
have been filed only for the sake of filing the same. We
also find that several rounds of litigation have taken place
in some of the proceedings.
172. Recently, this Court in Maharashtra State Electricity
Distribution Co. Ltd. v. Adani Power Maharashtra
Ltd. [Maharashtra State Electricity Distribution Co.
Ltd. v. Adani Power Maharashtra Ltd., (2023) 7 SCC
401] has noted that one of the reasons for enacting
the Electricity Act, 2003 was that the performance of
the Electricity Boards had deteriorated on account of
various factors. The Statement of Objects and Reasons
30 (2023) 10 SCC 401
684 [2025] 9 S.C.R.
Supreme Court Reports
of the Electricity Act, 2003 would reveal that one of the
main features for enactment of the Electricity Act was
delicensing of generation and freely permitting captive
generation. In the said judgment, we have recorded the
statement of the learned Attorney General made in Energy
Watchdog [Energy Watchdog v. CERC, (2017) 14 SCC 80 :
(2018) 1 SCC (Civ) 133] that the electricity sector, having
been privatised, had largely fulfilled the object sought to
be achieved by the Electricity Act. He had stated that
delicensed electricity generation resulted in production
of far greater electricity than was earlier produced. The
learned Attorney General had further urged the Court not
to disturb the delicate balance sought to be achieved by
the Electricity Act i.e. that the producers or generators of
electricity, in order that they set up power plants, be entitled
to a reasonable margin of profit and a reasonable return
on their capital, so that they are induced to set up more
and more power plants. At the same time, the interests of
the end-consumers also need to be protected.
173. However, we find that, in spite of this position,
litigations after litigations are pursued. Though the
concurrent orders of statutory expert bodies cannot be
said to be perverse, arbitrary or in violation of the statutory
provisions, the same are challenged.”
22. It will also be appropriate to refer to the following observations made
by this Court in paragraph 181 of the said judgment:
181. It is further to be noted that the appeal to this Court
under Section 125 of the Electricity Act, 2003 is only
permissible on any of the grounds as specified in Section
100 of the Code of Civil Procedure, 1908. As such, the
appeal to this Court would be permissible only on substantial
questions of law. However, as already observed herein,
even in cases where well-reasoned concurrent orders are
passed by the Electricity Regulatory Commissions and the
learned Aptel, the same are challenged by the Discoms as
well as the generators. On account of pendency of litigation,
which in some of the cases in this batch has been more
than 5 years, non-payment of dues would entail paying
[2025] 9 S.C.R. 685
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
of heavy carrying cost to the generators by the Discoms,
which, in turn, will be passed over to the end-consumer.
As a result, it will be the end-consumer who would be at
sufferance. We are of the opinion that such unnecessary
and unwarranted litigation needs to be curbed.
23. This Court in clear terms noted that the appeal under Section
125 of the 2003 Act is only permissible on any of the grounds as
specified in Section 100 of the CPC. As such, it is permissible only
on substantial questions of law. This Court observed that even in
cases where well-reasoned concurrent orders are passed by the
Electricity Regulatory Commissions and the learned APTEL, the
same are challenged by DISCOMS as well as the generators. It has
been observed that on account of pendency of litigation which in
some of the cases in the said batch had been for more than 5 years,
non-payment of dues would result in paying of heavy carrying cost
to the generators by the DISCOMS. It was observed that, in turn,
this heavy cost is passed over to the end-consumers who are the
ultimate sufferers. The Court had in unequivocal terms observed that
such unnecessary and unwarranted litigations need to be curbed. In
spite of the aforesaid observations, this Court is flooded with such
kind of litigations.
24. In the present matter, there are concurrent findings of facts not
only in the impugned judgment passed by the learned APTEL and
the order passed by the CERC in Petition No. 105, but also in the
order dated 3rd February 2016 passed by the CERC in Petition No.
79 during the first round of litigation. The Court will, therefore, have
to be very slow in interfering with the said findings of fact. Unless
it is found that the findings are perverse, arbitrary or in violation of
the statutory provisions, it will not be permissible for this Court to
interfere with the same.
25. Though, it was sought to be argued on behalf of the appellants
that in the present case question of interpretation of the documents
arises and the same question would fall in the category of substantial
question of law, we do not find that any substantial question of law
arises for consideration in the present appeal.
26. Be that as it may, since the present appeal is pending since 2020
having been admitted on 3rd June 2020, we propose to deal with
the merits of the matter.
686 [2025] 9 S.C.R.
Supreme Court Reports
27. It will be relevant to refer to the Petition No. 79 filed by GKEL before
the CERC. GKEL contended in the said petition that it had entered
into three long term PPAs as under:
a) Supply of 350 MW gross power (Stage 1: 262.5 MW and Stage
2: 87.5 MW) to Grid Corporation of Odisha Limited (GRIDCO)
in terms of PPA dated 28th September 2006 (as amended on 4th
January 2011 with delivery point as Odisha STU interconnection
point).
b) Supply of 282 MW gross power (260 MW net of auxiliary
consumption) to Bihar State Electricity Board in terms of PPA
dated 9th November 2011, with delivery point as the Bihar STU
interconnection point.
c) Supply of 350 MW gross power (300 MW net of transmission
losses and auxiliary consumption) to Haryana Discoms based
on the competitive bidding through back-to-back arrangements:
(i) The PPAs dated 7th August, 2008 entered into between
PTC India Limited and Haryana Discoms with delivery
point as Haryana STU bus bar;
(ii) Back-to-back PPA dated 12th March, 2009 between GMR
Energy Limited (holding company of GKEL) and PTC
India Limited.
28. The petition was filed by GKEL seeking relief on account of Change
in Law on various grounds. One of the grounds was with regard to
deviations from the New Coal Distribution Policy, 2007 (the NCDP)
and changes in coal distribution policy of the Government of India
and Coal India Limited.
29. The issue with regard to firm linkage and tapering linkage in favour of
GKEL and allocation of captive coal mines in favour of a consortium
of six companies including GKEL also fell for consideration in the said
petition. It will also be relevant to refer to the following submissions
of GKEL recorded by the CERC:
“6…..
(a) As regards the firm linkage, the Standing Linkage
Committee (Long Term) (SLC-LT) approved a coal linkage
for the project on 2.8.2007 which was communicated to
[2025] 9 S.C.R. 687
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
the petitioner on 24.9.2007. Letter of Assurance (LOA)
was issued in favour of GEL on 25.7.2008 for 2.14 MTPA
of coal for 500 MW capacity of the Power Project. LOA
was transferred in the name of GEKL by Ministry of Coal
on 17.2.2011.
(b) On 6.11.2007, Ministry of Coal conveyed its decision
to allocate Rampia and Dip Side Rampia coal blocks in
Odisha to a consortium comprising of GEL and five other
companies (M/s Sterlite Energy Ltd, M/s Mittal Steel India
Limited, M/s Lanco Group Limited, M/s Navbharat Power
Private Ltd, and M/s Reliance Energy Ltd). Ministry of Coal
vide its letter dated 17.1.2008 made the allocation under
Section 3(3)(a) (iii) of the Coal Mines (Nationalisation) Act,
1973 for captive use in the specified end use projects by
the allocatees. A joint venture company in the name of
Rampia Coal Mine and Energy Private Limited was formed
by the allocattees to carry out coal mining in early 2008.
(c) On 12.11.2008, SLC-LT approved tapering coal linkage
for the power project based on the recommendation of CEA
that development of coal block allocated to GEL alongwith
others was likely to take time. On 8.7.2009, LOA was
issued for tapering coal linkage of 2.384 MTPA for 550
MW capacity in favour of GEL till coal from Rampia coal
block was available. LOA was transferred in the name of
GEKL by Ministry of Coal on 17.2.2011.
(d) On 26.3.2013, Mahanadi Coalfield Limited (MCL)
signed the Fuel Supply Agreement with GEKL for supply
of 1.819 MTPA of coal per annum.
7. According to the petitioners, the financial closure of
the power project was achieved on 29.5.2009 and the
petitioners went ahead with execution of the project with
the expected COD of Unit 1 as 25.4.2013 as on the date
of filing the present petition.
30. In the said petition, the Haryana Utilities had raised a preliminary
objection on the ground that impact of Change in Law can be
ascertained only during the operation period, i.e. after the power
project has been declared under commercial operation. The CERC
with following observations rejected the said preliminary objection:
688 [2025] 9 S.C.R.
Supreme Court Reports
“17. According to the Haryana Discoms, the present petition
is premature since the impact of “Change in Law” can be
ascertained only during the operation period, that is, after
the power project has been declared under commercial
operation. In this regard, it is noted that 1st Unit of the
power project was commissioned on 30.4.2013 and has
been taken note of by the Haryana Power Purchase Centre
(which is responsible for purchase of power on behalf
of the Haryana Discoms) in its letter dated 20.5.2013.
Subsequently, in its letter dated 8.8.2013, HPCC in
response to the petitioner’s offer contained in the letter
dated 4.7.2013, consented for scheduling of power from
the Project. The 2nd Unit achieved COD on 12.11.2013 and
supply to the Haryana Discoms commenced on 7.2.2014.
3rd Unit achieved COD on 25.3.2014. Since all units of the
power project have achieved COD, the operating period
has already commenced, making the petitioners eligible for
compensation under Change in Law during the operating
period. The objections of Haryana Discoms on this count
are disposed of accordingly.”
31. The perusal of paragraphs 54, 55 and 73 of the order passed by
the CERC dated 3rd February 2016 would reveal that it devised a
formula for computing the Energy Charge Rate31 which required pro
rata allocation of coal among all three DISCOMS. It is pertinent to
note that the Haryana Utilities did not challenge the said order and
paid the amounts due in terms of the said order till June 2016. The
Haryana Utilities had accepted the bills which were submitted in
pursuance to the order passed in Petition No. 79 and a total of about
Rs. 140 crores were paid till June, 2016. However, in September
2016, the Haryana Utilities raised the issue of pro rata allocation of
coal. After due deliberations, Haryana Utilities and GKEL agreed that
the latter would approach the CERC for clarification in this regard.
As such, GKEL filed Petition No. 105. The argument of Haryana
Utilities in the said petition was that coal received under FSA dated
26th March 2013 should be considered for Haryana Utilities only
and shortfall in supply thereof should be met through imported,
open market or tapering coal. However, it was submitted on behalf
31 Hereinafter referred to as ‘ECR’
[2025] 9 S.C.R. 689
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
of GKEL that the allocation of coal was made for the entire plant of
GKEL and therefore, coal shall be used proportionately for generation
and supply of power to all beneficiaries namely GRIDCO, Haryana
Utilities and Bihar Utilities.
32. The CERC vide order dated 20th March 2018 passed in Petition No.
105 considered the rival submissions as under:
“31. On perusal of the documents on record, it emerges
that the Petitioner was granted firm linkage of 500 MW
and linkage from captive coal mine for 550 MW for its
plant which was envisaged to have capacity of 1050
MW(3x350 MW), Subsequently, LOA dated 25.7.2008
was issued for firm linkage of 2.14 MTPA for 500 MW
and LOA dated 8.7.2009 was issued for tapering linkage
of 2.384 MTPA for 550 MW by Ministry of Coal. Perusal
of the Standing Linkage Committee (SLC) Minutes of
Meeting dated 14.2.2012 reveals that the tapering linkage
of 2.384 MTPA was allocated to the Petitioner for all three
beneficiaries i.e. GRIDCO, Bihar Discoms and Haryana
Discoms. The Committee noted that in some cases like
GMR Kamalanga Energy Ltd., two separate LoAs were
recommended by the SLC (LT) in different meetings, due
to change in the configuration/capacity of the unit. The 2nd
LoA was recommended by the SLC (LT) for the remaining
capacity arising out of the changed configuration. On the
recommendation of SLC (LT), the LoAs dated 25.7.2008
and 8.7.2009 were issued to the Petitioner for 500 MW
and 550 MW respectively to meet the coal requirement
for the entire capacity of 1050 MW.
32. FSA dated 26.3.2013 was entered into by the Petitioner
with Mahanadi Coalfield Limited for 500 MW of firm linkage
coal. The Tapering Linkage FSA with MCL was signed
on 20.5.2014 and Tapering linkage FSA with ECL was
signed on 29.5.2014. Paras 4.1.1 and 4.2 of the FSA
dated 26.3.2013 provide as under:
“4.1.1 The Annual Contracted Quantity of
Coal agreed to be supplied by the Seller and
undertaken to be purchased by the Purchaser,
shall be 18.19 lakh Tes. Per Year from the Seller’s
690 [2025] 9 S.C.R.
Supreme Court Reports
mines and/or from import, as per Schedule I.
For part of Year, the ACQ shall be prorated
accordingly. The ACQ shall be in proportion of
the percentage of Generation covered under long
term Power Purchase Agreements executed by
the Purchaser with the DISCOMs either directly
or through PTC(s) who has/have signed the
back to back long term PPA(s) with DISCOMs.
Whenever, there is any change in the percentage
of PPA(s), corresponding change in ACQ shall
be effected through a side agreement. Such
changes shall be allowed to be made only once
in a year and shall be made effective only from
the beginning of the next quarter. However, in
no case ACQ should exceed the LOA quantity
as mentioned in Schedule I.
4.2. The total quantity of coal supplied pursuant
to this Agreement is meant for use at Power Plant
(3X350 MW), 500 MW under Normal Linkage
(425 MW generation capacity covered under
long term PPA). Located at Village-Kamalanga,
Dt. Dhenkanal, Odhisha as listed in Schedule I.
The Purchaser shall not sell/divert and/or transfer
the Coal to any third party for any purpose
whatsoever and the same shall be treated as
material breach of Agreement, for which the
Purchaser, shall be fully responsible and each
act shall warrant suspension of coal supplies by
the Seller in terms of Clause 14.1 (b).”
It is evident from the above provisions of the FSA that the
total quantum of coal supplied pursuant to the FSA is meant
for use at the power plant (3x350 MW) of the Petitioner.
Further, ACQ would be in proportion to the percentage
of generation covered under long term PPAs either with
the DISCOMs directly or through PTC which have been
signed by the Petitioner. Therefore, the FSA cannot be
for a particular PPA as contended by HPPC. As on the
date of the FSA, only 425 MW were to be operationalised
under long term PPAs with PTC/Haryana DISCOMs and
[2025] 9 S.C.R. 691
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
GRIDCO and accordingly, only 425 MW covered under
the long term PPAs was mentioned in the FSA. The FSA
further provides that whenever there is any change in the
percentage of PPAs, corresponding changes in the ACQ
shall be effected through side agreements. The FSAs for
the tapering linkage were signed with MCL on 20.5.2014
and with ECL on 29.5.2014. These FSAs were signed
before the commencement of supply under Bihar PPA. The
Petitioner was receiving 2.58 MTPA of coal from both firm
and tapering linkage to meet the requirement for 618 MW
and after operationalization of Bihar PPA, the Petitioner
received 3.63 MTPA of coal to meet the requirement of
905 MW. Therefore, any shortfall in the firm linkage as well
as tapering linkage met through import and open market
coal shall be eligible for relief under the Change in law
in the light of the order dated 3.2.2016 and the Hon’ble
Supreme Court’s judgment in Energy Watchdog case.
33. In the light of the above discussion, it cannot be
inferred from the language of para 48 of the order dated
3.2.2016 that the requirement of Haryana PPA shall be
met from the firm linkage under the FSA dated 26.3.2013
and shortfall thereof shall be met through import and open
market coal. Such an interpretation goes against the coal
allocation by Ministry of Coal to power plant of the Petitioner
as a whole and will put the GRIDCO PPA and Bihar PPA
at a disadvantage vis- a-vis Haryana PPA. In fact, the
Commission in para 73 (b) of the order dated 3.2.2016 in
Petition No. 79/MP/2013 had observed as under:
“73……
(b) The additional cost incurred in a month due
to shortage of linkage coal shall be computed on
ex-bus scheduled energy and shall be pro-rated
corresponding to the scheduled generation for
Haryana Discoms as per methodology given in
para 56 above.”
Therefore, in light of the allocation of firm as well as
tapering linkage for all three beneficiaries and our order
dated 3.2.2016 in Petition No. 79/MP/2013, the firm and
692 [2025] 9 S.C.R.
Supreme Court Reports
tapering linkage coal supplied to the Petitioner has to be
apportioned on pro rata basis to all beneficiaries of the
project and the cost of procurement of coal from alternate
sources to meet the shortfall of firm and tapering linkage
coal has also to be apportioned pro rata based on power
supplied to these beneficiaries. Accordingly, the contention
of Haryana Discoms to appropriate the coal supplied under
firm linkage towards the capacity being supplied to them
instead of pro-rata apportionment to all the beneficiaries is
not correct. The order dated 3.2.2016 has to be read in its
entirety and HPPC is not correct to pick up an observation
in para 48 of the said order to claim that Its liability is
limited to imported/open market coal for the shortage
in firm linkage coal only. In our view, the Petitioner has
correctly apportioned the linkage coal to Haryana Discoms
proportionate to the capacity being supplied to them and
has issued Supplementary Bills in accordance with the
formula devised in order dated 3.2.2016 in Petition No.
79/MP/2013. Accordingly, we direct the respondents to
pay the supplementary bills raised by the Petitioner for
the period from July, 2016 to March, 2017 along with late
payment surcharge as per the provisions of the PPA within
one month from the date of issue of the order.”
33. The said order came to be challenged by the Haryana Utilities.
However, at the instance of the learned APTEL, GRIDCO came
to be impleaded as party respondent in the appeal filed by the
Haryana Utilities. Subsequently, GRIDCO also filed its own appeal
before the learned APTEL. It was sought to be contended on behalf
of the Haryana Utilities that the order passed in Petition No. 105
was beyond the order dated 3rd February 2016. Rejecting the said
contention, the learned APTEL by a well-reasoned judgment and
order observed thus:
“8.16 The Appellants contention that the Impugned Order
has gone beyond Order dated 03.02.2016 is incorrect. It
is evident from Paragraph 33 of the Impugned Order that
CERC has merely reiterated its earlier Order and upheld
the bills raised by GKEL in terms of Order dated 03.02.2016
in Petition No. 79/MP/2013.
[2025] 9 S.C.R. 693
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
Coal supply to Plant as whole and not Procurer Specific
8.17 GKEL had quoted tariff for Haryana PPAs considering
coal availability for the Project from linkage coal and its
own Captive Coal blocks based on
(a) SLC-LT approval dated 02.08.2007 for 500 MW; and
(b) Ministry of Coal decision dated 06.11.2007 to allocate
Rampia and Dip side Rampia coal blocks to GKEL.
8.18 At the time of bid submission for Haryana, the SBD
did not permit inclusion of different sources of coal -
linkage, captive etc. Therefore, GKEL had cited linkage
from CIL/MCL. Use of coal from the Captive Coal block
was envisaged for the entire Plant as evident from the
allocation letter dated 17.01.2008 wherein GKEL share of
coal reserves is 138 MT @ 4.6 MT for 30 years to meet
coal requirement of the Project as a whole.
8.19 Coal supply was to the Project as a whole and not
Procurer Specific is supported by:-
(a) The SLC minutes dated 14.02.2012 clearly state that
the tapering linkage coal of 2.384 MTPA is to be utilized for
all three PPAs with GRIDCO, Haryana and Bihar Discoms.
(b) Clause 4.2 of the FSA dated 26.03.2013 signed with
MCL clearly states that:-
“the total quantity of coal supplied pursuant to
this Agreement is meant for use at Power Plant
(3x350 MW), 500 MW under Normal Linkage
(425 MW generation capacity covered under
long term PPA).”
8.20 It is submitted that LoA and FSA are for the station and
never for a particular PPA as contended by the Appellants.
Further, the Appellant’s contention that the apportionment
of coal (from firm linkage) is to be done proportionally
between the Appellants (300 MW), GRIDCO (150 MW)
and Bihar (29.55 MW) is erroneous. It is submitted that
the end-use stated in these documents is for the Station/
Plant. This was confirmed by MCL in terms of letter dated
694 [2025] 9 S.C.R.
Supreme Court Reports
02.05.2018 which stated that the Coal is released for
the total PPA capacity and not bifurcated on the basis of
individual PPAs.
8.21 In terms of Clause 4.1 of the FSA, the ACQ shall be
in proportion of the percentage generation covered under
long term PPAs with Discoms. The relevant portion of
Clause 4.1 is reproduced below:-
“4.1.1... The ACQ shall be in proportion of the
percentage of Generation covered under long
term Power Purchase Agreements executed by
the Purchaser with the DISCOMs either directly
or through PTC(s) who has/ have signed the
back to back long term PPA(s) with DISCOMS.”
It is only commencement of supply of coal which is linked
to commencement of supply under the PPA. For example,
if supply of power to Bihar commenced before Haryana, the
ACQ would have been allocated/operationalized similarly.
8.22 In view of the above, contention of Haryana that the
tapering linkage granted in relation to coal block cannot
be linked to 300 MW is wrong. In fact, the linkage coal/
coal block or tapering linkage are allocated for the station
and to be utilized for all three PPAs. In fact, allocating
coal under the FSA to Haryana Discoms to the exclusion
of Bihar and GRIDCO will be contrary to the provisions
of the FSA.
8.23 As brought out above, the allocation of coal was for
the Project as a whole and not Procurer/PPA wise. This
is evident from the following:-
(a) LOAs dated 25.07.2008 and 08.07.2009 were for the
plant as a whole.
(b) Allocation letter dated 17.01.2008 for the Captive Coal
mine is for 4.6 MT which is sufficient for 1050 MW, being
the installed capacity of the Project.
(c) Minutes of the SLC-LT dated 14.02.2012 note that the
entire linkage (firm and tapering) is for all the 3 PPAs.
[2025] 9 S.C.R. 695
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
(d) Letter dated 02.05.2018 issued by Mahanadi Coalfields
Limited (“MCL”) states that CIL and its subsidiaries had
allocated coal to the Project on pro-rata basis vis-à-vis the
operational capacities and not on basis of procurers. The
letter specifically states that “in case of multiple PPAs, coal
is released to the IPPs considering the total PPA capacity
and not bifurcated on the basis of individual PPAs”. The
aforesaid only confirms the provision of clause 4.1.1 of
the FSAs which also talks of allocation of coal on pro-rata
basis to long term PPAs executed by the Discoms directly
through PTC.
8.24 If the Appellant’s contention is upheld, it will lead
to an anomalous situation wherein GRIDCO and Bihar
Discoms will end up cross-subsidizing supply of power
to Haryana Discoms. It is submitted that the Ld. Central
Commission has rightly allowed pro-rata allocation of
linkage and alternate coal so as to ensure that the impact
is equally apportioned.
8.25 Since the allocation is not PPA specific, allocation
of coal to one procurer to the exclusion of others will be
contrary to the terms of such allocation.
8.26 Further, such action will also be contrary to Article
14 of the Constitution of India since it will result in equals
being treated unequally.”
34. It could thus be seen that the present appeal challenges the concurrent
findings arrived at by the CERC on two different occasions and
the learned APTEL in the impugned judgment. The perusal of the
aforesaid judgment and orders would reveal that they are based upon
interpretation of various documents and considering the following
factual aspects with respect to fuel arrangements for the Project:
(i) The original SLC-LT allocation dated 2nd August 2007 for firm
linkage was made prior to the Haryana PPA;
(ii) Letter dated 6th November 2007 issued by Ministry of Coal
intimating its decision to allocate Rampia and Dip Side Rampia
coal blocks in Odisha to a consortium comprising of GKEL and
five other allotees;
696 [2025] 9 S.C.R.
Supreme Court Reports
(iii) Allocation letter dated 17th January 2008 for the captive coal
mine is for 4.6 MT which is sufficient for 1050 MW, being the
installed capacity of the Project; and
(iv) SLC-LT minutes dated 14th February 2012 noted that the firm
linkage capacity was intended for Odisha, Bihar and Haryana.
35. It will also be relevant to refer to letter dated 7th February 2022 issued
by MCL in response to the clarification sought by GKEL on the letters
dated 2nd May 2018 and 22nd June 2021 of MCL with regard to supply
of coal to GKEL under FSA dated 26th February 2013. The relevant
extracts of the said letter are as under:
“As per the provision of FSA dated 26/03/2013, Annual
Contracted Quantity (ACQ) under FSA is in proportion to
the percentage of Generation covered under long term
Power Purchase Agreement(s) executed by the Purchaser
(IPP) with DISCOMs against the total LOA quantity. In case
of multiple PPAs, coal is allocated/ released as per the
ACQ against the total PPA capacity and not segregated
on the basis of any specific PPA. The same was clarified
vide MCL’s letter dated 02.05.2018.
It is pertinent to mention that letter dated of 22/06/2021 of
MCL was issued to all concerned DISCOMs, with whom
M/s GKEL has signed PPA, for the purpose of intimating
the DISCOMs the quantum of coal procured by M/s GKEL
under FSA from the sources of MCL to ensure proper
utilization of coal. The said letter indicates the overall,
quantity of coal supplied for all the PPAs.”
36. As mentioned earlier, after deciding the common issues involved in
a batch of electricity appeals in the case of MSEDCL (supra), this
Court decided various individual matters involving additional issues.
Another such matter was Uttar Haryana Bijli Vitran (supra). It would
be pertinent to note that the Haryana Utilities had approached this
Court challenging the concurrent judgment and order passed by
learned APTEL dated 3rd November 202032 and CERC dated 31st
May 201833.
32 2020 SCC OnLine APTEL 92
33 2018 SCC OnLine CERC 411
[2025] 9 S.C.R. 697
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
37. In the said proceedings Adani Power (Mundra) Ltd.34 had filed Petition
No. 97/MP/201735 before the CERC pursuant to the orders passed
by this court in Energy Watchdog (supra). The CERC vide order
dated 31st May 2018 had allowed the said petition and directed the
working out of the relief. It will be relevant to refer to the following
paragraphs of the Uttar Haryana Bijli Vitran (supra):
48. The grievance of Haryana Utilities is that the
methodology for granting benefit on account of the
change in law adopted by CERC and affirmed by the
learned Aptel is contrary to the one which was previously
arrived at in the earlier cases of GMR, DB Power, etc.
49. Perusal of the order passed by the learned Aptel would
reveal that AP(M)L had proposed a methodology based
on the methodology approved by CERC in the GMR-
Kamalanga Energy Ltd. v. Dakshin Haryana Bijli Vitran
Nigam Ltd. [GMR-Kamalanga Energy Ltd. v. Dakshin
Haryana Bijli Vitran Nigam Ltd., 2016 SCC OnLine CERC
43] considering the quoted tariff under the PPAs as the
base.
50. The learned Aptel had referred to the record of
proceedings of CERC dated 10-8-2017, which read thus :
(Uttar Haryana Bijli Vitran Nigam case [Uttar Haryana Bijli
Vitran Nigam Ltd. v. Adani Power (Mundra) Ltd., 2020
SCC OnLine APTEL 92] , SCC OnLine APTEL para 7.3)
“7.3. … (a) … ‘3. In response to the Commission’s
query as to whether the methodology adopted by the
petitioner in the light of the methodology given in GMR
case [GMR-Kamalanga Energy Ltd. v. Dakshin
Haryana Bijli Vitran Nigam Ltd., 2016 SCC OnLine
CERC 43] is acceptable to Haryana Utilities, learned
counsel replied in the positive.’ ”
(emphasis in original)
51. The learned Aptel had also referred to the order of
CERC dated 28-9-2017 [Adani Power Ltd. v. Uttar Haryana
34 Hereinafter referred to as AP(M)L
35 Hereinafter referred to as ‘Petition No. 97’
698 [2025] 9 S.C.R.
Supreme Court Reports
Bijli Vitaran Nigam Ltd., 2017 SCC OnLine CERC 305] in
IA No. 57 of 2017 in Petition No. 97/MP/2017, which reads
thus : (Uttar Haryana Bijli Vitran Nigam case [Uttar Haryana
Bijli Vitran Nigam Ltd. v. Adani Power (Mundra) Ltd., 2020
SCC OnLine APTEL 92] , SCC OnLine APTEL para 7.3)
“7.3. … (b) … ‘7. … Haryana Utilities who is the only
respondent has not objected to the calculation made
by the applicant.’ ”
(emphasis in original)
52. The learned Aptel had also referred to the order dated
3-12-2018 [Uttar Haryana Bijli Vitran Nigam Ltd. v. Adani
Power (Mundra) Ltd., 2018 SCC OnLine CERC 237] passed
by CERC in review petition bearing No. 24/RP/2018, which
reads thus : (Uttar Haryana Bijli Vitran Nigam case [Uttar
Haryana Bijli Vitran Nigam Ltd. v. Adani Power (Mundra)
Ltd., 2020 SCC OnLine APTEL 92] , SCC OnLine APTEL
para 7.4)
“7.4. … ‘25. … It is apparent from the above
that the Commission, after due consideration of
the submissions of the Adani Power and Prayas
had consciously decided on the methodology for
computation of relief due to shortage of domestic coal
under change in law for the period from 1-4-2013 to
31-3-2017 in para 46 of the impugned order [Adani
Power (Mundra) Ltd. v. Uttar Haryana Bijli Vitran Nigam
Ltd., 2018 SCC OnLine CERC 411] . The review
petitioners had not suggested any methodology of
calculation of the relief due to shortage of domestic
coal. On the other hand, the review petitioners in their
reply dated 28-7-2017 in Petition No. 97/MP/2017 had
stated that “the reliance to the decision of GMR is
wholly inappropriate”. The review petitioners are now
suggesting an alternative formula for computation of
the relief under change in law. As already reiterated
in the earlier part of the order, the review cannot be
used for substitution of a view already taken with a
new view. Therefore, the review on the ground is not
maintainable.’ ”
[2025] 9 S.C.R. 699
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
53. We find that Haryana Utilities are indulging into
approbation and reprobation. They cannot be permitted
to blow hot and cold at the same time. After accepting
before CERC that they would adopt the methodology
as given in GMR-Kamalanga Energy [GMR-Kamalanga
Energy Ltd. v. Dakshin Haryana Bijli Vitran Nigam Ltd.,
2016 SCC OnLine CERC 43] , it would not be appropriate,
in our view, on the part of the appellants, which are, after
all, instrumentalities of the State, to change its stand after
final orders are passed by CERC.”
38. It could thus clearly be seen that the learned APTEL had referred
to the record of proceedings of the CERC dated 10th August 2017
wherein to the Commission’s query as to whether the methodology
adopted by the petitioner in the light of the methodology given in
GMR Kamalanga (supra) was acceptable to Haryana Utilities,
learned counsel replied in the positive. The learned APTEL also
referred to the order of the CERC dated 28th September 201736 in IA
No. 57 of 2017 in Petition No. 97 wherein Haryana Utilities had not
objected to the calculation made by the applicant. It could further be
seen that the learned APTEL had also referred to the order dated
3rd December 201837 passed by the CERC in Review Petition No.
24/RP/2018 filed by the Haryana Utilities against the order dated
31st May 2018 of the CERC. The CERC in the said review petition
referred to the affidavit filed by the Haryana Utilities stating that ‘the
reliance to the decision of GMR is wholly inappropriate”. The learned
APTEL, observing that the Review Petitioners are now suggesting
an alternative formula for computation of the relief under change in
law, rejected the review petition.
39. This Court in Uttar Haryana Bijli Vitran (supra) had observed that
the Haryana Utilities are indulging in approbation and reprobation.
It has been observed that they cannot be permitted to blow hot
and cold at the same time. It has further been observed that after
accepting before the CERC that they would adopt the methodology
as given in GMR Kamalanga (supra), it would not be appropriate
36 (2017) SCC OnLine CERC 305
37 (2018) SCC OnLine CERC 237
700 [2025] 9 S.C.R.
Supreme Court Reports
on the part of Haryana Utilities to change its stand after final orders
were passed by the CERC. This Court had therefore dismissed the
appeal of the Haryana Utilities observing that the interference would
be warranted only if the concurrent findings have failed to take into
consideration the mandatory statutory provisions or if the decision
had been taken by them on extraneous consideration or that they
were ex facie arbitrary and illegal. As a matter of fact, this Court in
the said case had approved the methodology applied by the CERC
and affirmed by the learned APTEL which was based on the decision
of the CERC in the case of GMR Kamalanga (supra).
40. In that view of the matter and considering the concurrent findings
of fact by the CERC on two different occasions and the learned
APTEL in impugned order and also taking into note of the
communication dated 2nd February 2022 issued by MCL, we see
no merit in the appeal of Haryana Utilities and the same is liable to
be dismissed.
Civil Appeal No. 3429 of 2020
41. Insofar as the appeal by GRIDCO is concerned, the main contention
of GRIDCO is that the order dated 3rd February 2016 in Petition No.
79 and order dated 20th March 2018 in Petition No. 105 were passed
without impleading GRIDCO. It will be relevant to note that the PPA
with GRIDCO is under Section 62 of the 2003 Act whereas the PPAs
with the Haryana Utilities and Bihar Utilities are under Section 63 of
the 2003 Act. As such there was no occasion for GKEL to implead
GRIDCO as a party to the said petitions.
42. It is further to be noted that the petitions filed by GKEL before the
CERC were filed seeking compensation on account of Change
in Law events affecting Haryana and Bihar PPAs which were
concluded by following provisions prescribed under Section 63
of the 2003 Act. Section 63 of the 2003 Act provides for the
determination of tariff by bidding process whereas under Section
62, the tariff is determined on Cost Plus basis. It can thus be seen
that proceedings under Sections 62 and 63 of the 2003 Act are
entirely different.
[2025] 9 S.C.R. 701
Haryana Power Purchase Centre (HPPC) and Others v.
GMR Kamalanga Energy Limited and Others
43. It is also relevant to note that GKEL had filed a petition being Petition
No. 77/GT/201338 for approval of the tariff for supply of electricity
to the GRIDCO. The CERC vide order dated 12th November 2015
had determined the tariff payable by the GRIDCO to GKEL for the
period of 1st April 2013 to 1st March 2014. Being aggrieved by the
said order, GRIDCO filed Appeal No. 45 of 2016 before the learned
APTEL. The learned APTEL vide judgment and order dated 1st August
2017 did not find any merit in the methodology adopted by CERC for
determining the tariff. The learned APTEL found that the CERC had
calculated ECR in accordance with the CERC (Terms and Conditions
of Tariff) Regulations, 2009. The methodology adopted by the CERC
for determining the tariff payable by GRIDCO to GKEL has been
duly approved by the learned APTEL. In that view of the matter, we
find that GRIDCO was neither a necessary nor a proper party to the
proceedings initiated by GKEL by way of Petition Nos. 79 and 105.
44. On merits, it is the contention of the GRIDCO that it was its PPA which
was executed first on 28th September 2006 and was operationalized
in April 2013. It is therefore contended that GRIDCO has the first
right over the firm linkage FSA dated 26th March 2013. GRIDCO
further contended that allocation under SLC-LT meeting dated 2nd
August 2007 and LOA dated 25th July 2008 was against long term
PPAs and the only PPA at that time was with GRIDCO, therefore, the
firm linkage was for GRIDCO. While considering GRIDCO’s appeal,
the learned APTEL found that the supply of coal from all modes of
procurement has to be considered for the power plant as a whole
and not for specific PPAs as prayed by the appellants.
45. In the foregoing paragraphs, while considering the appeal of Haryana
Utilities, we have already upheld the concurrent findings of the CERC
and the learned APTEL that the coal supply from all the sources has
to be apportioned amongst all the three DISCOMS in proportion to the
energy supplied to them. None of the DISCOMS can claim a priority
for supply of power based either on the prior date of agreement or
the recital as to the source of coal. In view of the findings given by
us while discussing the appeal of the Haryana DISCOMS, we find
no merit in the present appeal as well. The same is therefore liable
to be dismissed.
38 Hereinafter referred to as ‘Petition No. 77’
702 [2025] 9 S.C.R.
Supreme Court Reports
CONCLUSION
46. In the result, we pass the following orders:
I. Civil Appeal No. 1929 of 2020 filed by Haryana Utilities and
Civil Appeal No. 3429 of 2020 filed by GRIDCO are dismissed
sans merit; and
II. The impugned judgment and order dated 20th December 2019
passed by the Appellate Tribunal for Electricity, New Delhi in
Appeal No. 135 of 2018 along with Appeal No. 54 of 2019 is
upheld.
47. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeals dismissed.
†
Headnotes prepared by: Ankit Gyan
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