UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED AND ANOTHERversusADANI POWER (MUNDRA) LIMITED AND ANOTHER

                         [2023] 5 S.C.R. 639                           639


     UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED                          A
                 AND ANOTHER
                         v.
    ADANI POWER (MUNDRA) LIMITED AND ANOTHER
                  (Civil Appeal No. 5684 of 2021)                      B
                          APRIL 20, 2023
           [B. R. GAVAI AND VIKRAM NATH, JJ.]
       Electricity – Change in Law – A new regime for allocation of
coal under SHAKTI Policy was brought into effect in 2017
whereunder, the projects approved under the old regime were entitled   C
to continue to get supply of 75% of the Assured Coal Quantity (ACQ)
even beyond 31st March 2017 – Contending that there was a
shortfall from 75% ACQ, first respondent filed petition claiming
relief for shortfall on account of Change in Law – Claim allowed
by CERC – Appeal filed by appellants before APTEL, dismissed –
                                                                       D
Held: All the grounds raised before APTEL were raised and
considered, and held against DISCOMs in the appeals filed by
Maharashtra State Electricity Distribution Company Limited –
Findings given by APTEL in the present case are identical with the
findings given in the judgment and order dtd.28.09.2020, upheld
in C.A Nos. 677-678 of 2021 – Concurrent view taken by the CERC        E
and APTEL is neither in ignorance of the mandatory statutory
provisions nor based on extraneous consideration or ex-facie
arbitrary/illegal – Thus, no interference warranted.
      Energy Watchdog v. Central Electricity Regulatory
      Commission and Others (2017) 14 SCC 80;
                                                                       F
      Maharashtra State Electricity Distribution Company
      Limited (MSEDCL) v. Adani Power Maharashtra Limited
      (APML) and Others 2023 SCC OnLine SC 233 –
      referred to.
                      Case Law Reference
                                                                       G
(2017) 14 SCC 80               referred to             Para 3
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.5684
of 2021.
      From the Judgment and Order dated 30.06.2021 of the Appellate
Tribunal for Electricity, New Delhi in Appeal No.358 of 2019.          H
                                639
640              SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A           M. G. Ramachandran, G. Umapathy, Niranjan Reddy, Dr. A.M.
      Singhvi, Darius J. Khambata, Sajan Poovayya, Vikram Nankani, Sr. Advs.,
      Ms. Poorva Saigal, Shubham Arya, Nikunj Dayal, Ms. Pallavi Saigal,
      Ravi Nair, Ms. Shikha Sood, Ms. Reeha Singh, Ms. Anumeha Smiti,
      Aneesh Bajaj, Anup Jain, Udit Gupta for M/s. Udit Kishan and Associates,
      Vishrov Mukherjee, Pukhrambam Ramesh Kumar, Yashaswi Kant, Karun
B
      Sharma, Ms. Juhi Senguttuvan, Mahesh Agarwal, Amit Kapur, Ms.
      Poonam Sengupta, Avishkar Singhvi, Arshit Anand, Saunak Rajguru,
      Aman Sharma, Ms. Aparajita, Ms. Deepshikha Mishra, Ankitesh Ojha,
      Karan Rukhana, E. C. Agrawala, Ms. Pallavi Sharma, Advs. for the
      appearing parties.
C              The Judgment of the Court was delivered by
               B. R. GAVAI, J.
             1. The present appeal challenges the judgment and order dated
      30th June 2021, passed by the Appellate Tribunal for Electricity, New
D     Delhi (hereinafter referred to as “APTEL”) in Appeal No. 358 of 2019,
      thereby dismissing the appeal filed by the Uttar Haryana Bijli Vitran
      Nigam Limited and Dakshin Haryana Bijli Vitran Nigam Ltd. (hereinafter
      referred to as “Haryana Utilities”), appellants herein, and maintaining
      the judgment and order dated 13th June 2019 passed by the Central
      Electricity Regulatory Commission (hereinafter referred to as “CERC”)
E     in Petition No. 251/MP/2018.
               2. The facts, in brief, giving rise to the present appeal are as
      under:
              Haryana Utilities had entered into two Power Purchase
F     Agreements (for short, “PPA”) dated 7th August 2008 with the first
      respondent-Adani Power (Mundra) Limited (hereinafter referred to as
      “AP(M)L”) for a contracted capacity of 1424 MW from the generating
      Units 7, 8 and 9 established by AP(M)L in the State of Gujarat on the
      terms and conditions contained in the said PPAs. The said PPAs were
      entered into between Haryana Utilities and AP(M)L in pursuance to a
G     Tariff Based Competitive Bidding Process initiated by the Haryana
      Utilities under Section 63 of the Electricity Act, 2003 as per the guidelines
      notified by the Central Government.
             3. AP(M)L filed a petition being Petition No. 155/MP/2012 on 5th
      July 2012 seeking, inter alia, relief of increase in tariff from the quoted
H     tariff mentioned in the bid on various grounds. The CERC had passed
      UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                              641
           POWER (MUNDRA) LTD. [B. R. GAVAI, J.]

orders in the said petition on 2nd April 2013 and 21st February 2014. The         A
said orders were challenged before the APTEL. Finally, a batch of appeals
challenging the order of APTEL reached this Court by way of Civil
Appeal Nos. 5399-5400 of 2016. This Court, in the case of Energy
Watchdog v. Central Electricity Regulatory Commission and Others1
decided on 11th April 2017, observed thus:
                                                                                  B
          “57. Both the letter dated 31-7-2013 and the revised Tariff Policy
          are statutory documents being issued under Section 3 of the Act
          and have the force of law. This being so, it is clear that so far as
          the procurement of Indian coal is concerned, to the extent that
          the supply from Coal India and other Indian sources is cut down,
          the PPA read with these documents provides in Clause 13.2 that          C
          while determining the consequences of change in law, parties shall
          have due regard to the principle that the purpose of compensating
          the party affected by such change in law is to restore, through
          monthly tariff payments, the affected party to the economic position
          as if such change in law has not occurred. Further, for the operation   D
          period of the PPA, compensation for any increase/decrease in
          cost to the seller shall be determined and be effective from such
          date as decided by the Central Electricity Regulation Commission.
          This being the case, we are of the view that though change in
          Indonesian law would not qualify as a change in law under the
          guidelines read with the PPA, change in Indian law certainly would.     E

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

      4. In pursuance to the aforesaid order passed by this Court,
AP(M)L filed a petition being Petition No. 97/MP/2017 before the CERC,
claiming relief on the ground of Change in Law. The CERC, vide order
dated 31st May 2018, allowed the said petition in terms of Change in
Law.                                                                              G
       5. A review petition being Review Petition No. 24/RP/2018 was
also filed by the Haryana Utilities before the CERC. The CERC, vide
judgment and order dated 3rd December 2018, rejected the said review
1
    (2017) 14 SCC 80                                                              H
642             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A     petition. Being aggrieved thereby, the appellants filed an appeal before
      the APTEL. The APTEL, vide judgment and order dated 3rd November
      2020, dismissed the said appeal. Challenging the same, Civil Appeal No.
      4143 of 2020 came to be filed before this Court. By an order of even
      date, this Court dismissed the said appeal.
B            6. In the meantime, the Ministry of Coal, Government of India
      (for short, “MoC”), on 22nd May 2017, brought into effect a new regime
      for allocation of coal under SHAKTI Policy. Under SHAKTI Policy,
      the projects, which were approved under the old regime, were entitled
      to continue to get supply of 75% of the Assured Coal Quantity (for
      short, “ACQ”) even beyond 31st March 2017.
C
              7. Contending that there was a shortfall from 75% ACQ, AP(M)L
      filed a petition being Petition No. 251/MP/2018 claiming relief for shortfall
      on account of Change in Law. The CERC, vide order dated 13th June
      2019 allowed the said claim. Being aggrieved thereby, an appeal, being
      Appeal No. 358 of 2019, was filed before the APTEL.
D
             8. Three basic grounds, along with other grounds, were raised
      before the APTEL. The first ground was that the SHAKTI Policy could
      not be considered to be Change in Law. The second ground was that the
      AP(M)L had not given a Notice of Change in Law and, as such, was not
      entitled to the benefit on the ground of Change in Law. The third ground
E     was with regard to award of Carrying Cost. The APTEL, vide impugned
      judgment and order dated 30th June 2021, dismissed the said appeal.
            9. Being aggrieved thereby, the Haryana Utilities have preferred
      the present appeal.

F           10. By an order of even date, we have decided the appeals filed
      by Maharashtra State Electricity Distribution Company Limited
      (MSEDCL), wherein all these grounds were raised and considered, and
      held against DISCOMs. The findings given by the APTEL in the present
      appeal are identical with the findings given in the judgment and order
      dated 28th September 2020, which has been upheld by us in Civil Appeal
G     Nos. 677-678 of 2021.
             11. It will further be relevant to note that the present appeal arises
      out of concurrent findings of fact arrived at by both the authorities.
            12. This Court, in the case of Maharashtra State Electricity
      Distribution Company Limited (MSEDCL) v. Adani Power
H
     UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                                 643
          POWER (MUNDRA) LTD. [B. R. GAVAI, J.]

Maharashtra Limited (APML) and Others2, after considering the                       A
relevant provisions under the Electricity Act, 2003 with regard to
appointment, qualifications and Members of the CEA, CERC and the
learned APTEL, held that these bodies are bodies consisting of experts
in the field. After considering various judgments on the issue, this Court
observed thus:
                                                                                    B
         “123. Recently, the Constitution Bench of this Court in the case
         of Vivek Narayan Sharma v. Union of India has held that the
         Courts should be slow in interfering with the decisions taken by
         the experts in the 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                  C
         considerations or they are ex facie arbitrary and illegal, it will not
         be appropriate for this Court to substitute its views with that of
         the expert bodies.”
        13. In our opinion, the concurrent view taken by the CERC &
APTEL cannot be said to be a view taken in ignorance of the mandatory               D
statutory provisions nor can it be said that it is based on extraneous
consideration. The view also cannot be said to be ex-facie arbitrary or
illegal. As such, no interference would be warranted in the present appeal.
       14. In the result, the appeal is dismissed. Pending application(s), if
any, shall stand disposed of. No costs.                                             E


Divya Pandey                                                    Appeal dismissed.
(Assisted by : Roopanshi Virang, LCRA)


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2
    2023 SCC OnLine SC 233                                                          H