M/S. ADANI POWER (MUNDRA) LTD. Vs GUJARAT ELECTY REG.COMMISSION .
Bench: J. CHELAMESWAR,ABHAY MANOHAR SAPRE
Case number: C.A. No.-011133-011133 / 2011
Diary number: 35275 / 2011
Advocates: PRAVEEN KUMAR Vs
HEMANTIKA WAHI
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NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO.4 OF 2015 IN
CIVIL APPEAL NO. 11133 OF 2011
M/S. ADANI POWER LTD. … APPLICANT/APPELLANT
Versus
GUJARAT ELECTRICITY REGULATORY COMMISSION & OTHERS … RESPONDENTS
O R D E R
Chelameswar, J.
1. This application is filed by the appellant in Civil Appeal
No.11133/2011. The prayer in the application is as follows:
“a) to stay the operation of the impugned Judgment dated 7.9.2011 and suspend further supply of electricity in terms of the PPA during the pendency of this Appeal.
b) in the alternative to prayer (a) above, during the pendency of the accompanying Civil Appeal the Hon’ble Court may direct the Respondent(s) to pay the tariff as per CERC norms for tariff on cost plus basis; and also make the payment from the date of the supply of power under the PPA of the differential amount between the PPA tariff and the tariff as per CERC norms for tariff on cost
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plus basis on the such terms and condition as this Hon’ble court deems fit as just and proper;”
However, prayer (a) was not pressed when the matter was
taken up for hearing. A brief background of the appeal and
the application is as follows.
2. The appellant company is a power generating company.
The 2nd respondent herein is a company owned by the State of
Gujarat carrying on business of purchasing power in bulk
from power generating companies such as the appellant herein
and supplying to various distributing companies in the State
of Gujarat.
3. The appellant and the 2nd respondent entered into a
Power Purchase Agreement (hereinafter PPA, for short). Under
the said agreement, the appellant is obliged to sell 1000
megawatt of power from the appellant’s power project. For
various reasons, the details of which are not necessary at this
stage, the appellant issued a notice of termination dated
28.12.2009 of the above mentioned PPA w.e.f. 4.1.2010.
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4. After some correspondence, the 2nd respondent filed a
petition before the Gujarat Electricity Regulatory Commission
(the 1st respondent herein) seeking adjudication of the dispute
arising out of termination of the PPA by the appellant.
5. The 1st respondent, by its order dated 31.8.2010, set
aside the termination notice sent by the appellant and directed
the appellant to supply power to the 2nd respondent as per the
terms of the PPA.
6. Aggrieved by the said order, the appellant carried the
matter in appeal before the Appellate Tribunal for Electricity
unsuccessfully. Hence, the appeal No.11133/2011. The
appeal was admitted by an order dated 13.8.2012 and since
pending. Hence the instant application with averments as
follows:
“7. If the relief sought for by the Appellant is not granted, there is a serious risk of Mundra Power Project becoming a Non Performing Asset causing an irreparable harm to the consumers as well as the lenders of the Mundra Power Project. Since the main Civil Appeal is pending adjudication for final hearing and the Appellant is supplying the power to the Respondent No.2 – GUVNL, the present application is being filed to compensate the
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Appellant upto the actual cost of generation as per CERC norms for determination of tariff. The same is in order to sustain the generation and supply of power pending the hearing of the main Civil Appeal.
xxxx xxxx xxxx
9. It is submitted that whereas the pendency of the present appeal is piling huge losses upon the Appellant no prejudice would be occasioned to the Respondents if the present Application is allowed on an undertaking by the Appellant to refund the amount over and above the PPA tariff that will be paid, to the Respondent No.2 or such other condition as this Hon’ble Court may deem fit. Alternatively, in view of the recurring losses, the Appellant be permitted to suspend further supply of electricity in terms of the PPA during the pendency of this Appeal. This shall meet the ends of justice.”
7. On behalf of the 2nd respondent, an affidavit dated
23.11.2015 is filed. The said affidavit, while contesting the
various assertions made by the appellant and its rights,
stated:
15. I submit that, without prejudice to the rights of the Respondent No.2 to contest the present appeal, the answering Respondent with the approval of Government of Gujarat has already shown its willingness to pay compensatory tariff prospectively (from next month of CERC order i.e. March 2014) subject to paras 12 and 13 above to resolve the issue by making suitable adjustments in tariff which till date is not implemented because of non acceptance by Appellant and other stakeholders.
16. I say that without prejudice to its rights in the present appeals the Respondent No.2 is willing to implement the decisions of State Govt. for paying compensatory tariff prospectively (from next month of CERC order i.e. March 2014) to resolve the issue by making suitable adjustment in tariff on the directions of the Hon’ble Court. xxxxxx”
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8. Shri Prashant Bhushan, learned counsel appearing for
respondent No.4 opposed the prayers of the applicant alleging
that the 2nd respondent is colluding with the appellant as there
is no occasion for the respondent to make any concession
such as the one made in the affidavit filed by the 2nd
respondent (the relevant portion of which are already extracted
above). More particularly, when the 2nd respondent succeeded
before two fora below, the concession of the 2nd respondent to
pay compensatory tariff to the appellant though said to be
subject to the contentions of the respondent in the appeal is
nothing but largesse of the State to the appellant and not
consistent with public interest. He further submitted that this
Court may not affix a stamp of approval for such a decision of
the 2nd respondent by passing any order accepting the
concession made by the respondent. He also submitted that
the payment of compensatory tariff to the appellant would
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ultimately result in compelling the consumers to pay higher
price.
9. On the other hand, Shri Harish Salve, learned senior
counsel for the appellant denied the allegations of collusion
between the appellant and the 2nd respondent. He argued that
the decision of the 2nd respondent is supported by a decision of
the State of Gujarat on an assessment of the subsequent
developments. He submitted that compelling the appellant to
supply energy in terms of the PPA is bound to financially
destroy the appellant company and therefore prayed that the
2nd respondent be permitted to make the payment in terms of
his concession.
10. A PPA is a contract between the parties and the terms of
any contract are nothing but the agreed terms of the
contracting parties. It is also a settled principle of the law of
contracts that parties to a contract can alter the terms of the
contract subsequent to the formation of the contract by
mutual consent.
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11. However, the rights of the State and its agencies and
instrumentalities in the realm of contracts are circumscribed
by the considerations of public interest. Apart from such
general principle, the rights and obligations of the parties to
the PPA in question are also subject to certain statutory
prescriptions.
12. The questions (i) whether the appellant is entitled to
terminate the PPA and (ii) if so, on what terms and conditions
are to be examined in the appeal.
13. Independent of such right, if any, of the appellant, if the
parties to the PPA are agreeable to alter the terms of the PPA
(as indicated in the counter) for whatever reasons, whether
such a variation is consistent with the requirements of the
statutes applicable to the contract is a separate question.
Whether such a variation is consistent with the larger public
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interest is altogether a different question. An ancillary
question arises whether such an issue can be properly the
subject matter of the instant appeal. All these matters require
a detailed examination as and when the appeal is taken up for
hearing.
14. Coming to the question whether the 2nd respondent be
directed to pay the appellant compensatory tariff as indicated
in its counter, we are of the opinion no direction can be given
at this stage during the pendency of the appeal as the right of
the appellant for such compensatory tariff appears to be one of
the issues in the appeal.
15. In so far as the question of permitting the 2nd respondent
to pay the compensatory tariff as indicated in its counter, we
are of the opinion that it requires no permission from this
Court. It is upto the 2nd respondent to take a decision in
accordance with law to the best of its understanding. We may
make it clear that if the 2nd respondent chooses to make such
payment, the same shall be subject to the result of the appeal.
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16. The I.A. is disposed of as indicated above.
….………………………….J. (J. Chelameswar)
…….……………………….J. (Abhay Manohar Sapre)
New Delhi; December 3, 2015
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