LexMAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED versus ADANI POWER MAHARASHTRA LIMITED AND ANOTHER
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A B C D E F G H 668 SUPREME COURT REPORTS [2023] 5 S.C.R. 668 MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED v. ADANI POWER MAHARASHTRA LIMITED AND ANOTHER (Civil Appeal Nos. 677-678 of 2021) APRIL 20, 2023 [B. R. GAVAI AND VIKRAM NATH, JJ.] Electricity– Change in Law– SHAKTI Policy, if amounts to Change in Law –ADANI Power Maharashtra Limited (APML) and Maharashtra State Electricity Distribution Company Limited (MSEDCL) entered into four long term Power Project Agreements(PPAs)–APML filed petition seeking compensation in Tariff on account of Change in Law under the PPAs before Maharashtra Electricity Regulatory Commission (MERC) –Allowed– Subsequently, APML filed a fresh petitionbefore MERC seeking reliefin support of Change of Law under the respective PPAs fornon- availability/short supply of domestic coal under SHAKTI Policy after March, 2017, which was allowed– Cross-appeals filed before APTEL – Appeal filed by MSEDCL was dismissed while that of APML was allowed –Held: If there is a Change in any consent, approval or licence available/obtained for the project, otherwise than for the default of theseller, which results in any change in any cost of the business of selling electricity, then the said seller will begoverned under Clause 13.1.1 of the PPA – Modification to NCDP 2007by the communication dtd. 31st July 2013amounts to Change in Law and the generating companies are entitled to compensation on account of such Change in Law –SHAKTI Policy also reduces the ACQ as assured under the 2007 NCDP and thus,will also have to be held to be Change in Law –Further, the restitutionary principle will also be applicable on account of change occurring due to the introduction of SHAKTI Policy –View taken by 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; [2023] 5 S.C.R. 668 A B C D E F G H 669 Maharashtra State Electricity Distribution Company Limited (MSEDCL) v. ADANI Power Maharashtra Limited (APML) and Others 2023 SCC OnLine 233; Jaipur Vidyut Vitaran Nigam Limited and Others v. ADANI Power Rajasthan Limited and Another 2020 SCC OnLine SC 697; Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL) and another v. Adani Power Limited andOthers (2019) 5 SCC 325 : [2019] 4 SCR 487– relied on. MSEDCL v. GMR Warora Energy Ltd. and Others Civil Appeal No. 6927 of 2021; ADANI Power Limited v. Central Electricity Regulatory Commission 2018 SCC OnLine APTEL 5 – referred to. Case Law Reference [2019] 4 SCR 487 relied on Para 32 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.677- 678 of 2021. From the Judgment and Order dated 28.09.2020 of the Appellate Tribunal for Electricity in Appeal Nos.116 and 155 of 2019. Gopal Jain, G. Umapathy, M. G. Ramachandran, Niranjan Reddy, Dr. A.M. Singhvi, Darius J. Khambata, Vikram Nankani, Sajan Poovayya, Siddhartha Dave, Sr. Advs., Anup Jain, Udit Gupta, Ms. Prachi Gupta, Vyom Chaturvedi for M/s. Udit Kishan and Associates, Ms. Poorva Saigal, Shubham Arya, Nikunj Dayal, Ms. Pallavi Saigal, Ravi Nair, Ms. Shikha Sood, Ms. Reeha Singh, Ms. Anumeha Smiti, Aneesh Bajaj, Vishrov Mukherjee, Ms. Akhila Palem, Ms. Juhi Senguttuvan, Pukhrambam Ramesh Kumar, 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, Ms. Vidhi Thacker, Advs. for the appearing parties. The Judgment of the Court was delivered by B. R. GAVAI, J. 1. The present appeals challenge the judgment and order dated 28th September 2020 passed by the Appellate Tribunal for Electricity MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO. LTD. v. ADANI POWER MAHARASHTRA LTD. A B C D E F G H 670 SUPREME COURT REPORTS [2023] 5 S.C.R. (hereinafter referred to as ‘APTEL’), in cross appeals being Appeal No. 116 of 2019, filed by Maharashtra State Electricity Distribution Company Limited (hereinafter referred to as ‘MSEDCL’), the appellant herein, and Appeal No. 155 of 2019, filed by ADANI Power Maharashtra Limited (hereinafter referred to as ‘APML’), respondent No. 1 herein, thereby challenging the order dated 7th February 2019, passed by Maharashtra Electricity Regulatory Commission (hereinafter referred to as ‘MERC’). 2. The facts, in brief, giving rise to the present appeal
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