MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED versus ADANI POWER MAHARASHTRA LIMITED AND OTHERS

Citation: [2023] 7 S.C.R. 648 · Decided: 20-04-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Dismissed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 7 S.C.R.
   [2023] 7 S.C.R. 648
648
MAHARASHTRA STATE ELECTRICITY DISTRIBUTION
COMPANY LIMITED
v.
ADANI POWER MAHARASHTRA LIMITED AND OTHERS
(Civil Appeal Nos. 687-688 of 2021)
APRIL 20, 2023
[B. R. GAVAI AND VIKRAM NATH, JJ.]
Electricity – ‘Change in Law’ event – Deallocation of Lohara
Coal Blocks, if a ‘Change in Law’ event – Held: Yes – Deallocation
of Lohara Coal Blocks would amount to ‘Change in Law’ event as
defined under the Power Project Agreements – No interference
warranted with the concurrent findings of MERC and APTEL –
Methodology of arriving at the compensation payable on account
of ‘Change in Law’ event also not interfered with – Wild Life
(Protection) Act, 1972 – s.38(V) – Principle of Restitution.
Dismissing the appeals, the Court
HELD: 1.1 In the case of MSEDCL v. APML and Others,
this Court held that the ‘Change in Law’ relief for domestic coal
shortfall should be on ‘actuals’ i.e. as against 100% of normative
coal requirement assured in terms of NCDP, 2007. The Station
Heat Rate (“SHR”) and Auxiliary consumption should be
considered as per the Regulations or actuals, whichever is lower.
The Start date for the ‘Change in Law’ event for the NCDP, 2013
was held to be 1st April 2013. Compensation for shortfall of
domestic coal on account of ‘Change in Law’ on account of
amendment to the SHAKTI Policy stands covered by the
judgment dated 3rd March 2023 in the case of MSEDCL v. APML
and Others. [Paras 31-33][661-C-F]
Maharashtra State Electricity Distribution Company
Limited v. Adani Power Maharashtra Limited and
Others 2023 SCC OnLine SC 233 – relied on.
1.2 The issue with regard to SHAKTI Policy is concerned,
the same is considered by this Court in judgments of even date,
in Civil Appeal Nos. 677-678 of 2021 and Civil Appeal No. 5684
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of 2021, holding therein that the restitutionary principle, as has
been applied by this Court on account of ‘Change in Law’, will
also be applicable on account of change occurring due to
introduction of SHAKTI Policy. As such, no interference would
be warranted with the findings of APTEL in light of the view taken
by this Court in the aforesaid three judgments. [Paras 34][661-
F-H]
1.3 A perusal of the impugned judgment and order would
reveal that MSEDCL itself had sought the carrying cost
prescribed in the MYT Tariff Regulations before the State
Commission. APTEL has rightly held that MSEDCL could not
be permitted to raise its claim contrary to what was sought before
the State Commission. As such, interference would not be
warranted with the said issue also. [Para 35][662-A-B]
1.4 In the case of MSEDCL v. APML and Others, this Court
has upheld the view taken by CERC as well as APTEL, holding
that the actual GCV of coal ‘as received’ at the plant site has to
be taken into consideration. As such, no interference would be
warranted with regard to the said issue also. [Para 38][662-F-G]
1.5 The only issue that is required to be considered is as to
whether deallocation of Lohara Coal Blocks would amount to
‘Change in Law’ and as to whether APML would be entitled to
restitution on account of the same. The same is concurrently held
in favour of APML by both the MERC and the APTEL, thereby
declaring the event of deallocation of Lohara Coal Blocks as
‘Change in Law’. Unless the said issue is found to be perverse
or in ignorance of the mandatory statutory provisions or is based
on extraneous considerations, it will not be permissible for this
Court to interfere with the same. A perusal of the definition of
‘Law’ as found in Article 1.1 of the PPA would reveal that any
order or notification, rule or regulation by an Indian Governmental
Instrumentality would constitute ‘Law’. It cannot be disputed that
Government of Maharashtra, Government of India and various
statutory authorities would fall under the term ‘Governmental
Instrumentalities’. In the present case, the cutoff date under the
PPA was 14th August 2008. It is to be noted that the power to
notify a Tiger Reserve as a Buffer Zone is vested with the State
MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO. LTD. v.
ADANI POWER MAHARASHTRA LTD.
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SUPREME COURT REPORTS
[2023] 7 S.C.R.
Government under Section 38V of the Wildlife (Protection) Act.
For consideration and creation of Buffer Zone, three statutory
requirements have to be complied with. From the material placed
on record, it is clear that prior to 14th August 2008, the area
where Lohara Co

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