LexNABHA POWER LIMITED & ANR. versus PUNJAB STATE POWER COROPORATION LIMITED & ANR.
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[2024] 11 S.C.R. 445 : 2024 INSC 833 Nabha Power Limited & Anr. v. Punjab State Power Coroporation Limited & Anr. (Civil Appeal No. 8478 of 2014) 05 November 2024 [B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan,* JJ.] Issue for Consideration Issue arose as to whether the press release of 01.10.2009 announcing the decision of the Union Cabinet about approval of certain modifications envisaged in the then existing mega power policy, is covered within the meaning of the expression “law as defined in Clause 1.1 of the Request For Proposal-RFP/Power Purchase Agreement-PPA and if so did the extant legal regime as on 01.10.2009 undergo a change from the said date. Headnotes† Electricity Act, 2003 – s. 63 – Customs Act – s. 25 – Mega Power Policy of 2006 – Press release 01.10.2009 – Effect – Change in law, when – Notification dated 01.03.2002 whereby goods imported for setting up a Mega Power Project granted certain exemptions from customs duty – Issuance of Request For Proposal (RFP) by appellant no. 1 for selection of developers through tariff-based bidding process for procurement of power from the power station to be set up – Second appellant emerged as successful bidder – Meanwhile issuance of Press Release of 1.10.2009 under the heading “Modification of Mega Power Policy” – Thereafter, on 11.12.2009, an amendment to Notification dated 01.03.2002 issued – Entry 400 from the notification of 2002 was substituted wherein there was no reference to the thermal plant being an inter-State thermal plant – Thereafter, on 14.12.2009, issuance of office memorandum under the subject “revised Mega Power Policy”– Power purchase agreement between the appellants and the respondent – Series of correspondences ensued regarding the issuance of Essentiality Certificate to allow customs duty exemptions based on the amended entry in the notification * Author 446 [2024] 11 S.C.R. Digital Supreme Court Reports dated 11.12.2009 – Disputes between the parties regarding the passing on the benefits – Appellant’s case, that with the press release on 01.10.2009, a new legal regime commences and on that basis, the appellant in its bid of 09.10.2009 factored the altered position including the fiscal benefits due to customs duty exemptions – Respondent’s case that the press release of 01.10.2009 only sets out the proposal for modification and the real modification happened on 11.12.2009 and 14.12.2009; and since the change of law having happened on 11.12.2009/14.12.2009 the benefits that have accrued to the appellant ought to be passed on: Held: 01.10.2009 Press Release not law under Clause 1.1 of the PPA – Press release did not alter/amend/repeal the existing law as on 01.10.2009 – It was at best the announcement of a proposal approved by the Cabinet which had to be given shape after fulfilment of the conditions mentioned therein – Notifications constituting change in law happened on 11.12.2009 and 14.12.2009 and thus no basis in the contention that on 01.10.2009 the old legal regime had given way – Press release of 01.10.2009 certainly does not fulfil the meaning of the word “order” as understood in legal parlance – Press Release with all its future eventualities and conditionalities is only a proposal and it is only after the undertakings were agreed to be given by the State Government that a final shape was given in the form of a customs notification on 11.12.2009 and by the policy document of 14.12.2009 – Press release announcing the cabinet approval of certain modifications envisaged in the existing Mega Power Policy is not law as defined in Clause 1.1 – Change in law occurred only on 11.12.2009/14.12.2009, and the respondent no. 1 rightly held entitled to the benefits, which ultimately would go to the consumers – Words of clause 13.1.1 read with the definition of law in Clause 1.1 are plain and clear – For a change in law to occur, the certain events ought to have happened seven days prior to the bid deadline – Law, as it stood prior to the press release of 01.10.2009 insofar as the financial implications for the matter is concerned, was the notification issued on 01.03.2002 and entry 400 thereof – That notification, subject to the conditions mentioned thereon in entry 400 granted exemption from customs duty for import of goods required for setting up of any Mega Power project if such Mega Power project was an inter-State power plant and if it fulfilled the other conditi
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