LexUTTAR HARYANA BIJLI VITRAN NIGAM LIMITED AND ANOTHER versus ADANI POWER (MUNDRA) LIMITED AND ANOTHER
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A B C D E F G H 1095 [2023] 4 S.C.R. 1095 1095 UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED AND ANOTHER v. ADANI POWER (MUNDRA) LIMITED AND ANOTHER (Civil Appeal No. 2908 of 2022) APRIL 20, 2023 [B. R. GAVAI AND VIKRAM NATH, JJ.] Electricity Laws : Change in Law –Inter Plant Transfer-IPT of coal, if qualifies as a Change in Law event – Respondent No.1- company entered into Power Project Agreements with the appellants- Haryana Utilities for supply of power – Respondent no.1 filed petition claiming compensation on account of change in New Coal Distribution Policy, 2007 – Electricity Regulatory Commission- CERC allowed compensation towards certain ‘Change in Law’ events – However, the appellate tribunal held that the communication dated 19th June 2013 issued by Coal India Limited-CIL providing for Inter Plant Transfer not to be a ‘Change in Law’ event; and that change in law compensation to be calculated as Assured Coal Quantity-actual supply – Sustainability of – Held: Finding of APTEL that the communication dated 19th June 2013 permitting Inter Plant Transfer is not a ‘Change in Law’, not sustainable – Said communication refers to the decision of the CIL taken in its meeting whereby the transfer of coal which was not allowed hitherto, has been allowed only between the power plants owned by the purchaser or its wholly owned subsidiary – Communication reflects the decision of CIL, which is an Government instrumentality having a force of law – As such, the tribunal erred in holding the said communication providing for IPT does not to amount to ‘Change in Law’, thus, the finding of the APTEL is set aside – IPT amounts to ‘Change in Law’ – Allowing ‘Change in Law’ compensation on the basis of ACQ- actual supply upheld –Matter remitted to CERC for working out the effect of the ‘Change in Law’. Words and Phrases: Law – Meaning thereof . Partly allowing the appeal, the Court HELD: 1.1 The definition of “Law” is wide enough to include all rules, regulations, orders, notifications by the Governmental instrumentalities. [Para 24][1103-H] A B C D E F G H 1096 SUPREME COURT REPORTS [2023] 4 S.C.R. 1.2 The communication dated 19.06.2013 Modification in Model FSA applicable for New Power plants in respect of Interplant transfer of coal refers to the decision of the CIL taken in its meeting held on 27th May 2013. A perusal thereof would reveal that the transfer of coal which was not allowed hitherto, has been allowed only between the power plants owned by the purchaser or its wholly owned subsidiary. It further provides that no transfer of coal shall be allowed for a JV Company of the purchaser; that the supply of coal shall, for all commercial purpose under the FSA, remain unchanged and on account of the original Power Plant; that both the Power Plants should have executed FSA in the modified FSA Model applicable for new power plants and not having any supplies linked to coal blocks. It further provides that in case of IPPs, both the plants must have valid long term PPAs with DISCOMS. In no case the transferred quantity to a plant together with the quantity supplied under the applicable FSA shall exceed the ACQ of the Transferee Plant for a particular year which is proportional to the long term PPA with DISCOMS. Transfer of coal will not be allowed to those plants who are allotted coal blocks under this arrangement. In case of change in the ownership and no environmental clearance of the plant, this facility shall stand withdrawn. It could thus be seen that the said communication reflects the decision of CIL. The CIL is an instrumentality of the Government of India. As such, APTEL erred in holding the said communication dated 19th June 2013 not to amount to ‘Change in Law’. [Paras 26, 27][1105-B- F] 1.3 APTEL held that the said communication is an administrative instruction addressed to all the subsidiaries. APTEL failed to take into consideration that CERC had not decided the said issue, inasmuch as the decision on the said issue would have affected the other two DISCOMS, i.e., MSEDCL and Rajasthan DISCOMS. It would be relevant to note that the very same tribunal, immediately after three months, in the case of Rattan India Power Limited v. Maharashtra Electricity Regulatory Commission and Another, took a totally contrary view. Vide judgment in Civil Appeal Nos. 5005 of 2022 and 4089 of 2022, the concurrent view of Maharashtra Electricity Regulatory A B C D E F G H 1097 Commission and APTEL holding the said EFC to be ‘Change in Law’ is
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