UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED AND ANOTHER versus ADANI POWER (MUNDRA) LIMITED AND ANOTHER

Citation: [2023] 5 S.C.R. 639 · Decided: 20-04-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Dismissed

Judgment (excerpt)

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   [2023] 5 S.C.R. 639
639
UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED
AND ANOTHER
v.
ADANI POWER (MUNDRA) LIMITED AND ANOTHER
(Civil Appeal No. 5684 of 2021)
APRIL 20, 2023
[B. R. GAVAI AND VIKRAM NATH, JJ.]
Electricity – Change in Law – A new regime for allocation of
coal under SHAKTI Policy was brought into effect in 2017
whereunder, the projects approved under the old regime were entitled
to continue to get supply of 75% of the Assured Coal Quantity (ACQ)
even beyond 31st March 2017 – Contending that there was a
shortfall from 75% ACQ, first respondent filed petition claiming
relief for shortfall on account of Change in Law – Claim allowed
by CERC – Appeal filed by appellants before APTEL, dismissed –
Held: All the grounds raised before APTEL were raised and
considered, and held against DISCOMs in the appeals filed by
Maharashtra State Electricity Distribution Company Limited –
Findings given by APTEL in the present case are identical with the
findings given in the judgment and order dtd.28.09.2020, upheld
in C.A Nos. 677-678 of 2021 – Concurrent view taken by the CERC
and 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;
Maharashtra State Electricity Distribution Company
Limited (MSEDCL) v. Adani Power Maharashtra Limited
(APML) and Others 2023 SCC OnLine SC 233 –
referred to.
Case Law Reference
(2017) 14 SCC 80
referred to
Para 3
CIVIL APPELLATE JURISDICTION : Civil Appeal No.5684
of 2021.
From the Judgment and Order dated 30.06.2021 of the Appellate
Tribunal for Electricity, New Delhi in Appeal No.358 of 2019.
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
M. G. Ramachandran, G. Umapathy, Niranjan Reddy, Dr. A.M.
Singhvi, Darius J. Khambata, Sajan Poovayya, Vikram Nankani, Sr. Advs.,
Ms. Poorva Saigal, Shubham Arya, Nikunj Dayal, Ms. Pallavi Saigal,
Ravi Nair, Ms. Shikha Sood, Ms. Reeha Singh, Ms. Anumeha Smiti,
Aneesh Bajaj, Anup Jain, Udit Gupta for M/s. Udit Kishan and Associates,
Vishrov Mukherjee, Pukhrambam Ramesh Kumar, Yashaswi Kant, Karun
Sharma, Ms. Juhi Senguttuvan,  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, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. The present appeal challenges the judgment and order dated
30th June 2021, passed by the Appellate Tribunal for Electricity, New
Delhi (hereinafter referred to as “APTEL”) in Appeal No. 358 of 2019,
thereby dismissing the appeal filed by the Uttar Haryana Bijli Vitran
Nigam Limited and Dakshin Haryana Bijli Vitran Nigam Ltd. (hereinafter
referred to as “Haryana Utilities”), appellants herein, and maintaining
the judgment and order dated 13th June 2019 passed by the Central
Electricity Regulatory Commission (hereinafter referred to as “CERC”)
in Petition No. 251/MP/2018.
2. The facts, in brief, giving rise to the present appeal are as
under:
Haryana Utilities had entered into two Power Purchase
Agreements (for short, “PPA”) dated 7th August 2008 with the first
respondent-Adani Power (Mundra) Limited (hereinafter referred to as
“AP(M)L”) for a contracted capacity of 1424 MW from the generating
Units 7, 8 and 9 established by AP(M)L in the State of Gujarat on the
terms and conditions contained in the said PPAs. The said PPAs were
entered into between Haryana Utilities and AP(M)L in pursuance to a
Tariff Based Competitive Bidding Process initiated by the Haryana
Utilities under Section 63 of the Electricity Act, 2003 as per the guidelines
notified by the Central Government.
3. AP(M)L filed a petition being Petition No. 155/MP/2012 on 5th
July 2012 seeking, inter alia, relief of increase in tariff from the quoted
tariff mentioned in the bid on various grounds. The CERC had passed
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orders in the said petition on 2nd April 2013 and 21st February 2014. The
said orders were challenged before the APTEL. Finally, a batch of appeals
challenging the order of APTEL reached this Court by way of Civil
Appeal Nos. 5399-5400 of 2016. This Court, in the case of Energy
Watchdog v. Central Electricity Regulatory Commission and Others1
decided on 11th April 2017, observed thus:
“57. Both the letter dat

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