UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ANR versus ADANI POWER (MUNDRA) LIMITED & ORS.

Citation: [2023] 5 S.C.R. 468 · Decided: 20-04-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 5 S.C.R.
[2023] 5 S.C.R. 468
468
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ANR.
v.
ADANI POWER (MUNDRA) LIMITED & ORS.
Civil Appeal No. 4143 of 2020
APRIL 20, 2023
[B. R. GAVAI AND VIKRAM NATH, JJ.]
Electricity Act, 2013 : s. 63 – Determination of tariff by bidding
process – Change in law – Haryana Utilities-appellants entered
into Power Purchase Agreements-PPAs with the APML – PPAs entered
pursuant to tariff based Competitive Bidding Process – Petition by
APML before CERC seeking relief of increase in tariff on account
of change in law, increase in coal price due to change in Indonesian
Regulations – CERC allowed the petition granting change in law
relief for the shortfall in the availability of 100% coal which was
upheld by the APTEL – On appeal, held: No document on record
that representation was given by APML that its bid is based on 70%
domestic and 30% imported coal – APML entitled to benefit on
account of the Change in Law if there was any shortfall of 70% of
the domestic coal as was decided to be allotted by the SLC (LT) –
No error with the concurrent findings that APML entitled to Change
in Law relief for 100% of the contracted capacity, which is 70% of
the installed capacity of the Project – As regards, the methodology
for computation of Change in Law compensation laid down in GMR
Kamalanga Energy Ltd.’s case, Haryana Utilities are indulging into
approbation and reprobation – After accepting before the CERC
that they would adopt the methodology as given in the case of GMR
Kamalanga Energy Limited’s case, it would not be appropriate on
the part of the appellants-instrumentalities of the State, to change
its stand after final orders are passed by the CERC – Thus, the
concurrent findings of facts by two expert bodies does not call for
interference.
Dismissing the appeal, the Court
HELD: 1.1 None of the documents placed on record would
reveal that a representation was given by AP(M)L that its bid is
based on 70% domestic and 30% imported coal. It could thus be
seen that what has been stated in the Executive Summary by
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AP(M)L is that its Power Plant had a strategic advantage inasmuch
as it had proximity to Mundra Port. It further states that Mundra
Port possesses World Class Coal handling facilities with 17 meter
deep draft permitting capsize vessels to berth alongside. By the
said document, it has proposed to supply 1425 MW to Haryana
Power Generation Corporation Limited (HPGCL) from 1980 MW
(3 x 660 MW) Phase IV extension of Mundra Project. The
representation given is that it would use either imported or
indigenous coal. [Paras 29, 30][479-B-C; D-F]
1.2 It could thus be seen that AP(M)L would be entitled to
benefit on account of the Change in Law if there was any shortfall
of 70% of the domestic coal as was decided to be allotted by the
SLC (LT) in its meeting dated 12th November 2008, culminating
in the Ministry of Coal - MOC issuing a LoA dated 25th June
2009 and the Fuel Supply Agreement - FSA being signed by
AP(M)L with CIL on 9 th June 2012. [Para 34][480-B-D]
1.3 The claim of AP(M)L is with regard to shortfall in the
assured quantity of 70%, and not above that. From the order
passed by the APTEL, it is clear that it has been the consistent
stand of the appellants that AP(M)L was in a position to generate
and supply contracted capacity of 1424 MW out of the fuel linkage
arising out of the FSA dated 9th June 2012 with Mahanadi Coal
Field Limited. It has been its stand that AP(M)L should use the
entire domestic coal availability towards the contracted capacity
of the appellants first, and then use the imported coal for the
deficit to reach the targeted PLF. It has further been its stand
that the entire domestic coal available should be accounted
towards 1424 MW contracted to Haryana Utilities. [Paras 35 and
36][480-D-F]
1.4 The entire domestic coal linkage came to be utilized
for supplying power to Haryana Utilities, it is unjust on the part
of Haryana Utilities to say that 70% of the installed capacity should
be further bifurcated and the Change in Law benefit should be
restricted only to 70% of the installed capacity which was allotted
by the SLC (LT). [Para 40]P481-C-D]
UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI
POWER (MUNDRA) LIMITED
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
1.5 Even according to Haryana Utilities, the entire coal
covered under FSA was required to be utilized for generating
power to be supplied to i

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