Haryana Power Purchase Centre (HPPC) and Others vs GMR Kamalanga Energy Limited and Others

Held: The appeal u/s.125 of the 2003 Act is only permissible on any of the grounds as specified in s.100 of the CPC – As such, it is permissible only on substantial questions of law. [Para 23] Electricity Act, 2003 – ss.79, 125 – The two instant appeals challenge the same judgment and final order of the APTEL – The first appeal being Civil Appeal No. 1929 of 2020 has been filed by Haryana Power Purchase Centre and two others (HPPC) whereas the second appeal being Civil Appeal No.3429 of 2020 has been filed by one GRIDCO – Earlier, Petition No.79/2013 came to be filed by GKEL-respondent no.1 before CERC against the Haryana Utilities for compensation due to force majeure events and change in law during the operation period – In the said petition, the GKEL-respondent no.1 sought adjustment of tariff on account of events of Change in Law which affected the power project during the operation period in order to restore GKEL to the same economic position that it would have been in if the concerned events had never occurred – CERC vide order dt. 03.02.2016 disposed of the said petition by allowing all such claims which fell within the parameters of Change in Law events – GKEL had preferred a similar petition being Petition No.112/MP/2015 against Bihar Utilities, the CERC vide order dt. 07.04.2017 disposed of the petition by allowing all such claims – The CERC vide another order dated 20.03.2018 disposed of the Petition No. 105 by directing the Haryana Utilities to pay the supplementary bills raised by GKEL – Appeals before the APTEL – The APTEL vide the common judgment and final order dated 20.12.2019 dismissed both the appeals and upheld the order of the CERC – Correctness:

Held: In the first Appeal No. 1929 of 2020, there are concurrent findings of facts not only in the impugned judgment passed by the APTEL and the order passed by the CERC in Petition No.105, but also in the order dated 03.02.2016 passed by the CERC in Petition No.79 during the first round of litigation – The Court will, therefore, have to be very slow in interfering with the said findings of fact – Unless it is found that the findings are perverse, arbitrary or in violation of the statutory provisions, it will not be permissible for this Court to interfere with the same – Also, this Court does not find any substantial question of law arises for consideration in the present appeal – The petition was filed by GKEL seeking relief on account of Change in Law on various grounds – One of the grounds was with regard to deviations from the New Coal Distribution Policy, 2007 (the NCDP) and changes in coal distribution policy of the Government of India and Coal India Limited – The perusal of paragraphs 54, 55 and 73 of the order passed by the CERC dated 03.02.2016 would reveal that it devised a formula for computing the Energy Charge Rate which required pro rata allocation of coal among all three DISCOMS – It is pertinent to note that the Haryana Utilities did not challenge the said order and paid the amounts due – The perusal of the aforesaid judgment and orders (CERC and APTEL) would reveal that they are based upon interpretation of various documents – Considering the concurrent findings of fact by the CERC on two different occasions and the APTEL in impugned order and also taking into note of the communication dated 02.02.2022 issued by MCL, this Court sees no merit in the appeal of Haryana Utilities – In the second appeal being Civil Appeal No.3429 of 2020 by GRIDCO is concerned, the main contention of GRIDCO is that the order dated 03.02.2016 in Petition No.79 and order dated 20.03.2018 in Petition No.105 were passed without impleading GRIDCO – It will be relevant to note that the PPA with GRIDCO is u/s.62 of the 2003 Act whereas the PPAs with the Haryana Utilities and Bihar Utilities are u/s.63 of the 2003 Act – As such there was no occasion for GKEL to implead GRIDCO as a party to the said petitions – Earlier, while considering the appeal of Haryana Utilities, this Court has already upheld the concurrent findings of the CERC and the APTEL that the coal supply from all the sources has to be apportioned amongst all the three DISCOMS in proportion to the energy supplied to them – None of the DISCOMS can claim a priority for supply of power based either on the prior date of agreement or the recital as to the source of coal – There is no merit in the present appeal as well – Appeals dismissed. [Paras 24, 28, 31, 34, 40, 41, 45]