Madhya Pradesh Power Management Co. Ltd. & Anr. vs M/s Dhar Wind Power Projects Pvt. Ltd. & Ors.

HELD: 1.1 The Tariff Order of March 2013 stipulated that it would be applicable to all new wind electric generation projects which were commissioned on or after 1 April 2013 for the sale of electricity to distribution licensees in the State. The control period of the Tariff Order commenced on 1 April 2013 and would end on

31 March 2016. The Tariff Order fixed a levelized tariff of Rs

5.92 per unit for new wind energy projects to be commissioned after the issuance of the Order for a project life of 25 years. Para

12.30 provided that all existing projects which were commissioned before 1 April 2013 would be governed by the terms and conditions applicable at the time of commissioning. Hence, the crucial ingredient in determining the tariff was the actual date on which the project was commissioned. The Tariff Order of 17 March 2016 which replaced the earlier Tariff Order applied to all new wind electric generation projects which were commissioned at 00.00 hrs on 1 April 2016 or thereafter. The SLDC was required by Para 4.2 of the Tariff Order to submit a list of WEGs commissioned during the month of March 2016 from

00.00 hrs of 1 March 2016 to 24.00 hrs of 31 March 2016. This data was sought in order to provide an objective basis of determining whether a project had been commissioned before the new Tariff Order became applicable to projects which were commissioned with effect from 1 April 2016. [Para 22] [82-F-H; 83-A-G]

1.2 In line with the said provisions, the guidelines that were issued by the first appellant on 18 March 2016 provided a format for the issuance of commissioning certificates. The format required readings of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters. The format required the submission of this data in order to establish the date on which a particular project had been commissioned. The actual date of commissioning would determine the applicable tariff; the tariff of Rs 5.92 per unit would apply to projects which were commissioned on or before 31 March 2016, while the new rate of Rs 4.78 per unit would apply to projects which were commissioned on or after 1 April 2016. Requiring the SLDC to submit data of the actual injection of power into the grid was with the objective of establishing the actual commissioning of the project. [Para 23] [83-G-H; 84-A-G]

1.3 On reviewing the documentary material on the record, the view which weighed with the High Court, namely, that the commissioning of the project was completed by 31 March 2016 cannot be accepted. The certificate of commissioning which has been issued by the Superintending Engineer is belied by the objective factual data available from the SLDC which is a statutory body constituted under Section 31 of the Act. The objective data on the record indicates that the injection of power into the grid took place on 1 April 2016. Hence, that this should be the basis on which the claim for the entering into a PPA should be founded. [Para 25] [85-C]

1.4 The project of the first respondent was commissioned on 1 April 2016 since the SLDC data indicates the injection of power into the grid with effect from that date. On the basis of the commissioning of the project on 1 April 2016, there is merit in the alternative submission that the Tariff Order that must apply is the Tariff Order dated 17 March 2016. The first respondent was before the High Court in writ proceedings espousing its claim to the benefit of a higher rate of Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis that the commissioning of its project had taken place on 31 March 2016. The first respondent was bona fide pursuing its claim in that regard which found acceptance in the impugned judgment and order of the High Court. Though this Court has differed with the view taken by the High Court, it would be unfair to deny to the first respondent the benefit of the rate which came to be prescribed by the Tariff Order of 17 March 2016. The rate which was prescribed by that Tariff Order of Rs 4.78 per unit was to apply during the control period beginning from 1 April 2016 and ending on 31 March 2019 and that rate would continue to govern the life cycle of 25 years, as prescribed by Para 5 of the Tariff Order. The first respondent cannot be denied a parity of treatment, as has been allowed to other projects of a similar nature which would be governed by the control period stipulated in Para 5 of the Tariff Order dated

17 March 2016. [Para 26] [85-D-F]

1.5 The competitive bidding guidelines were formulated by the Union Ministry of Power subsequently on 8 December 2017. Moreover, Para 3.1 of those guidelines is not applicable to the project of the first respondent. The guidelines apply to gridconnected Wind Power Projects with an individual size of 5 MW and above at one site with a minimum bid capacity of 25 MW for intra-State projects. Since the first respondent is admittedly an intra-State project and does not fulfil the above requirement, the guidelines (which in any event came into force subsequently) would have no application. [Para 27 and 28] [85-G-H; 86-A-C]

1.6 The impugned judgments and orders of the High Court are set aside. It is directed that the first respondent would be entitled to the benefit of the Tariff Order dated 17 March 2016. The appellants would process the application of the first respondent for execution of a PPA on that basis with effect from

1 April 2016. In view thereof, the second writ petition which has been filed by the first respondent before the High Court shall not survive and shall stand disposed of in terms of the instant judgment. [Para 29] [86-E-G]