Uttar Haryana Bijli Vitran Nigam Ltd. & Anr. vs Adani Power (Mundra) Limited & Ors.

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 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]

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 it as per the Memorandum of Understanding. Therefore, denial of the benefit of shortfall of the coal assured under FSA, would be contrary to the restitutionary principle. In any case, the APTEL has clarified that AP(M)L was neither claiming nor was entitled to claim any Change in Law compensation beyond the one which was covered by linkage coal, i.e. 1386 MW. [Paras 41, 42][481-D-F]

1.6 To a specific query by the APTEL, it was fairly conceded by the counsel for Haryana Utilities that the MoUs were general in nature and not specific for Phase IV Mundra Power Plant. As such, the finding of the APTEL that the MoUs annexed with the bid were only to show its competence to participate in the bid, and that it cannot be stretched to hold that the bidder was to procure imported coal to the extent of 30% for the project, cannot be said to be perverse. [Para 44][481-F-H]

1.7 No error could be found with the concurrent findings that AP(M)L was entitled to Change in Law relief for 100% of the contracted capacity i.e. 1386 MW, which is 70% of the installed capacity of 1980 MW of the Phase IV extension of Mundra Project. The finding of the CERC and the APTEL is to the effect that AP(M)L would not be entitled to any benefit of Change in Law beyond 70% of the installed capacity i.e. 1386 MW. The said findings cannot be said to not be based on the material on record, or based on extraneous considerations. [Para 46][482-C-E]

1.8 The Perusal of the order passed by the APTEL would reveal that AP(M)L had proposed a methodology based on the methodology approved by the CERC in the GMR Kamalanga Energy Limited and Another v. Dakshin Haryana Bijli Vitran Nigam Limited and Others’s case considering the quoted tariff under the PPAs as the base. Haryana Utilities are indulging into approbation and reprobation. They cannot be permitted to blow hot and cold at the same time. 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, which are, after all, instrumentalities of the State, to change its stand after final orders are passed by the CERC. [Paras 49, 53][482-G-H; 483-G-H]

1.9 The concurrent findings of fact recorded by the two expert bodies could have been interfered with only if they failed to take into consideration the mandatory statutory provisions or if the decisions had been taken by them on extraneous considerations or that they were ex facie arbitrary and illegal. Nothing of that sort can be found in the impugned judgment and order to warrant interference. [Para 55][484-D-E] Energy Watchdog v. Central Electricity Regulatory Commission and others (2017) 14 SCC 80; Ashoka Smokeless Coal India (P) Ltd. and others v. Union of India and others (2007) 2 SCC 640 : [2006] 9 Suppl. SCR 954; Maharashtra State Electricity Distribution Company Limited v. Adani Power Maharashtra Limited and Others 2023 SCC OnLine SC 233; Jaipur Vidyut Vitaran Nigam Ltd. and others v. Adani Power Rajasthan Limited and another 2020 SCC Online SC 697; GMR Kamalanga Energy Limited and Another v. Dakshin Haryana Bijli Vitran Nigam Limited and Others Petition No. 79/MP/2013 dated 03.02.2016 – referred to.