Review Petition No. 26 of 2012 in Petition No. 155/MP/2012. Case: 1. Adani Power Limited, 2. In Re: Uttar Haryana Bijli Vitran Nigam Limited, Panchkula and Dakshin Haryana Bijili Vitran Nigam Limited, Panchkula Vs Uttar Haryana Bijli Vitran Nigam Limited, Panchkula, Dakshin Haryana Bijili Vitran Nigam Limited, Panchkula and Gujarat Urja Vikas Nigam Limited, Vadodara. Central Electricity Regulatory Commission

Case Number:Review Petition No. 26 of 2012 in Petition No. 155/MP/2012
Party Name:1. Adani Power Limited, 2. In Re: Uttar Haryana Bijli Vitran Nigam Limited, Panchkula and Dakshin Haryana Bijili Vitran Nigam Limited, Panchkula Vs Uttar Haryana Bijli Vitran Nigam Limited, Panchkula, Dakshin Haryana Bijili Vitran Nigam Limited, Panchkula and Gujarat Urja Vikas Nigam Limited, Vadodara
Counsel:For Appellant: Shri M.G. Ramchandran, Advocate in Petition No. 155/MP/2012 and Shri C.S. Vaidyanathan, Senior Advocate for APL, Shri Jignesh Langalia, APL, Shri Malav Deliwala, APL, Shri Vipul H. Jadav, APL, Ms. Poonam Verma, APL and Shri Gautam Shahi, APL in Review Petition No. 26 of 2012 and Shri Arun Kumar and For Respondents: Shri Jatin ...
Judges:Dr. Pramod Deo, Chairperson, Shri S. Jayaraman, Member, Shri V.S. Verma, Member and Shri M. Deena Dayalan, Member
Issue:Code of Civil Procedure, 1908 - Rule 1; Electricity Act, 2003 - Sections 10, 62, 63, 79, 79 1(b), 79(1), 79(1) (b), 79(1)(a), 79(1)(b), 79(1)(f), 94
Judgement Date:January 16, 2013
Court:Central Electricity Regulatory Commission

Order:

1. The review petition has been filed by Uttar Haryana Bijli Vitran Nigam Limited and Dakshin Haryana Bijili Vitran Nigam Limited (hereinafter "the Review Petitioners") under Section 94 of the Electricity Act, 2003 read with Regulation 103 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 seeking review of the order dated 16.10.2012 (hereinafter "the impugned order"), whereby this Commission has decided in favour of maintainability of the Petition No. 155 of 2012 filed by Adani Power Ltd. Gujarat Urja Vikas Nigam Ltd. (hereinafter "GUVNL") and the Review Petitioners had invited bids for procurement of power in accordance with the competitive bidding guidelines issued by the Central Government, independently of each other. Adani Power Ltd. participated in both the bidding processes and was declared successful. Accordingly, Adani Power Ltd. entered into separate Power Purchase Agreements (hereinafter "the PPAs") with GUVNL and the Review Petitioners for supply of power at tariffs discovered through the competitive bidding. The PPAs were approved by the respective State Commissions. According to Adani Power Ltd., it had taken into consideration the prices of coal imported from Indonesia while quoting the tariff for supply of electricity. However, after enactment of New Coal Pricing Regulation by the Indonesian Government, the prices of imported coal were said to have substantially increased which, according to Adani Power Ltd., has made the supply of power at the agreed tariffs unviable. Therefore, Adani Power Ltd. has filed the petition (Petition No 155/2012) before this Commission seeking the following reliefs, namely:

  1. to evolve a mechanism to restore the Applicant to the same economic condition prior to occurrence of Subsequent Events mentioned in respective Part I & II hereinabove by adjudicating the disputes between the Applicant and the Respondent(s) in relation to regulate including changing and/or revising the price/tariff under PPAs dated 7.8.2008 with UHBVNL and DHBVNL and 2.2.2007 with GUVNL;

  2. in the alternative, to declare that the Applicant is discharged from the performance of the PPAs on account of frustration of the PPAs due to Subsequent Events in respective Part I & II;

  3. this Hon'ble Central Commission be pleased to declare that the revised tariff shall be applicable from the Scheduled Commercial Operation Date (SCoD) of the PPAs;

  4. that during the pendency of the present Application Hon'ble Central Commission may direct the Respondent(s) to procure power on the cost plus basis, alternatively, the Hon'ble Central Commission may suspend the operation of the PPAs till the final disposal of the Application;

  5. pass such further or other orders as the Hon'ble Central Commission may deem just and proper in the circumstances of the case.

2. The question of jurisdiction of this Commission to adjudicate the dispute raised in the petition was considered as a preliminary issue. The Review Petitioners and GUVNL filed their replies on the question of maintainability. After hearing the parties and considering the pleadings, this Commission by the impugned order upheld its jurisdiction to adjudicate the dispute and admitted the petition for hearing on merits.

3. The Review Petitioners seek review of the impugned order alleging that while deciding the question of jurisdiction, this Commission has not considered the specific arguments made by them in their written submissions dated 24.9.2012. Firstly, the Review Petitioners have denied that they had conceded jurisdiction of this Commission and therefore, according to the Review Petitioners, this Commission incorrectly proceeded to decide the question of jurisdiction when it recorded in paras 10 and 16 of the impugned order a statement to that effect attributed to the Review Petitioners. On the contrary, the Review Petitioners have stated that it was projected on their behalf in the written submissions that the respective State Commissions only had the jurisdiction to decide the dispute raised by Adani Power Ltd. The Review Petitioners have pointed out that no cognisance of this submission made in the written submissions had been taken while deciding the question of jurisdiction. The Review Petitioners have also submitted that in the written submissions they had urged that the petition before this Commission was not maintainable in view the earlier order of this Commission in Petition No 103/2005 (Uttranchal Jal Nigam Ltd. Vs Uttranchal Power Corporation Ltd. and another), which submission was not considered in the impugned order.

4. Adani Power Ltd. in its reply to the Review Petition has supported the impugned order. It has been stated by Adani Power Ltd. that the impugned order was not passed just based on the concessions made but also contained elaborate discussion of the issues involved and concluded at paras 19 and 20 of the impugned order that Adani Power Ltd. had the composite scheme. According to Adani Power Ltd., the impugned order was based on consideration of the issue of jurisdiction on merits. On this basis it has been submitted that the Review Petition is beyond the scope of Order 47, Rule 1 of the Code of Civil Procedure. In this context Adani Power Ltd. has drawn sustenance from the judgments of the Hon'ble Supreme Court in Thungabhadra Industries Ltd. Vs Government of A.P. (AIR 1964 SC 1372) and Haridas Das Vs Usha Rani Banik and others [ (2006) 4 SCC 78]. To support this Commission's finding that the Review Petitioners had conceded the question of jurisdiction of this Commission to adjudicate the dispute, Adani Power Ltd. has referred to para 8 of the reply filed by the Review Petitioners. Adani Power Ltd. has averred that the impugned order and the order dated 26.3.2006 in Petition No 103/2005 are distinguishable on facts which aspect the Review Petitioners have failed to appreciate.

5. We have heard the learned counsel for the Review Petitioners and the learned senior counsel for Adani Power Ltd. Learned counsel for the Review Petitioner submitted that review of the impugned order dated 16.10.2012 has been sought on the grounds mentioned in para 11 of the review petition i.e. there has been no concession on the issue of jurisdiction on the part of Haryana Utilities and the earlier decisions of the Commission in UJVNL case has not been considered though specifically stated in the written submission. Learned counsel further submitted that as per para 2.4 of the Competitive Bidding Guidelines dated 19.1.2005 issued by Ministry of Power, Government of India, in case of combined procurement where the distribution licensees are located in more than one State, the Appropriate Commission...

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