Summary
The Haryana distribution utilities challenged concurrent orders of CERC and APTEL granting Adani Power (Mundra) Change in Law relief for shortfall in domestic coal below the 75% of Assured Coal Quantity continued under the SHAKTI Policy of May 2017, contending that the SHAKTI Policy was not a Change in Law, that no Change in Law notice had been given and that carrying cost was not payable. The Supreme Court dismissed the appeal, noting that all three grounds had been decided against the DISCOMs in its judgment of the same date in the MSEDCL appeals and that the concurrent findings of the expert bodies disclosed no ignorance of statutory provisions, extraneous consideration or arbitrariness.
Issues
- Whether the SHAKTI Policy of 22 May 2017 amounts to a Change in Law under the power purchase agreements, whether the absence of a Change in Law notice defeats the claim, and whether carrying cost is payable.
- Whether the Supreme Court should interfere with concurrent findings of CERC and APTEL on these questions.
Provisions considered
- Section 63, Electricity Act, 2003The PPAs arose from tariff-based competitive bidding under this provision; the regulatory determinations under them by CERC and APTEL were concurrent findings of expert bodies. (¶¶ 2, 11, 12)
- Continuation of supply of 75% of Assured Coal Quantity to projects approved under the old regime, SHAKTI Policy of the Ministry of Coal dated 22 May 2017The generator claimed Change in Law relief for shortfall below 75% ACQ after 31 March 2017; CERC allowed it and APTEL affirmed. (¶¶ 6, 7, 8)
Held
- The grounds that the SHAKTI Policy is not a Change in Law, that no notice was given and that carrying cost is not payable were all raised and rejected in the MSEDCL appeals decided by judgment of even date, and the APTEL findings here are identical to those upheld there. (¶¶ 8, 10)
- Courts should be slow to interfere with decisions of expert bodies like CERC and APTEL; the concurrent view was not taken in ignorance of mandatory statutory provisions, nor based on extraneous considerations, nor ex facie arbitrary or illegal, so no interference is warranted. (¶¶ 11, 12, 13)
Result
Appeal dismissed; pending applications disposed of; no costs.