Expert bodies' decisions should not be interfered with unless they violate statutory provisions or are arbitrary.

JUDGMENT :

B.R. GAVAI, J.

1. The appellants challenge the judgment and order passed by the Appellate Tribunal for Electricity, New Delhi (hereinafter referred to as “APTEL”) dated 3rd November 2020, thereby dismissing the appeal filed by them and maintaining the judgment and order dated 31st May 2018 passed by the Central Electricity Regulatory Commission (“CERC” for short) in Petition No. 97/MP/2017.

2. The facts, in brief, giving rise to the present appeal are as under.

3. Uttar Haryana Bijli Vitran Nigam Ltd. and Dakshin Haryana Bijli Vitran Nigam Ltd. (hereinafter referred to as “Haryana Utilities”/“Appellants”) are distribution licensees undertaking the distribution and retail supply of electricity to consumers in the State of Haryana. Haryana Utilities had entered into two Power Purchase Agreements (“PPAs” for short) on 7th August 2008 with Adani Power Mundra Limited (hereinafter referred to as “AP(M)L”) for procurement of contracted capacity of 1424 MW from generating units 7, 8 and 9 established by AP(M)L at Mundra in the State of Gujarat.

4. The PPAs were entered into pursuant to a tariff based Competitive Bidding Process initiated by the Haryana Utilities under the provisions of Section 63 of the Electricity Act, 2003, as per the Standard Bidding Guidelines notified by the Central Government.

5. AP(M)L had filed Petition No. 155/MP/2012 on 5th July 2012 before the CERC seeking, inter alia, relief of increase in tariff on various grounds. One of the grounds was that the Indonesian Regulations, promulgated by the Government of Indonesia, providing for the application of benchmark price for export of coal from Indonesia resulted in higher price of coal resulting in higher cost of generation of power.

6. AP(M)L had also claimed Force Majeure Event within the scope of Article 12 and Change in Law within the scope of Article 13 of the PPAs.

7. The orders dated 2nd April 2013 and 21st February 2014 passed by the CERC in the said Petition No. 155/MP/2012 were challenged before the learned APTEL by way of a batch of appeals, the lead being Appeal No. 100 of 2013. The order dated 7th April 2016 passed by the learned APTEL in Appeal No. 100 of 2013 and the batch of appeals were challenged before this Court in the case of Energy Watchdog vs. Central Electricity Regulatory Commission and Others, (2017) 14 SCC 80. This Court disposed of the said appeals on 11th April 2017 in terms of the following directions:

“57. Both the letter dated 31-7-2013 and the revised Tariff Policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in Clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly would.

58........The Central Electricity Regulatory Commission will, as a result of this judgment, go into the matter afresh and determine what relief should be granted to those power generators who fall within Clause 13 of the PPA as has been held by us in this judgment.”

8. It may be mentioned that this Court, in the case of Energy Watchdog (supra), specifically rejected the claim that the increase in price of coal due to change in Indonesian Regul