IMPORTANT POINT
Definition of “Law” is wide enough to include all rules, regulations, orders, notifications by Governmental instrumentalities.

JUDGMENT :

B.R. GAVAI, J.

1. The present appeal challenges the judgment and order dated 21st December 2021 passed by the Appellate Tribunal for Electricity (hereinafter referred to as ‘APTEL’) in Appeal No. 231 of 2021, filed by the appellants herein, thereby challenging the order dated 8th July 2019, passed by Central Electricity Regulatory Commission (hereinafter referred to as ‘CERC’) in Petition No. 269/MP/2018. The APTEL has held the communication dated 19th June 2013, issued by Coal India Limited (for short “CIL”) not to be a ‘Change in Law’ event.

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

The respondent No. 1-Adani Power (Mundra) Limited (hereinafter referred to as “AP(M)L”) had set up a generating station of capacity 4620 MW (Phase I and II-4 x 330 MW, Phase III-2 x 660 MW and Phase IV-3 x 660 MW) at Mundra in the State of Gujarat. AP(M)L had entered into Power Project Agreements (hereinafter referred to as “PPA”) dated 7th August 2008 with Uttar Haryana Bijli Vitran Nigam Limited and Dakshin Haryana Bijli Vidyut Nigam Limited (hereinafter referred to as “Haryana Utilities”) the appellants herein, for supply of 1424 MW power from Phase IV of the generating station.

3. CERC, vide its order dated 6th February 2017, allowed the compensation towards certain ‘Change in Law’ events claimed by AP(M)L in Petition No. 156/MP/2014. AP(M)L has submitted that Haryana Utilities were already making payments in terms of the supplementary invoices raised by AP(M)L. Subsequently, on account of the judgment of this Court in the case of Energy Watchdog vs. Central Electricity Regulatory Commission and Others, (2017) 14 SCC 80, AP(M)L filed another petition being Petition No. 97/MP/2017 claiming compensation on account of change in New Coal Distribution Policy, 2007 (for short, “NCDP 2007”). Subsequently, certain interim directions were issued by CERC. Haryana Utilities, thereafter, filed I.A. No. 21 of 2018 in Petition No. 97/MP/2017, stating therein that the compensation as claimed by AP(M)L was incorrect inasmuch as AP(M)L had not taken into consideration the benefits accruing to them on account of Inter Plant Transfer (for short, “IPT”) permitted under the communication dated 19th June 2013 issued by CIL.

4. Per contra, it was claimed by AP(M)L that the Haryana Utilities unilaterally revised a huge amount from the monthly bills on the ground of IPT. It was submitted by AP(M)L that the contention of the Haryana Utilities with regard to IPT has already been rejected by CERC in its order dated 31st May 2018.

5. In this background, AP(M)L filed Petition No. 269/MP/2018 before CERC claiming the following reliefs:

“(a) Clarify and declare that the findings of this Ld. Commission at paragraph 61 of the Order of the Commission dated 31.05.2018 in Petition No. 97/MP/2017 and IA No. 21 of 2018, are applicable to the Change in Law compensation pertaining to taxes and duties approved under Order dated 06.02.2017 in Petition No. 156/MP/2014 as well.

(b) Direct the Respondents to pay Rs. 895.41 Crores (Rs. 566.83 Crores related to Domestic Coal Shortfall + Rs. 328.58 Crores related to taxes and duties) unilaterally deducted from the monthly bills/supplementary invoices along with the applicable Late Payment Surcharge.”

6. CERC framed the following issues:

“Issue No. 1: Whether the Petition is maintainable under Section 142 of the Act?

Issue No. 2: Whether our finding in respect of IPT coal at Para 61 of the order dated 31.5.2018 in Petition No. 97/MP/2017 is applicable for the compensation payable for various taxes and duties approved as change in law in the order dated 6.2.2017 in Petition No. 156/MP/2014?

Issue No. 3: What should be the treatment of Inter Plant Transfer of Coal, if it is considered as change in law?

Issue No. 4: What should be the basis for calculating shortfall of domestic coal?”

7. Insofar as Issue No. 1 is concerned, CERC held the dispute to be maintainable.

8. Insofar as Issue No. 2 is concerned, CERC held