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2023 Supreme(SC) 716

K. M. JOSEPH, B. V. NAGARATHNA
Haryana Power Purchase Centre – Appellant
Versus
Sasan Power Ltd. – Respondent


Judgement Key Points

Certainly. Based on the detailed legal document provided, here are the key points summarized with references:

  1. The case involves a dispute under the Electricity Act, 2003, concerning power procurement through competitive bidding, with specific focus on claims related to changes in law affecting the project costs and contractual obligations (!) (!) .

  2. The project in question is an Ultra Mega Power Project (UMPP) with a long-term Power Purchase Agreement (PPA), where Reliance Power Limited acquired the project and entered into the PPA, which was to be enforced for 25 years (!) (!) .

  3. The dispute centers on alleged changes in law during the construction phase, specifically related to increased costs due to the water intake system and customs duties on mining equipment, which the first respondent claims qualify as change in law entitling them to compensation (!) (!) .

  4. The initial water intake study report was prepared by a government body, WAPCOS, and was made available before bid submission, which formed the basis for cost estimates. Subsequent detailed studies revealed that the original location was unsuitable, leading to a revised location with increased costs (!) (!) .

  5. The courts examined whether the change in the water intake system's location and associated costs constituted a change in law under contractual provisions. The courts concluded that the costs incurred due to the revised location were not covered under the change in law provisions because the initial report was a mere informational document with disclaimers, and the bidders were responsible for verifying such information independently (!) (!) (!) .

  6. The issue of customs duty exemption was also scrutinized. The relevant notifications and their interpretations indicated that goods for power projects, including captive coal mines, were exempt from customs duty only if such exemption was applicable before the cut-off date. The subsequent Office Memorandum issued by a government official was deemed an interpretation, not a change in law, and did not alter the legal entitlement to exemption that existed prior to the cut-off date (!) (!) (!) .

  7. The courts emphasized that contractual disclaimers, which explicitly stated that the procurers did not warrant the accuracy of reports and that bidders should verify information independently, limited the liability of the procurers for errors in the reports provided (!) (!) (!) .

  8. The courts also clarified that regulatory powers under the relevant statutes do not permit overriding the specific terms of a long-term contract unless explicitly provided, and cannot be used to create a new legal obligation outside the contractual framework (!) (!) (!) .

  9. The courts rejected the broad interpretation that regulatory authorities could revisit or revise tariffs outside the contractual provisions, especially when the contract explicitly delineates the mechanisms for change, such as the change-in-law clauses (!) (!) .

  10. The courts found that the claims based on the alleged change in interpretation by government authorities, especially regarding customs duties and water intake, lacked sufficient legal basis, as there was no clear evidence of a final authority issuing a change in law before the cut-off date (!) (!) .

  11. The courts highlighted that the contractual provisions, including the specific definitions and disclaimer clauses, must be read harmoniously and that the parties had clearly delineated their responsibilities and the scope of change-in-law claims (!) (!) (!) .

  12. The courts ultimately set aside the impugned orders that had granted relief to the first respondent, reaffirming that no change in law had been established and that the contractual and statutory framework did not support the claims made (!) (!) .

  13. The decision underscores the importance of adhering to the contractual clauses, disclaimers, and the specific procedures for invoking change-in-law provisions, and cautions against broad interpretations that could undermine the contractual and statutory framework governing power procurement projects (!) (!) (!) .

  14. The parties are directed to bear their own costs, and the orders of the tribunals and commissions that granted relief are to be set aside in accordance with the judgment (!) .

Please let me know if you need further analysis or specific legal advice based on these points.


JUDGMENT :

K.M. JOSEPH, J.

1. The six appeals with which we are concerned have been filed under Section 125 of the ELECTRICITY ACT , 2003 (hereinafter referred to as ‘Act’ for brevity). The appeals are directed against the order passed by the Appellate Tribunal for Electricity (hereinafter referred to as ‘Tribunal’ for brevity) in an appeal carried by the first respondent under Section 111 of the Act.

2. The appeal before the Tribunal, in turn, was lodged against the order passed by the Central Electricity Regulatory Commission (hereinafter referred to as ‘Commission’ for brevity). The Commission passed the order purporting to be one under Section 79 (b) inter-alia of the Act in a petition filed by the first respondent.

FACTS

3. It was decided to set up an Ultra Mega Power Project. Towards this end, the Power Finance Corporation Limited of India was to be the nodal agency. It incorporated a Special Purpose Vehicle, which is the first respondent. The idea was to set up the Ultra Mega Power

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