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2023 Supreme(SC) 716

SUPREME COURT OF INDIA
K.M. JOSEPH, B.V. NAGARATHNA, JJ.
Haryana Power Purchase Centre – Appellant
Versus
Sasan Power Ltd. and Others – Respondents
Civil Appeal Nos. 11826, 11927, 12190, 12232 of 2018, Civil Appeal Nos. 1670, 1742 of 2019
Decided On : 06-04-2023

Headnote:(A) Electricity Act, 2003 - Sections 63, 79, and 125 - Appellate Tribunal for Electricity orders challenged - Disputes regarding procurement of power through competitive bidding under the PPA and allegations of change in law - The Supreme Court set aside the Tribunal's order which had overturned the Commission's findings - The appellant's claims based on errors in WAPCOS reports and OM dated 17.06.2011 for customs duty exemptions deemed not pertinent in assessing changes under law - Conclusively, the court concluded there was no substantive change in law applicable to the case as warranted under the contractual stipulations. (Paras 141, 145, 147)

Facts of the case:
The case centers on claims made post the installation of an Ultra Mega Power Project initially determined through a bidding process, with subsequent financial burden carried by Reliance Power Limited based on errors in the WAPCOS reports regarding water intake which were deemed critical to plant operations. The associated customers also sought relief for escalated costs attributed to alterations in the location of the water intake site.

Findings of Court:
The court found no evidence of misrepresentation or unlawful change brought about that necessitated compensatory adjustments under the PPA, reiterating that both parties were responsible for diligence before entering the contract.

Issues: The primary legal question pertained to whether the reported change in the water intake system cost constituted a 'change in law' under Article 13 of the PPA relevant to the compensatory framework.

Ratio Decidendi: The reasoning hinged on existing contractual terms which delineated change in law stipulations, with the court emphasizing the independence of actions taken post bid acceptance versus pre-bid due diligence obligations.

Result: Appeals allowed, Tribunal's ruling set aside.

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 Project which would be operated by the successful bidder selected through an international competitive bidding. The power generated by the successful bidder was to be supplied through procurers (the appellants before us), who can be described also as the distribution licensees under the Act. The appellants were to supply the power so procured finally to the consumers.

4. Since what was contemplated was seeking shelter under Section 63 of the Act, we must refer to the guidelines which have been issued by the Central Government purporting to act under Section 63 . Guidelines were issued on 19.01.2005. We deem it appropriate to set out the following guidelines:

    “2.1 These guidelines are being issued under the provisions of Section 63 of the Electricity Act, 2003 for procurement of electricity by distribution licensees (Procurer) for:

    (a) long-term procurement of electricity for a period of 7 years and above.

    (b) Medium term procurement for a period of upto 7 years but exceeding 1 year.

    2.2 The guidelines shall apply for procurement of base-load and seasonal power requirements through competitive bidding, through the following mechanisms:

    (i) Where the location, technology, or fuel is not specified by the procurer (Case 1).

    (ii) For hydro-power projects, load center projects or other location specific projects with specific fuel allocation such as captive mines available, which the procurer intends to set up under tariff based bidding process (Case 2).”

5. The guidelines are binding on the procurers. Guideline 3.2 which is related to preparation for the invitation of bids would assume relevance. It reads as follows:

    “3.2 For long-term procurement from hydro electric projects or for projects for which pre-identified sites are to be utilized (Case 2), the following activities should be completed by the procurer or authorized representative of the procurer, before commencing the bid process:

    (i) Site identification and land acquisition required for the project

    (ii) Environmental clearance

    (iii) Fuel linkage, if required (may also be asked from bidder)

    (iv) Water linkage

    (iv) Requisite Hydrological, geological, meteorological and seismological data necessary for preparation of Detailed Project Report (DPR), where applicable.

    The bidder shall be free to verify geological data through his own sources, as the geological risk would lie with the project developer.

    The project site shall be transferred to the successful bidder at a declared price.

    Provided that for the projects from which more than one distribution licensees located in different States intend to procure power and if the preparations for such projects are being facilitated by the Central Government, the activities referred to above shall be initiated before the bidding process and should be completed before sign

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