The main legal point established in the judgment is that the capacity declaration based on RLNG could be done unilaterally, unencumbered by the requirement of the appellant’s consent in the latter half or the prior approval requirement under Clause 5.9 of the PPA.

JUDGMENT :

Dhananjaya Y. Chandrachud, CJI.

1. This appeal arises from the judgment of the Appellate Tribunal for Electricity,¹[“APTEL”.] at New Delhi. APTEL dismissed an appeal against an order of the Central Electricity Regulatory Commission,²[“CERC”.] dated 30 July 2013.,³[Appeal No. 261 of 2013]

2. The first respondent, an electricity transmission company called Ratnagiri Gas And Power Private Limited,⁴[“RGPPL”/first respondent.], filed a petition under Section 79 of the Electricity Act, 2003 against the appellant, Maharashtra State Electricity Distribution Co. Ltd.,⁵[“MSEDCL”/appellant.], seeking the resolution of issues arising out of the non-availability of domestic gas; beneficiaries’ reservations to allow the first respondent to enter into contracts for alternate fuel, the revision of the Normative Annual Plant Availability Factor,⁶[“NAPAF”.] and directions to the beneficiaries to pay fixed charges due to the first respondent.

3. CERC, by its order dated 30 July 2013 held the appellant liable to pay fixed charges to the first respondent. CERC’s decision was upheld by APTEL by the impugned order. The civil appeal against the APTEL order was disposed of by this Court by an order dated 13 May 2015, whereby the appellant was granted liberty to move the court when it became necessary. This Court directed as follows :

“The question raised in the present appeal before this Court at this stage appears to be academic in the absence of any coercive steps against the appellant for recovery. We, therefore, decline to entertain this appeal at this stage. However, we give liberty to the appellant to move this Court once again in the event it becomes so necessary.”

4. Consequently, there was correspondence between the appellant and the first respondent regarding the liability towards fixed charges. The appellant disclaimed any liability under the Power Purchase Agreement,⁷[“PPA”.] stating that it stood absolved of the fixed charges since the capacity declaration was made by the first respondent based on RLNG, without the appellant’s consent. The first respondent filed an execution petition before APTEL seeking the payment of Rs.5287.76 crores together with an amount of Rs.1826 crores in accordance with the APTEL order dated 22 May 2013. Notice was issued on the execution petition by an order dated 25 November 2022.

5. Thus, in light of the subsequent events and the liberty granted by this Court, the present appeal has been filed.

FACTUAL BACKGROUND

6. The first respondent, RGPPL is a joint venture of NTPC Ltd., Gas Authority of India Ltd,⁸[“GAIL”], MSEB Holding Company, ICICI, IDBI, SBI, and Canara Bank. It was established as a Special Purpose Vehicle to take over the assets of Dabhol Power Company Limited whose operations had to be closed down. The first respondent is a transmission company that owns a gas-based generating station at Ratnagiri, Maharashtra. 95% of its capacity has been allocated by the Ministry of Power to the State of Maharashtra and the rest to the State of Goa, and UTs of Daman and Diu, and Dadra and Nagar Haveli. The share allocated to the State of Maharashtra is supplied to the distribution licensee MSEDCL, the appellant. The appellant and the first respondent entered into a Power Purchase Agreement on 10 April 2007 for 25 years whereby the appellant would purchase power from the first respondent. The tariffs for the three blocks of the generating station were determined by CERC in accordance with the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2004 having regard to the capital cost and plant capacity of the