The State Government's directions under Section 108 of the 2003 act are binding on the State Electricity Regulatory Commission, and the principles of promissory estoppel and legitimate expectation are not applicable.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The present writ petitions have been taken out primarily against the 2020 amendments brought by the West Bengal Electricity Regulatory Commission (WBERC) to the WBERC (Co-generation of Electricity from Renewable Sources of Energy) Regulations, 2013, that is, Regulation No.50 dated March 22, 2013.

2. a consequential challenge has also been preferred against the September 2, 2020 Order which was passed by the WBERC suo moto in Case No. SM - 24/20-21, on the basis of which the amendment was allegedly brought.

3. Certain ancillary reliefs have also been claimed by the writ petitioners in their respective petitions.

4. It is argued on behalf of the petitioners, who are co-generating companies of electricity, is that a body corporate can express itself only through a resolution. By placing reliance on the case of The Vice-Chancellor, Utkal University and others Vs. S.K. Ghosh and others, reported at aIR 1954 SC 217, it is contended that the order of the State Commission, on the basis of which the 2020 amendment was brought in, is not a reasoned order. The learned Senior advocate appearing for the writ petitioners seeks to draw support from Regulation 2.14 of the WBERC (Conduct of Business) Regulations, 2013, which provide for reasons to be given by the Commission in support of its orders.

5. It is next argued by the writ petitioners that the Lloyd's case dated December 2, 2013, rendered by the appellate Tribunal for Electricity (aPTEL), was passed in an appeal against an interim order. By placing reliance on Empire Industries Limited and others Vs. Union of India and others, reported at aIR 1986 SC 662 and State of assam Vs. Barak Upatyaka D.U. Karmachari Sanstha, reported at (2009) 5 SCC 694, it is contended that decisions taken in interim orders are not precedents.

6. The writ petitioners further argue that Section 86(1)(e) of the Electricity act, 2003 (hereinafter referred to as 'the 2003 act') requires the Commission to promote co-generation and generation of electricity from renewable sources of energy by suitable measures. It is contended that the National Tariff Policy, 2016, promulgated on January 28, 2016, by its proviso to Clause 6.4(1), rendered the Lloyd's case's decision inoperative.

7. It is submitted that Section 181 of the 2003 act requires the Regulations framed by the State Commissions to be consistent with the parent act and Rules. Section 86(4) of the 2003 act also requires that, in the discharge of its functions, the State Commission shall also be guided by the tariff policy.

8. It is argued that on July 15, 2021, the Government of West Bengal issued a direction under Section 108 of the 2003 act upon the State Commission in public interest, which was neither refuted nor heeded by the WBERC. The writ petitioners cite Real Food Products and others Vs. a.P. Electricity Board and others, reported at (1995) 3 SCC 295, for the proposition that such directions of the State Government are binding on the State Commission. Section 78a of the 1948 act (on which the said decision was rendered), it is submitted, is similar in scope with Section 108 of the 2003 act (which is applicable to the instant case).

9. It is contended that the proviso to Clause 6.4(1) of the tariff policy clearly stipulates that co-generation cannot be excluded from the benefit of Renewable Purchase Obligations (RPO). However, by the impugned amendment, the State Commission altered several clauses, which placed 'co-generation' on equal footing with 'renewable sources', and excluded co-generation from the purview of RPO.

10. That apart, the expression 'industrial waste' was excluded in the 2020 amendment from the purview of the definition of 'renewable sources'.

11. The writ petitioners have co-generating units of electricity which are primarily powered by industrial waste. as such, the petitioners' interests are directly hit by the impugned amendment.

12. It is further contended that the aPTEL (appellate Tribunal for Electr