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2020 Supreme(Del) 153
IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
Tamil Nadu Generation and Distribution Corp Ltd - Appellant
Versus
Central Electricity Regulatory Commission and Another - Respondents
Writ Petition (Civil) No. 5785 of 2018; Civil Miscellaneous No. 22536 of 2018, 24481 of 2018, 26156 of 2018, 28097 of 2018, 509 of 2019, 11585 of 2019, 16973 of 2019, 23094 of 2019, 34490 of 2019, 34491 of 2019, 34495 of 2019
Decided On : 21-01-2020
S. Vallinayagam, Kaustav Saha, T.K. Ganju, Divya Chaturvedi, Sandeep Sethi, Deepak Khurana, Vineet Tayal, Raveena Dhamija, Sajan Poovayya, Anurag Sharma, Chetan Garg, Pratibhanu, Saransh Shaw, Avijeet Lala, Shreya Mukherjee, Advocates.
The court emphasized the importance of implementing the orders passed by the court on January 08, 2019, directing the non-applicant/petitioner to make payments as per the escalation rates notified by respondent No.1 / CERC from April, 2017.
Headnote:
Payments - Power Purchase Agreements - Notifications dated December 08, 2017 and June 01, 2018 - The court directed the non-applicant/petitioner to make payments as per the escalation rates notified by respondent No.1 / CERC from April, 2017. The court clarified that the interim orders passed by this court will not affect the payments in terms of the said Notification for the period after April, 2017. The non-applicant/petitioner was directed to clear the payments for the period from April, 2017 to November, 2017 and July, 2018 to December, 2018 in accordance with the Notification dated June 01, 2018, within a period of four weeks. The court disposed of the applications and listed the writ petition for further hearing.
Fact of the Case:
The non-applicant/petitioner challenged the Notification dated December 08, 2017 issued by respondent No.1 / CERC, which notified the revised annual escalation rates applicable for the purpose of payments under various Power Purchase Agreements ('PPA', for short) executed for the period between October 01, 2012 to September 30, 2014, based upon corrected WPI for non-coking coal. The court stayed the operation of the impugned Notification dated December 08, 2017 till the next date of hearing. The applicants/respondents sought implementation of the orders passed by the court on January 08, 2019, directing the non-applicant/petitioner to make payments as per the escalation rates notified by respondent No.1 / CERC from April, 2017.
Finding of the Court:
The court found that the non-applicant/petitioner was directed to make payments as per the escalation rates notified by respondent No.1 / CERC from April, 2017. The court clarified that the interim orders passed by this court will not affect the payments in terms of the said Notification for the period after April, 2017. The court disposed of the applications and listed the writ petition for further hearing.
Issues: The issue raised in the applications preferred by the applicants/respondents was whether the non-applicant/petitioner should pay the amounts as due, in terms of Notification dated June 01, 2018 from April, 2017 onwards.
Ratio Decidendi: The court directed the non-applicant/petitioner to make payments as per the escalation rates notified by respondent No.1 / CERC from April, 2017. The court clarified that the interim orders passed by this court will not affect the payments in terms of the said Notification for the period after April, 2017.
Final Decision: The court disposed of the applications and listed the writ petition for further hearing.
JUDGMENT :
V. Kameswar Rao, J.
Cm No. 16973/2019
1. This present application has been filed by respondent No.4 with the following prayers:
"A. Direct the Petitioner to make payments for the period April, 2017 onwards in terms of the computation filed by the Applicant herein (Annexure-I) and as per the Order dated 08.01.2019 (Annexure-F) passed by this Hon'ble Court; and
B. Pass such other further orders as this Hon'ble Court may deem fit and proper in the facts & circumstances of the present case as also in the interest of justice."
2. Applicant / respondent No.4 has preferred the present application, seeking direction qua the petitioner herein to make payments as per the escalation rates notified by respondent no.1/CERC vide Notification dated June 01, 2018, being based on new series of Wholesale Price Index ('WPI', for short), for non-coking coal (G7 - G14), which has been so directed by this Court in the present proceedings.
3. It is the case of the applicant / respondent No.4 that the present writ petition has been filed by the non-applicant/petitioner impugning Notification dated December 08, 2017 issued by respondent no.1 / CERC notifying the revised annual escalation rates applicable for the purpose of payments under various Power Purchase Agreements ('PPA', for short) executed for the period between October 01, 2012 to September 30, 2014, based upon corrected WPI for non-coking coal provided by the Office of Economic Advisor, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry. Escalable energy charges which form part of the tariff under the PPA are subjected to an increase on the basis of escalation rates / index published by respondent No.1 / CERC. Thus, principal challenge in the present writ petition relates to the retrospective change in the rates to be charged. This Court vide order dated May 25, 2018 stayed the operation of the impugned Notification dated December 08, 2017 till the next date of hearing.
4. The applicant/ respondent No.4 having executed a PPA dated August 19, 2013 with the non-applicant/petitioner moved an application for impleadment (CM No.26152/2018), which was allowed by this Court vide order dated July 06, 2018.
5. During the pendency of the present petition, consequent to the availability of new series of WPI for non-coking coal, respondent no.1 / CERC vide Notification dated June 01, 2018 adopted the same from April, 2017 for Notification of escalation rates for domestic coal. However, the non-applicant / petitioner sought to evade its obligation to pay the escalated rates.
6. Pursuant to this anomaly, this Court vide order dated July 07, 2018 directed respondent no.1 / CERC to clarify whether the non-applicant / petitioner is required to make payments as per impugned Notification dated December 08, 2017 as well as directing petitioner to make payments within one week, based on such clarification being issued.
7. Respondent no.1 / CERC pursuant to the order dated July 07, 2018 issued a clarification dated July 26, 2018 wherein it is clarified that the petitioner would be required to pay the tariff as per the rates as notified prospectively i.e., w.e.f. April 2017, the escalation rates based on new series of WPI for non-cocking coal (G7 - G14) is applicable for payment and that escalation rates notified vide the impugned Notification dated December 08, 2017 continued to be applicable for the purpose of payments for the applicable periods.
8. It is stated by the applicant / respondent No.4 that pursuant to the above clarification issued by respondent no.1 / CERC, this Court vide its order dated August 28, 2018 observed that the non-applicant/ petitioner would be required to pay the tariff as per the rates notified prospectively and that the interim orders passed by this Court will not affect the payments in terms of Notifications for the period after April, 2017.
9. The
