JUDGMENT :

1. Heard Sri S.C.Misra, Senior Advocate assisted by Ms Pushpila Bisht and Sri Gagan Katyayan, learned for the petitioner, learned Standing Counsel representing the State-respondent no.1, Sri J.N.Mathur, Senior Advocate assisted by Sri Sanjay Singh, learned counsel for respondent no.2-U.P. Electricity Regulatory Commission (hereinafter referred to as “Regulatory Commission”) and Dr. L.P.Misra with Sri Neerav Chitravanshi, learned counsel representing respondent no.3-U.P. Power Corporation Limited (hereinafter referred to as “Power Corporation”). We have perused the record available before us on this petition.

Prayers in the writ petition

2. By instituting proceedings of this Public Interest Litigation (PIL) under Article 226 of the Constitution of India, the petitioner, which is a Non Governmental Organization, has prayed that an appropriate writ or direction may be issued to respondent no.2-Regulatory Commission restraining it from going ahead with determination of final tariff for respondent no.4-Lalitpur Power Generation Company Limited (hereinafter referred to as “Generating Company”) pursuant to public notice dated 23.11.2021. The other prayer made by the petitioner is that an appropriate writ or order or direction may also be issued to institute an independent investigation into the alleged collusion/conflict of interest in final tariff fixation of the Generating Company’s 1980 MW (3x660MW) Thermal Power Project at Badagaon, District Lalitpur. The petitioner-foundation has also prayed that detail guidelines may also be issued by this Court to ensure thorough scrutiny of private/public bodies taking part in power tariff determination process.

Facts of the case as culled from the pleadings available on record and the submissions made by learned counsel representing the respective parties

3. (a) A Power Purchase Agreements were entered into between the Power Corporation and the Generating Company for sale of 100% saleble power generated by the Generating Company to the Power Corporation at a price to be determined by the Regulatory Commission on 15.06.2021.

(b) On 25.03.2019 the Generating Company filed a petition which was registered as Petition No.1431 of 2019 before the Regulatory Commission under Section 62 read with Section 86 (1) (a) of the Electricity Act, 2003 read with Regulation 6 of U.P. Electricity Regulatory Commission (Conduct of Business) Regulations, 2004. The said petition was filed by the Generating Company with a prayer to approve the final tariff for the applicable capacity of the Generating Company from respective Dates of Commercial Operation in relation to three units of the Power Projects of the Generating Company till 31.03.2019. Another relief sought was for ceiling capital cost of Rs.17,760.95 crores. The Generating Company also made certain prayers regarding additional capital expenditure beyond the Dates of Commercial Operation, recovery of taxes, duties, cess, levies and other charges and costs and expenses and also in relation to reimbursement of certain bank charges towards bank guarantees for availing certain benefits under the power policy.

(c) For the purposes of appointment of Designated Independent Agency (hereinafter referred to as “DIA”) for conducting the prudence check and verification of capital cost of the Power Project of the Generating Company, after inviting bids, the respondent no.5-M/s Aquagreen Engineering Management Private Limited in consortium with respondent no.6-Bhushan Rastogi and Associates was appointed the DIA by the Regulatory Commission. The respondent no.5 in consortium with respondent no.6 functioning as DIA submitted its report regarding prudence check and verification of capital cost of the Power Project of the Generating Company on 29.10.2021 and recommended disallowance of Rs.592 crores as capital cost.

(d) On 23.11.2021 a notice was published by the Regulatory Commission intimating the general public that DIA had submitted its report to the Regulatory Comm