Fraud must be established to warrant a review.

ORDER :

Sanjay Yadav, J.

1. Review of order dated 27.02.2020 passed in Writ Petition No. 4205/2019 is being sought vide present petition.

2. The Writ petition was directed against the communication dated 07.07.2018; whereby, the Power Purchase Agreement dated 18.09.2015 was terminated, the reason being the failure in achieving condition subsequent as well as commissioning of the 50 mw Solar PV Project. It needs a mention that earlier by communication dated 11.08.2017 the said agreement was terminated. However, on its being challenged in Writ Petition No. 12880/2017, wherein, on the findings that the reasons assigned in the termination order were not germane to the facts and additional reasons came to fore during hearing, the order dated 11.08.2017 was set-aside with the liberty to pass fresh orders in terms of the Agreement. Armed with the said liberty fresh orders were passed on 07.07.2018.

3. It is not in dispute that the respondent is a Power Purchasing Company under the Electricity Act, 2003 and the petitioner is responsible for power procurement in the State of M.P. That in furtherance to the Solar Policy for encouraging generation of Power through Solar Power Projects an agreement was entered between the Petitioner and Respondent on 18.08.2015 captioned as Power Purchase Agreement for setting up a 50 mw Solar Photovoltaic (PV) Power Plant at village Bedhsya, District Khandwa and sale of power from the said plant exclusively to present petitioner. The total permissible period to commission the Project was 24 months from the date of Agreement i.e. from 18.09.2015 to 17.09.2017. The Project involved two milestones, viz, (i) to achieve condition subsequent after signing of PPA, i.e. permission, procurement of land. Etc. and (ii) actual commission of project. The project certified to be complete much prior to 24 months i.e. 04.07.2017 and the Chief Electrical Inspector to Government. (CEIG) approved on 09.08.2017. That on the basis of undisputed facts it was found:

"13. From the facts on record, it is axiomatic that the period to commission the Project was 24 months i.e. from 18.09.2015 to 17.09.2017 from the date of PPA. The contract was terminated on 11.08.2017 even before expiry of the outer limit of 24 months. Earlier, PPA was terminated vide order dated 11.08.2017 on the ground of delay of 54 days in achieving the first milestone which was set aside by this Court in W.P. No. 12880/2017. It is apt to mention that the Project involves two milestones, namely, (i) to achieve Condition subsequent after signing of PPA (Permission, Procurement of land etc.) and (ii) actual commission of Project. It is not in dispute that the Project was certified to be completed much prior to 24 months ending on 17.09.2017 and notice of commissioning was issued on 04.07.2017. The CEIG approval was also granted on 09.08.2017, Another inspection was done on 21.04.2018 after nine months of notice of commissioning and CEIG approval, in spite thereof the impugned order has been passed."

4. On these findings the impugned order dated 07.07.2018 was faulted with, accordingly, while setting aside the same the petitioner (i.e. present respondent) was directed to submit necessary applications for statutory sanction for operation of the unit, reportedly ready for physical commission, and the State was directed to decide those applications expeditiously by order under Review.

5. The Review of the order is sought precisely on the contentions contained in paragraph 7 of the petition, wherein, it is state that the respondent committed fraud on office of the Chief Electrical Inspector as much as the unique/distinctive serial numbers of the inverters mentioned in the Chief Electrical Inspector's report dated 09.08.2017 for the 10 Blocks of Power Project (each block of 5mw) are common/duplicate between one and another. In other words, it is urged that the entire project of respondent No. 1 is of 50mw, divided in to 10 blocks of 5mw, each block having 116/117 inverters