APPELLATE TRIBUNAL FOR ELECTRICITY AT NEW DELHI (APPELLATE JURISDICTION)

APPEAL NO. 518 OF 2023 & IA NO. 2015 OF 2024 Dated: 13^th February, 2025 Present: Hon’ble Mr. Justice Ramesh Ranganathan, Chairperson Hon’ble Ms. Seema Gupta, Technical Member (Electricity)

In the matter of:

KERALA STATE ELECTRICITY BOARD LIMITED Through its Resident Engineer Vydyuthi Bhavanam, Thiruvananthapuram, Kerala PIN – 695004. … Appellant VERSUS

1. KERALA STATE ELECTRICITY REGULATORY COMMISSION Represented by its Secretary K.P.F.C. Bhavanam, C.V. Raman Pillai Road, Vellayambalam, Thiruvananthapuram, Kerala – 695010. … Respondent No.1

2. JHABUA POWER LIMITED Through its Managing Director Unit No.307, Third Floor, ABW Tower, M.G. Road, Gurugram, Haryana – 122002. … Respondent No.2

3. JINDAL INDIA THERMAL POWER LIMITED Through its Managing Director Plot No.2, Pocket-C, Second Floor, Nelson Mandela Road, Vasant Kunj, New Delhi - 110070 … Respondent No.3

4. JINDAL POWER LIMITED Through its Managing Director Jindal Centre, 12, Bhikaji Cama Place, New Delhi – 110066. … Respondent No.4 Counsel for the Appellant(s): Prabhas Bajaj Counsel for the Respondent(s): Dhananjaya Mishra for Res.1 Anand K. Ganesan Swapna Seshadri Ritu Apurva Ashabari Basu Thakur for Res. 2 Matrugupta Mishra Swagatika Sahoo Ritika Singhal Vignesh Srinivsan Ishita Thakur Sonakshi Nipun Dave for Res. 3 Hemant Singh Biju Mattam Mridul Chakravarty Ankita Bafna Lakshyajit Singh Bagdwal Chetan Kumar Garg Robin Kumar Supriya Rastogi Agarwal Harshit Singh Lavanya Panwar Alchi Thapliyal for Res.4 JUDGEMENT PER HON’BLE MR. JUSTICE RAMESH RANGANATHAN, CHAIRPERSON I. INTRODUCTION:

This Appeal is filed by the Kerala State Electricity Board Ltd (hereinafter referred to as the “Appellant”/KSEBL) against the order of the Kerala State Electricity Regulatory Commission (“KSERC” for short), in OP. No. 05 of 2021 dated 10.05.2023. By its order, in OP. No. 05 of 2021 dated 10.05.2023, the KSERC declined to grant approval to four Power Supply Agreements (PSAs) entered into by the Appellant pursuant to a Tariff Based Competitive Bidding Process under Section 63 of the Electricity Act, 2003. These four PSAs are (1) PSA dated 31.12.2014 with Jabhua Power limited, Respondent No. 2 for 115 MW; (2) PSA dated 22.12.2014 again with Jabhua Power limited, Respondent No. 2 for 100 MW; (3) PSA dated 29.12.2014 with Jindal India Thermal Power Limited (JITPL), Respondent No. 3 for 100 MW; and (4) PSA dated 29.12.2014 with Jindal Power Limited, Respondent No. 4 for 150 MW.

The Appellant has, however, restricted its challenge in the present Appeal only to non-approval by the KSERC of three PSAs, two with the 2^nd Respondent, and the third with the 3^rd Respondent. The PSA executed with the 4^th Respondent is not under challenge on the ground that the KSERC, while allowing the Review Petition of the Appellant by its order dated 29.12.2023, had approved the said PSA; and, as the 4^th Respondent Jindal Power Ltd chose not to challenge the said order, the Review Order dated

29.12.2023 has attained finality in so far as they are concerned.

II. FACTUAL MATRIX:

The Ministry of Power, Government of India, vide its Resolution dated

09.11.2013, notified the guidelines for procurement of electricity from Thermal Power Stations set up on DBFOO basis, and issued model documents comprising the Model Request for Qualification (MRFQ), the Model Request for Proposal (MRFP) and the Model Power Supply Agreement (MPSA) collectively known as the Standard Bidding Documents (SBD) which was to be adopted by the distribution licensee for procurement of electricity from power producers through a process of open and transparent competitive bidding under Section 63 of the Electricity Act, 2003, based on the offer of the lowest tariff.

KSEBL had, hitherto, invited two separate bids for procurement of power, on DBFOO basis: (i) for procuring 450 MW power from December- 2016 onwards for 25 years, and (ii) for procuring 400 MW power from October- 2017 onwards for 25 yea