THE HON’BLE THE CHIEF JUSTICE ALOK ARADHE AND THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT APPEAL Nos.1386 & 1388 OF 2013

COMMON JUDGMENT

: (Per the Hon’ble the Chief Justice Alok Aradhe)

Mr. R. Vinod Reddy, learned counsel for appellant No.1 in W.A.No.1386 of 2013 and appellant Nos.1 and 2 in W.A.No.1388 of 2013.

Mr.Anup Koushik Karaudi, learned Standing Counsel for appellant Nos.3 & 5 in W.A.No.1386 of 2013 and appellant No.3 in W.A.No.1388 of 2013.

Mr. Vishnov Mukerjee, learned counsel, representing Mr. P. Kamalakar, learned counsel for respondent Nos.1 and 2 in W.A.No.1386 of 2013.

Ms. Sravani, learned counsel, representing Mr. Challa Gunaranjan, learned counsel for respondent Nos.1 to 3 in W.A.No.1388 of 2013.

2. These intra court appeals arise from the common order dated 03.06.2013 passed by the learned Single Judge by which W.P.Nos.4118 and 4163 of 2013 preferred by respondent Nos.1 to 3 in W.A.No.1388 of 2013 and respondent Nos.1 & 2 in W.A.No.1386 of 2013 respectively have been allowed.

3. Facts giving rise to filing of these appeals, briefly stated, are that the Andhra Pradesh Central Power Distribution Company Limited (hereinafter referred to as ‘ÁPCPDCL’) floated a short tender notice dated 11.04.2012 stating that it and the other Distributing Companies (DISCOMS) intended to purchase up to 2000 MW power per month on short term basis between June, 2012 and May, 2013 from various trading licencees/State utilities/Captive Power Plants/Distribution Licencees/State Electricity Boards. Each bidder was required to submit an undertaking from the generator that he was with the bidder and had not quoted with any other trader. The guidelines for short term Procurement of Power by the Distribution Licencees through Tariff based bidding process published by the Ministry of Power, Government of India, provide that the tariff quoted by the bidders shall be constant and there should be no escalation during the period of contract.

4. The guidelines for short term Procurement of Power by Distribution Licencees were issued by the Government of India in exercise of powers conferred under Section 63 of the Electricity Act, 2003. The aforesaid guidelines mandate that the tariff quoted by the bidders should be constant and there should be no escalation of tariff during the contractual period. The writ petitioners, who are electricity traders licenced under Section 14(c) of the 2003 Act responded to the tender notice and submitted their bids.

5. On revision/negotiation of the price for supply of electricity, the APCPDCL issued a purchase order/letter of intent dated 31.05.2012 to petitioner No.1 in W.P.No.4118 of 2013 for supply of 125 MW power on firm basis between the period from 01.06.2012 to 30.05.2013 at the rate of Rs.5.51 Ps., per KWH. Similar purchase order dated 31.05.2012 was issued to the petitioner No.2 in W.P.No.4163 of 2013 for supply of 90 MW power on firm basis from 01.06.2012 to 30.05.2013 at the rate of Rs. 4.94 Ps., per KWH.

6. However, by orders dated 31.05.2012, 13.06.2012 and 07.02.2013, the rate at which the electricity was agreed to be purchased was sought to be altered to the disadvantage of the writ petitioners. Thereupon, the writ petitioners filed W.P.Nos.4118 and 4163 of 2013. The learned Single Judge by an order dated 03.06.2013 allowed the writ petitions. In the aforesaid background, these writ appeals have been filed.

7. Learned counsel for the appellants submitted that the learned Single Judge ought to have appreciated that the writ petitioners got the benefit of gas at subsidized price and the said benefit is required to be passed on to the consumers. It is further submitted that the learned Single Judge erred in allowing the writ petitions.

8. We have considered the submissions made learned counsel for the appellants and have perused the record.

9. On the admitted facts, the issue which arose for consideration before the learned Single Judge was whether the corporation is justified in unilaterally modifying the