Allowed

M/s. Balaji Energy Pvt. Ltd, v. The Southern Power Distribution Company of A.P Limited

Andhra Pradesh HC9 Oct 2023WP/2932/2021

Case brief

AI extract

What is this about?

A mini-hydel generator sought unpaid electricity charges and interest under a final regulatory order. The court held the implementation writ maintainable and the enhanced capacity's commercial operation date settled. It allowed the petition, permitting an updated claim and directing payment of legally entitled dues within three months of receipt.

What did the court decide?

Liberty to submit an updated dues representation within two weeks; respondent directed to pay legally entitled dues under the APERC order within three months of receipt.

M/s. Balaji Energy Pvt. Ltd, Vs The… — Contract and Commercial Disputes | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

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WRIT PETITION NO.2932 OF 2021

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ORDER:

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The present Writ Petition is filed under Article 226 of the

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Constitution of India, seeking the following relief:

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“..... .to issue a writ, direction or order especially more particularly in the nature of a writ of mandamus declaring the action of the Respondent in not making payments to a tune of Rs.34,94,92,267/- which is due as on 31-122020 despite there being a specific order passed by the Andhra Pradesh Regulatory Commission dated 09-072019 as being void, illegal, arbitrary and consequently direct the Respondent to pay the due amount of Rs.34,94,92,267/- which is due as on 31-12-2020 along with further dues which accrue during the pendency of this writ petition until the date of payment to the Petitioner ……”

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Brief facts of the case as per the petitioner are that –

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The petitioner herein is a private Mini Hydel Power

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production company, which is engaged in generation and supply of electricity to the Andhra Pradesh Southern Power Distribution Company since 31.12.2005 under order of the Andhra Pradesh Electricity Regulatory Commission (APERC), dated 30.12.2005.

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The Government of India has evolved a policy on 7/13.09.1993 for generation of power through Non-Conventional Energy (‘NCE’) Sector by private trade with a view to get the

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power generated at cheaper rate and to reduce pollution and to reduce dependency of the country on fossil fuels. As a part of the said initiative, on 29.12.1994, the petitioner-company was issued Letter of Intent for establishment Mini Hydel Power Project of 2 units with the capacity 5 Mega Watts each, at Somasila Village, Ananthasagaram Mandal, Nellore District. The petitionercompany established and commissioned the first unit on 31.12.2005 and the 2^nd unit on 02.01.2006.

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Subsequently, at petitioner’s request, the New and Renewable Energy Development Corporation of Andhra Pradesh (‘NEDCAP’) increased the capacity of the petitioner’s project from 2 x 5 Mega Watts to 2 x 6 Mega Watts vide its letter dated 28.09.2006. On instructions, dated 18.06.2008, of the Andhra Pradesh Electricity Regulatory Commission (APERC), the respondent-authorities conducted load test on 27.06.2008 and on approval of the enhanced capacity, the commercial operation has started on 27.06.2008.

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Since the respondent-authorities even after drawing the enhanced production of 2 x 1 Mega Watts right from the date of commissioning, failed to pay the tariff, the petitioner filed

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W.P.No.32465 of 2017 before this Court seeking payment of Rs.44,14,48,231/-, including interest and in the said Writ Petition, the respondent was directed to consider payment of amount for the power supplied, as an interim measure.

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In the said Writ Petition, the respondent-authorities filed counter seeking liberty to the parties to approach the APERC for determining the tariff and to approve enhanced capacity of the petitioner as per Section 86 (1) (b) of the Electricity Act. Accordingly, the Writ Petition was ordered. Pursuant to the same, the APERC passed order dated 09.07.2019 approving the capacity enhancement of the petitioner’s project from 2 x 5 Mega Watts to 2 x 6 Mega Watts and to effect payment for the additional 2 Mega Watts power supplied with effect from 27.06.2008, as per the tariff fixed by the APERC in its order dated 22.06.2013. Accordingly, the petitioner-company entered into an amended Power Purchase Agreement with the respondent on 25.11.2019 and APERC has consented to the said amendment on 18.03.2020.

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The petitioner-company has calculated the amount which is due from the respondent as on 30.06.2020, in accordance with

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the order of the APERC dated 09.07.2019 and addressed a letter

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to the respondent to pay an amount of Rs.45,64,26,961/-. However, the respondent paid Rs.13,47,31,096/-on 13.07.2020, leaving a balance of Rs.32,16,95,865/-. The petitioner has written several letters to the respondent to pay the balance amount, with accrued interest and also requested to open a letter of credit for a term of one year towards the cost of sales payable to the petitioner, but in vain. Therefore, the present Writ petition is filed seeking to pay an amount of Rs.34,94,92,267/-, which has fallen due as on 31.12.2020, along with further dues.

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The Chief General Manager, APSPDCL, filed counter

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affidavit, denying the allegations in the affidavit and contending that, it is settled law that the issues relating to interpretation or/and implementation of terms of contract are not to be considered in the Writ Petition filed under Article 226 of the Constitution of India, in view of the pronouncements of the Hon’ble Supreme Court that all disputes, not confined to the issues referred to in Section 86 1(a) to 1(e) of Electricity Act, 2003, between the licensee and Generator shall be adjudicated or arbitrated by the appropriate Commission

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It was further pleaded that based on the petitioner’s proposal, NEDCAP vide proceedings dated 28.09.2006, considered the request of the petitioner for enhancement of the capacity from 2 x 5 Mega Watts to 2 x 6 Mega Watts and directed to prove enhanced capacity through load test to be conducted by the team of officials of APTRANSCO and APSPDCL, before commissioning. Subsequently, as per the instructions of the APERC vide letter dated 18.06.2008, load test was conducted by APSPDCL on 27.06.2008 and the petitioner was requested to provide certain information like -

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(i) Two sets of energy meter readings, power factor and other readings;

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(ii) Modifications/improvements carried out by the petitioner as per the directions of the NEDCAP; and

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(iii) Manufacturer’s certification in respect of existing TG sets to withstanding 20% continuous overloading capability.

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The petitioner-company, without furnishing the information sought by the respondent-authorities, filed W.P.No.32465 of 2017

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seeking to determine the tariff payable in accordance with the orders of the APERC, by reckoning production capacity of the

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petitioner-company as 12 Mega Watts instead of 10 Mega Watts

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from 27.06.2008, together with 18% interest on the due amount.

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It is submitted that, though the respondent initially opposed the said request of the petitioner, later filed an affidavit accepting the request to recognise the enhanced capacity subject to APERC to determine the tariff. Based on such affidavit, the said Writ Petition was remanded to the APERC vide order dated 29.04.2019. On such remand, the APERC passed order dated 09.07.2019, approving the enhanced capacity of 12 Mega Watts with effect from 27.06.2008 and to pay tariff in accordance with APERC order dated 22.06.2013 and the petitioner is entitled to the tariff as was being paid to it by 29.06.2016 in compliance of the interim order of this Court in W.P.No.20728 of 2016, subject to the final order in the said Writ Petition.

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It is further contended that, this Court in the order dated 29.04.2019, has not granted interest claimed by the petitioner and APERC also did not direct the respondent to pay interest.

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Further, in view of the capacity enhancement, the PPA between the petitioner and the respondent was amended and the amended PPA dated 25.11.2019 was approved by the APERC.

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Later, the petitioner submitted Invoice for supply of energy in respect of enhanced capacity of 2 Mega Watts for the period from 27.06.2008 to 31.12.2019 and claimed an amount of Rs.44,31,32,972/- which amount includes compound interest at the rate of 12% with quarterly rest.

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It is further submitted that, as per Clause 1.3 of the Power Purchase Agreement (PPA) dated 31.01.2005, which was entered for a period of 20 years, the date of synchronization of the first unit of the project will be treated as the Commercial Operation Date (COD) of the entire project. The said PPA dated 31.01.2005 was approved by APERC on 09.07.2008 whereas COD of the project was achieved on 31.12.2005. Thus, the COD of the 10+2 Mega Watts was 31.12.2005 only. It is further submitted that, on both the parties agreement only the amended PPA was entered to have different tariff for 10 Mega Watts & 2 Mega Watts beyond 10 years of operation. In view of the same, the petitioner’s claim towards energy charges was admitted as Rs.13,47,31,096/- by applying the provisions of PPA and the same was paid on 13.07.2020. The balance amount of Rs.1,50,38,095/- was not admitted due to wrong adoption of the first year tariff instead of 3^rd year tariff. Further, the petitioner is claiming an amount of

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Rs.32,16,95,865/- as outstanding from the respondent after receiving part payment of Rs.13,47,31,096/- for the energy supplied from the year 2008 to June, 2020 in respect of the additional 2 Mega Watts capacity. As the interest part of Rs.29,33,63,781/- claimed by the petitioner was not accepted by the respondent as there was no order either by this Court or by the APERC, there are no dues to be paid by the respondent.

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The petitioner-company filed reply affidavit admitting certain factual aspects and contending that –

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The decisions of the Hon’ble Supreme Court relied on by the respondent with regard to maintainability are not applicable to the facts of the present case. As the Writ Petitions in respect of contractual disputes where there is arbitrariness by the State are maintainable.

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The contention of the respondent that additional information was sought from the petitioner is not correct as the respondent itself accepted the additional capacity and same is evident from the averments in the counter affidavit in W.P.No.32465 of 2017.

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Further, the APERC vide order dated 09.07.2019 merely directed for payment of tariff for the additional 2 Mega Watts with effect from 27.06.2008, in accordance with the APERC order dated 22.06.2013 wherein payment of interest on delayed payment is provided.

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As per Clause 5(I), 5 (II) & 6 of the amended PPA dated 25.11.2019, the enhanced capacity is operative only with effect from 27.06.2008 and it is the COD date and therefore, the contention of the respondent that the date of synchronization of the first unit itself is the Commercial Operation Date of the entire project capacity is unsustainable. Therefore, the respondent cannot consider 27.06.2008 as the third year of operation. Prior to 27.06.2008, the additional capacity of 2 Mega Watts was nonexistent and therefore, the Respondent is duty bound to consider 27.06.2008 as COD and the 1^st year of tariff has to be applied for the said additional capacity.

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It is further contended that, at request of the respondent, this Court referred the matter to the APERC for determination of tariff as well as interest and accordingly APERC passed order dated 09.07.2019 considering COD for enhanced capacity as 27.06.2008 and the tariff payable to the petitioner shall be in

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accordance with APERC order, dated 22.06.2013, which includes payment of interest.

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The respondent though carried the APERC’s order dated 22.06.2013 to the Hon’ble Supreme Court, but till date there is no stay or suspension of the said order by the Hon’ble Supreme Court. Therefore, the said order of the APERC is operational. Accordingly, prayed to pass appropriate orders in the Writ Petition.

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Heard Sri S.Ravi, learned Senior Counsel, representing Sri Vivek Chandra Sekhar, learned Counsel for the petitioner and learned Advocate General for respondents.

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Learned Senior Counsel for the petitioner-company, in elaboration to what has been stated in the affidavit contended that, the disputed question in the present Writ Petition is with regard to additional 2 Mega Watts of the power produced by the petitioner-company and whether this additional 2 Mega Watts became functional in the year 2005 or in the year 2008 and application of the rate of tariff for the said additional production.

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Learned Senior Counsel further contended that, the date of

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functioning depends on the date of commissioning and the date of commissioning is on the basis of the respondent’s examination and certification of the said additional capacity and admittedly the said additional production was examined and certified by the expert committee in the year 2008 and in the very same year, the additional production was commissioned and functioning also was commenced. The amended PPA dated 25.11.2019 and the APERCs order dated 09.07.2019 recognises the date of operation of the additional two Mega Watts as 27.06.2008, however, the respondent want to apply 3^rd year tariff to the 1^st year of additional production.

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Learned Senior Counsel further contended that W.P.No.32465 of 2018 was filed aggrieved by the action of the respondent in not paying the tariff for the additional 2 Mega Watts till 2017 though the petitioner-company started production since 2008 onwards and also for payment of interest. The said Writ Petition was disposed of on 29.04.2019, remanding the matter to the APERC for determination of tariff. Paragraph 4 of the said order is relevant for the issue on hand.

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Learned Senior Counsel further submitted that consequent on such remand, the APERC vide order dated 29.04.2019 at paragraph 18 held that the enhancement of production capacity of the petitioner from 10 Mega Watts to 12 Mega Watts is approved with effect from 27.06.2008 and the tariff payable by the respondent to the petitioner for the 12 Mega Watts power generated by the petitioner and supplied to the respondent with effect from 27.06.2008 shall be in accordance with order of the Erstwhile APERC dated 22.06.2013

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When the APERC specifically states that the date of commencement of the additional production is with effect from 27.06.2008 and to pay tariff as per order of the Commission dated 22.06.2013, the DISCOMS are stating that the original unit was commissioned in the year 2005 and therefore, for the additional 2 Mega Watts also it should be taken as 2005. The controversy here is that though the additional production which was non-existent in the year 2005 and it came into existence only in the year 2008, the respondent is applying 3^rd year’s tariff to the first year of production.

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The learned Senior counsel further contended that the additional power was generated and supplied to the respondent

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since 2008 and the respondent in turn supplied it to the consumers and made money whereas the respondent started paying the petitioner only in the year 2019, thereby withheld the petitioner’s money for 11 years. Therefore, the petitioner is entitled for payment of interest, which is specifically provided for in paragraph 6 of the APERC’s order dated 22.06.2013. At paragraph 6 of the said order it is specifically provided for payment of interest on the determined tariff at 12% to be compounded on quarterly basis. In PPA dated 25.11.2011 also there is a specific acceptance at paragraph 4 by both the parties that the enhanced capacity is with effect from 27.06.2008 and also there is specific acceptance at para 5.II with regard applying tariff to the enhanced capacity of 2 Mega Watts as per APERC order dated 22.06.2013 & 23.08.2014 for the first 10 years of operation and beyond 10 years of operation respectively.

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Accordingly, the petitioner is claiming implementation of the APERC order dated 29.04.2019 in respect of the petitioner’s additional production of 2 Mega Watts with effect from 27.06.2008 along with interest and prayed to pass appropriate orders in this regard.

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On the other hand, learned Advocate General contended that, the petitioner is claiming certain amount to be paid by the respondent on the basis of order passed by APERC dated 09.07.2019 following the orders passed by it dated 22.06.2013, which inturn were passed relying on the order of the APTEL dated 20.12.2012 in Appeal Nos.150 of 2011 and batch. The said order of the APTEL is under challenge before the Hon’ble Supreme Court in Civil Appeal Nos.1376 to 1385 of 2013 and the Hon’ble Supreme Court under order dated 13.03.2014 directed the respondent to pay 50% of the arrears amount to the developers. Therefore, the respondent is governed by the order dated 13.03.2014 wherein the differential 50% of the amount has to be paid and they are not bound to pay the amounts as determined on 22.06.2013 and basis of 22.06.2013 is not final and it is still under challenge.

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With regard to the Commercial Operation Date (COD), learned Advocate General contended that as per Clause 1.10 under Article I of the PPA dated 31.01.2005, the Project is defined as 10 MW (2x5 MW) capacity Mini Hydel Scheme at Somasila, with a proposal of 0.1 MW for Auxiliary consumption and 9.9 MW for sale to APTRANSCO, which comprehends that the

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project has two units with the capacity 5 MWs each and the entire project is treated as one. As per Clause 1.3 Commercial Operation Date (COD) means with respect to each generating unit, the date on which each generating unit is declared by the company to be operational after performance acceptance. As per explanation to the said clause in respect of the Non-conventional based power projects the date of synchronisation of the first unit of the project will be treated as the Commercial Operation Date of the entire project since the Ministry of Non-Conventional Energy Sources not specified any guidelines for declaration of the Commercial Operation Date (COD).

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Learned Advocate General further contended that the petitioner has not referred the Clause 1.3 of the PPA in the entire Writ Petition.

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He further contended that though Commissioning date of the first unit is 31.12.2005 and the 2^nd unit is on 02.01.2006, the date of commissioning of the first unit of the project i.e. 31.12.2005 is the commissioning date of the entire project.

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It is contended that, both the units put together there is an

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augmentation of 2 MW happened subsequent to commissioning i.e. on 27.06.2008. In view of explanation, even for the

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additional 2 MWs also the date COD should be taken as 31.12.2005. If the date of additional production has to be treated as first year of COD or synchronization in respect of that additional production, it requires rewriting of the contract/PPA and it involves the interpretation of the terms of the contract, then this Court cannot adjudicate the said interpretation under Article 226 of the Constitution of India.

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The learned Advocate General further contended that, if the contention of the petitioner is to be accepted, the units on the day they were operational were to be treated as individual date of commissioning and not of the entire project, there will be three different tariffs regulating the power purchase from three different units and this 2 MWs cannot be put at a premium rate, as the additional production of the project might be because of the increased efficiency of the project and the petitioner might have applied efficiency norms, which has increased efficiency of the same installation. The industry’s experience is that the electricity plants get better with age and therefore, the costs and the expenditure associated with the project goes down is the accepted norm.

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Learned Advocate General further contended that, this

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Court has no jurisdiction with regard to the dispute of constructions or interpretation of the PPA. The APERC is empowered by the provisions of the Electricity Act as it is equipped with necessary expertise to find out whether the augmentation of production on the basis of the same installed machinery was on account of the maturity of the plant over two years of its existence or not.

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Learned Advocate General further contended that the APTEL order dated 22.12.2022, which is basis of the APERC’s order dated 22.06.2013 which govern the 1^st 10 years of operation is under challenge before the Apex Court in Civil Appeal Nos.1376 to 85 of 2023 and the APERC’s order dated 23.08.2014 which governs 11 to 25 years of production is under remand to the APERC in W.P.No.20728 of 2016.

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The Learned Advocate General further contended that the petitioner is not entitled to claim any interest, since the amount is yet to be quantified and that too it was not part of the Power Purchase Agreements entered into between the petitioner and the respondent.

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With regard to the maintainability of the lis before this

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Court, the learned Advocate General relied on West Bengal Regulatory Commission v. CESC¹ , Uttar Pradesh Power Corporation Limited v. National Thermal Power Corporation Limited² , regarding power of judicial review under Article 226 of the Constitution in Rajendra Diwan v. Pradeep Kumar Ranibala³ and regarding disentitlement of interest relief on National Thermal Power Corporation Limited v. Madhya Pradesh State Electricity Board⁴ and further relied on the Order dated 12.03.2020 passed by the APTEL in Appeal

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No. 387 of 2017.

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Learned Advocate General submitted that in the context of

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all the decisions, the order which governs the relationship between the parties, including the basis of determination of tariff, i.e., order of the APERC dated 22.06.2013, is at large before the Hon’ble Supreme Court and it is still inchoate and it is regulated by the interim order passed by this Court in W.P.No.20728 of 2016, to pay only 50% of the differential amount. On the whole

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1 2002 (8) SCC 715

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2 (2011) 12 Supreme Court Cases 400

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3 (2019) 20 Supreme Court Cases 143

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4 (2011) 15 Supreme Court Cases 580

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the entire issue is yet to be determined and hence, prayed to

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remand this matter also to the APREC for determination of the rate of tariff to be applied to the additional 2 Mega Watts.

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In reply, Sri S.Ravi, learned Senior Counsel for the petitioner submitted that, the installed machinery has improved over a period of time and thereby the production was increased is not a fact. Actually, the petitioner has spent Rs.2,61,42,980/and modified the equipment for enhancement of the capacity of production from 10 MWs to 12 MWs, which was confirmed by the respondent by conducting load test by the experts team on 25.06.2008.

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Learned Senior Counsel further contended that the explanation in the Definition of Commercial Operation Date under Clause 1.3 should be read with the definition of Project under Clause 1.10 in the said PPA. Whatever referred in the PPA dated 31.01.2005 is in relation to the 2 x 5 MW and not with reference to the additional 2 MWs as it is commissioned separately.

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In reply to the contention of the respondent that the petitioner has not furnished information sought by the Andhra Pradesh Power Coordination Committee submitted that on the one hand the respondent is taking this stand and on the other

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hand all through the respondent drew the additional power from the petitioner.

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He further contended that there is no dispute with regard to the date of commissioning and the tariff payable. There is no dispute with regard to the date of commencement of the additional power and the tariff payable which is also recorded in the APERCs order dated 09.07.2019, which has become final as it is left unchallenged.

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He further contended that, for implementation of the order which is inter parte it is immaterial whether overall tariff is under challenge before the Hon’ble Supreme Court and whether it is tentative tariff or not. The settled terms cannot be denied on the ground that some related cases are pending before the Hon’ble Supreme Court.

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It is further contended that insofar as interest, the decisions relied on by the learned Advocate General are not application as in the said decisions there is no fault on the part of the respondents. But, this is a case where there is fault on the part of the respondents. The respondent having drawn the power since 2008, without raising anything about payment in respect of the additional power drawn, now after issuance of the order

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dated 09.07.2019 by the APERC wherein there is a clear stipulation to pay tariff for the additional power in accordance with the order of the APERC dated 22.06.2013, the respondent is raising all technical grounds only to delay the legally entitled amount. Further, in the said order there is a clear stipulation about payment of interest also. Thereby, there is a clear default on the part of the respondent that in spite of drawing the additional power and making money out of the power produced by the petitioner they are not paying to the petitioner.

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To the said reply submissions, the learned Advocate General further contended that the APERC’s order dated 09.07.2019 and the facts of the case are crystal clear insofar as interest is concerned. In respect of disputed questions of fact High Court should not entertain and the matters have to be referred under Section 86(1)(f) to the Commission.

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In the decision in Gujarat Urja Vikas Nigam Ltd. v.

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Essar Power Ltd.,⁵ , the Hon’ble Supreme Court held that all disputes, not confined to the issues referred to in Section 86 1(a) to 1(e) of Electricity Act, 2003, between the licensee and

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(2008) 4 SCC 755 : 2008 SCC OnLine SC 499

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Generator shall be adjudicated or arbitrated by the appropriate

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Commission.

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In UP Power Corporation v. NTPC⁶ , the Hon’ble

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Supreme Court held that the writ petitions in respect of claim of tariff/amounts payable and such other matters which involve the technical and financial aspects, are not be entertained in the Writ Petitions filed under Article 226 of the Constitution of India.

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In Reliance Infra v. State of Maharashtra⁷ , by taking into consideration various other judgments, it has been held that the disputes as to the tariffs and its related matters between Generator and Licensee are required to be left for adjudication by regulatory Commission and the Writ Petitions under Article 226 of the Constitution of India are not maintainable.

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In view of the above observations, regulatory Commission alone is competent to adjudicate the disputes as to the tariffs and related matters between the Generator and Licensee.

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6 2011 (2) SCC 400

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7 2019 (3) SCC 352

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14. Further, in the decision in West Bengal Regulatory

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Commission v. CESC⁸ , it has been held thus:

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“102. The Commission constituted under Section 17 of the 1998 Act is an expert body and the determination of the tariff which has to be made by Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. It would be more appropriate and effective if a statutory appeal is provided to a similar expert body, so that the various questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first appellate stage also. The Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications is better equipped to appreciate the technical and factual questions involved in appeals arising from the orders of the Commission. Neither the High Court not the Supreme Court would in reality is appropriate appellate forums in dealing with this type of factual and technical matters.”

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15. In Uttar Pradesh Power Corporation Limited v.

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National Thermal Power Corporation Limited⁹ , paragraph 12

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reads as under:

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“ 12 . Looking to the observations made by this Court to the effect that the Central Commission constituted under Section 3 of the Act is an expert body which has been

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8 2002 (8) SCC 715

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9 (2011) 12 Supreme Court Cases 400

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entrusted with the task of determination of tariff and as determination of tariff involves highly technical procedure requiring not only working knowledge of the law but also of the engineering, finance, commerce, economics and management, this Court was firmly of the view that the issues with regard to determination of tariff should be left to the said expert body and originally the High Court and even this Court should not interfere with the determination of tariff.”

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16. In Rajendra Diwan v. Pradeep Kumar Ranibala¹⁰

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relied on by the learned Advocate General with regard to the power of Judicial Review under Article 226 and 227 of the Constitution of India, the Hon’ble Supreme Court at para 86 held

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thus:

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“ 86. In exercise of its extraordinary power of superintendence and/or judicial review under Articles 226 and 227 of the Constitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or reasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. The High Court does not re-assess or re-analyse the evidence and/or materials on record. Whether the High Court would exercise its writ jurisdiction to test a decision of the Rent Control Tribunal would depend on the facts and circumstances of the case. The writ jurisdiction of the High court cannot be converted into

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10 (2019) 20 Supreme Court Cases 143

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an alternative appellate forum, just because there is no other provision of appeal in the eye of law.”

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The above observations make it abundantly clear that

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determination of tariff involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management and such a task should be entrusted to a commission constituted with an expert body. Further, the High Court does not re-assess or re-analyse the evidence and/or materials on record, while exercising jurisdiction under Articles 226 & 227 of the Constitution of India and they would restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or reasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers.

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Keeping in view the observations that writ petitions filed for determination of tariff, cannot be entertained, since the commission constituted with expert body can only adjudicate such issues, now the facts of the case are to be scanned to ascertain whether such intricate issues are involved in this writ petition.

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The facts emanated from the record and the submissions made by both the learned counsel, would indicate that this writ petition is preceded by Writ Petition vide W.P.No.32465 of 2017.

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The said Writ Petition was filed to direct the respondent to determine the tariff payable by reckoning the capacity of the petitioner mini-hydel plant @ 12 MW (instead of 10 MS as has been done now) from 27.06.2008 and re-compute the tariff payable to the petitioner in accordance with the orders of the Andhra Pradesh Electricity Regulatory Commission applicable from time to time for non-conventional energy power producers such as the petitioner and pay the overdue amount together with 18% interest thereon and further direct the respondent to permit the petitioner to sell the power generated by it to the third parties. It was disposed of on 29.04.2019.

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The Orders passed on 29.04.2019 makes it clear that the learned counsel appearing on both sides have agreed for remanding the matter to APERC for determining the tariff and to grant approval for capacity enhancement of the petitioner duly considering the issue as per Section 86(1)(b) of Electricity Act

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Para-4 of the order is relevant and the same is extracted

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hereunder:

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“4. In the light of the submissions made by both the counsel, the matter is remanded to APERC for the above said relief. On determination of the tariff by the APERC, the petitioner is given liberty to avail appropriate remedy for implementing the orders.”

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Pursuant to the remand, APERC passed orders dated

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09.07.2019. For clarity, Para-18 of the said orders is extracted

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hereunder:

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“18. Therefore, in compliance with the order of remand by the Hon’ble High Court of Andhra Pradesh in W.P.No.32465 of 2017 dated 29.04.2019, it is hereby ordered that the capacity enhancement of the petitioner from 10 MW to 12 MW (2 x5 MW to 2 x 6 MW) is approved with effect from 27.06.2008 and the tariff payable by the respondent to the petitioner for the power generated by the petitioner and supplied to the respondent from the mini hydel plant of the petitioner of 12 MW (2 x 6 MW) capacity with effect from 27.06.2008 shall be in accordance with the order of the erstwhile Andhra Pradesh Electricity Regulatory Commission dated 22.06.2013 and any further orders of the Andhra Pradesh Electricity Regulatory Commission applicable from time to time to such power generating units and the petitioner is entitled to be paid the procurement tariff as was being paid to it by 29.06.2016 in compliance with the interim orders of the Hon’ble High Court of the said date in W.P.M.P.No.25412 of 2016 in W.P.No.20728 of 2016 subject to any further or final orders that may be passed by the Hon’ble High Court in the said writ petition or otherwise. All other issues or questions between the parties are not the subject of any consideration or expression of opinion by the Commission in this order and in this regard the Hon’ble High Court has given liberty to the petitioner to avail appropriate remedy for implementing the orders in the subject order of remand.”

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23. Therefore, operative portion of the orders passed by

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the APERC clearly says that the respondent has to pay to the

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petitioner for enhancement of the capacity of 2 MWs by treating the Commercial Operation Date (COD) as 27.06.2008. Thus the issue regarding Commercial Operation Date of 2 MWs as to whether it was the date when the entire unit was commissioned or the date when the enhanced capacity of 2 MWs was certified, was set at rest by APERC by declaring that it would be 27.06.2008. Admittedly, the orders passed by APERC were not challenged by way of appeal and it had attained finality. Thus, the said issue is no more open for debate. Moreover, subsequent to the said orders passed by APERC, new PPA was entered into between the petitioner and the respondent in terms of the orders passed by APERC. Consequently, the arguments advanced by the learned Advocate General regarding Commercial Operation Date (COD) by referring to various clauses cannot be considered and hence rejected.

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With regard to the interest claim of the petitioner, learned Advocate General relied on the decision of the Hon’ble Supreme Court in National Thermal Power Corporation Limited v. Madhya Pradesh State Electricity Board (supra

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paragraph 31 of the said judgment reads as under:

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“ 31 . It is true that there was delay in the process of determination of the tariff. We are informed that the Commission became functional only on 15-05-1999. NTPC had filed the tariff petitions duly as required by the Central Commission. The delay in the case of Kawas and Gandhar Power Stations was because of the Commission requiring them to appropriately devise norms and parameters. As far as Rihand Station is concerned, one of the beneficiaries, namely, Rajasthan Rajya Vidyut Vitaran Nigam Ltd., had obtained stay of proceedings before the Commission from the High court of Rajasthan. NTPC was not in any way responsible for these factors. Ultimately, the tariff was reduced, but the tariff charged by NTPC in the meanwhile was in accordance with the rates permitted under the notifications issued by the Commission. It cannot, therefore, be said that NTPC had held on the excess amount in an unjust way to call it unjust enrichment on the part of NTPC, so as to justify the claim of the Electricity Boards for interest on this amount.”

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The learned Advocate General further relied on the Order dated 12.03.2020 passed by the APTEL in Appeal No.

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387 of 2017 wherein it is held that on an indeterminate state of affairs interest claim is not maintainable. At para 53 of the said order it is held that in terms of Section 34 of the Code of Civil Procedure, the interest ought to be paid is only when the amount got quantified or determined as price per unit for the power

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supplied. The APTEL also held to the same effect in Appeal

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Nos.239 and 246 of 2013 vide order dated 24.07.2014 .

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Clause 5 (I) & 5(II) of the amended Power Purchase Agreement dated 25.11.2019, clearly states that tariff should be payable as per APERC orders dated 22.06.2013 and 23.08.2014.

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It is relevant here to note that APERC ordered that tariff payable should be in accordance with the order of the erstwhile Andhra Pradesh Electricity Regulatory Commission dated 22.06.2013. For benefit, the relevant portion of the orders

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dated 22.06.2013 is extracted hereunder:

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“6. Hon’ble APTEL directed that interest on arrears, due to the developers as a consequence of determination of tariff on the basis of norms determined by it, to be allowed at the rate of 12% to be compounded on quarterly rests. Accordingly, the DISCOMs are directed to calculate the interest on arrears keeping in view the tariff now determined in this order. For the purpose of convenience payment, DISCOMs are allowed to pay arrears and interest to the developers in 6 monthly instalments commencing from July, 2013.”

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Therefore, the direction given to the respondent by

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APERC for payment of amount in terms of orders dated 22.06.2013 includes payment of interest as specified in the said orders.

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The decisions relied on by the learned Advocate General represent different scenario and therein the delay in

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payment is attributable to the developer and hence they are not

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applicable to the facts of the present case.

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In view of the above, this writ petition neither involves determination of tariff nor interpretation of clauses and conditions of the agreement and this writ petition is filed for mere implementation of the orders of APERC dated 09.07.2019, which have attained finality. Therefore, this Court holds that the writ petition is maintainable.

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The next flank of contention of the learned Advocate General is that, the respondent is governed by the orders dated 13.03.2014 of the Hon’ble Supreme Court passed in Civil Appeal Nos.1376-1385 of 2013, filed challenging the orders dated 20.12.2012 of the APTEL, which was made basis by APERC for passing orders dated 09.07.2019.

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This Writ Petition is filed for implementation of the orders passed by APERC. It is an admitted fact that APERC has passed orders basing on the order passed by APTEL dated 20.12.2012. It is also no doubt true that the orders passed by APTEL were challenged before the Hon’ble Supreme Court in Civil Appeal Nos.1376-1385 of 2013 and the Hon’ble Supreme Court as an interim measure directed the appellant-Transmissions

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Corporation of A.P. to release 50% of the amount due to the respondents therein. Since the order passed by the APERC was not challenged by the respondent in the present case and the said order has become final, the respondent cannot claim that they are only governed by the orders passed by the Hon’ble Supreme Court in the Civil Appeal referred to above. Further, in the fresh PPA entered into by the respondents, nowhere it was stated that payment of the tariff fixed by APERC is subject to outcome of the appeals pending before the Hon’ble Supreme Court field against the orders passed by APTEL.

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Added to the above, the amount specified in the writ petition relates to the period from 27.06.2008 till 2019. The contents of the writ affidavit and the counter further make it clear that out of the total amount due during the above said period, part of the amount was made in the year 2020 leaving the balance mentioned in this writ petition. In view of the same, the respondent cannot contend that they are only governed by the interim orders passed by the Hon’ble Supreme Court.

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This writ petition is filed in the year 2021 and amounts

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due as on 31.12.2020 are only mentioned which according to the petitioner accumulated to Rs.34,94,92,267/-. Therefore, this

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Court feels it appropriate to give liberty to the petitioner to submit a representation to the respondent specifying the amount due to it as on date in terms of the orders passed by APERC dated 09.07.2019.

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Therefore, since the orders passed by the APERC dated 09.07.2019 were not challenged by the respondent and they had allowed it to attain finality and moreover subsequent to the orders passed by APERC, the respondent has entered into fresh PPA with the petitioner agreeing to pay the tariff as per the orders of APERC dated 22.06.2013 & 23.08.2014, they cannot turn around and say that they are only governed by the orders passed by the Hon’ble Supreme Court in SLP referred to above. If at all the respondent felt aggrieved by the orders passed by APERC, it would have preferred appeal challenging the said orders. Thus, the contention raised by the respondent is half hearted and intended to delay payment to the petitioner.

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In view of the above, this writ petition is allowed.

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(a) The petitioner company shall submit a representation specifying the amount due as on

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date within a period of two (02) weeks from the date of this order.

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(b) On receipt of such representation, the respondent

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shall pay the legally entitled amount payable to the petitioner in terms of the orders of the APERC dated 09.07.2019 within a period of three (03) months thereafter.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed. Interim orders, if any, shall stand vacated.

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_________________________ JUSTICE RAVI CHEEMALAPATI 9^th October, 2023 GBS/RR

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HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

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WRIT PETITION No. 2932 OF 2021

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9^th October, 2023