Andhra Pradesh High Court - Amravati
The Government Of Andhra Pradesh vs M/S Tata Power Renewable Energy ... on 20 July, 2021
15, 35,
36, 47
& 48
HIGH COURT OF ANDHRA PRADESH : AMARAVATI
MAIN CASE: W.A.Nos.388, 394, 418, 439 and 443 of 2021
PROCEEDINGS SHEET
Sl. DATE ORDER OFFICE
NOTE
No.
20.07.2021 (Taken up through video conferencing)
I.A.No.1 of 2021 in W.A.No.418 of 2021,
I.A.No.1 of 2021 in W.A.No.439 of 2021 &
I.A.No.1 of 2021 in W.A.No.443 of 2021
These are the applications for dispensing with the
filing of certified copies of the order under appeal.
Dispensed with for the present.
I.As. stand disposed of.
I.A.No.2 of 2021 in W.A.No.394 of 2021
This is an application for dispensing with the filing
of annexures/material papers filed in the writ petition.
Dispensed with for the present.
I.A. is accordingly disposed of.
W.A.Nos.388, 394, 418, 439 and 443 of 2021
Challenge in these appeals is to a judgment and
order dated 17.06.2021 passed by the learned single
Judge in W.P.No.674 of 2021, which was filed praying for
a writ of certiorari to quash the Requests for Selection
(RfS) dated 30.11.2020 for a capacity of 6400 MW as well
as the draft Power Purchase Agreements (PPAs) issued by
the Andhra Pradesh Green Energy Corporation Limited
(hereinafter referred to as 'APGECL') (respondent No.4 in
the writ petition) and for a direction to APGECL to issue
fresh RfS strictly in accordance with the Guidelines for
Tariff Based Competitive Bidding Process for Procurement
of Power from Grid Connected Solar Photo Voltaic Power
Projects dated 03.08.2017 issued under Section 63 of the
Electricity Act, 2003 (for short, 'the Act of 2003').
Sl. DATE ORDER OFFICE
NOTE
No.
As W.A.Nos.418, 439 and 443 of 2021 are
preferred by L1 bidders who were not parties to the writ
petition, they filed applications for grant of leave to
appeal, which are numbered as I.A.No.2 of 2021 in the
respective appeals.
Mr. Deepak Chowdhury, learned counsel, appears
for the applicant/appellant in W.A.No.418 of 2021.
Mr. Kapil Sibal, learned senior counsel, appears for
the applicant/appellant in W.A.No.439 of 2021.
Mr. Mukul Rohatgi, learned senior counsel along
with Mr. S. Vivek Reddy, learned senior counsel, appears
for the applicant/appellant in W.A.No.443 of 2021.
Sri S. Sri Ram, learned Advocate General, appears
for the State authorities/appellants in W.A.No.388 of
2021.
Sri P. Sri Raghu Ram, learned senior counsel,
appears for the appellants in W.A.No.394 of 2021
(respondent Nos.7 and 8 in the writ petition).
Dr. Abhishek Manu Singhvi, learned senior counsel
assisted by Mr. Shri Venkatesh, along with Mr. D. Prakash
Reddy, learned senior counsel, appears for the writ
petitioner.
Mr. N. Harinath, learned Assistant Solicitor General
of India, appears for Union of India.
Mr. V.R.N. Prasanth, learned counsel appears for
Andhra Pradesh Electricity Regulatory Commission.
The applications for leave are not opposed by the
learned senior counsel appearing for the writ petitioner
and the other counsel appearing today.
We have perused the applications and on due
consideration, leave to appeal is granted. Accordingly,
I.A.No.2 of 2021 in W.A.No.418 of 2021, I.A.No.2 of 2021
in W.A.No.439 of 2021 and I.A.No.2 of 2021 in
W.A.No.443 of 2021 are disposed of.
Also heard learned counsel for the parties on the
writ appeals.
Amongst many contentions advanced in the writ
petition, it was projected that the writ petitioner could not
take part in the bidding process as the impugned RfS and
Sl. DATE ORDER OFFICE
NOTE
No.
draft PPAs are contrary to provisions of Sections 63 and
86 of the Act of 2003 and that the deviations in the
impugned RfS and impugned PPAs had not been approved
by the Andhra Pradesh Electricity Regulatory Commission
(for short, 'APERC') and they oust the powers and
jurisdiction of APERC, which is appropriate commission for
adjudication of any disputes arising out of PPAs. It is also
contended therein that the impugned RfS and draft PPAs
are in gross violation of the Arbitration and Conciliation
Act, 1996.
The learned single Judge, by the order under
assailment, set aside the impugned RfS and draft PPAs,
reserving liberty to the APGECL to issue fresh RfS, if so
advised, in accordance with the guidelines for Tariff Based
Competitive Bidding Process for Procurement of Power
from Grid Connected Solar Photo Voltaic Power Projects
dated 03.08.2017 issued under Section 63 of the Act of
2003.
Arguments advanced on behalf of the L1 bidders,
appellants in W.A.Nos.418, 439 and 443 of 2021, are
primarily to the effect that they were necessary parties to
the writ petition and the order passed in their absence is a
nullity, being in violation of principles of natural justice
and therefore, the impugned order cannot be sustained in
law. They have also contended that the reasoning
assigned by the learned single Judge is also not tenable in
law. It is also submitted that the parent company of the
writ petitioner had prayed for extension of time to bid by
a period of six weeks along with prayer for modification in
respect of some of the conditions of the bid document but
the same having not been accepted, the writ petition
came to be initiated at the instance of writ petitioner and
therefore, present is not a bona fide litigation. When the
writ petitioner did not participate in the tendering process,
given the projections that were made in the writ petition,
the learned single Judge ought not to have entertained
the writ petition. It is further contended that allowing of
the writ petition has affected public interest.
Sl. DATE ORDER OFFICE
NOTE
No.
On behalf of the other appellants who were parties
to the writ petition, it is contended, amongst others, that
the order of the learned single Judge needs to be
interfered with as conclusions reached on the touchstone
of the provisions contained in the Act of 2003 are not
tenable in the facts and circumstances of the case.
It is also submitted that in the attending facts and
circumstances, successful tenderers ought to have been
arrayed as parties and, therefore, any adjudication made
in their absence cannot receive judicial imprimatur.
Per contra, Dr. Abhishek Manu Singhvi has
submitted that the order of the learned single Judge is a
well reasoned order and on due consideration, the learned
single Judge had come to the conclusion that RfS and
draft PPAs are not in accordance with the guidelines for
Tariff Based Competitive Bidding Process. He has further
submitted that by reason of the interim order passed in
the writ petition on 07.01.2021, no agreements had been
entered into in relation to the impugned RfS and draft
PPAs with successful bidders and despite such an interim
order operating, the successful bidders did not assail the
said order and also had not impleaded themselves in the
writ petition.
The weighty arguments advanced by the learned
senior counsel for the parties will require in-depth
deliberations.
Learned senior counsel for the parties, however,
submit that the matter is required to be heard as early as
possible inasmuch as the Government intends to set up
solar power projects in a phased manner in order to
provide 9 hours day time free power supply to agricultural
consumers.
Admit the appeals for hearing.
Registry will list these cases on 16.08.2021.
In the attending facts and circumstances of the
case, while suspending the impugned order 17.06.2021
Sl. DATE ORDER OFFICE
NOTE
No.
passed by the learned single Judge in W.P.No.674 of
2021, we also direct that, as provided by the learned
single Judge in the interim order 07.01.2021, the
respondents in the writ petition shall not to enter into any
agreements in relation to the impugned RfS and draft
PPAs with successful bidders, until further orders.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
IBL
