M/S. Bengal Energy Limited & Anr vs The West Bengal Electricity ...
2022 Latest Caselaw 1192 Cal

                   In the High Court at Calcutta
                  Constitutional Writ Jurisdiction
                           Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya



                      WPA No. 19019 of 2021

                M/s. Bengal Energy Limited & Anr.
                               Vs.
              The West Bengal Electricity Regulatory
                       Commission & Ors.

                               With

                      WPA No. 21013 of 2021

            Tata Power Company Limited (Haldia) & Anr.
                                 Vs.
           West Bengal Electricity Regulatory Commission


    For the petitioners
    in WPA 19019 of 2021        :     Mr. Saktinath Mukherjee,
                                      Mr. Rahul Karmakar,
                                      Mr. Aasish Chowdhury,
                                      Ms. Aindrila Basu


    For the petitioners
    in WPA 21013 of 2021        :     Mr. Sanjoy Sen,
                                      Mr. Anand Srivastava,
                                      Mr. R. Elwin,
                                      Ms. Neha Dabral,
                                      Mr. Shivam Sinha,
                                      Mr. Avik Ghatak,
                                      Mr. Kumarjeet Ray

    For the WBERC               :     Mr. Pratik Dhar,
                                      Ms. Sharmistha Ghosh,
                                      Mr. Victor Chatterjee
                                          2


     For the WBSEDCL                 :        Mr.   Jishnu Chowdhury
                                              Mr.   Chayan Gupta
                                              Mr.   Sandeep Dasgupta
                                              Mr.   Saaqib Siddqui,
                                              Mr.   Ariroop Mitra

     For the CESC Limited            :        Mr. Shounak Mitra,
                                              Mr. Zulfiqar Ali,
                                              Ms. Prerona Banerjee

     For the State                   :        Mr. Anirban Roy,
                                              Ms. Amrita Panja Moulick

     For the respondent no.7         :        Mr. Bratin Kumar Dey,

     Hearing concluded on            :        18.02.2022

     Judgment on                     :        15.03.2022



     Sabyasachi Bhattacharyya, J:-

1. The present writ petitions have been taken out primarily against the

2020 amendments brought by the West Bengal Electricity

Regulatory Commission (WBERC) to the WBERC (Co-generation of

Electricity from Renewable Sources of Energy) Regulations, 2013,

that is, Regulation No.50 dated March 22, 2013.

2. A consequential challenge has also been preferred against the

September 2, 2020 Order which was passed by the WBERC suo

moto in Case No. SM - 24/20-21, on the basis of which the

amendment was allegedly brought.

3. Certain ancillary reliefs have also been claimed by the writ

petitioners in their respective petitions.

4. It is argued on behalf of the petitioners, who are co-generating

companies of electricity, is that a body corporate can express itself

only through a resolution. By placing reliance on the case of The

Vice-Chancellor, Utkal University and others Vs. S.K. Ghosh and

others, reported at AIR 1954 SC 217, it is contended that the order

of the State Commission, on the basis of which the 2020

Amendment was brought in, is not a reasoned order. The learned

Senior Advocate appearing for the writ petitioners seeks to draw

support from Regulation 2.14 of the WBERC (Conduct of Business)

Regulations, 2013, which provide for reasons to be given by the

Commission in support of its orders.

5. It is next argued by the writ petitioners that the Lloyd's case dated

December 2, 2013, rendered by the Appellate Tribunal for

Electricity (APTEL), was passed in an appeal against an interim

order. By placing reliance on Empire Industries Limited and others

Vs. Union of India and others, reported at AIR 1986 SC 662 and

State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha,

reported at (2009) 5 SCC 694, it is contended that decisions taken

in interim orders are not precedents.

6. The writ petitioners further argue that Section 86(1)(e) of the

Electricity Act, 2003 (hereinafter referred to as 'the 2003 Act')

requires the Commission to promote co-generation and generation

of electricity from renewable sources of energy by suitable

measures. It is contended that the National Tariff Policy, 2016,

promulgated on January 28, 2016, by its proviso to Clause 6.4(1),

rendered the Lloyd's case's decision inoperative.

7. It is submitted that Section 181 of the 2003 Act requires the

Regulations framed by the State Commissions to be consistent with

the parent Act and Rules. Section 86(4) of the 2003 Act also

requires that, in the discharge of its functions, the State

Commission shall also be guided by the tariff policy.

8. It is argued that on July 15, 2021, the Government of West Bengal

issued a direction under Section 108 of the 2003 Act upon the State

Commission in public interest, which was neither refuted nor

heeded by the WBERC. The writ petitioners cite Real Food Products

and others Vs. A.P. Electricity Board and others, reported at (1995) 3

SCC 295, for the proposition that such directions of the State

Government are binding on the State Commission. Section 78A of

the 1948 Act (on which the said decision was rendered), it is

submitted, is similar in scope with Section 108 of the 2003 Act

(which is applicable to the instant case).

9. It is contended that the proviso to Clause 6.4(1) of the tariff policy

clearly stipulates that co-generation cannot be excluded from the

benefit of Renewable Purchase Obligations (RPO). However, by the

impugned amendment, the State Commission altered several

clauses, which placed 'co-generation' on equal footing with

'renewable sources', and excluded co-generation from the purview of

RPO.

10. That apart, the expression "industrial waste" was excluded in the

2020 amendment from the purview of the definition of "renewable

sources".

11. The writ petitioners have co-generating units of electricity which are

primarily powered by industrial waste. As such, the petitioners'

interests are directly hit by the impugned amendment.

12. It is further contended that the APTEL (Appellate Tribunal for

Electricity), in JSW Steel Limited Vs. Tamil Nadu Electricity

Regulatory Commission, reported at 2021 SCC OnLine APTEL 38,

discussed the observations made by it in Century Rayon Vs. MERC

(Appeal No.252 of 2018) dated January 28, 2020 and further

explained the scope of the Lloyd's case (supra). It is submitted that

the APTEL, in JSW (supra), took into consideration Section 86(1)(e)

of the 2003 Act and observed that the co-generating plants are

required to be treated at par with renewable energy generating

plants. Irrespective of the nature of fuel used in the co-generation

process to generate power, co-generation has to be encouraged and

promoted in terms of Section 86(1)(e) of the Act, it was held. Thus,

co-generation plants, it was concluded, cannot be fastened with the

liability of purchasing power of renewable sources to meet its RPO

obligations irrespective of the fuel used.

13. It is contended that Lloyd's case (supra) was rendered in the context

of the Maharashtra Regulations, which did not include co-

generation in the definition of renewable energy source. On such

basis, the APTEL, in Lloyd's case (supra), held that co-generation

could not be included within the ambit of renewable sources.

However, the 2013 Regulations of the WBERC clearly mandated, as

opposed to the Maharashtra Regulations, that co-generation and

renewable sources are to be treated at par. Hence, the WBERC

acted patently without jurisdiction in placing reliance solely on the

Lloyd's case, which was not relevant in the context, to bring about a

sea change in its own regulations.

14. It is next contended that there is nothing intrinsic in the concept of

renewable energy which precludes the inclusion of industrial waste,

as directed by the State of West Bengal under Section 108 of the

Act. It is argued that the directions under Section 108 are binding

on the WBERC.

15. Learned counsel, in the above context, places reliance on the

definition of "co-generation" and "generate" as given in sub-sections

(12) and (29) of Section 2 of the 2003 Act. It is argued that in

Section 61(g), pertaining to tariff regulations and Section 86(1)(e),

dealing with functions of the State Commission, promotion of co-

generation and generation of electricity from renewable sources of

energy have been equated.

16. It is submitted that the doctrines of promissory estoppel and

legitimate expectation were violated by the WBERC in approving the

agreements of the writ petitioners for co-generation even

subsequent to the Lloyd's case and, in the same breath, permitting

RPO to be applicable to such co-generation, contrary to the

provisions of the agreements.

17. Articles 14 and 19 of the Constitution of India, it is argued, were

violated by the WBERC by dint of the 2020 Amendments, by

excluding co-generation from the scope of RPO.

18. By virtue of the 2020 Amendments, a distinction was brought about

between co-generation from renewable sources and non-renewable

sources. The specific stipulations in the Preamble as well as

Section 86(1)(e) and the other provisions of the 2003 Act, which

treat co-generation and renewable source at par insofar as

promotion is concerned, were thus flouted.

19. It is argued that, being contrary to the National Tariff Policy, 2016

as well as the 2003 Act and the judgments prevailing in the field,

the impugned amendments of 2020 ought to be set aside.

20. Learned counsel for the writ petitioners argue on the contemporary

evolution of the concepts of co-generation and generation of

electricity vis-à-vis renewable sources. Although co-generation is

defined as a process which simultaneously produces two or more

forms of useful energy (including electricity), generate means to

produce electricity from a generating station for the purpose of

giving supply to any premises or enabling a supply to be so given.

Hence, the process of co-generation has not been distinguished

inter se on the ground of its sources, renewable or otherwise, from

the inception in the statute as well as West Bengal Regulations.

However, by the 2020 amendments, such sub-classification has

been incorporated by the WBERC, which is contrary to the law and

not based on either the definition clause or anywhere else in the

statute.

21. By placing the relevant provisions from the 2013 and 2020

Regulations, the writ petitioners contend that wherever "co-

generation" and "renewable sources" were mentioned

simultaneously, qualified by the conjunction "and" or "and/or", the

2020 amendment has deleted the expression "co-generation",

thereby excluding co-generation from the purview of RPO.

22. It is submitted that a previous writ petition, challenging the 2020

amendments, was not pressed by the petitioners solely in view of

the State Government directions under Section 108, which had

come in the meantime. However, the WBERC blatantly flouted the

said directions of the State Government, de hors the law.

23. The CESC Limited, being a respondent in the writ petitions,

supports the contention of the writ petitioners.

24. The learned Senior Advocate appearing for the WBERC contends

that the 2020 amendment has been brought about in consonance

with similar provisions in several other State Regulations, including

Assam, Arunachal Pradesh, Chhattisgarh, Delhi, Gujarat, Haryana,

Jharkhand, Kerala, Meghalaya, Nagaland, Odisha, Tripura,

Uttarakhand and Uttar Pradesh. It is contended that in all the said

Regulations, "renewable energy sources" means the usual sources

such as small hydro, wind, solar as well as bio-mass, bio-fuel co-

generation and urban or municipal waste and other sources as

recognised or approved by the Ministry of New and Renewable

Energy (MNRE).

25. It is contended that the Lloyd's case (supra) could not be confined

to the interim stage of the said mater, since a proposition of law was

settled in the said judgment of the APTEL. The present

amendment, it is argued, rightly segregates between co-generation,

which is merely a process of generation and renewable sources,

which pertains to the resources used in production of electricity.

26. The distinction between co-generation from renewable and non-

renewable sources is sought to be justified by the learned Senior

Advocate appearing for the WBERC on the ground that the

renewable source co-generation plants fall within the broader

category, "renewable sources" and are, thus, entitled to RPOs.

However, co-generation from non-renewable sources does not merit

such special incentive as applicable to renewable sources.

27. It is further contended by the WBERC that, in consonance with the

contemplation in the 2003 Act and the Tariff Regulations,

exemptions were given to co-generation. Promotion of fossil fuel

based co-generation, for example, can be found in the amended

Regulation at Clause 4.2, which stipulates that the purchase of

power from such co-generation plants would be subject to the

ceiling price specified in the Regulations. Although such co-

generation plants have been kept outside the purview of RPO, the

price cap for co-generation plants introduced by the amendment

offsets the gross differences in cost of production of generation and

co-generation from renewable and non-renewable sources. Whereas

co-generation is always cheaper than thermal generation, the

determination of prices has been left under the Regulations to the

mutual negotiations between the co-generators and the distribution

licensees, only subject to a ceiling price. Such price cap does not

operate as a deterrent to co-generation but is, rather, an adjunct of

promotion in view of the cheaper prices of the co-generating units.

28. It is argued that industrial waste does not come within the scope of

renewable sources.

29. The directions of the State under Section 108 of the 2003 Act, in the

present case, it is argued, are not binding on the State Commission

but only have persuasive effect.

30. It is argued by the WBERC that, without impleading the MNRE

(Ministry of New and Renewable Energy) as a party to the instant

writ petitions, the writ petitions suffer from non-joinder of

necessary party, since the MNRE is the only authority under the

law which can approve other renewable sources than the existent

ones. Despite such point having been taken categorically, at the

outset, it is argued, the writ petitioners chose not to implead the

MNRE as a party. In the event the MNRE, at any future point of

time, includes industrial waste within the scope of renewable

sources, the Commission has no issues in incorporating such

change as a part of the Regulations.

31. By placing reliance on Polyplex Corporation Limited Vs. Uttarakhand

Regulatory Commission and others, reported at (2011) SCC OnLine

APTEL 15, the Commission contends that directions of the State

Government under Section 108 of the 2003 Act are not binding to

the extent those are contrary to the statute and/or the Regulations.

32. The arguments regarding the order preceding the amendment of

2020 being devoid of reasons is not tenable in law, it is argued. The

State Commission has both adjudicatory and regulatory functions.

In the latter role, the Commission acts as a delegated legislator;

thus, such amendments to the Regulations as in the present case

are not required to be backed by any specific order, let alone

reasoned order, which could be relevant only in respect of decisions

taken in the Commission's adjudicatory capacity. In order to

elaborate the above arguments, the learned Senior Advocate for the

WBERC cites the following judgments, which are on similar

propositions:

i) (2013) SCC OnLine APTEL 147, reported at Lloyds Metal & Energy Pvt. Ltd. Vs. Maharashtra Electricity Regulatory Commission & Ors.

ii) (2011) SCC OnLine APTEL 15, reported at Polyplex Corporation Limited Vs. Uttarakhand Electricity Regulatory Commission & Ors.

iii) (2010) 4 SCC 603, reported at PTC India Limited Vs. Central Electricity Regulatory Commission.

            iv)    (2015) 12 SCC 611, reported at Hindustan Zinc
                   Limited    Vs.   Rajasthan      Electricity   Regulatory
                   Commission.
            v)     (2020) SCC OnLine APTEL 5, reported at Century
                   Rayon     (A   Division    of   Century   Textiles    and

Industries Limited) Vs. Maharashtra Electricity

Regulatory Commission through its Secretary & Anr.

             vi)   (2019) SCC OnLine APTEL 19, reported at JSW
                   Steel     Limited   Vs.   Tamil    Nadu     Electricity
                   Regulatory Commission.

33. Upon hearing learned counsel for the parties and considering the

materials on record, the following questions fall for consideration in

the instant case:

i) Whether the direction of the State Government dated July

15, 2021 is binding on the State Electricity Regulatory

Commission;

ii) Whether the principles of promissory estoppel and/or

legitimate expectation are applicable in the present case;

iii) Whether the impugned 2020 amendments of the WBERC are

ultra vires in the context of the statute or the Constitution

of India.

34. The Central and State Regulatory Electricity Commissions

contemplated under the 2003 Act have a large degree of autonomy

and insulation from State interference. Section 108 of the 2003 Act

governs the interplay of the two. Sub-section (1) of the section

provides that, in the discharge of its functions, the State

Commission shall be guided by such directions in matters of policy

involving public interest as the State Government may give to it in

writing. Interestingly, sub-section (2) of Section 108 lends primacy

to the State Government's decision on questions "whether any such

direction relates to a matter of policy involving public interest".

35. The power conferred on the State under sub-section (2) is more

fundamental than meets the eye at the first blush; it leaves the

decision on the State Government, as to whether its own directions

relate to "matters of policy involving public interest".

36. Neither the Commission nor the Court can impose their own

notions of public policy, since the State Government has been

vested by the legislature, in its own wisdom, with the power to

decide which are matters of public policy and which are not, under

Section 108 (2) of the 2003 Act.

37. The limited domain of judicial interference is only to test the

Constitutionality and legality of such decisions. Section 108 of the

2003 Act stipulates the law. No fundamental right can be said to

have been violated by the direction of the State. "Renewable

Purchase Obligation" or "RPO", in brief, is in the nature of an

incentive which is a valid mode of economic and technological

course-correction by the Executive. Hence, any breach of Article 14

or Article 19 of the Constitution of India cannot be ideologically

imported in the context.

38. The basis of classification sought to be demarcated either by the

State, in its directions under Section 108, or the State Electricity

Regulatory Commission, in its impugned 2020 amendment of

regulations, cannot be said to be patently unreasonable.

39. The direction of the State Government in the present case is found

in the communication dated July 15, 2021. In such written

communication, the Government refers repeatedly to the directions

made therein to pertain to "public policy". Conspicuously, in

paragraph no. 4 of the communication, the State Government

clearly states that, "after carefully considering the various salient

aspects including the Industrial Development in the State, the

continued existence of the Industries which have set up the

cogeneration plant, the interest of the economy, the employment

situation and resolving the adverse impact that may be caused to

the industries as well as the DISCOMs in the fulfilment of the RPO

obligations", it "considers in the public interest that there is a

necessity to issue the directive under Section 108 of the Electricity

Act, 2003 as a policy decision of the State Government".

40. Hence, in the instant case, the directions incorporated in the

directive dated July 15, 2021 are binding on the West Bengal

Electricity Regulatory Commission since, in the notion of the State

Government those pertain to policy decisions within the

contemplation of Section 108 of the 2003 Act.

41. Hence, the first issue is answered in the positive.

42. As regards the second question, it is well settled that the principles

of promissory estoppel and/or legitimate expectation cannot be

broadened to the extent that those override the law.

43. Section 108 of the 2003 Act, as it stands, makes it amply clear that,

inasmuch as the final word as to whether a directive pertains to a

policy decision in the public interest is concerned, the same is

retained in the State Government.

44. On the other hand, Section 181 of the 2003 Act, which empowers

the State Commission to make regulations "consistent with" the

Act, by so providing, circumscribes such power by Section 108,

which mandates the Commission to be "guided by" such directions

in writing which, in the notion of the State Government, are policy

decisions in public interest. Where there is a conflict between public

policy of the Government and the technical acumen of the

Commission, the State Government has the final say in the matter

in terms of sub-section (2) of Section 108. The language of Section

108 of the 2003 Act leaves no room for discretion on the part of the

Commission when a public policy decision of the State is involved.

Such an approach is justiciable, since the public mandate behind

the Executive rationalizes its notion of 'public interest' as opposed

to the technical opinion of the Commission. Undoubtedly, the Court

is vested with the power of judicial review, but such domain is not

unbridled and has to adhere to the test of Constitutional/legal

legitimacy of such decision; otherwise there might arise an anarchy

of democracy.

45. Rule of Law is a much more cardinal principle than the legal

fictions of promissory estoppel and legitimate expectation. Hence, in

the instant case, such doctrines are not applicable.

46. The second question is, accordingly, answered in the negative.

47. In view of the above discussions, the third issue acquires supreme

importance in order to ascertain as to whether the power under

Article 226 of the Constitution ought to be exercised in the case.

48. As discussed above, Section 181, read in conjunction with Section

108, of the 2003 Act lend a legitimate legal basis to the State

directions, more so, since the previously existing 2013 Regulations

of the WBERC itself, which is in parity with the State directions,

had held the field for seven years, before the impugned

amendments were introduced in the year 2020.

49. Although the Commission was well within its competence and

authority otherwise to revisit the issue of RPO and to reframe the

particular modes of incentives to be given to cogeneration and

renewable energy sources, such authority is, in turn subjugated to

the State Government's directions, if such directions relate to

"policy decisions in public interest" from the perspective of the

Government.

50. The Wednesbury touchstone of reasonableness has to be ruled out

at the outset, since neither of the views, adopted either by the State

Government or the State Commission respectively, defy the common

man's logic. The issue, however, requires and deserves a tad more

detailed examination.

51. From the perspective of the WBERC, the existing Regulations of

2013 required a paradigm change in view of evolving circumstances.

The writ petitioners' argument, that the amendments had to be

backed by reasoned orders, does not find support in reason or law.

The State Commission, within the contemplation of the 2003 Act,

plays the dual role of an adjudicator and a regulator. In its first

capacity, the State Commission has to issue sufficiently reasoned

orders to pass the test of legality and reasonableness.

52. However, in its second Avatar, the Commission is to regulate and

frame rules which would supplant and further the cause of the

existing body of law. Delegated legislation is subtly implicit in such

regulatory functions, since the Regulations framed by the State

Commission have the force of law. However, Section 181 of the 2003

Act puts in a note of caution that the Regulations are subjugated by

the existing law. The Regulations can 'supplant' the law and acquire

a binding nature akin to delegated legislation, but can, under no

circumstance, 'supplement' or contradict the law. The 'policies'

adopted by the regulator in discharge of its functions cannot be

equated with 'public policy' enunciated by the State, although there

is an interplay, as well as intersecting spheres, between the two.

53. The Commission's viewpoint is not patently unjustified. The proviso

to Clause 6.4 (1) of the National Tariff Policy, 2016 clearly stipulates

that cogeneration from sources other than renewable sources shall

not be excluded from the applicability of RPOs. Such a provision

can be interpreted in both ways - from the demand and the supply

perspectives. It can be argued that, as per the said proviso,

cogenerating units are also subject to Renewable Purchase

obligations and have to comply therewith as distribution licensees.

However, it can equally be contended that the cogenerators, as

generating companies, are also entitled to get the benefit of the

incentivisation of RPOs keeping in parity with generators from

renewable sources of energy.

54. Again, co-generation, although defined as a "process" in the 2003

Act, can also acquire the characteristics of a "source". Taking a

pragmatic approach, a co-generation gives rise to two phases - the

first, where the cogenerators themselves utilize other resources,

either fossil fuel or renewable sources, for undertaking the process

of co-generation itself. However, at the second level, the co-

generators, by definition, "co-generate" electricity as energy. In the

latter phase, thus, the co-generation itself becomes a "source" of

electricity, to be transmitted to distribution licensees for being

distributed to the consumers. Therefore, "co-generation", in the

same breath, can signify a process using energy and a source of

energy (including electrical energy). Taken in the second sense,

such source would have characteristics of a "renewable" alternative

energy source from the perspective of a distribution licensee. From

such perspective, "industrial waste", along with municipal and

urban waste, is a renewable source of the co-generated electricity,

since such source can replenish itself with reasonable frequency.

There is no demarcation line, strictly speaking, to delineate a

renewable from a non-renewable source. The terms "renewable" and

"non-renewable" denote differences of degree and frequency of

refilling and are not pigeon-hole straitjacket entities qualitatively.

55. Hence, it would be equally valid to argue that the proviso to Clause

6.4 (1) of the 2016 Tariff Regulations indicates that the co-

generators, as generators, are entitled to get the benefit of the

incentive given in the form of RPOs which bind the distribution

licensees to the obligation to purchase their electricity from the co-

generators on an equal footing as that of renewable sources of

generation, as it would be to reason that, as per the said proviso,

the co-generators are subject to the RPO regime as distribution

licensees.

56. The sub-classification of co-generation into co-generation from

renewable and non-renewable sources does not find place in the

governing statute, that is, the 2003 Act. Even after the Lloyd's Case

(supra) judgment, the WBERC approved several co-generation

agreements of the writ petitioners, which included "industrial waste'

within the ambit of renewable sources and applied the concept of

RPO to co-generation plants as well. Thus, such sub-classification,

even if otherwise rational (since both co-generation and generation

from renewable sources may have common features), is alien to the

statute and the Tariff Regulations and is, thus, amenable to

challenge.

57. In any event, in view of the State Government directives in the

present case relating to policy decisions in public interest, at least

in the State's notion (the final arbiter of which proposition is the

Government, not the Commission, under Section 108 (2) of the

2003 Act), those are binding on the WBERC and ought to have been

implemented by the latter.

58. In the circumstances, the impugned amendment of 2020, which

substantially alters the 2013 Resolution on cardinal aspects, cannot

withstand judicial scrutiny, being contrary to the State Government

directives under Section 108 of the 2003 Act, which prevail over the

WBERC decision in terms of Section 108 of the 2003 Act. The said

amendment is, thus, bad in law and, accordingly, set aside.

59. Since various provisions of the 2020 amendment are ultra vires,

being contrary to the State Government's directions under Section

108 of the 2003 Act as well as the Electricity Act, 2003 and the

National Tariff Policy, 2016, and as such provisions are

interconnected with the other provisions of the 2020 amendment,

which, in some cases, operate as mutual checks and balances,

there is no scope of culling out the ultra vires provisions in

isolation, which would effectively demolish the entire scheme of the

Regulations. Thus, there is no other option but to strike down the

entire 2020 amendment as a whole.

60. However, it is beyond the jurisdiction of the writ court to grant the

other reliefs of declaration in respect of agreements, sought by the

writ petitioners. Hence the merits of such reliefs are not entered

into, since such a consideration would be without jurisdiction.

61. Accordingly, WPA 19019 of 2021 and WPA 21013 of 2021 are

partially allowed, thereby quashing and setting aside the impugned

Resolution, being the West Bengal Electricity Regulatory

Commission (Cogeneration and Generation of Electricity from

Renewable Sources of Energy) Regulation [Notification No.

71/WBERC] dated December 21, 2020 and reviving Notification No.

50/WBERC dated March 22, 2013 as it stood immediately prior to

the 2020 amendment.

62. All acts or action, if any, done or taken on the basis of the

impugned 2020 Resolution, stand reversed.

63. Nothing in this order shall, however, preclude the WBERC from

drawing up a fresh Resolution in consonance with the State

Government's directives.

64. The agreements of the writ petitioners, not being a valid subject

matter of the writ petitions and having never been directly

abrogated, continue to stand on their own footing subject, however,

to the consequence of the above quashing; however, no specific

declaration can be granted by the writ court on such aspect of the

matter.

65. There will be no order as to costs.

66. Urgent certified server copies of this order, if applied for, be

supplied to such applicants upon satisfaction of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )

Later

Since substantial questions of law are involved in the matter, on the

prayer of the learned Senior Advocate appearing for the WBERC, the

operation of the above judgment and order is stayed till April 30, 2022.

However, for the ends of justice, the operation of the impugned

Regulations of 2020 shall also remain stayed for the same period, that is, till

April 30, 2022.

This order be deemed to be a part of the above judgment.

( Sabyasachi Bhattacharyya, J. )