Talwandi Sabo Power Limited vs Union Of India And Others
2022 Latest Caselaw 6007 P&H

CWP Nos.7519 and 7715 of 2020(O&M)                               1


   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH


                                     Reserved on 16.05.2022
                                     Date of Decision-04.07.2022
1. CWP No.7519 of 2020(O&M)
Talwandi Sabo Power Limited                                 ... Petitioner
          Versus
Union of India and others                                  ... Respondents
2. CWP No.7715 of 2020(O&M)
Nabha Power Limited                                         ... Petitioner
        Versus
State of Punjab and others                                 ... Respondents


CORAM:-HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present:     Mr. Ashwani Chopra, Sr. Advocate with
             Ms. Rupa Pathania, Advocate,
             Mr. Satyaveer Singh, Advocate,
             Mr. Vidul Kapoor, Advocate and
             Mr. Aditya Swaroop, Advocate
             for the petitioner in CWP No.7519 of 2020.
             Mr. Akshay Bhan, Sr. Advocate with
             Mr. A.S. Talwar, Advocate
             for the petitioner in CWP No.7715 of 2020.
             Mr. Satya Pal Jain, Addl. Solicitor General of
             India with Mr. Ajay Kalra, Central Govt. Counsel
             for the Union of India.
             Mr. C.L. Pawar, Sr. DAG, Punjab.
             Mr. Pankaj Mulwani, DAG, Haryana.
             Mr. Abhilaksh Grover, Advocate
             for PSPCL.
             Mr. Sehaj Bir Singh, Advocate
             for PSTCL.
                           ***
RAJ MOHAN SINGH, J.

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[1]. Vide this common order/judgment, CWP No.7519

of 2020 titled Talwandi Sabo Power Limited Vs. Union of India

and others and CWP No.7715 of 2020 titled Nabha Power

Limited are being decided. Since common questions of law

and facts are involved, therefore, common fact are being

noticed.

[2]. In both the cases, identical power purchase

agreements were executed. In CWP No.7519 of 2020,

agreement was executed on 01.09.2008, whereas in CWP

No.7715 of 2020, agreement was executed on 18.01.2010.

The terms and conditions of both the power purchase

agreements are identical.

[3]. In CWP No.7519 of 2020, petitioner seeks

issuance of an appropriate writ in the nature of certiorari or

any other appropriate direction to quash notices dated

29.03.2020 and 14.04.2020 issued by Punjab State Power

Corporation Limited/respondent No.3 and also notice and E-

mail dated 16.05.2020 issued by respondent No.4 in the

context of denying the petitioner's right/lawful payments in lieu

of capacity charges under power purchase agreement dated

01.09.2008. Further directions are sought against respondent

No.4 to correct the State Energy Account (SEA) for the month

of March and April 2020, thereby correctly reflecting the

declared capacity of the petitioner's plant.

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[4]. In CWP No.7715 of 2020, petitioner seeks

issuance of an appropriate writ in the nature of certiorari,

seeking quashing of State Energy Account (SEA) for the

month of March 2020 (to the extent of 30th March 2020 and

31st March 2020) and April 2020 issued by Punjab State Load

Dispatch Centre/respondent No.4 to the extent that the

declared capacity/availability of the petitioner's project has

been declared as zero being illegal and factually incorrect.

Further petitioner seeks quashing of notices dated 29.03.2020

and follow up letters dated 14.04.2020, 13.05.2020 and

20.05.2020 issued by the Punjab State Power Corporation

Limited (PSPCL)/respondent No.2 to the petitioner, requesting

the petitioner not to declare availability from its project and

also stating that Punjab State Power Corporation Limited is

relieved from making payment of capacity charges and Late

Payment Surcharge (LPS) on delayed payment of invoice to

the petitioner on the ground of provisions in the power

purchase agreement dated 18.01.2010. Further directions are

sought against respondent No.2 to pay capacity charges to

the petitioner in terms of provisions of power purchase

agreement dated 18.01.2010 and also to quash E-mail notices

dated 01.04.2020, 02.04.2020, 29.05.2020 and similar notices

issued on daily basis by Punjab State Load Dispatch

Centre/respondent No.4, refusing to issue dispatch

instructions to the petitioner being illegal and against law.

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Necessary directions are sought against respondent No.4 i.e.

Punjab State Load Dispatch Centre to correct the State

Energy Account for the months of March and April 2020,

thereby reflecting correct declared capacity/availability of the

petitioner's project.

[5]. Petitioners are generating companies under

Section 2(28) of the Electricity Act, 2003. Petitioners have

executed power purchase agreements for supply of power

from their thermal power plants to Punjab State Power

Corporation Limited (PSPCL) through its Managing Director,

The Mall, PSEB, Head Office, Patiala. Power purchase

agreement in terms of its Article 1 defines Allocated

Contracted Capacity, which means the Contract Capacity

allocated to the Procurer/PSEB/PSPCL as provided in

Schedule 13 thereof subject to adjustment as per the terms of

the agreements. The aforesaid Schedule 13 shows that

Contract Capacity allocated to PSEB/PSPCL/Procurer is

100%. Availability Based Tariff (ABT) shall mean all the

regulations contained in the Central Electricity Regulatory

Commission (terms and conditions of Tariff) Regulations,

2004 as amended from time to time. Availability factor shall

have the meaning ascribed thereto in Availability Based Tariff

(provided that in place of installed capacity and normative

auxiliary consumption it shall be Contractual Capacity).

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Availability Capacity shall have the meaning ascribed thereto

in Availability Based Tariff (ABT).

[6]. Capacity Charge shall have the meaning ascribed

thereto in Schedule 7. Declared Capacity in relation to a Unit

or the Power Station at any time means the net capacity of the

Unit or the Power Station at the relevant time (expressed in

MW at the Interconnection Point) as declared by the Seller in

accordance with the Grid Code and dispatching procedures

as per the Availability Based Tariff.

[7]. Force Majeure Event shall have the meaning

ascribed thereto in Article 12.3(ii)(1). Dispatch Instruction

means any instruction issued by the Procurer through the

SLDC to the Seller, in accordance with applicable Grid Code

and the agreement.

[8]. Grid Code/IEGC means any set of regulations

issued by Appropriate Commission as amended from time to

time and legally binding on the Seller's and the Procurer's

governing the operation of the Grid System or any succeeding

set of regulations/code.

[9]. Quoted Tariff shall mean the sum total of Quoted

Energy Charges and Quoted Capacity Charge. Quoted

Energy Charge shall mean the Charge derived from the Net

Quoted Heat Rate. Quoted Capacity Charge shall mean the

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sum total of Quoted Non Escalable Capacity Charge and

Quoted Escalable Capacity Charge. Quoted Non Escalable

Capacity Charge and Quoted Escalable Capacity Charge

shall have the meaning as ascribed thereto in Schedule 11.

[10]. Power Purchase Agreement prescribed a two-fold

tariff regime i.e. Capacity Charges paid to the generating

company on the basis of Declared Availability of the

generating company irrespective of whether PSPCL and

SLDC have scheduled electricity or not. Energy Charges are

paid to the generating company on the basis of Scheduled

Generation (the actual electricity supplied).

[11]. On 22.03.2020, Government of Punjab ordered a

State- wide lockdown due to COVID-19 outbreak. The

electricity falling under the category of essential services was

exempted from shut down order and it was ordered that the

restrictions shall not be applicable on such essential services.

[12]. On 24.03.2020, Government of India, Ministry of

Home Affairs while exercising powers under Disaster

Management Act, 2005 passed an order restricting activities.

Power generation, transmission and distribution units and

services were kept as essential services.

[13]. On 25.03.2020, Ministry of Power, Government of

India (MOP) also issued an order, directing all the State

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authorities to ensure smooth and uninterrupted power. On

27.03.2020, Ministry of Power issued another order in relation

to its earlier order dated 28.06.2019 regarding payment

security mechanism through Letter of Credit. Ministry of

Power vide its order dated 28.03.2020 under Section 107 of

the Electricity Act, directed the Central Electricity Regulatory

Commission (CERC) that for those projects covered under

Section 63 of the Electricity Act like the petitioner projects,

DISCOMs may claim relief as per force majeure provisions in

the respective power purchase agreements.

[14]. On 29.03.2020, Punjab State Power Corporation

Limited issued two force majeure notices to the petitioners

requesting the petitioner not to declare availability of their

project under the agreements. It was conveyed that PSPCL

was not obliged to pay and disburse capacity charges and

Late Payment Surcharge (LPS) to the petitioners under the

agreements in view of purported lower demand from the

consumers of State of Punjab. On 30.03.2020, Department of

Power, State of Punjab issued an order under Section 108 of

the Electricity Act, 2003 to the Punjab State Electricity

Regulatory Commission (PSERC) to treat the spread of

COVID-19 pandemic and consequent lockdown as a force

majeure event.

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[15]. Petitioners contested the declaration of force

majeure on the ground that the event purportedly claimed by

PSPCL as a force majeure event does not fall under any of

the force majeure events listed under Article 12.3 of the

Power Purchase agreements. PSPCL has no cause of action

to issue the notice invoking Article 12 of the Power Purchase

Agreement as there is no specific clause under the aforesaid

Article 12.3 under which the restrictions can be imposed by

the Government of Punjab for constituting a force majeure

event. Even PSPCL is not an affected party under Article 12.3

of the Power Purchase Agreement. The alleged force majeure

event does not prevent PSPCL from scheduling/procuring

power from generating plants. PSPCL even continues to

schedule power from several other counterparties with which

power purchase agreements were executed. In the present

cases, PSPCL has failed to establish existence of force

majeure event.

[16]. In case of Talwandi Sabo Power Limited, State

Load Dispatch Centre due to invocation of force majeure,

issued notice/E-mail dated 16.05.2020 and stopped

scheduling the power from the petitioner without treating the

declared availability of the petitioner for the purposes of

preparing the State Energy Account in accordance with State

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Grid Code. As a result of that, the petitioner has been denied

its right to capacity charges.

[17]. In case of Nabha Power Limited, State Load

Dispatch Centre stopped issuing dispatch instructions to the

petitioner from 29.03.2020. Petitioner declared its capacity

and capability to produce electricity as per law. State Load

Dispatch Centre sent E-mail dated 01.04.2020 to the

petitioner on the ground that notice regarding curtailing of

power under force majeure condition in view of provisions of

power purchase agreement has already been given to the

petitioner by PSPCL on 29.03.2020 and subsequently PSPCL

is not giving any requirement since the date of issue of said

notice and accordingly schedule is not being provided in the

absence of requirement from PSPCL.

[18]. State Load Dispatch Centre did not issue the

dispatch instructions even on 02.04.2020 and reiterated the

stand that in the absence of PSPCL giving any requirement,

State Load Dispatch Centre is unable to provide dispatch

instructions to the petitioner. Petitioner replied to the E-mail of

State Load Dispatch Centre that in case of no demand of

power from PSPCL, State Load Dispatch Centre is obligated

to issue dispatch instructions as State Load Dispatch Centre

is an independent authority having defined obligations and

duties in law. Even in cases of other generating companies,

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State Load Dispatch Centre continued to accept the declared

capacity of Inter-State Generating Stations (ISGS) supplying

power to respondent No.2, even though similar force majeure

notices were issued by PSPCL in those cases also.

[19]. On 06.04.2020, Ministry of Power issued an

order, clarifying that notwithstanding the lockdown, the

obligation to pay for capacity charges as per power purchase

agreement shall continue. Despite the aforesaid order,

PSPCL and SLDC did not act in accordance with law. The

aforesaid letter dated 06.04.2020 was in consonance with

Section 107 of the Electricity Act, 2003, which prescribed that

in the discharge of its functions, the Central Commission shall

be guided by such directions in matters of policy involving

public interest as the Central Government may give to it in

writing.

[20]. Thereafter, on 07.04.2020, Punjab State Electricity

Regulatory Commission in Suo-Moto Petition No.11 of 2020

also took cognizance of Late Payment Surcharge (LPS) order

issued by the Department of Power, Government of Punjab.

For power generating companies whose tariff has been

adopted by the Commission under Section 63 of the Act, the

Punjab State Electricity Regulatory Commission directed that

PSPCL may claim relief from its obligations regarding the rate

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at which LPS is to be paid as per the force majeure provisions

given in the respective power purchase agreements.

[21]. The stand of the PSPCL is that force majeure

event has led to a situation where PSPCL is unable to perform

its obligations under the agreement and therefore, it would not

be liable to pay any amount towards capacity charges.

[22]. In case of Nabha Power Limited, State Load

Dispatch Centre has issued State Energy Account for the

month of April 2020 on 07.05.2020, wherein the declared

capacity/availability of the petitioner's project was shown as

zero for the entire month of April.

[23]. With this background on record, the present

petitions have been filed for the reliefs claimed therein.

[24]. After filing of the present petitions, matter came up

for hearing on 22.07.2020 and following order was passed:-

"The matter has been taken up through video- conferencing in the light of the pandemic Covid-19 situation and as per instructions.

As per reply filed by respondent No.4-PSTCL, the impugned order passed by respondent No.3-(PSPCL) has been withdrawn vide memo dated 20.05.2020 as reflected in para No.6 of the reply and at this stage, the dispute remains with regard to capacity charges for about two months as noticed in order dated 29.05.2020.

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After hearing the learned counsel for the parties, perusal of the record and considering the nature of issue in question, the Court feels that the matter needs detailed deliberations.

Admitted.

To be heard within three months after resumption of normal functioning of the Court.

In the meantime, the parties are free to explore if the issue in question can be settled amicably.

The petitioner is free to move any application in case the averments made in para No.6 of the reply is found to be against the record.

A photocopy of the order be placed on the connected file.

22.07.2020                                (JITENDRA CHAUHAN)
gsv                                             JUDGE"


[25].        Perusal of the aforesaid order would show that as

per stand taken by the State Load Dispatch Centre, the

dispute remains only with regard to capacity charges.

[26]. Learned counsel for the respondents have

contested the claims of the petitioners on the ground that

events of force majeure are fully applicable to the generating

companies in view of unprecedented situation arising out of

COVID-19 pandemic and the present writ petitions are not

maintainable as the petitioners have alternative remedy under

the Arbitration and Conciliation Act, 1996 as well as before

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Punjab State Electricity Regulatory Commission in terms of

Section 86 of the Electricity Act, 2003 read with Section 17 of

the Power Purchase Agreements.

[27]. Learned counsel for Punjab State Power

Corporation Limited and State Load Dispatch Centre have

contended that Section 86 of the Electricity Act, 2003 is a

special provision for adjudication of the disputes between the

licenses and generating companies. Such disputes can be

adjudicated upon either by the State Commission or by the

person to whom its referred for arbitration. Section 86 of the

Act is to override the general provision of the Arbitration and

Conciliation Act, 1996.

[28]. Learned counsel for the respondents relied upon

Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Ltd.,

2008 AIR (Supreme Court) 1921, A.P. Power Coordination

Committee and others Vs M/s Lanco Kondapalli Power

Ltd. and others, 2016(3) SCC 468, M/s Adani Power Ltd.

Vs. Gujarat Electricity Regulatory Commission and

others, 2016(15) SCC 665, Chairman & Managing Director

Southern Power Distribution Company of Andhra

Pradesh Tirupati and others Vs. Sudalagunta Sugars Ltd.,

2013 AIR (Andhra Pradesh) 1, State of Bihar and others

Vs. Jain Plastics and Chemical Ltd., 2002(1) SCC 216,

Union Construction Co. Pvt. Ltd. Vs. Chief Engineer

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Eastern Command, Lucknow and another, 1960 AIR

(Allahabad) 72, The Empire Jute Co. Ltd. and others Vs.

The Jute Corporation of India Ltd. and another, 2007 (14)

SCC 680, Booz Allen and Hamilton Inc. Vs. SBI Home

Finance Ltd. and others, 2011(5) SCC 532, Rashtriya Ispat

Nigam Ltd. and another Vs. M/s Verma Transport

Company, 2006 (7) SCC 275 and Ashish Gupta Vs. IBP Co.

Ltd. and another, 2006 AIR (Delhi) 57 and contended that

the dispute between licenses and generating companies is to

be decided by the State Commission or the Arbitrator

nominated by it, whereas under Section 11 of the Arbitration

and Conciliation Act, 1996, the Court can refer such disputes

to an arbitrator appointed by it. Harmonious construction of

the provisions of the Electricity Act 2003 and the Arbitration

and Conciliation Act, 1996 would provide that whenever there

is a dispute between a licensee and the generating

companies, only the State Commission or Central

Commission (as the case may be) or Arbitrator nominated by

it, can resolve such a dispute, whereas all other disputes

would be decided in accordance with Section 11 of the

Arbitration and Conciliation Act, 1996. This is also evident

from Section 158 of the Electricity Act, 2003. Power purchase

agreement is a contract between the parties and terms of any

contract are nothing but the agreed terms of the contracted

parties and therefore, the claim arising out of contractual

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obligations cannot be espoused in a writ jurisdiction. Any

breach of contract cannot be made subject matter of writ. The

contractual obligation and enforcement thereto, would give

rise to the disputed questions of rival claims and for that, writ

is not an appropriate Forum.

[29]. I have heard learned counsel for the parties and

with their assistance have also perused the material on

record.

[30]. Admittedly, the surviving claim is with regard to

payment of capacity charges for the relevant period in both

the writ petitions as per power purchase agreements. First of

all, status/functions/obligations of State Load Dispatch Centre

has to be highlighted in the present set of circumstances.

Section 32 of the Electricity Act, 2003 deals with functions of

State Load Dispatch Centre, which reads as under:-

"32. Functions of State Load Despatch Centres-(1) The State Load Despatch Centre shall be the apex body to ensure integrated operation of the power system in a State.

(2) The State Load Despatch Centre shall-

(a) be responsible for optimum scheduling and despatch of electricity within a State, in accordance with the contracts entered into with the licensees or the generating companies operating in that State;

(b) monitor grid operations;

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(c) keep accounts of the quantity of electricity transmitted through the State grid;

(d) exercise supervision and control over the intra- State transmission system; and

(e) be responsible for carrying out real time operations for grid control and despatch of electricity within the State through secure and economic operation of the State grid in accordance with the Grid Standards and the State Grid Code.

(3) The State Load Despatch Centre may levy and collect such fee and charges from the generating companies and licensees engaged in intra-State transmission of electricity as may be specified by the State Commission."

[31]. State Load Dispatch Centre may give such

directions and exercise such supervision and control as may

be required for ensuring the integrated grid operations and for

achieving the maximum economy and efficiency in the

operation of power system in the State. All the persons

connected with the operation of the power system viz.

licensee, generating company and any other person

connected with the operation of the power system, shall

comply with the directions issued by the State Load Dispatch

Centre under Section 33(1) of the Electricity Act, 2003. In turn,

State Load Dispatch Centre shall comply with the directions of

the Regional Load Dispatch System. In case of any dispute

with reference to the quality of electricity or safe, secure and

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integrated operation of the State Grid or in relation to any

direction given under sub-Section (1) of Section 33 of the Act,

it shall be referred to the State Commission for decision.

[32]. As per Punjab State Electricity Regulatory

Commission (Punjab State Grid Code) Regulations, 2013,

State Load Dispatch Centre in addition to the functions as

stated in Section 32 of the Electricity Act has functions

including system operation and control including intra-state

transfer of power, covering contingency analysis and

operations planning on real time basis, scheduling/re-

scheduling of generation, system restoration following grid

disturbances, metering and data collection, compiling and

furnishing date pertaining to system operation and operation

of State Unscheduled Interchange (UI) pool account and State

reactive energy account. The roles and responsibilities of

State Load Dispatch Centre have been discussed in Section

2.3.1 of the aforesaid Regulations, 2013.

[33]. State Load Dispatch Centre has the responsibility

of implementing State Grid Code and shall not unduly

discriminate against or unduly prefer any one or any group of

persons or STU in the conduct of any business.

[34]. Section 2.3.4 of Punjab State Electricity Regulatory

Commission (Punjab State Grid Code) Regulations, 2013

deals with role of distribution licensee.

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[35]. As per Section 2.3.4 (d) of the aforesaid

Regulations, 2013, the distribution licensee shall inform the

SLDC about the details of 15

minutes/hourly/daily/weekly/monthly demand and energy

requirement and also contracts entered into for importing

power from different sources and coordinate with SLDC in real

time operation. It shall follow the directions of SLDC in

scheduling its exchange of power and help in controlling the

operation of the system by adjustment of drawal from the

system. They shall take special care for drawal/injection of

reactive power from/to the State Power System.

[36]. As per Section 6.3.7 of the aforesaid Regulations,

2013, SLDC shall carry out its own demand estimation from

the historical date and weather forecast data from time to

time. All distribution licensees/users and other concerned

persons shall provide relevant data and other information as

required by SLDC for demand estimate. All distribution

licensees/users shall provide to the SLDC their estimates of

demand for the year ahead on monthly-basis at each inter

connection point for the next financial year by 1st October

each year. All distribution licensees/users shall also provide

daily demand for the month ahead at each inter-connection

point by 25th for the next month.

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[37]. As per Section 6.3.8 of the aforesaid Regulations,

2013, all distribution licensees/users shall provide to SLDC on

day ahead basis at 11.00 hours each day their estimated

demand for each 15-minute block for the ensuring day along

with the estimates of load that may be shed when required, in

discrete blocks with the details of arrangements of such load

shedding.

[38]. As per Section 11.2 of the aforesaid Regulations,

2013, State Grid Code deals with the procedures to be

adopted for scheduling of the net injection/drawals of State

Entities on a day ahead basis with the modality of the flow of

information between the SLDC/ALDCs/Power Exchange and

State Entities. The procedure for submission of capability

declaration by each SGS/CPPs/IPPs and submission of

requisition/drawal schedule by other State Entities is intended

to enable SLDC to prepare the despatch schedule for each

SGS/CPPs/IPPs and drawal schedule for each

beneficiary/Distribution Licensee. It also provides

methodology of issuing real time despatch/drawal instructions

and rescheduling, if required, to State Entities along with the

commercial arrangement for the deviations from schedules,

as well as, mechanism for reactive power pricing.

This code also provides the methodology for re-scheduling of

wind and solar energy on three (3) hourly basis and the

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methodology of claiming the Renewal Regulatory charge for

dealing with the variable generation of the wind and solar

energy stations within State. For this, appropriate meters and

Data Acquisition System facility (for real time as well as stored

data) shall be provided for accounting of UI charges and

transfer of information to SLDC.

The provisions contained in this Part are without prejudice to

the powers conferred on SLDC under Sections 32 and 33 of

the Electricity Act, 2003.

[39]. As per Section 11.3.3 of the aforesaid Regulations,

2013, despatch instructions to SGS shall be in standard

format to be finalized by SLDC. These instructions will

recognize declared availability and other parameters that have

been made available by the SGS to SLDC. These instructions

shall include time, Power Station, Generating Units (Total

export in case of CPP), name of operators sending and

receiving the same. Standard despatch instructions may

include:-

o To switch a SGS into or out of Service;

o To schedule generation;

o Details of reserve to be carried on a unit;

o To increase or decrease MVAR generation to

maintain voltage profile as per unit capability at that time;

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o To begin pre-planned Black Start procedures;

o To hold spinning reserve;

o To hold Generating Units of SGS on standby;

o To control MW/MVAR Drawal.

[40]. As per Section 11.3.12 of the aforesaid

Regulations, 2013, it shall be incumbent upon the SGS to

declare the plant capabilities faithfully i.e., according to their

assessment. In case, it is suspected that they have

deliberately over/under declared the plant capability

contemplating to deviate from the schedules given on the

basis of their capability declarations (and thus make money

either as undue capacity charge or as the charge for

deviations from schedule), the SLDC may serve the notice

and ask the SGS to explain the situation with necessary

backup data.

[41]. As per Section 11.3.13 of the aforesaid

Regulations, 2013, the SGS shall be required to demonstrate

the declared capability of its generating station as and when

asked by the SLDC. In the event of the SGS failing to

demonstrate the declared capability, the capacity charges due

to the generator shall be reduced as a measure of penalty.

The quantum of penalty for the first mis-declaration for any

duration/block in a day shall be the charges corresponding to

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two days fixed charges. For the second mis-declaration the

penalty shall be equivalent to fixed charges for four days and

for subsequent mis-declarations, the penalty shall be

multiplied in the geometrical progression over a period of a

month.

[42]. As per Section 11.3.17 of the aforesaid

Regulations, 2013, the SLDC shall be responsible for

computation of actual net injection/drawal of concerned Users,

15 minute-wise, based on the above meter readings.

Subsequently, SLDC will prepare and issue the Unscheduled

Inter-change (UI) account. All computations carried out by

SLDC shall be open to all entities for checking/verifications for

a period of 15 days. In case any mistake/omission is detected,

the SLDC shall forthwith make a complete check and rectify

the same.

[43]. As per Section 11.3.18 of the aforesaid

Regulations, 2013, the operating log books of the generating

station shall be available for review by the SLDC. These

books shall keep record of machine operation and

maintenance.

[44]. As per Section 12.3 of the aforesaid Regulations,

2013, State Load Dispatch Centre has the following

responsibilities:-

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12.3.1 SLDC shall monitor actual power drawal against

scheduled power drawal and regulate internal generation

and demand to maintain this schedule. SLDC shall also

monitor reactive power drawal and availability of

capacitor banks.

12.3.2 Generating Stations within Punjab, other than

ISGS and of BBMB, shall follow the despatch

instructions issued by SLDC.

12.3.3 Distribution licensees, Open Access

Customers and Other Users shall comply with the

instructions of SLDC for managing load & reactive power

drawal as per system requirement.

[45]. As per Section 14.1.14 of the aforesaid

Regulations, 2013, in the preparation of energy accounts,

SLDC shall take into consideration the following aspects:-

o Agreements for supply and/or transmission of power,

bilateral agreements, short term and spot purchases

affected by any licensee and User;

o Policy guidelines or decisions of State Grid Code

Review Committee;

o Decisions/directives of the Commission;

o Components of tariff as approved by the Commission;

and

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o Such accounts by BBMB and NRPC.

[46]. As per Section 14.1.6 of the aforesaid Regulations,

2013, Monthly State Energy Accounts for Punjab shall be

prepared by SLDC by 7th of every month and shall be

conveyed to all concerned for raising bills. Such energy

accounts shall be subject to inspection/verification/checking

and raising any objection within 15 days of date of issue. If no

objection is raised, energy accounts shall be finalized. In

case, any objection is raised, same shall be deliberated in

Commercial and Metering Committee and finalized as per

their decision. Supplementary bills/credit note shall be raised

accordingly.

[47]. Perusal of the aforesaid facts would show that

State Load Dispatch Centre has definite obligations under the

law and these obligations are independent and free from any

overlapping obligations of any other person. State Load

Dispatch Center has to act independently on defined

parameters as laid down under Section 32 of the Electricity

Act and under different Sections of Punjab State Electricity

Commission (Punjab State Grid Code) Regulations, 2013.

[48]. As per Central Electricity Regulatory Commission

(Terms & Conditions of Tariff) Regulations, 2004, "Availability"

in relation to a thermal generating station for any period

means the average of the daily average Declared Capacities

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(DCs) for all the days during that period expressed as a

percentage of the installed capacity of the generating station

minus normative auxiliary consumption in MW and shall be

computed in accordance with a specific formula.

[49]. Declared Capacity means the capability of the

generating station to deliver ex-bus electricity in MW declared

by such generating station in relation to any period of the day

or whole of the day, duly taking into account the availability of

fuel.

[50]. Scheduled Generation at any time or for any period

or time block means schedule of generation in MW ex-bus

given by the Regional Load Despatch Centre.

[51]. Regulation 15 of the aforesaid Regulations of 2004

deals with components of tariff. Section 15 of Central

Electricity Regulatory Commission (Terms & Conditions of

Tariff) Regulations, 2004 is reproduced hereasunder:-

"15. Components of Tariff: (1) Tariff for sale of electricity from a thermal power generating station shall comprise of two parts, namely, the recovery of annual capacity (fixed) charges and energy (variable) charges.

(2) The annual capacity (fixed) charges shall consist of:

(a) Interest on loan capital;

(b) Depreciation, including Advance Against Depreciation;

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(c) Return on equity;

(d) Operation and maintenance expenses; and

(e) Interest on working capital.

(3) The energy (variable) charges shall cover fuel cost."

[52]. Regulation 16 of the aforesaid Regulations, 2004

deals with the norms of operation, which are dependent upon

target availability for recovery of full capacity (fixed) charges,

target plant load factor for incentive, gross station heat rate,

secondary fuel oil consumption, auxiliary energy consumption

and stabilization period.

[53]. Scheduling as given in Regulation 27 of the

aforesaid Regulations, 2004 if read in conjunction with Indian

Electricity Grid Code, then it would give following methodology

of scheduling and calculating availability:-

(i) The generator shall make an advance declaration of capability of its generating station. The declaration shall be for that capability which can be actually made available.

The declaration shall be for the capability of the generating station to deliver ex-bus MW for the next day either as one figure for the whole day or as different figures for different periods of the day. The capability as declared by the generator, also referred to as the declared capacity, shall form the basis of generation scheduling.

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(ii) While making or revising its declaration of capability, the generator shall ensure that the declared capability during peak hours is not less than that during other hours. However, exception to this rule shall be allowed in case of tripping/re-synchronization of units as a result of forced outage of units.

(iii) Generation scheduling shall be done in accordance with the operating procedure stipulated in the Indian Electricity Grid Code.

(iv) Based on the declaration of the generator, the Regional Load Dispatch Centre shall communicate their shares to the beneficiaries out of which they shall give their requisitions.

(v) Based on the requisitions given by the beneficiaries and taking into account technical limitations on varying the generation and also taking into account transmission system constraints, if any, the Regional Load Dispatch Centre shall prepare the economically optimal generation schedules and drawl schedules and communicate the same to the generator and the beneficiaries.

The Regional Load Dispatch Centre shall also formulate the procedure for meeting contingencies both in the long run and in the short run (Daily scheduling).

(vi) The scheduled generation and actual generation shall be ex-bus at the generating station. For beneficiaries, the scheduled and actual net drawals shall be at their respective receiving points.

(vii) For calculating the net drawals schedules of beneficiaries, the transmission losses shall be

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apportioned in their drawals schedules for the time being.

Provided that a refinement may be specified by the Commission in future depending on the preparedness of the respective Regional Load Dispatch Centre.

(viii) In case of forced outage of a unit, the Regional Load Dispatch Centre shall revise the schedules on the basis of revised declared capability. The revised declared capability and the revised schedules shall become effective from the 4th time block, counting the time block in which the revision is advised by the generator to be the first one.

(ix) In the event of bottleneck in evacuation of power due to any constraint, outage, failure or limitation in the transmission system, associated switchyard and sub- stations owned by the Central Transmission Utility or any other transmission licensee involved in inter-state transmission (as certified by the Regional Load Dispatch Centre) necessitating reduction in generation, the Regional Load Dispatch Centre shall revise the schedules which shall become effective from the 4th time block, counting the time block in which the bottleneck in evacuation of power has taken place to be the first one. Also, during the first, second and third time blocks of such an event, the scheduled generation of the generating station shall be deemed to have been revised to be equal to actual generation, and the scheduled drawals of the beneficiaries shall be deemed to have been revised to be equal to their actual drawals.

(x) In case of any grid disturbance, scheduled generation of all the generating stations and schedules

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drawal of all the beneficiaries shall be deemed to have been revised to be equal to their actual generation/drawal for all the time blocks affected by the grid disturbance. Certification of gird disturbance and its duration shall be done by the Regional Load Dispatch Centre.

(xi) Revision of declared capability by the generator(s) and requisition by beneficiary(ies) for the remaining period of the day shall also be permitted with advance notice. Revised schedules/declared capability in such cases shall become effective from the 6th time block, counting the time block in which the request for revision has been received in the Regional Load Dispatch Centre to be the first one.

(xii) If, at any point of time, the Regional Load Dispatch Centre observes that there is need for revision of the schedules in the interest of better system operation, it may do so on its own, and in such cases, the revised schedules shall become effective from the 4th time block, counting the time block in which the revised schedule is issued by the Regional Load Dispatch Centre to be the first one.

(xiii) Generation schedules and drawal schedules issued/revised by the Regional Load Dispatch Centre shall become effective from designated time block irrespective of communication success.

(xiv) For any revision of scheduled generation, including post facto deemed revision, there shall be a corresponding revision of scheduled drawals of the beneficiaries.

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(xv) A procedure for recording the communication regarding changes to schedules duly taking into account the time factor shall be evolved by the Central Transmission Utility.

[54]. Regulation 28 of the aforesaid Regulations, 2004

deals with demonstration of declared capability. The

generating company may be required to demonstrate the

declared capability of its generating station as and when

asked by the Regional Load Despatch Centre of the region in

which the generating station is situated.

[55]. Regulation 30 of the aforesaid Regulations, 2004

deals with billing and payment of capacity charges. Billing and

payment of capacity charges shall be done on monthly basis.

Each beneficiary shall pay the capacity charges in proportion

to its percentage share in installed capacity of the generating

station. Beneficiaries shall have full freedom for negotiating

any transaction for utilization of their capacity shares. In such

cases, the beneficiary having allocation in the capacity of the

generating station shall be liable for full payment of capacity

charges and energy charges corresponding to its total

allocation and schedule respectively. If any capacity remains

un-requisitioned during day-to-day operation, the Regional

Load Despatch Centre shall advise all beneficiaries in the

region and the other Regional Load Despatch Centres so that

such capacity may be requisitioned through bilateral

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arrangements either with the concerned generating company

or with the concerned beneficiaries under intimation to the

Regional Load Despatch Centre. The capacity charges shall

be paid to the beneficiaries including those outside the region

to the generating company every month in accordance with

the prescribed formulas.

[56]. Perusal of the aforesaid provisions would show that

State Load Dispatch Centre has definite obligations at

different stages and capacity charges are independent of

actual energy consumed by the beneficiary.

[57]. State Load Dispatch Centre is supposed to function

as an independent body under the Electricity Act 2003 and as

per different regulations as discussed in the preceding paras.

Power purchase agreement between the parties in its very

nature cannot be held to be purely a contract giving civil

consequence and pure contractual dispute.

[58]. In the facts and circumstances of the present case,

primary dispute revolves around inaction on behalf of Punjab

State Load Dispatch Centre in not performing its part of

obligation in terms of schedule and other obligations. There is

no dispute as such against PSPCL so far as statutory

obligations on the part of Punjab State Load Dispatch Centre

are concerned. In order to maintain the writ petition, the Court

has to consider the nature of agreement as to whether the

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same is in relation to personal interest of the party or the

corporation being instrumentality of the State as entered into

such agreement in public interest. The Ministry of Power,

Government of India issued guidelines for procurement of

power through competitive bidding under Section 63 of the

Electricity Act, 2003. Section 63 of the Act provides

notwithstanding anything contained in Section 62 of the Act,

the Appropriate Commission shall adopt the tariff if such tariff

has been determined through transparent process of bidding

in accordance with the guidelines issued by the Central

Government. The Central Government has issued guidelines

for determination of tariff by bidding process for procurement

of power by distribution licensees. The aforesaid guidelines

have provided in detail about the procedure for invitation of

the bid, the tariff structure, capacity charges, energy charges,

the bidding process, bid submission and evaluation and award

of contract in conclusion. Power purchase agreement should

be in consonance with Section 63 of the Act and tariff has to

be determined through transparent process of bidding in

accordance with the guidelines. Therefore, it can be safely

concluded that the entire process is guided and controlled by

the guidelines framed by the Central Government and the

contract entered into between the licensor and the licensee is

more akin to a standard form of contract which has to pass

the test laid down under Section 63 of the Electricity Act. The

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contract in question is strictly based on the guidelines issued

by the Central Government and no party can deviate from the

said guidelines unless such deviation is approved by the

appropriate Commission. The power purchase agreements

entered into between the petitioners and PSPCL cannot be

said to be a purely private contracts. Even the enormity of the

project and the cost involved in building a power plant would

have a public character element, looking into the fact that the

contract was for supply of very high power/energy and that

would be a project in public interest.

[59]. In view of aforesaid position, power purchase

agreement is an agreement of such nature, which would have

a public interest element, which is controlled and guided by

relevant statutory provisions and dispute pertaining to the

interpretation or otherwise of such a contract, would be

amenable to the writ jurisdiction of the High Court. Reference

can be made to Reliance Power Ltd. Vs. State of UP, 2019

SCC Online All 4845.

[60]. In view of ratio laid down in M/s Hindustan Sugar

Mills Vs. State of Rajasthan and others, 1981 AIR (SC)

1681, Sanjeev Kumar Dwivedi Vs. State of Bihar and

others, 2006(7) RCR (Civil) 765 and ABL International Ltd.

and another Vs. Export Credit Guarantee Corporation of

India Ltd. and others, 2004 (3) SCC 553, the instrumentality

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of State has to act for the public good. Any action contrary to

the public good and interest unfairly and unreasonably, would

violate constitutional guarantee under Article 14 of the

Constitution of India. Services rendered by the petitioners are

not gratuitous in nature, rather the work done by the

petitioners is for public good. In such cases, even claim

arising out of contractual obligations would be amenable to

the writ jurisdiction of the High Court. The existence of

purported alternative remedy under the statue does not oust

the jurisdiction of the High Court under Article 226 of the

Constitution of India in view of ratio laid down in Balkrishna

Ram Vs. Union of India, 2020(2) SCC 442.

[61]. The impugned actions on behalf of PSPCL and

SLDC are blatant defiance of the order passed by the Ministry

of Power on 06.04.2020, directing all the distributing

companies to ensure that the obligation to pay for the capacity

charges as per power purchase agreement shall continue.

Despite the expressed direction given by the Ministry of

Power, the respondents have not acted in accordance with

law due to mala fides and arbitrariness and the impugned

actions are violative of Articles 14, 19 and 21 of the

Constitution of India.

[62]. The present writ petitions deal with the questions of

enforcement under the Disaster Management Act, 2005 and

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such reliefs are not capable of being adjudicated by the

Punjab State Electricity Regulatory Commission. The facts are

not in dispute. There is no dispute as such with PSPCL. The

dispute is only in respect of inaction on behalf of Punjab State

Load Dispatch Centre, who has not done its legal obligation

under the Act. The aforesaid authority is not even privy to

power purchase agreement, therefore, the redressal of any

such dispute before Punjab State Electricity Regulatory

Commission cannot be effectively done. PSPCL and SDLC

are independent statutory bodies under the Electricity Act and

are supposed to function independently as per defined

parameters laid down in Electricity Act as well as in Punjab

State Electricity Regulatory Commission (Punjab State Grid

Code) Regulations, 2013. PSPCL and SLDC have

discriminated the petitioners while not treating them alike with

other companies like NTPC etc., who are similarly situated

and have been granted necessary reliefs. Even in those cases

also, force majeure under the power purchase agreement was

invoked.

[63]. Under the Electricity Act, Punjab State Load

Dispatch Centre is legally bound to record the declared

capacity/capacity charges of the petitioners. The relief

involves in the present writ petition is against the Punjab State

Load Dispatch Centre to record the petitioners declared

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capacity for the relevant period, during which force majeure

was declared/invoked.

[64]. In view of aforesaid, the writ petitions is

maintainable. The objection with regard to earlier litigation in

respect of penalty imposed upon Talwandi Sabo Power

Limited and redressal thereof in the Appropriate Forum i.e.

Punjab State Electricity Regulatory Commission has to be

simply noted for the sake of information only. In that case,

there was no force majeure event. The litigation was in

respect of deduction of amount by the Corporation towards

penalty in the bill of the year 2017. CWP No.10553 of 2017

titled Talwandi Sabo Power Limited Vs. State Grid Code

Review Committee and others was decided as per consensus

and the matter was relegated to the Punjab State Electricity

Regulatory Commission.

[65]. In the instant case, there is no such consensus

arrived at between the parties for relegation before Punjab

State Electricity Regulatory Commission under Section 86 of

the Electricity Act, 2003 read with Article 17 of the Power

Purchase Agreement. The present dispute is purely rested

upon statutory role of Punjab State Load Dispatch Centre,

therefore, the petitioners can maintain the present writ

petitions.

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[66]. So far as the objection with regard to alternative

remedy under Section 8 of the Arbitration and Conciliation

Act, 1996 is concerned, the same is unsustainable as it is a

settled law that presence of an arbitration clause in an

agreement, cannot oust the jurisdiction of the Writ Court in

view of ratio laid down in Harbans Lal Sahni Vs. Indian Oil

Corporation, (2003) 2 SCC 107 and Ramjee Power

Construction Vs. Union of India, 2006(86) DRJ 304.

[67]. Admittedly, there is no arbitration clause between

the petitioners and Punjab State Load Dispatch Centre. Even

the Hon'ble Apex Court in ABL International Limited and

another case (supra) has held that a writ petition involving a

consequential claim of monetary relief is also maintainable.

[68]. The impugned actions on behalf of Punjab State

Load Dispatch Centre are contrary to the decision dated

06.04.2020 passed by the Ministry of Power, wherein it has

been expressly stated that notwithstanding the lockdown, the

obligation to pay for capacity charges as per power purchase

agreement shall continue. Despite the aforesaid decision,

PSPCL has not withdrawn impugned notices and SLDC has

not acted in terms of defined duties arising out of Electricity

Act, 2003 and Punjab State Electricity Regulatory

Commission (Punjab State Grid Code) Regulations, 2013.

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The orders passed by the Ministry of Power have the force of

law and are binding in nature.

[69]. As per Article 7 of the Power Purchase Agreement,

parties to the agreement shall comply with the provisions of

applicable law, which includes the orders passed by the

Ministry of Power in the given context. Inaction on behalf of

Punjab State Load Dispatch Centre is in blatant disregard to

the order dated 06.04.2020 passed by the Ministry of Power

and the aforesaid order has stated in the notice dated

14.04.2020 that the said order relates to stoppage of payment

by DISCOMs against scheduled power. However, the order of

Ministry of Power dated 06.04.2020 categorically stated that

the obligation to pay capacity charges as per power purchase

agreement shall continue. Similar contentions were made by

other State DISCOMs which have been rejected in the

following cases:-

(i) Jhabua Power Ltd. Vs. MP Power Management Co.

Ltd, order dated 18.11.2021 in Petition No.10 of 2021

[MPERC]-No further appeal was filed to APTEL.

(ii) GGMR Warora Energy Ltd. Vs. DNH Power

Distribution Co. Ltd., order dated 20.01.2022 in

Petition No.594/MP/2020 [CERC].

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[70]. The impugned actions on behalf of PSPCL and

PSLDC are contrary to the guidelines issued by the Ministry of

Home Affairs under the Disaster Management Act, 2005.

Section 72 of the Disaster Management Act overrides any

other law for the time being in force. On the one hand, the

petitioners were directed to remain available to generate

power under Disaster Management Act, 2005 (and expose

itself to criminal prosecution for violation), whereas on the

other hand, PSPCL has invoked force majeure and denying

the lawful claims of the petitioners while complying with the

provisions of Disaster Management Act, 2005 and guidelines

issued by the competent authority. The impugned actions

have no rational basis or intelligible differentia for such

discrimination, in which the petitioners have been chosen,

whereas others have been granted similar reliefs despite

invoking force majeure by PSPCL. Punjab State Power

Corporation Limited has not been accepting the declared

capacity of the petitioners and in case of Nabha Power

Limited, the same cannot be declared to be zero. Even

insufficiency of finances or funds or the agreement becoming

onerous to perform is covered under force majeure exclusions

in terms of Article 12.4 of the Power Purchase Agreement.

PSLDC has not accepted the declared capacity of the

petitioners and the National Regional Load Dispatch Centre

has accepted the declared capacity of the similarly placed

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powers generating companies even though force majeure

notices were issued to such companies as well.

[71]. It can be noticed that impugned notices are

contrary to the terms of the Power Purchase Agreement

inasmuch as that PSPCL has invoked force majeure on the

ground of "impact on cash flows" and "financial constraints". If

the aforesaid assertion is tested at the threshold of Article

12.4 of the Power Purchase Agreement, where any

"insufficiency of finances or funds or the agreement

becoming onerous to perform" is expressly excluded as a

force majeure event. The reduction in load/demand in the

State of Punjab due to imposition of lockdown, does not fall

under the ambit of force majeure as the same does not affect

performance of PSPCL for fulfilling the obligations arising out

of Power Purchase Agreement. The same grounds were

highlighted by other State DISCOMs, which have been

rejected in Jhabua Power Ltd. case (supra) and GMR

Warora Energy Ltd case (supra). In the event of agreement

becoming onerous to perform, it does not qualify as an event

of force majeure and there has to be a legal or physical

impossibility in procuring power from the petitioners in view of

ratio laid down in Energy Watchdog Vs. CERC, (2017) 14

SCC 80. Capacity charges are unfettered even in the event of

invocation of force majeure.

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[72]. In DNH Power Vs. NTPC, 2018 SCC Online

CERC 100, it was held that if the notice of invocation of force

majeure is bad in law or not in consonance with Power

Purchase Agreement, then the capacity charges must be

payable. Capacity charges are different under the Grid Code

itself. Capacity charges are dependent upon many factors,

which will contribute in order to establish capacity. The actual

consumption thereof is something different for which the

energy has to be assessed towards monetary consideration.

[73]. In case of Talwandi Sabo Power Limited, issuance

of multiple notices by PSPCL alleging force majeure is nothing

but an attempt to improve its argument with regard to the

alleged force majeure event. PSPCL vide its notice dated

14.04.2020, raised new grounds in an attempt to justify the

invocation of the force majeure event, which were absent in

the previous notice dated 29.03.2020. Such an attempt cannot

be permitted as the same is an attempt diluting its earlier

stance in view of ratio laid down in Mohinder Singh Gill and

another Vs. The Chief Election Commissioner, New Delhi

and others, (1978) 1 SCC 305 and State of Punjab Vs.

Bandeep Singh, (2016) 1 SCC 724.

[74]. Evidently, as per Ministry of Home Affairs notice

dated 24.03.2020, power generation, transmission and

distribution units and services were exempted from the

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lockdown. PSPCL issued the impugned notice dated

29.03.2020 in utter disregard to the aforesaid order dated

24.03.2020. The alleged drastic reduction in load/demand

would not constitute a force majeure event under the Power

Purchase Agreement. PSPCL in other cases even after

issuance of force majeure notices, has paid the capacity

charges to the similarly situated generating companies by

acknowledging the fact that the alleged drastic reduction in

load/demand, does not constitute a force majeure event and

that only lend credence to the fact that PSPCL and PSLDC

have acted in wholly illegal and arbitrary manner.

[75]. Capacity charges cannot be denied to the

petitioners. The obligation to pay capacity charges is

sacrosanct and the same cannot be repudiated even in the

case of invocation of force majeure event by PSPCL. Capacity

charges include various expenditures such as cost towards

financial obligations of the project, salary of direct and indirect

employees, consumables (excluding coal), operation and

maintenance etc.

[76]. Perusal of Articles 4.3 and 4.4 of the Power

Purchase Agreement would show that even in case of non-

scheduling of power declared available by the petitioners,

PSPCL is liable to pay capacity charges. Article 4.3.1 of the

Power Purchase Agreement would show that the Procurer

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would pay the tariff for all of the available capacity upto the

contracted capacity and scheduled energy of the power

station according to its then existing contract capacity,

throughout the term of this agreement. In terms of Article 4.3.2

of the Power Purchase Agreement, the Seller shall sell all the

available capacity upto the contracted capacity of the power

station to the Procurer pursuant to dispatch instructions,

unless otherwise, instructed by the Procurer. Under Article

4.4.3 of the Power Purchase Agreement, if the Procurer does

not avail of power upto the available capacity provided by the

Seller and the provisions of Article 4.4.2 of the Power

Purchase Agreement have been complied with (permission to

the Seller to sell power being part of available capacity of the

power station to third party), the Seller shall be entitled to sell

such available capacity not procured, to any person without

losing the right to receive the capacity charges from the

Procurer for such un-availed available capacity.

[77]. In the light of aforesaid contractual position, the

petitioners have absolute right to claim capacity charges in

terms of Articles 4.3 and 4.4 of the Power Purchase

Agreements. Force Majeure in terms of Article 12 of the

Power Purchase Agreements, does not envisage such

provision for non-payment of capacity charges. The parties

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cannot resile from their payment obligations on account of

force majeure.

[78]. The action of PSLDC is found to be contrary to

State Grid Code. Under Regulations 11.3.10, 11.3.12 and

11.3.13 of the Punjab Grid Code and Article 8.3 of the Power

Purchase Agreements, the petitioners are duty bound to

correctly declare their availability/declared capacity every day

corresponding to their capabilities to generate electricity.

PSLDC in turn, is duty bound to consider the declared

capacity and prepare the SEA accordingly. PSLDC cannot

deviate from its statutory obligations in this regard.

[79]. Section 32 of the Electricity Act, 2003 has obligated

Punjab State Load Dispatch Centre to discharge its statutory

functions being responsible for optimum scheduling and

dispatch of electricity within a State, in accordance with the

contracts entered into with the licensees or the generating

companies operating in that State. Punjab State Load

Dispatch Centre is an independent body and is not supposed

to act on the instructions of PSPCL.

[80]. Regulation 14.1.6 of the Punjab State Electricity

Regulatory Commission (Punjab State Grid Code)

Regulations, 2013 specifies that Monthly State Energy

Accounts for Punjab shall be prepared by SLDC by 7th of

every month and shall be conveyed to all concerned for

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raising bills. Such energy accounts shall be subject to

inspection/verification/checking and raising any objection

within 15 days of date of issue. If no objection is raised,

energy accounts shall be finalized. In case, any objection is

raised, same shall be deliberated in Commercial and Metering

Committee and finalized as per their decision. Supplementary

bills/credit note shall be raised accordingly. In the aforesaid

Regulation, Commercial and Metering Committee (CMC) is

the designated authority to deliberate upon the issue and

decide the same in case, objection is raised within the

prescribed time.

[81]. For the reasons recorded hereinabove, I am of the

considered opinion that Punjab State Load Dispatch Centre

has not performed its legal obligation as per mandate of the

Electricity Act, 2003, Power Purchase Agreements and

Punjab State Electricity Regulatory Commission (Punjab State

Grid Code) Regulations, 2013. The inaction on behalf of

Punjab State Load Dispatch Centre is liable to be

deprecated. The impugned actions/notices are hereby

quashed. However, Punjab State Load Dispatch Centre shall

proceed to act in accordance with defined duties/obligations

under the Electricity Act, 2003, Power Purchase Agreements

and Punjab State Electricity Regulatory Commission (Punjab

State Grid Code) Regulations, 2013 in the context of

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scheduling the energy. In case of any objection in terms of

Regulation 14.1.6 of the Punjab State Electricity Regulatory

Commission (Punjab State Grid Code) Regulations, 2013,

consequent action would follow.

[82]. With these observations, both the writ petitions are

allowed. The issue is relegated to Punjab State Load Dispatch

Centre for doing the needful in accordance with law.

                                          (RAJ MOHAN SINGH)
                                              JUDGE
04.07.2022
Prince

Whether reasoned/speaking                              Yes/No
Whether reportable                                     Yes/No




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