Energy Watchdog Vs. Central Electricity Regulatory Commission and Ors. Etc.
[Civil Appeal Nos.5399-5400 of 2016]
Prayas (Energy Group) Vs. Central Electricity Regulatory Commission and Ors.
[Civil Appeal No.5347 of 2016]
Prayas (Energy Group) Vs. Central Electricity Regulatory Commission and Ors.
[Civil Appeal No.5348 of 2016]
Punjab State Power Corpn. Ltd. Vs. Coastal Gujarat Power Ltd. & Ors.
[Civil Appeal No.5364 of 2016]
Ajmer Vidyut Nigam Ltd. and Ors. Vs. Central Electricity Regulatory Commission and Ors.
[Civil Appeal No.5346 of 2016]
Maharashtra State Electricity Distribution Company Ltd. Vs. Central Electricity Regulatory Commission and Ors.
[Civil Appeal Nos.5351-5352 of 2016]
GRIDCO LTD. Vs. GMR - Kamalanga Energy Ltd. and Ors.
[Civil Appeal No.5415/2016]
M/S. Coastal Gujarat Power Ltd. Vs. Central Electricity Regulatory Commission and Ors.
[Civil Appeal Nos.9635-9642 of 2016]
M/S Coastal Gujarat Power Ltd. Vs. Central Electricity Regulatory Commission and Ors.
[Civil Appeal No.9035 of 2014]
R.F. NARIMAN, J.
1. The present appeals arise from a judgment of the Appellate Tribunal for Electricity dated 7th April, 2016. The facts necessary to appreciate the issues which arise in the present case, which will cover all the cases before us, will be taken only from Civil Appeal No.5348 of 2016, namely Prayas (Energy) Group vs. Central Electricity Regulatory Commission.
2. Section 63 of the Electricity Act, 2003 provides for procurement of power and determination of tariff by a transparent competitive bidding process. Once this is done, the appropriate Commission is to "adopt" the tariff which is accepted in the competitive bid subject to guidelines that are made by the Central Government. On 19th January, 2005, the Central Government issued detailed guidelines under this provision, which were amended from time to time. On 1st February, 2006, Gujarat Urja Vikas Nigam Limited (GUVNL) issued a public notice inviting proposals for supply of power on long term basis under three different competitive bid processes.
The participating bidders were to decide on the tariff and quote such tariff after competing against each other. The bidders were entitled to quote escalable or non-escalable tariff or partly escalable and partly non- escalable tariff, as was considered appropriate by them to cover their respective risks so as to obtain whatever returns are available to them. The best levelised tariff as per certain pre-disclosed criteria was to be followed in order to arrive at the lowest tender.
3. Haryana Utilities also initiated a separate competitive bidding process for purchase of 2000 MW on a long term basis. This was done on 25th May, 2006. The participating bidders were also entitled to quote bids on the lines of the GUVNL public notice. Both the Gujarat Electricity Regulatory Commission and the Haryana State Regulatory Commission approved the bid documents and the process proposed by GUVNL and the Haryana Utilities, after which Requests for Proposal were issued by both of them.
On 2nd/4th January, 2007, Adani Enterprises Consortium submitted its bid for generation and supply of 1000 MW to GUVNL, quoting a levelised tariff of Rs.2.3495/kWh (Rs.1/kWh as the capacity charge and Rs.1.3495/kWh as non- escalable energy charge). In the bid, the Consortium indicated that the lead member, Adani Enterprises, had an arrangement for indigenous coal requirement of the project with Gujarat Mineral Development Corporation, as the said Corporation had been allotted a certain coal block in the State of Chhattisgarh.
Also, a Memorandum of Understanding was entered into between Adani Enterprises Ltd. and a German Company for supply of non- coking coal of 3 to 5 million tons (imported coal) on a long term basis till the year 2032. A similar Memorandum of Understanding was also entered into between Adani Enterprises and a Japanese agent for supply of 3 to 5 million tons of coal again on a long term basis. The two Memoranda of Understanding were attached to the bid submitted by Adani Enterprises.
4. On 11th January, 2007, the Adani Enterprises Consortium was selected by GUVNL as the successful bidder for supply of 1000 MW of power and a Letter of Intent was issued in its favour. On 2nd February, 2007, a Power Purchase Agreement was entered into between GUVNL and Adani Power and this was for supply of power from a power project being set up at Korba in Chhattisgarh. This was changed to a Mundra Project in Gujarat. On 18th April, 2007, a supplementary PPA was signed to this effect.
5. As far as Haryana is concerned, Adani Power submitted their bid for supply of 1425 MW of power to Haryana Utilities on 24th November, 2007. This was at a levelised tariff of Rs.2.94/kWh from the Mundra Power Project. The energy charges quoted were non-escalable. Adani Power was declared as the successful bidder in Haryana for supply of 1424 MW contracted capacity on 17th July, 2008 and a Letter of Intent was issued. Two separate PPAs were executed by Adani Power with two Haryana entities for supply of 712 MW of power to each of them from the Mundra Power Project.
The Haryana State Commission adopted the tariff under Section 63 of the Electricity Act on 31st July, 2008 (The Gujarat State Commission had adopted the tariff under Section 63 for supply of power to GUVNL on 20th December, 2007). An important part of the case on behalf of the respondents is that a change in law in Indonesia took place in 2010 and 2011, which aligned the export price of coal from Indonesia to international market prices instead of the price that was prevalent for the last 40 years.
This being the case, in both the cases, Adani Power filed a petition before the Central Electricity Regulatory Commission being Petition No.155 of 2012 on 5th July, 2012 under Section 79 of the Electricity Act seeking relief on the score of the impact of the Indonesian Regulation to either discharge them from the performance of the PPA on account of frustration, or to evolve a mechanism to restore the petitioners to the same economic condition prior to occurrence of the change in law.
6. On 16th October, 2012, the Central Commission held that the Power Purchase Agreements entered into by Adani in both the cases constituted a composite scheme for generation and sale of electricity as envisaged under Section 79(1)(b) of the Electricity Act. This being so, it held that it was the appropriate Commission under the Act and not the respective State Commissions, which had jurisdiction in the matter. A review petition against this order was dismissed on 16th January, 2013.
7. On 2nd April, 2013, the Central Commission passed an order, whereby the claim of Adani Power on the grounds of force majeure and/or change in law was held not to be admissible. However, the Commission held that in exercise of the regulatory powers provided under Section 79 of the Act, the Central Commission can provide redressal of grievances to generating companies, considering the larger public interest, and hence constituted a committee to look into the alleged difficulties faced by Adani and to find an acceptable solution thereto.
8. On 16th August, 2013, pursuant to the order dated 2nd April, 2013, the Committee constituted by the Commission submitted a report. Based on the Committee's report, on 21st February, 2014, the Central Commission proceeded to grant compensatory tariff. Appeals and cross-appeals were filed against this order, including cross objections. On 1st August, 2014, cross-objection filed by Adani Power was rejected by the Appellate Tribunal as not maintainable.
On 31st October, 2014, the Appellate Tribunal rejected the prayer for condonation of delay and consequently Appeal No. 10016 of 2014 was filed by Adani Power. Against this order, Adani Power filed an appeal before the Supreme Court, and this Court, in its order dated 31st March, 2015 held : "the Appellant (Adani Power) is entitled to argue any proposition of law, be it "force majeure" or "change in law" in support of the order dated 21.2.2014 quantifying the compensatory tariff, the correctness of which is under challenge before the Appellate Tribunal in Appeal No.98 of 2014 and Appeal No.116 of 2014 preferred by the respondents, so long as such argument is based on the facts which are already pleaded before the Central Commission."
9. Finally, the Appellate Tribunal on 7th April, 2016, passed the impugned judgment in all the aforesaid cases before us. The Tribunal held, agreeing with the Commission, that generation and sale of power by Adani Power to GUVNL and Haryana Utilities was a composite scheme within the meaning of Section 79(1) (b) of the Act and that, therefore, the Central Commission would have jurisdiction to proceed further in the matter.
The Appellate Tribunal considered the Supreme Court order dated 31st March, 2015 and felt that the argument of force majeure and change in law could be gone into by it. It ultimately concluded, having regard to the law on frustration contained in the Indian Contract Act, 1872 and the relevant provisions of the PPAs, that force majeure was made out on the facts of these cases and reversed the Commission on this score.
It also reversed the Commission on exercise of regulatory powers under Section 79, stating that these powers could not be exercised once there was a PPA entered into under Section 63 of the Act. It also held that change in law provisions do not apply to foreign law and, therefore, changes in Indonesian law did not come within the scope of the provisions. Insofar as changes in Indian law were concerned, it held that the Government Policies that were relied upon, do not constitute 'law'. Accordingly, the matter was remanded to the Commission to find out the impact of the force majeure event to grant compensatory tariff. The Commission by its order dated 6.12.2016 has arrived at a certain determination as to compensatory tariff to be granted on account of force majeure.
10. We have heard learned counsel for the parties. On behalf of the appellants Senior Counsel Shri Ramachandran, and Shri Prashant Bhushan have argued that the liberty given to Adani Power by the order dated 31st March, 2015 of this Court was only limited to support the quantification of compensatory tariff granted by the Central Commission by its order dated 21st February, 2014. Hence, Adani Power is not entitled to raise the issue of force majeure and change in law as a substantive issue, the force majeure claim and the change in law claim having been rejected by the Central Commission in its earlier order; and there being no valid appeal against the said order, force majeure and change in law cannot be gone into.
It is further argued, in the alternative, that in any case, force majeure either under Section 56 of the Indian Contract Act, 1872 or under clauses 12.3 and 7 of the respective PPAs make it clear that it must be an unforeseen event or circumstance that wholly or partly prevents the affected party in the performance of its obligations under the agreement. According to learned counsel, Adani voluntarily decided to quote energy charges as non-escalable in order to be competitive and, therefore, get the award of the contract. It cannot now, in the guise of being affected by force majeure, convert this into an escalable tariff. They have further argued that the bid given by Adani Enterprises was not premised on the import of coal from Indonesia only and this being the case it was open to them to get coal from any source.
The price of coal is the price of raw material and if prices go up, a contract does not get frustrated merely because it becomes commercially onerous, as the PPA itself states in clause 12.4. In any event, the fundamental basis of the PPAs between the parties was not premised on the price of coal imported from Indonesia.
11. On a true construction of the Act, learned counsel argued in support of the Tribunal judgment that Section 63 of the Electricity Act is a standalone provision and is notwithstanding anything contained in Section 62. It is obvious that under Section 62 read with Section 61 and 64, the Commission has to "determine" tariff under the Act having regard to various factors, whereas under Section 63 of the Act, the Commission does not "determine" but only "adopts" tariff obtained through a transparent process of competitive bidding.
This being the case, it is clear that there is no residuary source of power contained in the Commission either in Section 79 or otherwise to fix compensatory tariffs once the tariff is adopted under Section 63. If at all, such tariff can be modified only in accordance with the guidelines issued by the Central Government and not otherwise. They also argued that the Central Commission itself has no jurisdiction in view of the fact that on facts there is no composite scheme for the reason that the generation and sale of electricity from the power project of Adani, under independent PPAs to Gujarat and Haryana Utilities, with different tariffs, and from different generating units selected under different competitive bidding processes, would show that there is no one composite scheme containing uniform tariffs. This being the case, the State Commissions alone would have jurisdiction.
It was further argued that there is no change in law, either for the very good reason stated by the Commission, viz. that change in law applies to Indian and not Indonesian law, and further, a change in the tariff policy in India will also not constitute change in law. They, therefore, supported the Tribunal judgment on this aspect.
12. Learned Senior counsel Shri Kapil Sibal, Shri Harish Salve, Dr. Abhishek Manu Singhvi, and Shri C.S. Vaidyanathan, on behalf of the respondents, on the other hand, countered each one of these submissions. According to learned counsel, first and foremost the Central Commission alone would have jurisdiction on the facts of these cases, inasmuch as Sections 79 and 86 form part of one scheme. It was argued by them that all cases fall within either Section 79 or Section 86.
It is clear that under Section 86, the State Commissions have only to deal with generation and sale of electricity within the State. When generation and sale takes place outside the State, as is the case here, the State Commission would have no jurisdiction under Section 86, and consequently Section 79(1)(b) has to be read as part of a scheme in which the moment generation and sale of electricity is inter-State and not intra State, the Central Commission alone would have jurisdiction. Judged in this light, the expression "composite scheme" would only mean that generation and sale of electricity would be in more than one State. For this they also relied on the definition of "composite scheme" in the 2016 Central Government Policy.
13. They further argued that the scheme of the Act shows that neither 61 nor Section 79 are done away with when Section 63 applies. Section 63 does not use the expression "notwithstanding anything contained in this Act". It is clear, therefore, that all these Sections have to be harmoniously construed. Section 79 is without a doubt a repository of power to fix tariffs and/or modify fixation even when Section 63 applies. Indeed, Shri Sibal argued that if there were no guidelines or if a matter arose de hors the guidelines, then obviously there cannot be a gap in the law which remains unfilled. The residuary power of the Commission necessarily comes in under Section 79. In any event, they also argued that the guidelines, as amended, that are issued by the Central Government under Section 63 clearly take care of the present situation in that any change in law that occurs and any dispute which relates to tariffs can both be resolved before the Central Commission.
14. They also countered the submissions on force majeure by stating that the fundamental basis of the contract was the fuel supply agreement that was to be entered into, and pointed out various clauses in the PPAs to show that the fuel supply agreement and imported coal were both very important elements, both in the bid and the PPAs. Non-escalable tariffs do not lead to the conclusion that if a source of coal becomes unavailable in a manner that completely undermines the basis of the bid, the tariff cannot be adjusted. If otherwise they fall within the change in law provision and/or force majeure provision, the mere fact that a non-escalable tariff has been quoted would make no difference. A large part of the argument was centered around the meaning of the expression "frustration" in the Contract Act and the correct construction of clause 12 of the PPA.
A large number of authorities, both English and Indian, were cited to show that the contract had become commercially impracticable, and that they would have to fold up operations, which would not be in public interest as the consumers would then have to obtain electricity at rates much higher than were quoted by them. According to them, a force majeure event in Clause 12 takes place the moment performance is "hindered" and there can be no doubt that an astronomical rise in prices of Indonesian coal, thanks to a change in law, has certainly hindered performance. They also argued that in any event the change in law clause is very wide and since the PPA deals with imported coal, obviously change in law would cover foreign law.
They also went on to add that when the PPA wanted to restrict a particular clause to Indian law, it did so expressly. They also stated that it is significant that neither GUVNL nor Haryana Utilities had filed appeals in the present case, and the Government had in several policy decisions and statements made it clear that in cases like the present, where there is grave unforeseen hardship on account of non-allocation of Indian coal, the rise in cost should be adequately compensated.
They, therefore, questioned the locus standi of the consumer groups, who are the only appellants before us, stating that on the estimation made by the respondents, the impact of increase in both cases on tariff would be extremely minimal as opposed to the huge accumulated losses suffered by these entities which would make them fold up. Ultimately, it was argued that even the Central Commission did not give them the entire benefit of rise in price in coal, and consequently in the final analysis the relief granted on the ground of force majeure by the Central Commission should not be disturbed, and relief on the ground of change in law should, in addition, have been given to them.
15. The learned Attorney General appearing on behalf of the Union of India, submitted before us that he was not interested in the ultimate outcome of the appeals before us. He was only appearing in order to apprise us that the electricity sector, having been privatized, has largely fulfilled the object sought to be achieved by the 2003 Act, which is that electricity generation, being delicenced, should result in production of far greater electricity than was earlier produced. He urged us not to disturb the delicate balance sought to achieved by the Act i.e. that producers or generators of electricity, in order that they set up power plants, be entitled to a reasonable margin of profit and a reasonable return on their capital, so that they are induced to set up more and more power plants.
This must be consistent with competitiveness among them, which then translates itself into reasonable tariffs that are payable by consumers of electricity. For this purpose, he relied strongly upon Section 3 of the Electricity Act, which states that the Central Government, shall from time to time, prepare a National Electricity Policy and a tariff policy in consultation with the State Governments, and the authority for development of the power system, based on optimal utilization of natural resources. According to him, the National Electricity Policy and tariff policy that are issued from time to time, being statutory in nature, are binding on all concerned. This is, in fact, further recognized by Section 61(i) by which the appropriate Commission, in specifying terms and conditions for determination of tariffs, shall be guided by the National Electricity Policy and tariff policy.
The Central Government's role can further be seen even in Section 63, where guidelines that are binding on all are issued by the Central Government in cases where there is a transparent process of bidding. Further, according to him, Section 79(4) also points in the same direction, stating that, in discharge of its functions, the Central Commission shall be guided by the National Electricity Policy, National Electricity Plan, and tariff policy published under Section 3. He also referred us to the Cabinet Committee for Economic Affairs recognizing the overall shortfall in manufacture of domestic coal and the new coal distribution policy issued in July, 2013 pursuant to the Cabinet Committee which, according to him, are in the nature of binding directions making it clear that as generators of electricity, who depend upon indigenous coal, have been given less coal than was anticipated, should be allowed either to import the coal themselves, or purchase imported coal from Coal India Ltd., with the difference in price being passed through to them. He further referred to and relied upon the revised tariff policy of 28th January, 2016 for the same purpose. Relevant provisions of the Electricity Act, 2003
16. The 2003 Act did away with three earlier statutes in which a completely different regime for generating and supply of electricity was provided for, namely, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1928 and the Electricity Regulatory Commissions Act, 1998. The Statement of Objects of Reasons for this Act reads as follows: "The Electricity Supply Industry in India is presently governed by three enactments namely, the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948, the Electricity Regulatory Commissions Act, 1998.
1.1 The Indian Electricity Act, 1910 created the basic framework for electric supply industry in India which was then in its infancy. The Act envisaged growth of the electricity industry through private licensees. Accordingly, it provided for licensees who could supply electricity in a specified area. It created the legal framework for laying down of wires and other works relating to the supply of electricity.
1.2 The Electricity (Supply) Act, 1948 mandated the creation of a State Electricity Board. The State Electricity Board has the responsibility of arranging the supply of electricity in the State. It was felt that electrification which was limited to cities needed to be extended rapidly and the State should step in to shoulder this responsibility through the State Electricity Boards. Accordingly the State Electricity Boards through the successive Five Year Plans undertook rapid growth expansion by utilizing Plan funds.
1.3 Over a period of time, however, the performance of SEBs has deteriorated substantially on account of various factors. For instance, though power to fix tariffs vests with the State Electricity Boards, they have generally been unable to take decisions on tariffs in a professional and independent manner and tariff determination in practice has been done by the State Governments. Cross-subsidies have reached unsustainable levels. To address this issue and to provide for distancing of government from determination of tariffs, the Electricity Regulatory Commissions Act, was enacted in 1998. It created the Central Electricity Regulatory Commission and has an enabling provision through which the State Governments can create a State Electricity Regulatory Commission. 16 States have so far notified/created State Electricity Regulatory Commissions either under the Central Act or under their own Reform Acts.
2. Starting with Orissa, some State Governments have been undertaking reforms through their own Reform Acts. These reforms have involved unbundling of the State Electricity Boards into separate Generation, Transmission and Distribution Companies through transfer schemes for the transfer of the assets and staff into successor Companies. Orissa, Haryana, Andhra Pradesh, Karnataka, Rajasthan and Uttar Pradesh have passed their Reform Acts and unbundled their State Electricity Boards into separate companies. Delhi and Madhya Pradesh have also enacted their Reforms Acts which, inter alia, envisage unbundling/corporatisation of SEBs.
3. With the policy of encouraging private sector participation in generation, transmission and distribution and the objective of distancing the regulatory responsibilities from the Government to the Regulatory Commissions, the need for harmonizing and rationalizing the provisions in the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998 in a new self-contained comprehensive legislation arose.
Accordingly, it became necessary to enact a new legislation for regulating the electricity supply industry in the country which would replace the existing laws, preserve its core features other than those relating to the mandatory existence of the State Electricity Board and the responsibilities of the State Government and the State Electricity Board with respect to regulating licensees.
There is also need to provide for newer concepts like power trading and open access. There is also need to obviate the requirement of each State Government to pass its own Reforms Act. The Bill has progressive features and endeavours to strike the right balance given the current realities of the power sector in India. It gives the State enough flexibility to develop their power sector in the manner they consider appropriate. The Electricity Bill, 2001 has been finalized after extensive discussions and consultations with the States and all other stake holders and experts.
4. The main features of the Bill are as follows:-
(i) Generation is being delicensed and captive generation is being freely permitted. Hydro projects would, however, need approval of the State Government and clearance from the Central Electricity Authority which would go into the issues of dam safety and optimal utilization of water resources.
(ii) There would be a Transmission Utility at the Central as well as State level, which would be a Government company and have the responsibility of ensuring that the transmission network is developed in a planned and coordinated manner to meet the requirements of the sector. The load dispatch function could be kept with the Transmission Utility or separated. In the case of separation the load dispatch function would have to remain with a State Government organization/company.
(iii) There is provision for private transmission licensees.
(iv) There would be open access in transmission from the outset with provision for surcharge for taking care of current level of cross subsidy with the surcharge being gradually phased out.
(v) Distribution licensees would be free to undertake generation and generating companies would be free to take up distribution licensees.
(vi) The State Electricity Regulatory Commissions may permit open access in distribution in phases with surcharge for -
(a) current level of cross subsidy to be gradually phased out along with cross subsidies; and
(b) obligation to supply.
(vii) For rural and remote areas stand alone systems for generation and distribution would be permitted.
(viii) For rural areas decentralized management of distribution through Panchayats, Users Associations, Cooperatives or Franchisees would be permitted.
(ix) Trading as a distinct activity is being recognized with the safeguard of the Regulatory Commissions being authorized to fix ceilings on trading margins, if necessary.
(x) Where there is direct commercial relationship between a consumer and a generating company or a trader the price of power would not be regulated and only the transmission and wheeling charges with surcharge would be regulated.
(xi) There is provision for a transfer scheme by which company/companies can be created by the State Governments from the State Electricity Boards. The State Governments have the option of continuing with the State Electricity Boards which under the new scheme of things would be a distribution licensee and the State Transmission Utility which would also be owning generation assets. The service conditions of the employees would as a result of restructuring not be inferior.
(xii) An Appellate Tribunal has been created for disposal of appeals against the decision of the CERC and State Electricity Regulatory Commissions so that there is speedy disposal of such matters. The State Electricity Regulatory Commission is a mandatory requirement.
(xiii) Provisions relating to theft of electricity have a revenue focus.
5. The Bill seeks to replace the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998.
6. The Bill seeks to achieve the above objects."
17. In the present case, we are concerned with the following Sections:
"Section 3. National Electricity Policy and Plan. ---
(1) The Central Government shall, from time to time, prepare the National Electricity Policy and tariff policy, in consultation with the State Governments and the Authority for development of the power system based on optimal utilisation of resources such as coal, natural gas, nuclear substances or materials, hydro and renewable sources of energy.
(2) The Central Government shall publish the National Electricity Policy and tariff policy from time to time.
(3) The Central Government may, from time to time in consultation with the State Governments, and the Authority, review or revise, the National Electricity Policy and tariff policy referred to in sub-section (1) .
(4) The Authority shall prepare a National Electricity Plan in accordance with the National Electricity Policy and notify such plan once in five years:
Provided that the Authority while preparing the National Electricity Plan shall publish the draft National Electricity Plan and invite suggestions and objections thereon from licensees, generating companies and the public within such time as may be prescribed: Provided further that the Authority shall -
(a) notify the plan after obtaining the approval of the Central Government;
(b) revise the plan incorporating therein the directions, if any, given by the Central Government while granting approval under clause (a).
(5) The Authority may review or revise the National Electricity Plan in accordance with the National Electricity Policy.
61. Tariff Regulations. The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of tariff, and in doing so, shall be guided by the following, namely:-
(a) the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companies and transmission licensees;
(b) the generation, transmission, distribution and supply of electricity are conducted on commercial principles;
(c) the factors which would encourage competition, efficiency, economical use of the resources, good performance and optimum investments;
(d) safeguarding of consumers' interest and at the same time, recovery of the cost of electricity in a reasonable manner;
(e) the principles rewarding efficiency in performance;
(f) multi-year tariff principles;
(g) that the tariff progressively reflects the cost of supply of electricity and also reduces cross-subsidies in the manner specified by the Appropriate Commission;
(h) the promotion of co-generation and generation of electricity from renewable sources of energy;
(i) the National Electricity Policy and tariff policy:
Provided that the terms and conditions for determination of tariff under the Electricity (Supply) Act, 1948, the Electricity Regulatory Commissions Act, 1998 and the enactments specified in the Schedule as they stood immediately before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under this section, whichever is earlier.
62. Determination of Tariff.
(1) The Appropriate Commission shall determine the tariff in accordance with provisions of this Act for -
(a) supply of electricity by a generating company to a distribution licensee:
Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating company and a licensee or between licensees, for a period not exceeding one year to ensure reasonable prices of electricity;
(b) transmission of electricity ;
(c) wheeling of electricity;
(d) retail sale of electricity: Provided that in case of distribution of electricity in the same area by two or more distribution licensees, the Appropriate Commission may, for promoting competition among distribution licensees, fix only maximum ceiling of tariff for retail sale of electricity.
(2) The Appropriate Commission may require a licensee or a generating company to furnish separate details, as may be specified in respect of generation, transmission and distribution for determination of tariff.
(3) The Appropriate Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate according to the consumer's load factor, power factor, voltage, total consumption of electricity during any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required.
(4) No tariff or part of any tariff may ordinarily be amended, more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified.
(5) The Commission may require a licensee or a generating company to comply with such procedure as may be specified for calculating the expected revenues from the tariff and charges which he or it is permitted to recover. (6) If any licensee or a generating company recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate without prejudice to any other liability incurred by the licensee.
63. Determination of tariff by bidding process. Notwithstanding anything contained in section 62, 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.
64. Procedure for tariff order.
(1) An application for determination of tariff under section 62 shall be made by a generating company or licensee in such manner and accompanied by such fee, as may be determined by regulations.
(2) Every applicant shall publish the application, in such abridged form and manner, as may be specified by the Appropriate Commission.
(3) The Appropriate Commission shall, within one hundred and twenty days from receipt of an application under sub-section (1) and after considering all suggestions and objections received from the public,-
(a) issue a tariff order accepting the application with such modifications or such conditions as may be specified in that order;
(b) reject the application for reasons to be recorded in writing if such application is not in accordance with the provisions of this Act and the rules and regulations made thereunder or the provisions of any other law for the time being in force: Provided that an applicant shall be given a reasonable opportunity of being heard before rejecting his application.
(4) The Appropriate Commission shall, within seven days of making the order, send a copy of the order to the Appropriate Government, the Authority, and the concerned licensees and to the person concerned.
(5) Notwithstanding anything contained in Part X, the tariff for any inter- State supply, transmission or wheeling of electricity, as the case may be, involving the territories of two States may, upon application made to it by the parties intending to undertake such supply, transmission or wheeling, be determined under this section by the State Commission having jurisdiction in respect of the licensee who intends to distribute electricity and make payment therefor.
(6) A tariff order shall, unless amended or revoked, shall continue to be in force for such period as may be specified in the tariff order.
79. Functions of Central Commission.
(1) The Central Commission shall discharge the following functions, namely:-
(a) to regulate the tariff of generating companies owned or controlled by the Central Government;
(b) to regulate the tariff of generating companies other than those owned or controlled by the Central Government specified in clause (a), if such generating companies enter into or otherwise have a composite scheme for generation and sale of electricity in more than one State;
(c) to regulate the inter-State transmission of electricity ;
(d) to determine tariff for inter-State transmission of electricity;
(e) to issue licenses to persons to function as transmission licensee and electricity trader with respect to their inter-State operations;
(f) to adjudicate upon disputes involving generating companies or transmission licensee in regard to matters connected with clauses (a) to (d) above and to refer any dispute for arbitration;
(g) to levy fees for the purposes of this Act;
(h) to specify Grid Code having regard to Grid Standards;
(i) to specify and enforce the standards with respect to quality, continuity and reliability of service by licensees;
(j) to fix the trading margin in the inter-State trading of electricity, if considered, necessary;
(k) to discharge such other functions as may be assigned under this Act.
86. Functions of State Commission. -
(1) The State Commission shall discharge the following functions, namely, -
(a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State: Provided that where open access has been permitted to a category of consumers under Section 42, the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers;
(b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State;
(c) facilitate intra-state transmission and wheeling of electricity;
(d) issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State;
(e) promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licensee;
(f) adjudicate upon the disputes between the licensees, and generating companies and to refer any dispute for arbitration;
(g) levy fee for the purposes of this Act;
(h) specify State Grid Code consistent with the Grid Code specified under clause (h) of sub-section (1) of section 79;
(i) specify or enforce standards with respect to quality, continuity and reliability of service by licensees; (j) fix the trading margin in the intra-State trading of electricity, if considered, necessary;
(k) discharge such other functions as may be assigned to it under this Act."
18. The construction of Section 63, when read with the other provisions of this Act, is what comes up for decision in the present appeals. It may be noticed that Section 63 begins with a non-obstante clause, but it is a non-obstante clause covering only Section 62.
Secondly, unlike Section 62 read with Sections 61 and 64, the appropriate Commission does not "determine" tariff but only "adopts" tariff already determined under Section 63.
Thirdly, such "adoption" is only if such tariff has been determined through a transparent process of bidding, and, fourthly, this transparent process of bidding must be in accordance with the guidelines issued by the Central Government. What has been argued before us is that Section 63 is a stand alone provision and has to be construed on its own terms, and that, therefore, in the case of transparent bidding nothing can be looked at except the bid itself which must accord with guidelines issued by the Central Government. One thing is immediately clear, that the appropriate Commission does not act as a mere post office under Section
63. It must adopt the tariff which has been determined through a transparent process of bidding, but this can only be done in accordance with the guidelines issued by the Central Government. Guidelines have been issued under this Section on 19th January, 2005, which guidelines have been amended from time to time. Clause 4, in particular, deals with tariff and the appropriate Commission certainly has the jurisdiction to look into whether the tariff determined through the process of bidding accords with clause 4.
19. It is important to note that the regulatory powers of the Central Commission, so far as tariff is concerned, are specifically mentioned in Section 79(1). This regulatory power is a general one, and it is very difficult to state that when the Commission adopts tariff under Section 63, it functions de hors its general regulatory power under Section 79(1)(b). For one thing, such regulation takes place under the Central Government's guidelines. For another, in a situation where there are no guidelines or in a situation which is not covered by the guidelines, can it be said that the Commission's power to "regulate" tariff is completely done away with? According to us, this is not a correct way of reading the aforesaid statutory provisions. The first rule of statutory interpretation is that the statute must be read as a whole. As a concomitant of that rule, it is also clear that all the discordant notes struck by the various Sections must be harmonized. Considering the fact that the non-obstante clause advisedly restricts itself to Section 62, we see no good reason to put Section 79 out of the way altogether.
The reason why Section 62 alone has been put out of the way is that determination of tariff can take place in one of two ways - either under Section 62, where the Commission itself determines the tariff in accordance with the provisions of the Act, (after laying down the terms and conditions for determination of tariff mentioned in Section 61) or under Section 63 where the Commission adopts tariff that is already determined by a transparent process of bidding. In either case, the general regulatory power of the Commission under Section 79(1)(b) is the source of the power to regulate, which includes the power to determine or adopt tariff. In fact, Sections 62 and 63 deal with "determination" of tariff, which is part of "regulating" tariff.
Whereas "determining" tariff for inter-State transmission of electricity is dealt with by Section 79(1)(d), Section 79(1)(b) is a wider source of power to "regulate" tariff. It is clear that in a situation where the guidelines issued by the Central Government under Section 63 cover the situation, the Central Commission is bound by those guidelines and must exercise its regulatory functions, albeit under Section 79(1)(b), only in accordance with those guidelines. As has been stated above, it is only in a situation where there are no guidelines framed at all or where the guidelines do not deal with a given situation that the Commission's general regulatory powers under Section 79(1)(b) can then be used.
Jurisdiction of the Central Commission
20. The appellants have argued before us that the expression "composite scheme" mentioned in Section 79(1) must necessarily be a scheme in which there is uniformity of tariff under a PPA where there is generation and sale of electricity in more than one State. It is not enough that generation and sale of electricity in more than one State be the subject matter of one or more PPAs, but that something more is necessary, namely, that there must be a composite scheme for the same.
21. In order to appreciate and deal with this submission, it is necessary to set out Section 2(5) of the Act which defines appropriate Government as follows:
"2. Definitions. In this Act, unless the context otherwise requires, (5) "Appropriate Government" means, -
(a) the Central Government, -
(i) in respect of a generating company wholly or partly owned by it;
(ii) in relation to any inter-State generation, transmission, trading or supply of electricity and with respect to any mines, oil-fields, railways, national highways, airports, telegraphs, broadcasting stations and any works of defence, dockyard, nuclear power installations;
(iii) in respect of the National Load Despatch Centre; and Regional Load Despatch Centre;
(iv) in relation to any works or electric installation belonging to it or under its control ;
(b) in any other case, the State Government, having jurisdiction under this Act;" Sections 25 and 30 also have some bearing and are set out as under :
"25. Inter-State, regional and inter-regional transmission. For the purposes of this Part, the Central Government may, make region-wise demarcation of the country, and, from time to time, make such modifications therein as it may consider necessary for the efficient, economical and integrated transmission and supply of electricity, and in particular to facilitate voluntary interconnections and co-ordination of facilities for the inter-State, regional and inter-regional generation and transmission of electricity.
30. Transmission within a State. The State Commission shall facilitate and promote transmission, wheeling and inter-connection arrangements within its territorial jurisdiction for the transmission and supply of electricity by economical and efficient utilisation of the electricity."
22. The scheme that emerges from these Sections is that whenever there is inter-State generation or supply of electricity, it is the Central Government that is involved, and whenever there is intra-State generation or supply of electricity, the State Government or the State Commission is involved. This is the precise scheme of the entire Act, including Sections 79 and 86. It will be seen that Section 79(1) itself in sub- sections (c), (d) and (e) speaks of inter-State transmission and inter- State operations.
This is to be contrasted with Section 86 which deals with functions of the State Commission which uses the expression "within the State" in sub-clauses (a), (b), and (d), and "intra-state" in sub- clause (c). This being the case, it is clear that the PPA, which deals with generation and supply of electricity, will either have to be governed by the State Commission or the Central Commission. The State Commission's jurisdiction is only where generation and supply takes place within the State.
On the other hand, the moment generation and sale takes place in more than one State, the Central Commission becomes the appropriate Commission under the Act. What is important to remember is that if we were to accept the argument on behalf of the appellant, and we were to hold in the Adani case that there is no composite scheme for generation and sale, as argued by the appellant, it would be clear that neither Commission would have jurisdiction, something which would lead to absurdity. Since generation and sale of electricity is in more than one State obviously Section 86 does not get attracted. This being the case, we are constrained to observe that the expression "composite scheme" does not mean anything more than a scheme for generation and sale of electricity in more than one State.
23. This also follows from the dictionary meaning [(Mc-Graw-Hill Dictionary of Scientific and Technical Terms (6th Edition), and P.Ramanatha Aiyar's Advanced Law Lexicon (3rd Edition)] of the expression "composite":
(a) 'Composite' - "A re-recording consisting of at least two elements. A material that results when two or more materials, each having its own, usually different characteristics, are combined, giving useful properties for specific applications. Also known as composite material."
(b) 'Composite character' - "A character that is produced by two or more characters one on top of the other."
(c) 'Composite unit" - "A unit made of diverse elements." The aforesaid dictionary definitions lead to the conclusion that the expression "composite" only means "consisting of at least two elements". In the context of the present case, generation and sale being in more than one State, this could be referred to as "composite".
24. Even otherwise, the expression used in Section 79(1)(b) is that generating companies must enter into or otherwise have a "composite scheme". This makes it clear that the expression "composite scheme" does not have some special meaning - it is enough that generating companies have, in any manner, a scheme for generation and sale of electricity which must be in more than one State.
25. We must also hasten to add that the appellant's argument that there must be commonality and uniformity in tariff for a "composite scheme" does not follow from the Section.
26. Another important facet of dealing with this argument is that the tariff policy dated 6th June, 2006 is the statutory policy which is enunciated under Section 3 of the Electricity Act. The amendment of 28th January, 2016 throws considerable light on the expression "composite scheme", which has been defined for the first time as follows:
"5.11 (j) Composite Scheme: Sub-section (b) of Section 79(1) of the Act provides that Central Commission shall regulate the tariff of generating company, if such generating company enters into or otherwise have a composite scheme for generation and sale of electricity in more than one State.
Explanation: The composite scheme as specified under section 791) of the Act shall mean a scheme by a generating company for generation and sale of electricity in more than one State, having signed long-term or medium-term PPA prior to the date of commercial operation of the project (the COD of the last unit of the project will be deemed to be the date of commercial operation of the project) for sale of at least 10% of the capacity of the project to a distribution licensee outside the State in which such project is located."
27. That this definition is an important aid to the construction of Section 79(1)(b) cannot be doubted and, according to us, correctly brings out the meaning of this expression as meaning nothing more than a scheme by a generating company for generation and sale of electricity in more than one State. Section 64(5) has been relied upon by the Appellant as an indicator that the State Commission has jurisdiction even in cases where tariff for inter-State supply is involved.
This provision begins with a non-obstante clause which would indicate that in all cases involving inter- State supply, transmission, or wheeling of electricity, the Central Commission alone has jurisdiction. In fact this further supports the case of the Respondents. Section 64(5) can only apply if, the jurisdiction otherwise being with the Central Commission alone, by application of the parties concerned, jurisdiction is to be given to the State Commission having jurisdiction in respect of the licensee who intends to distribute and make payment for electricity. We, therefore, hold that the Central Commission had the necessary jurisdiction to embark upon the issues raised in the present cases.
Force Majeure
28. A large part of the argument turned on the finding of the Appellate Tribunal that the rise in price of coal consequent to change in Indonesian law would be a force majeure event which would entitle the respondents to claim compensatory tariff. Before embarking on the merits of this claim, we must first advert to the argument of the appellant that force majeure can only be argued for a very restricted purpose, as has been pointed out in the Supreme Court judgment dated 31st March, 2015.
29. In order to appreciate this contention, it is first necessary to set out the relevant portion of this judgment. By the judgment dated 31st March, 2015, this Court held: "13. By order dated 1-8-2014, the Appellate Tribunal dismissed the cross- objections of the appellant herein as not maintainable. On 16-9-2014, the appellant preferred Appeal No. DFR No. 2355 of 2014 before the Appellate Tribunal against that part of the order dated 2-4-2013 which went against the appellant. Obviously, there was a delay in preferring that appeal. Therefore, the appellant filed an application bearing IA No. 380 of 2014 seeking condonation of delay in preferring the appeal which was rejected by the impugned order. Hence, the instant appeal.
14. The issue before this Court is limited. It is the correctness of the decision of the Appellate Tribunal in declining to condone the delay in preferring the appeal against the order dated 2-4-2013 of the Central Commission. 15. However, elaborate submissions were made regarding the scope of Order 41 Rule 22 of the Code of Civil Procedure , 1908 (for short "CPC"), and its applicability to an appeal under Section 111 of the Act by the appellant relying upon earlier decisions of this Court. The respondents submitted that such an enquiry is wholly uncalled for as the cross-objections of the appellant in Appeal No. 100 of 2013 stood rejected and became final.
16. Lastly, the learned counsel for the appellant submitted that even if this Court comes to the conclusion that the appellant has not made out a case for condonation of delay in preferring an appeal against the order dated 2-4-2013 of the Central Commission, the appellant is entitled to argue in the pending Appeals Nos. 98 and 116 of 2014 both the grounds of "force majeure" and "change of law" not for the purpose of seeking the relief of a declaration of the frustration of the contracts between the appellants and the respondents, thereby relieving the appellant of his obligations arising out of the contracts, but only for the purpose of seeking the alternative relief of compensatory tariff. In other words, the appellant's submission is that the facts which formed the basis of the submission of the frustration of contracts are also relevant for supporting the conclusion of the National Commission that the appellant is entitled for the relief of compensatory tariff.
17. We agree with the respondents that we are not required to go into the question of the applicability of Order 41 Rule 22 in the instant appeal as the decision of the Appellate Tribunal to reject the cross-objections of the appellant by its order dated 1-8-2014 has become final and no appeal against the said order is pending before us.
18. We are also not required to go into the question whether the order of the Central Commission dated 2-4-2013 by which it declined to grant a declaration of frustration of the contracts either on the ground of "force majeure" or on the ground of "change of law" is independently appealable, since no such appeal even if maintainable, is preferred by the appellant.
19. The question whether the appellant made out a case for condonation of delay in preferring the appeal before the Appellate Tribunal, in our opinion, need not also be examined by us in view of the last submission made by the appellant. If the appellant is not desirous of seeking a declaration that the appellant is relieved of the obligation to perform the contracts in question, the correctness of the decision of the Appellate Tribunal in rejecting the application to condone the delay in preferring the appeal would become purely academic.
We are of the opinion that so long as the appellant does not seek a declaration, such as the one mentioned above, the appellant is entitled to argue any proposition of law, be it "force majeure" or "change of law" in support of the order dated 21-2-2014 quantifying the compensatory tariff, the correctness of which is under challenge before the Appellate Tribunal in Appeal No. 98 of 2014 and Appeal No. 116 of 2014 preferred by the respondents, so long as such an argument is based on the facts which are already pleaded before the Central Commission." 30. This Court dealt with an appeal arising out of an order of the Appellate Tribunal dated 31st October, 2014, in which the Appellate Tribunal declined to condone a delay of 481 days in preferring an appeal against an order dated 2nd April, 2013.
31. As has been stated by this Court, the issue before the Court was limited. This Court held that the appellant is entitled to argue force majeure and change in law in pending Appeals Nos.98 and 116 of 2014.
This was because what was concluded by the Central Commission was force majeure and change of law for the purpose of seeking the relief of declaration of frustration of the contract between the appellant and the respondents, thereby relieving the appellant of its obligations arising out of the contract. Since the appellant was not desirous of seeking a declaration that the appellant is relieved of the obligation of performing the contract in question, the appellant is entitled to argue force majeure or change of law in support of the Commission's order of 21st February, 2014, which quantified compensatory tariff, the correctness of which is under challenge in Appeal Nos.98 and 116 of 2014.
This being the case, it is clear that this Court did not give any truncated right to argue force majeure or change of law. This Court explicitly stated that both force majeure and change of law can be argued in all its plenitude to support an order quantifying compensatory tariff so long as the appellants do not claim that they are relieved of performance of the PPAs altogether. This being the case, we are of the view that the preliminary submission of the appellant before us is without any force. Accordingly, the Appellate Tribunal rightly went into force majeure and change of law.
32. "Force majeure" is governed by the Indian Contract Act, 1872. In so far as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. In so far as a force majeure event occurs de hors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract.
Sections 32 and 56 are set out herein:
"32. Enforcement of Contracts contingent on an event happening - Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void. 56. Agreement to do impossible act - An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful. A contract to do an act which, after the contract made, becomes impossible or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful. Where one person has promised to do something which he knew or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promisee sustains through the non-performance of the promise."
33. Prior to the decision in Taylor vs. Caldwell, (1861-73) All ER Rep 24, the law in England was extremely rigid. A contract had to be performed, notwithstanding the fact that it had become impossible of performance, owing to some unforeseen event, after it was made, which was not the fault of either of the parties to the contract. This rigidity of the common law in which the absolute sanctity of contract was upheld was loosened somewhat by the decision in Taylor vs. Caldwell in which it was held that if some unforeseen event occurs during the performance of a contract which makes it impossible of performance, in the sense tha
