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TMI Blog2017 (10) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) read with Section 64(6) of the Act. Section 86(1)(a) clothes the Commission with the power to determine the tariff and under Section 86(1)(b), it is for the Commission to regulate the price at which electricity is to be procured from the generating companies. Section 86 (1)(e) deals with promoting co-generation and generation of electricity from renewable sources of energy . Therefore, there cannot be any quarrel with regard to the power conferred on the Commission with regard to fixation of tariff for the electricity procured from the generating companies or amendment thereof in the given circumstances. This Court should be specially careful in dealing with matters of exercise of inherent powers when the interest of consumers is at stake. The interest of consumers, as an objective, can be clearly ascertained from the Act. The Preamble of the Act mentions protecting interest of consumers and Section 61(d) requires that the interests of the consumers are to be safeguarded when the Appropriate Commission specifies the terms and conditions for determination of tariff. Under Section 64 read with Section 62, determination of tariff is to be made only after considering all sugge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de and incapable of definition, its limits should be carefully guarded. Inherent powers preserved under Regulation 80 (which is akin to Section 151 of the Code) are with respect to the procedure to be followed by the Commission in deciding the cause before it. The inherent powers under Section 151 CPC are procedural in nature and cannot affect the substantive right of the parties. The inherent powers are not substantive provision that confers the right upon the party to get any substantive relief. These inherent powers are not over substantive rights which a litigant possesses - The inherent power is not a provision of law to grant any substantive relief. But it is only a procedural provision to make orders to secure the ends of justice and to prevent abuse of process of the Court. In the case at hand, rights and obligations of the parties flow from the terms and conditions of the Power Purchase Agreement (PPA). PPA is a contract entered between the GUVNL and the first respondent with clear understanding of the terms of the contract. A contract, being a creation of both the parties, is to be interpreted by having due regard to the actual terms settled between the parties. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tipulated time. Application disposed off. - Civil Appeal No. 6399 Of 2016 - - - Dated:- 25-10-2017 - Mr. Kurian Joseph and Mrs.R. Banumathi, JJ. For Appellant(s): Ms. Hemantika Wahi, AOR Ms. Puja Singh, Adv. Ms. Jesal, Adv. Ms. Shubham Arya, Adv. For Respondent(s): Mr. G. Ramakrishna Prasad, AOR Mr. Suyodhan Byrapaneni, Adv. Mohd. Wasay Khan, Adv. Ms. Filza Moonis, Adv. JUDGMENT Kurian, 1. The principal question which arises in this case is whether the Gujarat Electricity Regulatory Commission (the Commission), in exercise of its inherent powers, could have extended the control period for the 1st respondent Company (Respondent no. 1). The control period is the period during which a particular tariff order operates. 2. In order to address the issue, certain provisions of the Electricity Act, 2003 (hereinafter referred to as the Act ) are required to be noticed. Part VII of the Act deals with tariff. Sections 61, 62 and 64 of the Act are of particular relevance. :- 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of electricity. (2) The Appropriate Commission may require alicensee 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, whiledetermining 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 beamended, 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 agenerating 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 recoversa pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all, within six months from the appointed date, by notification, constitute for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission: 4. Section 86 of the Act provides for the functions of the State Commission. To the extent relevant, the Section reads as follows: 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 wheelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (2) The Appropriate Commission shall have the powers to pass such interim order in any proceeding, hearing or matter before the Appropriate Commission, as that Commission may consider appropriate. (3) The Appropriate Commission may authoriseany person, as it deems fit, to represent the interest of the consumers in the proceedings before it. (Emphasis supplied) 7. Section 95 states that the proceedings before the Appropriate Commission shall be deemed to be judicial proceedings and the Appropriate Commission shall be deemed to be a civil court. To quote :- 95. Proceedings before Commission.- All proceedings before the Appropriate Commission shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860) and Appropriate Commission shall be deemed to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). 8. Section 181 of the Act provides for the power of the State Commission to make regulations. To the extent relevant, the Section reads as follows: 181. Powers of State Commissions to make regulations.- (1) The State Commissions may, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows :- 5.2.GUVNL shall pay the fixed tariff mentioned hereunder for the period of 25 years for all the Scheduled Energy/Energy injected as certified in the monthly SEA by SLDC. The tariff is determined by Hon ble Commission vide Tariff Order for Solar based power project dated 29.1.2010 (sic). Tariff for Photovoltaic project: ₹ 15/KWh for First 12 Years and thereafter ₹ 5/KWh from 13th Year to 25th Years Above tariff shall apply for solar projects commissioned on or before 31 st December 2011. In case, commissioning of Solar Power Project is delayed beyond 31 st December 2011, GUVNL shall pay the tariff as determined by Hon ble GERC for Solar Projects effective on the date of commissioning of solar power project or above mentioned tariff, which ever is lower . (Emphasis Supplied) The tariff order dated 29.01.2010 is in exercise of powers under Sections 61(h), 62(1)(a), 86(1)(e) and all other powers enabling it in this behalf. 12. Article 8 of the PPA pertains to force majeure events. It provides for events which constitute force majeure: ARTICLE 8 FORCE MAJEURE 8.1 Force Majeure Events (a) Neither Party shall be responsible or liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op the 20 MW Solar PV Project at Village Ajawada, Taluka- Tharad, District Banaskantha, Gujarat. But due to some unforeseen events we were unable to procure the Project land at Ajawada village and identified THREE other Locations to procure the Land and we had informed the some to your office vide our monthly Progress Reports. Now, we are happy to inform you that we have already acquired 60 acres of Land required for the commissioning of first two phases of 5 MW at Shivlakha Village, Tal-Bhachau, Dist.Kutch and enclosing herewith the details and copies of the documents of the Land procurement. We have (sic) also made advance Payments for another 105 acres in the same Location and will be completing the Land Registration before the end of this month. xxx xxx xxx d) We have already informed the details of Land procurement to GETCO for the necessary survey and commencement of power evacuation process. Hence we kindly request you to amend the PPA with respect to the change of Location. We hereby submit the Copies of the documents as proof of Land Procurement 14. A Supplemental Power Purchase Agreement (hereinafter referred to as the SPPA ) was entered into by the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termined by Hon ble GERC for Solar Projects effective on the day of commissioning of Solar Power Projects or above mentioned tariff, whichever is lower . This means that if the project is not commissioned within the stipulated period the existing tariff or the new tariff whichever is lower will apply. The petitioners have consciously agreed to this provision by signing the PPA. The Commission has already circulated on 1 November 2011 a discussion paper for determining tariff for Solar Projects for the second control period which is to start from 29 January 2012. The tariff suggested is lower than the current tariff. The petitioners have sought extension of the control period in order to prevent the application of a lower tariff in the event of not being able to commission the projects within the stipulated period. The reasons given by them are project specific. The situations of various projects are widely different. In some cases, the projects are at an advanced stage. In some other cases the projects are at an initial stage, and in some cases, even the order for equipment is yet to be issued. Some of them have asked for one month and some others have asked as long as six month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put forward by Respondent No. 1 herein are similar to those dealt with by the Commission in its order dated 27.01.2012, dismissed the petition. 18. In appeal, the Appellate Tribunal for Electricity (hereinafter referred to as the Appellate Tribunal ) in the order dated 02.01.2013 dealt with this issue at paragraphs-24 to 27. 24. The reasoning of the Commission that extending the control period would mean amendment of the Tariff Order is not at all possible to concede to. The Commission, it will be noticed from the impugned order, was conscious that individual petitions referred to individual project specific problems and issues and some prayed for one month extension, while some prayed for six months extension. The Commission came to the conclusion that unless there would happen a state-wide and large scale ramifications then only there could be a case for issue of a general order to extend the control period. Yet, the Commission said at the same breath that it has inherent power to extend the control period and it was made available when GETCO was at default. The basic premise that unless there is wide and large scale ramifications across the State in respect of the renew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the legal proposition that inherent power cannot be exercised when prohibited or excluded by the statute itself and when there are specific provisions to address the remedy. That is to say, inherent power can be exercised only for the ends of justice. The very exercise of inherent power or non-exercise of inherent power depends upon consideration of specific facts. 25. The argument of the GUVNL and for that matter of the Commission that extension of control period would be prejudicial to the PPA is again not acceptable. Firstly, PPA is not subordinate to the Tariff Order although it is based on that. The provision in the PPA that unless projects are commissioned within the specified period tariff as per the Tariff Order dated 29.1.2010 would not be available does not conflict with exercise of inherent power. If situations having wide scale ramifications warrant exercise of inherent power for extension of control period then also a certain PPA may have some consequences. Liquidated damages are available to the GUVNL only when defaults occur on the part of the developer; but when a situation is seen where circumstances regardless of whether wide scale ramifications across the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No. 2542 of 2013. However, by Order dated 01.04.2013, the appeal was dismissed in limine but this Court made it clear that the Commission shall decide the whole issue without being influenced by the observations made by the Appellate Tribunal in accordance with law. The Order reads as follows: We have heard the learned counsel for the parties. We are not inclined to interfere with the order passed by the Appellate Tribunal for Electricity. The civil appeals are, accordingly, dismissed. We, however, make it clear that the Commission shall decide the whole issue without being influenced by the observations made by the Appellate Tribunal for Electricity in accordance with law. 20. Once the matters were remanded to the Commission for rehearing on merits of each case, the Commission vide order dated 05.04.2014 allowed the petition for extension of the control period. To quote :- 11.26. Considering the above observations, we are of the view that the delay which occurred in commissioning of the power plant was due to the reasons beyond the control of the petitioner. Moreover, the petitioner had initiated construction activities of the Solar Power Project and com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se may not form part of force majeure events. As such, we decide that the present petition could not be filed under Section 86 (1) (f) of the Act. (Emphasis Supplied) 21. The Appellate Tribunal at paragraphs-10.11 and 10.12 of the impugned judgment held that even under Regulation 85 of the Conduct of Business Regulations, the Commission was within its power to extend time and the same can be exercised even in an individual case. To quote : 10.11 We have gone through the Conduct of Business Regulations, 2004 and the provisions provided under Section 86 of the Electricity Act, 2003 and find that the learned State Commission has rightly passed the impugned order under its inherent powers. We are unable to accept the contention of the Appellant that the State Commission cannot exercise inherent power for the purpose of extending the control period. We may clarify that the control period of the tariff order is fixed by the State Commission itself and, hence, the State Commission has inherent powers to extend the control period of the tariff order. There is no restriction or fetter on the powers of the State Commission in the Electricity Act, 2003 or under the Conduct of Busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is only on non-interference with the order of Appellate Tribunal to remit the matter to the Commission for a hearing on case-to-case basis and this Court did not make any observations with respect to the merits of the matter. In other words, it is not an order agreeing with or upholding the views of the Appellate Tribunal. It is also crucially relevant to note that even according to the Appellate Tribunal, as stated in paragraph 27 of the order dated 02.01.2013, it had only made observations and in view of those observations, the appeals were allowed by remitting the matters to the Commission. This Court clearly held that the whole issue should be examined without being influenced by the observations made by Appellate Tribunal for Electricity . 25. The question before us is whether the Commission has the power to extend the control period provided under the tariff order. That question is no more res integra. There are two recent judgments of this Court which are relevant in this context. In Gujarat Urja Vikas Nigam Limited v. EMCO Limited and another , this Court at Paragraphs-39 and 40, has specifically held as follows: 39. Apart from that both Respondent 2 and the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of lower of the two tariffs squarely applies to this case. 26. However, while addressing another grey area as to whether the Commission has the power to amend tariff despite the terms of the PPA, this Court in Gujarat Urja Vikas Nigam Limited v. Tarini Infrastructure Limited and others , after analyzing scheme of the Act, has answered the question in affirmative. 27. The scheme of the Act has been analyzed at paragraphs-12 and 16, which read as follows: 12. While Section 61 of the Act lays down the principles for determination of tariff, Section 62 of the Act deals with different kinds of tariffs/charges to be fixed. Section 64 enumerates the manner in which determination of tariff is required to be made by the Commission. On the other hand, Section 86 which deals with the functions of the Commission reiterates determination of tariff to be one of the primary functions of the Commission which determination includes, as noticed above, a regulatory power with regard to purchase and procurement of electricity from generating companies by entering into PPA(s). The power of tariff determination/fixation undoubtedly is statutory and that has been the view of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er would not be relieved of its contractual obligations under PPA. (Emphasis supplied) 29. Having referred to the above decisions, we shall now make an independent endeavor to analyze the present case in the context of factual matrix and the relevant statutory provisions. An amendment to tariff by the Regulatory Commission is permitted under Section 62(4) read with Section 64(6) of the Act. Section 86(1)(a) clothes the Commission with the power to determine the tariff and under Section 86(1)(b), it is for the Commission to regulate the price at which electricity is to be procured from the generating companies. Section 86 (1)(e) deals with promoting co-generation and generation of electricity from renewable sources of energy . Therefore, there cannot be any quarrel with regard to the power conferred on the Commission with regard to fixation of tariff for the electricity procured from the generating companies or amendment thereof in the given circumstances. 30. Part X of the Act from Sections 76 to 109 deals with Regulatory Commissions providing for their constitution, powers and functions. Section 92 read with Section 94 provides for the proceedings and power of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission is competent to adopt a procedure which is at variance with any of the other provisions of the Regulations in case the Commission is of the view that such an exercise is warranted in view of the special circumstances and such special circumstances are to be recorded in writing. However, it is specifically provided under Section 181 that there cannot be a Regulation which is not in conformity with the provisions of the Act or Rules. 34. Under Regulation 82, the Commission has powers to deal with any matter or exercise any power under the Act for which no Regulations are framed meaning thereby where something is expressly provided in the Act, the Commission has to deal with it only in accordance with the manner prescribed in the Act. The only leeway available to the Commission is only when the Regulations on proceedings are silent on a specific issue. In other words, in case a specific subject or exercise of power by the Commission on a specific issue is otherwise provided under the Act or Rules, the same has to be exercised by the Commission only taking recourse to that power and in no other manner. To illustrate further, there cannot be any exercise of the inherent power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, under the guise of exercising its inherent power, as we have already noticed above, the Commission cannot take recourse to exercise of a power, procedure for which is otherwise specifically provided under the Act. 38. Extension of control period has been specifically held to be outside the purview of the power of the Commission as per EMCO (supra). This appeal is hence, allowed. The impugned orders are set aside. However, we make it clear that this judgment or orders of the Appellate Tribunal or Commission shall not stand in the way of the Respondent no.1 taking recourse to the liberty available to them for re-determining of tariff if otherwise permissible under law and in which case it will be open to the parties to take all available contentions before the Commission. 39. There shall be no order as to costs. JUDGMENT R. Banumathi, J. I have gone through the judgment of His Lordship Justice Kurian Joseph. His Lordship's judgment though comprehensive, having regard to the importance of the questions raised, I prefer to give my own reasonings for my concurrence. 2. An appeal under Section 125 of the Electricity Act, 2003 would be maintainable only on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect dated 29.01.2010. Tariff for Photovoltaic project: ₹ 15/KWh for First 12 years and thereafter ₹ 5/ KWh from 13th Year to 25th Year. Above tariff shall apply for solar projects commissioned on or before 31st December 2011. In case, commissioning of Solar Power Project is delayed beyond 31st December 2011, GUVNL shall pay the tariff as determined by Hon ble GERC for Solar Projects effective on the date of commissioning of solar power project or above mentioned tariff, whichever is lower. Under the Supplemental Agreement dated 10.05.2011, respondent No.1 agreed to oblige all the terms and conditions of the PPA including the deadlines for completing the project. The agreement also recognized that all other terms and conditions including tariff shall remain unchanged (clause 2.4). Clause 2.3 of the Supplemental Agreement specifically provided that since respondent No.1 had changed the location after lapse of significant time, respondent No.1 shall pay the liquidated damages even in case of non-availability of transmission system for evacuation. Because of change of location, GETCO had to replan the entire transmission line to be constructed. By executing the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Regulatory Commission (hereinafter referred to as the State Commission ) determined the promotional tariff for solar power projects that may be based in the State of Gujarat during the control period of two years from the date of the order i.e. 29.01.2010 till 28.01.2012. The State Commission had adopted the capital cost of Solar Photovoltaic Power Project at ₹ 16.50 crores per MW and taking note of other aspects, the Commission determined the tariff for Solar Power Project at ₹ 12.54 per unit. The Commission had consciously fixed the control period for its order dated 29.01.2010 as two years, considering that the gestation period for Solar PV projects is six months and that for the Solar Thermal Projects is 18-24 months. Based on this Tariff Order dated 29.01.2010 for 1st respondent's Solar PV Power Project, tariff rate was fixed at ₹ 15 per kWh for the initial twelve years starting from the commercial operation of the project and ₹ 5 per kWh from the thirteenth year to twenty fifth year. 9. The Commission had published a Discussion Paper on 01.11.2011 for public view inviting comments from stakeholders and members of the State Advisory Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matters indicated thereon. In exercise of the powers conferred under Section 181 of the Electricity Act, 2003 and under Section 127 of Gujarat Electricity Industry (Re-organization and Regulation) Act, 2003 and all powers enabling it in that behalf, the Gujarat Electricity Regulatory Commission framed the Conduct of Business Regulation. Regulations 80 to 82 deal with inherent powers of the Commission, which read as under:- Saving of inherent power of the Commission 80. Nothing in these Regulations shall be deemed to limit or otherwise affect the inherent power of the Commission to make such orders as may be necessary for ends of justice or to prevent the abuse of the process of the Commission. 81. Nothing in these Regulations shall bar the Commission from adopting in conformity with the provisions of the Acts, a procedure, which is at variance with any of the provisions of these Regulations, if the Commission, in view of the special circumstances of a matter or class of matters and for reasons to be recorded in writing, deems it necessary or expedient for dealing with such a matter or class of matters. 82. Nothing in these Regulations shall, expressly or impliedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Tribunal for Electricity in accordance with law. 13. Learned Senior Counsel for the appellant, Mr. V. Giri submitted that the Supreme Court specifically directed the Commission to decide the whole issue in accordance with law without being influenced by the observations made by the Tribunal. As rightly contended by GUVNL, the whole issue was, therefore, kept open before the State Commission. Further, if the law was already settled by the Appellate Tribunal, there was no requirement for this Court to direct the State Commission to consider the 'issue in accordance with law'. In my view, there is no merit in the contention that the question of law on the Commission's inherent jurisdiction to extend the control period has been settled inter-se the parties in the earlier round of litigation. Rival contentions of the parties on this question have to be considered now. 14. Under Regulations 80 to 82, the inherent powers of the State Commission are saved. Under Regulation 80, which is akin to Section 151 CPC, the power of the State Commission is only intended to regulate the conduct of the Commission, that is, to regulate its own procedure. That power cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 218 this Court observed: (AIR p. 219, paras 8-9) 8. The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature. 9. The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the courts for passing such orders which would affect such rights of a party. 30. In Manohar Lal Chopra v. Seth Hiralal AIR 1962 SC 527 this Court held: (AIR p. 533, para 21) 21. that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conditions of the contract. It is not within the powers of the Commission to exercise its inherent jurisdiction to extend the control period to the advantage of any party and to the disadvantage of the other would amount to varying the terms of the contract between the parties. 19. Mr. Giri, learned Senior Counsel for the appellant submitted in terms of clause 2.4 of the Supplemental Agreement dated 10.05.2011 that all the terms and conditions including tariff fixed in PPA dated 30.04.2010 shall remain unchanged, it must be performed by respondent No.1 in the same fashion as had been acknowledged by him. Mr. Giri further submitted that in terms of clause 2.3 of the Supplemental Agreement that respondent No. 1 has agreed that no changes in respect of respondent No. 1's liability to pay liquidated damages shall be entertained on account of delay in procuring transmission system or otherwise and respondent No. 1 actually paid an amount of ₹ 23.25 lacs to GUVNL on 14.07.2011 thereby indicating that respondent No. 1 had acceded to the terms and conditions of the PPA and that the project was not commissioned by its Scheduled Commercial Operation Date other than the reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff nor can it vary the terms of the contract invoking inherent jurisdiction. SANCTITY OF POWER PURCHASE AGREEMENT 22. It is contended that Section 86(1)(b) of the Act empowers the State Commission to regulate the price of sale and purchase of electricity between the generating companies and distribution licensees and the terms and conditions of the PPA cannot be set to be inviolable. Merely because in PPA, tariff rate as per Tariff Order (2010) is incorporated that does not empower the Commission to vary the terms of the contract to the disadvantage of the consumers whose interest the Commission is bound to safeguard. Sanctity of PPA entered into between the parties by mutual consent cannot be allowed to be breached by a decision of the State Commission to extend the earlier control period beyond its expiry date, to the advantage of the generating company-respondent No. 1 and disadvantage of the appellant. Terms of PPA are binding on both the parties equally. 23. In Gujarat Urja Vikas Nigam Limited v. EMCO Limited and Another (2016) 11 SCC 182, facts were similar and the question of law raised was whether by passing the terms and conditions of PPA, respondent can assa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nathan v. State of T.N. (1985) 2 SCC 116 and D.K. Trivedi Sons v. State of Gujarat 1986 Supp. SCC 20 the power of regulation is indeed of wide import... 18. All the above would suggest that in view of Section 86(1)(b) the Court must lean in favour of flexibility and not read inviolability in terms of PPA insofar as the tariff stipulated therein as approved by the Commission is concerned. It would be a sound principle of interpretation to confer such a power if public interest dictated by the surrounding events and circumstances require a review of the tariff. The facts of the present case, as elaborately noted at the threshold of the present opinion, would suggest that the Court must lean in favour of such a view also having due regard to the provisions of Sections 14 and 21 of the General Clauses Act, 1898.... In the facts and circumstances of that case and that the tariff rate of ₹ 3.29/- per KWH was subject to escalation and subject to periodic review. Evacuation was changed from a distance of 4 kms. to 23 kms. from its switch yard. On account of the same, respondent No.1 therein had incurred an additional cost of about ₹ 10 crores which was not envisaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has aptly described the object of power to review and the circumstances under which the court shall exercise the power of review. This contention is also left open. 27. Learned Senior Counsel Mr. Jayant Bhushan for the respondent submitted that if the tariff as per order dated 27.01.2012 is applied, respondent No.1 would be forced to shut down due to non-recovery of costs. Drawing our attention to the capital cost of Solor PV projects, the learned Senior Counsel Mr. Giri submitted that such contention is contrary to the own admission of the first respondent. Contending that India's solor power installations have grown and cost tag of solor power has been reduced remarkably, learned Senior Counsel Mr. Giri submitted that even on equity, the first respondent cannot claim tariff rate as per Tariff Order (2010). It was contended that under the Tariff Order dated 29.01.2010 the capital cost was finalized at ₹ 16.50 crores per MW and tariff rate was fixed at ₹ 12.54 per kWh and for power project of 20 MW of respondent No.1, the total cost would be around ₹ 330 crores. Drawing our attention to the Tariff Order dated 27.01.2012, it was submitted that as per Tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is exercise of inherent jurisdiction by the Commission to vary the terms of PPA by extending the control period beyond the stipulated time. On the above reasonings, I agree with the conclusion of my esteemed brother Justice Kurian Joseph. JUDGMENT While agreeing with the conclusions in the Judgment pronounced by Hon'ble Sh. Kurian Joseph, J., Hon'ble Mrs. Justice R. Banumathi also pronounced the reportable Judgment with concurrent opinion. The concluding part of the Judgment pronounced by Hon'ble Mr. Justice Kurian Joseph is as follows :- Extension of control period has been specifically held to be outside the purview of the power of the Commission as per EMCO (supra). This appeal is hence, allowed. The impugned orders are set aside. However, we make it clear that this judgment or orders of the Appellate Tribunal or Commission shall not stand in the way of the Respondent no.1 taking recourse to the liberty available to them for re-determining of tariff if otherwise permissible under law and in which case it will be open to the parties to take all available contentions before the Commission. Pending Interlocutory Applications, if any, stand dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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