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TMI Blog2018 (3) TMI 1935X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to me, the submission made based on contents of letter dated 6.10.2014 is, prima facie, not sustainable for the reason that at the given point in time when UOI indicated to the petitioner that even though its category had changed, an FSA could not be executed in its favour since its name was not included in the list of 78000 MW coal based thermal power plants, subsequently underwent a change; a fact which is discernable upon perusal of CEA communication dated 3.12.2015. The communication dated 6.10.2014 was based on an earlier decision of CEA of 21.6.2013. This position stood altered, which was, as indicated above, clarified by CEA on 3.12.2015. CEA, to put it pithily, clarified that the petitioner, amongst others, was covered in balance 30000 MW capacity. Also, the learned senior counsel appearing for CIL had alluded to the fact that the petitioner could have access to coal via the Special Forward e-Auction mechanism. In this behalf, learned counsel drew my attention to status report filed on behalf of CIL. A perusal of the status report would show that CIL had offered to supply coal to the petitioner pursuant to order dated 31.01.2018 at the notified price stipulated for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said order is set forth hereafter: - "...3) The immediate grievance of the petitioner is that even though it has been issued a Letter of Assurance (LOA) as far back 24/25.6.2008 and its plant stands commissioned since April 2014, respondent No.2 has not executed a Fuel Supply Agreement (FSA) with it. 3.1) It is, therefore, the submission of the petitioner that out of two units which are run and managed by it, Unit-I is deprived of fuel for its operation. 3.2) The petitioner also avers, it has entered into Power Supply Agreements with Discoms and that the present situation is leading to a circumstance which will result in it being in breach of its obligations to the Discoms with resultant import (sic. impact) on the ultimate consumers. 3.3) The petitioner seeks to place reliance, inter alia, on the new coal policy framed by the respondents. The new policy, which bears the acronym, SHAKTI (Scheme for Harnessing and Allocating Koyala (Coal) Transparently in India) ("SHAKTI Policy"), which was formalised on 22.5.2007, allows for supply of coal to the petitioner as it would fall either under clause A(i) or, in the alternative, under clause B(ii) of the said policy. 3.4) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be considered and may be closed. (B) The following shall be considered under a New More Transparent Coal Allocation Policy for Power Sector, 2017-SHAKTI (Scheme for Harnessing and Allocating Koyala (Coal) Transparently in India): (i) ............................ (ii) CIL/SCCL may grant coal linkages on notified price on auction basis for power producers/ IPPs having already concluded long term PPAs (both under section 62 and section 63 of The Electricity Act, 2003) based on domestic coal. Power producers/ IPPs, participating in auction will bid for discount on the tariff (in paise/ unit). Bid Evaluation Criteria shall be the non-zero Levellised Value of the discount (applying a pre-notified discount rate) quoted by the bidders on the existing tariff for each year of the balance period of the PPA. Ministry of Coal may, in consultation with Ministry of Power, work out a methodology on normative basis to be used in the bidding process for allocation of coal linkages to IPPs with PPAs. 8) A perusal of the clause A(i) of the SHAKTI Policy would show that it exhorts the respondents to sign an FSA with all pending LoA holders if their plants are commissioned and respective mile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot auctions. 16) To my mind while that may be so, however, viability of any Power Plant would depend upon the price at which it obtains the fuel necessary to make it opprable (sic. operable). Since, auction as envisaged under clause B(ii) of the SHAKTI Policy, I am told by Mr. Jain was one time auction which is not going to be held in the near future a via media has to be found. This is more so, as indicated above, which is that the petitioner has a, prima facie, case in its favour for having an an FSA executed in its favour. Thus, this submission cannot be sustained. 17) Thus, having regard to the overall circumstances, including the balance of convenience and the damage (that) may it (sic.) be caused to the petitioner if interim relief is denied, I am inclined to direct the respondent no.2 to supply coal to the petitioner of requisite grade referred to in prayer via the clause (b) of C.M. Application No.46291/2017 via its subsidiary i.e., the Southern Eastern Coalfield Limited. 17) At this stage, Mr. Jain says that situation such as that which has arisen in the instant case is being considered by an Inter-Ministerial Committee and, therefore, there is likelihood of long ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, challenge the order dated 15.2.2018, passed by the competent authority. 8. Mr. Sibal, on the other hand contended that the grievance of the petitioner remains the same inasmuch as what was shown to the Court on 31.1.2018 were the Minutes of Meeting held by SLC (LT) on 19.1.2018. Learned counsel went on to say that the Minutes of Meeting dated 19.1.2018 made a recommendation which was adverse to the interest of the petitioner and, it was only this recommendation, which has received affirmation of the competent authority, albeit, after order dated 31.1.2018 had been passed by this Court. 8.1 Mr. Sibal, thus, submitted that interim relief was granted by this Court despite the decision of SLC (LT), taken, at its meeting held on 19.1.2018, being brought to its notice, for good and cogent reasons. According to Mr. Sibal, all that this Court did on that date was to ascertain from UOI as to whether it had communicated to the petitioner the fact that the LOA issued in its favour did not automatically allow for access to coal supplies just because approval had been given for its conversion from a GCPP to IPP. 9. Therefore, what emerges upon a close scrutiny of the stands taken by UO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 3.12.2015, addressed by Central Electricity Authority (CEA) to Ministry of Power, wherein, inter alia, the following is stated: - ".....In addition to above Butibori Unit 1 was changed from CPP to IPP by Standing Linkage Committee (Long term). The plant has already been commissioned but coal supply has not been commenced so far, being not covered in 78000 MW list. Therefore, this unit is also covered in firm IOA holders by MoC and accordingly same is covered in balance 30000 MW capacity. List of 108000 MW capacity is enclosed....." (emphasis is mine) 12. As a matter of fact, since the petitioner, according to the CEA, had been issued an LOA, it was not allowed to participate in coal linkage eauction conducted under the SHAKTI Policy. This aspect is borne out upon perusal of e-mail dated 6.9.2017 addressed by CEA to, one, Mr. Yogesh. Since, the e-mail is brief, the relevant extract is set forth hereafter: Dear Sir In response to your query for Application of Coal Linkage for Vidarbha Industries Power Ltd. this is to say that CIL has informed that this plant has FSA of 1.111.MTPA and LoA for 1.3 MTPA against total capacity 2x300MW. Since the plant has LoA/FSA for its en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As alluded to above SLC (LT)'s recommendation of 19.1.2018 received the competent authorities' imprimatur on 15.02.2018. 16.2. The only logic/rationale supplied in support of its decision both by SLC (LT) and the competent authority, is that, the petitioner had bypassed the queue of IPPs, who were awaiting recommendations for issuance of LOA in their favour. According to both authorities this had resulted in the petitioner acquiring tangible and intangible benefits of an LOA holder even though it never functioned as a GCPP. The switch over, according to both UOI and CIL, was made only to fast track its fuel supply. 17. In my view this contention, prima facie, is bereft of merit as at the point in time when permission was accorded for conversion, by SLC (LT), it had taken into account several factors including the fact that the supply of fuel at a lower cost would benefit the ultimate consumer, that is, the public at large. 17.1 This aspect comes through upon a bare perusal of communication dated 4.3.2014 addressed by UOI (Ministry of Coal) to CIL. Pertinently, with this communication the UOI appended the minutes of SLC (LT)'s meeting held on 21.2.2014, as approved by the compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not forwarded to the petitioner to seek its response. Importantly, the submission made by Mr. Sibal that the complaint was not put to the petitioner, was not contradicted either by learned ASG or Mr. Jagdeep Dhankar, learned senior Advocate. 20. Besides the foregoing, Ms. Acharya also indicated to me that all doors for the petitioner had not been closed and that the decision taken by the competent authority on 15.2.2018 would be deliberated upon by the Inter-Ministerial Committee. I may only indicate that this aspect of the matter has already been noticed by me in the order dated 31.1.2018, albeit, based on the submissions made by the, then, ASG, Mr. Sanjay Jain. 21. Before I conclude, I must also indicate that the learned ASG in rejoinder had sought to buttress her case by seeking to place reliance on letter dated 6.10.2014 addressed by UOI to the petitioner. According to me, the submission made based on contents of letter dated 6.10.2014 is, prima facie, not sustainable for the reason that at the given point in time when UOI indicated to the petitioner that even though its category had changed, an FSA could not be executed in its favour since its name was not included in t ..... 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