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TMI Blog2023 (4) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;, it has to be effected from the date on which such change occurs. This Court has clearly held that the DISCOMS have a contractual obligation to make timely payment of the invoices raised by the power generating companies, subject to scrutiny and verification of the same. This Court has rejected the contention that the funding cost was much lesser than the rate of LPS. This Court has reiterated the proposition that the courts cannot rewrite a contract which is executed between the parties. This Court has emphasized that it cannot substitute its own view of the presumed understanding of commercial terms by the parties, if the terms are explicitly expressed. It has been held that the explicit terms of a contract are always the final word with regard to the intention of the parties. This Court has reiterated that once carrying cost has been granted, it cannot be urged that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. It has been held that grant of compound interest on carrying cost and that too from the date of the occurrence of the 'Change in Law' event is based on sound logic. It has been held that it is aimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for computing 'Change in Law' relief, the operating parameters should be considered on 'actuals' OR as per technical information submitted in bid? (iii) Whether 'Change in Law' relief compensation is to be granted from 1st April 2013 (start of Financial Year) or 31st July 2013 (date of NCDP 2013)? 3. After extensively hearing all the learned Counsel for the parties, vide the judgment and order dated 3rd March 2023 in the case of MSEDCL v. APML and Ors. (supra), this Court decided those two appeals after considering the aforesaid three issues. 4. The first issue was answered by this Court, holding that the 'Change in Law' relief for domestic coal shortfall should be on 'actuals', i.e. as against 100% of normative coal requirement assured in terms of the NCDP, 2007. Insofar as the second issue is concerned, it was held that the Station Heat Rate ( SHR for short) and Auxiliary consumption should be considered as per the Regulations or actuals, whichever is lower. The third issue was answered holding that the Start date for the 'Change in Law' event for the NCDP, 2013 is 1st April 2013. 5. After we decided those appeals, we have heard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the PPAs, the cut-off date, which is 7 days prior to the bid deadline, is to be considered for the purpose of claims under 'Change in Law'. Following are the cut-off dates under the said PPAs. DNH PPA MSEDCL PPA TANGEDCO PPA Cut-off date 1.6.2012 31.7.2009 27.2.2013 13. Certain 'Change in Law' events occurred with regard to MSEDCL PPA and DNH PPA after the cut-off date. The same were notified by GWEL to MSEDCL/DNH-DISCOM. 14. GWEL filed Petition No. 8/MP/2014 before the Central Electricity Regulatory Commission (hereinafter referred to as CERC ) seeking relief for 'Change in Law'. 15. Vide Order dated 1st February 2017, certain claims were allowed and certain claims were disallowed by the CERC. 16. The claims which were allowed by the CERC are thus: i. Increase in CVD from 8% to 10% and 10% to 12%; ii. Increase in Excise Duty; iii. Increase in Service Tax; iv. Increase in other taxes [Work Contract Tax (WCT), VAT, CST]; v. Change in Excise Duty on coal; vi. Increase in the rate of Royalty on coal; vii. Levy of Clean Energy Cess by Government of India (Gol); viii. Increase in service tax on transportation of goods by IR; ix. Levy of Swachh Bharat Cess. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (iv) Increase in levy of Minimum Alternate Tax ( MAT for short) pursuant to amendment of Section 115JB of the Income Tax Act, 2012; (v) Design changes in Coal Handling Plant in terms of letter issued by the Central Electricity Authority ( CEA for short) dated 19th April 2011; (vi) Increase in working capital. 23. It is submitted that all these changes have taken place on account of the Notifications/Orders/Circulars issued by the instrumentalities of the State and as such, the learned APTEL ought to have allowed the claim for compensation on account of 'Change in Law' on the aforesaid items also. 24. It is submitted that the compensation on account of the 'Change in Law' is based on the principle of restitution so as to put back the party to the same economic position it was in, had the 'Change in Law' event not taken place. However, this has not been considered in the correct perspective by the learned APTEL. 25. Learned Counsel appearing on behalf of the DNH-DISCOM and MSEDCL, on the contrary, submit that the learned APTEL has erred in considering the Busy Season Surcharge and Development Surcharge, MoEF Notification on coal quality, Change in NCDP and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed Imposition of Swachh Bharat Cess Allowed Payment to National Mineral Exploration Trust Allowed Payment to District Mineral Foundation Allowed Installation of FGD as per Environmental clearance dated 20.5.2010 Auxiliary consumption due to FGD installation affecting capacity charges Additional operating expenditure on FGD Not decided and liberty granted Carrying cost Not Allowed 28. Being aggrieved by the order of the CERC, cross-appeals were filed by AP(M)L so also by Haryana DISCOMS before the learned APTEL. The Haryana DISCOMS challenged that part of the order of the CERC which allowed claim on components on the ground of 'Change in Law', whereas AP(M)L challenged that part of the order of the CERC which disallowed its claim on various components. 29. Though AP(M)L had sought 'Change in Law' compensation on various components, the same was allowed by the learned APTEL by the impugned order only on the ground of: (i) 'Busy Season Surcharge and Developmental Surcharge on transportation of coal', and (ii) 'Carrying Cost'. 30. The claim of AP(M)L pertaining to increase in Surface Transportation Charges so also Sizing Charges of coal were denied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission are thus: 1. Change in Pricing Mechanism of Coal from Useful Heat Value (UHV) Basis to Gross Calorific Value Basis (GCV) 2. Increase in Sizing Charges for coal charged by Coal India Ltd. (CIL) 3. Increase in Surface Transportation Charges 4. Increase in Busy Season Surcharge on Transportation of Coal by Indian Railways 5. Increase in Development Surcharge levied on Transportation of Coal by Railways 6. Levy of Fuel Adjustment Component 7. Levy of Port Congestion Surcharge 8. Levy of Forest Tax 9. Change in Classification of Coal for Train Load Movement 39. Vide the impugned judgment, the learned APTEL dismissed the appeal of the Rajasthan DISCOMS and partly allowed the appeal of APRL allowing its claims on the ground of 'Busy Season Surcharge', 'Development Surcharge', 'Port Congestion Surcharge, 'Forest Tax' and 'Carrying Cost'. Being aggrieved thereby, the Rajasthan DISCOMS have approached this Court. 40. We have heard Mr. V. Giri, learned Senior Counsel appearing on behalf of the Rajasthan DISCOMS and Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the APRL. 41. Mr. V. Giri submits that Clause 10 in the PPA is refera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Not Allowed 46. As stated above, being aggrieved by that part of the order which disallowed its claim, APRL preferred the aforesaid Appeal before the learned APTEL, whereas the Rajasthan DISCOMS, being aggrieved by that part of the order which allowed claims on certain components, also filed an Appeal before the learned APTEL. 47. The learned APTEL, while dismissing the appeal of the Rajasthan DISCOMS, partly allowed the appeal of the APRL by allowing compensation on certain other components on the ground of 'Change in Law'. 48. The components on which 'Change in Law' benefits were granted by the learned APTEL are thus: (i) Coal Terminal Surcharge; (ii) Chhattisgarh Paryavaran Upkar; (iii) Chhattisgarh Vikas Upkar; (iv) Change in Swachh Bharat Cess at the rare of 0.5% on Service Tax for Operation Period; (v) Change in Krishi Kalyan Cess at the rate 5% on Service Tax for Operation Period; 49. In addition to grant of relief on the ground of 'Change in Law', the learned APTEL also granted 'Carrying Cost'. 50. Arguments similar to the ones advanced in Civil Appeal No. 12055-12056 of 2018 were advanced by Mr. V. Giri, learned Senior Counsel appearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the restitutionary principle, the CERC as well as the learned APTEL ought to have granted claims on the basis of 'Change in Law'. He further submits that increase in levy of MAT has also been increased by the Union of India and, as such, the same would also amount to 'Change in Law'. It is further submitted that interest on working capital was also increased on account of the orders of the instrumentalities of the State and, as such, compensation also ought to have been granted for the same. 57. Learned Counsel for the Bihar DISCOMS submits that the CERC as well as the learned APTEL have grossly erred in allowing claims on certain components on the ground of 'Change in Law'. Civil Appeal No. 6641 of 2019 58. This appeal filed by GKEL arises out of the judgment and order dated 27th May 2019, passed by the learned APTEL in Appeal No. 195 of 2016, thereby partly allowing the appeal. 59. GKEL filed Petition No. 79/MP/2013 before the CERC claiming compensation on various component on the ground of 'Change in Law' events. 60. The CERC, vide order dated 3rd February 2016, disallowed compensation for the following components: (a) Change from UHV to GCV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge and Development Surcharge; (d) Levy of Add-On Premium over and above the notified price of coal; and (e) Carrying Cost. 66. Upon remand, the CERC passed order dated 16th September 2019, thereby granting compensation on certain components on the ground of 'Change in Law' including carrying cost. 67. Contending that the order passed by the CERC did not give effect to the 'Change in Law' components as directed by the learned APTEL, an appeal being Appeal No. 423 of 2019 came to be preferred by GKEL before the learned APTEL. 68. Bihar DISCOMS had also filed an appeal being Appeal No. 173 of 2021, before the learned APTEL, being aggrieved by the benefits which were granted by the CERC. 69. By the impugned order, the learned APTEL held that the GKEL was entitled to recover expenditure involved in procurement of alternate coal due to shortfall in domestic coal supply corresponding to scheduled generation pertaining to the obligations under the Bihar PPA. The learned APTEL held that this was required to be done in order to restore the Appellant-GKEL to the same economic position as before as if no 'Change in Law' event had occurred. 70. We have heard Ms. Anushr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erm Basis under Case-1 bidding procedure. As per the RFP, the cutoff date was 1st June 2012. 77. The Respondent-GWEL emerged as the successful bidder for supplying Aggregated Contracted Capacity of 200 MW at a levelized tariff of Rs. 4.618 per Unit. 78. Accordingly, Letter of Intent (LoI) was issued by DNH-DISCOM on 14th August 2012. An application/petition being Petition No. 87/2012 came to be filed before the Joint Electricity Regulatory Commission (hereinafter referred to as Joint Commission ) for approval of the PPA and adoption of tariff. GWEL was also joined as a co-Petitioner in the said Petition. The Joint Commission, vide order dated 19th February 2013, approved the PPA. Accordingly, the PPA came to be executed on 21st March 2013. 79. GWEL filed Petition No. 8/MP/2014 before the CERC seeking compensation on certain components on the ground of 'Change in Law'. The same was decided by the CERC vide order dated 1st February 2017. Aggrieved thereby, both the Appellant-DNH-DISCOM and the Respondent-GWEL filed appeals before the learned APTEL. In appeal, the learned APTEL remanded the matter to the CERC vide order dated 14th August 2018 for considering certain issues. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rattan India has entered into PPAs dated 22nd April 2010 and 5th June 2010 with MSEDCL for supply of 1200 MW aggregate power at levelized tariff of Rs. 3.260 KWH for a period of 25 years. It filed a petition before MERC, being Case No. 227 of 2018, claiming compensation on the ground of 'Change in Law' occurring on account of the circular dated 19th December 2017 issued by CIL, vide which it levied the Evacuation Facility Charges (for short, EFC ). The same was rejected by MERC, vide order dated 1st January 2019. A similar petition being Case No. 124 of 2018 was also filed by APML, raising a similar claim before MERC, which was also rejected by MERC, vide its earlier order dated 3rd August 2018. 86. Being aggrieved thereby, Rattan India had filed an Appeal No. 118 of 2021 and APML had preferred an Appeal No. 40 of 2022. By the impugned order, the learned APTEL had held EFC imposed by CIL vide Circular dated 19th December 2017 to be a 'Change in Law' event and, accordingly, held the Generators to be entitled to compensation on the said ground. Being aggrieved thereby, the MSEDCL has preferred these appeals. 87. We have heard Shri Balbir Singh, learned Additional Sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the dues of the generating companies by DISCOMS, the generating companies are required to borrow the funds at the market rate and as such, applying the restitutionary principle, it is entitled to carrying cost as provided under the agreement. III. ADDITIONAL ISSUES 92. After hearing the learned Counsel for the parties at length, we find that, apart from the three issues that were already decided by this Court in the case of MSEDCL v. APML and Ors. (supra), the issues as to whether the following components could be considered as 'Change in Law' events fall for consideration herein: (i) Busy Season Surcharge Development Surcharge and Port Congestion Surcharge; (ii) MoEF Notification on coal quality; (iii) Shortfall in linkage coal due to Change in NCDP; (iv) Forest Tax; (v) Add on Premium price. (vi) Evacuation Facility Charges (EFC). Apart from that, another question that requires consideration is, as to whether various taxes/charges imposed by various State Governments would also fall under 'Change in Law' events or not. The other question that requires considerations is, as to whether at what rate the Generators would be entitled to 'carrying cost'. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly would. 96. The aforesaid view of this Court taken in the case of Energy Watchdog (supra) has been approved by a Bench of three learned Judges of this Court in Adani Rajasthan case (supra) and also followed by this Court when the two linked matters out of this batch of appeals were decided by this Court in the case of MSEDCL v. APML and Ors. (supra). It cannot be denied that CIL is an instrumentality of the Government of India and its orders, insofar as price of fuel are concerned, are binding on all its subsidiaries. 97. It will further be relevant to refer to Clause 9.0 of the CSA, which reads thus: 9.0 PRICE OF COAL: The As Delivered Price of Coal for the Coal supplies pursuant to this Agreement shall be the sum of Base Price, Other Charges and Statutory Charges, as applicable at the time of delivery of Coal. It is thus clear that price of coal includes the sum of base price, other charges and statutory charges as applicable at the time of delivery of coal. 98. As discussed herein above, the term 'Law' would also include all applicable rules, Regulations, orders, No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is thus clear that the said Notifications dated 11th July 2012 and 2nd January 2014 would amount to Change in Law'. As such, no fault can be found with the finding of the learned APTEL that the same would amount to 'Change in Law'. Shortfall in Linkage Coal due to Change in NCDP 106. Insofar as shortfall in linkage coal due to changes in the NCDP issued by the Ministry of Coal ( MoC for short) is concerned, the issue is no more res integra. This Court in the case of Energy Watchdog (supra) so also in Adani Rajasthan case (supra) and recently in MSEDCL v. APML and Ors. (Supra) has held that the change in NCDP would amount to 'Change in Law'. Forest Tax 107. Insofar as Forest Tax is concerned, perusal of the material placed on record would reveal that, as on the cut-off date, there was no Forest Tax applicable on coal mined and transported from South Eastern Coalfields Limited ( SECL for short) mines located in Forest area. For the first time, vide Notification of the Chhattisgarh State Government, Department of Forest, under the provisions of Chhattisgarh Transit (Forest Produce Rule) 2001, a fee at the rate of Rs. 7 per ton was levied. Undisputedly, the said Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest), for each day of the delay. *** 11.8. Payment of supplementary bill.-- 11.8.1. Either party may raise a bill on the other party ( supplementary bill ) for payment on account of: (i) Adjustments required by the Regional Energy Account (if applicable); (ii) Tariff payment for change in parameters, pursuant to provisions in Schedule 5; or (iii) Change in law as provided in Article 13 and such Bill shall be paid by the other party. *** 11.8.3. In the event of delay in payment of a supplementary bill by either party beyond one month from the date of billing, a late payment surcharge shall be payable at same terms applicable to the monthly bill in Article 11.3.4. 116. A perusal of Article 11.3.4 of the PPA would reveal that in the event of delay in payment of a monthly bill by any procurer beyond its due date, a late payment surcharge shall be payable by the procurer to the seller at the rate of 2% in excess of the applicable State Bank Advance Rate ( SBAR for short) per annum, on the amount of outstanding payment, calculated on a day to day basis (and compounded with monthly rest), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in which increase/decrease of capital cost of the project in the tariff is to be governed by a certain formula. However, the seller has to provide to the procurer documentary proof of such increase/decrease in capital cost for establishing the impact of such change in law and in the case of dispute as to the same, a dispute resolution mechanism as per Article 17 of the PPA is to be resorted to. It is also made clear that compensation is only payable to either party only with effect from the date on which the total increase/decrease exceeds the amount stated therein. 11. So far as the operation period is concerned, compensation for any increase/decrease in revenues or costs to the seller is to be determined and effected from such date as is decided by the appropriate Commission. Here again, this compensation is only payable for increase/decrease in revenue or cost to the seller if it is in excess of an amount equivalent to 1% of the Letter of Credit in aggregate for a contract year. What is clear, therefore, from a reading of Article 13.2, is that restitutionary principles apply in case a certain threshold limit is crossed in both Sub-clauses (a) and (b). There is no dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of tariff may be charge. However, in Article 13 of the Stage 1 and Article 10 of the Stage 2 power purchase agreements, tariff means monthly tariff and tariff adjustment consequential to change in law, is of monthly tariff in respect of supply of electricity. 175. As argued by the Respondent power generating companies appearing through Mr. Rohatgi, Mr. Singhvi, Mr. Mukherjee and Ms. Anand respectively, LPS is only payable when payment against monthly bills is delayed and not otherwise. 176. The object of LPS is to enforce and/or encourage timely payment of charges by the procurer i.e. the Appellant. In other words, LPS dissuades the procurer from delaying payment of charges. The rate of LPS has no bearing or impact on tariff. Changes in the basis of the rates of LPS do not affect the rate at which power was agreed to be sold and purchased under the power purchase agreements. The principle of restitution under the change in law provisions of the power purchase agreements are attracted in respect of tariff. 177. LPS cannot be equated with carrying cost or actual cost incurred for the supply of power. The Appellant has a contractual obligation to make timely payment of the invoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided in Article 13 and such bills are required to be paid by the either party. Article 11.8.3 of the PPA specifically provides that in the event of delay in payment of a supplementary bill by either party beyond one month from the date of billing, a late payment surcharge shall be payable at the same terms applicable to the monthly bill in Article 11.3.4. Article 11.3.4 of the PPA specifically provides a late payment surcharge to be paid by the procurer to the seller at the rate of 2% in excess of the applicable SBAR per annum on the amount of outstanding payment calculated on day to day basis (and compounded with monthly rest), for each day of the delay. 123. Recently, this Court, in the case of Uttar Haryana Bijli Vitran Nigam Limited and Anr. v. Adani Power (Mundra) Limited and Anr. (2023) 2 SCC 624, had an occasion to consider the similar issue. The Court observed thus: 20. It is clear that the restitutionary principles encapsulated in Article 13.2 would take effect for computing the impact of change in law. We see no reason to interfere with the impugned judgment [Adani Power (Mundra) Ltd. v. CERC,], wherein it has been held by the Appellate Tribunal that Respondent 1 Adani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lates to payment of compensation under the Land Acquisition Act and the interest that would be payable in case of delayed payment of compensation. 124. It is thus clear that this Court has reiterated that once carrying cost has been granted, it cannot be urged that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. It has been held that grant of compound interest on carrying cost and that too from the date of the occurrence of the 'Change in Law' event is based on sound logic. It has been held that it is aimed at restituting a party that is adversely affected by a 'Change in Law' event and restore it to its original economic position as if such a 'Change in Law' event had not taken place. 125. The argument that there is no provision in the PPAs for payment of compound interest from the date when the 'Change in Law' event had occurred, has been specifically rejected by this Court. 126. In view of this consistent position of law and application of restitutionary principles and privity of contractual obligations between the parties as contained in the PPAs, we do not find that the view taken by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 3 SCC 711] a three-Judge Bench of this Court dealt with the fixation of tariffs and held thus: (SCC p. 717, para 11) 11. We also agree with the High Court [S. Bharat Kumar v. State of A.P., (2000) 6 ALD 217] that the judicial review in a matter with regard to fixation of tariff has not to be as that of an appellate authority in exercise of its jurisdiction Under Article 226 of the Constitution. All that the High Court has to be satisfied with is that the Commission has followed the proper procedure and unless it can be demonstrated that its decision is on the face of it arbitrary or illegal or contrary to the Act, the court will not interfere. Fixing a tariff and providing for cross-subsidy is essentially a matter of policy and normally a court would refrain from interfering with a policy decision unless the power exercised is arbitrary or ex facie bad in law. xxx xxx xxx 123. Recently, the Constitution Bench of this Court in the case of Vivek Narayan Sharma v. Union of India has held that the Courts should be slow in interfering with the decisions taken by the experts in the field and unless it is found that the expert bodies have failed to take into consideration the mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Appeal Nos. 12055-12056 of 2018 138. The issue of Busy Season Surcharge, Development Surcharge and Port Congestion Surcharge have already been considered by us herein above. All these are charges under the Notifications issued by the Indian Railways, through the Railway Board. As such, no error can be found with the finding of the learned APTEL that they would amount to 'Change in Law' events. 139. Insofar as levy of 'Forest Tax' is concerned, the same is levied by the State Government under the statutory provisions. 140. The issue with regard to 'Carrying Cost' has also been discussed by us herein above. 141. In that view of the matter, we do not find any reason to interfere with the order of the learned APTEL. The appeals are, accordingly, liable to be dismissed. Civil Appeal Nos. 2935-2936 of 2020 142. In addition to the 'Change in Law' benefits granted by the State Commission, 'Coal Terminal Surcharge', 'Chhattisgarh Paryavaran Upkar' and 'Chhattisgarh Vikas Upkar' were also considered to be 'Change in Law' events by the learned APTEL. 143. The 'Coal Terminal Surcharge' was levied by the Indian Railway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasoning adopted by the learned APTEL is perverse and arbitrary. 150. Insofar as the issue with regard to 'carrying cost' is concerned, we have already discussed the issue at length in the foregoing paragraphs. As such, no interference is warranted on that finding also. 151. Insofar as other claims which were concurrently allowed and disallowed by the CERC and the learned APTEL are concerned, in view of the concurrent findings, we are not inclined to interfere with the same. 152. The appeals of both DISCOMS as well as Generating Companies are, therefore, liable to be dismissed. Civil Appeal No. 6641 of 2019 153. This appeal is filed by GKEL, being aggrieved by the concurrent denial of benefits on certain components. 154. As already discussed herein above by us, in view of the concurrent findings recorded by the CERC as well as the learned APTEL for disallowing the claims, we are not inclined to interfere with the same. The appeal is, accordingly, liable to be dismissed. Civil Appeal Nos. 5583-5584 of 2021 155. In the present case, the benefit is granted on following grounds: (i) Shortfall in domestic coal on account of Change in NCDP; (ii) Add on premium on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the order of the learned APTEL granting compensation on account of 'EFC' and 'carrying cost'. 165. Undisputedly, the EFC was imposed by CIL vide its Circular dated 19th December 2017. 166. As discussed herein above, it is not in dispute that EFC has been paid by the Generators while paying the base price, other charges and statutory charges at the time of delivery of coal. As such, no interference is warranted with the said finding. 167. Insofar as 'carrying cost' is concerned, we have elaborately discussed the said issue herein above. As such, no interference, therefore, is warranted on the said issue also. 168. We do not find any merit in the appeals. The same are, accordingly, liable to be dismissed. VI. EPILOGUE 169. Before we part with the judgment, we must note that we have come across several appeals in the present batch which arise out of concurrent findings of fact arrived at by two statutory bodies having expertise in the field. We have also found that in some of the matters, the appeals have been filed only for the sake of filing the same. We also find that several rounds of litigation have taken place in some of the proceedings. 170. Recentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Energy titled 'Stressed/Non-Performing Assets in Electricity Sector' has recognized the financial stress faced by generating companies on account of delay in recovery of Change in Law compensations and has recommended thus: The Committee, therefore, recommend that appropriate steps should be taken to ensure that there should be consistency and uniformity with regard to orders emanating from the status of change in law. Provisions should also be made for certain percentage of payments of regulatory dues to be paid by DISCOMS in case the orders of regulators are being taken to APTEL/higher judiciary for their consideration and decision 116. The Report lays stress on the obligation of the distribution companies to pay the approved Change in Law compensation even while Regulatory Commission's orders are challenged. The Policy directive dated 27.08.2018 issued in terms of Section 107 of the Electricity Act, 2003 by the Ministry of Power (MoP) to the CERC emphasized on the need to ensure expeditious recovery of Change in Law compensation. The desirability of this was recognized by this tribunal in its judgment dated 14.09.2019 in Jaipur Vidyut Vitran Nigam Limited v. RERC a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of end consumers since it burdens the consumers with incremental LPS for delay in making payments to the generator. This cannot be countenanced, given the earlier dispensation on the subject by the statutory regulator and appellate forum(s), since it smacks of approach that is designed to frustrate the legislative command, and extant State policy, as indeed constitutes abject indiscipline infringing the Rule of law. Borrowing the words of Hon'ble Supreme Court in SEBI v. Sahara India Real Estate Corporation Ltd., (2014) 5 SCC 429 non-compliance with the orders passed... shakes the very foundation of our judicial system and undermines the Rule of law which this tribunal is also duty-bound to honour and protect , so essential to maintain faith and confidence of the people of this country in the judiciary . [emphasis supplied] 174. It could thus be seen that even the Standing Committee of Parliament, in its report, has recommended that there should be consistency and uniformity with regard to orders emanating from the status of 'Change in Law'. It has also recommended that the provisions should also be made for certain percentage of payments of regulatory dues to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If timely payment is not made by DISCOMS, under the clauses in the PPA, they are required to pay late payment surcharges, which are much higher. Even in case of 'Change in Law' claims, the same procedure is required to be followed. 178. Ultimately, these late payment surcharges are added to the cost of electricity supplied to the end consumers. It is, thus, the end consumers who suffer by paying higher charges on account of the DISCOMS not making timely payment to the Generators. 179. It is further to be noted that the appeal to this Court Under Section 125 of the Electricity Act, 2003 is only permissible on any of the grounds as specified in Section 100 of the Code of Civil Procedure, 1908. As such, the appeal to this Court would be permissible only on substantial questions of law. However, as already observed herein, even in cases where well-reasoned concurrent orders are passed by the Electricity Regulatory Commissions and the learned APTEL, the same are challenged by the DISCOMS as well as the Generators. On account of pendency of litigation, which in some of the cases in this batch has been more than 5 years, non-payment of dues would entail paying of heavy carrying co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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