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TMI Blog2022 (2) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... the Regulations concerning the same. Under Section 86(1)(f) of the Act of 2003, the Commission is also empowered to adjudicate upon the disputes between the licensees and generating companies, and to refer any such dispute for arbitration. Insofar as the reliance placed on the provision of Regulation 5.2 of the Tariff Regulations is concerned, the same deals with approach to determination of tariff. It could be seen that, whereas Regulation 5.1 of the Tariff Regulations provides that where tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government, the Commission shall adopt such tariff in accordance with the provisions of the Act; Regulation 5.2 of the Tariff Regulations provides that the provisions specified in Part II of the said Regulation shall apply in determining tariff based on capital cost for supply to a Distribution Licensee. Part II of the Tariff Regulations deals with Filing Details and Tariff Determination . Undisputedly, the appellants DISCOMS are instrumentalities of the State and as such, a State within the meaning of Article 12 of the Constitution of India. Every action of a State is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses, approvals, clearance and permits, fuel linkage, water required for establishment of the power project at Visakhapatnam in the erstwhile State of Andhra Pradesh, to HNPCL to generate and supply the electricity to APSEB. 4. An initial PPA was entered into between APSEB and HNPCL on 9th December, 1994. On 25th July, 1996, the Central Electricity Regulatory Commission (CERC) granted a Techno Economic Clearance for the power project for an estimated cost of Rs. 4628.11 crores (Rs. 4.45 crores per MW). 5. Owing to certain change in conditions, the parties agreed to amend the initial PPA. Accordingly, an Amended and Restated PPA dated 15th April, 1998, was entered into between APSEB and HNPCL. Between the years 1998 and 2007, the Amended and Restated PPA, for sale of power by HNPCL to APSEB, was not implemented. Subsequently, in the year 2007, HNPCL approached the Government of Andhra Pradesh to revive the power project mainly structuring it as a merchant plant, offering 25% of the power generated to the State and balance 75% power to third parties. However, it appears that there were negotiations between the parties, and the State Government had offered to purchase 100% power gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the power project to the tune of Rs. 6098 crores as against Rs. 5545 crores that was given in June, 2010. The appellants DISCOMS vide communication dated 17th May, 2013, expressed their reservations about the capital cost furnished by HNPCL and reserved their rights to contest the same before the State Commission. 9. On the same day, i.e., 17th May, 2013, a Memorandum of Agreement (hereinafter referred to as MoA ) was entered into between the APDISCOMS and HNPCL, thereby deciding to continue the Amended and Restated PPA dated 15th April, 1998, on the terms and conditions set out therein. In pursuance of the aforesaid MoA, a Fuel Supply Agreement ( FSA for short) dated 26th August, 2013, came to be entered between HNPCL and Mahanadi Coalfield Limited for coal supply for the said project. 10. On 12th March, 2014, a petition being O.P. No. 21 of 2015, came to be filed by HNPCL before the State Commission for determination of capital cost for the project and for determination of the tariff for such generation and sale of electricity by HNPCL to APDISCOMS. 11. Thereafter, on 2nd June, 2014, the Andhra Pradesh State Reorganisation Act, 2014, (hereinafter referred to as Reorganisatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2017, directed the State Commission to dispose of O.P. No. 19 of 2016 and O.P. No. 21 of 2015 on or before 14th August, 2017. The said period came to be extended from time to time, the last of such extension was granted till 31st January, 2018, vide order dated 10th January, 2018. 22. Thereafter, on 4th January, 2018, the appellants DISCOMS filed two Interlocutory Applications, viz., (i) I.A. No. 1 of 2018 in O.P. No. 19 of 2016 for withdrawal of O.P. No. 19 of 2016 together with initial PPA; and (ii) I.A. No. 2 of 2018 in O.P. No. 21 of 2015 for disposal of O.P. No. 21 of 2015. 23. Vide order dated 31st January, 2018, the State Commission allowed withdrawal of O.P. No. 19 of 2016 filed by the appellants DISCOMS seeking approval of PPA and consequentially dismissed O.P. No. 21 of 2015 filed by HNPCL seeking determination of tariff. 24. Aggrieved by the same, an appeal being Appeal No. 41 of 2018, came to be filed by HNPCL before the APTEL. The said appeal came to be admitted by the APTEL vide order dated 26th February, 2018. The APTEL vide order dated 16th March, 2018, passed in I.A. No. 211 of 2018 in the said appeal, as an ad hoc arrangement, directed the parties to mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By order dated 14.07.2020, we directed the stay of impugned order passed by the Appellate Tribunal for Electricity, New Delhi, in Appeal No. 41/2019. We clarify that there shall be no stay of the order dated 16.03.2018 passed by the Appellate Tribunal for Electricity, New Delhi, providing for interim measure. Order accordingly. The instant interlocutory application stands disposed of accordingly 31. It appears from the record that during the intervening period, certain Interlocutory Applications have been filed from both the sides, wherein, the appellants DISCOMS are seeking vacation of the interim order dated 21st August, 2020, whereas HNPCL is seeking implementation of the order dated 21st August, 2020. The record would show that the matter has been adjourned from time to time and was finally heard by this Court on 20th January, 2022. 32. We have heard Shri C.S. Vaidyanathan, learned Senior Counsel appearing on behalf of the appellants DISCOMS and Dr. Abhishek Manu Singhvi and Shri M.G. Ramachandran, learned Senior Counsel appearing on behalf of HNPCL. 33. Shri C.S. Vaidyanathan, learned Senior Counsel appearing on behalf of the appellants DISCOMS, submitted that the APTEL has g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they will purchase 100% power from it, is itself erroneous. He submitted that the initial project of HNPCL was lying in cold storage from 1996 to 2007. He submitted that in the year 2007, HNPCL had attempted to revive the project as a Merchant power plant. He submitted that the project of HNPCL had also attained financial closure in the year 2010. He further submitted that before the acceptance of the proposal of HNPCL by the State Government, HNPCL had already completed upto 93% of the project. It is therefore, submitted that the finding that huge investments made by HNPCL were on the basis of the representation by the State Government is totally erroneous. In any case, he submits, that the appellants DISCOMS are independent authorities and not bound by the decision of the State. He submitted that under the scheme of the Act of 2003, the appellants DISCOMS cannot purchase the power without the prior approval of the State Commission. He submits that the State has no role to play in the said matter. It is submitted that, in any case, the appellants DISCOMS could not be bound by the representation made by the State Government. 37. Shri Vaidyanathan further submits that since the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, he relied on the following authorities: (i) Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] (ii) Bharati Behera v. Jhili Prava Behera [W.P. No. 26254 of 2013 decided by Orissa High Court on 18.04.2014] (iii) Rabia Bi Qasim v. Countrywide Consumer Financial Services Limited [ILR 2004 KAR 2215] (iv) Pujya Sindhi Panchayat v. Prof. C.L. Mishra [AIR 2002 Rajasthan 274 (DB)] (v) Yash Mehra v. Arundhati Mehra [(2006) 132 DLT 166] (vi) Dharani Sugars and Chemicals Limited v. TMN Engineering Industry [CRP PD No. 3309 to 3312 of 2011 and MP No. 1 of 2011 decided by the Madras High Court on 30.08.2017] 42. Dr. Singhvi, learned Senior Counsel, further submitted that, as a matter of fact, HNPCL desired to start the project as a Merchant power plant. It is however, on the insistence of the State of Andhra Pradesh that HNPCL was compelled to supply 100% of power generated to the State. He further submitted that it is evident from the record that HNPCL had participated in the competitive bidding process conducted by the APCPDCL. It was the decision of the Bid Evaluation Committee, to not consider the bid submitted by HNPCL on the premise that the entire generation capacity of HNPCL s proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh. He submitted that the contention of the appellants DISCOMS that they had decided to withdraw the application on account of huge capital cost and the power being available in excess is also factually incorrect. He submits that recently the appellants have entered into an MoU with SEMBCORP Energy India in December, 2021 for generation of 625 MW of electricity. He submits that insofar as the price at which the electricity would be purchased by the appellants DISCOMS from the generation unit of HNPCL would be determined by the State Commission, which will have to take into consideration various aspects while approving the capital cost of the project as well as while doing the exercise of determination of tariff. The learned Senior Counsel therefore submits that no interference is warranted in the present appeal. 45. The facts in the present case are not much in dispute. It is not in dispute that on 17th July, 1992, an MoU came to be entered between APSEB and HNPCL, vide which APSEB had transferred all the licences, approvals, clearance and permits, fuel linkage, water required for the project to HNPCL. It is also not in dispute that on 9th December, 1994, an initial PPA came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and Eastern Power Distribution Company of Andhra Pradesh Limited) had conducted bidding process for procurement of power of 2000 MW +/ 20% under Case 1 to meet the base load requirements of APDISCOMS from the year 2014 2015 onwards. It is also not in dispute that in the said bidding process, HNPCL had also submitted its bid and successfully emerged as L 2 bidder. After completion of the bidding process, APCPDCL had applied for approval of the tariff at which the power was to be purchased from the successful bidders in the said process. It will be relevant to refer to paragraph 4(u) of the order dated 13th August, 2013, passed by the State Commission in O.P. No. 55 of 2013, filed by APCPDCL on behalf of all the four APDISCOMS, which reads thus: u) In the minutes of meeting held on 28th September 2012, the Bid Evaluation Committee noted that The Principal Secretary, Energy informed the Evaluation Committee that the entire capacity of Hinduja National Power Corporation Limited (HNPCL) is encumbered to the state of A.P. /DISCOMs of A.P. and hence not available for consideration under this tender. Hence, HNPCL must be taken out of the bid process and APERC must be informed accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the successor entities of APSEB to enter into a continuation agreement to the PPA of 1998 with HNPCL to the said effect. It will also be relevant to note that in the said letter it is observed that the State Government will take necessary steps within three months for execution of PPA and provision of Transmission System for Start up Power and Power Evacuation. In the said letter, the State had also agreed for providing assistance in obtaining statutory clearances/approvals from State/local authorities within the timeline for scheduled commissioning of Project. 51. In response to the aforesaid letter, HNPCL addressed a communication dated 14th January, 2013, to the State Government, thereby expressing its concurrence to the proposal given by the Government of Andhra Pradesh of procuring entire power from the Project. Vide the said letter dated 14th January, 2013, HNPCL requested the State Government to provide all the necessary support required for taking the requisite approvals from the State Commission for tariff determination based on the actual project cost. 52. A further communication dated 16th May, 2013, was addressed by HNPCL to the appellants DISCOMS. By the said letter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus be seen that in the MoA dated 17th May, 2013, it was agreed that the entire capacity of the project and all the units of the power station shall at all times be for the exclusive benefit of the DISCOMS and the DISCOMS were to have the exclusive right as well as the obligation to purchase the entire capacity from the project. Vide the said MoA, HNPCL was restrained from granting to any third party or allowing any third party to obtain any entitlement to the available capacity and/or scheduled energy. It was further agreed that in case DISCOMS do not avail power up to the Available Capacity provided by HNPCL, the DISCOMS were to pay HNPCL, the capacity charges for such un availed Available Capacity. No doubt, that in case the DISCOMS failed to avail power up to the Available Capacity provided by HNPCL, an option was available to HNPCL to sell such Available Capacity, not availed by DISCOMS, to any third party. It was also agreed that the DISCOMS were not required to pay capacity charges for such capacity sold to third parties. As per the said MoA, the Transmission line/system for start up power and power evacuation from the project was to be provided by DISCOMS through Transmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, it is not in dispute that the State Commission by an order dated 1st March, 2016, directed the appellants DISCOMS to pay an interim tariff at the rate of Rs. 3.61 per unit to HNPCL. By the said order, the State Commission also clarified that such interim tariff was without prejudice to the rights and contentions of both parties in the main petition, i.e., O.P. No. 21 of 2015. 62. After the bifurcation of the erstwhile State of Andhra Pradesh into the State of Andhra Pradesh and the State of Telangana, on 28th April, 2016, a Continuation Agreement came to be signed between the appellants DISCOMS and HNPCL. A perusal of the recital in the said Continuation Agreement dated 28th April, 2016 would reveal that the Government of Andhra Pradesh represented by the erstwhile APSEB had expressed the desire to establish a coal based Thermal Power Project at Visakhapatnam and had selected the consortium of Ashok Leyland Limited, a company incorporated in India and Mission Energy Company, a California, USA corporation, to set up a joint venture for establishing a thermal power station. The said Continuation Agreement dated 28th April, 2016, also refers to the MoU of 1992 (dated 17th July, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Amended and Restated PPA dated 15th April, 1998) shall stand amended as mentioned in the said Continuation Agreement dated 28th April, 2016. It has been specifically averred that the Continuation Agreement and the 1998 PPA shall together constitute one and the same agreement. 64. Immediately after the said Continuation Agreement was entered into between the appellants DISCOMS and HNPCL, the appellants DISCOMS filed an application being O.P. No. 19 of 2016 under Section 86(1)(b) of the Act of 2003 for grant of approval of PPA. The said application contained the entire history narrated herein above leading up to the execution of the Continuation Agreement dated 28th April, 2016. The prayer clause in the said application reads thus: PRAYER 32. Therefore, it is prayed that the Hon ble Commission may be pleased to grant approval/consent for the initialed Continuation Agreement to the PPA dated 15.04.1998 together with Amended Restated PPA dated 15.04.1998 of HNPCL. 65. The State Government vide order dated 1st June, 2016, accorded approval for purchase of 100% power from HNPCL. On 3rd July, 2016, the second unit of HNPCL (520 MW) was declared COD. Vide order dated 6th August, 2016, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 2nd May, 2018. 70. It is also not in dispute that in the meantime, Execution Petition No. 3 of 2018 was filed by HNPCL before the APTEL seeking execution of order dated 16th March, 2018, passed by the APTEL in I.A. No. 211 of 2018 in Appeal No. 41 of 2018. 71. The appellants DISCOMS had also approached this Court by way of Civil Appeal No. 5772 of 2018, challenging the interim order passed by the APTEL dated 16th March, 2018. However, this Court refused to interfere with the said order and directed the APTEL to decide the appeal pending before it expeditiously without taking into consideration the observation in the impugned order as conclusive. 72. Vide the impugned judgment and order dated 7th January, 2020, the Appeal No. 41 of 2018, filed by HNPCL has been allowed by the APTEL, the correctness of which is under challenge in the present proceedings. 73. It could thus clearly be seen that though HNPCL had initially proposed to revive its project in the year 2007 as a Merchant power plant and had proposed to give the Government of Andhra Pradesh first right of refusal, in the MoU, to purchase 25% of the power at regulated tariff, it was at the instance of the State of And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the entire capacity of HNPCL project and all the units of the power stations shall, at all times, be for the exclusive benefit of the DISCOMS and the DISCOMS were to have the exclusive right as well as obligation to purchase the entire capacity from the project. Not only this, but after the Reorganisation Act came into effect and the erstwhile State of Andhra Pradesh was bifurcated into the State of Andhra Pradesh and the State of Telangana, the State of Andhra Pradesh, on more than one occasion, reiterated its stand of procuring 100% power from the project of HNPCL. Perusal of the orders of the State Commission dated 26th September, 2015 and 6th August, 2016, would clearly reveal that the appellants DISCOMS also stood by the position that the 100% power generated in the power plant of HNPCL was to be purchased by them. Not only this, but after the bifurcation of the erstwhile State of Andhra Pradesh, the appellants DISCOMS entered into a Continuation Agreement dated 28th April, 2016, reiterating their stand. 76. After the Continuation Agreement was entered into on 28th April, 2016, the appellants DISCOMS filed O.P. No. 19 of 2016 for approval of the Continuation Agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w it is permissible for the appellants DISCOMS to withdraw the application for grant of approval of PPA on the ground that it could procure the power only through the competitive bidding process, when in the facts of the present case, it was the State of Andhra Pradesh, which had discarded HNPCL from the open bidding process of 2011 2012, though it had successfully emerged as L 2 bidder in the said bidding process. 80. Various authorities have been cited at the Bar in support of the proposition that withdrawal of an application could not be permissible when such a withdrawal amounts to frustration of a contract and thereby defeats the rights of the defendant and that the right of withdrawal is not absolute. In this respect, we will refer to the observations made by this Court in the case of Arjun Singh v. Mohindra Kumar Ors. [(1964) 5 SCR 946]. Though the issue involved in the said case is distinct than the issue involved in the present case, we find that it will be apposite to seek guidance from the observations made by this Court, while construing the provisions of Order IX and Order XX of the Code of Civil Procedure, 1908 (CPC). The relevant extract reads thus: .In the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the appellant therein to the Licensing Authority for grant of a license. It was not an application in a quasi judicial proceeding where the withdrawal of an application would adversely affect the rights of the other party. In the said case, it has been observed that if a person applies for a license, there is no prohibition as to why he is not entitled to withdraw his application, unless, of course, there is some provision in law, which would prevent him from doing so. The proceedings in the aforesaid case did not arise from a lis between the two parties, but arose out of an application made by a party to a licensing authority under the Docks and Harbours Act, 1966. 84. Insofar as the reliance placed on the judgment of this Court in the case of Hulas Rai Baij Nath (supra) is concerned, the respondent therein had instituted a suit for rendition of accounts against the appellant -firm, alleging that the appellan-t firm was the commission agent of the respondent and that the accounts between respondent as the principal and appellant as the agent were not settled. The claim of the respondent was resisted by the appellant therein, stating that the claim of the respondent was fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age when no preliminary decree had been passed for rendition of account and, in fact, the appellant was still contending that there could be no rendition of accounts in the suit, because accounts had already been settled. Even in para 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant, a decree may be passed in favour of the appellant for that amount. In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed. 85. It could thus be seen that the facts in the aforesaid case are totally different from the facts in the present case. This Court in the aforesaid case held that there is no provision in the CPC, which requires the Court to refuse permission to withdraw the suit and compel the plaintiff to proceed with it. However, this Court itself has clarified that different considerations could arise where a set off may have been claimed under order VIII of CPC, or a counter claim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commission is not bound to accept the same. The State Commission would only approve the cost as it would feel appropriate, as guided by the provisions under Section 61 of the Act of 2003 and the Regulations. In that view of the matter, the argument in this regard also, is without substance. 89. The appellants DISCOMS have heavily relied on the judgment of this Court in the case of Tata Power Company Limited v. Reliance Energy Limited and others [(2009) 16 SCC 659], and particularly, on paragraph 106 thereof, which reads thus: 106. The scheme of the Act, namely, the generation of electricity is outside the licensing purview and subject to fulfilment of the conditions laid down under Section 42 of the Act a generating company may also supply directly to consumer wherefor no licence would be required, must be given due consideration. The said provision has to be read with Regulation 24. In regard to the grant of approval of PPA the procedures laid down in Regulation 24 are required to be followed. 90. No doubt, that this Court has held that a generating company may also supply directly to consumer wherefor no licence would be required, however, this Court itself observed that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the generating companies or licensees or from other sources through agreements. As a part of the regulation it can also adjudicate upon disputes between the licensees and generating companies in regard to the implementation, application or interpretation of the provisions of the said agreement. 94. It is thus trite that, while considering grant of approval to the PPA, the State Commission will have to keep in mind the public interest. It will have to consider, as to whether the PPA, which is subject to approval, sub serves the public interest. It will also be required to take into consideration, as to whether the terms agreed are fair and just while granting approval. While exercising power under Section 86(1)(b) of the Act of 2003, the Commission will have to regulate the price at which the electricity would be procured from the generating companies. Undoubtedly, while doing so, the Commission will be guided by the factors mentioned in Section 61 of the Act of 2003 and the Regulations concerning the same. Under Section 86(1)(f) of the Act of 2003, the Commission is also empowered to adjudicate upon the disputes between the licensees and generating companies, and to refer any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though it had emerged as the successful L 2 bidder, does not hold water and we have no hesitation to say that the appellants DISCOMS approach is of approbate and reprobate. 99. In any event, we find that the State Commission has totally erred in dismissing O.P. No. 21 of 2015 filed by HNPCL. Perusal of Section 64 of the Act of 2003 would reveal that even a Generating Company is entitled to make an application for determination of tariff under Section 62 of the Act of 2003. As such, irrespective of the question, as to whether an application for withdrawal of O.P. No. 19 of 2016 filed by the appellants DISCOMS could have been entertained, the State Commission was wholly unjustified in dismissing O.P. No. 21 of 2015 filed by HNPCL. In any case, we have held that in the facts of the present case and, particularly, taking into consideration the conduct of the appellants DISCOMS, the APTEL has rightly held that the appellants DISCOMS could not have been permitted to withdraw O.P. No. 19 of 2016. 100. Undisputedly, the appellants DISCOMS are instrumentalities of the State and as such, a State within the meaning of Article 12 of the Constitution of India. Every action of a State is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been made, from the purview of judicial review to test its validity on the anvil of Article 14. 102. It will also be apposite to refer to the following observations of this Court in the case of Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71]: 7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is fair play in action . Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to essentially abide by this inalienable and nonnegotiable prescriptions and cannot act in breach of the trust reposed by the polity and on extraneous considerations. In exercise of uncontrolled discretion and power, it cannot resort to any act to fritter, squander and emasculate any public property, be it by way of State largesse or contracts, etc. Such outrages would clearly be unconstitutional and extinctive of the rule of law which forms the bedrock of the constitutional order. 104. In the present case, though initially, HNPCL had revived its project in the year 2007 as a Merchant power plant and offered 25% of electricity to the State, it was the State, which offered to purchase 100% power from HNPCL. HNPCL agreed for the said offer of the State Government. It is clear from the record and, particularly, the letter dated 26th December, 2012, that the State had given various facilities/concessions to HNPCL for execution of its power project. The documents on record would reveal that the State has also allotted thousands of acres of land for the project to HNPCL. It is not in dispute that in pursuance of the MoA of 2013 (dated 17th May, 2013) and the Continuation Agreement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between 2011 till 15th May, 2017. It is not as if something new has emerged between 15th May, 2017 and 4th January, 2018, which would have entitled the appellants DISCOMS to resile from their earlier stand. We have no hesitation to hold that the appellants DISCOMS could not be permitted to change the decision at their whims and fancies and, particularly, when it is adversarial to the public interest and public good. The record would clearly show that the change in decision is arbitrary, irrational and unreasonable. 106. We may also gainfully refer to the following observations of this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and Others [(2010) 9 SCC 437]: 25. The State is under obligation to act fairly without ill will or malice in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conduct of the appellants DISCOMS. Though vide order dated 14th July, 2020, this Court had stayed the impugned judgment passed by the APTEL, vide order dated 21st August, 2020, this Court had clarified that there shall be no stay of the order dated 16th March, 2018 passed by the APTEL. It is not in dispute that in pursuance of the interim order dated 16th March, 2018, passed by the APTEL, the appellants DISCOMS were purchasing the power at the rate of Rs. 3.82 per unit from HNPCL till 14th July, 2020. It is thus clear that in view of the order passed by this Court on 21st August, 2020, the appellants DISCOMS were required to continue to purchase the power from HNPCL at the rate of Rs. 3.82 per unit. Undisputedly, this has not been done. The reason given for the same is that the appellants DISCOMS had already filed an application for vacation of the order dated 21st August, 2020. By merely filing an application, the appellants DISCOMS could not have avoided abiding with the order of the APTEL dated 16th March, 2018, as maintained by this Court vide order dated 21st August, 2020. It is brought to our notice that though the appellants DISCOMS could have purchased the power from H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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