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TMI Blog2023 (4) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion"), dated 01.07.2015 [in petition No 1363/2013] was affirmed. 2. The first appellant - Gujarat Urja Vikas Nigam Limited (hereafter "Gujarat Urja") had approached this court previously challenging the order of APTEL, which was disposed of by this court [Civil Appeal No 1253/2019 by order dated 15.02.2019] granting liberty to it, to seek review/rectification. Gujarat Urja then preferred a review petition, which was rejected by APTEL, by the second impugned order. When this appeal was taken up for hearing, on 14.10.2020, this court had issued notice and stayed the impugned order of APTEL. Background 3. Gujarat Urja procures power in bulk on behalf of distribution licensees in the state of Gujarat; it is an authorized licensee within the meaning of the term under the Act. The second, third, fourth and fifth appellants are distribution licensees in the State of Gujarat. The first respondent, Renew Wind Energy (Rajkot) Pvt Ltd (hereafter "RWE") is a wind generator which had set up 25.2 MW Wind Turbine Generators at District Rajkot, Gujarat under the Renewable Energy Certification scheme notified by the Central Electricity Regulatory Commission (hereafter, "Central Commission"). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms and Conditions for Recognition and issuance of Renewable Energy Certificate for Renewable Energy Generation) Regulations, 2010 (hereafter "REC Regulations 2010") were framed by the Central Commission for the development of a power market for non-conventional sources of energy by the issuance of tradable and saleable credit certificates (hereafter "RECs"). Regulation 5 of the said REC Regulations 2010 provides for the required eligibility for the renewable generators for participating in the RE Certificates: "5. Eligibility and Registration for Certificates: (1) A generating company engaged in generation of electricity from renewable energy sources shall be eligible to apply for registration for issuance of and dealing in Certificates if it fulfills the following conditions: a. it has obtained accreditation from the State Agency; b. it does not have any power purchase agreement for the capacity related to such generation to sell electricity at a preferential tariff determined by the Appropriate Commission; and c. it sells the electricity generated either (i) to the distribution licensee of the area in which the eligible entity is located, at a price not exceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nergy) were not eligible for any benefits including banking facilities, exemption from payment of cross subsidy surcharge etc. amongst other things. The stated promotional benefits were applicable only in terms of trading and selling of the RE Certificates. 8. The REC Regulations 2010 provided for floor price and forbearance price i.e. minimum price and maximum price respectively at which RECs could be traded in the power exchange. Those prices i.e. floor price and the forbearance prices were to be determined by the central commission for the entire country. 9. In the present case, the State Commission by its order [Dated 30.01.2010 in Order No 1/2010] determined the tariff for procurement of power by distribution licensees from wind energy generators and also ruled on other commercial issues for wind energy generators set up under a preferential tariff mechanism. The order provided for a preferential levelized tariff of 3.56 per kWh for the supply of energy to the distribution licensee for meeting it's Renewable Power Purchase Obligation (RPO). The "control period" of the Order [dated 30.1.2010] was for the period 11.08.2009 to 10.08.2012[3]. The order, inter alia, also provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e procured by the distribution licensees and others from wind power projects commissioned in the control period from 11.08.2012 to 31.03.2016. 13. On 11.07.2013, Central Commission amended the REC Regulations 2010 (hereafter "Second Amendment") and replaced "at a price not exceeding pooled cost of the power purchase "with" at the pooled cost of power purchase"[5] along with the relevant statement of reasons for the said amendment. It was clarified in the amendment that PPAs already executed prior to this amendment at a tariff lower than APCC would not be affected. The first two respondents were aggrieved by the order of the Central Commission. They filed a petition [Petition No. 1363 of 2013] before the State Commission arguing that the terms of the PPA had to be changed in view of the change in the REC regulations. This petition was allowed by the State Commission directing that the order of the Central Commission was general and was therefore applicable to all similarly situated wind power generators. Aggrieved by the order of the State Commission, Gujarat Urja had preferred an appeal [Appeal No. 209/2015] before APTEL. This appeal was rejected by APTEL by order dated 06.12.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any law or regulations for the parties to agree to such tariff and in fact, REC Regulations 2010 itself recognized that the PPA can be "at a price not exceeding the pooled purchase cost". Likewise, for the sale of such power to customers or the licensees, reference is made to "mutually agreed price" and therefore reference to "mutually agreed price" can mean that price can also be a fixed price and need not mean that it has to be dynamic and varying every year. 18. It was argued that the interpretation placed by APTEL is not founded on any express provision in the regulations, or anything arising out of necessary implication. The change in regulations, unless made specifically operable for a prior period, cannot be construed to be retrospective. Thus, contracts concluded prior to the entered into prior to the amendment [in 2013] cannot be governed by amended provisions. Doing so would not only be contrary to the express terms of the amended regulations but would also be contrary to the terms of the PPA which do not accommodate or provide for such change in regulations. 19. The appellants further urged that the PPA was consciously entered into by the respondents on 29.03.2012, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary to the decision by CERC on the application of Second Amendment only prospectively -which is, for PPAs entered on or after 11.07.2013. The state commission by its order (dated 01.07.2015) allowed the respondent's petition and further directed that the order is generic in nature and applicable to all similarly placed WPDswhich was affirmed by the first impugned order. The appellants argue that the governing Regulations for PPAs adopting the REC Mechanism are 2010 REC Regulations and the state commission cannot decide on tariff contrary to the same. When the Central Commission clarified that for PPAs entered into prior to 11.07.2013, the tariff mutually agreed is valid for the entire duration of the PPA (25 years), the state commission and APTEL fell into error in substituting a new tariff at the instance of the WPDs/Respondents. It is pointed out that Rule 8[8] of the Electricity Rules, 2005, notified by the Central Government, is binding, and specifically provides that tariff determined by the Central Commission (CERC) shall not be subject to re-determination by the GERC/State Commission. 23. Learned senior counsel argued that if at the time of signing the PPAs WPDs-Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial Tariff Mechanism. The impugned order had not considered judgments referred to by the appellants on clauses granting power to one party to cancel the contract. In this regard, reliance is placed on Central Bank of India v Hartford Fire Insurance Co. Ltd[AIR 1965 SC 1288]; and Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel & Ors[2001 (5) SCC 101] . Respondents' Submissions 26. Mr. Shyam Divan and Mr. Dhruv Mehta, learned senior counsels appearing for the first two respondents urged that State Commission had jurisdiction in the present case. Reliance was placed on the definitional clause of the PPA (Article 1.1) to submit that commission meant 'State Commission'. It was urged that in terms of the extant regulatory framework, (which provided for regulatory oversight by the appropriate commission), PPAs executed by generating companies and distribution licensees necessarily required approval by the appropriate commission. Firstly, Section 86(1)(b) of the Act specifically vests the State Commission with the power to regulate the electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice / forbearance price) are subject to periodic revision. Relevant extracts of the said statement of reasons are reproduced below: "4.3 Analysis and decision Some of the stakeholders have suggested to clarify as to whether the PPAs executed at price lower than APPC would become ineligible under REC Mechanism. It is felt that the tariff for electricity component lower or higher than APPC may lead to avoidable loss or profit to RE generator. The Commission would like to clarify that the intention is not to debar the projects that have executed PPA at tariff lower than APPC. This amendment will apply prospectively and as such will not affect the already executed PPAs at lower than APPC. Regarding suggestion received that PPA of electricity component should be a fixed price long term contract (without escalation) since Commission has assumed fixed price while determining REC price bands in its methodology, it is clarified that the price band is subject to periodic revision; hence fixed APPC or long-term contract without escalation might affect viability of RE Projects. In any case proposed amendment provides that APPC would be determined by the Appropriate Commission" 29. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute the overall tariff which a generating company registered under the REC mechanism is entitled to receive. APPC along with REC pricing is what was intended to be incorporated as part of the tariff clause in the PPA. If either component is pegged or capped artificially, and that too without approval from GERC, the same would lead to a skewed application of the REC mechanism to the detriment of the generating company, leading to under-recovery and unviability of the RE Generator. 33. It was submitted that the tariff in the PPA was in violation of the principal regulation, which does not contemplate a fixed long-term price/ tariff. It is, therefore, illegal and had to be aligned with the regulation. The APTEL correctly aligned the tariff to the regulation. The regulation has not been challenged and it has the force of statute and it mandates that PPAs should be aligned to the regulations. Reliance is placed on PTC India Ltd. v. CERC (hereafter "PTC India") [(2010) 3 S.C.R. 609] . 34. Counsel for the third respondent argued that there could not be a tariff between a generating company and a distribution licensee in a PPA which was not in line with the CERC Regulations and tariff o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e world. Once green energy was an expensive alternative, however, it is now helping to reduce energy bills. 38. The rapidly changing economics of such sources has led, the Union government to realize that solar and other renewables can potentially transform the energy landscape, increase access and help India meet its climate change objectives. Grid transmission capacity has been a barrier; however, distributed and off-grid solar solutions provide a viable solution for increasing energy access. Being dependent primarily on cheap coal-based power generation, traditional thinking on energy has been that increase in renewable energy's share of electricity generation would further impair local distribution companies' poor financial situation. Over the years, India has established a comprehensive policy and regulatory frameworks to encourage renewable energy development. India began its development of wind power in the 1990s and has significantly increased its capacity over the last few years. Compared to established countries with wind energy capacities like the USA or Denmark, India is a latecomer. Yet, its support for wind power, through its policies has resulted in India becoming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls the electricity generated either-(i) to the distribution licensee of the area in which the eligible entity is located, at a price not exceeding the pooled cost of power purchase of such distribution licensee, or (ii) to any other licensee or to an open access consumer at a mutually agreed price, or through power exchange at market determined price. What is meant by "pooled cost or purchase" is elaborated in the Explanation (to Regulation 5) to mean "the weighted average pooled price at which the distribution licensee has purchased the electricity including cost of self-generation, if any, in the previous *year from all the energy suppliers long-term and short-term, but excluding those based on renewable energy sources. as the case may be." 41. The objectives of the REC Regulations 2010 were described in the judgment of this court, reported as Hindustan Zinc Ltd. v. Rajasthan Electricity Regulatory Commission [(2015) 7 S.C.R. 1104] "44. [..] Regulations have been enacted in order to effectuate the object of promotion of generation of electricity from renewable sources of energy as against the polluting sources of energy which principle is enshrined in the Act, the National Ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase agreements for the purchase of renewable energy sources already entered into by the distribution licensees shall continue to be made till their present validity, even if the total purchases under such agreements exceed the percentage as specified hereinabove." 43. In terms of Regulation 9 (1) of the Renewable Sources Regulations, if an obligated entity[10] (such as the present appellant) does not fulfil the renewable purchase obligation as provided in the regulations during any year and also does not purchase the certificates, the State Commission may direct the obligated entity to deposit into a separate fund, to be created and maintained by such obligated entity, such amount as the State Commission may determine. Thus, obligated entities, (distribution licences included) had to take steps to progressively increase the purchase of power from renewable energy sources. To incentivize this, flexibility was granted; the power generators could either have the tariff fixed, according to the State Commission's Tariff determination order, or adopt another mechanism, i.e., the one contemplated in the REC Regulations. 44. The relevant conditions and stipulations set out in the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior approval of the state commission 45. RWE and the other respondents urge that the PPA was unenforceable because it was not approved by the State Commission. This court is of the considered view that the argument is unmerited and insubstantial. 46. The State Commission's regulations (Renewable Sources Regulations) relating to procurement of energy from Renewable Sources, provides, inter alia, pertinently, as follows: "3. Applicability of Renewable Purchase Obligation: These Regulations shall apply to: (1) Distribution licensee (2) Any other person consuming electricity (i) generated from conventional Captive Generating Plant having capacity of 5 MW and above for his own use and / or (ii) procured from conventional generation through open access and third party sale." 47. From a reading of the above provision, it is evident that there was never any provision, which mandated prior approval by the state commission, of PPAs entered into, by parties, in exercise of their free choice, in relation to renewable energy sources. As a matter of fact, in the case of renewable power, the state commission had approved a model PPA. Further, the tariff terms and conditions to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the control period, it was not obliged to sell power to the distributor for a price specified in the PPA and was legally entitled to seek fixation of separate tariff. The Court rejected the contention after noticing the arguments. The relevant extracts of the judgment (In Emco Ltd.) are as below: "11. The case of the first respondent is that notwithstanding the fact that it entered into a PPA during the "control period" specified in the First Tariff Order, it is not obliged to sell power to the appellant for the price specified in Article5.2 of the PPA and is legally entitled to seek (from the second respondent) fixation of a separate tariff. It is the further case of the first respondent that under the PPA, the appellant is under an obligation to procure the power from the first respondent for a period of 25 years if the first respondent commences the generation of power within the "control period" and is also obliged to pay for the power procured by it at the rates specified in Article 5.2 of the PPA. But the obligation of the first respondent to sell power generated by it to the appellant at the rates specified in Article 5.2 of the PPA comes into existence only on the happen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer project or abovementioned tariff, whichever is lower." (emphasis supplied)" 50. In Transmission Corporation of Andhra Pradesh Ltd (Supra), the state commission had, by an order dated 20.06.2001 directed generators of nonconventional energy to supply power exclusively to the A.P. Transmission Corporation. Energy developers were not permitted to sell power to third parties. The Commission also approved the rate prevailing earlier for supply @ Rs. 2.25/- per unit with a 5% escalation per annum from 1994-1995 being the base year. The parties entered into PPA after the passing of the Regulatory Commission's order. The PPA embodied or reflected the tariff @ 2.25/- per Rs. unit with escalation @ 5% per annum having 1994 as the base year to be revised annually upto 2003-04. After that, the purchase price was to be decided by the state commission. The stipulation also provided that further review of the purchase price on the completion of 10 years from the commissioning of the project would be made. 51. The A.P. Transmission Corporation's functions devolved upon discoms by operation of law. In this background, the state commission exercised suo motu powers to revise non-conventional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d raising this plea of duress specifically. 43. [..] From the record before us, nothing was brought to our notice to state the plea of duress and to prove the alleged facts which constituted duress, so as to vitiate and/or even partially reduce the effect of the PPAs. On the one hand, the Tribunal appears to have doubted the binding nature of the contracts stating that they contained unilateral conditions introduced by virtue of order and approval of the Regulatory Commission, while on the other hand, in para 53 of the order, it proceeded on the presumption that PPAS are final and binding and still drew the conclusion that the Regulatory Commission could not revise the tariff. Even in the order, no facts have been pointed out which, in the opinion of the Tribunal, constituted duress within the meaning of the Contract Act so as to render the contract voidable." 52. In Gujarat Urja v. Solar Power Company India Pvt. Ltd.[ (2017) 14 S.C.R. 115] (hereafter "Solar Power Company India Pvt. Ltd"), the issue involved was whether the State Commission could extend the control period. One of the arguments made was that having regard to the terms of the PPA, the exercise of such power to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of tariff is to be made only after considering all suggestions and objections received from the public. Hence, the generic tariff once determined under the statute with notice to the public can be amended only by following the same procedure. Therefore, the approach of this Court ought to be cautious and guarded when the decision has its bearing on the consumers. 36. Regulation 85 provides for extension of time. It may be seen that the same is available only in two specified situations - (i) for extension of time prescribed by the Regulations, and (ii) extension of time prescribed by the Commission in its order for doing any act. The control period is not something prescribed by the Commission under the Conduct of Business Regulations. The control period is also not an order by the Commission for doing any act. Commissioning of a project is the act to be performed in terms of the obligation under the PPA and that is between the producer and the purchaser viz. Respondent 1 and appellant. Hence, the Commission cannot extend the time stipulated under the PPA for doing any act contemplated under the agreement in exercise of its powers under Regulation 85. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power Purchase Agreements are ultimately concluded and the terms are agreed between the parties under the Power Purchase Agreements, thereafter, in our considered opinion, Regulation 5.1 of the 2004 Regulations alone would apply in the case of the parties before us. Consequently, there was no scope for the Commission to vary the tariff agreed between the parties under the approved Power Purchase Agreement." 55. Section 61 of the Act enacts the basis for tariff determination. On the other hand, Section 62 is concerned with the fixation of various other charges and tariffs. Section 64 lists the manner and procedure for tariff determination by the Commission. Section 86 lists the functions of the Commission and reiterates the determination of tariffs to be a prominent task of the commission. Tariff determination no doubt, comprehends the exercise of regulatory function, including purchase, sourcing, procurement of electricity from generators, by distribution and other licensees, and their sales. This part involves generating companies entering into PPA(s) with procuring entities or licensees. Tariff fixation is a statutory function. Yet, by virtue of Section 42, it is subject to ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferential tariffs had risen. On this aspect, Regulation 9 of the REC Regulations 2010 prescribes the price determination mechanism for RECs in the power exchange. Proviso to Regulation 9 (1) of the REC Regulations 2010 empowers the central commission, in consultation with the Central Agency and the Forum of Regulators, to provide the floor price and forbearance price separately for solar and non-solar certificates. This provision is important because it enables regulatory intervention in the public interest: if the price went below a certain limit, the floor price was to be prescribed, to take care of the interests of generators- like the respondents; if the price went too high, a forbearance price could be fixed, to take care of the interests of the consumers and distributors. By Regulation 9 (2) of the REC Regulations 2010, the Central Commission, was to be guided, in determining the floor and forbearance price, by diverse factors, such as (a) variation in cost of generation of different renewable energy technologies falling under solar and non-solar category, across states in the country; (b) variation in the Pooled Cost of Purchase across States in the country; (c) Expected ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to Regulation 5 was amended resulted in a change. The pre-existing clause that the power would be "at a price not exceeding pooled cost of the power purchase" was altered to "at the pooled cost of power purchase". This change, was through the Second Amendment (to the REC Regulations), carried out on 10.07.2013. It is a matter of record, that for the period between 29.03.2102 and 10.07.2013 - and indeed, after the Second Amendment, no difficulty was experienced in the pricing mechanism agreed by the parties, under the PPA. It was on 10.12.2013 that the respondent WPD approached the state commission for re-determination of tariff. Clearly, this was an opportunistic attempt to derive advantage from the change, brought about by the Second Amendment, and seek to have it applied to an existing contract, which cannot be countenanced. In view of these reasons, it is held that the reasoning of APTEL, and the State Commission cannot be upheld. Applicability of the Second Amendment to pre-existing contracts- the general law 60. Power Purchase Agreements are essentially not statutory contracts; however, certain terms contained in those contracts, are regulated by law, i.e. applicable re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission is required to levy fees for the purpose of the 2003 Act. An order imposing regulatory fees could be passed even in the absence of a regulation under Section 178. If the levy is unreasonable, it could be the subjectmatter of challenge before the appellate authority under Section 111 as the levy is imposed by an order/decision-making process. Making of a regulation under Section 178 is not a precondition to passing of an order levying a regulatory fee under Section 79(1)(g). However, if there is a regulation under Section 178 in that regard then the order levying fees under Section 79(1)(g) has to be in consonance with such regulation. ********* 40. [..] One must keep in mind the dichotomy between the power to make a regulation under Section 178 on the one hand and the various enumerated areas in Section 79(1) in which the Central Commission is mandated to take such measures as it deems fit to fulfil the objects of the 2003 Act. Applying this test to the present controversy, it becomes clear that one such area enumerated in Section 79(1) refers to fixation of trading margin. Making of a regulation in that regard is not a precondition to the Central Commission exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes clear that the word "order" in Section 111 of the 2003 Act cannot include the impugned 2006 Regulations made under Section 178 of the 2003 Act." 63. Whilst there cannot be any doubt that regulations framed under the Act can be made applicable to existing contracts, what is discernible from PTC India (supra) is that in that case, the applicability of the Trading Margin Regulations which for the first time, compelled persons engaged in trading of electricity, in terms of Section 2 (17) of the Act, to register, obtain licenses, and operate within the margin limits indicated in the regulations. These provisions introduced a new regime, regulating an area, or activity which had hitherto been unregulated. The entire edifice of prescribing general standards for application to all those operating within its sweep, is to ensure that they are universal and constitute a code. The observations in PTC India (supra), therefore, are to be seen in this context. Being regulations of general application, dealing with a range of commercial activity, there could have been no question of existing contracts, operating in isolation, through separate silos, outside of their framework. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Phillips v. Eyre, (1870) LR 6 QB 1], a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 32. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in [L'Office Cherifien des Phosphates v. YamashitaShinnihon Steamship Co. Ltd., (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing this plea of duress specifically.[..]" 69. In Shanti Budhiya Vesta Patel & Ors. v. Nirmala Jayprakash Tiwari& Ors. [(2010) 4 S.C.R. 958] , this court held that to establish fraud or coercion, there should be"(a) an express allegation of coercion or fraud, and (b) all the material facts in support of such allegations must be laid out in full and with a high degree of precision. In other words, if coercion or fraud is alleged, it must be set out with full particulars." The court had cited and applied the principle enunciated in Bishundeo Narain v. Seogeni Rai[(1951) 1 SCR 548] where it was held that: " [...] Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion. [See Order 6 Rule 4 of the Civil Procedure Code.] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State; (c) facilitate intra-State transmission and wheeling of electricity; ..... (e) promote co-generation and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licensee; .... [..]" [2] Kerala State Electricity Board & Anr v. Principal Sir Syed Institute for Technical Studies, 2020 7 SCR 885: 7. [..] "While fixing tariff, the Commission cannot show undue preference to any consumer of electricity. The Commission, however, is vested with the power to prescribe differential rates according to the consumers' load factor, power factor, voltage, total consumption of electricity during any specified period of time at which supply is required. So far as fixing different rates for these two categories of the educational institutions, these factors did not come into play. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, Average Power Purchase Cost for the term of the agreement shall be as per Article No. 5.2 [7] Dated 10.07.2013, which inter alia, stated that "Some of the stakeholders have suggested to clarify as to whether the PPAs executed at price lower than APPC would become ineligible under REC Mechanism. It is felt that the tariff for electricity component lower or higher than APPC may lead to avoidable loss or profit to RE generator. The Commission would like to clarify that the intention is not to debar the projects that have executed PPA at tariff lower than APPC. This amendment will apply prospectively and as such will not affect the" already executed PPAs at lower than APPC." [8] Rule 8 reads as follows: "8. Tariffs of generating companies under section 79. -The tariff determined by the Central Commission for generating companies under clause (a) or (b) of subsection (1) of section 79 of the Act shall not be subject to redetermination by the State Commission in exercise of functions under clauses (a) or (b) of sub section (1) of section 86 of the Act and subject to the above the State Commission may determine whether a Distribution Licensee in the State should enter into Power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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