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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 ..... sence of any reference to the Multi Year Tariff Regulations, they were applicable to PPAs relating to renewable energy sources. Whether change in the REC Regulations obliged revision of the PPA in this case? - HELD THAT:- An important factor which cannot be lost sight of is that all the respondent s WPDs were registered, under the REC Regulations, based on the state commission s tariff order, of 2010. It is undisputed, that to register under the REC Regulations 2010, an entity (such as WPDs) had to be (a) accredited, with a State Agency [(defined by Regulation 2 (n) of the REC Regulations as an agency designated by the State Commission to act as the agency for accreditation and recommending the renewable energy projects for registration ) and an entity not having any power purchase agreement for the capacity related to such generation to sell electricity at a preferential tariff determined by the Appropriate Commission]. In the present case, the PPA was entered into by the parties on 29.03.2102, within the control period stipulated in the tariff order of 2010. The change in the REC Regulations 2010, whereby the Explanation to Regulation 5 was amended resulted in a change. The pre-e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daria, Adv. For the Respondent : Ms. Nishtha Kumar, AOR, Mr. Vishal Gupta, AOR, Mr. Nikilesh Ramachandran, AOR, Mr. Nitin Saluja, AOR. JUDGMENT S. RAVINDRA BHAT, J. 1. The current civil appeals, [Civil Appeals Nos. 3480 and 3481 of 2020] under Section 125 of the Electricity Act, 2003, (hereafter, the Act ) challenge orders of the Appellate Tribunal for Electricity (hereafter, APTEL ), dated 06.12.2018 ( first impugned order ) [in Appeal No 209/2015] and order dated 24.07.2020 ( second impugned order ) [in Review Petition No 03/2019] . The APTEL had, by those orders, rejected the appeals preferred by the present appellant, and the review petition, as well. Resultantly, the order of the Gujarat Electricity Regulatory Commission (hereafter the State Commission ), 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for determination of tariff. The state commission then determines the Multi-Year Tariff Order based on the data available. Furthermore, Section 64 (6) prescribes that tariff orders shall continue to be in force for such period as may be specified in the Tariff Order unless amended or revoked . If any party is aggrieved by any conditions of a given Tariff Order, it can seek its amendment or revocation. Orders are also appealable under Section 111 to APTEL, and thereafter to this court under Section 125 of the Act. Tariff Orders under Section 64 of the Act are quasi-judicial in nature and ipso facto binding on the parties unless amended or modified through law. 5. On 29.01.2010, the Central Electricity Regulatory Commission (Terms 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the REC Regulations 2010, distribution licensees were not obliged to purchase the physical component of electricity from renewable energy generators set up under the REC mechanism since such REC based generators had alternative options with regard to the physical component of electricity, namely, (i) sale of electricity power exchanges (ii) wheeling of power for sale to third parties at mutually agreed rates or (iii) wheeling of power for their own consumption. In the case of the sale of the physical component of electricity, the price for the electrical component could not exceed average pooled cost of the distribution licensees. The regulations also provided that the generators (of renewable energy) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the WPDs (such as RWE, Wish Wind etc.) at the time of entering into the PPA was to sell electricity at a promotional tariff of ₹ 3.56 per unit - as determined by the State Commission. By choosing the option, the WPDs were ensured tariff at ₹ 2.64 per unit plus tradable RECs whose price was determined on the basis of the weighted average pooled price [4] . Distribution licensees were enabled to adjust such quantum of power purchased towards RPO specified under Section 86(1)(e) of the Act. Thus, the interests of both segments of the industry were taken care of. 12. The State Commission by its order dated 08.08.2012 [in Order No. 2/2012] determined the tariff at which the power could be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Commission and was within its exclusive jurisdiction. Moreover, it was argued that the appellants would fail in their duty towards their consumers if they cannot negotiate for a lower tariff or if they agree to purchase power at a higher tariff despite the availability of power at a lower tariff. In such an event, the higher cost of procurement of power so imposed would be ultimately passed on to the consumers which would be contrary to a specified public interest, under the Act. 17. The learned senior counsel argued that the definition of the APPC cannot be relied upon in the present case [6] and the PPA in question provided for a tariff. There was consequently no bar in 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 plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the REC Regulations 2010 as the restriction in those regulations was for the price not to exceed the Pooled Power Purchase Cost. The price agreed to between the appellant and Respondent No. 1 was ₹ 2.64/- per unit or Pooled Power Purchase Cost of the subsequent year, whichever was lower. 22. The appellants argue that till 11.07.2013 none of the WPDs/ respondents raised any issue on the tariff of 2.64/kWh for the entire duration of the PPA. ₹ It was only on 10.12.2013, the first two respondents filed Petition No.1363/ 2013 before the State Commission claiming that the tariff should be the APPC cost year-on-year basis instead of a fixed ₹ 2.64/kWh. This was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo Respondents; therefore, it cannot be a ground for alleging coercion against all WPDs; (b) the allegations by the said two Respondents were vague and unsubstantiated, and an afterthought as no such plea was raised till December 2013, i.e., till after the amended CERC Regulations; and (c) as held by this Court such plea of coercion had to be specifically pleaded and proved. In this regard, reliance was placed on Transmission Corporation of Andhra Pradesh Ltd (Supra). 25. It is further argued that there is no Regulation of the state or central commissions prohibiting a term being incorporated in PPA which permits an option to either party to switch from REC mechanism to Preferential 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs under the REC mechanism, especially in cases where the price discovered in the power exchange is closer to the floor price. 28. It was further submitted that the Second Amendment to REC regulations specifically replaced the words at a price not exceeding to at the pooled cost , which meant that the cost of electricity purchased could neither be lower nor higher than the power purchase cost. Counsel further placed reliance on Statement of Reasons dated 10.07.2013 issued by the Central Commission regarding the Second Amendment to contend that REC contracts cannot be fixed price contracts as they would affect the viability of REC projects as the price band (floor price / 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 projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples, inter alia, variations in APPC across the States, which is revised on an annual basis. Therefore, if APPC is made static then variation in Floor Price/ Forbearance price would lead to under recovery to generators. 32. The APPC to be taken into consideration under the REC mechanism must be dynamic and must be revised on a regular basis. When APPC is increased, the floor price of REC comes down and vice versa and the same is subject to change every year. The APPC along with REC pricing, together, are the tariff determined and approved for the supply of power. In other words, the APPC and REC pricing are two halves of the same whole, which constitute 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident that floor price and forbearance price are dynamic in nature and APPC being associated with the floor price and the forbearance price is also required to be determined on a year-to-year basis so that the guaranteed return to the generators is not affected. Analysis and Findings 37. The crisis arising out of, and the enormous environmental cost involved in the continued use of fossil fuels has led governments, world over, to promote alternative and renewable sources of energy. The rapid growth of renewable energy over the decade and a half has witnessed that solar and wind power are now the cheapest sources of energy in many countries in the 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-ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolar certificate shall be sold to the obligated entities to enable them to meet their obligation for purchase from renewable energy sources other than solar. Regulation 5 (1) of the REC regulations (extracted earlier) spells out the eligibility conditions for renewable energy generating companies to apply and seek registration for certificates; these are that the company should have: (a) 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 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 cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .0% 0.5% If the above-mentioned minimum quantum of power purchase from solar and other renewable energy sources is not available in a particular year, then in such cases, additional wind or other energy, over and above that shown in column 3 and 5, shall be utilized for fulfillment of the RPO in accordance with column 2. Provided further that such obligation to purchase renewable energy shall be inclusive of the purchases, if any, from renewable energy sources already being made by the obligated entity concerned: Provided also that the power purchases under the power 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y after the intra-State ABT is implemented. ************************ **************** ARTICLE 9 TERM, TERMINATION AND DEFAULT 9.1 Term of the agreement: This agreement shall become effective upon the executive and delivery thereof by the parties hereto and unless terminated pursuant to other provisions of the agreement, shall continue to be in force for such time until the completion of a period of 25 (twenty five) years from the commercial operation date. .. Did the PPA in the present case, require 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income tax and did not grant such benefits to purchasers and tariff payable to power purchasers which did not avail of the benefit of accelerated depreciation. The respondent Emco had not availed accelerated depreciation. Despite that, it approached the Gujarat State Commission, seeking a determination of the tariff afresh, contending that the position had changed. This court noticed that the power purchaser had contended that notwithstanding that it entered into a PPA during 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tariff as determined by the second respondent by the Second Tariff Order. On the other hand, the PPA clearly stipulates that in such an eventuality: Above tariff shall apply for solar projects commissioned on or before 31-12-2011. In case, commissioning of solar power project is delayed beyond 31-12-2011, GUVNL shall pay the tariff as determined by the Hon'ble GERC for solar projects effective on the date of commissioning of solar power 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 @ ₹ 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 ₹ unit with escalation @ 5% per annum having 1994 as the base year to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons executed the contracts at different times in full awareness of the terms and conditions of such PPAS. To frustrate a contract on the ground of duress or coercion, there have to be definite pleadings which have to be substantiated normally by leading cogent and proper evidence. However, in the case where summary procedure is adopted like the present one, at least some documentary evidence or affidavit ought to have been filed 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 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the interest of consumers is at stake. The interest of consumers, as an objective, can be clearly ascertained from the Act. The Preamble of the Act mentions protecting interest of consumers andSection61 (d) requires that the interests of the consumers are to be safeguarded when the appropriate Commission specifies the terms and conditions for determination of tariff. Under Section 64 read with Section 62, determination of tariff is to be made only after considering all 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Ors[(2016) 13 SCC 515] this court held as follows: 13. The contention that Under Regulations 5.2, 5.3, 5.4 of the 2004 Regulations as well as Sections 61 and 62 of the Electricity Act, power is vested with the Commission to vary the tariff is concerned, such power specifically provided for in the said Regulations will only operate prior to fixing of the tariff once the concerned 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 determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents successfully complained before the State Commission, and APTEL, that the PPA, which they had entered into with Gujarat Urja, whereby the tariff was fixed at ₹ 2.64/kWh (with the price of RECs sold by them) was, in the long run, less beneficial than ₹ 3.56/kWh. During the hearing, it was sought to be urged that the cost of RECs in the exchange, had been decreasing, whereas the preferential 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 Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulation by commission from time to time. This tariff is applicable to wind energy projects which commission brand new wind energy plants and equipments on 11th August, 2009 onwards. 59. In the present case, the PPA was entered into by the parties on 29.03.2102, within the control period stipulated in the tariff order of 2010. The change in the REC Regulations 2010, whereby the Explanation 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a precondition to the Central Commission taking any steps/measures under Section 79(1). As stated, if there is a regulation, then the measure under Section 79(1) has to be in conformity with such regulation under Section 178. This principle flows from various judgments of this Court, which we have discussed hereinafter. For example, under Section 79(1)(g), the Central Commission 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned Regulations are in the nature of subordinate legislation. Such regulatory intervention into the existing contracts across the board could have been done only by making regulations under Section 178 and not bypassing an order under Section 79(1)(j) of the 2003 Act. Therefore, in our view, if we keep the above discussion in mind, it becomes 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips v. Eyre [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 legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct on the ground of duress or coercion, there have to be definite pleadings which have to be substantiated normally by leading cogent and proper evidence. However, in the case where summary procedure is adopted like the present one, at least some documentary evidence or affidavit ought to have been filed raising 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State: (b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State; (c) facilitate intra-State transmission and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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. Further, for this agreement, 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 exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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