| Headnote |
Electricity – Components to be considered as “Change inLaw” events – Held: The term “Law” has been defined in the PowerPurchase Agreements – ‘Law’ would mean all laws includingElectricity Laws in force in India and any statute, ordinance,regulations, orders, Notification or code, rules, or any interpretationof any of them by an Indian Governmental Instrumentality andhaving force of law – It shall also include all rules, regulations,decisions and orders of the CERC and the MERC – Thus, all suchadditional charges which are payable on account of orders,directions, Not if ications, Regulations, etc. , issued by theinstrumentalities of the State after the cut-off date will have to beconsidered to be ‘Change in Law’ events – The Generators wouldbe entitled to compensation on the restitutionary principle on suchchanges occurring after the cut-off date – Revision of charges tobe paid on Busy Season Surcharge, Development Surcharge andPort Congestion Charges from time to time by the ‘Railway Board’would come within the ambit of ‘Change in Law’ – Notifications bywhich MoEF mandated power projects to use beneficiated coal withash content lower than 34% would also amount to “Change in Law’– Further, change in NCDP would also amount to ‘Change in Law’– With regard to forest tax, as on the cut-off date there was noForest Tax applicable on coal mined and transported from SouthEastern Coalfields Limited mines located in Forest area – For thefirst time, vide Notification of the Forest Department, Governmentof Chhattisgarh a fee was levied – Said notification issued by theForest Department of the Government of Chhattisgarh, which is aninstrumentality of the State would also be a ‘Change in Law’ – Noerror in the finding of the APTEL in that regard – Also, ‘add onpremium’ was required to be paid on account of cancellation of captive coal blocks and inordinate delay on account of Go-No-Gopolicy – As such, it cannot be said that the reasoning adopted bythe APTEL is perverse and arbitrary – EFC imposed by CIL whichis an instrumentality of the State, circular of CIL would also amountto ‘Change in Law’ – In the light of said findings, each of the appealsconsidered independently, dismissed – Electricity Act, 2003.Electricity – Carrying cost – Grant of interest – Held: Oncecarrying cost has been granted, it cannot be urged that interest oncarrying cost should be calculated on simple interest basis insteadof compound interest basis – Grant of compound interest on carryingcost and that too from the date of the occurrence of the ‘Change inLaw’ event is based on sound logic – It aimed at restituting a partythat is adversely affected by a ‘Change in Law’ event and restore itto its original economic position as if such a ‘Change in Law’ eventhad not taken place – In view of the consistent position of law andapplication of restitutionary principles and privity of contractualobligations between the parties as contained in the Power PurchaseAgreements, the view taken by the APTEL with regard to carryingcost warrants no interference – Electricity Act, 2003.Electricity Act, 2003 – s.125 – Appeals arising from concurrentfindings of fact arrived at by two statutory bodies having expertisein the field – Held: CERC, SERCs and APTEL are bodies consistingof experts in the field – This Court should be slow in interferingwith the concurrent findings of fact unless they are found to beperverse, arbitrary and either in ignorance of or contrary to thestatutory provisions – Appeal to this Court u/s.125 is only permissibleon any of the grounds as specified in s.100 of the Code of CivilProcedure, 1908 – As such, the appeal to this Court would bepermissible only on substantial questions of law – However, even incases where well-reasoned concurrent orders are passed by the ERCand APTEL, the same are challenged by the DISCOMS as well asthe Generators – On account of pendency of litigation, which insome of the cases in this batch has been more than 5 years, nonpaymentof dues would entail paying of heavy carrying cost to theGenerators by the DISCOMS, which, in turn, will be passed over tothe end consumer – As a result, it will be the end consumer whowould be at sufferance – Therefore, such unnecessary andunwarranted litigation needs to be curbed – Union of India, through Ministry of Power, may evolve a mechanism to ensure timely paymentby the DISCOMS to the Generating Companies, which would avoidhuge carrying cost to be passed over to the end consumers – Amechanism may also be evolved to avoid unnecessary andunwarranted litigation, the cost of which is also passed on to theultimate consumer – Code of Civil Procedure, 1908 – s.100. |
