MADHYA PRADESH POWER MANAGEMENT CO. LTD. & ANR. M/S DHAR WIND POWER PROJECTS PVT. LTD. & ORS.versusM/S DHAR WIND POWER PROJECTS PVT. LTD. & ORS.

                          [2019] 10 S.C.R. 73                             73


  MADHYA PRADESH POWER MANAGEMENT CO. LTD. &                              A
                    ANR.
                                  v.
   M/S DHAR WIND POWER PROJECTS PVT. LTD. & ORS.
                (Civil Appeal Nos. 9218-9219 of 2018)                     B
                           JULY 25, 2019
        [DR. DHANANJAYA Y CHANDRACHUD AND
                    INDIRA BANERJEE, JJ.]
        Electricity Act, 2003: ss. 61 and 86(1)(e) – Procurement of       C
power from Wind Electricity Generator – Issuance of Tariff Order –
Tariff Order dated 26.03.13 prescribing rate of Rs 5.92 per unit for
the project commissioned during the period from 01.04.13 till
31.03.16 – New Tariff order dated 17.03.16 whereby earlier tariff
order at Rs. 5.92 per unit reduced to Rs. 4.78 per unit, for project
                                                                          D
commissioned on or after 01.04.2016 – First respondent seeking
benefit of the unit rate of Rs. 5.92 fixed under the earlier tariff
order on the basis that it commissioned its project on 31.03.2016 –
Appellant’s case that on the basis of the data provided, power was
injected into the grid on or from 01.04.2016, thus, not entitled to
benefit of the unit rate of Rs. 5.92, and as such would not enter into    E
Power Purchase Agreement under the earlier tariff order – Writ
petition by the first respondent – Allowed by the High Court –
Issuance of direction to first appellant to enter into a PPA with the
first respondent for the purchase of electricity at the rate of Rs 5.92
per unit – Thereafter, the appellant revoked the certificate of
                                                                          F
commissioning – Review petition filed thereagainst, dismissed –
Second set of writ petition, wherein the High Court stayed the
revocation – On appeal, held: Project of the first respondent was
commissioned on 1 April 2016 since the SLDC data indicates the
injection of power into the grid with effect from that date – However,
it would be unfair to deny to the first respondent the benefit of the     G
rate which came to be prescribed by the Tariff Order dated 17.03.16
– Rate prescribed by Tariff Order of Rs 4.78 per unit was to apply
during the control period beginning from 01.04.2016 and ending
on 31.03.2019 and that rate would continue to govern the life cycle
                                                                          H
                                  73
74            SUPREME COURT REPORTS                      [2019] 10 S.C.R.


A    of 25 years – First respondent cannot be denied a parity of treatment,
     as has been allowed to other projects of a similar nature which
     would be governed by the control period stipulated in the Tariff
     Order dated 17.03.2016 – Orders of the High Court set aside –
     First respondent entitled to the benefit of the Tariff Order dated
     17.03.2016 – Appellants to process the application of the first
B
     respondent for execution of a PPA on that basis.
           Partly allowing the appeals, the Court
             HELD: 1.1 The Tariff Order of March 2013 stipulated that
     it would be applicable to all new wind electric generation projects
C    which were commissioned on or after 1 April 2013 for the sale of
     electricity to distribution licensees in the State. The control period
     of the Tariff Order commenced on 1 April 2013 and would end on
     31 March 2016. The Tariff Order fixed a levelized tariff of Rs
     5.92 per unit for new wind energy projects to be commissioned
     after the issuance of the Order for a project life of 25 years. Para
D    12.30 provided that all existing projects which were
     commissioned before 1 April 2013 would be governed by the
     terms and conditions applicable at the time of commissioning.
     Hence, the crucial ingredient in determining the tariff was the
     actual date on which the project was commissioned. The Tariff
E    Order of 17 March 2016 which replaced the earlier Tariff Order
     applied to all new wind electric generation projects which were
     commissioned at 00.00 hrs on 1 April 2016 or thereafter. The
     SLDC was required by Para 4.2 of the Tariff Order to submit a
     list of WEGs commissioned during the month of March 2016 from
     00.00 hrs of 1 March 2016 to 24.00 hrs of 31 March 2016. This
F    data was sought in order to provide an objective basis of
     determining whether a project had been commissioned before
     the new Tariff Order became applicable to projects which were
     commissioned with effect from 1 April 2016. [Para 22] [82-F-H;
     83-A-G]
G          1.2 In line with the said provisions, the guidelines that were
     issued by the first appellant on 18 March 2016 provided a format
     for the issuance of commissioning certificates. The format
     required readings of: (i) WTG meters; (ii) main billing meters;
     and (iii) check billing meters. The format required the submission
H
  M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWER               75
                    PROJECTS (P) LTD.


of this data in order to establish the date on which a particular     A
project had been commissioned. The actual date of commissioning
would determine the applicable tariff; the tariff of Rs 5.92 per
unit would apply to projects which were commissioned on or
before 31 March 2016, while the new rate of Rs 4.78 per unit
would apply to projects which were commissioned on or after 1
                                                                      B
April 2016. Requiring the SLDC to submit data of the actual
injection of power into the grid was with the objective of
establishing the actual commissioning of the project. [Para 23]
[83-G-H; 84-A-G]
      1.3 On reviewing the documentary material on the record,
the view which weighed with the High Court, namely, that the          C
commissioning of the project was completed by 31 March 2016
cannot be accepted. The certificate of commissioning which has
been issued by the Superintending Engineer is belied by the
objective factual data available from the SLDC which is a
statutory body constituted under Section 31 of the Act. The           D
objective data on the record indicates that the injection of power
into the grid took place on 1 April 2016. Hence, that this should
be the basis on which the claim for the entering into a PPA should
be founded. [Para 25] [85-C]
      1.4 The project of the first respondent was commissioned        E
on 1 April 2016 since the SLDC data indicates the injection of
power into the grid with effect from that date. On the basis of the
commissioning of the project on 1 April 2016, there is merit in
the alternative submission that the Tariff Order that must apply
is the Tariff Order dated 17 March 2016. The first respondent
was before the High Court in writ proceedings espousing its claim     F
to the benefit of a higher rate of Rs 5.92 per unit on the basis of
the earlier Tariff Order and on the basis that the commissioning
of its project had taken place on 31 March 2016. The first
respondent was bona fide pursuing its claim in that regard which
found acceptance in the impugned judgment and order of the High       G
Court. Though this Court has differed with the view taken by the
High Court, it would be unfair to deny to the first respondent the
benefit of the rate which came to be prescribed by the Tariff Order
of 17 March 2016. The rate which was prescribed by that Tariff

                                                                      H
76           SUPREME COURT REPORTS                      [2019] 10 S.C.R.


A    Order of Rs 4.78 per unit was to apply during the control period
     beginning from 1 April 2016 and ending on 31 March 2019 and
     that rate would continue to govern the life cycle of 25 years, as
     prescribed by Para 5 of the Tariff Order. The first respondent
     cannot be denied a parity of treatment, as has been allowed to
     other projects of a similar nature which would be governed by
B
     the control period stipulated in Para 5 of the Tariff Order dated
     17 March 2016. [Para 26] [85-D-F]
           1.5 The competitive bidding guidelines were formulated
     by the Union Ministry of Power subsequently on 8 December
     2017. Moreover, Para 3.1 of those guidelines is not applicable to
C    the project of the first respondent. The guidelines apply to grid-
     connected Wind Power Projects with an individual size of 5 MW
     and above at one site with a minimum bid capacity of 25 MW for
     intra-State projects. Since the first respondent is admittedly an
     intra-State project and does not fulfil the above requirement, the
D    guidelines (which in any event came into force subsequently)
     would have no application. [Para 27 and 28] [85-G-H; 86-A-C]
            1.6 The impugned judgments and orders of the High Court
     are set aside. It is directed that the first respondent would be
     entitled to the benefit of the Tariff Order dated 17 March 2016.
E    The appellants would process the application of the first
     respondent for execution of a PPA on that basis with effect from
     1 April 2016. In view thereof, the second writ petition which has
     been filed by the first respondent before the High Court shall
     not survive and shall stand disposed of in terms of the instant
     judgment. [Para 29] [86-E-G]
F
           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9218-
     9219 of 2018.
          From the Judgment and Order dated 29.01.2018 by the High Court
     of Madhya Pradesh, Bench at Indore in RP No. 1303/2017.
G          Nitin Gaur, Ranjit Kumar Sharma, Advs. for the Appellants.
           Vivek K. Tankha, Sr. Adv., Gopal Sankaranarayanan, Sumeer
     Sodhi, Aman Nandrajog, Ashish Tiwari, Vaibhav Gulia, Ms. Gayatri
     Verma, Ms. Rakhi Ray, Advs. for the Respondents.

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    M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWER                        77
                      PROJECTS (P) LTD.


       The Judgment of the Court was delivered by                                A
       DR. DHANANJAYA Y CHANDRACHUD, J.
        1. These appeals arise from a judgment and order dated 21
September 2017 of the High Court of Madhya Pradesh at its Bench at
Indore and an order in review dated 29 January 2018. In the companion
appeals, the correctness of an interim order of the High Court dated 15          B
May 2018 in a subsequent petition under Article 226 of the Constitution
is in question.
      2. The Government of Madhya Pradesh issued a notification on
30 January 2012 laying down a policy to govern the generation of wind
energy in the State. The policy was amended on 21 February 2013. The             C
policy, which was known as the Wind Power Project Policy 2012,
stipulated inter alia that the purchase/sale of power would be
administered and governed by the Madhya Pradesh Electricity Regulatory
Commission1.
      3. On 26 March 2013, the State Commission, in exercise of power            D
under Sections 61 and 86(1)(e) of the Electricity Act 20032 issued a
Tariff Order 3 for procurement of power from Wind Electricity
Generators4. Para 4.1 of the Tariff Order stipulated that it would be
applicable to all new wind electricity generation projects commissioned
on or after 1 April 2013 for sale of electricity to distribution licensees       E
within the State of Madhya Pradesh. Para 5 provided for the “tariff
review period/control period”:
       “5. TARIFF REVIEW PERIOD/CONTROL PERIOD
       5.1 The control period to which this order shall apply shall start
       from 01.04.2013 and will end on 31.03.2016 (i.e. end of FY 2015-          F
       16). The tariff decided in this order shall apply to all projects which
       come up during the above mentioned control period and the tariff
       determined shall remain valid for the project life of 25 years.”
       4. The tariff prescribed by the Order was (i) to apply to all projects
which came up during the period from 1 April 2013 till 31 March 2016;            G
and (ii) to remain valid for 25 years.
1
  “State Commission”
2
  “Act”
3
  SMP-12/2013
4
  “WEG”                                                                          H
78                 SUPREME COURT REPORTS                      [2019] 10 S.C.R.


A            5. Para 11 of the Tariff Order provided for the determination of
     tariff. Insofar as is material, it provided that the State Commission had
     set a tariff at the rate of Rs 5.92 per unit of generation from new wind
     energy projects to be commissioned after the issuance of the order for
     the project life of 25 years. Para 11.2 is extracted below:
B              “11.2 Considering the above parameters, the Commission sets
               the levelized tariff @ Rs. 5.92 per unit for generation from new
               wind energy projects to be commissioned after issue of this order
               for its project life of 25 years.”
            6. Under the terms of Para 12.4, developers were permitted to
C    execute agreements with the Madhya Pradesh Power Management
     Company Limited5 before commissioning plants for the exclusive sale
     of electricity for a period of 25 years and the commissioning certificate
     was to form a part of the agreement.
               7. Para 12.30 provided thus:
D              “12.30 All existing projects i.e. projects commissioned before
               01.04.2013 shall continue to be governed by the terms and
               conditions applicable at the time of their commissioning.”
           8. On 10 November 2014, the first respondent applied for
     permission to set up a 12 MW project in Dhar District in pursuance of
E    the Wind Power Project Policy 2012. The project was registered with
     the nodal agency. The registered capacity was subsequently enhanced
     to 15 MW comprising of ten wind turbine generators each of 1.5 MW.
     Final project approval was received from the competent agency of the
     State government for setting up 12 MWs on private land on 2 March
F    2016 and 3 MWs on revenue land on 10 March 2016. The first respondent
     acted on the basis of the project approval, completed construction and
     made the project ready for commissioning.
           9. On 17 March 2016, the State Commission issued a fresh Tariff
     Order. Para 4 which dealt with applicability of the Order and Para 5
     which specified the tariff review period/control period were in the
G
     following terms:
               “4. APPLICABILITY OF THE ORDER
               4.1 This tariff Order will be applicable to all new wind electric
               generation projects in the State of Madhya Pradesh commissioned
H    5
         “first appellant”
  M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWER                         79
    PROJECTS (P) LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


      at 00.00 hrs. on 01.04.2016 or thereafter for sale of electricity to      A
      the distribution licensees within the State of Madhya Pradesh.
      This order also specifies the terms & conditions (other than tariff)
      for captive user or for sale to third party.
      4.2 It will be mandatory for the distribution licensees to submit to
      the Commission, quarterly progress reports on the capacity addition,      B
      purchase of energy and other relevant details in respect of wind
      electric generation projects commissioned in their licensed area,
      and also post them on their websites on a regular basis. The
      SLDC is also required to submit through e-mail/fax immediately,
      a list of WEGs commissioned during the month of March 2016
      i.e. from 00.00 hrs. of 01.03.2016 to 24.00 hrs. of 31.03.2016.           C

      5. TARIFF REVIEW PERIOD/CONTROL PERIOD
      5.1 The control period to which this order shall apply shall start
      from 01.04.2016 and will end on 31.03.2019 (i.e. end of FY 2018-
      19). The tariff decided in this order shall apply to all projects which   D
      come up during the above mentioned control period and the tariff
      determined shall remain valid for the project life of 25 years.”
       10. Para 11 of the new Tariff Order provided for determination of
the tariff. The tariff which was fixed under the earlier tariff order at Rs
5.92 per unit was reduced to Rs 4.78 per unit:                                  E
      “11.2 Considering the above parameters, the Commission sets
      the levelized tariff @ Rs. 4.78 per unit for generation from new
      wind energy projects to be commissioned after issue of this order
      for its project life of 25 years.”
      11. Para 12.29 provided that:                                             F
      12.29 All existing projects i.e. projects commissioned before 00.00
      hrs. of 01.04.2016 shall continue to be governed by the terms and
      conditions applicable at the time of their commissioning.
        12. On 18 March 2016, a communication was addressed by the
first appellant to distribution licensees and generators stating that:          G

      Subject :- Issue of commissioning certificate for Renewable Energy
      Projects.
                                   ***
                                                                                H
80            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A                Procurement of Renewable Energy from Non-Solar RE
           projects, is being done by MPPMCL at preferential tariff till the
           issuance of bidding guidelines by Central Govt. Control period of
           most of the RE tariffs is being completed by 31.03.2016 and
           determination of the tariff for next control period are under process.
           Looking to the financial year target and change of tariff, most of
B
           RE generators are trying to commission their projects on or before
           31.03.2016. Tariff for the RE capacity commissioned on or after
           01.04.2016 shall be governed by the tariff to be determined by
           MPERC. Therefore, it would be appropriate that while issuing
           commissioning certificate for these projects (especially wind based
C          RE projects), status of actual capacity successfully injected power
           into the grid should be properly checked before issuing of
           commissioning certificate for the project.
                   In view of above, a format containing the commissioning
           details to establish the actual injection of power into the grid by
D          particular WTG/Unit has been achieved, is enclosed. It is requested
           that concerning field officers may please be instructed to provide
           required information in the format and submit the same with
           commissioning certificate for the wind projects. Commissioning
           certificate for other Non-Solar RE category should also be prepared
           in the same line with the meter reading details to establish
E          successful power injection into the grid by the RE plants.
                   It may please be noted that the commissioned capacity up
           to 31 March 2016 and after 31st March 2016 will have different
                st

           tariff and will be fixed for entire plant life. Any dispute regarding
           commissioned capacity would yield considerable financial
F          implications. Therefore, to avoid any controversy, commissioning
           certificate should be issued with due diligence and responsibility.”
          13. A format for the commissioning of wind power projects was
     annexed to the letter.

G           14. Essentially, the letter took notice of the fact that since the
     tariff was to change for projects which were commissioned on or after
     1 April 2016, most generators of renewable energy were trying to
     commission their projects before 31 March 2016 to get the benefit of the
     higher tariff under the earlier Tariff Order. Hence, it was specified that
     the “status of actual capacity successfully injected power into the grid”
H    should be verified before issuance of the certificate of commissioning.
     M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWER                    81
       PROJECTS (P) LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


       15. According to the appellants, the then Superintending Engineer      A
(O&M), Madhya Pradesh Paschim Kshetra Vidyut Vitran Company
Limited, which is the concerned distribution licensee, issued a certificate
to the first respondent on 31 March 2016 stating that as of the date of
the certificate, the project had been commissioned. The appellants have
sought to dispute the certificate on the ground that the commissioning
                                                                              B
certificate was not in accordance with the format attached with the
guidelines dated 18 March 2016, according to which the actual injection
of power into the grid was the relevant criterion.
       16. On 1 April 2016, the first respondent addressed a letter to the
first appellant seeking the execution of a Power Purchase Agreement6
on the basis that it commissioned its project on 31 March 2016. The           C
appellants dispute the factual contention that the project was
commissioned on 31 March 2016 and submit that the data provided by
the State Load Despatch Centre7, which maintains accounts of energy
transmission to the grid, shows that the injection of power into the grid
took place for the first time on 1 April 2016. The SLDC was requested         D
to confirm the status of power injected into the grid in respect of the
project of the first respondent on 2 April 2016. The data furnished by
SLDC and its report for active power readings from 31 March 2016 to
2 April 2016 sets out time blocks during which power flowed into the
grid. The data which has been placed on the record indicates the injection
of three units in Block 1 as on 1 April 2016 and, thereafter, injection       E
commenced with Block 8 on 2 April 2016, going up to Block 16.
Thereafter, the data indicates that there was an injection of power into
the grid during the course of several blocks on 2 April 2016. According
to the appellants, on the basis of the SLDC data, power was injected
into the grid on or from 1 April 2016 and not before. In consequence,         F
the first respondent was not entitled to the benefit of the unit rate of Rs
5.92 fixed under the earlier Tariff Order.
      17. On 30 April 2016, the first appellant informed the first
respondent that since its project had not been commissioned before 31
March 2016, it would not enter into a PPA under the earlier Tariff Order      G
dated 26 March 2013 under which the unit price was fixed at Rs 5.92.
The letter, however, indicated that if the first respondent signified its
consent by 30 May 2016, the tariff would be governed by the new Tariff
6
    “PPA”
7
    “SLDC”                                                                    H
82            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A    Order dated 17 March 2016 for procurement of power from WEGs.
     On 1 February 2017, the first appellant informed the first respondent
     that if it did not enter into a PPA under the subsequent Tariff Order
     dated 17 March 2016, which fixed the unit price for power at Rs 4.78, it
     would not enter into any PPA with the first respondent nor allow injection
     of power into the grid.
B
           18. The first respondent filed a writ petition under Article 226 of
     the Constitution before the High Court of Madhya Pradesh in order to
     challenge the letters dated 30 April 2016 and 1 February 2017. By a
     judgment and order dated 21 September 2017, the High Court allowed
     the writ petition and set aside the letters of the first appellant dated 30
C    April 2016 and 1 February 2017 and directed the first appellant to take
     appropriate steps in accordance with the Tariff Order dated 26 March
     2013. In other words, by and as a result of the directions of the High
     Court, the first appellant was required to enter into a PPA with the first
     respondent for the purchase of electricity at the rate of Rs 5.92 per unit.
D           19. After the decision of the High Court, the appellant revoked
     the certificate of commissioning dated 31 March 2016.
           20. A review petition was filed before the High Court which was
     dismissed on 29 January 2018.

E           21. The revocation of the commissioning certificate gave rise to
     the institution of the second set of writ petitions in the High Court in
     which, by an interim order dated 15 May 2018, the revocation has been
     stayed. That has given rise to two appeals before this Court.
           22. Appearing on behalf of the appellants, Mr. Nitin Gaur, learned
F    counsel submitted that:
               (i)    The crucial provision for the application of the Tariff
                      Order which came into force on 17 March 2016 is that it
                      would apply to all new wind electric generation projects
                      commissioned on or after 00.00 hrs on 1 April 2016;
G              (ii)    The appellants had, by the guidelines dated 18 March
                      2016, required the submission of data in the prescribed
                      format to indicate the actual injection of power into the
                      grid so as to furnish an objective basis for determining
                      as to whether the project had been commissioned before
                      or after the cut-off prescribed;
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  M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWER                        83
    PROJECTS (P) LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


         (iii)    As a result of the data which was obtained from the          A
                 SLDC, it has emerged that the actual injection of power
                 into the grid took place on 1 April 2016;
         (iv)     In consequence, the first appellant offered to the first
                 respondent that it was ready and willing to execute a
                 PPA in terms of the new Tariff Order dated 17 March           B
                 2016 which was applicable to projects which had been
                 commissioned on or after 1 April 2016;
         (v)     The first respondent failed to take the benefit of the
                 offer which was made by the first appellant and instead
                 pursued its writ petition before the High Court;              C
         (vi)     The High Court has erred in relying on the commissioning
                 certificate issued by the Superintending Engineer, ignoring
                 that the certificate was not in accordance with the format
                 in which data was required by the first appellant for the
                 purpose of establishing the actual commissioning of the       D
                 project before 31 March 2016;
         (vii)    As a result of the subsequent developments, the first
                 appellant is now bound by the guidelines which have
                 been issued by the State of Madhya Pradesh on 1 August
                 2014. Moreover, under the guidelines formulated by the        E
                 Union Ministry of Power in the Government of India on
                 8 December 2017, the first appellant is required to pursue
                 a competitive bidding process for the purpose of entering
                 into a PPA;
         (viii) As a result of the PPAs which have been entered into           F
                by the first appellant following the competitive bidding
                process, it has been able to secure electric power at
                cheaper rates ranging between Rs 2.30 to Rs 2.59 per
                unit; and
         (ix)     The first appellant would now be willing to enter into a
                                                                               G
                 PPA on the basis of competitive bidding and having due
                 regard to the interests of the consumers, it would be
                 appropriate if the first respondent is directed to do so.
      23. On the other hand, it has been urged on behalf of the first
respondent in the appeals by Mr Vivek K Tankha and Mr Gopal
                                                                               H
84            SUPREME COURT REPORTS                           [2019] 10 S.C.R.


A    Sankaranarayanan, learned senior counsel, that:
               (i)      Under the terms of the earlier Tariff Order which held
                       the field for the period 2013-16, a rate of Rs 5.92 per
                       unit was prescribed for all new wind generating units,
                       which had been commissioned until 31 March 2016;
B              (ii)     The rate of Rs 5.92 per unit was to remain frozen for a
                       life cycle of 25 years;
               (iii)    In the present case, in terms of the Tariff Order, which
                       referred to the successful commissioning of the project,
                       the first respondent commissioned its project on 31 March
C                      2016 as evidenced by the certificate issued by the
                       Superintending Engineer;
               (iv)     The High Court has not erred in directing the appellants
                       to act on the basis of the certificate of commissioning
                       and in staying the revocation which was issued only on
D                      17 November 2017 after the writ petition was decided;
               (v)      In the alternative, and without prejudice to the above
                       submissions, in any event, there is no justification on the
                       part of the first appellant not to enter into a PPA with
                       the first respondent on the basis of the Tariff Order which
E                      was notified on 17 March 2016 for the control period
                       2016-19;
               (vi)    The notification of the Union of India dated 8 December
                       2017 has no application since it applies to projects having
                       an individual size of 5 MW and above at one site with a
F                      minimum bid capacity of 25 MW for intra-State projects.
               (vii)   The revocation of the commissioning certificate was a
                       unilateral act of the first appellant without allowing an
                       opportunity of being heard to the first respondent and no
                       show cause notice was issued.
G           24. The Tariff Order of March 2013 stipulated that it would be
     applicable to all new wind electric generation projects which were
     commissioned on or after 1 April 2013 for the sale of electricity to
     distribution licensees in the State. The control period of the Tariff Order
     commenced on 1 April 2013 and would end on 31 March 2016. The
H
  M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWER                         85
    PROJECTS (P) LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


Tariff Order fixed a levelized tariff of Rs 5.92 per unit for new wind          A
energy projects to be commissioned after the issuance of the Order for
a project life of 25 years. Para 12.30 provided that all existing projects
which were commissioned before 1 April 2013 would be governed by
the terms and conditions applicable at the time of commissioning. Hence,
the crucial ingredient in determining the tariff was the actual date on
                                                                                B
which the project was commissioned.
       25. The Tariff Order of 17 March 2016 which replaced the earlier
Tariff Order applied to all new wind electric generation projects which
were commissioned at 00.00 hrs on 1 April 2016 or thereafter. The
SLDC was required by Para 4.2 of the Tariff Order to submit a list of
WEGs commissioned during the month of March 2016 from 00.00 hrs                 C
of 1 March 2016 to 24.00 hrs of 31 March 2016. This data was sought
in order to provide an objective basis of determining whether a project
had been commissioned before the new Tariff Order became applicable
to projects which were commissioned with effect from 1 April 2016.
        26. In line with the above provisions, the guidelines that were         D
issued by the first appellant on 18 March 2016 provided a format for the
issuance of commissioning certificates. The format required readings
of: (i) WTG meters; (ii) main billing meters; and (iii) check billing meters.
The format required the submission of this data in order to establish the
date on which a particular project had been commissioned. The actual            E
date of commissioning would determine the applicable tariff; the tariff
of Rs 5.92 per unit would apply to projects which were commissioned
on or before 31 March 2016, while the new rate of Rs 4.78 per unit
would apply to projects which were commissioned on or after 1 April
2016. Requiring the SLDC to submit data of the actual injection of power
into the grid was with the objective of establishing the actual                 F
commissioning of the project.
       27. In the present case, the principal submission of the appellants
is that the data which was furnished by the SLDC indicates that the
actual injection of power into the grid by the first respondent took place
on 1 April 2016. It is on that basis that the first appellant has submitted     G
that the commissioning certificate was not in accordance with the
prescribed format and had to be revoked. Before this Court, the data
which has been furnished by the SLDC is not in dispute. Indeed, that is
the basis on which Mr Vivek K Tankha, learned senior counsel urged his
alternative submission that in any event, even going by the SLDC data,          H
86            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A    it is evident that the power was injected into the grid on and from 1 April
     2016.
            28. On reviewing the documentary material on the record, we are
     not prepared to accept the view which has weighed with the High Court,
     namely, that the commissioning of the project was completed by 31 March
B    2016. The certificate of commissioning which has been issued by the
     Superintending Engineer is belied by the objective factual data available
     from the SLDC which is a statutory body constituted under Section 31
     of the Act. The objective data on the record indicates that the injection
     of power into the grid took place on 1 April 2016. Hence, we are of the
     view that this should be the basis on which the claim for the entering into
C    a PPA should be founded.
             29. Since the factual data has been placed before this Court, we
     are of the view that the project of the first respondent was commissioned
     on 1 April 2016 since the SLDC data indicates the injection of power
     into the grid with effect from that date. On the basis of the commissioning
D    of the project on 1 April 2016, we find merit in the alternative submission
     which has been urged on behalf of the first respondent in the appeals
     that the Tariff Order that must apply is the Tariff Order dated 17 March
     2016. The first respondent was before the Madhya Pradesh High Court
     in writ proceedings espousing its claim to the benefit of a higher rate of
E    Rs 5.92 per unit on the basis of the earlier Tariff Order and on the basis
     that the commissioning of its project had taken place on 31 March 2016.
     The first respondent was bona fide pursuing its claim in that regard
     which found acceptance in the impugned judgment and order of the
     High Court. Though we have differed with the view which has been
     taken by the High Court, we are of the view that it would be unfair to
F    deny to the first respondent the benefit of the rate which came to be
     prescribed by the Tariff Order of 17 March 2016. The rate which was
     prescribed by that Tariff Order of Rs 4.78 per unit was to apply during
     the control period beginning from 1 April 2016 and ending on 31 March
     2019 and that rate would continue to govern the life cycle of 25 years, as
G    prescribed by Para 5 of the Tariff Order. The first respondent cannot
     be denied a parity of treatment, as has been allowed to other projects of
     a similar nature which would be governed by the control period stipulated
     in Para 5 of the Tariff Order dated 17 March 2016.
           30. The competitive bidding guidelines upon which reliance has
H    been placed by Mr Nitin Gaur, learned counsel appearing on behalf of
   M.P. POWER MANAGEMENT CO. LTD. v. M/S DHAR WIND POWER                          87
     PROJECTS (P) LTD. [DR. DHANANJAYA Y CHANDRACHUD, J.]


the appellants, were formulated by the Union Ministry of Power                    A
subsequently on 8 December 2017. Moreover, Para 3.1 of those
guidelines is not applicable to the project of the first respondent. Para
3.1 provides thus:
        “3. APPLICABILITY OF GUIDELINES
        3.1 These Guidelines are being issued under the provisions of             B
        Section 63 of the Electricity Act, 2003 for long-term procurement
        of electricity through competitive bidding process, by the
        ‘Procurer(s)’, from grid-connected Wind Power Projects (‘WPP’)
        having, (a) individual size of 5 MW and above at one site
        with minimum bid capacity of 25 MW for intra-state projects;              C
        and (b) individual size of 50 MW and above at one site with
        minimum bid capacity of 50 MW for inter-state projects.”
                                                    (emphasis supplied)
      31. The above guidelines apply to grid-connected Wind Power
Projects with an individual size of 5 MW and above at one site with a             D
minimum bid capacity of 25 MW for intra-State projects. Since the first
respondent is admittedly an intra-State project and does not fulfil the
above requirement, the guidelines (which in any event came into force
subsequently) will have no application.
       32. For the above reasons, we allow the appeals in part and set            E
aside the impugned judgments and orders of the High Court dated 21
September 2017 and 29 January 2018. We direct, in consequence of the
above discussion, that the first respondent in the appeals shall be entitled
to the benefit of the Tariff Order dated 17 March 2016. The appellants
shall process the application of the first respondent in the appeals for          F
execution of a PPA on that basis with effect from 1 April 2016. In the
view which we have taken, the second writ petition which has been filed
by the first respondent before the High Court of Madhya Pradesh shall
not survive and shall stand disposed of in terms of the present judgment.
There shall be no order as to costs.
                                                                                  G
        33. Pending application, if any, stands disposed of.


Nidhi Jain                                              Appeals partly allowed.



                                                                                  H