UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED AND ANOTHERversusADANI POWER (MUNDRA) LIMITED AND ANOTHER

                       [2023] 4 S.C.R. 1095                            1095


  UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED AND                         A
                    ANOTHER
                                 v.
    ADANI POWER (MUNDRA) LIMITED AND ANOTHER
                  (Civil Appeal No. 2908 of 2022)
                                                                       B
                          APRIL 20, 2023
           [B. R. GAVAI AND VIKRAM NATH, JJ.]
       Electricity Laws : Change in Law –Inter Plant Transfer-IPT
of coal, if qualifies as a Change in Law event – Respondent No.1-
company entered into Power Project Agreements with the appellants-     C
Haryana Utilities for supply of power – Respondent no.1 filed
petition claiming compensation on account of change in New Coal
Distribution Policy, 2007 – Electricity Regulatory Commission-
CERC allowed compensation towards certain ‘Change in Law’
events – However, the appellate tribunal held that the communication
dated 19th June 2013 issued by Coal India Limited-CIL providing        D
for Inter Plant Transfer not to be a ‘Change in Law’ event; and that
change in law compensation to be calculated as Assured Coal
Quantity-actual supply – Sustainability of – Held: Finding of APTEL
that the communication dated 19th June 2013 permitting Inter Plant
Transfer is not a ‘Change in Law’, not sustainable – Said
                                                                       E
communication refers to the decision of the CIL taken in its meeting
whereby the transfer of coal which was not allowed hitherto, has
been allowed only between the power plants owned by the purchaser
or its wholly owned subsidiary – Communication reflects the decision
of CIL, which is an Government instrumentality having a force of
law – As such, the tribunal erred in holding the said communication    F
providing for IPT does not to amount to ‘Change in Law’, thus, the
finding of the APTEL is set aside – IPT amounts to ‘Change in Law’
– Allowing ‘Change in Law’ compensation on the basis of ACQ-
actual supply upheld –Matter remitted to CERC for working out the
effect of the ‘Change in Law’.
                                                                       G
      Words and Phrases: Law – Meaning thereof .
      Partly allowing the appeal, the Court
     HELD: 1.1 The definition of “Law” is wide enough to
include all rules, regulations, orders, notifications by the
Governmental instrumentalities. [Para 24][1103-H]                      H
                               1095
1096            SUPREME COURT REPORTS                      [2023] 4 S.C.R.


 A            1.2 The communication dated 19.06.2013 Modification in
       Model FSA applicable for New Power plants in respect of
       Interplant transfer of coal refers to the decision of the CIL taken
       in its meeting held on 27th May 2013. A perusal thereof would
       reveal that the transfer of coal which was not allowed hitherto,
       has been allowed only between the power plants owned by the
 B
       purchaser or its wholly owned subsidiary. It further provides that
       no transfer of coal shall be allowed for a JV Company of the
       purchaser; that the supply of coal shall, for all commercial purpose
       under the FSA, remain unchanged and on account of the original
       Power Plant; that both the Power Plants should have executed
 C     FSA in the modified FSA Model applicable for new power plants
       and not having any supplies linked to coal blocks. It further
       provides that in case of IPPs, both the plants must have valid
       long term PPAs with DISCOMS. In no case the transferred
       quantity to a plant together with the quantity supplied under the
       applicable FSA shall exceed the ACQ of the Transferee Plant for
 D
       a particular year which is proportional to the long term PPA with
       DISCOMS. Transfer of coal will not be allowed to those plants
       who are allotted coal blocks under this arrangement. In case of
       change in the ownership and no environmental clearance of the
       plant, this facility shall stand withdrawn. It could thus be seen
 E     that the said communication reflects the decision of CIL. The
       CIL is an instrumentality of the Government of India. As such,
       APTEL erred in holding the said communication dated 19th June
       2013 not to amount to ‘Change in Law’. [Paras 26, 27][1105-B-
       F]
 F           1.3 APTEL held that the said communication is an
       administrative instruction addressed to all the subsidiaries.
       APTEL failed to take into consideration that CERC had not
       decided the said issue, inasmuch as the decision on the said issue
       would have affected the other two DISCOMS, i.e., MSEDCL and
       Rajasthan DISCOMS. It would be relevant to note that the very
 G     same tribunal, immediately after three months, in the case of
       Rattan India Power Limited v. Maharashtra Electricity Regulatory
       Commission and Another, took a totally contrary view. Vide
       judgment in Civil Appeal Nos. 5005 of 2022 and 4089 of 2022,
       the concurrent view of Maharashtra Electricity Regulatory
 H
  UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                       1097
             POWER (MUNDRA) LTD.

Commission and APTEL holding the said EFC to be ‘Change in             A
Law’ is upheld. In that view of the matter, the finding of APTEL
that the communication dated 19th June 2013 permitting IPT is
not a ‘Change in Law’ would not be sustainable. [Paras 28-
31][1105-F; 1106-D-E; 1107-B]
       1.4 While submitting the bid, AP(M)L must have factored         B
in the cost of transportation of linkage coal from MCL Coal Mine,
Talcher to its plant at Mundra. As per the details given in the
PPA, the mode of transportation is through railway. As such, prior
to the IPT being permitted, AP(M)L was bound to utilize the
linkage coal from MCL Coal Mine, Talcher, only for the purpose
of its original power plant, i.e., AP(M)L. Only on account of the      C
IPT would it be in a position to utilize the coal from MCL Coal
Mine, Talcher either for its plant in Maharashtra or in Rajasthan.
Similarly, it would be entitled to utilize the coal linkages for its
plant in Maharashtra or in Rajasthan for production of energy in
its other power plants. As such, there is bound to be a variance       D
in the cost of transportation by railways. If the coal is to be
transported from MCL Coal Mine, Talcher to AP(M)L, the cost
of railway transportation would be higher as compared to the cost
of railway transportation from MCL Coal Mine, Talcher to Tiroda
TPS. The savings made in the cost of transportation, i.e., the
cost which would have been incurred for transporting the coal          E
from MCL Coal Mine, Talcher to ‘X’ plant minus the actual cost
of transportation has to be passed on to the DISCOMS, which, in
turn, has to be passed on to the end consumers. [Para 32][1107-
C-G]
      1.5 The changes occurring on account of permitting IPT           F
would affect AP(M)L as well as the appellants and two other
DISCOMS, i.e., MSEDCL and Rajasthan DISCOMS. This was
also observed by the CERC in its order dated 8th July 2019. No
expertise is there for working out as to what benefit any of the
parties would be entitled to on account of the said ‘Change in         G
Law’. However, the cost of saving in the railway transportation
on account of ‘Change in Law’ needs to be worked out and passed
on to the appropriate DISCOMS, which can further be passed on
to the consumers. CERC, which is a body of experts, is best
suited to do so. [Para 33][1107-H; 1108-A-B]
                                                                       H
1098            SUPREME COURT REPORTS                          [2023] 4 S.C.R.


 A           1.6 Though the issue with regard to allowing ‘Change in
       Law’ compensation on the basis of ACQ – actual supply is upheld,
       the issue with regard to IPT not being ‘Change in Law’ is set
       aside. The finding of the APTEL to the effect that the
       communication dated 19th June 2013 providing for IPT does not
       amount to ‘Change in Law’ is set aside. It is held that IPT amounts
 B     to ‘Change in Law’. [Paras 34, 35][1108-C-D]
              1.7 The matter is remitted to CERC for working out the
       effect of the said ‘Change in Law’ after giving notice to MSEDCL
       as well as Rajasthan DISCOMS and hearing all the parties
       including the appellants and the respondents herein. However,
 C     since the said issue has been pending since a long time, CERC
       is directed to decide the said issue and calculate the benefits
       that would be accruable to any of the parties within the stipulated
       period. [Paras 36, 37][1108-E-F]
             Energy Watchdog v. Central Electricity Regulatory
             Commission and Others (2017) 14 SCC 80;
 D           Maharashtra State Electricity Distribution Company
             Limited v. Adani Power Maharashtra Limited and
             Others 2023 SCC OnLine SC 233; Maharashtra State
             Electricity Distribution Company Limited v. GMR
             Warora Energy Ltd. and Others Civil Appeal No. 6927
 E           of 2021; Rattan India Power Limited v. Maharashtra
             Electricity Regulatory Commission and Another Appeal
             Nos. 118 of 2021 and 40 of 2022 dated 22nd March
             2022 – referred to.
                               Case Law Reference
 F     (2017) 14 SCC 80                   referred to              Para 3
             CIVIL APPELLATE JURISDICTION : Civil Appeal No.2908
       of 2022.
             From the Judgment and Order dated 21.12.2021 of the Appellate
       Tribunal for Electricity at New Delhi in Appeal No. 231 of 2021.
 G            Balbir Singh, A.S.G., V. Giri, C. Aryama Sundaram, Niranjan Reddy,
       S.B. Upadhyay, Sr. Advs., Samir Malik, Ms. Nikita Choukse, Akash
       Lamba, Chandra Prakash, Ms. Farha Malik, M/s. D.S.K. Legal,
       Pukhrambam Ramesh Kumar, Anand K. Ganesan, Ms. Poorva Saigal,
       Shubham Arya, Nikunj Dayal, Amal Nair, Ms. Pallavi Saigal, Ms. Kriti
       Soni, Ravi Nair, Ms. Kritika Khanna, Ms. Ritu Apurva, Ms. Shikha Sood,
 H
     UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                         1099
                POWER (MUNDRA) LTD.

Ms. Ankita Gupta, Zafar Inayat, Ms. Reeha Singh, Ms. Anumeha Smiti,         A
Anushree Bardhan, Navin Prakash, Ms. Surbhi Kapoor, Mahesh Agarwal,
Amit Kapur, Ms. Poonam Sengupta, Arshit Anand, Ms. Geetika Sharma,
Saunak Rajguru, Ms. Sakshi Kapoor, E. C. Agrawala, Vishrov Mukherjee,
Girik Bhalla, Yashaswi Kant, Ms. Akila Palem Ramireddy, Ms. Juhi
Senguttuvan, Ms. Pallavi Sharma, Nishant Kumar, Vaibhav Kalra, Ms.
                                                                            B
Anisha Upadhyay, Advs. for the appearing parties.
         The Judgment of the Court was delivered by
         B. R. GAVAI, J.
       1. The present appeal challenges the judgment and order dated
21st December 2021 passed by the Appellate Tribunal for Electricity         C
(hereinafter referred to as ‘APTEL’), in Appeal No. 231 of 2021, filed
by the appellants herein, thereby challenging the order dated 8th July
2019, passed by Central Electricity Regulatory Commission (hereinafter
referred to as ‘CERC’) in Petition No. 269/MP/2018. The APTEL has
held the communication dated 19th June 2013, issued by Coal India Limited   D
(for short, “CIL”) not to be a ‘Change in Law’ event.
         2. The facts, in brief, giving rise to the present appeal are as
under:
       The respondent No.1 – Adani Power (Mundra) Limited
(hereinafter referred to as “AP(M)L”) had set up a generating station       E
of capacity 4620 MW (Phase I & II – 4 x 330 MW, Phase III – 2 x 660
MW and Phase IV – 3 x 660 MW) at Mundra in the State of Gujarat.
AP(M)L had entered into Power Project Agreements (hereinafter
referred to as “PPA”) dated 7th August 2008 with Uttar Haryana Bijli
Vitran Nigam Limited and Dakshin Haryana Bijli Vidyut Nigam Limited         F
(hereinafter referred to as “Haryana Utilities”), the appellants herein,
for supply of 1424 MW power from Phase IV of the generating station.
       3. CERC, vide its order dated 6th February 2017, allowed the
compensation towards certain ‘Change in Law’ events claimed by
AP(M)L in Petition No. 156/MP/2014. AP(M)L has submitted that
                                                                            G
Haryana Utilities were already making payments in terms of the
supplementary invoices raised by AP(M)L. Subsequently, on account of
the judgment of this Court in the case of Energy Watchdog v. Central
Electricity Regulatory Commission and Others1, AP(M)L filed another

1
    (2017) 14 SCC 80                                                        H
1100            SUPREME COURT REPORTS                          [2023] 4 S.C.R.


 A     petition being Petition No. 97/MP/2017 claiming compensation on account
       of change in New Coal Distribution Policy, 2007 (for short, “NCDP
       2007”). Subsequently, certain interim directions were issued by CERC.
       Haryana Utilities, thereafter, filed I.A. No. 21 of 2018 in Petition No.
       97/MP/2017, stating therein that the compensation as claimed by AP(M)L
       was incorrect inasmuch as AP(M)L had not taken into consideration the
 B
       benefits accruing to them on account of Inter Plant Transfer (for short,
       “IPT”) permitted under the communication dated 19th June 2013 issued
       by CIL.
              4. Per contra, it was claimed by AP(M)L that the Haryana Utilities
       unilaterally revised a huge amount from the monthly bills on the ground
 C
       of IPT. It was submitted by AP(M)L that the contention of the Haryana
       Utilities with regard to IPT has already been rejected by CERC in its
       order dated 31st May 2018.
             5. In this background, AP(M)L filed Petition No. 269/MP/2018
       before CERC claiming the following reliefs:
 D
             “(a) Clarify and declare that the findings of this Ld. Commission
             at paragraph 61 of the Order of the Commission dated 31.05.2018
             in Petition No. 97/MP/2017 and IA No. 21 of 2018, are applicable
             to the Change in Law compensation pertaining to taxes and duties
             approved under Order dated 06.02.2017 in Petition No. 156/MP/
 E
             2014 as well; and
             (b) Direct the Respondents to pay Rs. 895.41 Crores (Rs. 566.83
             Crores related to Domestic Coal Shortfall + Rs. 328.58 Crores
             related to taxes and duties) unilaterally deducted from the monthly
 F           bills/supplementary invoices along with the applicable Late
             Payment Surcharge.”
             6. CERC framed the following issues:
             “Issue No.1: Whether the Petition is maintainable under Section
             142 of the Act?
 G
             Issue No. 2: Whether our finding in respect of IPT coal at Para
             61 of the order dated 31.5.2018 in Petition No. 97/MP/2017 is
             applicable for the compensation payable for various taxes and
             duties approved as change in law in the order dated 6.2.2017 in
             Petition No. 156/MP/2014?
 H
   UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                                1101
        POWER (MUNDRA) LTD. [B. R. GAVAI, J.]

       Issue No. 3: What should be the treatment of Inter Plant Transfer         A
       of Coal, if it is considered as change in law?
       Issue No. 4: What should be the basis for calculating shortfall of
       domestic coal?”
      7. Insofar as Issue No. 1 is concerned, CERC held the dispute to           B
be maintainable.
       8. Insofar as Issue No. 2 is concerned, CERC held that in view of
its order dated 6th February 2017 in Petition No. 156/MP/2014, the coal
supply, under Fuel Supply Agreement (for short, “FSA”) dated 9 th June
2012, to other plants has to be accounted for the generation and supply          C
of power to Haryana Utilities from Units 7, 8 and 9 of Mundra TPP for
all commercial purposes. It, therefore, rejected the contention of Haryana
Utilities that it was liable to pay taxes and duties only for the coal that it
has actually consumed and not for IPT coal.
       9. Insofar as Issue No. 3 is concerned, CERC held that the transfer       D
of coal by AP(M)L under IPT Policy also affects other generating stations
that are consuming IPT coal and other distribution companies who are
also supplied power by the generating stations that have used IPT coal.
Since other distribution companies were not parties to the proceedings
before CERC, it did not find it appropriate to deal with the issue.
                                                                                 E
       10. Insofar as Issue No. 4 is concerned, CERC, in view of the
judgment of this Court in the case of Energy Watchdog (supra), held
that the quantum of shortfall has to be calculated taking into consideration
the Assured Coal Quantity (for short, “ACQ”) and the quantity actually
supplied by the coal companies.
                                                                                 F
      11. Being aggrieved thereby, Haryana Utilities filed an appeal
before APTEL.
      12. Insofar as Issue No. 4 is concerned, APTEL, vide its judgment
and order dated 21st December 2021, relying on the judgment of this
Court in the case of Energy Watchdog (supra), held that ‘Change in               G
Law’ compensation needs to be calculated as ACQ – actual supply.
       13. Insofar as the issue with regard to communication dated 19th
June 2013 being ‘Change in Law’ is concerned, APTEL held the same
not to be ‘Change in Law’. Being aggrieved thereby, the present appeal.
                                                                                 H
1102                  SUPREME COURT REPORTS                      [2023] 4 S.C.R.


 A           14. We have heard Shri Shubham Arya, learned counsel appearing
       on behalf of the appellants and Dr. A.M. Singhvi, learned Senior Counsel
       appearing on behalf of the respondents.
              15. Shri Arya submitted that, considering the definition of “Law”
       given in the PPA, the communication dated 19th June 2013 would squarely
 B     fall under the term “Law”. He submitted that in any case, CERC had
       refused to answer the said issue in the absence of other distributors. It is
       submitted that APTEL has grossly erred in holding the same not to be a
       ‘Change in Law’ event.
             16. Dr. Singhvi, on the other hand, submitted that the communication
 C     dated 19th June 2013 is an inter- departmental communication and the
       same cannot be held to be ‘Change in Law’.
              17. When we heard this batch of Electricity appeals, it was agreed
       between all the parties that this Court should first decide Civil Appeal
       No. 684 of 2021 (Maharashtra State Electricity Distribution Company
 D     Limited v. Adani Power Maharashtra Limited and Others 2)
       [“MSEDCL v. APML and Others”, for short] and Civil Appeal No.
       6927 of 2021 (Maharashtra State Electricity Distribution Company
       Limited v. GMR Warora Energy Ltd. and Others) inasmuch as three
       of the issues involved in all the appeals in the batch were common. It
       was submitted that those two appeals could be decided by deciding the
 E     three common issues. However, insofar as the other appeals are
       concerned, it was submitted that, in addition to the three common issues,
       certain additional issues were also involved and it was agreed that after
       those two appeals are decided, the other appeals should be heard for
       considering these additional issues.
 F             18. The said three common issues are thus:
               (i)      Whether ‘Change in Law’ relief on account of NCDP 2013
                        should be on ‘actuals’ viz. as against 100% of normative
                        coal requirement assured in terms of NCDP 2007 OR
                        restricted to trigger levels in NCDP 2013 viz. 65%, 65%,
 G                      67% and 75% of Assured Coal Quantity (ACQ)?
               (ii)     Whether for computing ‘Change in Law’ relief, the
                        operating parameters be considered on ‘actuals’ OR as per
                        technical information submitted in bid?

       2
 H         2023 SCC OnLine SC 233
  UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                               1103
       POWER (MUNDRA) LTD. [B. R. GAVAI, J.]

      (iii)   Whether ‘Change in Law’ relief compensation is to be             A
              granted from 1st April 2013 (start of Financial Year) or 31st
              July 2013 (date of NCDP 2013)?
      19. After extensively hearing all the learned counsel for the parties,
vide the judgment and order dated 3 rd March 2023 in the case of
MSEDCL v. APML and Others (supra), this Court decided those two                B
appeals after considering the aforesaid three issues.
        20. The first issue was answered by this Court, holding that the
‘Change in Law’ relief for domestic coal shortfall should be on ‘actuals’
i.e. as against 100% of normative coal requirement assured in terms of
NCDP, 2007. Insofar as the second issue is concerned, it was held that         C
the Station Heat Rate (“SHR” for short) and Auxiliary consumption
should be considered as per the Regulations or actuals, whichever is
lower. The third issue was answered holding that the Start date for the
‘Change in Law’ event for the NCDP, 2013 is 1st April 2013.
      21. As such, Issue No. 4 stands squarely covered by our judgment         D
dated 3rd March 2023 in the case of MSEDCL v. APML and Others
(supra) so also by the earlier judgment of this Court in the case of Energy
Watchdog (supra).
       22. Insofar as Issue Nos. 2 and 3 are concerned, we find that the
said issues are interlinked and the same would depend on the decision as
                                                                               E
to whether the communication dated 19th June 2013 providing for IPT
would amount to ‘Change in Law’ or not.
      23. It will be relevant to refer to the definition of “Law” as defined
under the PPA, which reads thus:
      “Law means, in relation to this Agreement, all taws including            F
      Electricity Laws in force in India and any statute, ordinance,
      regulation, notification or code; rule, or any interpretation of any
      of them by an Indian Governmental Instrumentality and having
      force of law and shall further include all applicable rules,
      regulations, orders, notifications by an Indian Governmental
      Instrumentality pursuant to or under any of them and shall include       G
      all rules, regulations, decisions and orders of the Appropriate
      Commission.”
      24. It can, thus, clearly be seen that the definition of “Law” is
wide enough to include all rules, regulations, orders, notifications by the
Governmental instrumentalities.                                                H
1104              SUPREME COURT REPORTS                       [2023] 4 S.C.R.


 A           25. It will be relevant to refer to the communication dated 19th
       June 2013, which reads thus:
             “Sub: Modification in Model FSA applicable for New Power plants
             in respect of “Interplant transfer of coal”

 B           A proposal for allowing inter power plant transfer of coal from
             one Power Plant to another under the modified FSA applicable
             for New Power Plants (for both PSU/Govt. PUs and Private PUs)
             was placed before the 298th CIL Board in its Meeting held on
             27.5.13.

 C           The CIL Board while approving to the proposal allowed such
             dispensation subject to the following conditions which stand as
             below after legal vetting.
             a)     Transfer of coal shall be allowed only between the power
                    plants wholly owned by the Purchaser or its wholly owned
 D                  subsidiary. No transfer of coal shall be allowed for a JV
                    company of the Purchaser. The supply of coal, shall for all
                    commercial purpose under the FSA remain unchanged and
                    on account of the original Power Plant.
             b)     Both the Power Plants should have executed FSA in the
 E                  modified FSA Model applicable for new power plants and
                    not having any supplies linked to coal blocks. In case of
                    IPPs both the plants must have valid long term PPAs with
                    DISCOMS.
             c)     In no case the transferred quantity to a plant together with
 F                  the quantity supplied under the applicable FSA shall exceed
                    the ACQ of the Transferee Plant for a particular year which
                    is proportional to the long term PPA with DISCOMS.
             d)     Transfer of coal will not be allowed to those plants who are
                    allotted coal blocks under this arrangement.
 G
             e)     In case of change in the ownership and no environmental
                    clearance of the plant this facility shall stand withdrawn,
                    and
             f)     Penalty/ incentive under this arrangement would be
                    considered in terms of (a) above.
 H
  UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                              1105
       POWER (MUNDRA) LTD. [B. R. GAVAI, J.]

      A statement showing the modification in the FSA models applicable       A
      for New Power plants (for both PSU/ Govt. PUs and Private
      PUs) is enclosed.”
       26. It can thus be seen that the said communication refers to the
decision of the CIL taken in its meeting held on 27th May 2013. A perusal
thereof would reveal that the transfer of coal which was not allowed          B
hitherto, has been allowed only between the power plants owned by the
purchaser or its wholly owned subsidiary. It further provides that no
transfer of coal shall be allowed for a JV Company of the purchaser. It
further provides that the supply of coal shall, for all commercial purpose
under the FSA, remain unchanged and on account of the original Power
Plant. It further provides that both the Power Plants should have executed    C
FSA in the modified FSA Model applicable for new power plants and
not having any supplies linked to coal blocks. It further provides that in
case of IPPs, both the plants must have valid long term PPAs with
DISCOMS. It further provides that in no case the transferred quantity
to a plant together with the quantity supplied under the applicable FSA       D
shall exceed the ACQ of the Transferee Plant for a particular year which
is proportional to the long term PPA with DISCOMS. It further provides
that transfer of coal will not be allowed to those plants who are allotted
coal blocks under this arrangement. It further provides that in case of
change in the ownership and no environmental clearance of the plant,
this facility shall stand withdrawn.                                          E

      27. It could thus be seen that the said communication reflects the
decision of CIL. The CIL is an instrumentality of the Government of
India. As such, we find that APTEL erred in holding the said
communication dated 19th June 2013 not to amount to ‘Change in Law’.
                                                                              F
      28. APTEL has held that the said communication is an
administrative instruction addressed to all the subsidiaries. It will be
apposite to refer to the following findings of APTEL:
      “109. There is no denial of the fact that the letter dated 19.06.2013
      addressed by CIL intimating to all subsidiaries the decision taken      G
      at its 298th board meeting (27.05.2013), allowing IPT of coal was
      conditional upon transfer (of coal) to be allowed only between the
      power plants wholly owned by the purchaser or its wholly owned
      subsidiary and supply of coal for all commercial purpose under
      the FSAs to remain unchanged and on account of original power
      plant. In particular context of the first respondent, it follows as a   H
1106                SUPREME COURT REPORTS                             [2023] 4 S.C.R.


 A              sequitur that IPT of coal is allowable if Mundra TPS transfers its
                portion of linkage coal from MCL coal mine, Talcher to Tiroda
                TPS (both owned by Adani group) for utilization of such coal at
                Tiroda TPS and that even though linkage coal from MCL coal
                mine, Talcher of Mundra TPS (original power plant in terms of
                the FSA) was actually utilized at Tiroda TPS (transferee plant), it
 B
                will be accounted as if it were consumed at Mundra TPS. To put
                it simply, the effect of IPT of coal is that IPT coal cost (linkage
                domestic coal) will continue to be booked in the account of Mundra
                TPS (original power plant in terms of the FSA/transferor plant
                under IPT scheme) and alternate coal cost (imported coal or
 C              market-based e-auction coal used in the absence of linkage coal)
                will continue to be booked on ‘attributed cost’ basis in the accounts
                of Tiroda TPS (transferee plant under IPT scheme).”
               29. We find that APTEL has failed to take into consideration that
       CERC had not decided the said issue, inasmuch as the decision on the
 D     said issue would have affected the other two DISCOMS, i.e., MSEDCL
       and Rajasthan DISCOMS. It will further be relevant to note that the
       very same Tribunal, immediately after three months, in the case of Rattan
       India Power Limited v. Maharashtra Electricity Regulatory
       Commission and Another3, has taken a totally contrary view. In the
       said case, it was sought to be argued on behalf of MSEDCL that the
 E     Evacuation Facility Charge (for short, “EFC”) imposed by CIL vide its
       circular dated 19th December 2017 did not constitute ‘Change in Law’.
       It will be apposite to refer to the following observations:
                “9. It is incorrect to argue that to be covered as a change in law
                event under such contractual clauses as quoted earlier, the
 F              instrument whereby the law is claimed to have undergone a
                change must have been published in official gazette to have the
                force of law. In Energy Watchdog & Ors. (supra), for illustration,
                even a letter of the Ministry of Power in the Government of
                India was accepted as an instrument having the “force of law”.
 G              Similarly, in Kusum Ingots & Alloys v. Union of India (2004) 6
                SCC 254 executive instructions without any statutory backing
                were also considered as “law”. That Coal India is Government
                instrumentality and the notifications, circulars, etc. issued by it
                have a force of law under Regulation 77(3) of the Constitution
       3
 H         Appeal Nos. 118 of 2021 and 40 of 2022 dated 22 nd March 2022
  UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. ADANI                               1107
       POWER (MUNDRA) LTD. [B. R. GAVAI, J.]

      of India was accepted by this tribunal in GMR Kamalanga Energy           A
      Ltd. (supra).”
     30. Vide judgment of even date, in Civil Appeal Nos. 5005 of
2022 and 4089 of 2022, we have upheld the concurrent view of
Maharashtra Electricity Regulatory Commission (for short, “MERC”)
and APTEL holding the said EFC to be ‘Change in Law’.                          B
       31. In that view of the matter, we are of the opinion that the
finding of APTEL that the communication dated 19th June 2013 permitting
IPT is not a ‘Change in Law’ would not be sustainable.
       32. It is to be noted that, while submitting the bid, AP(M)L must
have factored in the cost of transportation of linkage coal from MCL           C
Coal Mine, Talcher to its plant at Mundra. As per the details given in the
PPA, the mode of transportation is through railway. As such, prior to the
IPT being permitted, AP(M)L was bound to utilize the linkage coal from
MCL Coal Mine, Talcher, only for the purpose of its original power plant,
i.e., AP(M)L. Only on account of the IPT would it be in a position to          D
utilize the coal from MCL Coal Mine, Talcher either for its plant in
Maharashtra or in Rajasthan. Similarly, it will be entitled to utilize the
coal linkages for its plant in Maharashtra or in Rajasthan for production
of energy in its other power plants. As such, there is bound to be a
variance in the cost of transportation by railways. For example, if the
coal is to be transported from MCL Coal Mine, Talcher to AP(M)L, the           E
cost of railway transportation would be higher as compared to the cost
of railway transportation from MCL Coal Mine, Talcher to Tiroda TPS.
We are only giving this example as an illustration. We find that the savings
made in the cost of transportation, i.e., the cost which would have been
incurred for transporting the coal from MCL Coal Mine, Talcher to ‘X’          F
plant minus the actual cost of transportation has to be passed on to the
DISCOMS, which, in turn, has to be passed on to the end consumers.
For example, if the cost of transportation per ton from MCL Coal Mine,
Talcher to AP(M)L is Rs.100/- and from MCL Coal Mine, Talcher to
Tiroda TPS is Rs.50/- per ton, the benefit of Rs.50/- per ton will have to
                                                                               G
be passed on.
      33. We, however, find that the changes occurring on account of
permitting IPT would affect AP(M)L as well as the appellants and two
other DISCOMS, i.e., MSEDCL and Rajasthan DISCOMS. This was
also observed by the CERC in its order dated 8th July 2019. We do not
                                                                               H
1108                   SUPREME COURT REPORTS                      [2023] 4 S.C.R.


 A     possess any expertise for working out as to what benefit any of the
       parties would be entitled to on account of the said ‘Change in Law’.
       However, we are of the considered view that cost of saving in the railway
       transportation on account of ‘Change in Law’ in the light of our
       observation in the aforesaid paragraph needs to be worked out and passed
       on to the appropriate DISCOMS, which can further be passed on to the
 B
       consumers. CERC, which is a body of experts, is best suited to do so.
              34. We, therefore, find that the present appeal deserves to be
       partly allowed. Though the issue with regard to allowing ‘Change in
       Law’ compensation on the basis of ACQ – actual supply deserves to be
       upheld, the issue with regard to IPT not being ‘Change in Law’ deserves
 C     to be set aside.
                35. In the result, we partly allow the appeal and pass the following
       order:
                (i)      The finding of the APTEL to the effect that the
 D                       communication dated 19th June 2013 providing for IPT does
                         not amount to ‘Change in Law’ is set aside;
                (ii)     We hold that IPT amounts to ‘Change in Law’.
             36. In the light of our observations made in paragraphs 32 and 33,
       the matter is remitted to CERC for working out the effect of the aforesaid
 E     ‘Change in Law’ after giving notice to MSEDCL as well as Rajasthan
       DISCOMS and hearing all the parties including the appellants and the
       respondents herein.
             37. However, since the said issue has been pending since a long
       time, we direct CERC to decide the said issue and calculate the benefits
 F     that would be accruable to any of the parties within a period of six
       months from today.
                38. Pending application(s), if any, shall stand disposed. No costs.

       Nidhi Jain                                               Appeal partly allowed.
 G     (Assisted by : Rakhi, LCRA)




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