UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ANRversusADANI POWER (MUNDRA) LIMITED & ORS.

468                      [2023]REPORTS
               SUPREME COURT    5 S.C.R. 468                 [2023] 5 S.C.R.


A        UTTAR HARYANA BIJLI VITRAN NIGAM LTD. & ANR.
                                         v.
               ADANI POWER (MUNDRA) LIMITED & ORS.
                          Civil Appeal No. 4143 of 2020
B                                APRIL 20, 2023
                  [B. R. GAVAI AND VIKRAM NATH, JJ.]
             Electricity Act, 2013 : s. 63 – Determination of tariff by bidding
      process – Change in law – Haryana Utilities-appellants entered
      into Power Purchase Agreements-PPAs with the APML – PPAs entered
C
      pursuant to tariff based Competitive Bidding Process – Petition by
      APML before CERC seeking relief of increase in tariff on account
      of change in law, increase in coal price due to change in Indonesian
      Regulations – CERC allowed the petition granting change in law
      relief for the shortfall in the availability of 100% coal which was
D     upheld by the APTEL – On appeal, held: No document on record
      that representation was given by APML that its bid is based on 70%
      domestic and 30% imported coal – APML entitled to benefit on
      account of the Change in Law if there was any shortfall of 70% of
      the domestic coal as was decided to be allotted by the SLC (LT) –
      No error with the concurrent findings that APML entitled to Change
E
      in Law relief for 100% of the contracted capacity, which is 70% of
      the installed capacity of the Project – As regards, the methodology
      for computation of Change in Law compensation laid down in GMR
      Kamalanga Energy Ltd.’s case, Haryana Utilities are indulging into
      approbation and reprobation – After accepting before the CERC
F     that they would adopt the methodology as given in the case of GMR
      Kamalanga Energy Limited’s case, it would not be appropriate on
      the part of the appellants-instrumentalities of the State, to change
      its stand after final orders are passed by the CERC – Thus, the
      concurrent findings of facts by two expert bodies does not call for
      interference.
G
            Dismissing the appeal, the Court
            HELD: 1.1 None of the documents placed on record would
      reveal that a representation was given by AP(M)L that its bid is
      based on 70% domestic and 30% imported coal. It could thus be
H     seen that what has been stated in the Executive Summary by
                                        468
 UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                       469
           POWER (MUNDRA) LIMITED

AP(M)L is that its Power Plant had a strategic advantage inasmuch       A
as it had proximity to Mundra Port. It further states that Mundra
Port possesses World Class Coal handling facilities with 17 meter
deep draft permitting capsize vessels to berth alongside. By the
said document, it has proposed to supply 1425 MW to Haryana
Power Generation Corporation Limited (HPGCL) from 1980 MW
                                                                        B
(3 x 660 MW) Phase IV extension of Mundra Project. The
representation given is that it would use either imported or
indigenous coal. [Paras 29, 30][479-B-C; D-F]
      1.2 It could thus be seen that AP(M)L would be entitled to
benefit on account of the Change in Law if there was any shortfall
of 70% of the domestic coal as was decided to be allotted by the        C
SLC (LT) in its meeting dated 12th November 2008, culminating
in the Ministry of Coal - MOC issuing a LoA dated 25th June
2009 and the Fuel Supply Agreement - FSA being signed by
AP(M)L with CIL on 9 th June 2012. [Para 34][480-B-D]
      1.3 The claim of AP(M)L is with regard to shortfall in the        D
assured quantity of 70%, and not above that. From the order
passed by the APTEL, it is clear that it has been the consistent
stand of the appellants that AP(M)L was in a position to generate
and supply contracted capacity of 1424 MW out of the fuel linkage
arising out of the FSA dated 9th June 2012 with Mahanadi Coal           E
Field Limited. It has been its stand that AP(M)L should use the
entire domestic coal availability towards the contracted capacity
of the appellants first, and then use the imported coal for the
deficit to reach the targeted PLF. It has further been its stand
that the entire domestic coal available should be accounted
towards 1424 MW contracted to Haryana Utilities. [Paras 35 and          F
36][480-D-F]
      1.4 The entire domestic coal linkage came to be utilized
for supplying power to Haryana Utilities, it is unjust on the part
of Haryana Utilities to say that 70% of the installed capacity should
be further bifurcated and the Change in Law benefit should be           G
restricted only to 70% of the installed capacity which was allotted
by the SLC (LT). [Para 40]P481-C-D]



                                                                        H
470           SUPREME COURT REPORTS                      [2023] 5 S.C.R.


A            1.5 Even according to Haryana Utilities, the entire coal
      covered under FSA was required to be utilized for generating
      power to be supplied to it as per the Memorandum of
      Understanding. Therefore, denial of the benefit of shortfall of the
      coal assured under FSA, would be contrary to the restitutionary
      principle. In any case, the APTEL has clarified that AP(M)L was
B
      neither claiming nor was entitled to claim any Change in Law
      compensation beyond the one which was covered by linkage coal,
      i.e. 1386 MW. [Paras 41, 42][481-D-F]
            1.6 To a specific query by the APTEL, it was fairly conceded
      by the counsel for Haryana Utilities that the MoUs were general
C     in nature and not specific for Phase IV Mundra Power Plant. As
      such, the finding of the APTEL that the MoUs annexed with the
      bid were only to show its competence to participate in the bid,
      and that it cannot be stretched to hold that the bidder was to
      procure imported coal to the extent of 30% for the project, cannot
D     be said to be perverse. [Para 44][481-F-H]
            1.7 No error could be found with the concurrent findings
      that AP(M)L was entitled to Change in Law relief for 100% of
      the contracted capacity i.e. 1386 MW, which is 70% of the installed
      capacity of 1980 MW of the Phase IV extension of Mundra Project.
E     The finding of the CERC and the APTEL is to the effect that
      AP(M)L would not be entitled to any benefit of Change in Law
      beyond 70% of the installed capacity i.e. 1386 MW. The said
      findings cannot be said to not be based on the material on record,
      or based on extraneous considerations. [Para 46][482-C-E]

F           1.8 The Perusal of the order passed by the APTEL would
      reveal that AP(M)L had proposed a methodology based on the
      methodology approved by the CERC in the GMR Kamalanga
      Energy Limited and Another v. Dakshin Haryana Bijli Vitran Nigam
      Limited and Others’s case considering the quoted tariff under the
      PPAs as the base. Haryana Utilities are indulging into approbation
G     and reprobation. They cannot be permitted to blow hot and cold
      at the same time. After accepting before the CERC that they
      would adopt the methodology as given in the case of GMR
      Kamalanga Energy Limited’s case, it would not be appropriate on

H
 UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                     471
           POWER (MUNDRA) LIMITED

the part of the appellants, which are, after all, instrumentalities   A
of the State, to change its stand after final orders are passed by
the CERC. [Paras 49, 53][482-G-H; 483-G-H]
      1.9 The concurrent findings of fact recorded by the two
expert bodies could have been interfered with only if they failed
to take into consideration the mandatory statutory provisions or      B
if the decisions had been taken by them on extraneous
considerations or that they were ex facie arbitrary and illegal.
Nothing of that sort can be found in the impugned judgment and
order to warrant interference. [Para 55][484-D-E]
      Energy Watchdog v. Central Electricity Regulatory               C
      Commission and others (2017) 14 SCC 80; Ashoka
      Smokeless Coal India (P) Ltd. and others v. Union of
      India and others (2007) 2 SCC 640 : [2006] 9 Suppl.
      SCR 954; Maharashtra State Electricity Distribution
      Company Limited v. Adani Power Maharashtra Limited
      and Others 2023 SCC OnLine SC 233; Jaipur Vidyut                D
      Vitaran Nigam Ltd. and others v. Adani Power Rajasthan
      Limited and another 2020 SCC Online SC 697; GMR
      Kamalanga Energy Limited and Another v. Dakshin
      Haryana Bijli Vitran Nigam Limited and Others Petition
      No. 79/MP/2013 dated 03.02.2016 – referred to.                  E
                      Case Law Reference
(2017) 14 SCC 80                referred to            Para 7
[2006] 9 Suppl. SCR 954         referred to            Para 19
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4143             F
of 2020.
      From the Judgment and Order dated 03.11.2020 of the Appellate
Tribunal for Electricity, New Delhi in Appeal No. 168 of 2019.
      M. G. Ramachandran, Sr. Adv., Nikunj Dayal, Shubham Arya,
Ravi Nair, Ms. Srishti Khindaria, Ms. Reeha Singh, Advs. for the      G
Appellants.
     Mukul Rohatgi, Sr. Adv., Mahesh Agarwal, Hemant Singh, Arshit
Anand, Lakshyajit Singh Bagdwal, Ms. Lavanya Panwar, Ms. Geetika

                                                                      H
472              SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A     Sharma, E. C. Agrawala, Amit Kapur, Ms. Poonam Sengupta, Saunak
      Rajguru, Ms. Sakshi Kapoor, Advs. for the Respondents.
               The Judgment of the Court was delivered by
               B. R. GAVAI, J.
B            1. The appellants challenge the judgment and order passed by the
      Appellate Tribunal for Electricity, New Delhi (hereinafter referred to as
      “APTEL”) dated 3rd November 2020, thereby dismissing the appeal filed
      by them and maintaining the judgment and order dated 31st May 2018
      passed by the Central Electricity Regulatory Commission (“CERC” for
      short) in Petition No. 97/MP/2017.
C
               2. The facts, in brief, giving rise to the present appeal are as
      under:
              3. Uttar Haryana Bijli Vitran Nigam Ltd. and Dakshin Haryana
      Bijli Vitran Nigam Ltd. (hereinafter referred to as “Haryana Utilities”/
      ”Appellants”) are distribution licensees undertaking the distribution and
D
      retail supply of electricity to consumers in the State of Haryana. Haryana
      Utilities had entered into two Power Purchase Agreements (“PPAs”
      for short) on 7 th August 2008 with Adani Power Mundra Limited
      (hereinafter referred to as “AP(M)L”) for procurement of contracted
      capacity of 1424 MW from generating units 7, 8 and 9 established by
E     AP(M)L at Mundra in the State of Gujarat.
            4. The PPAs were entered into pursuant to a tariff based
      Competitive Bidding Process initiated by the Haryana Utilities under the
      provisions of Section 63 of the Electricity Act, 2003, as per the Standard
      Bidding Guidelines notified by the Central Government.
F            5. AP(M)L had filed Petition No. 155/MP/2012 on 5th July 2012
      before the CERC seeking, inter alia, relief of increase in tariff on various
      grounds. One of the grounds was that the Indonesian Regulations,
      promulgated by the Government of Indonesia, providing for the application
      of benchmark price for export of coal from Indonesia resulted in higher
G     price of coal resulting in higher cost of generation of power.
            6. AP(M)L had also claimed Force Majeure Event within the
      scope of Article 12 and Change in Law within the scope of Article 13 of
      the PPAs.
            7. The orders dated 2nd April 2013 and 21st February 2014 passed
H     by the CERC in the said Petition No.155/MP/2012 were challenged
    UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                             473
        POWER (MUNDRA) LIMITED [B. R. GAVAI, J.]

before the learned APTEL by way of a batch of appeals, the lead being            A
Appeal No. 100 of 2013. The order dated 7th April 2016 passed by the
learned APTEL in Appeal No. 100 of 2013 and the batch of appeals
were challenged before this Court in the case of Energy Watchdog v.
Central Electricity Regulatory Commission and others1. This Court
disposed of the said appeals on 11th April 2017 in terms of the following
                                                                                 B
directions:
         “57. Both the letter dated 31-7-2013 and the revised Tariff Policy
         are statutory documents being issued under Section 3 of the Act
         and have the force of law. This being so, it is clear that so far as
         the procurement of Indian coal is concerned, to the extent that         C
         the supply from Coal India and other Indian sources is cut down,
         the PPA read with these documents provides in Clause 13.2 that
         while determining the consequences of change in law, parties shall
         have due regard to the principle that the purpose of compensating
         the party affected by such change in law is to restore, through
         monthly tariff payments, the affected party to the economic position    D
         as if such change in law has not occurred. Further, for the operation
         period of the PPA, compensation for any increase/decrease in
         cost to the seller shall be determined and be effective from such
         date as decided by the Central Electricity Regulation Commission.
         This being the case, we are of the view that though change in           E
         Indonesian law would not qualify as a change in law under the
         guidelines read with the PPA, change in Indian law certainly would.
         58. ……….The Central Electricity Regulatory Commission will,
         as a result of this judgment, go into the matter afresh and determine
         what relief should be granted to those power generators who fall        F
         within Clause 13 of the PPA as has been held by us in this
         judgment.”
       8. It may be mentioned that this Court, in the case of Energy
Watchdog (supra), specifically rejected the claim that the increase in
price of coal due to change in Indonesian Regulations would also amount          G
to Change in Law. This Court held that only Change in Law in India
would entitle the Generator to the benefit of restitution on account of
such Change in Law.

1
    (2017) 14 SCC 80                                                             H
474            SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A            9. Pursuant to the orders passed by this Court in the case of
      Energy Watchdog (supra), AP(M)L filed Petition No.97/MP/2017
      before the CERC. The CERC, vide order dated 31 st May, 2018, allowed
      the Petition and directed the working out of the relief based on the
      formulation given in Paragraph 46 of its judgment for the period from 1 st
      April 2013 to 31st March 2017. Subsequently, a Review Petition bearing
B
      No.24/RP/2018 also came to be filed. The same was rejected by the
      CERC vide order dated 3rd December 2018. Being aggrieved thereby,
      the appellants preferred appeal before the learned APTEL.
            10. The learned APTEL framed the following four issues for
C     consideration:
        “Issue No.1:-      Whether the Central Commission was justified in
                           holding that Adani Power’s bid was based entirely
                           on domestic coal availability and hence entitled to
                           Change in Law relief on account of domestic coal
D                          shortfall?
        Issue No.2:-       Whether shortfall in domestic coal was due to
                           Change in Law and compensation should be limited
                           to the difference between 100% of ACQ and 65%,
                           65%, 67% and 75% of ACQ as specified in NCDP
E                          2013?
        Issue No.3:-       Whether the start date of Change in Law
                           compensation allowed by the Central Commission
                           amounts to retrospective operation of Ministry of
                           Power’s letter dated 31.07.2013?
F
        Issue No.4:-       Whether the Central Commission erred in ignoring
                           the methodology for computation of Change in Law
                           compensation laid down in its earlier Order in
                           Petition No. 79/MP/2013 - GMR Kamalanga
                           Energy Ltd. & Anr. vs. DHBVNL &Ors. (“GMR
G                          Case”)?
             11. After hearing the learned counsel for the parties, the learned
      APTEL held all the issues in favour of the respondent No.1-Generator
      and dismissed the appeal. Being aggrieved thereby, the appellants have
      filed the present appeal.
H
 UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                             475
     POWER (MUNDRA) LIMITED [B. R. GAVAI, J.]

      12. We have heard Shri M.G. Ramachandran, learned Senior                A
Counsel appearing on behalf of the appellants and Dr. A.M. Singhvi,
learned Senior Counsel appearing on behalf of the respondent No.1-
AP(M)L.
       13. Shri Ramachandran submits that the CERC as well as the
learned APTEL have grossly erred in granting Change in Law relief for         B
the shortfall in the availability of 100% coal. He submits that AP(M)L’s
bid and the PPA were admittedly premised both on domestic coal and
imported coal in the ratio of 70:30. As such, the relief could be granted
only insofar as the shortfall in the 70% domestic coal is concerned. He
submits that AP(M)L has submitted the bid on the premise that 30% of
the coal would be imported, while 70% of the coal would be procured           C
indigenously. He submits that the effect of the orders passed by the
CERC and the learned APTEL is that AP(M)L has been granted benefit
on the consideration that its bid was premised on 100% domestic coal.
       14. Shri Ramachandran further submits that a perusal of the
various pleadings of AP(M)L would clearly reveal that AP(M)L’s bid            D
was premised on domestic and imported coal in the proportion of 70:30.
However, all these documents have been ignored by the learned APTEL.
Shri Ramachandran submits that the documents placed on record would
reveal that AP(M)L had represented that it will use imported coal for
generation of power. He submits that the Executive Summary of the bid         E
submitted by AP(M)L would reveal that AP(M)L had represented therein
that the strategic advantage of the Power Plant was its proximity to
Mundra Port, where coal is being imported. Learned counsel submits
that in view of the pleadings of AP(M)L, it was clear that it was its
responsibility to procure 30% imported coal. He, therefore, submits that
granting of relief for shortfall of 30% imported coal is nothing else but a   F
perversity.
       15. Shri Ramachandran further submits that the methodology of
computation of compensation on account of the Change in Law event
has also been erroneously applied by the CERC and affirmed by the
learned APTEL. He submits that the methodology that ought to have             G
been applied was the difference between landed cost of alternate coal
on the one part and the prevalent landed cost of domestic coal or quoted
energy charges, whichever was higher, on the other part. He submits
that had there been no Change in Law and AP(M)L had received the
entire quantum of domestic coal, it would have had to bear the prevalent      H
476               SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A     price of landed domestic coal on its own, irrespective of whether such
      cost is below or above the quoted energy charges in the bid. He submits
      that if such landed cost of domestic coal is higher than the quoted energy
      charges, AP(M)L was not entitled to claim the difference between the
      landed cost of domestic coal and the quoted energy charges.
B           16. Shri Ramachandran further submits that the learned APTEL
      is wrong in proceeding on the basis that there was no objection by the
      appellants before the CERC on the methodology for computation of
      Change in Law compensation laid down in its order in Petition No. 79/
      MP/2013-GMR Kamalanga Energy Ltd. & Anr. v. DHBVNL & Ors.
C     (hereinafter referred to as “GMR Case”)
            17. Shri Ramachandran further submitted that the appellants have
      no objection for giving benefit on account of Change in Law for shortfall
      in 70% of coal to be procured indigenously.
             18. Dr. A.M. Singhvi, on the contrary, submits that the bid submitted
D     by AP(M)L was on the basis of National Coal Distribution Policy, 2007
      (for short, “NCDP 2007”). He submits that there was no bifurcation in
      the bid with regard to 70% domestic coal and 30% imported coal. Learned
      Senior Counsel submits that the cut-off date for Change in Law claim
      would be 17th November 2007, i.e. minus 7 days from the last date for
E     submission of the bid, i.e. 24th November 2007. It is submitted that even
      in the PPAs signed with Haryana Utilities on 7th August 2008, there is no
      bifurcation of domestic and imported coal. He submits that though the
      Standing Linkage Committee (Long-Term) (hereinafter referred to as
      “SLC (LT)”) has considered AP(M)L’s application for 100% coal of its
F     total capacity, it has granted linkage only for 70% of 1980 MW, i.e. 1386
      MW only. He submitted that linkage of balance 30% was deferred to
      the future.
             19. Dr. Singhvi further submitted that the SLC (LT) is a statutory
      body and its decision would amount to Change in Law. In this respect,
G     he relies on the judgment of this Court in the case of Ashoka Smokeless
      Coal India (P) Ltd. and others v. Union of India and others2.
           20. When we heard this batch of Electricity appeals, it was agreed
      between all the parties that this Court should first decide Civil Appeal

      2
H         (2007) 2 SCC 640
    UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                            477
        POWER (MUNDRA) LIMITED [B. R. GAVAI, J.]

No. 684 of 2021 (Maharashtra State Electricity Distribution Company             A
Limited v. Adani Power Maharashtra Limited and Others 3 )
[“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
                                                                                B
was submitted that those two appeals could be decided by deciding the
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.                                            C
        21. 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               D
                restricted to trigger levels in NCDP 2013 viz. 65%, 65%,
                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?                         E
        (iii)   Whether ‘Change in Law’ relief compensation is to be
                granted from 1st April 2013 (start of Financial Year) or 31st
                July 2013 (date of NCDP 2013)?
       22. After extensively hearing all the learned counsel for the parties,
vide the judgment and order dated 3rd March 2023 in the case of MSEDCL          F
v. APML and Others (supra), this Court decided those two appeals
after considering the aforesaid three issues.
        23. 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          G
NCDP, 2007. Insofar as the second issue is concerned, it was held that
the Station Heat Rate (“SHR” for short) and Auxiliary consumption
should be considered as per the Regulations or actuals, whichever is
3
    2023 SCC OnLine SC 233                                                      H
478            SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A     lower. The third issue was answered holding that the Start date for the
      ‘Change in Law’ event for the NCDP, 2013 is 1 st April 2013.
             24. As such, Issue Nos. 2 and 3, which were framed by the learned
      APTEL in the impugned judgment and order dated 3rd November 2020
      stand fully covered by the judgment of this Court in the case of MSEDCL
B     v. APML and Others (supra). The remaining two issues that are required
      to be considered in the present appeal are thus:




C




D


            25. Before we proceed to consider the aforesaid two issues, we
      may note that the present appeal arises out of the concurrent orders
E     passed by the CERC and the learned APTEL.
             26. This Court, in the case of MSEDCL v. APML and Others
      (supra), after considering the relevant provisions under the Electricity
      Act, 2003 with regard to constitution of various expert bodies like the
      CEA, CERC and the learned APTEL, held that these bodies are bodies
F     consisting of experts in the field. After considering various judgments on
      the issue, this Court observed thus:
            “123. Recently, the Constitution Bench of this Court in the case
            of Vivek Narayan Sharma v. Union of India has held that the
            Courts should be slow in interfering with the decisions taken by
            the experts in the field and unless it is found that the expert bodies
G
            have failed to take into consideration the mandatory statutory
            provisions or the decisions taken are based on extraneous
            considerations or they are ex facie arbitrary and illegal, it will not
            be appropriate for this Court to substitute its views with that of
            the expert bodies.”
H
 UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                              479
     POWER (MUNDRA) LIMITED [B. R. GAVAI, J.]

      27. Though the present appeal arises out of the concurrent orders        A
passed by CERC as well as APTEL, in view of the submissions made,
we will proceed to consider the rival submissions.
     28. Insofar as the first issue with regard to the bifurcation of 70%
domestic and 30% imported coal is concerned, we have examined the
documents placed on record by the parties.                                     B
      29. None of the documents placed on record would reveal that a
representation was given by AP(M)L that its bid is based on 70% domestic
and 30% imported coal. Insofar as the document on which Shri
Ramachandran has relied i.e. the Executive Summary of the bid is
concerned, the same reads thus:                                                C
      “Adani Enterprises Ltd., the promoter of APL, is the largest coal
      importing company of the country. The strategic advantage of the
      Power Plant is its proximity to MUNDRA PORT, where coal is
      being imported. Mundra Port possesses World Class Coal handling
      facilities with 17 meter deep draft permitting capsize vessels to        D
      berth alongside.”
       30. It could thus be seen that what has been stated in the Executive
Summary by AP(M)L is that its Power Plant had a strategic advantage
inasmuch as it had proximity to Mundra Port. It further states that Mundra
Port possesses World Class Coal handling facilities with 17 meter deep
                                                                               E
draft permitting capsize vessels to berth alongside. By the said document,
it has proposed to supply 1425 MW to Haryana Power Generation
Corporation Limited (HPGCL) from 1980 MW (3 x 660 MW) Phase IV
extension of Mundra Project. The representation given is that it will use
either imported or indigenous coal.
                                                                               F
       31. If the argument of the appellants is to be accepted that at the
time of bid there was no assurance of domestic coal supply, then the
contention of the appellants that AP(M)L is entitled to shortfall of 70%
of the coal itself is contradictory.
       32. In any case, even on facts, it is to be noted that the contention
is without substance. AP(M)L has offered to supply 1425 MW of power            G
from its Phase IV extension of Mundra Project, having a capacity of
1980 MW. The PPA entered into between Haryana Utilities and AP(M)L
is for 1424 MW.
       33. The SLC(LT), in its meeting dated 12th November 2008, based
on the recommendation of the Central Electricity Authority (“CEA” for          H
480            SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A     short), Ministry of Power (“MoP” for short) had authorized the issuance
      of LoA for 1386 MW i.e. 70% of 1980 MW installed capacity of Phase
      IV extension of the Mundra Project. This was done in accordance with
      the provisions of the NCDP 2007. Insofar as the remaining capacity is
      concerned, the decision was deferred to be taken by the SLC (LT) in
      the future, based on the recommendation of MoP and other relevant
B
      factors.
             34. It could thus be seen that AP(M)L would be entitled to benefit
      on account of the Change in Law if there was any shortfall of 70% of
      the domestic coal as was decided to be allotted by the SLC (LT) in its
      meeting dated 12th November 2008, culminating in the Ministry of Coal
C     (for short, “MoC”) issuing a LoA dated 25th June 2009 and the Fuel
      Supply Agreement (for short, “FSA”) being signed by AP(M)L with
      CIL on 9th June 2012.
             35. Undisputedly, the claim of AP(M)L is with regard to shortfall
      in the assured quantity of 70%, and not above that.
D
             36. From the order passed by the learned APTEL, it is clear that
      it has been the consistent stand of the appellants that AP(M)L was in a
      position to generate and supply contracted capacity of 1424 MW out of
      the fuel linkage arising out of the FSA dated 9th June 2012 with Mahanadi
      Coal Field Limited (“MCL” for short). It has been its stand that AP(M)L
E     should use the entire domestic coal availability towards the contracted
      capacity of the appellants first, and then use the imported coal for the
      deficit to reach the targeted PLF. It has further been its stand that the
      entire domestic coal available should be accounted towards 1424 MW
      contracted to Haryana Utilities.
F           37. In its reply dated 31st July 2017, Haryana Utilities have
      categorically stated thus:
            “Thus the actual coal received from MCL is required to be
            considered towards power supplied under Haryana PPAs for the
            purpose of relief under force majeure.”
G          38. In its I.A. No.12 of 2018 dated 4th March 2018 in Petition
      No.97/MP/2017, the Haryana Utilities have reiterated thus:
            “It is submitted that the entire quantum of domestic coal available
            from MCL under the FSA dated 9.6.2012 was to be exclusively
            used for generation and supply of electricity to the Haryana Utilities
H           under the PPA dated 7.8.2008.
    UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                          481
        POWER (MUNDRA) LIMITED [B. R. GAVAI, J.]

      39. It is further to be noted that the learned APTEL had, during        A
the course of the hearing, put a pertinent query to the learned counsel
appearing for Haryana Utilities, as to whether the entire actual coal
received from MCL was used towards the power supplied under the
Haryana PPAs. To this query, it was replied thus:
         “During the hearing, Mr. Ramachandran admitted that Adani            B
         Power has been using entire actual coal received from MCL
         towards the power supplied under the Haryana PPAs”
       40. In view of this factual position that the entire domestic coal
linkage came to be utilized for supplying power to Haryana Utilities, it is
unjust, in our opinion, on the part of Haryana Utilities to say that 70% of   C
the installed capacity should be further bifurcated and the Change in
Law benefit should be restricted only to 70% of the 70% of the installed
capacity which was allotted by the SLC (LT).
       41. Even according to Haryana Utilities, the entire coal covered
under FSA was required to be utilized for generating power to be supplied     D
to it as per the Memorandum of Understanding (“MoU” for short).
Therefore, denial of the benefit of shortfall of the coal assured under
FSA, in our view, would be contrary to the restitutionary principle, as
held by this Court in the cases of Energy Watchdog (supra) and Jaipur
Vidyut Vitaran Nigam Ltd. and others v. Adani Power Rajasthan
Limited and another4.                                                         E

       42. In any case, the learned APTEL has clarified that AP(M)L was
neither claiming nor was entitled to claim any Change in Law compensation
beyond the one which was covered by linkage coal, i.e. 1386 MW.
    43. The other limb of argument in this regard is that AP(M)L had          F
MoUs with foreign companies for import of coal.
       44. To a specific query by the learned APTEL, it was fairly
conceded by the learned counsel for Haryana Utilities that the MoUs
were general in nature and not specific for Phase IV Mundra Power
Plant. As such, the finding of the learned APTEL that the MoUs annexed
                                                                              G
with the bid were only to show its competence to participate in the bid,
and that it cannot be stretched to hold that the bidder was to procure
imported coal to the extent of 30% for the project, cannot be said to be
perverse.

4
    2020 SCC Online SC 697                                                    H
482                SUPREME COURT REPORTS                      [2023] 5 S.C.R.


A           45. In the case of MSEDCL v. APML and Others (supra), this
      Court has elaborately referred to the earlier judgments of this Court and
      observed thus:
                “132. Undisputedly, in the case of Energy Watchdog (supra) as
               well as in Adani Rajasthan case (supra) this Court has held that
B              on account of the Change in Law, the generating companies were
               entitled to compensation so as to restore the party to the same
               economic position as if such Change in Law had not occurred.
               Had the Change in Law not occurred, the generating companies
               would have been entitled to the supply as assured by the CIL/
C              Coal Companies under the FSA.”
            46. We are, therefore, of the considered view that no error could
      be found with the concurrent findings that AP(M)L was entitled to Change
      in Law relief for 100% of the contracted capacity i.e. 1386 MW, which
      is 70% of the installed capacity of 1980 MW of the Phase IV extension
D     of Mundra Project. In other words, the finding of the CERC and the
      learned APTEL is to the effect that AP(M)L would not be entitled to
      any benefit of Change in Law beyond 70% of the installed capacity i.e.
      1386 MW. The said findings cannot be said to not be based on the material
      on record, or based on extraneous considerations.
E          47. We are now left with the second issue with regard to
      methodology.
             48. The grievance of Haryana Utilities is that the methodology
      for granting benefit on account of the Change in Law adopted by the
      CERC and affirmed by the learned APTEL is contrary to the one
F     which was previously arrived at in the earlier cases of GMR, DB Power
      etc.
            49. Perusal of the order passed by the learned APTEL would
      reveal that AP(M)L had proposed a methodology based on the
G     methodology approved by the CERC in the GMR Kamalanga Energy
      Limited and Another v. Dakshin Haryana Bijli Vitran Nigam
      Limited and Others5 considering the quoted tariff under the PPAs as
      the base.

      5
H         Petition No. 79/MP/2013 dated 03.02.2016
 UTTAR HARYANA BIJLI VITRAN NIGAM LTD. v. S ADANI                             483
     POWER (MUNDRA) LIMITED [B. R. GAVAI, J.]

       50. The learned APTEL had referred to the Record of Proceedings        A
of the CERC dated 10th August, 2017, which read thus:
      “3. In response to the Commission’s query as to whether the
      methodology adopted by the Petitioner in the light of the
      methodology given in GMR case is acceptable to the Haryana
      Utilities, learned counsel replied in the positive.”                    B
     51. The learned APTEL had also referred to the order of the
CERC dated 28th September 2017 in I.A. No.57 of 2017 in Petition
No.97/MP/2017, which reads thus:
      “7…… Haryana Utilities who is the only respondent has not
      objected to the calculation made by the Applicant.”                     C
     52. The learned APTEL had also referred to the order dated 3 rd
December 2018 passed by the CERC in Review Petition bearing No.24/
RP/2018, which reads thus:
      “25... It is apparent from the above that the Commission, after
                                                                              D
      due consideration of the submissions of the Adani Power and
      Prayas had consciously decided on the methodology for
      computation of relief due to shortage of domestic coal under
      change in law for the period from 1.4.2013 to 31.3.2017 in Para
      46 of the impugned order. The Review Petitioners had not
      suggested any methodology of calculation of the relief due to           E
      shortage of domestic coal. On the other hand, the Review
      Petitioners in their reply dated 28.7.2017 in the Petition No. 97/
      MP/2017 had stated that “the reliance to the decision of GMR is
      wholly in appropriate”. The Review Petitioners are now suggesting
      an alternative formula for computation of the relief under change
                                                                              F
      in law. As already reiterated in the earlier part of the order, the
      review cannot be used for substitution of a view already taken
      with a new view. Therefore, the review on the ground is not
      maintainable.”
       53. We find that Haryana Utilities are indulging into approbation
and reprobation. They cannot be permitted to blow hot and cold at the         G
same time. After accepting before the CERC that they would adopt the
methodology as given in the case of GMR Kamalanga Energy Limited
(supra), it would not be appropriate, in our view, on the part of the
appellants, which are, after all, instrumentalities of the State, to change
its stand after final orders are passed by the CERC.                          H
484              SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A           54. In the case of MSEDCL v. APML and Others (supra), this
      Court observed thus:
             “150. In spite of this legal position and the stand taken by the
             Union of India, the DISCOMS are taking a stand which is contrary
             to the stand of the Union of India. In Energy Watchdog (supra),
B            it was also sought to be urged by DISCOMS that even on account
             of Change in Law, adjustments would not be permissible, which
             contention was outrightly rejected. We have come across a number
             of matters wherein concurrent orders passed by the Regulatory
             Body and the Appellate Forum are assailed. Such a litigation would,
             in fact, efface the purpose of the Electricity Act. As already
C            discussed herein above, one of the major reasons for the enactment
             of the Electricity Act was the deterioration in performance of the
             State Electricity Boards.”
             55. In the present case also, we find that the concurrent findings
      of fact recorded by the two expert bodies could have been interfered
D     with only if they failed to take into consideration the mandatory statutory
      provisions or if the decisions had been taken by them on extraneous
      considerations or that they were ex facie arbitrary and illegal. Nothing
      of that sort can be found in the impugned judgment and order to warrant
      interference.
E           56. The appeal is, therefore, found to be without substance and
      the same is accordingly dismissed. No costs.

      Nidhi Jain                                                  Appeal dismissed.
      (Assisted by : Rakhi, LCRA)
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