Allahabad High Court
Ishhita Foundation Metro City Thru.Ms. ... vs State Of U.P. Thru.Secy.Dept. Of Energy ... on 10 November, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Court No. - 2 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 115 of 2022 Petitioner :- Ishhita Foundation Metro City Thru.Ms. Pragya Singh (Alias Vanshika Singh) Respondent :- State Of U.P. Thru.Secy.Dept. Of Energy Lko. And Others Counsel for Petitioner :- Pushpila Bisht Counsel for Respondent :- C.S.C.,Neerav Chitravanshi,Sanjay Singh Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Srivastava,J.
1. Heard Sri S.C.Misra, Senior Advocate assisted by Ms Pushpila Bisht and Sri Gagan Katyayan, learned for the petitioner, learned Standing Counsel representing the State-respondent no.1, Sri J.N.Mathur, Senior Advocate assisted by Sri Sanjay Singh, learned counsel for respondent no.2-U.P. Electricity Regulatory Commission (hereinafter referred to as "Regulatory Commission") and Dr. L.P.Misra with Sri Neerav Chitravanshi, learned counsel representing respondent no.3-U.P. Power Corporation Limited (hereinafter referred to as "Power Corporation"). We have perused the record available before us on this petition.
Prayers in the writ petition
2. By instituting proceedings of this Public Interest Litigation (PIL) under Article 226 of the Constitution of India, the petitioner, which is a Non Governmental Organization, has prayed that an appropriate writ or direction may be issued to respondent no.2-Regulatory Commission restraining it from going ahead with determination of final tariff for respondent no.4- Lalitpur Power Generation Company Limited (hereinafter referred to as "Generating Company") pursuant to public notice dated 23.11.2021. The other prayer made by the petitioner is that an appropriate writ or order or direction may also be issued to institute an independent investigation into the alleged collusion/conflict of interest in final tariff fixation of the Generating Company's 1980 MW (3x660MW) Thermal Power Project at Badagaon, District Lalitpur. The petitioner-foundation has also prayed that detail guidelines may also be issued by this Court to ensure thorough scrutiny of private/public bodies taking part in power tariff determination process.
Facts of the case as culled from the pleadings available on record and the submissions made by learned counsel representing the respective parties
3. (a) A Power Purchase Agreements were entered into between the Power Corporation and the Generating Company for sale of 100% saleble power generated by the Generating Company to the Power Corporation at a price to be determined by the Regulatory Commission on 15.06.2021.
(b) On 25.03.2019 the Generating Company filed a petition which was registered as Petition No.1431 of 2019 before the Regulatory Commission under Section 62 read with Section 86 (1) (a) of the Electricity Act, 2003 read with Regulation 6 of U.P. Electricity Regulatory Commission (Conduct of Business) Regulations, 2004. The said petition was filed by the Generating Company with a prayer to approve the final tariff for the applicable capacity of the Generating Company from respective Dates of Commercial Operation in relation to three units of the Power Projects of the Generating Company till 31.03.2019. Another relief sought was for ceiling capital cost of Rs.17,760.95 crores. The Generating Company also made certain prayers regarding additional capital expenditure beyond the Dates of Commercial Operation, recovery of taxes, duties, cess, levies and other charges and costs and expenses and also in relation to reimbursement of certain bank charges towards bank guarantees for availing certain benefits under the power policy.
(c) For the purposes of appointment of Designated Independent Agency (hereinafter referred to as "DIA") for conducting the prudence check and verification of capital cost of the Power Project of the Generating Company, after inviting bids, the respondent no.5-M/s Aquagreen Engineering Management Private Limited in consortium with respondent no.6-Bhushan Rastogi and Associates was appointed the DIA by the Regulatory Commission. The respondent no.5 in consortium with respondent no.6 functioning as DIA submitted its report regarding prudence check and verification of capital cost of the Power Project of the Generating Company on 29.10.2021 and recommended disallowance of Rs.592 crores as capital cost.
(d) On 23.11.2021 a notice was published by the Regulatory Commission intimating the general public that DIA had submitted its report to the Regulatory Commission on 29.10.2021 and that public hearing in this regard is scheduled on 17.01.2022. By the said notice, the Regulatory Commission required all the stakeholders to submit their comments/objections by 15.01.2022. On 17.01.2022 public hearing was held in which Power Corporation submitted its objections claiming dis-allowance of Rs. 5316.55 crores towards the capital cost as claimed by the Generating Company.
(e) It is said that on the basis of public hearing held on 17.01.2022, an order was passed by the Regulatory Commission on 24.01.2022 and according to the petitioner one Mr. Mohit Goyal is shown in the said order to have participated as Consultant of the Power Corporation, though participation of Mr Goyal as Consultant of the Power Corporation in the public hearing held on 17.01.2022 has been denied by the Regulatory Commission as also by the Power Corporation in their respective affidavits filed in reply to the writ petition. The order dated 24.01.2022 passed by the Regulatory Commission makes a mention that the Power Corporation, one Mr Awdhesh Verma, Adhyaksh, U.P. Rajya Vidyut Upbhokta Parishad and Sri Rama Shanker Awasthi, a consumer representative have submitted their comments and further that the Power Corporation submitted dis-allowance to the tune of Rs.4,643 crores to the capital cost. On 10.03.2022, the Regulatory Commission made the final determination of capital cost. Vide order dated 10.03.2022, the Commission thus finally approved the capital cost of Rs.12,727.45 crores as against the capital cost of Rs.16,574.73 crores as was claimed by the Generating Company. The Regulatory Commission thus determined the final capital cost of Rs.12,727.45 crores after prudence check and verification and also considering the comments/objections raised by the various stakeholders including the Power Corporation. The final approval of the capital cost of Rs.12,727.45 crores as against the amount of Rs.16,574.73 crores as claimed by the Generating Company has resulted in dis-allowance of an amount of Rs.3,847.28 crores. It is to be further noticed that approval of the final capital cost of the Power Projects of the Generating Company at Lalitpur as Rs.12727.45 crores is said to be less than the provisionally approved capital cost of Rs.14,269 crores which was determined by means of the order dated 07.03.2018 passed by the Regulatory Commission.
(f) The Regulatory Commission after fixing the final capital cost of the Projects of the Generating Company has directed the Generating Company to file amended tariff petition for fixation of final tariff. Thus, final tariff is to be fixed which, as asserted by the Regulatory Commission, is bound to be at lower rate as compared to the provisional tariff for the reason that the final capital cost approved by the Regulatory Commission by means of the order dated 10.03.2022 is less than the capital cost which was taken into account for approving the provisional tariff. The capital cost considered by the Regulatory Commission for approving the provisional tariff was Rs.13,555 crores whereas the final capital cost approved by the Regulatory Commission is Rs.12,727.45 crores.
(g) It is also on record that the Generating Company has not filed the amended tariff petition as directed by the Regulatory Commission by means of its order dated 10.03.2022; rather against the said order an appeal under Section 111 of Electricity Act 2003 has been prepared which is said to be pending consideration before the appellate authority.
(h) It is this process of approval of the final capital cost of the Power Projects of the Generating Company which has been assailed in the writ petition by stating that the process is sham and farce for the reason that it is vitiated by and suffers from conflict of interest inasmuch as Mr Mohit Goyal is a Managing partner of respondent no.6-Bhushan Rastogi and Associates which is the part of consortium led by respondent no.5-M/s Aquagreen Engineering Management Private Limited which was appointed as DIA and it is the same Mr. Mohit Goyal who participated as Consultant of the Power Corporation in the public hearing held on 17.01.2022 wherein objections were filed by the Power Corporation against not only the capital cost as claimed by the Generating Company but also against the recommendations made by the DIA. It is thus the case of the petitioner that Mr Mohit Goyal having participated in the submission and preparation of the recommendations made by the DIA could not be part of the team of Consultants of the Power Corporation which participated in the public hearing and submitted his objections in respect of dis-allowance of capital cost as recommended by the DIA.
Case as set up by the petitioner-Foundation
4. The petitioner-foundation has asserted that the instant petition has been filed in larger public interest as the serious conflict of interest, as narrated above, in relation to participation of Mr. Mohit Goyal in the public hearing as Consultant of the Power Corporation renders the entire process of determination of capital cost of the Project of the Generating Company a sham and in fact it will ultimately result in increase of the electricity tariff which will have to be borne by the consumers at large. The petitioner has stated that it is a Non Governmental Organization and has been taking up various social welfare causes like providing basic health in rural areas and is concerned about current state of affairs in the power industry, hence the instant public interest petition has been filed by it. The petitioner has also asserted and declared in the writ petition that the petition has been preferred purely in public interest and that the petitioner does not have any personal interest direct and indirect. The petitioner further states that it is not guided by any self gain or for a gain of any other person or institution or body and further that in filing the petition, there is no motive other than the public interest. It has also been asserted and declared that outcome of the instant petition will not lead to any undue gain either to the petitioner or to anyone else associated with it and also that it will not result of any undue loss to any person or body of the persons or even to the State.
5. It has been submitted by the petitioner that in the public hearing held by the Regulatory Commission on 17.01.2022, the Power Corporation presented its objection to the DIA's report. Further assertion is that Mr. Mohit Goyal is the Managing partner of M/s Bhushan Rastogi and Associates which is involved in preparation of DIA's report. The petitioner further asserts that Mr. Mohit Goyal was present as Consultant of the Power Corporation to submit objections on behalf of the Power Corporation to the report prepared by his own firm, namely, M/s Bhushan Rastogi and Associates. It has been stated that the respondent no.5,namely, Aquagreen Engineering Management Pvt Ltd in consortium with M/s Bhushan Rastogi and Associates was appointed by the Regulatory Commission as DIA for submitting its report on the basis of prudence check and verification of the capital cost of the Projects of the Generating Company. The petitioner has further stated that it is the same Mr. Mohit Goyal, who after being part of the process of preparation of the DIA' s report participated in the public hearing as Consultant of the Power Corporation which submitted its objections to the report prepared by the DIA.
6. The apprehension expressed in the writ petition is that DIA's report recommended dis-allowance of Rs.592 crores for the capital cost of the project whereas the Power Corporation in its objection allegedly prepared with the assistance of Mr. Mohit Goyal has recommended dis-allowance of Rs.5,316.55 crores which in the understanding of the petitioner in all probability is likely to be rejected. Submission, thus, is that such rejection consequently would lead to higher public tariff undue burden of which is to be thus borne by the general public.
7. In support of his submissions that Mr Mohit Goyal participated as Consultant of the Power Corporation in public hearing held on 17.01.2022, reliance has been placed on the order dated 24.01.2022 passed by the Regulatory Commission which is based on the public hearing held on 17.01.2022 wherein Mr Mohit Goyal has been shown to be present as Consultant of the Power Corporation.
8. Reliance has also been placed by the petitioner on the Linkedin profile wherein Mr. Mohit Goyal has been shown to be the Managing partner of the respondent no.6- M/s Bhushan Rastogi and Associates. He is also shown as a partner of another entity namely, M/s Mercados EMI.
9. It has thus been argued by Sri S.C.Misra, learned Senior Advocate that on account of involvement of Mr Mohit Goyal both with the DIA and the Power Corporation makes the entire exercise of determination of power tariff farcical on account of serious conflict of interest. It has been argued further that tariff fixation exercise undertaken by the Regulatory Commission is thus sham for the reason that the same party is involved on behalf of the DIA as also on behalf of the Power Corporation. The conflict of interest argument has, thus, been raised by the petitioner stating that once the Power Corporation has to file objection to the DIA's report, any involvement of any person connected or concerned with DIA with the Power Corporation leads to conflict of interest which ultimately affects the transparency in the process resulting in ultimate loss to the public at large who would be required to consume electricity on higher rates of the power tariff.
10. In an affidavit filed by the petitioner in support of the miscellaneous application dated 10.03.2022, it has also been asserted that Mr. Bhushan Rastogi is a Chartered Accountant and was working with Mr Mohit Goyal as Vice President (Operations) in Mohit Goyal's Company, namely, Percept 360 Degrees Consulting Limited and that M/s Bhushan Rastogi and Associates was blacklisting by the Regulatory Commission in respect of some proceedings for determination of power tariff in the year 2013-2014. It has also been stated that Mr Mohit Goyal and M/s Bhushan Rastogi and Associates have made deep and pervasive inroads in the Power Corporation and in fact they have been working and acting for the benefit of Generating Companies such as the respondent no.4- M/s Lalitpur Power Generation Company Limited.
11. The case thus put forth by the petitioner is based on argument relating to conflict of interest, as observed above, and also based on the alleged fact that the Company with which Mr. Mohit Goyal has been associated, was blacklisted by the Regulatory Commission.
12. In the light of assertion of these facts, it has thus been argued by learned Senior Advocate, Sri S.C.Misra representing the petitioner that the process of fixation of tariff, especially, the process relating to approval of final capital cost of the projects of the Generating Company as against what was projected and claimed by it is vitiated and if this process is allowed to continue, it will lead to harm the public interest inasmuch as ultimately such process would result in fixation of higher power tariff to be borne by the consumers in general. In this view, the prayer is that the Regulatory Commission be directed not to go ahead with determination of final tariff for the Generating Company and further to direct an independent investigation into the alleged collusion/conflict of interest in respect of final tariff fixation of Thermal Power Project in question.
Case put forth by the respondent no.2-Regulatory Commission in reply to the petitioner's case.
13. Sri Jaideep Narain Mathur, learned Senior Advocate representing the respondent no.2- Regulatory Commission has questioned the very maintainability of the writ petition by stating that the petition does not espouse any cause of the general public; rather it has been filed, in the garb of public interest litigation, to stall the proceedings before the Regulatory Commission for approval of final tariff of the Thermal Power Project of the Generating Company. It has further been stated by Sri Jaideep Narain Mathur, as stated in the affidavit filed in reply by the Regulatory Commission, that by means of the order passed on 05.07.2019 in the Petition No.1431 of 2019, the Regulatory Commission decided to appoint a Designated Independent Agency (DIA) on Quality and Cost based Selection (QCBS) basis. In the said process, the respondent no.5 was selected and appointed as Lead Partner in consortium with respondent no.6 as DIA for carrying out the prudence check and verification of capital cost of the project in question. It has also been stated that draft report was submitted by the DIA in the month of June, 2021 and during this presentation of the draft report several queries were raised by the Commission and certain information/clarifications were also sought from the DIA. It has further been submitted on behalf of the respondent no.2-Regulatory Commission that the DIA submitted its final report on 29.10.2021 which included reply to the queries made by the Commission on 13.08.2021. The Commission further states in the affidavit filed in reply that DIA recommended the final capital cost of the project as Rs. 15,982.52 crores and accordingly final report was made public and public notice was issued inviting comments of all the stakeholders in the public hearing which was scheduled on 17.01.2022. The Regulatory Commission in its reply has submitted that in the public hearing held on 17.01.2022 counsel and officials of the Generating Company, counsel and officials of the Power Corporation, Sri Rama Shanker Awasthi, Consumer Representative, Sri Avdhesh Verma, Adhyaksh, U.P. Rajya Vidyut Upbhokta Parishad and Sri Navin Singh from Aquagreen Projects were present. It is also stated in the affidavit filed by the Regulatory Commission that the public hearing was held through Video Conferencing and that in the said public hearing, Mr Mohit Goyal had also joined on Video Conferencing for the reason that it was an open public hearing. The affidavit further states that Mr. Mohit Goyal did not participate in the public hearing and further that the affidavit filed by the Power Corporation adequately explains the presence of Mr Goyal on its behalf. It has also been asserted in the affidavit that Mr. Mohit Goyal had not been involved on behalf of the Power Corporation in the whole process of approval of tariff for the Generating Company.
14. Sri J.N.Mathur, learned Senior Advocate has also pointed out that the petitioner though has filed this petition, however it was not present during the course of public hearing. The assertion is that if the petitioner had any genuine concerns, it was always open to it to have participated in public hearing and file objections which it desired to raise. Sri Mathur has, thus, argued that the petitioner having not participated in the public hearing and having not raised any objection before the Regulatory Commission cannot be said to have filed this petition with bonafide intentions. It has also been stated that the only intention of the petitioner is to stall the process of approval of tariff and such an attempt by the petitioner cannot be said to be in public interest for the reason that any delay if caused in approval of tariff by the Regulatory Commission may result in burdening the electricity consumers of the State with higher cost of electricity.
15. On behalf of the Regulatory Commission, it has also been stated and argued that the capital cost as claimed and projected by the Generating Company was 16,574.73 crores whereas the DIA had recommended dis-allowance of Rs.581.40 crores. Further submissions in this regard is that the Power Corporation submitted its objection to the capital cost claiming dis-allowance of Rs.5,316.55 crores.
16. It has further been pointed out by the Regulatory Commission that the petitioner did not place any objection on record of this petition as to what should be the quantum of dis-allowance. It has also been stated that the petitioner has not made any objections as to the quantum of dis-allowance or what exactly should be the capital cost of the project in question even in its representation dated 26.02.2022, which has been sent to the Regulatory Commission by registered post on 28.02.2022 and was received in the Commission on 03.03.2022. Further submission made on behalf of the Commission that the case put forth by the petitioner is based on an assumption that Power Corporation has recommended dis-allowance of Rs.5,316.55 crores as against the capital cost of Rs.16,574.73 crores claimed by the Generating Company, which is likely to be rejected and hence such rejection will result in higher power tariff.
17. Pointing out to the fact as recorded in the order dated 10.03.2022 passed by the Regulatory Commission whereby the Commission has finally approved capital cost to the tune of Rs.12,727.45 crores after prudence check and considering the objections made by various stakeholders, it has been argued that dis-allowance to the tune of Rs.3,847.28 crores has been approved by the Commission. In these facts, submission is that the very assumption on the basis of which the writ petition has been filed falls to ground and accordingly the writ petition is liable to be dismissed for the reason that final capital cost as determined by the Regulatory Commission of Rs.12727.45 is even less than the provisionally approved capital cost of Rs.14,269 crores.
18. Sri Mathur, learned counsel representing the Regulatory Commission has also stated that in the facts and the circumstances of the present case, it cannot be ruled out that the present petition has been filed as a camouflage describing itself to be public interest litigation to linger on the proceedings of approval of the final power tariff with a view to extend undue benefit to the Generating Company as against the public interest.
19. It has also been urged by the Regulatory Commission that against the order dated 10.03.2022, the Generating Company did not file amended tariff petition; rather it has challenged the said order by filing an appeal under Section 111 of the Electricity Act and since the Generating Company itself has availed the remedy of appeal before the appellate authority, present petition is nothing but an abuse of the process of the Court.
20. Regarding blacklisting, it has been stated on behalf of the Regulatory Commission that in relation to M/s Bhushan Rastogi and Associates and in respect of tariff determination for the financial year 2012-13, the Regulatory Commission had passed an order on 03.11.2015 whereby monetary compensation was directed to be paid by the firm to the tune of Rs.2,50,000/- which was deducted from its balance payment. It has also been stated that by means of the order dated 4/5.12.2014, respondent no.6- M/s Bhushan Rastogi and Associates was barred from participating in any future activity with the Regulatory Commission for a period of two years and as such blacklisting was for two years from the date of the said order. Further submission in this regard is that the respondent no.6 filed Writ Petition No.12395 (M/B) of 2014 before this Court which was disposed of by means of the order dated 16.12.2014 with the direction to the Regulatory Commission to treat the order dated 04/05.12.2014 as a show cause notice requiring the respondent no.6 to file response and thereafter the Commission was required to pass fresh order after affording opportunity of hearing to the respondent no.6. Submission further is that in deference to the said order dated 16.12.2014 passed by this Court and after considering the reply of respondent no.6, the Regulatory Commission recalled the order of blacklisting, however, maintained the order of monetary compensation of Rs.2,50,000/-.
21. Stating the aforesaid facts, it has been submitted by learned counsel representing the Regulatory Commission that the writ petition deserves to be dismissed as there is nothing on record which establishes participation of Mr Mohit Goyal in preparation and submission of the objections on behalf of the Power Corporation to the capital cost of the project in question as claimed by the Generating Company during the process of determination of capital cost. Submitting that the ground based on the alleged blacklisting of respondent no.6 is also not available to the petitioner in the facts as narrated above, Sri Mathur has thus prayed that the instant petition may be dismissed.
Case as submitted in reply to the petitioner by the respondent no.3-Power Corporation
22. In reply to the submissions made by learned counsel for petitioner-foundation, it has been stated on behalf of Power Corporation that the very basic premise of the writ petition regarding process of determination of tariff is based on assumptions and unfounded facts. It has also been argued by Dr. L.P. Misra representing the Power Corporation that the correct facts of the case would reveal that Mr Mohit Goyal was not engaged neither was he involved in the process of either preparation or presentation of objection on behalf of the Power Corporation to the capital cost claimed by the Generating Company and also to the report submitted by the DIA. He has further stated that the petitioner does not have any locus standi to file the present petition in the nature of public interest litigation for the reason that even as per its own averment the petitoner-foundation does not have any concern with the issue relating to electricity generation or its transmission or other functions related to electricity. It has also been stated that such functions are not within the domain of the objects and purpose of the petitioner-NGO. Dr. Misra has further argued that the instant petition appears to be a proxy petition on behalf of respondent no.4 and against the interest of public whereby an attempt has been made to stall the process of determination of final tariff of electricity so that the objections filed by the Power Corporation against the report of DIA in respect of capital cost as claimed by the respondent no.4 may not be considered. In the submission of learned counsel representing the Power Corporation the instant petition is vexatious and is thus liable to be dismissed with exemplary cost.
23. In reply to the merit of assertions made on behalf of the petitioner, it has been submitted by the Power Corporation that on issuance of public notice dated 23.11.2021 scheduling the public hearing on 17.01.2022 the Power Corporation constituted a Committee on 30.12.2021 for the purposes of going through the report submitted by the DIA and then to finalize the comments to be presented before the Regulatory Commission and submitted its objection on the DIA prudence check and verification report regarding capital cost as claimed by the Generating Company. The Committee constituted for the said purpose comprised of (i) Director (Corporate Planning) UPPCL, (ii) Senior Adviser to Chairman of the Power Corporation, (iii) Senior Adviser to Managing Director, U.P. Rajya Vidyut Utpadan Nigam Limited and (iv) Chief Engineer (PPA) of the Power Corporation.
24. Learned counsel for Power Corporation has taken us to the order dated 30.12.2021 constituting the Committee of five members wherein it has clearly been stated that the Committee constituted in reference to the public hearing notice dated 23.11.2021 shall go through the DIA's report and then finalize the comments given to the Regulatory Commission.
25. Further submission made on behalf of the Power Corporation is that the comments/report provided by the aforesaid Committee was shared and discussed with the counsel of Power Corporation, namely, M/s Shardul Amarchand Mangaldas & Company to prepare the reply on affidavit. It is also stated that M/s Shardul Amarchand Mangaldas & Company was engaged by the Power Corporation by means of the order dated 17.06.2019 as counsel for Corporation for preparation of application/reply/counter affidavit/counter reply/rejoinder etc. and for appearance before the Regulatory Commission for effective pleadings on behalf of the Power Corporation in respect of the petition filed by the Generating Company for determination of tariff. It is also stated by the Power Corporation that with the help of M/s Shardul Amarchand Mangaldas & Company the Power Corporation filed its comments/objections before the Regulatory Commission on 13.01.2022 on affidavit against the DIA report and in its objections the Power Corporation proposed deduction of Rs.4,642.32 crores from the capital cost as claimed by the Generating Company. Further submission is that hearing was conducted by the Regulatory Commission through Video Conferencing on 17.01.2022 and a team of legal counsel of Power Corporation, namely, M/s Shardul Amarchand Mangaldas & Company participated in the hearing on behalf of the Power Corporation and presented its objections. The team of counsel which represented the Power Corporation in the public hearing comprised of Sri Ashish Gupta, counsel UPPCL, Sri Shashwat Kumar, counsel UPPCL, Sri Rahul Chouhan, counsel UPPCL, Sri Satya Jha, counsel UPPCL and Sri Amitanshu Saxena, counsel UPPCL.
26. It has also been stated that the Committee constituted by means of the order dated 30.12.2021 further analyzed the DIA report and recommended the total dis-allowance of Rs.5,316.55 crores as against the capital cost claimed by the Generating Company and accordingly, this additional report was shared and discussed with the counsel of the Power Corporation and thereafter the additional report was also submitted in consultation/help of the M/s Shardul Amarchand Mangaldas & Company before the Regulatory Commission on 25.01.2022.
27. On behalf of the Power Corporation the submission thus is that the apprehension of the petitioner regarding conflict of interest referring to involvement of Mr Mohit Goyal as Consultant of the Power Corporation is misconceived and without any basis. It has further been stated that the Company known as ''M/s Mercados Energy Markets India Private Limited' was appointed for providing regulatory support services in various public sector companies in the State of U.P. working in the field of energy by means of the order dated 17.04.2021.
28. It has been contended that one of the works under the regulatory support services is to attend public hearing on the petitions of the Generating Companies/stakeholders for determination of tariff. Sri Misra has further stated that merely because Mr Mohit Goyal, who is a Chartered Accountant and a Managing Partner of respondent no.6-M/s Bhushan Rastogi and Associates, there cannot be any legal presumption that the consortium as chosen by the Regulatory Commission through tender process shall not be working honestly, with integrity and transparently in discharge of its professional obligations. It has also been argued that scope of work assigned to M/s Mercados Energy Markets India Private Limited is to attend the public hearings before the Power Corporation and Mr Mohit Goyal is a team member of said Company and as such he might be present during the hearing before the Regulatory Commission on 17.01.2022 through Video Conferencing not particularly in respect of the present matter but in general as part of assignment to the Company appointed as Consultant. It has categorically been stated by the Power Corporation in the reply filed to the writ petition that Mr Mohit Goyal was neither consulted in the matter of preparation of objections filed before the Regulatory Commission against the report of the DIA on behalf of the Power Corporation nor has he ever represented the Power Corporation in respect of the matter in issue before any authority including the Regulatory Commission.
29. Contention of the Power Corporation further is that it is on the objections of the Power Corporation that a huge deduction of more than Rs.3000 crores towards the capital cost of the project as claimed by the Generating Company was allowed by the Regulatory Commission.
30. It has thus been argued that since final determination of the capital cost has already been made by the Regulatory Commission by means of the order dated 10.03.2022, hence the apprehension of the petitioner is incorrect and further that the writ petition itself has been rendered infructuous.
31. Submission further is that the apprehension in the mind of the petitioner also falls to ground for the reason that the DIA had recommended dis-allowance of an amount of only Rs.592 crores whereas the dis-allowance as claimed by the Power Corporation was to the tune of Rs.5,316.55 crores as a result of which, the Regulatory Commission has determined the capital cost as Rs.12,727.45 crores which is less by an amount of Rs.3,022.30 crores as against the amount claimed by the Generating Company. This fact, according to the submission made on behalf of the Power Corporation, is indicative of the fact that the present petition has not been filed with bonafide intentions; rather it is a proxy petition on behalf of the Generating Company.
32. Another issue raised by learned counsel for the Power Corporation is that against the order of final determination of capital cost of the project in question made by the Regulatory Commission by means of the order dated 10.03.2022, a remedy under Section 111 of the Electricity Act, 2003 before the appellate tribunal is available and hence this petition need not be entertained.
33. Emphasizing on these submissions, it has been urged by learned counsel representing the Power Corporation that the instant petition is neither maintainable at the behest of the petitioner-foundation nor does it stand on merits and hence is liable to be dismissed.
Issues which fall for consideration of the Court
34. On the basis of the pleadings available on record as also the submission made by learned counsel representing the parties, the following issues emerge for our consideration.
(a) As to whether the instant petition as public interest litigation is maintainable at the behest of the petitioner-foundation,
(b) As to whether the process of determination of power tariff in respect of the project in question is vitiated on account of conflict of interest as argued by the petitioner because of alleged involvement of Mr Mohit Goyal as Consultant in preparation and presentation of objection on behalf of the Power Corporation filed before the Regulatory Commission to the report submitted by the DIA and also to the capital cost as claimed by the Generating Company, in the background of the fact that he is a Managing Partner of the respondent no.6-M/s Bhushan Rastogi and Associates which in consortium with respondent no.5 was appointed as DIA.
Consideration of the issues and findings of the Court
35. First of all, we will consider the submissions made by learned counsel representing the respective parties as regards the maintainability of the writ petition as Public Interest Litigation at the behest of the petitioner-foundation.
36. The superior courts in our country while exercising jurisdiction under Articles 32 and 226 of the Constitution of India have evolved unquestionably a laudable jurisprudence in public interest and has contributed immensely to the development of public interest litigation as a means to protect the legal and constitutional rights of the public in general leaving far behind the rigid principle of locus.
37. However, in the process of evolution of public interest litigation as an instrument to protect the basic human and fundamental rights as also other legal rights of the public at large, the Courts in India have been putting words of caution from time to time in the wake of its frequently noticed misuse. It has been found by Hon'ble Supreme Court on more than one occasion that many a times the purity of the forum of public interest litigation is misused and PILs do not espouse any public cause; rather such proceedings are used to farther sometimes personal interest and also to serve interest of some unseen other interested party in the litigation.
38. About the word of caution in entertaining the public interest litigation, we would like to refer to the judgment of Hon'ble Supreme Court in the case of Dattaraj Nathuji Thaware vs State of Maharashtra and others, (2005) 1 SCC 590. Cautioning the Courts while entertaining a public interest litigation, Hon'ble Supreme Court observed that public interest litigation has to be used with great care and circumspection and that the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. Para 12 of the said judgment is extracted hereunder:-
"12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not be publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."
39. In the said case, Hon'ble Supreme Court further laid down that a Court has to be satisfied about the credentials of the person approaching the Court, the prima facie correctness of the information given by the petitioner and the information being not vauge and indefinite. Hon'ble Supreme Court further observed in the said judgment that the courts must do justice by promotion of good faith and prevent the law from crafty invasions. Paragraph 15 of the said judgment is reproduced herein:-
"15. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu [(1994) 2 SCC 481 : 1994 SCC (L&S) 676 : (1994) 27 ATC 116] and A.P. State Financial Corpn. v. GAR Re-Rolling Mills [(1994) 2 SCC 647 : AIR 1994 SC 2151] .) No litigant has a right to unlimited draught on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Buddhi Kota Subbarao (Dr.) v. K. Parasaran [(1996) 5 SCC 530 : 1996 SCC (Cri) 1038 : JT (1996) 7 SC 235] .] Today people rush to courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in courts and among the public."
40. In the case of R & M Trust vs. Koramangala Residents Vigilance Group and others (2005) 3 SCC 91, Hon'ble Supreme Court again observed that though the public interest litigation is undoubtedly a very useful handle for redressing the grievances of the people but unfortunately lately it has been abused by some interested persons. The Court further observed that the Courts should be very very slow in entertaining petitions allegedly filed in public interest as this jurisdiction is meant for the purpose of coming to the rescue of the downtrodden and not for the purpose of serving private ends. Paragraph 24 of the judgment in the case of R & M Trust (supra) runs as under:-
"24. Public interest litigation is no doubt a very useful handle for redressing the grievances of the people but unfortunately lately it has been abused by some interested persons and it has brought a very bad name. Courts should be very very slow in entertaining petitions involving public interest : in very rare cases where the public at large stand to suffer. This jurisdiction is meant for the purpose of coming to the rescue of the downtrodden and not for the purpose of serving private ends. It has now become common for unscrupulous people to serve their private ends and jeopardise the rights of innocent people so as to wreak vengeance for their personal ends. This has become very handy to the developers and in matters of public contracts. In order to serve their professional rivalry they utilise the service of the innocent people or organisation in filing public interest litigation. The courts are sometimes persuaded to issue certain directions without understanding the implications and giving a handle in the hands of the authorities to misuse it. Therefore, the courts should not exercise this jurisdiction lightly but should exercise in very rare and few cases involving public interest of a large number of people who cannot afford litigation and are made to suffer at the hands of the authorities. The parameters have already been laid down in a decision of this Court in the case of Balco Employees' Union (Regd.) v. Union of India [(2002) 2 SCC 333] wherein this Court has issued guidelines as to what kind of public interest litigation should be entertained and all the previous cases were reviewed by this Court. It was observed as under : (SCC pp. 376-77, paras 77-80) "77. Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz. ''litigation in the interest of the public'.
78. While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres, Prof. S.B. Sathe has summarised the extent of the jurisdiction which has now been exercised in the following words:
''PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:
-- Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).
-- Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganised labour etc.).
-- Where judicial law-making is necessary to avoid exploitation (inter-country adoption, the education of the children of prostitutes).
-- Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums).
--Where administrative decisions related to development are harmful to the environment and jeopardise people's right to natural resources such as air or water.'
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasise the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasise the same."
41. To put forward the legal proposition that even private interest can also be treated as public interest, learned Senior Advocate Sri S.C.Mishra representing the petitioner has relied upon the following cases, (1) Shivajirao Nilangekar Patil vs. Mahesh Madhav Gosavi (Dr.) and others, (1987) 1 SCC 227, (2) Indian Banks' Association Bombay and others vs. Devkala Consultancy Service and others, (2004) 11 SCC 1, and (3) Akhil Bhartiya Upbhokta Congress vs. State of M.P. (2011) 5 SCC 29.
42. Sri Mishra has also relied upon the case of Vishwanath Chaturvedi (3) vs. Union of India and others, reported in (2007) 4 SCC 380 for buttressing his argument on behalf of the petitioner that if the petitioner shows failure of public duty, the Court would be in error in dismissing the public interest litigation.
43. When we peruse the judgments cited by learned Senior Advocate Sri S.C.Mishra in the cases of Shivajirao Nilangekar Patil (supra), Indian Banks' Association Bombay and others (supra) and Akhil Bhartiya Upbhokta Congress (supra), what we find is that Hon'ble Supreme Court in the said cases has observed that in the given facts and circumstances of the case, a private litigation may assume the character of public interest litigation when some material is brought to the notice of the Court to farther the public interest. Hon'ble Supreme Court has also held in the case of Indian Banks' Association Bombay and others (supra) that in appropriate case where the petitioner might have moved a court in his private interest and for redressal of his personal grievances, the Court in furtherance of public interest may treat it as necessary to enquire the state of affairs of the subject of litigation in the interest of justice and thus a private interest can also be treated as public interest case. The judgment in the case of Shivajirao Nilangekar Patil (supra) has been relied upon by Hon'ble Supreme Court in the case of Akhil Bhartiya Upbhokta Congress (supra) wherein it has been observed that even if a person files a writ petition for vindication of his private interest but raises question of public importance involving exercise of power by men in authority then it becomes the duty of the Court to enquire into such a matter.
44. So far as the aforesaid proposition as approved by Hon'ble Supreme Court in the cases of Shivajirao Nilangekar Patil (supra), Indian Banks' Association Bombay and others (supra) and Akhil Bhartiya Upbhokta Congress (supra) is concerned, there cannot be any quarrel to such legal proposition, however the said judgments do not have any application to the facts of the present case for the reason that the instant petition has not been filed initially for vindication of any personal interest or grievance of the petitioner-foundation. The petition rather has been filed alleging that in case the process of determination of final tariff is allowed to go on, the same being vitiated, will result in increased power tariff, burden of which will have to be borne by the consumers of electricity i.e. public in general.
45. We may also refer to yet another judgment of Hon'ble Supreme Court in the case of State of Uttaranchal vs. Balwant Singh Chaufal and others, (2010) 3 SCC 402, wherein the Hon'ble Supreme Court tracing the history of development of public interest litigation and also noticing its possible misuse has issued certain directions in order to preserve the purity and sanctity of public interest litigation. The said directions can be found in paragraph 181 of the report which is extracted herein below:-
"181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
46. One of the observations made by Hon'ble Supreme Court in the case of Balwant Singh Chaufal and others (supra) is that it would be appropriate for each High Court to properly formulate the rules for encouraging the genuine PILs and discouraging the PILs filed with oblique motives. It is in the light of the said observations made in para 181 (2) in the case of Balwant Singh Chaufal and others (supra) that Rule 3A in Chapter XXII in the Allahabad High Court Rules has been inserted which requires the person approaching this Court in a public interest litigation to make certain declaration.
47. Thus, from the aforesaid discussion, it is more than clear that the Courts in India have been encouraging the genuine PILs, however, they are also expected to exercise cautioned about the misuse of the PILs being filed with oblique and malafide purposes.
48. As to whether the instant public interest litigation needs to be entertained in light of the aforesaid principles laid down by Hon'ble Supreme Court as also in the case of Vishwanath Chaturvedi (3) (supra), thus, needs to be considered by this Court. In the case of Vishwanath Chaturvedi (3) (supra), the Hon'ble Supreme Court has laid down the principle that a public interest litigation filed by a political opponent can be entertained. Thus, the Hon'ble Supreme Court in the matter of PIL has been pleased to further relax the rule of locus, however while doing so the Hon'ble Supreme Court has laid down a test for entertaining a public interest litigation. In the case of Vishwanath Chaturvedi (supra), it has been held by Hon'ble Supreme Court that the ultimate test to entertain a writ petition is as to whether the allegations contained in public interest petition have any substance. Thus, the test to entertain public interest litigation at the behest of a party-petitioner, who does not have any direct grievance with the subject matter of the petition is as to whether allegations contained in such a PIL need some kind of inquiry/investigation by the Court entertaining the petition.
49. On examination of the allegations in the writ petition if the same are found to be correct, it may result in increase of the power tariff which ultimately may affect the consumers of electricity i.e. the public in general. However, the primary scrutiny by the Court for entertaining a public interest litigation for the purposes of deciding its maintainability has to be confined to the nature of allegations and not to the veracity and correctness or otherwise of such allegations.
50. On consideration of the allegations made by the petitioner in this case, what we find is that the allegations relate to conflict of interest on account of alleged participation of the same person in preparation of the report by the DIA as also in preparation and putting forth the objection to the same DIA report before the Regulatory Commission on behalf of the Power Corporation.
51. Accordingly, having regard to the nature of allegations (without commenting, at this juncture, their veracity or correctness), we are of the opinion that the instant petition is maintainable at the behest of the petitioner-foundation.
52. Coming to the basis and grounds raised in this petition by the petitioner that the process of determination of power tariff in respect of the project of respondent no.4, is erroneous on account of the fact that the process suffers from the vice of conflict of interest, what this Court needs to determine is as to whether in the facts of the case, there is any conflict of interest which vitiates the process.
53. Submission made on behalf of the petitioner in this regard is that Mr Mohit Goyal who is a partner of respondent no.6, was appointed as DIA in consortium with respondent no.5 and as such Mr Mohit Goyal has sufficient interest in the matter for the reason that it is this consortium which acting as DIA had submitted its prudence check and verification report regarding the capital cost as claimed by the respondent no.4.
54. Contention is that Mr Mohit Goyal having participated in the preparation of DIA report as partner of respondent no.6-M/s Bhushan Rastogi & Associates, could not have been permitted to act as Consultant of the Power Corporation while preparing and presenting its objection to the DIA report in the public hearing held by the Regulatory Commission.
55. It is not in dispute that Mr Mohit Goyal is a partner of respondent no.6-Bhushan Rastogi & Associates. It is also not in dispute that respondent no.5 in consortium with respondent no.6 was appointed as DIA. Thus, the possibility of Mr Mohit Goyal as a partner of respondent no.6 cannot be ruled out in preparation of report submitted by the DIA before the Regulatory Commission, if it is established on the basis of pleadings available on record.
56. However, so far as participation of same Mr Mohit Goyal as Consultant in preparation and presentation of objection to the DIA report and also to the claim of respondent no.4 in respect of capital cost, it needs to be ascertained on the basis of pleadings available on record. The petitioner has strongly relied upon the order dated 24.01.2022 passed by the Regulatory Commission which is based on the public hearing dated 17.01.2022 wherein Mr Mohit Goyal has been shown to be present as Consultant of the Power Corporation.
57. On the other hand, the affidavit filed by the Power Corporation categorically states that services of Mr Mohit Goyal were never hired as Consultant in the present matter. The affidavit filed by the Power Corporation rather states that on issuance of notice for public hearing, a Committee comprising of four persons which included the Director (Corporate Planning), UPPCL and other members from the Power Corporation and U.P. Rajya Vidyut Utpadan Nigam Limited was constituted to go through the DIA report and then finalize the comments to be submitted to the Regulatory Commission. The Committee was constituted by the Chairman of the Power Corporation by means of an order dated 30.12.2021 which clearly directed the Committee to go through the DIA report and then finalize the comments to be furnished to the Regulatory Commission. In the affidavit, certain other documents have been brought on record by the Power Corporation, according to which M/s Shardul Amarchand Mangaldas & Company was engaged by the Power Corporation way back on 17.06.2019 for preparation of pleadings to be filed before the Regulatory Commission and also for appearance before the said Commission on behalf of the Power Corporation in respect of the petition filed by respondent no.4 for determination of power tariff. The documents filed by the Power Corporation also show that on 17.01.2020 a team of legal counsel from M/s. Shardul Amarchand Mangaldas & Company comprising of five counsel were present before the public hearing and it is this team that presented the objections to DIA report. It is also to be noticed that even the additional objections recommending total dis-allowance of Rs.5,316.55 crores from the capital cost as claimed by the respondent no.4 was shared and discussed with M/s. Shardul Amarchand Mangaldas & Company and it was accordingly submitted before the Regulatory Commission by the counsel representing the Power Corporation.
58. The categorical submission on behalf of the Power Corporation in the affidavit filed in reply to the petition is that Mr Mohit Goyal was neither consulted in the matter of preparation of objections filed before the Regulatory Commission against the report of DIA nor did he represent the Power Corporation before any authority including the Regulatory Commission.
59. From the documents available on record, especially, the affidavit in reply filed by the Power Corporation to the averments made in the writ petition, what is clear is that the Power Corporation had constituted a team of four high level officers all working in the Power Corporation/U.P. Rajya Vidyut Utpadan Nigam Limited for the purposes of studying the DIA report and preparing the comments. The Power Corporation had also appointed M/s. Shardul Amarchand Mangaldas & Company as its Consultant for preparation of pleadings to be filed before the Regulatory Commission which will include objections to the DIA report. It appears to us that objections and pleadings in respect of DIA on behalf of the Power Corporation were prepared and filed by the team constituted by the Chairman of the Power Corporation by means of the order dated 30.12.2021 in consultation with M/s. Shardul Amarchand Mangaldas & Company.
60. Even the affidavit filed in reply to the writ petition by the Regulatory Commission categorically states that the public hearing was held through Video Conferencing and in the said hearing though Mr Mohit Goyal joined on Video Conferencing, since it is an open public hearing, however he did not participate in the public hearing on behalf of the Power Corporation.
61. What thus is clear is that Mr Mohit Goyal might have been present during the course of public hearing before the Regulatory Commission on Video Conferencing, however, he does not seem to have participated in the said hearing on behalf of the Power Corporation. Objections to the DIA report as also to the capital cost as claimed by the respondent no.4 were prepared by the Committee constituted for the said purpose by the Chairman of the Power Corporation in consultation with the M/s Shardul Amarchand Mangaldas & Company.
62. Merely because in the order dated 24.01.2022 Mr Mohit Goyal is shown to be present would not necessarily mean that he had participated in the public hearing on behalf of the Power Corporation. There is a categorical and emphatic denial by the Regulatory Commission of any participation of Mr. Goyal in the public hearing. Mere presence through Video Conferencing during the course of public hearing would thus not necessarily lead to an indefeasible conclusion that Mr Mohit Goyal had participated on behalf of the Power Corporation in the public hearing.
63. As already observed and found above, objections to the DIA's report as also to the capital cost as claimed by the respondent no.4 were prepared by the Committee constituted by the Chairman of the Power Corporation in consultation with the Law Consultants as aforesaid and hence we do not find any material on record of this case to infer that Mr Mohit Goyal had played any role in preparation of the objections to the DIA report and to the claim of capital cost put forth by the respondent no.4 i.e. the Generating Company.
64. Having regard to the material available on record before us on this case and in view of the aforesaid discussions, we do not find ourselves in agreement with learned counsel for petitioner that the proceedings relating to determination of power tariff are vitiated because of the vice of conflict of interest on account of alleged participation of Mr Mohit Goyal in the public hearing as Consultant of the Power Corporation before the Regulatory Commission. We also notice that the petitioner in the entire writ petition has nowhere stated as to what according to it should be the capital cost of the projects of respondent no.4 for the purposes of determination of tariff. Even in the representation made by the petitioner to the Regulatory Commission nowhere has it been stated or disclosed by the petitioner as to what should be taken to be the capital cost of the projects of the respondent no.4 for the purposes of determination of power tariff in question.
65. Nothing has been shown to us which indicate that the petitioner ever participated in the public hearing pursuant to the notice issued for the said purpose by the Regulatory Commission, dated 23.11.2021. If in respect of quantum or amount of the capital cost as either claimed by respondent no.4 for its project or as recommended by the DIA, the petitioner had any objection, it would have been more appropriate for the petitioner to have participated in the public hearing before the Regulatory Commission and filed its objection. The Electricity Regulatory Commission is a statutory body and there cannot be any presumption that in case the petitioner would have raised the objections regarding the capital cost as claimed by the respondent no.4 or it would have filed objection to the DIA report, the same would not have been considered. However, instead of participating in the public hearing and making its objections, the petitioner straightaway filed this public interest petition.
66. There is yet another reason why this Court need not interfere in this petition despite having held this public interest petition to be maintainable and the reason is that by means of the order dated 10.03.2022 the Regulatory Commission has finally approved the capital cost after prudence check and verification and considering the objections raised by the various stakeholders which has resulted in dis-allowance of certain amount from the capital cost claimed by the respondent no.4. Against the order dated 10.03.2022 passed by the Regulatory Commission, the respondent no.4 has preferred a statutory appeal under Section 111 of the Electricity Act, which is said to be pending.
67. As regards the blacklisting of respondent no.6 by the Regulatory Commission in the year 2013-14, we may only observe that pursuant to the order dated 16.12.2014 passed by this Court in Writ Petition No.12395 (M/S) of 2014 the matter was reconsidered and the order of blacklisting was recalled while maintaining the order of monetary compensation against respondent no.6. This assertion made by the petitioner loses its significance in view of the findings recorded by us above that Mr Mohit Goyal was neither appointed by the Power Corporation as Consultant to present its objections before the Electricity Regulatory Commission nor was he ever engaged by the Power Corporation for the said purpose.
68. From what has been noticed and found hereinabove, we are of the opinion that the petitioner has not been able to establish the allegations made in the writ petition in respect of the process of determination of tariff being vitiated on account of the vice of conflict of interest as alleged against Mr Mohit Goyal. In respect of this issue, we thus conclude accordingly.
Order
69. For all the reasons given above, we find that the writ petition lacks merit which is hereby dismissed.
70. However, there will be no order as to cost.
Order Date :- November 10, 2022 Renu/-