Rajasthan High Court - Jaipur
Mb Power (Madhya Pradesh) Limited vs State Of Rajasthan on 20 September, 2021
Bench: Chief Justice, Satish Kumar Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 14815/2020
MB Power (Madhya Pradesh) Limited, Registered Office Village
Laharpur, P.O Jaithari, Anuppur Distt. Madhya Pradesh 484330
Also At Corporate Office 239, Okhla Industrial Estate Phase III,
New Delhi 110020 Through Its Authorized Signatory Rajinder
Singh S/o Sh. Dewan Singh Aged About 44 Years R/o C-4-
G/154B, Janakpuri, New Delhi 110058
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Energy, Government Of Rajasthan, Vidyut
Bhawan, Janpath, Jyothi Nagar, Jaipur Rajasthan 302005
2. Rajasthan Rajya Vidyut Prasaran Nigam Ltd., Through Its
Secretary, Vidyut Bhawan, Janpath Jaipur 302005
Rajasthan
3. Jaipur Vidyut Vitaran Nigam Ltd., Through Its Managing
Director Jaipur Kishangarh Expy. Heerapura Jaipur
320026 Rajasthan
4. Ajmer Vidyut Vitaran Nigam Ltd., Through Its Managing
Director Vidyut Bhawan, Panchsheel Nagar, Makarwali
Road, Ajmer 305004 Rajasthan
5. Jodhpur Vidyut Vitaran Nigam Ltd., Through Its Managing
Director New Power Hours, Industrial Area, Jodhpur -
342003 Rajasthan
6. Ministry Of Power, Through Secretary, Government Of
India, Shram Shakti Bhawan New Delhi 110001
7. PTC India Ltd., Through Its Managing Director, 2nd Floor,
NBCC Tower, 15 Bhikaji Cama Place, New Delhi 110066
8. M/s Lanco Power Ltd. Babandh, Through Its Resolution
Professional Regd. Office At Lanco House Plot No.4,
Software Units Layout, Hitech City, Madhapur, Hyderabad
Teleangana 500081
9. M/s. Athena Chhattisgarh Power Ltd., Through Its Official
Liquidator 1024/1/RT, G-1, B-Block, Roxana Towers,
Green Lands, Begumpet, Hyderabad 500015
10. M/s. Lanco Vidarbha Thermal Power Limited, Through Its
Official Liquidator Regd. Office, Plot No.4, Software Units
(Downloaded on 20/09/2021 at 10:38:02 PM)
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Layout, Hitech City, Madhapur, Hyderabad, Telangana
500081
----Respondents
For Petitioner(s) : Mr. Vikram Nankani, Senior Advocate
assisted by Mr. Y.V. Nandwana,
Mr. Hemant Sahay, Mr. Nitish Gupta
Ms. Molshree Bhatnagar
Mr. Prem Chand Sharma
Mr. Dilip Bhagtani
Mr. Sarthak Sachdev through VC
For Respondent(s) : Mr. M.S. Singhvi, Advocate General
assisted by Mr. Siddhant Jain & Mr.
Darsh Pareek for respondent Nos.1 & 2
Mr. Bipin Gupta through VC for
respondent Nos.3, 4 & 5
Mr. Ravi Kishore with
Mr. Guntur Pramod Kumar &
Mr. Prakhar Gupta for respondent No.7
Mr. Sameer Sharma for respondent No.9
Mr. Sahir Hussain through VC for
respondent No.10
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SATISH KUMAR SHARMA
Judgment Reserved On :: 19/08/2021
Judgment Pronounced on :: 20/09/2021
BY THE COURT(PER HON'BLE THE CHIEF JUSTICE):
1. The Petitioner MB Power (Madhya Pradesh) Limited has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India claiming manifest arbitrariness and discrimination in the actions and inaction of official respondents who are 'State' for the purpose of Article 12, on the vice of Articles 14, 19 and 21 of the Constitution of India.
2. The petitioner has impugned Rule 69(2)(b) of the Rajasthan Transparency in Public Procurement Rules, 2013 (Downloaded on 20/09/2021 at 10:38:02 PM) (3 of 83) [CW-14815/2020] (RTPP Rules) framed in exercise of powers under Section 55 of Rajasthan Transparency in Public Procurement Act, 2012 for being ultra vires of Articles 14, 19(1)(g) and 21 of the Constitution of India as well as Section 63 of the Electricity Act, 2003. The Petitioner also seeks directions to Respondents 1 to 5 to forthwith issue Letter of Intent (LoI) in respect of its bid filed through Respondent 7 PTC India Ltd. for supplying 200 MW power from the power generating station of the Petitioner at levelized tariff of 5.517 Rs./Kwh, being in terms of bid qualified by the Bid Evaluation Committee and ranked L7. The petitioner cliams that their right under the said bid has now accrued pursuant to two lower bidders (L3 - LPL / Lanco Power Ltd. Babandh and L6
- LPL / Lanco Vidarbha Thermal Power Limited) now being in liquidation and hence incapable of supplying power to the extent of 100 MW each (total 200 MW), and one lower bidder (L4 - PTC/ Athena Chhattisgarh Power Ltd.) now facing Insolvency proceedings and hence incapable of supplying further power to the extent of 200 MW. The Respondent No.2 is presently procuring only 606 MW power from L1, L2 and L5 against the finalized procurement of 906 MW (within 1000 MW+/- 10%), despite a clear Order dated 25th April, 2018 passed by the Hon'ble Supreme Court. The said Order dated 25th April, 2018 inter alia read as under-
"We are in agreement with the earlier conclusion of the APTEL. We are of the view that the direction of reduction of capacity from 1000 mw to 500 mw by the State Commission was correctly set aside. Since L-1 to L-5 were represented before this Court, we direct that they shall be entitled to supply of power in terms of the (Downloaded on 20/09/2021 at 10:38:02 PM) (4 of 83) [CW-14815/2020] originally offered amount, mentioned above, in accordance with para 3.5 of the Request for Proposal. The power supply will now be reduced to a total of 906 MW."
Therefore, the petitioner states that directions are required to the effect that LOI shall be forthwith issued, and further steps shall be forthwith taken towards execution of the Power Purchase Agreement (PPA), adoption of tariff as per the bid without any changes and/or negotiations or qualifications, and commencing procurement of power from the power station of the Petitioner. Such directions, as per the petitioner would be in consonance with the mandate of the Order dated 25th April, 2018 passed by the Hon'ble Supreme Court and Order dated 3rd February, 2020 of APTEL, read with the contractual and statutory terms, and are required in view of continued manifest arbitrariness and discrimination in the actions and inaction of these Respondents.
3. The Petitioner states that the Respondent No. 2 Rajasthan Rajya Vidyut Prasaran Nigam Limited ("RRVPNL") had filed a Petition bearing No. 205 of 2009 before the Rajasthan Electricity Regulatory Commission for procurement of 1000 MW of power under Case-1 for round the year on long-term basis i.e. for a period of 25 years. The said bid according to the Petitioner was issued as per the guidelines dated 19 th January 2005 for determination of tariff by bidding process for procurement of power by distribution licensees which were amended from time to time and the last amendment being of 21st July 2010 ("bidding guidelines"). The said (Downloaded on 20/09/2021 at 10:38:02 PM) (5 of 83) [CW-14815/2020] bidding guidelines were issued by the Ministry of Power, Government of India under and pursuant to Section 63 of the Electricity Act, 2003 and accordingly are statutory and have the force of law and were consequently applicable on the Respondent distribution companies. The Rajasthan Electricity Regulatory Commission vide its Order dated 23 rd March, 2011 granted approval for the procurement of the requisitioned capacity of 1000 MW (+/- 10%) power. This procurement was approved to be conducted in accordance with the bidding guidelines and in pursuance thereto the Respondent No. 2 duly authorised by the Respondent Nos. 3 to 5 issued an RFP dated 28th May, 2012 inviting sellers to participate in a competitive bidding process for procurement of 1,000 MW power under Case -1 route. This bidding was conducted under the bidding guidelines issued under Section 63 of the Electricity Act 2003.
4. The Petitioner had also submitted its bid in the said tender process through Respondent No. 7 that is M/s. PTC India Limited for a total capacity of 200 MW at a levelized tariff of Rs. 5.517/Kwh. This bidding through a trading licensee was permitted by and was in accordance with the provisions of the RFP. The Petitioner further stated that they had submitted a bank guarantee dated 15th September, 2012 in favour of Respondent No. 7 for an amount of Rs. 6 crores which was extended by the Petitioner from time to time up to 5th April, 2015 when eventually the same was returned at the instance of the procurer Respondent No. 2. The Respondent No. 2 had opened the financial bids on 4 th April, (Downloaded on 20/09/2021 at 10:38:02 PM) (6 of 83) [CW-14815/2020] 2013 and upon opening of the financial bids the Bid Evaluation Committee held meetings on 17th April, 2013 and 23rd April, 2013 for evaluation of bids for procurement and declared 10 bidders as qualified. The Bid Evaluation Committee in their minutes had formulated a table and the Petitioner has reproduced the same in the Writ Petition which reads as under:
Rank Qualified Lev. Capac Cumula Average Bidder Name Tariff ity tive Cumulat (Rs./ Offer Capacit ive Kwh) ed y Tariff (MW) Offered (Rs./ (MW) Kwh) 1 2 3 4 5 6 L1 PTC - Maruti 4.517 195 195 4.517 Clean Coal & Power Ltd L2 PTC - DB 4.811 311 506 4.698 Power Ltd.
L3 LPL - Lanco 4.943 100 606 4.738
Power Ltd.
Babandh
L4 PTC - Athena 5.143 200 806 4.839
Chhattisgarh
Power Ltd.
L5 SKS Power 5.299 100 906 4.890
Generation
Chhattisgarh
Ltd.
L6 LPL - Lanco 5.490 100 1006 4.949
Vidarbha
Thermal Power
Limited
L7 PTC - MB 5.517 200 1206 5.043
Power (Madhya
Pradesh)
Limited
(Downloaded on 20/09/2021 at 10:38:02 PM)
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L8 KSK Mahanadi 5.572 475 1681 5.193
Power
Company
Limited
L9 Jindal Power 6.038 300 1981 5.321
Limited
L10 LPL - Lanco 7.110 100 2081 5.407
Amarkantak
Power Limited
5. The Respondent No. 2 had decided to refer the matter to the Bid Evaluation Committee and the consultants to suggest various issues under the present bid process as per the RFP.
However, the Bid Evaluation Committee decided to go ahead with negotiation process inspite of clear opinion to the contrary by the consultant that such negotiations were prohibited under the bidding guidelines.
6. The Petitioner has contended that, the meeting of the Bid Evaluation Committee held on 4th June, 2013 decided to go ahead with the negotiation process as per Rule 69(2)(b) of the Rajasthan Transparency in Public Procurement Rules, 2013 framed in exercise of powers under Section 55 of Rajasthan Transparency in Public Procurement Act, 2012.
7. The Petitioner has further stated that, initially the Board of Directors of Respondent No. 2 had issued LOIs to L1, L2 and L3, however, such LOIs were for the enhanced quantities which was more than what was originally submitted by them in their bid. Subsequent to issuance of such LOIs, PPAs were also executed with L1, L2 and L3 bidders with the Respondent No. 2 on the said lines. After signing of the PPAs the Respondent No. 2 had filed a Petition bearing No. 431 of (Downloaded on 20/09/2021 at 10:38:02 PM) (8 of 83) [CW-14815/2020] 2013 before the Rajasthan Electricity Regulatory Commission under Section 63 of the Electricity Act 2003 for adoption of tariff for purchase of long-term power of 1000 MW as quoted by L1, L2 and L3. However, during the pendency of the said proceedings the Energy Assessment Committee said to be constituted by the Government of Rajasthan ("EAC") recommended that there was no requirement of long-term procurement of 1000 MW under the Case-1 basis and a demand of 500 MW ought to be considered on account of availability of power from various resources. The Respondent No. 2 in pursuance thereof had filed an Application dated 24 th November, 2014 under Regulation 7 of the Power Procurement Rules in the above mentioned Petition No. 431 of 2013 to bring on record the EAC recommendation and the Government of Rajasthan approval and prayed for adoption of tariff and approval of the reduced quantum of 500 MW of power to be purchased as against the original quantum of 1000 MW.
The RERC vide its Order dated 22 nd July, 2015 disposed of the Petition number 431 of 2013 and held that the quantum of only 500 MW was liable to be approved considering demand in the State as recommended by EAC. The said Order of the RERC dated 22 nd July, 2015 was challenged by L2 and L3 aggrieved by the reduction of quantum by RERC and had filed Appeal bearing Nos. 235 of 2015 and 191 of 2015 respectively before the Appellate Authority for Electricity ("APTEL"). Also L4 and L5 had preferred separate Appeals bearing Nos. 264 of 2015 and (Downloaded on 20/09/2021 at 10:38:02 PM) (9 of 83) [CW-14815/2020] 202 of 2015 whereby, apart from challenging the reduction of quantum by the RERC from 1000 MW to 500 MW, the increased quantities granted to L1, L2 and L3 was also challenged.
The APTEL vide its Order dated 2 nd February, 2018 allowed the Appeal No. 235 of 2015 and 191 of 2015 filed by L2 and L3 respectively holding that the reduction of quantum by RERC from 1000 MW to 500 MW was incorrect as the State Commission has no power to reduce the RFP quantum after the bidding process was completed. The procurers as well as R-2 filed Civil Appeal bearing No. 3481-3482 of 2018 before the Hon'ble Supreme Court of India on the ground that the RFP quantum cannot be restored from 500 MW to 1000 MW. L5 also preferred a Civil Appeal number 2502- 2503 of 2018 on the limited ground that APTEL could not have permitted the procurement of higher quantum than bid for by L1, L2 and L 3. The matter was finally decided by the Order dated 25th April, 2018 of the Hon'ble Supreme Court of India.
8. Subsequent to the said Order dated 25 th April 2018 passed by the Hon'ble Supreme Court, the Bid Evaluation Committee held its meeting on 22nd June, 2018 to discuss the evaluation of bids and rejected the adoption of tariff of L5 bidder and rejected the bid of L5 bidder on 22 nd June, 2018. The L5 bidder in the meantime had filed an application for adoption of its tariff, however, the RERC vide its Order dated 26 th February, 2019 rejected the adoption of tariff of L5 bidder which order was challenged by the L5 bidder before the (Downloaded on 20/09/2021 at 10:38:02 PM) (10 of 83) [CW-14815/2020] APTEL and the APTEL vide its judgement dated 3 rd February, 2020 set aside the same.
9. The Petitioner had also mentioned that during pendency of the said legal proceedings a letter was issued by Respondent No. 2 on 6th January, 2015 informing the Respondent No. 7 that Respondent No. 2 has not requested them to extend the validity of the Bid Bond and accordingly, the original bank guarantee was returned to the Respondent No. 7.
10. In the course of oral submissions, it is also pointed out by the Sr. Counsel for the Petitioner that the Government of Rajasthan has played an active role and has in fact directed the decision making of the EAC, and such involvement of the State Government is contrary to the scheme of the Electricity Act as well as the applicable RERC regulations. Thus, appropriate directions in accordance with the prayers in the present writ petition, also need to be issued to the Government of Rajasthan in addition to the DISCOMs.
11. To supplement this submission, it is stated that the DISCOMs have unequivocally admitted in their reply Affidavit that the Energy Assessment Committee ('EAC') was constituted by the Government of Rajasthan, which is not what is specified in the relevant RERC regulations. Furthermore, the RERC too, in its Order dated 22.07.2015 (at Para 14 at Page 375 of the Petition) acknowledges and accepts this constitution of the EAC by the Government of Rajasthan. It is pointed out that the RERC (Power Purchase and Procurement Process of Distribution Licensee) Regulation (Downloaded on 20/09/2021 at 10:38:02 PM) (11 of 83) [CW-14815/2020] 2004, provides for the constitution of the EAC (Ref. Regulation 3 (3) of the 2014 Regulations). These regulations do not contemplate EAC to be either set up by the Government nor does it contemplate any participation by the Government in the constitution of members of the EAC nor does it contemplate any participation by the Government in the decision making of the EAC. Therefore, for this additional reason Government of Rajasthan too has been arrayed as a respondent in the present writ petition.
12. The Respondent Nos. 3, 4 and 5 have preferred a Civil Appeal before the Hon'ble Supreme Court of India against the judgment dated 3rd February, 2020 passed by the APTEL.
13. That on the basis of the letter issued by Respondent No. 2, the Bid Bond was not extended by Respondent No. 7 and accordingly on back-to-back basis by the Petitioner.
14. In the meantime the Respondent No. 2 has also challenged the Order dated 3rd February, 2020 passed by the APTEL before the Hon'ble Supreme Court of India.
15. The Petitioner submits that vide the judgement dated 3 rd February, 2020 of APTEL, it has been held that the procurement of 906 MW of electricity by the DISCOMS in terms of the Order dated 25 th April, 2018 passed by the Hon'ble Supreme Court of India is sacrosanct and cannot be bypassed by the Respondent No.2 who is bound to procure the entire quantum of 906 MW as held by the Hon'ble Supreme Court of India. It is further contended by the Petitioner that the Respondent No. 2 has not been procuring the entire 906 MW inspite of the Supreme Court Order dated (Downloaded on 20/09/2021 at 10:38:02 PM) (12 of 83) [CW-14815/2020] 25th April, 2018 for the reason that L3 (Lanco Power Limited Babandh) who is arrayed as Respondent No. 8 in the present proceedings, L4 (Athena Chhattisgarh Power Limited) who is Respondent No. 9 and L6 (Lanco Vidarbh Thermal Power Limited) which is Respondent No.10 are not in a position to supply power in view of their present financial position. In the case of L3 bidder that is Respondent No.8 - M/s. Lanco Power Limited Babandh an Order for liquidation has already been passed by the National Company Law Tribunal, Hyderabad vide their Order dated 27th November, 2019. So far as the L4 bidder that is Respondent No. 7 - Athena Chhattisgarh Power Limited is concerned, a resolution plan has already been submitted by the Resolution Professional before the NCLT and the same is presently pending approval. However, so far as L6 bidder that is Respondent No.10 M/s. Lanco Vidarbha Thermal who had bid for 100 MW is concerned, an order initiating corporate insolvency resolution process has been initiated and the matter is presently pending before NCLT, Hyderabad. Affidavits to this effect have also been filed in the present petition before this court, on behalf of these three generators Respondent No. 7 (L4 bidder), Respondent No.8 (L3 bidder) and Respondent No.10 (L6 bidder). Therefore, on this basis now the qualified bid of the Petitioner for supply of electricity of 200 MW in terms of the RFP dated 28th May, 2012, entitles the Petitioner to supply the same.
16. The Petitioner further stated that an interim Order dated 28th September, 2020 has been passed by the Hon'ble (Downloaded on 20/09/2021 at 10:38:02 PM) (13 of 83) [CW-14815/2020] Supreme Court of India in the Civil Appeals preferred by Respondent No. 2 and Respondent Nos. 3 to 5, against the L5 bidder. It is further contended that since the Respondent No.2 is presently procuring only 606 MW power from L1, L2 and L5 against the finalized procurement of 906 MW in terms of the Order dated 25th April, 2018 passed by the Supreme Court of India, thus the selection process as specified in clause 3.5.4 of the RFP is not complete till such time the entire "Requisitioned Capacity" (as defined in the RFP), i.e. 906 MW as determined by the Hon'ble Supreme Court of India, is completed. Consequently, the Respondent No.2 is obligated under Clause 3.5 of the RFP to take steps of procurement of supply in accordance with Para 3.5 of the RFP which would thus make the Petitioner herein to be eligible to supply 200 MW of power to Respondent No. 2. In view of the same, the Petitioner wrote a Letter dated 15 th October, 2020 to Respondent No.2 for declare L7 as the successful bidder and that an LOI be issued accordingly.
17. However, inspite of the receipt of the Letter dated 15 th October, 2020 the Respondent No. 2 has not taken any steps whatsoever and has left the Petitioner with no other option but to file the present Petition under Article 226 of the Constitution of India to enforce the rights that have now accrued in favour of the Petitioner.
18. This Court issued notice vide its Order dated 17 th December, 2020 and subsequent thereto reply of the present Writ Petition was filed on behalf of Respondent No. 2. Reply by means of affidavit has also been filed on behalf of (Downloaded on 20/09/2021 at 10:38:02 PM) (14 of 83) [CW-14815/2020] Respondent Nos. 3 to 5, Respondent No. 7, Respondent No. 8, Respondent No. 9 and Respondent No. 10, respectively.
19. The Respondent No. 2 filed Reply to the Writ Petition and has opposed the present Writ Petition. The Respondent Nos. 3 to 5 in their Reply to the Writ Petition have also opposed the Writ Petition on similar lines. Written Submissions are also filed by these Respondents.
20. Respondent No. 7 has also filed it Counter Affidavit to the present Writ Petition bring on record its stand and Rejoinder to the same has also been filed by the Respondent No. 2. Written Submissions are also filed by Respondent no. 7. Respondent Nos. 8, 9 and 10 have also filed their Counter Affidavits in reply to the present Writ Petition in which they have explained their present status so far as their financial standing and the corporate insolvency resolution process / liquidation is concerned and have categorically stated that they are not in a position to supply the electricity as per the terms of the RFP.
21. The Petitioner has filed a Rejoinder to the contentions raised by the Respondent No. 2 and to those raised by Respondent Nos. 3 to 5, inter alia, denying the allegations made in their Reply to the Writ Petition. Written Submissions are also filed by the petitioner.
22. Mr. Vikram Nankani, learned Senior Advocate appearing on behalf of the Petitioner has contended as under:
22.1 Apart from the challenge to Rule 69(2) (b) of the Rajasthan Transparency in Public Procurement Rules,2013, the short point in the present Writ Petition is whether the (Downloaded on 20/09/2021 at 10:38:02 PM) (15 of 83) [CW-14815/2020] Petitioner is entitled to supply power for 200 MW as per its original bid quantum and tariff being a qualified bidder and in terms of the order dated 25.04.2018 (Annexure-P-
13/@pg. 481 of the Writ Petition) passed by Hon'ble Supreme Court.
22.2 In terms of the said order of the Hon'ble Supreme Court Respondent No.2 through Respondent Nos. 3 to 5 is mandated to procure 906 MW of power from qualified bidders and the Government of Rajasthan is similarly bound by such obligations to ensure that the instrumentalities of state fulfill these obligations. Presently, these Respondents are procuring power from L-1,2 and 5 only about 606 MW. Admittedly, L-3 / Respondent No. 8, L-4 /Respondent No. 9 and L-6 / Respondent No. 10 are not in position to supply electricity to Respondent Nos. 2 to 5 as per their bid. The Petitioner qualified as L-7 to supply 200 MW but these Respondents have failed to issue the LOI. 22.3 Vide Request for Proposal ('RFP') dated 28.05.2012, Respondent No. 2 invited Bids for procurement of 1000 MW (+/- 10%) for a period of 25 years with effect from 30.11.2016 (Annexure-P-5/pgs. 190 & 199 of the Writ Petition).
22. 4 Thereafter, the Bid Evaluation Committee ('BEC') vide its meetings held on 17.4.2013 and 22.4.2013 (Minutes of the Meeting at Annexure-P-7/pg. 356 @ 358 of the Writ Petition), Respondent No. 2 shortlisted 10 bidders as qualified, wherein Petitioner was listed as L-7 for 200 MW at (Downloaded on 20/09/2021 at 10:38:02 PM) (16 of 83) [CW-14815/2020] a levelized tariff of Rs.5.517/Kwh. The detailed table in this regard is as follows:
Ran Qualified Lev. Capa Cum Avera
k Bidder Tariff city ulati ge
Name (Rs./ Offer ve Cumu
Kwh) ed Capa lative
(MW) city Tariff
Offer (Rs./
ed Kwh)
(MW
)
L1 Maruti 4.517 195 195 4.517
Clean Coal
& Power
Ltd - PTC
L2 DB Power 4.811 311 506 4.698
Ltd. - PTC
L3 Lanco 4.943 100 606 4.738
Power Ltd.
Babandh
L4 Athena 5.143 200 806 4.839
Chhattisgar
hPower
Ltd. - PTC
L5 SKS Power 5.299 100 906 4.890
Generation
Chhattisgar
h Ltd.
L6 IPL-Lanco 5.490 100 1006 4.949
Vidarbha
Thermal
Power
Limited
L7 PTC-MB 5.517 200 1206 5.043
Power
(Madhya
Pradesh)
Limited
L8 KSK 5.572 475 1681 5.193
Mahanadi
Power
Company
Limited
L9 Jindal 6.038 300 1981 5.321
Power
Limited
L10 LPL-Lanco 7.110 100 2081 5.407
Amarkanta
k Power
Limited
(Downloaded on 20/09/2021 at 10:38:02 PM)
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22.5 (1st Round of Litigation) - L-4 & L-5 challenged the allocation of the entire quantum of 1000MW between L-1 to L-3 in violation of the terms of the RFP and the bidding guidelines. During the pendency io the said challenge the Respondent No. 2 further reduced the quantity for procurement from 1000 MW to 500 MW. This was opposed by L-2 & L-3 as well.
22.6 RERC vide its Order dated 22.7.2015 (Annexure- P-11/pgs, 366-436 of the Writ Petition) allowed the application of Respondent No. 2 to reduce the quantity from 1000MW to 500MW.
22.7 L-2 & l-3 filed appeals against the RERC order dated 22.07.2015 on the 3 on the reduction of the total quantity from 1000MW to 500MW, 22.8 L-4 & L-5, filed appeals against the RERC order dated 22.07.2015 on both issues (i) the reduction of the total quantity from 1000MW to 500MW, (ii) on the grant of additional quantum to L-1 to L-3. 22.9 APTEL vide its judgment dated 02.02.2018 ([Annexure-P-12/ pgs. 437-450] of the Writ Petition) set aside the RERC order dated 22.07.2015 while hearing only the Appeals filed by L-2 & L-3 (on the reduction of the total quantity from 1000MW to 500MW) while the appeals filed by L-4 & L-5 were still pending.
(Downloaded on 20/09/2021 at 10:38:02 PM)
(18 of 83) [CW-14815/2020] 22.10 APTEL held that reduction of quantum of power was not permissible, however, upheld the unlawful enhancement allowed to L-2 & L-3.
22.11 Important findings of the APTEL -
it is not open for the Procurer and the State Commission to reduce procurement of power stipulated in the budding documents and PPA's already executed between the parties. @para 17.1.
The provisions Section 63 of the Act, the RERC has the power to adopt the tariff if such tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government. The power given to the RERC under this Section is merely to adopt or reject the tariff. The grounds for such rejection too are limited and can be done by the RERC only if the bidding process has been found to be not transparent and not in accordance with the bidding guidelines issued by the Government of India under Sec 63 of the Electricity Act, 2003. public interest cannot be the sole ground governing competitive bidding which under Section 63 takes into account the interest of the stakeholders as well as public interest. @para 16.13, para 17.3.
(Downloaded on 20/09/2021 at 10:38:02 PM)
(19 of 83) [CW-14815/2020] The State Commission also violated its own 'Conduct of Business Regulations' and the principles of natural justice by wrongly entertaining the untenable deviation of reduction in power quantum to be procured but also passing orders giving unilateral directions. @para 17.4.
22.12 Aggrieved by the order dated 02.02.2018, SKS Power filed C.A. Nos. 2502-03 of 2018. The Discoms (Respondent Nos. 3 to 5) had also filed C.A. Nos. 3481- 82 of 2018 impugning the same order.
22.13 That both sets of the Civil Appeals were disposed of by the Hon'ble Supreme Court vide its order dated 25.4.2018 ([Annexure-P-13/pgs. 481-484]) holding that SKS Power is entitled to supply of power in terms of the originally offered amount, as mentioned in the order and in accordance with Para 3.5 of the RPF. The relevant portion of the Order passed by the Hon'ble Supreme Court is reproduced herein:
"We are in agreement with the earlier conclusion of the APTEL. We are of the view that the direction of reduction of capacity from 1000 mw to 500 mw by the State Commission was correctly set aside. Since L-1 to L-5 were represented before this Court, we direct that they shall be entitled to supply of power in terms of the originally offered amount, mentioned above, in accordance with para 3.5 of the Request for (Downloaded on 20/09/2021 at 10:38:02 PM) (20 of 83) [CW-14815/2020] Proposal. The power supply will now be reduced to a total of 906 mw. The State Commission may now go into the issue of approval for adoption of tariff with regard to L-4 and L-5. All Letters of Intent (LOIs) shall stand modified in terms of the above."
22.14 It is further submitted by the Petitioner that the aforesaid order mandates the quantum of power to be procured by the Respondent DISCOMs and is not an order for procurement from specified generators L-1 to L5. This is clear from the fact that the issue before the Supreme Court was reduction of Requisitioned Capacity by the contesting Respondents and not the specific generators from whom the same was to be procured. As it happened, the generators L-1 to L-5 that were present before the Supreme Court had offered capacities that completed the Requisitioned Capacity of 1000 MW (+/- 10%).
22.15 Hon'ble Supreme Court vide order dated 20.09.2018 - issued directions to Respondent No. 2 to sign PPA with L-5 and that the State Commission may, as per the order dated 25.04.2018 of the Hon'ble Supreme Court, go into the issue of approval of adoption of tariff with regard to L-5, 22.16 Hon'ble Supreme Court order dated 21.01.2019
- directing Respondent No. 2 to first sign the PPA with SKS after which the question of adoption of tariff would be taken up by RERC, (Downloaded on 20/09/2021 at 10:38:02 PM) (21 of 83) [CW-14815/2020] 22.17 PPA dated 04.02.2019 was signed between L-5 & Respondent Nos. 3 to 5.
22.18 BEC vide its minutes of meeting dated 22.06.2018 rejected the bids of L-4 & L-5 stating the bid tariff to be not market aligned. Further, they did not go ahead with the procurement of 906MW as per the order dated 25.04.2018 passed by the Hon'ble Supreme Court.
22.19 (2nd Round of Litigation) - Respondent No. 2 filed an Application before the RERC for not adopting the tariff of L-5.
22.20 RERC vide its order dated 26.02.2019 allowed Respondent No. 2 / RVPN's Application / Petition by not adopting the tariff of L-5.
22.21 Accordingly, L-5 filed Appeal No. 224 of 2019 before the APTEL, impugning the order dated 26.02.2019 passed by the RERC, APTEL allowed the Appeal of L-5 vide its order dated 03.02.2020, holding as under:
the tariff of SKS as offered in its bid shall be adopted, revival & implementation of the PPA dated
04.02.2019, as expeditiously as possible, but not later than two months from the date of the order.
22.22 Civil Appeal Nos. 1937 of 2020 and 2721 of 2020 filed by the Respondent Nos. 3 to 5 and Respondent No. 2, respectively were admitted by the Hon'ble (Downloaded on 20/09/2021 at 10:38:02 PM) (22 of 83) [CW-14815/2020] Supreme Court, however, no stay was granted by the Hon'ble Supreme Court of the impugned order i.e., the Judgment dated 03.02.2020 passed by the APTEL. 22.23 It is pertinent to mention that as of 25.4.2018, L-3 and L-4 were not in a position to supply the power since their power plants which were under construction, could not be completed. This has been admitted by L-3 and L-4, who are R-8 and 9 respectively. In their Counter Affidavits dt. 2.2.2021 and 28.1.2021 respectively filed in the present writ petition. This resulted in short procurement by the contesting Respondents, of an aggregate capacity of 300 MW equivalent to the capacities that were offered by L-3 and L-4 in their bids.
22.24 Significantly, these subsequent developments, which occurred during the pendency of the matter before the Hon'ble Supreme Court, were unfortunately not brought to the attention of the Hon'ble Supreme Court by the parties thereto. It is settled law that Court does take into account subsequent events to do complete justice.
22.25 In terms of the Order of the Hon'ble Supreme Court, the contesting Respondents are now bound to procure the Requisitioned Capacity of 1000 MW (+/- 10%) under the Tender (RFP) issued on 28.5.2012. The Order of the Hon'ble Supreme Court arises out of this Tender and is a culmination of the disputes raised by these Respondents, who wrongly sought to (Downloaded on 20/09/2021 at 10:38:02 PM) (23 of 83) [CW-14815/2020] curtail/reduce the procurement quantity to 500 MW. These Respondents cannot be allowed to take advantage of their own wrong by not allocating LOIs and signing PPAs, for procurement of an aggregate capacity of 1000 MW being the Requisitioned Capacity under the RFP. This is also generically referred to as the "bucket filling mechanism" i.e. the bucket needs to be kept filling up till the Requisitioned Capacity is fulfilled. 22.26 Since L-3 and L-4 are not in a position to supply, the quantity of 300 MW released on account of incapacity of L-3 and L-4 to supply must therefore, be allotted amongst other qualified bidders. Applying the provisions of Clause 3.5.4 and Clause 3.5.6 ([pg. 239 of the writ petition]), the selection process stands completed ONLY once the Requisitioned Capacity has been achieved. With L-3 and L-4 now being out of the race, it means that the remaining 300 MW must be allocated between the remaining qualified bidders i.e., L-6 to L-10. It is understood that L-6, who offered to supply 100 MW, is also presently not in a position to supply. The Petitioner is L-7 and has, at all times, and is ready and willing to supply 200 MW.
22.27 There is no alternate remedy. These Respondents cannot overreach and/or override and/or circumvent the binding Order of the Hon'ble Supreme Court by procuring anything less than 1000 MW. They cannot have the liberty of acting in defiance and/or disobedience of the Order passed by the Hon'ble (Downloaded on 20/09/2021 at 10:38:02 PM) (24 of 83) [CW-14815/2020] Supreme Court on the ground that the Petitioner was not a party to the litigation. Furthermore, specific directions in the nature of writ of mandamus also needs to be issued against the Government of Rajasthan, Respondent No. 1 herein. The Government of Rajasthan is not amenable to the jurisdiction of the RERC. 22.28 The contention of Respondents is unsustainable, because, at that time, 1000 MW was to be procured from the first 5 lowest bidders, and therefore, the Petitioner was not joined or made a party to the proceedings. At that stage, the Petitioner also had no cause of action. The cause of action in favour of the Petitioner to file the present writ petition has arisen on account of inability on the part of L-3 and L-4 to supply the power as per the bid made by them. Hence, the present petition is maintainable and the Petitioner is entitled to the reliefs including issue of writ of mandamus against the Respondent No. 1 Government of Rajasthan.
22.29 As regards the Tariff, it is submitted that the same has been discovered under Section 63 of the Electricity Act, 2003 by following a transparent bidding process based on the Guidelines issued by the Competent Authority thereunder. The RFP/Tender has got a complete mechanism for determination of the Tariff for the entire duration of the PPA. Once a tariff is discovered for the period of 25 years effective 30.11.2016, i.e., upto 30.11.2041, the Tariff must be (Downloaded on 20/09/2021 at 10:38:02 PM) (25 of 83) [CW-14815/2020] adopted in accordance with the clauses contained in the RFP/Tender.
22.30 Respondent No. 7 had submitted bids "on behalf of" several generating companies including the Petitioner (See para 3(b) of Counter dated 18.02.2021 of R7). Furthermore, each such financial proposal is a separate bid as is clear from the provisions of the RFP format 4.10 for filing of the financial proposal. In any event, the Petitioner is a person aggrieved even if it was not a bidder independently. Accordingly, the Petitioner has a right to file its Writ Petition being aggrieved person facing prejudice.
22.31 Further, the issue relating to maintainability was also taken by the contesting Respondents in Petition No.431 of 2013 (@Pg. 404 of the Writ Petition) which finds mention in the Order dated 22.07.2015 passed by the RERC. Further, the RERC did not return any finding on the same and accordingly, the said contention was rejected.
22.32 In this regard further reliance can be placed on the following judgments as well,
- Tata Power v Uttar Pradesh Power Corporation Ltd
- CERC - relevant paragraph 23.
22.33 The Order dated 28.9.2020 of the Hon'ble Supreme Court in the case of SKS Power Generation (Chhattisgarh) Ltd. (L-5) ([Annexure-P-19/pgs. 601- 607]) is an Interim Order. Pertinently, the Order of APTEL dated 3.2.2020 ([Annexure-P-15/pgs. 493- (Downloaded on 20/09/2021 at 10:38:02 PM)
(26 of 83) [CW-14815/2020] 563]) has not been stayed by the Hon'ble Supreme Court.
22.34 It is further submitted that each time these Respondents have sought to abdicate that statutory and mandatory duty to circumvent the Bidding Guidelines (Annx P-4/pg.167) issued under Section 63 of the Electricity Act, 2003 by taking recourse to the impugned Rule 69(2) of the RTPP Rules. This is also evident from the Minutes of the BEC Meeting dated 04.06.2013 (Annex P-9/Pg.361@362).
22.35 The Electricity Act being a Central Legislation and the Guidelines being framed thereunder would prevail over the RTPP Rules. Consequently RTPP Rules would not apply to procurement of power under the Electricity Act. Any recourse to RTPP Rules shall render the said Rules in conflict and repugnant to the Bidding Guidelines under the Central Act. Hence to the RTPP Rules are ultra vires Section 63 of the Electricity Act and the Bidding Guidelines issued thereunder.
23. The Respondent No. 2 is represented by the Learned Advocate General and has, inter alia, made the following submissions:
23.1 That the Petitioner has not approached this Court with clean hands and has concealed the material facts and has made misstatement of facts before the Hon'ble Court. The Petitioner was not a bidder in response to Request for Proposal dated 28.5.2012. The (Downloaded on 20/09/2021 at 10:38:02 PM) (27 of 83) [CW-14815/2020] bid security along with bid document was submitted by respondent no. 7 in the form of Bank Guarantee issued by ICICI Bank. A perusal of the Bank Guarantees will reveal that the same were issued at the instance of respondent No.7 and not the petitioner. (Preliminary Objection No. 1 of the reply to the Writ Petition at Page 1151). The petitioner has made misstatement that it submitted a bid for 200 MW through respondent No. 7. It has submitted Bank Guarantee in the form of Annexure P / 6, whereas a perusal of Annexure P/6 will reveal that those Bank Guarantees were in favour of respondent No.7, whereas in terms of the RFP, the bank guarantee was required to be submitted in favour of respondent No.2. The petitioner has concealed the fact that the respondent No.7 has submitted Bank Guarantee for its offered quantity of 1041 MW.
(Preliminary Objection No. 2 of the reply to the Writ Petition at page 1156).
23.2 That even respondent No.7 could not file a petition before this Court in as much as it has withdrawn its security way back in 2015 in respect of the quantity of the power for which its bid was not accepted. (Preliminary Objection no. 4 of the reply to the Writ Petition at page 1160) 23.3 The petitioner has chosen to state that it has submitted bid through respondent No. 7. As per the bid document, the respondent No. 7 was to procure 1041 MW of electricity from following five sources:- (Downloaded on 20/09/2021 at 10:38:02 PM)
(28 of 83) [CW-14815/2020]
Adhunik Power & Natural Resources
Limited.
Maruti Clean Coal & Power Limited.
M.B. Power (Madhya Pradesh) Limited.
D.B. Power Limited.
Athena Chhattisgarh Power Limited.
23.4 Since PTC India submitted bid having separate generation sources and separate PPAs from those sources. The Sources from where the respondent No. 7 was to procure the power were not the bidders and, therefore there was no question of these sources to be termed as qualified bidders. (Para no. 14 of the Reply to the Writ Petition at page 1186) 23.5 The Petitioner is further guilty of concealment of relevant facts as it has chosen to produce the minutes of Bid Evaluation Committee meeting however, did not choose to produce the copy of the minutes of the meetings of the Board of Directors of the answering respondent dated 11.9.2013. The Board of Directors after receiving clarification from the State Government that no exemption was required as RFP was issued prior to coming into the force of the Act of 2012 and the rules framed thereunder, decided, to call the bidders in the order of the bid beginning from the lowest quoted price. (Para No. 16 of the Reply to the Writ Petition at page 1188) 23.6 The Petitioner has also concealed the material fact that in view of taking of the aforesaid decision by (Downloaded on 20/09/2021 at 10:38:02 PM) (29 of 83) [CW-14815/2020] the Board of Directors of Rajasthan Rajya Vidyut Prasaran Nigam Ltd., SKS Power Generation (L-5) filed contempt petition bearing Contempt Petition Nos. 1436-37 /2018 before the Hon'ble Supreme Court. The Hon'ble Supreme Court heard the matter and disposed of the Contempt Petition in following terms:
"We are of the view that there is no doubt whatsoever that now the PPA has to be signed between the parties. However, the State Commission, may, as per our order, go into the issue of approval of adoption of tariff with regard to L-5, who is the party before us, and will decide the same within a period of Six Weeks from today."
23.7 The respondent No.7 has also categorically stated that there is neither affiliate nor parent company of respondent No. 7. The petitioner has setup the whole case by falsely projecting as if Petitioner Company itself was a bidder.
23.8 He relied upon-
1. Ramjas Foundation and another Vs Union of India and others: (2010) 14 sec 38 (Para 21, 30 , 37)
2. Bhaskar Laxman Jadhav and others Vs Karamveer Kakasaheb Wagh Education Society and others:
(2013) 11 SCC 531 (Para 44, 47)
3. Sciemed Overseas Inc. Vs BOC India Ltd. and others: (2016) 3 SCC 70 (Para 27,.3 1) 23.9 The petitioner was not a bidder in response to the Request for Proposal (RFP) dated 28.05.2012 (Annex. P / 5).
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(30 of 83) [CW-14815/2020] 23.10 The bid document was purchased by respondent No.7 by depositing Rs. 5.0 lacs (page 1234 part of Annexure R-2 / 1 bid document submitted by respondent no. 7).
23.11 As per point 2.0 of RFP under the head "disclaimer" the bid document is not transferable . Point 2.0 reads as under: -
"This RFP, along with its Formats, is not transferable. The RFP and the information contained therein is to be used only by the person to whom it is issued. Save and except as provided in clause 2.18 of the RFP, it shall not be copies or distributed by the recipient to third parties. In the event that the recipient does not continue with its involvement in the bidding process in accordance with this RFP, this RFP must be kept confidential."
23.12 The bid was submitted by respondent no. 7 M/S PTC India Limited which is a power trading Licensee company. Similar PPAs were executed in favour of respondent No.7 by other generation sources indicated by respondent No. 7 in its bid document.
23.13 Certificate issued by respondent No.7 (page 1246 part of Annexure R-2/ 1) shows that it qualified for bidding as having net worth Rs. 2249.48 crores. 23.14 As per undertaking (page 1255) given by the respondent No.5 it had undertaken to submit contract performance guarantee required to be submitted as per clause 2.13 of RFP.
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(31 of 83) [CW-14815/2020] 23.15 A perusal of the bid document submitted by respondent No.7 will reveal that the bid submitted by respondent No.7 was for 1041 MW.As per the bid document, the respondent No.7 was to procure 1041 MW of electricity from five sources mentioned herein above. Even the bid of respondent No. 7 for remaining quantum did not subsist.
23.16 The submission of the answering respondents is fortified from the fact that PPAs of Ll and L2 were executed by the PTC India Ltd. with the Discoms. Thus, the petitioner, in order to show its locus standi has made incorrect statement of fact that the petitioner submitted a bid through respondent No. 7 whereas the petitioner never submitted the bid. 23.17 He relied upon the following cases-
1. M/S Shiva Corporation India Ltd. Vs. M/S Devdashrath Royalties & Ors.: D.B. Civil Special Appeal (Writ) No. 335/2012 decided on 21.08.2012 (Page 14 and 15).
2. NHAI Vs. Gwalior-Jhansi Expressway Ltd.: (2018) 8 SCC 243 (Para 20-24) 23.18 That the writ petition filed by the petitioner is not maintainable as bid submitted by the respondent No. 7 in respect of the offered capacity not accepted by respondent No.2, is not subsisting. As a matter of fact, the bid of respondent no. 7 was valid as per clause 2. 9. 2 for 120 days and the period could be extended by the answering respondent in the writing. (Downloaded on 20/09/2021 at 10:38:02 PM)
(32 of 83) [CW-14815/2020] In view of the non-subsistence of the bid of the respondent No.7, the writ petition is not maintainable. He relied upon:
1. Vidarbha Irrigation Development Corporation Vs. M/S Anoj Kumar Garwala: Civil Appeal No.1049 of 2019, Decided on 23.01.2019 (paras 7 to 15).
23.19 Though the petitioner does not have any locus standi, in the alternative it is submitted that the writ petition is not maintainable in view of alternate and efficacious remedy provided before RERC in view of provisions of the Electricity Act, 2003. As a matter of fact relief sought by the petitioner relates to the procurement of the electricity which is governed by the Act of 2003 and the rules, regulations framed there under and the remedy thereof has been provided in the Act. The petitioner has tried to circumvent that remedy by resorting to a challenge to rule 69 (2)(b) of the Rajasthan Transparency in Public Procurement Rules, 2013. Challenge to provisions of Rules of 2013 is totally academic, irrelevant and baseless, it is because Rule 69(2)(b) has not been invoked. He relied upon-
1. M/S HCL Infosystem vs. State of Rajasthan:
D.B.SAW 491/2017, Decided on 17.09.2019 (Para 13, 21, 22 & 27)
2. Nivedita Sharma vs. Cellular Operator Assn of India and Ors.: (2001) 14 SCC 337 (Para 12) (Downloaded on 20/09/2021 at 10:38:02 PM) (33 of 83) [CW-14815/2020]
3. Union of India vs. Major General Shrikant Sharma:
2015 (6) SCC 773 (Para 31) 23.20 That the petition filed by the petitioner suffers from delay and latches, therefore not maintainable.
Admittedly the bid security of the respondent No. 7, showing different generation sources of supply of power to respondent No.7, was returned way back in 2015 and in view of the various clauses of RFP the bid did not remain valid. If the petitioner was having any grievance, it should have raised the same immediately but the petitioner has filed the aforesaid petition after a lapse of 5 years and therefore petition deserves to be dismissed on this count alone.
23.21 That the writ petition is also not maintainable in view the fact that tender process stand completed in view of judgment of the Hon'ble Apex Court dated 25.04.2018. Once the selection process stood completed that too under the order of the Hon'ble Apex Court, same cannot be reopened by filing a writ petition in this Court. Attempt on part of the petitioner to file this writ petition amounts to seeking the modification of the order passed by the Hon'ble Supreme Court dated 25.4.2018, which is not permissible even to respondent No.7. He relied upon K.P. Dwivedi v. State of U.P.: (2003) 12 SCC 572 Para 11-13.
23.22 He submitted that as per clause 2.15 of the RFP, the procurer/ authorized representative has a right to (Downloaded on 20/09/2021 at 10:38:02 PM) (34 of 83) [CW-14815/2020] withdraw the RFP and to reject any or all of the bids at any time, at its complete discretion, without assigning any reasons and without incurring any liability to any account. Clause 2.15.1 reads as under:-
"2. 15. 1 This RFP may be withdrawn or cancelled by the Procurer/ Authorized Representative at any time without assigning any reasons thereof. The Procurer/ Authorized Representative further reserves the right, as its complete discretion, to reject any or all of the Bids without assigning any reasons whatsoever and without incurring any liability to any account."
23.23 So far as challenge to the Rules of 2013 is concerned, it is submitted that as the Rules have not been pressed into service being not applicable, challenge to the same is academic. That part, challenge is totally baseless in as much as if the Rules are held to be applicable and struck down, it would result in annulment of part of the bid of respondent No.7 which has been accepted and for which PPA has been executed with it. Thirdly, on merits also the negotiations with all the bidders is not at all contemplated. For this purpose, the answering respondent rely upon the judgment in Adani Gas Limited Vs. Petroleum and Natural Gas Regulatory Board and others, 2020(4) SCC page 529.
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(35 of 83) [CW-14815/2020] 23.24 He submitted that the writ petition filed by the petitioner may kindly be dismissed with exemplary costs in favour of the answering respondent.
24. The Respondent Nos.3, 4 and 5 appeared before this Court and have adopted the contentions raised by the Learned Advocate General appearing on behalf of Respondent No. 2.
25. Respondent No. 7 appeared through Mr. Ravi Kishore, Advocate and submitted as regards the position of a trader in the electricity scenario and also explained as to how it works in a manner which is commonly known to the persons working in the electricity sector.
26. This Court has heard all the parties and Counsels appearing on behalf of various parties at length and have perused the records and submissions made.
27. Before adverting to the entitlement of the Writ Petitioner to the prayers sought in the present Writ Petition, it is necessary to deal with the preliminary objections which have been raised by the Respondent Nos. 2 as well as 3 to 5 separately as regards the maintainability of the Writ Petition itself. So far as the case law referred to by the Counsel for these Respondents regarding alleged concealment / misstatement of facts as well coming to the Court with clean hands is concerned, the said question is no longer res integra and has been dealt with in many judgements. However, the applicability of the said judgements has to be seen with specific reference to the facts of each case. Accordingly, it has to be first seen whether there has, as a matter of fact, been any concealment of material facts (Downloaded on 20/09/2021 at 10:38:02 PM) (36 of 83) [CW-14815/2020] and/or any misstatement of fact in the manner which will disentitle the Petitioner any relief from this Court under Article 226 of the Constitution of India.
28. So far as the issue relating to the Petitioner not being a bidder is concerned, the Petitioner has categorically stated in Para 12 of the Writ Petition that their bid was submitted through Respondent No.7 PTC India Ltd. who is a trader and the RFP permits such bids to be submitted through a trader. The said para reads as under:
"12. In February 2013, the bids were submitted by the bidders. The Petitioner i.e. MB Power (MP) Limited through the Respondent No. 7 i.e. M/s PTC India Ltd. had bid for 200 MW at a levelized tariff of Rs. 5.043/Kwh. In this regard the Petitioner had also submitted a Bank Guarantee dated 15.09.2012 in favour of Respondent No.7 / M/s PTC India Ltd. for an amount of Rs. 6 Crores (Rupees Six Crores only), which was extended by the Petitioner from time to time and upto a period of 05.04.2015 with claim period upto 05.05.2015. Copy of the Bank Guarantee dated 15.09.2012 issued by the Petitioner in favour of Respondent No.7 / M/s PTC India Ltd. along with the various extensions upto 05.04.2015 are annexed herewith and marked as ANNEXURE-"P6 (Colly.)".
29. The fact that the Bank Guarantee submitted by the Petitioner has been filed, and Respondent No. 7 - PTC has been arrayed as a party in the present proceedings along with Respondent No. 2 to Respondent No. 6, the Hon'ble court cannot come to a conclusion that there is any material concealment or misstatement of fact by the Petitioner in the (Downloaded on 20/09/2021 at 10:38:02 PM) (37 of 83) [CW-14815/2020] manner suggested by the Respondent no. 2 to 5. It is important to note as to what is the meaning of concealment which have been given by the Hon'ble Supreme Court which could disentitle any litigant from approaching the Court or relief from the Court. The Hon'ble Supreme Court in the case of Arunima Baruah vs. Union of India (UOI) and Ors. (2007) 6 SCC 120 at Para 12 has held as under:
"12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question."
The Hon'ble Supreme Court in another case titled as 'S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and Ors.' (2004) 7 SCC 166 at Para 13 has held as follows:
"Para 13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing (Downloaded on 20/09/2021 at 10:38:02 PM) (38 of 83) [CW-14815/2020] the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken. Thus when the liability to Income Tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order."
From the above-mentioned judgements, it is clear that a party can be held guilty of concealment only when the facts concealed were material and such that in case if found subsequently, that the same would disentitle the party approaching the Court from any relief. Applying the ratio of the said judgements on the facts of the present case it is nowhere borne from the record in any manner by the (Downloaded on 20/09/2021 at 10:38:02 PM) (39 of 83) [CW-14815/2020] Respondent Nos.2 to 5 that there has been any material concealment or misstatement of fact by the present Petitioner which could disentitle them to the relief sought by them.
30. It has never been the case of the Petitioner that they are an independent bidder on their own whereas on a perusal of Para 12 of the Writ Petition, it is categorically clear that the name of Respondent No.7 M/s. PTC India duly finds mention there. The Petitioner on their own have also annexed the bank guarantees alongwith the Writ Petition which itself would show that the same were in favour of the Respondent No. 7 - PTC and not in favour of the Respondent No. 2. Further, there has been no argument which is being raised by the Petitioner in any manner also that the bid of the Petitioner has not been given through Respondent No. 7, whereas the table as above mentioned categorically shows the name of the Petitioner alongwith Respondent No. 7 being mentioned as L7 in the Minutes of the Bid Evaluation Committee as available on record. In any event, the relevant consideration is whether or not the Petitioner is a person aggrieved and not whether it was a bidder. On this count, there can be no doubt that the Petitioner being the generator on whose behalf and on whose basis PTC had submitted its bid, is an aggrieved party.
31. Accordingly, it cannot be said in any manner whatsoever that there is concealment of any material fact which in case disclosed would have disentitled the Petitioner herein from approaching this Court. On the other hand, the perusal of (Downloaded on 20/09/2021 at 10:38:02 PM) (40 of 83) [CW-14815/2020] the record itself goes onto to show that the Petitioner herein have only dealt with Respondent No.7 so far as the bidding in the present matter is concerned. It is also important to note that the concealment / misstatement of facts are strong phases and cast aspersion on any party against whom these are made. Whenever such allegations are made they are to be duly supported in the form and manner as has been said above which would disentitle the Petitioner or the person approaching the Court from the relief itself. Further, it has to be shown that all such documents were in the knowledge of the Petitioner and inspite of having knowledge of the same it was the Petitioner who has taken the benefit of seeking a relief before any Court by concealing such facts.
32. In the present case there is nothing on record to show that the present Petitioner has come before this Court with unclean hands and has suppressed material documents with the intent that if those documents had been shown to this Court the same would disentitle the Petitioner of the relief sought in the present Petition. All the arguments raised by the Learned Advocate General in this regard are general in nature and are of no avail so far as the dismissal of the present Writ Petition on the ground of concealment is concerned as has been mentioned above. Further concealment of material fact / misstatement of facts are two phrases wherein the burden of proving the same falls on the Respondent No.2.
33. On the contrary no such material been brought on record by the contesting Respondents, which would show that there (Downloaded on 20/09/2021 at 10:38:02 PM) (41 of 83) [CW-14815/2020] has been any concealment or misstatement of material facts by the Petitioner. The Respondent No.2 is reading a document in a manner in which it suits them to the extent that no bid has been submitted by the Petitioner herein and the bid has only been submitted by Respondent No. 7 to Respondent No. 2. The document as shown to this Court, are contemporaneous in time and accordingly since the same have been placed on record by the Petitioner themselves, there seems to be no intent coming out in any manner whatsoever to conceal any information / document and/or to misstate any of the facts. It may also be kept in mind that once a document is already before any authority adjudicating upon the disputes arising between the parties, both the parties have an equal opportunity to produce all documents between themselves relating to the issue. Accordingly in case there was anything which was concealed by the Petitioner, the same could have been produced by the contesting Respondents, which admittedly has not been done.
34. The objections regarding locus of the present Petitioner to file and maintain the present Petition is erroneously based on the premise that as per para 2 under the head 'DISCLAIMER' of the RFP dated 28th May, 2012, the bid document is not transferable and the same reads as under:
"This RFP, along with its Formats, is not transferable.
The RFP and the information contained therein is to be used only by the person to whom it is issued. Save and except as provided in Clause 2.18 of the RFP, it shall (Downloaded on 20/09/2021 at 10:38:02 PM) (42 of 83) [CW-14815/2020] not be copied or distributed by the recipient to third parties. In the event that the recipient does not continue with its involvement in the bidding process in accordance with this RFP, this RFP must be kept confidential."
35. Mr Vikram Nankani, Learned Senior Advocate appearing on behalf of the Petitioner on the other hand has rightly submitted that locus to file a writ lies with any person aggrieved and in the present facts the person who is aggrieved is the generator so far as the rights flowing are concerned and whether the generator is claiming through Respondent No. 7 or himself i.e., the Petitioner in this case is claiming directly or not, is of no consequence as long as a derivative right or a direct right accrues in favour of the Petitioner. The Learned Senior Counsel has taken this Court through Para 12 of the Writ Petition as well as through the Bank Guarantees of the Petitioner submitted by it to Respondent No. 7 alongwith the Letter dated 6 th January 2015 issued by Respondent No. 2 to Respondent No. 7. The Learned Senior Counsel has also taken this Court through diverse clauses of the model PPA as well as the PPA executed by Respondents with PTC in respect of L-1 (Maruti Clean Coal & Power Ltd - PTC) and L-2 (DB Power Ltd. - PTC), and specifically Clause 1.3.1, Clause 2.1.2.2 (g) Clause 2.4, to name a few, to show that so far as the Petitioner was concerned, the Petitioner was not a stranger to Respondent No. 2 and in the entire tender process, the bid of the Petitioner has been duly recognised by all the parties (Downloaded on 20/09/2021 at 10:38:02 PM) (43 of 83) [CW-14815/2020] including Respondent No. 2. The table itself as framed by the Bid Evaluation Committee categorically at L7 mentions the name of PTC and the Petitioner and all the bids submitted by other generators have been named alongwith the person Respondent No. 7 with whom they were partnering with.
36. The RFP mandated that a trader would need to submit a binding power sales agreement with a generator source and failure to do so would disqualify the trader's bid. In addition, the evaluation process and the PPA to be executed by the Respondent with PTC as a trader, had clear references to and acknowledged the generator. In fact, the provisions of the PPA executed with PTC referred to above show that certain defaults by the generator would constitute defaults by the trader. It is settled law that the PPA (between DISCOMS and Trader) on the one hand and the Power Sales Agreement (between the Trader and the generator) on the other hand constitute a single transaction and are not separate transactions; these are part and parcel of a single transaction on a back-to-back basis in as much as one cannot survive without the other. The following provisions of the Power Purchase Agreement executed between Respondent No. 2 to 5 and Maruti Clean Coal & Power Limited has multiple references to the term "Developer" i.e., the Generator. These are set out below:
(a) Ref. definition of 'Developer' at Page 1422 -
"'Developer' shall mean the owner of Power Station from which the Seller shall supply the aggregate Contracted Capacity to the Procurer(s)."(Downloaded on 20/09/2021 at 10:38:02 PM)
(44 of 83) [CW-14815/2020] (b) Ref. definition of 'Power Station' at Page 1425 - "'Power
Station' shall mean the Maruti Clean Coal & Power Limited's power generation facility of installed capacity of 1X300 MW...."
(c) Ref. Article 3.1.1(d) and (e) at Page 1433 - PTC to ensure that 'Developer' has acquired and taken possession of land and also has awarded EPC contract within the stipulated timelines.
(d) Ref. Article 9.2 at Page 1465 - "An Affected Party means any of the Procurer or the Developer whose performance has been affected by an event of Force Majeure..."
37. Furthermore, the judgement dated 25.04.2018, passed by the Hon'ble Supreme Court in Civil Appeal No. 2502-2503 of 2018 & Batch ('SC Order 2018') unequivocally recognised the locus standi of the 'Developer/Generator' to appeal against the order of APTEL, without having PTC to join them as a co-appellant(s). (Ref. Page 482-484). Thus, the Supreme Court recognised the locus of the generators being aggrieved parties and being entitled to enforce their rights on their own without arraying PTC trader as a petitioner/appellant. Respondent No. 2 to 5, despite being present at all forums i.e., before RERC, APTEL and Hon'ble Supreme Court, never contested / raised issue of locus standi of the generators in their own name, in the appeals filed by DB Power (which is supplying power through PTC) before APTEL and SC.
(Downloaded on 20/09/2021 at 10:38:02 PM)
(45 of 83) [CW-14815/2020]
38. PTC in response to RFP submitted Bid Bond (Bank Guarantee submitted by the Bidder along with the Bid) to be kept alive till 15.02.2013 (i.e., 30 days beyond the Bid Deadline). (Ref. Definition of Bid Deadline read with Clause 2.8 at Page 195 and 224-225 respectively). PTC withdrew the Bid Bond since the quantum of power qua MB Power did not fall in the Requisitioned Capacity which had already then, been filled up by L1 to L5.
39. PTC submitted bids individually for each of the Developer / Generator. Clause 2.4.1 (B) (ii) at Page 218 itself provides that more than one bid can be submitted by the bidder for supply of power subject to the condition that not more than one bid from a bidder is from the same generating source. This argument is further strengthened by Clause 2.4.1.1 (B) Envelope II - Financial Bid read with Format 4 (x) of RFP along with prescribed Format 4.10 of RFP at Pages 218, 241 and 282 respectively of the writ petition, which specifically provides that the financial bids are to be submitted separately in Envelope II. The Envelope II is the financial bid to be submitted in the prescribed Format 4.10 separately in respect of each generation source. A bare perusal of the Format 4.10 shows that it applies to a specific generation source and thus, separate financial bids need to be filed in accordance with clause 4(x) of the RFP.
40. Mr. Ravi Kishore, Learned Advocate appearing on behalf of Respondent No.7 has also made his submissions whereby he has stated that Respondent No. 7 is a trader and the said definition for the same has been provided in Section 2 Sub- (Downloaded on 20/09/2021 at 10:38:02 PM)
(46 of 83) [CW-14815/2020] Section 71 of the Electricity Act, 2003 which defines the meaning of trading which reads as under:
"S.2 (71) "trading" means purchase of electricity for resale thereof and the expression "trade" shall be construed accordingly;"
41. Further the Counsel for the Respondent No. 7 has taken this Court through Section 14 which provides for grant of licence to a trader and has relied upon the same. In support of his submission that undertaking trading in electricity as a trader is a right which is duly recognised under the Electricity Act 2003. The Learned Counsel for the Respondent No. 7 has impressed upon this Court that Respondent No. 7 / M/s PTC as a trading licensee is a duly regulated entity and it is not an operator who neither recognises the sector nor is here as a short-term operator. He submitted that the role of R-7 is that of a conduit/facilitator in the entire transaction and the same has also been noted in a catena of judgments. He submitted that the fact that R-7 had submitted various bids on behalf of generators is also recognized by R-2 as is evident from the Minutes of the Bid Evaluation Committee (Page 356) as the bids submitted by R-7 on behalf of various generators, including the Petitioner herein, were placed at different positions in the list of qualified bidders i.e. at L-1, L-2, L-4, and L-7. (Page 356). Thus, the contention of R-2 that the R-7 had submitted a single bid is totally untenable and not justified and contrary to the scheme of the bid as accepted by R-2 itself. Mr. Kishore also took this Court through the Bidding Guidelines and particularly (Downloaded on 20/09/2021 at 10:38:02 PM) (47 of 83) [CW-14815/2020] through the judgements as mentioned below, to show that what is the role of a trader and that the power generator is duly recognised by all the Courts as having a right to sustain a litigation when their rights are sought to be infringed in any manner whatsoever. The judgements are as under:
(i) PTC India Limited v. Jaiprakash Power Ventures Ltd., (2012) 130 DRJ 351 wherein Hon'ble Delhi High Court observed-
"61. The APTEL's decision in Lanco III is instructive The facts in brief were that Lanco was a generating company which entered into a PPA with Power Trading Corporation (PTC) for sale of 273 MW electricity from its Korba thermal power project in Chhattisgarh. The Haryana Power Generation Corporation Ltd. (HPGCL) approached the Haryana Electricity Regulatory Commission (HERC) for approval of purchase of power from Lanco's plant. An in-principle approval was granted by the HERC for purchase of power from Lanco's plant through PTC. A power Sale Agreement (PSA) was entered into between PTC and HPGCL for sale of the power purchased from Lanco. HPGCL approached the HERC for approval of the PSA. The HERC granted approval. Later PTC filed a petition before the HERC seeking a direction to HPGCL to purchase electricity at the tariff calculated in accordance with the CERC Regulations and the PSA to regulate the tariff. Among the objections raised by Lanco was that HERC lacked the jurisdiction to approve the tariff for purchase of electricity by PTC, an inter-
state trading licencee, from Lanco which had its plant in Chhattisgarh. The decision of the HERC, negativing the said objection, was challenged by Lanco before the (Downloaded on 20/09/2021 at 10:38:02 PM) (48 of 83) [CW-14815/2020] APTEL. While upholding the said part of the order of the HERC, the APTEL observed:
"So, the combined reading of the above provisions brings out the scheme of the Act. A trader is treated as an intermediary. When the trader deals with the distribution company for re- sale of electricity, he is doing so as a conduit between generating company and distribution licencee. When the trader is not functioning as merchant trader, i.e. without taking upon itself the financial and commercial risks but passing on the all the risks to the Purchaser under re-sale, then there is clearly a link between the ultimate distribution company and the generator with trader acting as only an intermediary linking company.
61. It cannot be debated that the whole scheme of the Act is that from the very generation of electricity to the ultimate consumption of electricity by the consumers is one interconnected transaction and is regulated at each level by the statutory Commissions in a manner so that the objective of the Act are fulfilled; the electricity industry is rationalized and also the interest of the consumer is protected. This whole scheme will be broken if the important link in the whole chain i.e. the sale from generator to a trading licencee is to be kept outside the regulatory purview of the Act. If such a plea of the Appellant is accepted, the same would result in the Act becoming completely ineffective and completely failing to serve the objective for which it was created.
62. In other words, while interpreting the provisions of the Act, the entire Act will have to be looked into totality as one integral whole and not in an isolated manner. That is why; the Act itself does not seek to (Downloaded on 20/09/2021 at 10:38:02 PM) (49 of 83) [CW-14815/2020] look at the electricity industry and the consumer interest on a segmented or fragmented basis but as cohesive whole. It is for this reason that the Act has been given in Section 174 overriding effect over all the other legislations which are inconsistent with the provisions of the Act."
(ii) PTC India Limited v. Uttrakhand Electricity Regulatory Commission, 2011 SCC OnLine APTEL 5:
[2011] ELR (APTEL) 81-
"52. A trading licensee is only a facilitator for supply of electricity by a generator to a licensee or a consumer.
In this case the generating company proposes to sell power of a trading licensee which has back to back agreement for resale of power to a distribution licensee outside the State of Uttarakhand. The distribution licensee is going to pool the power procured from the trading licensee with power procured from other sources and supply the same to its consumers. Thus, the power is ultimately going to be consumed by the consumers outside the State. This is in accordance with scheme of things and provisions of the Act. In our opinion, the State Commission has given restricted interpretation to clause 4.1 of the Implementation Agreement. The Respondents, UPCL or the State Government are not prejudiced by the hydro generating company selling power through a trading licensee when the Implementation Agreement allows sale to 'any consumer outside the State'."(Downloaded on 20/09/2021 at 10:38:02 PM)
(50 of 83) [CW-14815/2020]
(iii) PTC India Ltd. v. Uttarakhand Electricity
Regulatory Commission, 2016 SCC OnLine APTEL 104 // (2016) ELR (APTEL) 1176 -
"18. It is pertinent to note that the above observations were made by this Tribunal after carefully examining the clauses of the PPA dated 19/10/2005 and PSA dated 21/09/2006 and the relevant correspondence. After such examination this Tribunal came to a conclusion that the PSA and the PPA are back to back arrangements as the PPA between Appellant Lanco Power and PTC (R3) got firmed up with execution of the PSA entered into between Haryana Power (R2) and PTC (R3). This Tribunal noted that the purchaser Haryana Power (R2) had been specifically identified before the execution of the final PSA and the said information was conveyed to Appellant Lanco Power by PTC (R3) through a letter. Only thereafter an amended PPA was executed between PTC (R3) and Appellant Lanco Power. This Tribunal clarified that a trader (PTC) is treated as an intermediary and when the trader deals with the distribution company for re-sale of electricity he does so as a conduit between generating company and the distribution licensee. This Tribunal further noted that when the trader is not functioning as merchant trader i.e. without taking upon itself the financial and commercial risks but passing on all the risks to the purchaser under re-sale, there is clearly a link between the ultimate distribution company and the generator with trader acting as only an intermediary linking company. This Tribunal concluded that the State Commission in whose jurisdiction the power is likely to be consumed through the concerned distribution licensees in terms of Section 64(5) of the said Act will have jurisdiction in such a situation."(Downloaded on 20/09/2021 at 10:38:02 PM)
(51 of 83) [CW-14815/2020] When a Trading Licensee deals with a distribution company for re-sale of electricity, it is doing so as a conduit between a generating company and a distribution licensee. (Ref. Para 21 of Judgement dated 04.11.2011 in Appeal No. 15 of 2011 & Appeal No. 52 of 2011 passed by APTEL titled as Lanco Power Limited (Phase III) v HERC & Ors.).
21. So, the combined reading of the above provisions brings out the scheme of the Act. A trader is treated as an intermediary. When the trader deals with the distribution company for re-sale of electricity, he is doing so as a conduit between generating company and distribution licensee. When the trader is not functioning as merchant trader, i.e. without taking upon itself the financial and commercial risks but passing on the all the risks to the Purchaser under re- sale, then there is clearly a link between the ultimate distribution company and the generator with trader acting as only an intermediary linking company.
42. He has also taken this Court through the PPA with the other generators. The Counter Affidavit filed by PTC and they have categorically stated that in the whole transaction they are acting as a trader of electricity as per the provisions of the Electricity Act and in terms of the RFP issued by Respondent No. 2. The relevant portion of the same being as under:
"d. It is further submitted that the Petitioner had approached the Answering Respondent in December 2018 to pursue its case with Respondent No. 2 for supply of 200 MW of electricity in order to comply with the order dated 25.04.2018 passed by the Hon'ble (Downloaded on 20/09/2021 at 10:38:02 PM) (52 of 83) [CW-14815/2020] Supreme Court and as per the RFP dated 28.05.2012. However, the Answering Respondent had advised the Petitioner to await the outcome of the determination of tariff proceedings of the L-4 (Respondent No. 9 herein) and the L-5 bidder (M/s SKS Power Generation (Chhattisgarh) Limited) and thereafter, depending upon the outcome of the said proceedings to approach the Respondent No. 2.
e. Thereafter, recently on 17.10.2020, the Petitioner addressed a letter to the Answering Respondent enclosing therein a letter dated 15.10.2020 as addressed by the Petitioner to the Respondent No.2.
Copies of the Letter dated 17.10.2020 of the Petitioner enclosing copy of the letter dated 15.10.2020 of Respondent No-2 is enclosed herewith and marked as ANNEXURE R-3, c. I further state that in the whole transaction the Answering Respondent has acted as a trader of Electricity as per provisions of the Electricity Act and in terms the RFP issued by Respondent No-2."
The important thing to note from above is that they have not denied any right to the Petitioner. So far as the Electricity Act, 2003, a role of a trader and other issues are concerned, there is no controversy between the parties so far as to the position of Respondent No. 7 is concerned. He submitted that having accepted the locus standi of the generators, like the Petitioner in the present case, R-2 can't take a totally contrary stand as the same is contrary to the legal pronouncements and is barred by the principle of Estoppel. Written Submissions filed by R7 also support the petition. (Downloaded on 20/09/2021 at 10:38:02 PM)
(53 of 83) [CW-14815/2020]
43. This Court is looking at the proposition whether the Petitioner could maintain this Writ Petition on their own as the objection taken by the Respondent No.2 being that the Petitioner is not a bidder in their own individual right, and it is only Respondent No. 7 who being the bidder has any rights and obligations.
44. This Court is unable to agree with the contention raised by the Learned Advocate General. A perusal of all the documents as have been mentioned above categorically show that Respondent No. 2 was not only aware as to who is partnering with Respondent No. 7 in their bid but they themselves have duly recognised it in the table prepared by them. A perusal of the table issued by the Bid Evaluation Committee after opening of the financial bids categorically show that they have identified each of the bidders and have put them in a different category as per their tariff quoted in their bid. So, while Respondent No. 7 had bid for 5 generating companies. Their bid for Adhunik did not proceed ahead. Accordingly, in the table, which was prepared there were 10 qualified bidders as per the terms of the RFP and at Serial No. 1 the name PTC with Maruti and at Serial No. 2 PTC with DB power is categorically mentioned, the same is the position so far as L4 and L7 are concerned. The same categorically leads to the answer that:
i. Respondent No. 7 / PTC could not have submitted the bid on their own, (Downloaded on 20/09/2021 at 10:38:02 PM) (54 of 83) [CW-14815/2020] ii. The RFP mandates that a trader can submit its bid only after it has entered into an Exclusive Power Purchase Agreement with the generator;
iii. R-7 had entered into an exclusive power purchase agreement with the Petitioner before a bid for 200 MW was submitted;
iv. The evaluation of the bid submitted by Respondent No. 7 is after examining the partner / generating source from which Respondent NO. 7 is procuring, as well, v. The bid submitted is jointly with the generator and the said fact is known to the Respondent No. 2 and recognized by them in the evaluation table.
45. The Counsel appearing on behalf of the Petitioner has also taken this Court through the several rounds of litigation that have taken place earlier whereby various Petitions, Applications, Appeals and other proceedings etc., were preferred by the L2, L3, L4 and L5 bidders and the same have been preferred by them on their own without Respondent No. 7 challenging the same on their behalf. This Court has also been shown the records whereby the averments made by L2 i.e., M/s DB Power before the RERC as well as before the APTEL and the Hon'ble Supreme Court of India in the first round of litigation. The same categorically show that all the generating companies were continuing to contest the matter and/or take the legal remedies as available to them on their own.
46. One further interesting fact which needs to be highlighted is that Respondent No. 7 was a party to all such (Downloaded on 20/09/2021 at 10:38:02 PM) (55 of 83) [CW-14815/2020] proceedings and had participated in all the said legal proceedings. Further, Respondent No. 7 on its own had allowed all the generating companies to take the necessary legal action right from 2013. It therefore appears that Respondent No. 2 is not taking a consistent stand and is actually trying to take different stands in different proceedings.
47. Once the Respondent No. 2 has contested a previous round of litigation initiated by other bidders as mentioned above in the table, where Respondent No. 7 was one of the parties and was not arrayed as a Petitioner in the said proceedings, the Respondent No. 2 cannot now be allowed to take any stand which is not consistent with it. This Court has to consider the fact that since the stand of Respondent No. 2 has not remained consistent so far as generating companies like the Petitioner is concerned, they cannot be allowed to take any stand in conflict of the same.
48. Also, it needs to be understood whether the Petitioner has any independent right at all to maintain a Petition i.e., whether the present Petitioner can be taken to be as a party aggrieved in order to maintain a separate Writ Petition as regards their entitlement. This Court cannot have any doubts to the said issue as the documents abovementioned categorically speak for themselves. The Respondent No. 2 has not only recognised all the generating companies right from day one but have even gone ahead and declared them as a qualified bidder along with Respondent No. 7 / PTC. This Court is convinced with the fact that the Respondent No. 2 (Downloaded on 20/09/2021 at 10:38:02 PM) (56 of 83) [CW-14815/2020] themselves recognise the bid as given jointly by Respondent No. 7 and the Petitioner, which they put in the table as L7. The Petitioner cannot be now ousted on merely this ground alone. The Petitioner's right as a generating company and having an unknown existence so far as the bid of R7 PTC is concerned is completely a fallacy. A trader is only entitled to a particular share in the revenues coming to the generating company. That part of the role of Respondent No. 7 is well known and as per the terms of the Electricity Act. However, in the present case not only are the bids of Respondent No. 7 along with each of its generating station is specifically mentioned in the table formulated of qualified bidders but even the subsequent treatment as abovementioned of all of them is inconsistent with the stand now being taken by Respondent No. 2. This Court is thus inclined to agree to the fact that any arbitrary action or inaction by the Respondent No. 2 in a bid filed through Trader would have a direct bearing on the corresponding generating companies like in the present case the Petitioner.
49. Furthermore, the Hon'ble Supreme Court in its judgment dated 25th April 2018 has categorically recognised the generators as persons who can file and maintain that appeal in their own name without arraying PTC as a co appellant. As in that case, PTC has been arrayed as a party/respondent in the present writ petition too.
50. In the case of Tata Power v Uttar Pradesh Power Corporation Ltd - CERC - relevant paragraph 23 reads as follows:
(Downloaded on 20/09/2021 at 10:38:02 PM)
(57 of 83) [CW-14815/2020] "23. In terms of the RFP, the successful bidder was to disclose the source of supply of power and to provide a confirmation from the source of generation. The Petitioner No. 2, JITPL had authorised TPTCL to supply power from its plant to UPPCL based on which TPTCL had indicated the plant of JITPL as the source of supply. Further, the LOIs issued by UPPCL also recognised JITPL as the generation source for supply of power by TPTCL. Moreover, it is undisputed that TPTCL had also supplied power to UPPCL from the generating station of JITPL in terms of the LOIs. The LOIs read with the provisions of RFP unambiguously established the nexus between the generating company JITPL and the distribution licensee, UPPCL even though power is supplied through TPTCL, which is an inter-state trading licensee. Hence, the contention of the Respondent UPPCL that it has no privity of contract or arrangement with JITPL lacks merit. We therefore hold that the present Petition filed by JITPL for adjudication of disputes against UPPCL is maintainable under Section 79(1)(b) read with Section 79(1)(f) of the 2003 Act."
51. It is categorically clear that all the obligations of the trader are actually the obligations of the generating stations and accordingly there can be no question of the Petitioner not being aggrieved in any manner. Since this Court cannot have any other view than to hold that the Petitioner is an aggrieved party, the consequential corollary to the same is that the present Petition can be maintained.
52. So far as the other part of the same argument raised by the Learned Advocate General relating to the validity of the Bid Bond and Bank Guarantee is concerned, this Court (Downloaded on 20/09/2021 at 10:38:02 PM) (58 of 83) [CW-14815/2020] has been taken through the Letter dated 6th January 2015 issued by the Respondent No.2 to Respondent No. 7, which categorically states that the Bank Guarantee should not be extended beyond 2015, on the basis of which Respondent No 7 wrote the letter dated 14th January 2015 to the Petitioner and the same was complied with by the Petitioner in the present case.
53. Since the Bid Bond etc. submitted by the Petitioner was not extended at the instance of the Respondent No.2, the Respondent No. 2 cannot raise the argument that the Petitioner did not keep the bid valid. This Court ought to hold that the non-continuation of the bid validity was at the instance of the Respondent No. 2 and in view thereof the Petitioner cannot be ousted on this reason from the tender process and so far as the present Writ Petition is concerned on this ground alone. Accordingly, this Court ought to conclude that the bid validity and non-continuation of the same which was done pursuant to the letter written by the Respondent No. 2 and the same cannot be held against the Petitioner presently so far as the maintainability of the Writ Petition is concerned.
54. So far as the preliminary objections taken regarding delay and latches is concerned, it has been stated that the bid security of Respondent No. 7 was returned back in 2015 and the present Petition is filed after a lapse of 5 years and therefore, is liable to be dismissed on this ground alone. This Court disagrees with the said proposition made by the Learned Advocate General in so far as the Petitioner in the (Downloaded on 20/09/2021 at 10:38:02 PM) (59 of 83) [CW-14815/2020] Writ Petition has categorically stated that the cause of action for them to file the present Writ Petition has arisen first only on 3rd February, 2020 when the Learned APTEL directed the acceptance of bid of the L5 bidder (one M/s SKS Power Generation (Chhattisgarh) Limited), it is only then that the right of the present Petitioner being the L7 bidder would flow. Thereafter, the Hon'ble Supreme Court, in the civil appeal No. 2721/2020 filed by the contesting respondents herein, i.e. RRVPN against the said APTEL judgement dated 3rd February, 2020, has not stayed the said judgement of the APTEL. The cause of action in favour of the Petitioner arose again on such date. Accordingly, the contentions raised by the Learned Advocate General regarding the cause of action arisen in favour of the Petitioner in 2015 is completely incorrect and is not borne out of the pleadings of the Petitioner..
55. The Learned Counsel for the Respondent Nos. 3 to 5 has raised an argument that the Civil Appeals bearing Nos. 1937 of 2020 and 2721 of 2020 are pending in the Hon'ble Supreme Court of India where the present Petitioner has filed an Application for Impleadment. The Civil Appeals pending in the Hon'ble Supreme Court arise from the Order of the APTEL dated 3rd February, 2020 in an Appeal preferred by the L5 bidder. However, it is not disputed that the pendency of the present Writ Petition is duly mentioned therein, and the reliefs sought by the Petitioner in the present Writ Petition are not prayed in that Application for Impleadment before the Hon'ble Supreme Court. (Downloaded on 20/09/2021 at 10:38:02 PM)
(60 of 83) [CW-14815/2020] Accordingly, this Court holds that the filing of the
Impleadment Application is no ground for non-consideration of the present Writ Petition by this Court.
56. So far as the argument of the Learned Advocate General regarding alternative remedy under the Electricity Act, 2003 being available to the Petitioner is concerned, the same is intertwined with the relief sought by the Petitioner in Prayer (a) which is the challenge to Rule 69(2)(b) of the Rajasthan Transparency in Public Procurement Rule, 2013. Since the two issues relating to alternate remedy and challenge to the rules are intertwined, the same needs to be decided together. However, before proceeding to decide the issue, it is important to take into consideration the main issue raised by the Petitioner in the present Writ Petition which is as regards the entitlement of the Petitioner to be declared as a successful bidder under the Clause 3.5 of the RFP dated 28th May, 2012. The question whether the challenge to the rule is necessary for such adjudication is also to be discussed together.
57. So far as the contention of the Petitioner is concerned, the Respondent No. 2 vide RFP dated 28th May, 2012 had invited bids for procurement of 1000 MW± 10% of power for a period of 25 years w.e.f. 30th November, 2016. As per the undisputed facts the Bid Evaluation Committee vide its meeting held on 17th April, 2013 and 22nd April, 2013, the Respondent No. 2 shortlisted 10 bidders as qualified bidders therein the Petitioner was listed as L7 for 200 MW at a levelized tariff of Rs. 5.517/KWH. The table as prepared has (Downloaded on 20/09/2021 at 10:38:02 PM) (61 of 83) [CW-14815/2020] been mentioned above, initially the Respondent No. 2 had awarded the entire quantum of 1000 MW between L1 to L3 which action of the Respondent No. 2 was challenged by L4 and L5 bidders stating the same to be in violation of the terms of the RFP. During the pendency of the said challenge, the Respondent No. 2 had further reduced the quantity for procurement from 1000 MW to 500 MW. The reduction of the total quantity for procurement was also challenged by L2 and L3 as well. It is also to be noted that this reduction of quantum was done on the express directions of the EAC, which is undisputedly constituted by the Government of Rajasthan, Respondent No. 1.
58. Initially the RERC vide its Order dated 22 nd July, 2015 allowed the reduction of the total quantity to be procured under the RFP dated 28th May, 2012 from 1000 MW to 500 MW vide its Order dated 22nd July, 2015. This order of the RERC expressly notes the role and direction of the Respondent No. 1 Government of Rajasthan in the decision making by the contesting respondent utilities to reduce the Requisitioned Capacity of power to be procured, from 1000 MW to 500 MW (@page 375, 376 of the writ petition). Any active role of State Government in directing any decision making of the EAC would be contrary to the scheme of the Electricity Act as well as the applicable RERC regulations. Therefore, any efficacious remedy in the present writ petition would also require issue of appropriate writ of mandamus in accordance with the prayers in the present writ petition, to the Government of Rajasthan Respondent No. 1 in addition (Downloaded on 20/09/2021 at 10:38:02 PM) (62 of 83) [CW-14815/2020] to the contesting Respondents. To supplement this submission, it is stated that the DISCOMs have unequivocally admitted in their reply Affidavit that the Energy Assessment Committee ('EAC') was constituted by the Government of Rajasthan, which is not what is specified in the relevant RERC regulations. Furthermore, the RERC too, in its Order dated 22.07.2015 (at Para 14 at Page 375 of the Petition) acknowledges and accepts this constitution of the EAC by the Government of Rajasthan. It is pointed out that the RERC (Power Purchase and Procurement Process of Distribution Licensee) Regulation 2004, provides for the constitution of the EAC (Ref. Regulation 3 (3) of the 2014 Regulations). These regulations do not contemplate EAC to be either set up by the Government nor does it contemplate any participation by the Government in the constitution of members of the EAC nor does it contemplate any participation by the Government in the decision making of the EAC. Therefore, Government of Rajasthan too has been arrayed as a respondent in the present writ petition.
59. The L2 and L3 bidders challenged the Order to the extent of reduction in the total quantity for procurement from 1000MW to 500MW and it was also challenged by L4 and L5 bidders, both for reduction of total quantity to be procured as well as on the grant of additional quantum to L1, L2 & L3 bidders. The APTEL while hearing the Appeals filed by L2 and L3 bidders was pleased to set-aside the Order of RERC and held that the reduction of quantum of power after the opening of the bids under the RFP were not permissible. (Downloaded on 20/09/2021 at 10:38:02 PM)
(63 of 83) [CW-14815/2020] However, while the Appeal filed by L4 and L5 were pending, the entire quantum continued to remain divided between L1 to L3. Aggrieved by the Order dated 2nd February, 2018 passed by the APTEL, the L5 bidder filed an Appeal before the Hon'ble Supreme Court of India bearing CA No. 2502-03 of 2018. The Respondent Nos. 3 to 5 had also preferred Civil Appeals before the Hon'ble Supreme Court bearing Nos. CA 3481-82 of 2018 which was tagged alongwith the abovementioned Civil Appeals bearing CA No. 2502-03 of 2018. The Hon'ble Supreme Court vide its Order dated 25 th April, 2018 disposed of both sets of Civil Appeals. The relevant portion of the Order passed by the Hon'ble Supreme Court is as under:
"We are in agreement with the earlier conclusion of the APTEL. We are of the view that the direction of reduction of capacity from 1000 mw to 500 mw by the State Commission was correctly set aside. Since L-1 to L-5 were represented before this Court, we direct that they shall be entitled to supply of power in terms of the originally offered amount, mentioned above, in accordance with para 3.5 of the Request for Proposal. The power supply will now be reduced to a total of 906 MW."
60. Subsequently, on an Application being preferred by the L5 bidder, the Hon'ble Supreme Court vide its Order dated 20th September, 2018 issued directions to Respondent No. 2 to sign PPA with the L5 bidder and then the State Commission will go into the issue of approval of adoption of tariff. The Supreme Court subsequently passed an Order dated 21st January, 2019 directing the Respondent No. 2 to (Downloaded on 20/09/2021 at 10:38:02 PM) (64 of 83) [CW-14815/2020] first sign the PPA with L5 after which the issue of adoption of tariff will be taken up by the RERC.
61. The BEC in its meeting held on 22 nd June 2018 rejected the bids of L4 and L5 bidders, stating that the bid tariff is not market aligned, as the Respondent No. 2 had filed an Application before the RERC for not adopting the tariff of L5 bidder which Application was allowed by the RERC vide its Order dated 26th February, 2019.
62. In view of the said Order dated 26th February, 2019 passed by the RERC, the L5 bidder again filed an Appeal bearing No. 224 of 2019 before the APTEL against the said Order dated 26th February, 2019 and the said Appeal filed by L5 bidder was allowed by the APTEL vide its Order dated 3 rd February, 2020. The Respondent Nos. 3 to 5 and Respondent No. 2 have filed Civil Appeals bearing Nos. 1937 of 2020 and 2721 of 2020, respectively, before the Hon'ble Supreme Court against the said Order dated 3rd February, 2020 of the APTEL. It is also an important fact that during the pendency of the above mentioned litigation, L3 (Respondent No. 8, herein) and L4 (Respondent No. 9, herein) bidders were not in a position to supply the power since their power plants which were under construction could not be completed.
63. Both L3 (Respondent No. 8, herein) and L4 (Respondent No. 9, herein) bidders have been arrayed as parties to the present Writ Petition and both of them have filed Counter Affidavits dated 2 nd February, 2021 and 28th January, 2021, respectively. The non-supply of power by L3 (Respondent No. 8, herein) and L4 (Respondent No. 9, (Downloaded on 20/09/2021 at 10:38:02 PM) (65 of 83) [CW-14815/2020] herein) is to the extent of 300 MW. Further, L6 (Respondent No. 10, herein) bidder is also not in a position to supply the power to the extent of the bid quantity of 100 MW. Accordingly, it is an admitted position that the Respondent No. 2 is procuring only 606 MW at the present hour and not 906 MW, despite the Order dated 25th April, 2018 of the Hon'ble Supreme Court of India.
64. On a careful perusal of the Order dated 25th April, 2018 of the Hon'ble Supreme Court although the Learned Advocate General has drawn the attention to the use of the words 'L4 and L5' in the Order in support of the submission that the scope of the Supreme Court Order dated 25 th April, 2018 and/or the relief granted by the Supreme Court vide Order dated 25th April, 2018 is limited only till L5 and the present Petitioner being L7 cannot take the support of the said Order dated 25th April, 2018. However, we are unable to agree with the said proposition as what the Hon'ble Supreme Court has held was that the Respondent No. 2 has to procure a minimum quantity of 906 MW, which was within 1000 MW +/- 10%. Further, since the said quantity could have been supplied by L1 to L5 as on that date, the process of declaration of a successful bidder as provided in Clause 3.5 of the RFP was duly relied upon. However, the Hon'ble Supreme Court has also categorically used Clause 3.5 in the operative part of the Order dated 25th April, 2018. Accordingly, it is categorically clear that the total quantity to be procured by Respondent No. 2 has to be 906 MW and the (Downloaded on 20/09/2021 at 10:38:03 PM) (66 of 83) [CW-14815/2020] procurement of 906 MW has to be done in the manner as provided in Clause 3.5 of the RFP dated 28th May, 2012.
65. Further, in view of the Order passed by the Hon'ble Supreme Court on 25th April, 2018, dehors the actual situation of other successful bidders not being in position to supply power, it cannot be said that the selection process so far as mandated under clause 3.5.4 and 3.5.6 of the RFP dated 28th May, 2012 stood completed forever. We are unable to agree with the contention raised by the Learned Advocate General in this regard. This Court holds that the direction issued by the Hon'ble Supreme Court was for the procurement of the Requisitioned Capacity of aggregate quantity of 906 MW. Further, the said procurement was to take place in accordance with Clause 3.5 of the RFP. When the Respondent No. 2 rejected the bid of L5 in June, 2018 itself on account of the price not being market aligned, the question for consideration of the other bids was not considered at all. This Court holds that the selection process even till June, 2018 was open in view of the bid of L5 being rejected as not being market aligned. Accordingly, the argument raised by the Learned Advocate General that the bidding process was complete in the year 2013 itself cannot be sustained at all.
66. Further, reasoning for the said proposition is that the Civil Appeals file by the Respondent Nos. 2 and Respondent Nos. 3 to 5 are still pending adjudication which have been preferred against the Order of the APTEL dated 3rd February, 2020. Accordingly, it can also be said categorically that the (Downloaded on 20/09/2021 at 10:38:03 PM) (67 of 83) [CW-14815/2020] bid of L5 stood allowed by the APTEL as on 3 rd February, 2020 and accordingly the selection process was surely open as on 3rd February, 2020 when the bid of L5 stood allowed by the APTEL vide its Order of the said date. This Court holds that as on 3rd February, 2020 i.e. the date of the Order passed by the APTEL, the Respondent No. 2 was only procuring 500 MW of power from L1 and L2 as against 906 MW mandated by the Hon'ble Supreme Court vide its Order 25th April, 2018. The natural corollary that would have followed and which the Respondent No. 1 and No. 2 as 'State' should have done was to commence the process for declaration of successful bidders as provided in 3.5 of the RFP as on 3rd February, 2020 i.e. after the passing of the judgement by the APTEL to procure the balance quantity of power of 406 MW from the total quantity of 906 MW as mandated by the Supreme Court vide its Order dated 25 th April, 2018.
67. In this regard so far as the binding nature of the Order of the Hon'ble Supreme Court is concerned, the APTEL in its Order dated 3rd February, 2020 has observed as under;
"9.4 There is no dispute that the Hon'ble Supreme Court has entitled the Appellant to supply power to the Respondents under the bid issued by the Respondent No. 2, in terms of the originally offered quantum of 100 MW at the originally offered tariff of Rs. 5.30/- per unit, and it was further directed by the Hon'ble Supreme Court that the LOIs issued to L1 to L3, whereby the quantum of power was wrongfully additionally allocated to such L1 to L3 bidders, stand modified. Therefore, the entire controversy arises on (Downloaded on 20/09/2021 at 10:38:03 PM) (68 of 83) [CW-14815/2020] the issue as to whether in terms of the directions issued by the Hon'ble Supreme with regard to going into the issue of approval for adoption of tariff of the Appellant, would mean that the Respondent Commission could determine the tariff of the Appellant, by afresh evaluating the bid as if the said bid was made in the year 2018, and reject the Appellant's bid, in terms of the said fresh evaluation carried out by the BEC.
9.5 The Appellant has contended that as per the directions of the Hon'ble Supreme Court, there exists a mandatory procurement of 1000 MW (+ 10%) of power, instead of 500 MW, which means that the Respondent Discoms have to procure 1000 MW (+ 10%) in terms of the bid issued by the Respondent No.
2. Further, the said procurement can only be from the Respondent Nos. 9 to 11, who had already been issued LOIs, alongwith the Respondent No. 12 and the Appellant, who have been issued the LOI in terms of the directions of the Hon'ble Supreme Court. Without procuring power from the Appellant, the aforementioned mandate of the Hon'ble Supreme Court to take 1000 MW (+ 10% i.e. 906 MW) of power, shall stand vitiated. We observe that the Rajasthan Discoms cannot by-pass the said mandate by rejecting the Appellant."
"9.8 A bare reading of the aforesaid provisions shows that when a case is instituted before a Regulatory Commission, under Section 63 of the Electricity Act, 2003, then it has to necessarily check whether there was transparency in the entire bidding process, and whether the bidding process was conducted in accordance with the guidelines issued by the Central Government."(Downloaded on 20/09/2021 at 10:38:03 PM)
(69 of 83) [CW-14815/2020] "9.10 The issue with regard to the jurisdiction of the State Commission under Section 63 was also raised before the Hon'ble Supreme Court in Civil Appeal No. 3481/3482 of 2018, filed by the Respondent Nos. 3 to 5 herein. In this context, the ground raised by the Respondent No. 3 to 5 before the Hon'ble Supreme Court is reproduced hereinbelow:
"C. FOR THAT the Appellate Tribunal has grossly erred in coming to the finding that Section 63 is a self-contained code. The Appellate Tribunal has ignored the decision of the Hon'ble Supreme Court in the case of Energy Watchdog vs Central Electricity Regulatory Commission & Ors. (2017) 14 SCC 80, wherein the specific contention that Section 63 is a self contained code was specifically rejected and the Hon'ble Court held that the power to regulate cannot be excluded. The Appellate Tribunal has proceeded to rely on its previous decisions on the interpretation of Section 63 ignoring the specific decision of the Hon'ble Supreme Court holding to the contrary, though this was specifically cited before the Appellate Tribunal."
However, the Hon'ble Supreme Court vide its judgment/ order dated 25.04.2018 upheld the finding given by this Tribunal in the aforesaid judgment dated 02.02.2018, and held that this Tribunal rightly confirmed that the Respondent Commission under Section 63 does not have the jurisdiction to reduce the procurement of power from 1000 MW to 500 MW. Accordingly, the Respondents cannot again raise the same argument before us, which has been rejected by the Hon'ble Supreme Court. Further, time and again, the law under Section 63 has been settled in a way that the jurisdiction of the Regulatory Commission is very limited, and has to only confirm whether the bidding process conducted in a transparent manner, (Downloaded on 20/09/2021 at 10:38:03 PM) (70 of 83) [CW-14815/2020] and whether the said bidding process was in accordance with the guidelines issued by the Central Government. The State Commission having a very limited role, cannot exceed its powers, as has been done in the present case."
"9.15 In view of the above observations, it is clear that the Hon'ble Supreme Court has held that a Regulatory Commission does not have to simply go by the exact reading of Section 63. As mentioned under Para 19 of the aforementioned judgment, the Respondent Commission, while adopting tariff under Section 63, has to only consider if the Clause 4 of the Central Govt. Bidding Competitive Guidelines, which provides for Tariff structure, are being complied with. Further, the Hon'ble Supreme Court, under Para 20 has held that the determination of tariff can only be with respect to the guidelines issued by the Central Government. Therefore, Section 63 confines the State Commission to the bidding guidelines and cannot exercise its powers de hors such guidelines."
"9.17 Therefore, in view of aforesaid analysis, we find no merit in the decision of the Respondent Commission to reject the bid of the Appellant, since the entire process with regard to the validity of the bid had already taken place. Further, the requisitioned capacity of 906 MW i.e., + 10% of 1000 MW was fulfilled, in terms of the judgment/ order dated 25.04.2018 passed by the Hon'ble Supreme Court. Hence, the Respondent Commission ought to have approved the adoption of tariff of the Appellant alongwith the terms of the PPA dated 04.02.2019. Accordingly, this issue is answered in favour of the Appellant."
"10.5 A perusal of the above shows that the entire bid was infact evaluated by BEC in the year 2013, since the same is evidenced from the heading of the (Downloaded on 20/09/2021 at 10:38:03 PM) (71 of 83) [CW-14815/2020] aforesaid MOM. Further, with respect to the argument of the Respondents that the bid of the Appellant was not evaluated, we find no proof in the MOM which could demonstrate that the Bid of only L-1 to L-3 was evaluated, and neither have the Respondents brought on record, any document which evidence the same. Further, BEC in its certificate dated 04.06.2013, and the consequent certificates of Respondent Nos. 3 to 5, it has been confirmed that the entire bidding process was transparent, and in conformity with the guidelines issued by the Central Government, under Section 63 of the Act."
"10.6 Further, we have also examined the aspect of Clause 5.15 of the Guidelines for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees dated 19.01.2005, issued by the Ministry of Power, Government of India, which is quoted herein below:
"5.15 The bidder who has quoted lowest levellised tariff as per evaluation procedure, shall be considered for the award. The evaluation committee shall have the right to reject all price bids if the rates quoted are not aligned to the prevailing market prices."
"10.10 We are in conformity with the previous view of this Tribunal that as per the mandate of the Bidding Guidelines, as well as, the RFP, that the alignment of tariff with the prevailing market prices, is not for an individual bidder, rather the same is mandatory requirement for all the bids under a bidding process. Neither the BEC, nor the Respondent No. 2 had the powers under the Guidelines and the RfP, to reject the bid of one of the bidder, the same means that if the tariff quoted by L-1 to L-3 bidders, are found to be market aligned, then the bid of the Appellant is also (Downloaded on 20/09/2021 at 10:38:03 PM) (72 of 83) [CW-14815/2020] aligned to the prevailing market prices, in the year 2013."
"10.12 A perusal of the above shows that in the year 2012, the weighted average levelized tariff discovered under Case-1 bid process was Rs. 4.47/ kWh. However, the tariff of the L-1 bidder, i.e. Respondent No. 9 is Rs. 4.517. Therefore, we are in agreement with the argument of the Appellant that as per the said evaluation, even the tariff of L-1 was not aligned to the prevailing market prices. Further, as contended by the Respondents, that after the negotiations, the difference in tariff of the Appellant and L 3 was of 40 paise/ kWh, the same is not acceptable since the above evaluation conducted by BEC evidences that the difference between the tariff quoted by the L3 bidder, after negotiations, and the levelized tariff prevailing in the year 2012 i.e. Rs. 4.47/ kWh, is of 42.2 paise/ kWh, which is more than the difference of tariff between L-3 and the Appellant. Hence, we do not find any merit in the argument of the Respondents."
"10.13 Therefore, since the bid of the Appellant was already evaluated, and the subsequent certificates were issued by the Respondents confirming the transparency of the bid, and finding the same in accordance with the Bidding Guidelines of the Central Government, and the subsequent judgments of the Hon'ble Supreme Court by which the Appellant was entitled to supply power. The Respondent Commission should have adopted the evaluated tariff of the Appellant, in accordance with Section 63, as per the PPA dated 04.02.2019. In fact, the issue of afresh re- evaluation of the bid of the Appellant (quoted in 2012-
13) could not have been done once (in 2018) the Hon'ble Supreme Court passed its final order dated (Downloaded on 20/09/2021 at 10:38:03 PM) (73 of 83) [CW-14815/2020] 25.04.2018 after considering all the aforesaid contentions. Accordingly, this issue is also answered in favour of the Appellant."
68. We agree with the above finding given by the APTEL as regards the binding nature of the Order of the Hon'ble Supreme Court is concerned. We are unable to read the judgement dated 25th April, 2018 of the Hon'ble Supreme Court as being confined only till L5, by ignoring the factual background narrated hereinabove. The subject matter of the said appeal was not the persons from whom the Requisitioned Capacity was to be procured, rather the clear issue in that appeal was the quantum of power to be procured by the contesting Respondents. On this aspect, the Hon'ble Supreme Court was categorical and clear, i.e. the entre Requisitioned Capacity was to be procured. Since the generators present before the Supreme Court in that appeal were L-1 to L-5, who amongst them had offered the entire Requisitioned Capacity of 1000MW +/- 10%, the Hon'ble Supreme Court held accordingly that the LOIs should be issued to and PPAs signed with, such generators. As the procurement of power of total quantity of 906 MW, under the RFP, as per Clause 3.5 of the RFP are categorically mentioned in the judgement of the Hon'ble Supreme Court itself. We are unable to give any different interpretation except that the Respondent No. 2 is to procure 906 MW of power as per the RFP and declare the successful bidders as per 3.5 of the RFP. The Hon'ble Supreme Court was fully (Downloaded on 20/09/2021 at 10:38:03 PM) (74 of 83) [CW-14815/2020] conscious of the provisions of the RFP and accordingly had mentioned the same in its Order dated 25th April, 2018.
69. This conclusion is further fortified by the subsequent interim order dated 28th September, 2020 passed by the Supreme Court in I.A. No. 83693 of 2020, in Civil Appeal 2721/2020, which categorically reiterates that the issue in this second round of litigation Civil Appeal is merely of tariff, and not of quantum of power. Therefore, the issue of total quantum of power to be procured is no longer an open issue and has been concluded and reiterated by the Hon'ble Supreme Court as being 906 MW, i.e. the Requisitioned Capacity. The relevant extracts from the said Order of the Hon'ble Supreme Court are as follows :
"3. In that background the respondent No.1 while seeking benefit of the direction issued by the ATE during the pendency of the appeal has filed the instant application praying to direct the appellant to start procuring electricity of 100 MW at the duly approved and accepted tariff of L-3 (respondent No.11 herein) immediately. The appellant has filed its reply in an attempt to oppose the direction sought therein.
4. Insofar as the rival contentions raised in the appeal, it is a matter to be considered while hearing the appeal. However, the position to be taken note at this point is the fact that the order dated 25.04.2018, 20.09.2018 and the order dated 19.11.2018 passed by this Court enure to the benefit of the respondent No.1 herein; inasmuch as the PPA between the parties is concerned. That apart the issue for consideration is also the adoption of tariff for supply of electricity under the PPA. The respondent No.1 herein undisputedly was L-5 in the (Downloaded on 20/09/2021 at 10:38:03 PM) (75 of 83) [CW-14815/2020] tender process. The cumulative capacity offered is 906 MW and the Levelized Tariff is Rs/Kwh 5.300. The average cumulative tariff is Rs/Kwh 4.890. The respondent No.1 though has made such offer and is seeking to justify the same, is presently offering to supply power under the PPA at the tariff at which electricity is being purchased from L-1 to L-3 which ranges between Rs/Kwh 4.517 to 4.738.
5. The appellant through the reply filed to the application, apart from contending that the respondent No.1 is not entitled to the interim direction as sought, has also contended that the prevalent price in the market is much less than Rs.3 per unit and the tariff as offered by respondent No. 1 at Rs.4.93 per unit is not sustainable. It is further indicated that at this point the appellant has executed PPA in favour of other generating companies to procure power on short term basis during the period 01.08.2020 to 31.03.2021 after competitive bidding process and the power under such PPA dated 13.08.2020 is being supplied at Rs.2.88 per unit.
6. In the above backdrop, the consideration required at this juncture is only with regard to the appropriate tariff at which the respondent No.1 should be permitted to supply the power to the appellant as an interim arrangement in the interest of both the parties.
7. The respondent No.1, as noted had taken part in the tender process; was placed at L-5 and the power generated by them would have been procured but for the dispute relating to tariff. Hence, the power in any event, can be utilized by the appellant as the same is an essential requirement. The issues for consideration in the appeal are with regard to the tariff and power of the Commission to fix a tariff which is different from the tariff submitted for approval and in the event of the appellant failing in the appeal (Downloaded on 20/09/2021 at 10:38:03 PM) (76 of 83) [CW-14815/2020] the tariff offered by the respondent No.1 will have to be adopted and payment be made accordingly. While stating so, what is to be kept in perspective is also that the appellant is presently securing supply of power at a much lower tariff than what is offered by the respondent No.1 herein. Undisputedly, the appellant is securing the power generated by Manikaran Power Limited at Rs.2.88 per unit. At this juncture the balance of convenience is in favour of respondent No.1. Public interest demands that by way of an interim arrangement the Respondent No. 1 be permitted to supply the electricity at the tariff of Rs.2.88 per unit subject to result of the appeal. In such event the interest of both the parties would be sub-served. The respondent No.1 if entitled to any higher tariff, the same would be available to them at the point of disposal of the appeal and the electricity generated by them would in the meanwhile be appropriately utilized and the interest of the consumers of power would also stand protected.
8. Therefore, it is directed that the appellant shall revive the Power Purchase Agreement dated 04.02.2019 and purchase the electricity to be supplied by the respondent No.1 during the currency of this interim order, as per their interim prayer. But the appellant shall pay the tariff for such supply at Rs.2.88 per unit. The tariff so fixed in the interim shall remain subject to result of the appeal."
70. Since L3 (Respondent No. 8, herein), L4 (Respondent No. 9, herein) and L6 (Respondent No. 10, herein) are not in a position to supply power, they cannot be termed as successful bidders as per Clause 3.5 of the RFP. Resultantly as per Clause 3.5 the Respondent No. 2 has to go to the next qualified bidder to the extent of the quantity offered and the (Downloaded on 20/09/2021 at 10:38:03 PM) (77 of 83) [CW-14815/2020] levelized tariff which means that the bid of the Petitioner being the L7 bidder to the extent of 200 MW of power has to be accepted by Respondent No. 2. This L7 bid being qualified bid, it is responsive and valid. To achieve procurement of 906 MW, the same being the next lowest financial bid, their entitlement cannot be ignored. This Court cannot arrive at any other finding except the same which is based on the interpretation of the judgement dated 25th April, 2018 of the Hon'ble Supreme Court read with Clause 3.5 of the RFP which has to be followed as it is statutory in nature.
71. We have heard all the parties at considerable length. We are inclined to exercise the extra ordinary writ jurisdiction conferred upon this Court under Article 226 of the Constitution of India. As noted from the submissions and documents identified above, we find that the Respondent No. 1 Government of Rajasthan had played a pervasive and omnipresent role in the executive decision making by the contesting Respondent utilities/DISCOMs. So far as the issue relating to alternate remedy and challenge to Rule 69(2)(b) of the Rajasthan Transparency in Public Procurement Rules, 2013 are concerned, we find that that the entitlement of the Petitioner can be decided without referring to the same and since the Learned Advocate General has relied upon the Letter dated 11th September, 2013 to state that the said rules were not applied to the present RFP dated 28 th May, 2012, the same requires no further consideration. Hence, despite prima facie merit, we are leaving this issue open for decision in any other appropriate case.
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72. So far as the argument raised by the Learned Advocate General regarding public interest and consumer interest is concerned, the APTEL vide its Order dated 3 rd February, 2020 has clearly held as under:
11.1 "We have examined the submissions made by all the parties with respect to the issue of consumer interest, for rejection of tariff of the Appellant. There is no denying that protection of consumer interest is an important factor which needs to be taken into consideration while evaluating the bid under a bidding process, however, the same cannot be the sole-criteria for rejection of a bid under a bidding process." 11.2 The issue of consumer interest was also raised before this Tribunal in the previous round of litigation between the parties, wherein this Tribunal, vide its judgment dated 02.02.2018, held as follows:
"16.8 The Government of India has framed guidelines under Section 63 of the Act to comply with the principles specified in Section 61 of the Act. The Government of India guidelines contain the mandate to safeguard consumer interest as well as to encourage competition, efficiency, economical use of the resources. The stated objectives of the Government of India guidelines are to strike a balance between transparency, fairness, consumer interest and viability. ...............................
17.3 The Respondents have primarily relied upon the phrase "consumer's interest" and have stated that after conclusion of the bidding process, the EAC recommended to procure only 600 MW instead of 1000 MW and procurement of excess power would be burden on consumers. This contention of the Respondents lacks logic & rationale and hence, not tenable. The (Downloaded on 20/09/2021 at 10:38:03 PM) (79 of 83) [CW-14815/2020] consumers' interest is a broad term and among others, involves reliable, quality and un-interrupted power on long term basis besides being competitive. The State Commission has rightly noted in its order dated 23.03.2011 while approving the process of initiation of competitive bidding while approving RFP, draft PPA, documents and quantum of power to be procured on long term basis. The said order of the State Commission categorically noted the consumers' interest and the guidelines of the Central Government under Section 63 of the Electricity Act, 2003 envisage the interest of all stake holders including consumer interest. Hence, no other section or regulation is having any overriding power on the Section 63 which is self-
contained and amply elaborated for the procurement of power by the discom through transparent competitive bidding which, in turn, safeguards the interest of all stake holders including consumers' interest."
11.3 Therefore, it is quite clear that the guidelines of the Central Government extensively cover the aspect of consumer interest. Even the Respondent No. 2 in its written submissions has relied upon the preamble of the aforesaid guidelines, as well as the judgment of the Hon'ble Supreme Court in All India Power Engineers Federation vs Sasan Power Limited, reported in (2017) 1 SCC 487, to focus upon the aspect of consumer interest. However, as already decided by us in the previous issue, the bid of the Appellant was evaluated on 17.04.2013 and 22.04.2013, as evidenced from the Minutes of Meeting of the BEC, and thereafter, the BEC vide its certificate dated 04.06.2013 has confirmed that the bidding process was in conformity with the Central (Downloaded on 20/09/2021 at 10:38:03 PM) (80 of 83) [CW-14815/2020] Government bidding guidelines, which covers the aspect of Consumer interest. Therefore, we find that the bid of the Appellant has also been considered by BEC with respect to Consumer's interest. Moreover, the above judgment is not at all relevant to the facts and circumstances of the present case."
11.4 "Further, the argument by the Respondent Discoms with respect to the consumer interest, was also raised by them before the Hon'ble Supreme Court in their Civil Appeal No 3481/ 3482 of 2018. In this regard, reference is made to the following ground raised by the Respondent Nos. 3 to 5 in their Civil Appeal:
"D. FOR THAT the Appellate Tribunal has failed to appreciate that the purpose for approval of the PPA by the State Commission is that before vested rights get created and the PPA becomes valid and binding. the State Commission is required to consider whether the power is required, whether there is demand in the State, whether burden is to be placed on the consumers etc. Only upon the satisfaction of the State Commission to such factors as considered necessary is the approval under Section 86(1)(b) granted and thereafter the PPA becomes binding and enforceable contract. The Appellate Tribunal has itself in previous decisions held that without approval of the PPA under Section 86(1)(b), the PPA does not become valid and binding."
The Hon'ble Supreme Court, thereafter, passed its order dated 25.04.2018 and held that the Appellant is entitled to supply power to the Respondent Discoms, and all the LOIs were also modified. This clearly shows that even the Hon'ble Supreme Court had taken into consideration the interest of consumers, and consequently passed the aforesaid order. Hence, we are of the view that the Respondents are precluded from raising the same argument in the present Appeal, when the same stands considered by the Hon'ble Supreme Court in passing the judgment/order. (Downloaded on 20/09/2021 at 10:38:03 PM)
(81 of 83) [CW-14815/2020]
Accordingly, this issue is decided against the
Respondents."
73. Accordingly, when a statutory body exercising expert jurisdiction has already held the same readwith the previous order of the APTEL which Order stands merged with the Order of the Hon'ble Supreme Court dated 25 th April, 2018, there is no question of we revisiting the same in any manner whatsoever. The same has also to be seen in the light of the fact that under the RFP the Respondent No. 2 has already declared L1 and L2 as successful bidders and are procuring power as per the quantity and levelized tariff offered by L1 and L2 bidders. Accordingly, it cannot be said in any manner whatsoever that the public interest is being met by accepting the bids of L1 and L2 and not by accepting the other bidders. The same would lead to a completely arbitrary and discriminatory stand of the Respondent No. 2 which the Respondent No. 2 being an instrumentality of State cannot be allowed to take.
74. Accordingly, the present writ petition is allowed to the extent of following directions issued to Respondent Nos.1 to 5:-
(i) In terms of the order dated 25.04.2018 issued by the Hon'ble Supreme Court of India in Civil Appeal Nos.2502-2503 of 2018, respondent Nos.1 to 5 are bound to purchase a total of 906 MW electricity from the successful bidders. Consequently, the present petitioner and the PTC India Ltd. (respondent No.7) are (Downloaded on 20/09/2021 at 10:38:03 PM) (82 of 83) [CW-14815/2020] directed to supply 200 MW electricity power to the respondents (within the limit of 906 MW, as directed).
Accordingly, the petitioner and the respondent No.7 may file an appropriate application before the respondent Nos.1 to 5 within two weeks from today complying with the necessary requisite conditions including bank guarantee etc., as required, in terms of the RFP.
(ii) Respondent Nos. 1 to 5 shall within two weeks from the date of receipt of the application, as directed under direction (i), issue LoI in respect of bid filed through Respondent 7 - PTC India Ltd. for supplying 200 MW power from the power generating station of the Petitioner at levelized tariff of 5.517 Rs./Kwh, being in terms of their bid qualified by the Bid Evaluation Committee and ranked L7, so as to meet the requirement of procuring 906 MW of power found sacrosanct vide Order dated 25th April, 2018 passed by the Hon'ble Supreme Court, followed by further Order dated 3rd February, 2020 of APTEL;
(iii) In consequence thereof, the Respondent Nos.1 to 5 shall immediately within two weeks thereafter execute the Power Purchase Agreement (PPA) with Respondent 7 PTC India Ltd. for procuring 200 MW power from the power generating station of the Petitioner in accordance with the said qualified bid ranked L7, and then to start procuring power in accordance with law; (Downloaded on 20/09/2021 at 10:38:03 PM)
(83 of 83) [CW-14815/2020]
(iv) While the tariff to be specified in the LoI and in the PPA above shall be the tariff specified in the original bid ranked L7 as aforesaid, without any changes and/or negotiations or qualifications, however, as an interim measure, on provisional basis, the tariff to be actually paid by the procurer Respondents shall be the interim tariff i.e. Rs.2.88 per unit, specified by the Hon'ble Supreme Court in its interim order dated 28th September, 2020 in I.A. No. 83693 of 2020 in pending Civil Appeal 2721/2020. The final adoption of tariff to be paid to the Respondent 7 under the PPA shall be subject to the final outcome of the said Civil Appeal 2721/2020 pending in the Hon'ble Supreme Court.
(v) No order as to costs.
(SATISH KUMAR SHARMA),J (INDRAJIT MAHANTY),CJ
Kamlesh Kumar/
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