Rajasthan High Court - Jaipur
Athena Chhattisgarh Power Ltd Anr vs State (Power Department)Ors on 7 February, 2014
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER 1.SB Civil Writ Petition No.18699/2013 SKS Power Generation (Chhattisgarh) Limited versus State of Rajasthan & ors 2.SB Civil Writ Petition No. 19437/2013 Athena Chhattisgarh Power Limited & anr versus State of Rajasthan & ors Date of Order : 7th February, 2014 PRESENT HON'BLE MR. JUSTICE MN BHANDARI Mr Parag P Tripathi, Sr Adv with Mr Hemant Sahai Ms Shruti Verma Mr Kunal Bhari Mr RN Mathur, Sr Adv with Mr Prateek Kasliwal Ms Asha Sharma and Atul Shankar Mathur - for petitioner-SKS Power Generation in CW 18699/2013 Mr S Guru Krishna Kumar, Sr Adv with Mr Pankaj Kumar Singh Mr Angad Mirdha - for petitioner - Athena Chhattisgarh Power Ltd in CW 19437/2013 Mr JM Saxena, Additional Advocate General with Mr Dharmendra Pareek Ms Saumya Rastogi Mr Pradeep Kalwania, Addl GC for respondent -State Mr Ravi Chirania for respondent - Maruti Clean Coal & Power Limited Mr Virendra Lodha, Sr Adv with Mr Nitish Bagri - for respondent - Rajasthan Rajya Vidyut Prasaran Nigam Ltd Mr Ravi Kishore with Mr Ashish Sharma for respondent - PTC India Limited Mr Meet Malhotra, Sr Advocate with Mr Mahendra Shandilya Mr HS Chandoke Ms Gitika Panwar Ms Charu Rawat for respondent DB Power (Chhattisgarh) Ltd Mr Akhil Sibal Mr SS Hasan Mr Deepak Khurana for respondent - Lanco Power Ltd., Baband BY THE COURT:
Since on same set of facts, similar relief has been sought, both the writ petitions have been heard together and decided by this common order.
By these two writ petitions, challenge is made to the Letters of of Intent (for short 'LOI') issued by respondent No.2 - Rajasthan Rajya Vidyut Prasaran Nigam Limited (for short 'RRVPNL') in favour of respondents PTC India Limited for DB Power (Chhattisgarh) Limited, Maruti Clean Coal & Power Limted and Lanco Power Limited Baband. A direction is also sought on the respondent No.2-RRVPNL, the State of Rajasthan and the Rajasthan Electricity Regulatory Commission (RERC) to strictly comply with the provisions of the Electricity Act, 2003 (for short 'the Act of 2003'), Request for Proposal (for short 'RFP') and the Guidelines for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees, 2005 (for short 'Guidelines of 2005') and, accordingly, award contract to the petitioners in accordance with the Request for Proposal for the quantum of power offered by them.
Brief facts of the cases -
The respondent No.2-RRVPNL issued RFP for procurement of power for long term by transparent bidding procedure. The determination of tariff based on competitive process is to be as per the Bidding Guidelines of 2005 issued by the Government of India for bidding process. The respondent No.2-RRVPNL was made 'authorised representative' on behalf of the Jaipur Vidyut Vitran Nigam Limited (JVVNL), Ajmer Vidyut Vitran Nigam Limited (AVVNL) and Jodhpur Vidyut Vitran Nigam Limited (JDVVNL), called as procurers. It was for procurement of 1000 ( + 10%) MW of power at the delivery point for a period of 25 years from the scheduled delivery date. The bidders were called to submit their non-financial as well as financial bids simultaneously in a single stage bidding process. The bid process contains two-stage process featuring separate Request for Qualification (RFQ) and Request for Proposal (RFP) though procurer was given option to adopt single stage tender process for medium term procurement combining RFQ and RFP process.
Number of bidders participated in the transparent bidding process by quoting their tariff as well as quantum of power. The transparent bidding process is to be as per the RFP and the Bidding Guidelines of 2005 issued by the Government of India, Ministry of Power.
The respondent No.2-RRVPNL, after receipt of the bids from different bidders, opened it and declared the list of successful bidders and issued LOI in favour of three bidders to which petitioners are aggrieved.
Facts and grounds raised by the petitioners -
It is stated that Part-VII of the Electricity Act of 2003 provides for tariff. Section 61 of the Act of 2003 speaks about Tariff Regulations, whereas, sections 62 and 64 of the Act of 2003 provide for determination of tariff and procedure for tariff order. Section 63 of the Act of 2003 is an exception to sections 62 and 64 of the Act of 2003 and provides for tariff by transparent bidding process in accordance with the guidelines issued by the Central Government. The Government of India issued Bidding Guidelines, 2005 which are detailed and exhaustive in nature. The determination of tariff by transparent process of bidding under section 63 of the Act of 2003 has to be in accordance to Bidding Guidelines of 2005.
The respondent No.2-RRVPNL issued request for proposal (RFP) by setting out terms and conditions in it. The petitioners quoted their bids along with the quantum of power to be supplied. The respondent No.2 issued LOI in favour of three bidders in violation of section 63 of the Act of 2003 and the Bidding Guidelines of 2005 apart from the RFP. The Letter of intents were issued after private negotiations with the bidders though not permissible under the Bidding Guidelines of 2005 which are statutory in nature and even in violation of various clauses of the RFP.
As per clause 3.5.3 of the RFP, the lowest levelised bid is to be declared successful for the quantum of power offered. As per clause 3.5.4, selection process is to be repeated for all the remaining financial bids of qualified bidders until the entire requisitioned capacity is met. As per clause 3.5.6 of the RFP, entire selection process gets completed once the requisitioned capacity has been achieved through the summation of the quantum offered by the successful bidder/s. Clause 3.5.9 of the RFP restricts negotiation on the quoted tariff between the authorised representative/ procurer and the bidder/s during process of evaluation. Clause 3.5.12 of the RFP gives authority to the procurer/ authorised representative in its own discretion to reject all the bids of quoted tariff, if not aligned to the prevailing market prices.
To satisfy the procurement of 1000 MW power from and amongst lowest bidders cumulatively, first five lowest successful bidders were to be called and should have been given letter of intent to meet the requisitioned 1000 MW power. The respondent No.2-RRVPNL, in a clandestine and mala fide manner, enhanced the quantum of power than offered by the bidder stood as L-1, L-2 and L-3.It deprived the bidder who stood as L-4 and L-5.The aforesaid is in violation clauses 3.5.3 to 3.5.6 of RFP apart from Guidelines of 2005.
The authorised representative or the procurer is under an obligation to follow the RFP and Bidding Guidelines of 2005 unless deviation is allowed by the process given under the Bidding Guidelines of 2005. The respondents deviated from the RFP and Bidding Guidelines of 2005 without seeking permission from Commission. The modification/ amendment in the clauses can be made prior to submission of bid and not subsequent thereto and, that too, by following the procedure. The respondent No.2-RRVPNL has violated clause 5.5 of the Bidding Guidelines of 2005 for that. The aforesaid clause provide that bidder can seek deviation and if the procurer finds it to be reasonable then approval of the appropriate Commission can be sought before agreeing to deviation. The clarification/ revised bidding document is then to be distributed to all who had requested for RFQ containing therein deviation and clarification. Wherever revised bidding documents are issued, bidder may be given at least two months time for submission of the bid. In the case in hand, deviation was made without adhering to the procedure referred to above.
Clauses 2.3.1 and 2.3.2 of the RFP also contain similar provision as referred to above. In view of arbitrary act of the respondent No.2-RRVPNL, the petitioners have been affected adversely thus they were left with no option but to challenge the letters of intent by maintaining writ petitions. It is in view of the fact that section 63 of the Electricity Act, 2003 does not give power to the appropriate Commission to rectify the error and illegality and pass favourable order qua the petitioners.
The RFP does not contain arbitration clause for resolution of their dispute, rather, respondent No.2-RRVPNL has not provided Arbitration forum in case of dispute. In view of above, the only remedy available to the petitioners is of writ jurisdiction. It is not otherwise barred even if alternative remedy is available, more so, when the remedy is not efficacious.
It is further stated that six principles have been laid to ignore the plea of alternative remedy. If any of the principles is satisfied out of 6, a writ is maintainable even if alternative remedy exist to the petitioner. Learned counsel for petitioners thus elaborately discussed the issue even in reference to the alternative remedy, which is again summarised as under -
(i) Existence of arbitration clause in the Bidding Guidelines of 2005 It is stated by learned counsel for petitioners that Bidding Guidelines of 2005 qua arbitration has not been incorporated in RFP thus creator of the document i.e. RFP cannot refer the Bidding Guidelines while it did not incorporate all the clauses of the Guidelines while issuing RFP. The Bidding Guidelines of 2005, as modified from time to time, needs adoption of mechanism of arbitration. The respondent No.2 -RRVPNL has not provided forum for arbitration thus arbitration is ruled out by the respondents at their own and, otherwise, as per the amended Bidding Guidelines, arbitration can be on a dispute related to tariff only, whereas, in the instant case, the dispute is in regard to change in the quantum of power to be supplied.
It is lastly submitted that if one is granted letter of intent with additional quantum, then it cannot be said to be a tariff related dispute. A person/ company/ firm cannot be asked to go for arbitration against procurer and generating company or even in favour of those in whose favour letter of intent has been issued. Thus, question of arbitration comes in picture when there is an agreement between the parties.
(ii) Authority of the appropriate Commission under section 63 of the Act of 2003 -
Section 63 of the Act of 2003 does not provide a remedy against issuance of letter of intent and,relief to the petitioner. The statutory scheme cannot otherwise oust the constitutional scheme of Article 226 of the Constitution of India. A prerogative writ can be issued even if alternative remedy exist. It can be on following principles -
a) jurisdictional error
b) violation of principles of natural justice
c) resultant undue harassment, and
d) absence of dispute on facts raising pure question of law In the instant case, all the four principles have been met thus even if alternative remedy exist, writ jurisdiction is not barred.
The respondents have committed jurisdictional error and even violated the principles of natural justice while issuing letters of intent in violation of the RFP and if the petitioners are asked to invoke jurisdiction of the appropriate Commission then it would result in undue harassment looking to the hierarchy of appeals given therein. The Commission cannot determine the issue raised and relief prayed.
The writ does not involve a dispute on facts but is based on question of law.
(iii) A remedy under section 86(1)(f) of the Act of 2003 is not available to the petitioners -
It is stated that remedy under section 86(1)(f) of the Act of 2003 is available to a dispute between the licensee and the generating company which is not the case in hand. The dispute is not between the licensee and the generating company out of an agreement. The judgment of the Hon'ble Apex Court in the case of Gujarat Urja Vikas Nigam Limited versus Essar Power Limited [(2008) 4 SCC 755] is on different facts. The dispute involved therein was as to whether Arbitrator should be appointed under section 11 of the Arbitration and conciliation Act of 1996 or as per section 86 of the Electricity Act, 2003. In the aforesaid case, section 86 was applicable and, taking note of the conflict between two legislations, a direction was given to apply special Legislation. In the instant case, when section 86 is not applicable, the judgment in the case aforesaid has no application. The Following judgment of the Hon'ble Apex Court in the case of Union of India versus Tantia Construction Pvt Ltd [(2011) 5 SCC 69] has been relied, wherein, it is held that remedy of arbitration shall not come in the way of writ jurisdiction.
(iv) Facts on mala fide and arbitrariness -
It is submitted that while LOI were issued in favour of 3 companies on 24.9.2013 and 27.9.2013, a letter was sent to the petitioners requesting them to keep their bid valid. It was nothing but an effort and mis-deed of the respondent No.2-RRVPNL. When the LOI have already been issued in favour of three bidders then asking the petitioners to keep their bid valid has to be termed as mischief and mala fide on the part of the respondent No.2. This is more so when letter issued to respondent-PTC India Limited was for quantum of supply of 906 MW though it was through different traders/ bidders thus action of the respondent No.2 is even arbitrary and mala fide.
(v) On the point of locus in the case of CW-19437/2013 -Athena Chhattisgarh Power Limited -
The locus of the petitioner to maintain writ has been challenged in CW 19437/2013. The bid was given by the PTC India Limited who is having trading licensee. It was in persuance to an exclusive Power Purchase Agreement (PPA) between P.T.C and generating company. The trading licensee may have bid but as per clause 2.1.2.2(g) it is mandatory for PTC India Limited to provide PPA executed with the generating company i.e. petitioner. As per clause 2.1.2.2, PTC India Limited had submitted agreement as a part of bid document. As per the aforesaid, generating company has to keep quantum of power available as offered till the bid document is valid thus they get affected if there is violation of the RFP and the Bidding Guidelines of 2005. It is mainly affected due to deviation in the quantum, which deprived them from supply of power to the extent agreed between the parties. The petitioner is thus aggrieved person and can maintain writ petition. A reference of the judgment of Hon'ble Apex Court in the case of Jashbhai Motibhai Desai versus Roshan Kumar [(1976) 1 SCC 671] has been given.
The arguments of the opposite side -
Learned counsel for official as well as private respondents have raised preliminary objections regarding maintainability of the writ petitions. It is in reference to arbitration clause in Bidding Guidelines of 2005 apart from section 86 (1) (f) of the Electricity Act, 2003. The argument has also been made with reference to section 63 of the Act of 2003 to show that transparent bidding process has not yet attained finality, rather, it needs a seal of the appropriate Commission where the matter is pending.
It is submitted that issuance of LOI has been challenged by the petitioners with the further direction on RRVPNL and the RERC to strictly comply with the provisions of the Act of 2003, RFP and the Bidding Guidelines of 2005. Since a direction is sought even on the the RERC for compliance of the Act of 2003, RFP and the Bidding Guidelines of 2005 thus this court should not interfere in the LOI when Commission is seized of the matter as per section 63 of the Act of 2003.It will determine all the issues which includes the issue as to whether issuance of the letters of intent are after observing the process in accordance with the Bidding Guidelines of 2005. The petitioners can very well participate in the proceedings before the Commission and raise all the grounds. An application has already been moved to the Commission to implead petitioners as party. In view of above, writ petitions are pre-mature. There is no violation of the conditions of the Bidding Guidelines or the RFP as alleged by the petitioners.
Reply to the grounds raised by the petitioners -
The petitioners have challenged issuance of LOI alleged to be in violation of clauses 3.5.3 to 3.5.5. and 3.5.9 of the RFP. The allegations are regarding negotiation on quantum of power offered and on tariff. It is said to be a deviation of clause 5.1.6 of the Bidding Guidelines. It could not have been without prior approval of the RERC. The bidder did not enter in negotiation. It is the bidder who offered extra quantum of power and lower the tariff at their own and accepted by the respondent No.2-RRVPNL. It cannot be said to be a negotiation between the parties but was a unilateral act of the bidder.
The petitioners have failed to take note of clause 2.5 of the RFP where the authorised representative/ procurer is having right to accept the offer of the bidder for any quantum of power upto the quantum offered by it subject to minimum bid capacity and considering the balance requisitioned capacity. Clause 3.5.9 of the RFP only bars negotiation on quoted tariff during the process of evaluation and not for an offer of additional quantum of power . Clause 3.5.7 of the RFP provides selection of successful bidder with the lowest levelised tariff amongst the remaining bids. In view of above, negotiations are prohibited on quoted tariff and not for the quantum of power though no negotiation was made in the instant case.
It is submitted that when a specific bar is placed on quoted tariff then impliedly it is not for quantum of power. Nobody prevented the Central Government while making Bidding Guidelines, 2005 or the RFP issued by the respondent No.2-RRVPNL to impose bar even on quantum of power, if they were so intend.
The enhancement of quantum of power and lowering tariff, the total windfall would be around Rs.4007 crores in all for procurement of power for long term. It would be in the public interest because supply of power to the consumer depends on the price at which it is purchased. The action of the respondent No.2 is thus in the public interest.
The action of the respondent No.2-RRVPNL is to get power with the transparent bid process keeping in mind provision of the Rajasthan Transparency in Public Procurement Act, 2012. The deliberation in their meeting was nothing but an effort in public interest to get power at the lowest rates.It was considered by the bid evaluation committee of the respondent No.2.The action is in public interest and without mala fide thus should not be interfered by this court, more so when the act of the respondent No.2 is not such which is barred by the Bidding Guidelines of 2005 or the RFP.
Clause 3.5.4 of the RFP needs to be considered keeping in mind public interest and should not be a windfall for the bidder L-4 and 5 because tariff quoted by them is on higher side resulting burden of around Rs.4000 crores or more.
Clause 3.5.3 of the RFP is only to declare lowest levelised tariff bid for the quantum of power offered. The aforesaid clause does not cast bar to offer extra quantum of power though it may bar to reduse the quantum of power offered. In view of above, clause 3.5.3 of the RFP needs to be given proper interpretation. It is held by the Hon'ble Apex Court that if two views are possible then interpretation of the author of the document should be accepted, which, in the present case, is of the procurer or the authorised representative. The judgments further provide negotiation on price which is in the best interest of the consumer. In the instant case, procurer has a right to reject the bid if not alien to the market price. Reference to following judgments have been given on the aforesaid -
1.Bharat Sanchar Nigam Ltd & ors versus KEC International Ltd & ors [MAT No.710/2009 and CAN No.6840/2009, decided on 10.8.2009) [MANU/WB/0171/2009].
2.BSN Joshi versus Nair Coal Services Ltd & ors [(2006)11 SCC 548].
3.Navtar Parikh Industries versus Union of India [MANU/DE/0404/1995]
4.OST Electronics Limited versus Hartron & anr, CWP 1642/2009, decided by the Punjab & Haryana High Court.
Objection regarding maintainability of the writ petitions -
Learned counsel for respondents raised objection regarding maintainability of the writ petitions in reference to clause for arbitration in the Bidding Guidelines of 2005 and section 86(1)(f) of the Act of 2003. Without availing alternative remedies, petitioners have invoked extra ordinarily jurisdiction of this court under Article 226 of the Constitution of India. The Act of 2003 is a complete Code by itself, as such, petitioners should have first availed of the remedy as provided under section 86(1)(f) of the Act of 2003. It applies to the instant case as any dispute between generating company and the licensee can be resolved therein. Reference of the judgment in the case of Gujarat Urja Vikas Nigam Limited (supra) has been given where it was held that all disputes related to electricity should be brought under section 86(1)(f) of the Act of 2003 as it is under special legislation and is not affected by section 11 of the Arbitration and Conciliation Act, 1996.
It is also stated that the writ petitions are pre-mature. The issuance of LOI is not only after transparent bidding process but it is subject to approval of the commission under section 63 of the Act of 2003. The appropriate Commission would consider all the aspects in reference to the Bidding Guidelines of the Central Government. The approval to the tariff by transparent bidding process would be given by the Commission only if it is found to be in accordance with the Guidelines and not otherwise. The petitioners have alleged violation of RFP and the Bidding Guidelines of 2005 which would then be subject matter of decision by the Commission. At this stage, the writ petitions are pre-mature for challenge to the letters of intent which is presuming to be a concluded contract between the parties, whereas, agreements would be made only if process is found to be in accordance to bidding Guidelines by the Commission.
The petitioners have taken incorrect interpretation of section 63 of the Act of 2003 to show that they cannot appear before the Commission. If proper interpretation to section 63 is given, all who may be concerned for adherence of the Bidding Guidelines of 2005 issued by the Central Government can appear before the Commission.
The respondent No.2-RRVPNL has already made an application for impleadment of the L-4 and L-5 as party so that they may also be heard before passing of the order. The apprehension of the petitioners is thus without any basis and the respondents have no objection if this court gives specific directions to the Commission to hear and decide all the issues raised by the petitioners in reference to the RFP and the Bidding Guidelines of 2005 with a clarification that if petitioners are entitled to any relief then it can be granted by the Commission.
The submissions of learned counsel for petitioners that the remedy before the Commission is not efficacious as it cannot grant relief to the petitioners. This is in ignorance of the fact that when Commission is given power to adopt tariff if it is through transparent process of bidding in accordance with the Bidding Guidelines of 2005 then while adopting the tariff, it can pass necessary order in consonance and in accordance with the Bidding Guidelines. This is more so when the respondents herein have no objection for appropriate directions to the Commission for the ends of justice and to cover apprehension of the petitioners. Section 86 of the Act of 2003 provides for the power of the Commission. As per the aforesaid provision, Commission is having power to regulate electricity purchase and procurement process including price at which electricity is to be procured from generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply.
The provision of section 63 of the Act of 2003 has to be read with section 86(1)(b) of the Act of 2003 and not in isolation. The RERC (Commission) is a regulatory authority as per section 86 of the Act thus while exercising jurisdiction by it, all issues would be determined. The reference of Rajasthan Electricity Regulatory Commission (Transaction of Business) Regulations, 2005 has also been given to show mandate for issuance of notice to all affected persons or the persons considered to be appropriate for hearing. The Commission would definitely take note of the Regulations of 2005 also. The entire process is designed to get best tariff in the interest of the consumer thus appropriate Commission would hear and decide all the issues in that regard. Reference of following judgments has been given to support the argument.
1.Adani versus RERC (before the Central Electricity Regulatory Commission, New Delhi Petition No. 155/MP/2012 Date of Order 2.4.2013)
2.Bihar State Electricity Board (Bihar Electricity Regulatory Commission Case No.8/2011 Date of Order -1.2.2012 in the matter of approval and adoption of tariff for long term procurement of 1500 MW ( + 20%) base load power on long term basis under case-1 route of tariff based competitive bidding guidelines issued by Ministry of Power, Government of India).
3.Maharashtra State Electricity Distribution Company Ltd (Case No.53/2012 Date of Order 27.12.2012 by Maharashtra Electricity Regulatory Commission).
4.Uttar Pradesh Power Corporation Limited versus National Thermal Power Corporation Limited & ors, [(2009) 6 SCC 235] It is also submitted that when the Act of 2003 provide complete mechanism for redressal of the grievance, writ petition would not be maintainable. The statute itself provides in-built mechanism for redressal of the grievance and, in the instant case, the process is yet to be completed. The challenge to the action of the respondents is without finality. The writ petition can be maintained when a final order is passed and not otherwise. A reference of following judgments has been given to support the argument -
1-State of UP & anr versus Labh Chand [(1993)2 SCC 495] 2-Union of India versus Satyawati Tandon & ors [(2010 )8 SCC 110] It is also stated that so far as writ petition preferred by petitioner Athena Chhattisgarh Power Limited is concerned, it is not maintainable as the petitioner company was not a bidder. It cannot maintain a writ as no lis exist between them and the respondent No.2 -RRVPNL, to maintain writ petition.
The petitioners have even failed to implead procurer as a party respondent as they have impleaded only the authorised representative as party, whereas, outcome of the writ petition would affect the procurer thus writ petition should not be entertained in absence of the affected party. The writ petitions thus suffer from non-joinder of parties also.
I have considered rival submissions of learned counsel for the parties and scanned the matter carefully.
The parties have raised manifold arguments on merit as well as on the maintainability of the writ petitions in view of the alternative remedy of arbitration and even before the Commission under section 63 of the Act of 2003.
I am first dealing with the issue in reference to section 63 of the Act of 2003. It is keeping in mind that if this court comes to the conclusion that the process of bidding is mid-way and yet to be crystalised/ finalised after an order of the appropriate Commission under section 63 of the Act of 2003 followed by execution of agreement then whether this court should interfere in the letters of intent issued in favour of private respondents stood as L-1, L-2 and L-3.
Effect of section 63 of the Electricity Act, 2003 -
The facts, which are not disputed are that the respondent No.2-Rajasthan Rajya Vidyut Prasaran Nigam Limited (RRVPNL) is an authorised representative of the procurer and had issued Request for Proposal (RFP) setting out various terms and conditions therein. The parties submitted their bids for quantum of power to be supplied for a period of 25 years and, after evaluation, letters of intent were issued in favour of those who stood as L-1, L-2 and L-3.
The allegation of the petitioners is regarding violation and deviation of the Bidding Guidelines and RFP in bidding process. The main allegation is regarding violation of clauses 3.5.3 to 3.5.6. and 3.5.9 of the RFP. According to the petitioners, after finding lowest levelised tariff, the bidder with the lowest levelised tariff has to be declared successful bidder for the quantum of power offered by it. Clause 3.5.4 of the RFP provides for subsequent process and directs for repetition of process for all the remaining financial bids of qualified bidders until requisitioned capacity is met or until the time balance of the requisitioned capacity is less than the minimum bid capacity. Various clauses of the RFP have been referred by the parties thus it would be gainful to refer and quote those clauses -
2.3 Amendment of RFP 2.3.1 - The Authorized Representative, for any reason, whether at its own initiative or in response to clarifications requested by any Bidder may modify the RFP, including the timelines specified in Clause 2.8.2, by issuance of addendum / modification / errata and / or a revised document. Revisions or amendments in the Bidding Guidelines may cause the Authorized Representative to modify, amend or supplement this RFP, including the RFP Documents to be in conformance with the Bidding Guidelines. Such document shall be notified in writing through a letter or fax or e-mail to all the entities to which the RFP has been issued and shall be binding on them. Such documents shall also be made available on the same website, www.rajenergy.com and www.rvpn.co.in. The Authorized Representative shall not be responsible for any delay in receipt of the addendum / modification / errata and / or revised document and receipt of the same by the Bidders shall be presumed by the Procurer(s) upon taking all reasonable steps to notify the Bidders in accordance with the means mentioned in the preceding sentence. In order to provide reasonable time to the Bidders to take the modification into account in preparing their Bid, or for any other reasons, the Authorized Representative may, at its discretion, extend the Bid Deadline. Late receipt of any addendum / modification / errata and / or revised document will not relieve the Bidder from being bound by that modification or the Bid Deadline. All such amendments/modifications shall be issued at least forty-five (45) days prior to the Bid Deadline.
2.5 The Bidder should note that:
(c) The Procurer/ Authorized Representative reserves the right to accept the offer of the Bidder for any quantum of power up to the quantum offered by it, subject to the Minimum Bid Capacity, and considering the balance Requisitioned Capacity (after considering the quantum of power offered by Successful Bidder(s) in Clause 3.5.3).
(g) The Procurer/ Authorized Representative may, at its sole discretion, ask for additional information/ document and/ or seek clarifications from a Bidder after the Bid Deadline, inter alia, for the purposes of removal of inconsistencies or infirmities in its Bid. However, no change in the substance of the Quoted Tariff shall be sought or permitted by the Procurer/ Authorized Representative
3.5 STEP IV Successful Bidder(s) Selection 3.5.2 - The Levelized Tariff calculated as per Clause 3.4.8 for all Financial Bids of Qualified Bidders shall be ranked from the lowest to the highest.
3.5.3 - The Bidder with the lowest Levelised Tariff shall be declared as the Successful Bidder for the quantum of power (in MW) offered by such Bidder in its Financial Bid.
3.5.4 - The selection process of the Successful Bidder as mentioned above in Clause 3.5.3 shall be repeated for all the remaining Financial Bids of Qualified Bidders until the entire Requisitioned Capacity is met or until the time when the balance of the Requisitioned Capacity is less than the Minimum Bid Capacity.
3.5.6 The selection process shall stand completed once the Requisitioned Capacity has been achieved through the summation of the quantum offered by the Successful Bidders or when the balance of the Requisitioned Capacity is less than the Minimum Bid Capacity.
3.5.9 - There shall be no negotiation on the Quoted Tariff between the Authorized Representative and the Bidder(s) during the process of evaluation.
3.5.12 - The Authorized Representative, in its own discretion, has the right to reject all Bids if the Quoted Tariff are not aligned to the prevailing market prices.
The aforesaid clauses of the RFP have been referred by the respective parties apart from few clauses of the Bidding Guidelines of 2005 which have been amended on 30.3.2006, 18.8.2006, 27.9.2007, 27.3.2009 and 21.7.2010. Clauses 3, 5.5, 5.16, 5.17, 6.2, 6.3 and 6.4 of the Bidding Guidelines are also quoted hereunder for ready reference -
3. Preparation for inviting bids 3.1. To expedite the bid process, the following conditions shall be met by the procurer:
(i) The bid documentation shall be prepared in accordance with these guidelines and the approval of the appropriate Regulatory Commission shall be obtained unless the bid documents are as per the standard bid documents issued by the Central Government. In such cases, an intimation shall be sent by the procurer to the appropriate Regulatory Commission about initiation of the bidding process.
(ii) Approval of the Appropriate Commission shall be sought in event of the deviations from the bidding conditions contained in these guidelines, following the process described in para 5.16 of these guidelines.
(iii) Approval of the Appropriate Commission shall be sought prior to initiating the bidding process in respect of the following aspects:
(a) For the quantum of capacity / energy to be procured, in case the same is exceeding the projected additional demand forecast for next three years following the year of expected commencement of supply proposed to be procured. Such demand forecast shall be based on the latest available (at the time of issue of RFQ) Electric Power Survey published by Central Electricity Authority (Both for Case 1 and Case 2).
(b) For the transfer price of fuel, in case of fuel specific procurement enquiry, if such price has not been determined by government, the concerned government owned coal company, government approved mechanism or a fuel regulator (under Case 2).
3.2 (I) In order to ensure timely commencement of supply of electricity being procured and to convince the bidders about the irrevocable intention of the procurer, it is necessary that various project preparatory activities are completed in time. For long-term procurement for projects for which pre-identified sites are to be utilized (Case 2), the following project preparatory activities should be completed by the procurer, or authorized representative of the procurer, simultaneously with bid process adhering to the milestones as indicated below:
(i) Site identification and land acquisition: If land is required to be acquired for the power station, the notification under section 4 of the Land Acquisition Act, 1894 should have been issued before the publication of RFQ. The notification under section 6 of the Land Acquisition Act, 1894 should have been issued before the issue of RFP. If the provisions of section 17 of the Land Acquisition Act, 1894 regarding emergency have not been applied, the Award under the Land Acquisition Act should have been declared before the PPA becomes effective.
(ii) Environmental clearance for the power station: Rapid Environmental Impact Assessment (EIA) report should be available before the publication of RFQ. Requisite proposal for the environmental clearance should have been submitted before the concerned administrative authority responsible for according final approval in the Central/ State Govt., as the case may be, before the issue of RFP. Environmental clearance should have been obtained before PPA becomes effective.
(iii) Forest Clearance (if applicable) for the land for the power station: Requisite proposal for the forest clearance should have been submitted before the concerned administrative authority responsible for according final approval in the Central/ State Govt., as the case may be, before the issue of RFP.
(iv) Fuel Arrangements: If fuel linkage or captive coal mine(s) are to be provided, the same should be available before the publication of RFQ. In case, bidders are required to arrange fuel, the same should be clearly specified in the RFQ.
(v) Water linkage: It should be available before the publication of RFQ.
(vi) Requisite Hydrological, geological, meteorological and seismological data necessary for preparation of Detailed Project Report (DPR), where applicable: These should be available before the issue of RFP. The bidder shall be free to verify geological data through his own sources, as the geological risk would lie with the project developer.
The project site shall be transferred to the successful bidder at a price to be intimated at least 15 days before the due date for submission of RFP bids.
(II) In Case-1 procurement, to ensure serious participation in the bid process and timely completion of commencement of supply of power, the bidder, in case the supply is proposed from a station to be set-up, should be required to submit along with its bid, documents in support of having undertaken specific actions for project preparatory activities in respect of matters mentioned in (i) to (v) below.
i) Site identification and land acquisition: Requirement of land would be considered as indicated in the proposal filed with the competent authority for seeking environmental clearance. (I) To the extent land to be acquired under the Land Acquisition Act, 1894, the Bidder shall submit copy of notification issued for such land under Section 4 of the Land Acquisition Act, 1894. (II) For the part of land excluding that to be acquired under Land Acquisition Act 1894, the Bidder shall furnish documentary evidence in the form of certificate by concerned and competent revenue/ registration authority for the allotment/ lease (lease period more than the life of power plant)/ ownership/ vesting of at least one-third of the area of such land. These evidences shall be supported by a sworn affidavit from the developer listing the total land allotted/ in possession/ lease acquired for the power station. The affidavit shall certify that the documentary evidence provided by the bidder in relation to land is true and correct.
ii) Environmental clearance for the power station: The Bidder shall have submitted the requisite proposal, for the environmental clearance, to the concerned administrative authority responsible for according final approval in the central/state govt. as the case may be.
iii) Forest Clearance (if applicable) for the land for the power station: The Bidder shall have submitted the requisite proposal, for the forest clearance, to the concerned administrative authority responsible for according final approval in the central/state govt. as the case may be.
iv) Fuel Arrangements: (a) In the following cases fuel arrangements shall have to be made for the quantity of fuel required to generate power from the phase of the power station from which power is proposed to be supplied at Normative Availability for the term of the PPA.
- In case of domestic coal, the Bidder shall have made firm arrangements for fuel tie up either by way of coal block allocation or fuel linkage
- In case of domestic gas, the Bidder shall have made firm arrangements for fuel tie up by way of long term fuel supply agreement for the term & quantity as per Government of India gas allocation policy
b) Fuel arrangements in the following cases shall have to be made for the quantity of fuel required to generate power from the power station for the total installed capacity.
In case of imported coal, the Bidder shall have either acquired mines having proven reserves for at least 50% of the quantity of coal required OR shall have a fuel supply agreement for at least 50% of the quantity of coal required for a term of at least five (5) years or the term of the PPA, which ever is less.
In case of RLNG, the Bidder shall have made firm arrangements for fuel tie up by way of fuel supply agreement for at least 50% of the quantity of fuel required for a term of at least five (5) years or the term of the PPA, which ever is less.
Blending of Imported and Domestic coal may be used in which case, criteria for imported and domestic coal shall be met separately in the ratio of blending.
v) Water linkage: The Bidder shall have obtained in-principle approval from the concerned state irrigation department or any other relevant authority for the quantity of water required for the power station.
If the Bidder is a trading licensee, it shall have executed exclusive power purchase agreement(s) for the quantity of power offered in its Bid and shall provide a copy of the same as part of its Bid. In such a case, the Bidder shall ensure that the entity with whom it has executed the exclusive power purchase agreement for supply of power under the bid process has completed the project preparatory activities as mentioned in (i) to (v) above. Furthermore, the Bidder shall be responsible for procuring from the entity developing the power station and submitting in its Bid, all the documentary evidence to establish that the project preparatory activities as in (i) to (v) above have been completed. In case of supply being proposed from an existing generating station, the Bidder should submit evidence in the form of a declaration sent to RLDC/SLDC, as the case may be, in support of commercial operation of the generating station.
3.3 It is recommended that the procurer should obtain the transmission clearances necessary for receiving power at the delivery points prior to inviting bids. However this shall not be a binding condition for the bid process. Unless otherwise specified in the bid documents, it shall be the responsibility of the selected bidder to obtain transmission linkage for evacuation and inter-State transmission of power (where applicable).
3.4 In the case of projects under Case 2 from which more than one distribution licensees located in different States intend to procure power by carrying out bidding process through a SPV, the PPA and other required project agreements (such as escrow agreement, hypothecation agreement and other project specific agreements) may be entered into between the concerned parties prior to the last date of submission of the RFP bids with the proviso that these agreements shall be effective from the date of acquisition of the SPV by the successful bidder.
5.5 RFP shall be issued to all bidders who have qualified at the RFQ stage in a two-stage bidding process. In case the bidders seek any deviations and the procurer finds that the deviations are reasonable, the procurer shall obtain approval of the Appropriate Commission before agreeing to the deviations. The clarification/revised-bidding document shall be distributed to all who had bought the RFP document informing about the deviations and clarifications and an intimation shall also be sent to the Appropriate Commission. Final PPA shall also be displayed on the website of the procurer. Wherever revised bidding documents/amendments are issued, the procurer shall provide bidders at least sixty (60) days in case of two stage bidding process and at least forty-five (45) days in case of a single stage bidding process after issue of such documents for submission of bids. However, a lesser time may be given for submission of RFP bids after any such revision/amendments in the RFP documents, with the written consent of all the prequalified bidders who have bought the RFP.
Deviation from process defined in the guidelines 5.16 In case there is any deviation from these guidelines, the same shall be with the prior approval of the Appropriate Commission. The Appropriate Commission shall decide on the modifications to the bid documents within a reasonable time not exceeding 90 days.
Arbitration 5.17 Where any dispute arises claiming any change in or regarding determination of the tariff or any tariff related matters, or which partly or wholly could result in change in tariff, such dispute shall be adjudicated by the Appropriate Commission. All other disputes shall be resolved by arbitration under the Indian Arbitration and Conciliation Act, 1996.
6.2 After the conclusion of bid process, the Evaluation Committee constituted for evaluation of RFP bids shall provide appropriate certification on conformity of the bid process evaluation according to the provisions of the RFP document. The procurer shall provide a certificate on the conformity of the bid process to these guidelines.
6.3 For the purpose of transparency, the procurer shall make the bids public by indicating all the components of tariff quoted by all the bidders, after signing of the PPA or PPA becoming effective, whichever is later. While doing so, only the name of the successful bidder shall be made public and details of tariffs quoted by other bidders shall be made public anonymously. The procurer shall also make public the PPA signed in accordance with clause 6.1.
For above purpose, a notice will be published in at least two national newspapers and full details shall be posted on the website of the procurer for at least thirty days.
6.4 The signed PPA along with the certification certificates provided by the evaluation committee and by the procurer as provided in clause 6.2 shall be forwarded to the Appropriate Commission for adoption of tariffs in terms of Section 63 of the Act.
All the parties have relied on sections 61, 62, 63, 64 and 86 of the Act of 2003 thus provisions aforesaid are also quoted hereunder -
61. Tariff Regulations - The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of tariff, and in doing so, shall be guided by the following, namely:-
(a) the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companies and transmission licensees;
(b) the generation, transmission, distribution and supply of electricity are conducted on commercial principles;
(c) the factors which would encourage competition, efficiency, economical use of the resources, good performance and optimum investments;
(d) safeguarding of consumers' interest and at the same time, recovery of the cost of electricity in a reasonable manner;
(e) the principles rewarding efficiency in performance;
(f) multi year tariff principles;
(g) that the tariff progressively reflects the cost of supply of electricity and also, reduces and eliminates cross-subsidies within the period to be specified by the Appropriate Commission;
(h) the promotion of co-generation and generation of electricity from renewable sources of energy;
(i) the National Electricity Policy and tariff policy:
Provided that the terms and conditions for determination of tariff under the Electricity (Supply) Act, 1948, the Electricity Regulatory Commission Act, 1998 and the enactments specified in the Schedule as they stood immediately before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under this section, whichever is earlier.
62. Determination of Tariff. - (1) The Appropriate Commission shall determine the tariff in accordance with provisions of this Act for
(a) supply of electricity by a generating company to a distribution licensee:
Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating company and a licensee or between licensees, for a period not exceeding one year to ensure reasonable prices of electricity;
(b) transmission of electricity ;
(c) wheeling of electricity;
(d) retail sale of electricity.
Provided that in case of distribution of electricity in the same area by two or more distribution licensees, the Appropriate Commission may, for promoting competition among distribution licensees, fix only maximum ceiling of tariff for retail sale of electricity.
(2) The Appropriate Commission may require a licensee or a generating company to furnish separate details, as may be specified in respect of generation, transmission and distribution for determination of tariff.
(3) The Appropriate Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate according to the consumer's load factor, power factor, voltage, total consumption of electricity during any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required.
(4) No tariff or part of any tariff may ordinarily be amended more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified.
(5) The Commission may require a licensee or a generating company to comply with such procedures as may be specified for calculating the expected revenues from the tariff and charges which he or it is permitted to recover.
(6) If any licensee or a generating company recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate without prejudice to any other liability incurred by the licensee.
63. Determination of tariff by bidding process - Notwithstanding anything contained in section 62, the Appropriate Commission shall adopt the tariff if such tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government.
64. Procedure for tariff order.- (1) An application for determination of tariff under section 62 shall be made by a generating company or licensee in such manner and accompanied by such fee, as may be determined by regulations.
(2) Every applicant shall publish the application, in such abridged form and manner, as may be specified by the Appropriate Commission.
(3) The Appropriate Commission shall, within one hundred and twenty days from receipt of an application under sub-section (1) and after considering all suggestions and objections received from the public,-
(a) issue a tariff order accepting the application with such modifications or such conditions as may be specified in that order;
(b) reject the application for reasons to be recorded in writing if such application is not in accordance with the provisions of this Act and the rules and regulations made thereunder or the provisions of any other law for the time being in force:
Provided that an applicant shall be given a reasonable opportunity of being heard before rejecting his application.
(4) The Appropriate Commission shall, within seven days of making the order, send a copy of the order to the Appropriate Government, the Authority, and the concerned licensees and to the person concerned.
(5) Notwithstanding anything contained in Part X, the tariff for any inter-State supply, transmission or wheeling of electricity, as the case may be, involving the territories of two States may, upon application made to it by the parties intending to undertake such supply, transmission or wheeling, be determined under this section by the State Commission having jurisdiction in respect of the licensee who intends to distribute electricity and make payment therefor:
(6) A tariff order shall, unless amended or revoked, shall continue to be in force for such period as may be specified in the tariff order.
86. Functions of State Commission.- (1) The State Commission shall discharge the following functions, namely: -
(a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State:
Providing that where open access has been permitted to a category of consumers under section 42, the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers;
(b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State;
(c) facilitate intra-state transmission and wheeling of electricity;
(d) issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State;
(e) promote cogeneration and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify, for purchase of electricity from such sources, a percentage of the total consumption of electricity in the area of a distribution licence;
(f) adjudicate upon the disputes between the licensees, and generating companies and to refer any dispute for arbitration;
(g) levy fee for the purposes of this Act;
(h) specify State Grid Code consistent with the Grid Code specified under clause (h) of sub-section (1) of section 79;
(i) specify or enforce standards with respect to quality, continuity and reliability of service by licensees;
(j) fix the trading margin in the intra-State trading of electricity, if considered, necessary;
(k) discharge such other functions as may be assigned to it under this Act.
(2) The State Commission shall advise the State Government on all or any of the following matters, namely :-
(i) promotion of competition, efficiency and economy in activities of the electricity industry;
(ii) promotion of investment in electricity industry;
(iii) reorganization and restructuring of electricity industry in the State;
(iv) matters concerning generation, transmission , distribution and trading of electricity or any other matter referred to the State Commission by that Government.
(3) The State Commission shall ensure transparency while exercising its powers and discharging its functions.
(4) In discharge of its functions the State Commission shall be guided by the National Electricity Policy, National Electricity Plan and tariff policy published under section 3.
Section 61 of the Part VII of the Act of 2003 provides about tariff regulations. It gives basic guidelines to be taken into consideration by the appropriate Commission. Section 62 of the Act of 2003 provides for determination of tariff. Section 64 gives procedure for tariff order under section 62. Section 63 of the Act of 2003 is for determination of tariff by bidding process. It starts with non-obstinate clause and is an exception to section 62. The determination of tariff under the aforesaid provision is by and through transparent process of bidding in accordance with the Bidding Guidelines of the Central Government.
As per section 63 of the Act of 2003, the Central Government is to issue guidelines for transparent process of bidding which were then issued in the year 2005 and modified from time to time. The adoption of tariff under section 63 of the Act is subject to the compliance of the guidelines.
The respondent No.2-RRVPNL issued Request for Proposal (RFP) in reference to the Bidding Guidelines of the Central Government and called for competitive bid. After issuance of the RFP, respondent No.2 alleged to have deviated from it. It negotiated for the tariff and quantum of power affecting the rights of the bidder who remained successful and stood as L-4 and L-5 though objection has been taken regarding filing of the writ petition by Athena Chhattisgarh Power Limited CW 19437/2013 instead of the bidder stood as L-4.
The first issue is as to whether this court should interfere in the letters of intent issued by the respondent No.2-RRVPNL in favour of the bidders stood as L-1 to L-3 with a further direction as sought. For that purpose, prayer made by the petitioner SKS Power Generation (Chhattisgarh) Limited is quoted hereunder as it was one of the bidders and another writ petition has been filed not by the bidder but the generating company -
(a)Issue a writ of Mandamus or in the nature thereof, or any other Writ, Order or Direction quashing and setting aside the LOI issued in favour of DB Power Ltd. - PTC & LOI issued in favour of Lanco Power Ltd. Babandh by RVPNL;
(b)Issue a Writ of Mandamus or in the nature thereof or any other Writ, Order or Direction, directing RVPNL, State of Rajasthan, RERC to strictly comply with the provision of the Electricity Act, 2003, RFP and the Bidding Guidelines in an open and transparent manner in the matter of procurement of the 1000 MW (+10% (Requisitioned Capacity);
(c )Issue a Writ of Mandamus or in the nature thereof or any other Writ, Order or Direction, directing RVPNL to award the contract to the petitioner in accordance with the RFP for 1000 MW power;
A perusal of the prayers show a direction on the respondent No.2 RRVPNL and RERC to strictly comply with the provisions of the Act of 2003, RFP and Bidding Guidelines in an open and transparent manner. The directions are thus sought even on the RERC to follow the Guidelines and the RFP apart from the Act of 2003 though the first prayer is even to set aside letters of intent issued in favour of bidders stood as L-1 to L-3.
Learned counsel for the petitioners urged that section 63 of the Act does not allow their participation in the process and otherwise it cannot grant relief on finding violation of and deviation from the Bidding Guidelines of 2005 and RFP. In view of above, the petitioners should not be relegated to the jurisdiction of the Commission even if the Commission is authorised to determine the issue as to whether bidding was made in accordance with the Bidding Guidelines issued by the Central Government or not. This court alone can grant relief to the petitioners as the respondent No.2 has acted in violation of the RFP and the Bidding Guidelines.
Per contra, learned counsel for respondents have raised objection for interference in letters of intent by this court as it is not a final in view of provisions of section 63 of the Act of 2003 whereby the tariff can be determined only if it is approved by the appropriate Commission on finding adherence of the Bidding Guidelines issued by the Central Government.
In the aforesaid process, the Commission would obviously give its decision as to whether Bidding Guidelines have been followed or not and the respondents have no objection if the petitioners are heard therein followed by relief to them if case is made out. While exercising jurisdiction under section 63 of the Act of 2003, the Commission would be having jurisdiction to record its finding in reference to the Bidding Guidelines. Section 86 of the Act of 2003 give power to the Commission to regulate all related issues as mentioned therein.
In the case in hand,the bid process was initiated by the respondent No.2 under the Bidding Guidelines of the Central government and, for that purpose, RFP was issued. The interested bidders participated therein. After receipt of the bids, which includes a separate financial bid, it was sent to the Evaluation Committee and, finally, respondent No.2 issued letters of intent in favour of three bidders leaving others. It was from and amongst successful bidders.
The deviation from and violation of the Bidding Guidelines and the RFP has been alleged. The issue is as to whether the allegation of violation of Bidding Guidelines or deviation therefrom can be addressed by the Commission or not? The answer to the aforesaid is section 63 of the Act of 2003, where, issue aforesaid would definitely be considered by the Commission thus it gives answer to the question. It is in view of the fact that section 63 of the Act of 2003 provides for adoption of tariff by the Commission if it is in accordance with the Bidding Guidelines and not otherwise.
Further question is as to whether the Commission can hear the petitioners or affected parties while exercising its jurisdiction under section 63 of the Act Further question is as to whether it can pass an order in adherence to the Bidding Guidelines and grant relief to the affected parties?
An opportunity of hearing to the petitioners or affected parties by the Commission has not been opposed by learned counsel for the respondents but apprehension has been shown by the petitioners with an argument that even this court cannot issue direction for the aforesaid as is not provided under section 63 of the Act of 2003.
It has not been disputed that the Commission is having power to determine the issue as to whether transparent process of bidding is in accordance with the Bidding Guidelines or not. The proper determination of the aforesaid issue can be made when all the interested parties are heard. Section 63 of the Act does not cast a bar for it. The question as to whether bidding process was undertaken in accordance with the Bidding Guidelines of the Central Government or not, can be decided effectively when an opportunity of hearing is given to interested parties which would even achieve the principles of natural justice as well. It is more so when petitioners are alleging violation of the Bidding Guidelines of the Central Government and RFP.
Learned counsel for petitioners pray for making distinction between section 62 and 63 of the Act of 2003 as procedure exist under section 62 and 64 of the Act of 2003 and is not provided under section 63.
It is, no doubt, true that the procedure provided under section 62 and 64 is different than under section 63 of the Act but it does not mean a bar to give opportunity of hearing to those who are directly concerned and would be affected by the order of the Commission. The opportunity of hearing to the affected parties is to be taken inbuilt under section 63 of the Act. It is necessary to properly find out compliance of the Bidding Guidelines of 2005. The question aforesaid is answered accordingly.
The third question is that even if the petitioners and affected parties are heard and the Commission comes to the conclusion regarding violation of Bidding Guidelines then as to whether relief can be granted in favour of those affected by such violation?
The argument aforesaid has been raised by giving restricted interpretation to section 63 of the Act. To answer the question aforesaid, it is to be reiterated that tariff by transparent bidding process under section 63 of the Act does not attain finality unless it is adopted by the Commission followed by execution of the agreement. The Commission is given power to adopt the tariff if it is in accordance with the guidelines issued by the Central Government. The process aforesaid is yet to be completed. This court should not cause interference in the aforesaid process in between, that too, when it is inbuilt. The Commission has authority to adopt the tariff or it can even refuse to do so if it is not found in accordance with the Bidding Guidelines or to achieve the object of the Act and Guidelines. This is more so when regulatory Commission is an expert body as has been held by Hon'ble Apex Court in series of cases.
If the facts of the present cases are looked into, allegation of the petitioners is regarding violation and deviation from the Bidding Guidelines and RFP issued by the respondent No.2-RRVPNL. It is mainly on the ground that the quantum of power offered by L-1, L-2 and L-3 has been allowed to be enhanced affecting the rights of the bidders stood as L-4 and L-5. Further issue is regarding negotiation for tariff.
The argument aforesaid has been raised in reference to various clauses of the Bidding Guidelines and the RFP. The question is as to whether the issue aforesaid can be determined by the Commission or not. The bare reading of section 63 keeps no doubt as while the Commission would exercise its jurisdiction under section 63, all the issues as alleged/ raised by the petitioners would be looked into and have to be addressed by the Commission.
The fact now remains as to whether the Commission can pass appropriate order in reference to the Bidding Guidelines of 2005 issued by the Central Government on coming to the conclusion that it has been violated?
The issue aforesaid is based on apprehension only. The relief sought by the petitioners can be granted only if violation of and deviation from the Bidding Guidelines and the RFP is established. The Commission is yet to ponder upon and decide the issue as to whether transparent bidding process has been undertaken as per the Bidding Guidelines issued by the Central Government or not. While deciding the issue aforesaid, the Commission may come to the conclusion that there is no violation of or deviation from the Bidding Guidelines and the RFP or it may even come to the conclusion that there is violation of Bidding Guidelines and the RFP. The petitioner can claim relief at that stage only. If the finding is recorded holding the bidding process to be in adherence to the Bidding Guidelines and the RFP, question of any relief to the petitioner would not arise. The Commission may even decide that adoption of tariff is not in public interest.
The exercise of writ jurisdiction may not be an absolute bar even when there is alternative remedy but I find that in the case in hand, challenge to action of respondent No.2- RRVPNL is at the stage which cannot be said to be final but subject to adoption of tariff by the Commission which may not be even alternative remedy but an inbuilt process for determination of tariff. The process gets completed when it is approved by the Commission followed by execution of agreement which has not yet taken place. The issuance of the letters of intent is not final word for the aforesaid purpose.
If the Commission comes to the conclusion about violation of the Bidding Guidelines and the RFP then as to whether petitioners would be granted relief by the Commission or not? The question aforesaid is presently pre-mature. The Commission may refuse to adopt the tariff quoted in the bidding process.
In view of aforesaid discussion, it is not necessary to deal with other issues in reference to the remedy of arbitration. The issue as to whether there exist deviation or violation of the Bidding Guidelines and the RFP would be determined by the Commission.
In view of the above, writ petitions are disposed of with the following directions -
1-The petitioners have alleged violation and deviation from the RFP and the Bidding Guidelines of 2005, which may then be considered and decided by the Rajasthan Electricity Regulatory Commission (RERC) after providing an opportunity of hearing to the petitioners though objection regarding locus in respect of petitioner - Athena Chhattisgarh Power Limited has been raised but it is not of substantial nature at this stage as the issues would otherwise be determined by the Commission in reference to the petitioner- SKS Power Generation (Chhattisgarh) Limited. The respondents have agreed not to raise objection for hearing of the petitioners before the Commission.
2-The Commission would consider and decide the allegation of deviation and violation of the RFP and the Bidding Guidelines of 2005. While determining the issues, it would exercise power as given under the Act of 2003 and pass necessary order as deem fit in the facts and circumstances of the case.
3-The letters of intent (LOI) shall remain subject to final outcome of the order of the Commission.
4-The Commission would take a proper decision in the matter after considering all the aspects and while doing so, it will take care of the objects of the Bidding Guidelines of 2005 for determination of tariff.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J