Andhra Pradesh High Court - Amravati
Andhra Pradesh State Load Dispatch ... vs Central Electricity Regulatory ... on 21 September, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.1286 of 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India by the Andhra Pradesh State Load Dispatch Centre to issue Writ of certiorari and quash the petition No.342/MP/2019 pending before respondent No.1 filed by respondent No.2 against the petitioner for curtailment of generation of solar power while declaring the same as illegal, arbitrary, without jurisdiction and contrary to Section 86 (1) (f) and Section 33 (4) of Electricity Act.
The petitioner is the Andhra Pradesh State Load Despatch Centre (for short "APSLDC) constituted by the Government of Andhra Pradesh under Section 31 of the Electricity Act and discharging its responsibilities provided under Section 32 of the Electricity Act. APSLDC is responsible for ensuring integrated operations of the power system in the State of Andhra Pradesh and for optimum scheduling and dispatch of electricity within the State of Andhra Pradesh.
Respondent No.1 is the Central Electricity Regulatory Commission (for short "CERC") constituted under Section 76 of Electricity Act 2003 to discharge its functions assigned in Section 79 of the Electricity Act 2003 i.e. to regulate and determine tariff of inter-state transmission and adjudicate upon inter state disputes in accordance with Section 79(f) of the Act.
Respondent No.2 - "Prayatna developers" is a generating company, as defined in Section 2 (28) of the Electricity Act and engaged in the business of generation of solar energy. Respondent No.2 owns and operates a solar power project of 50 MW capacity at Gani in Kurnool, in the State of Andhra Pradesh. The entire energy MSM,J WP_1286_2020 2 from the Solar Project is being off taken by the Andhra Pradesh DISCOM's in terms of the Power Purchase Agreement with M/s.NTPC for further sale to APDISCOMs, in terms of the Power Seller Agreement dated 08.01.2016.
Respondent No.2 herein filed a petition No.342/MP/2019 before the CERC i.e. respondent No.1 herein alleging that there is arbitrary curtailment of their generation by APSLDC during January- 2019 to August 2019. On the same issue, various generating companies have filed writ petitions along with Interlocutory Applications before this Court and final judgment has been already passed by this Court. Similar issue is filed by a solar generator before APERC and it is pending disposal as on date.
Writ Petition Nos.9844, 9867, 9869, 9870, 9871, 9872, 9873, 9874, 9875, 9876, 9877, 9938, 10135, 10138, 10212, 10244, 10486, 10487, 11175, 11872, 12286 of 2019 are filed by Wind and Solar Generators. In these petitions various interlocutory applications were filed complaining alleged arbitrary curtailment of wind and solar generation by APSLDC i.e., petitioner, and for impleadment of SLDC/APTRANSCO as a respondent.
The petitioner is responsible to reduce the generation when frequency is tending to increase above statutory limit i.e. 50.05Hz. Therefore, petitioner requested respondent generators to reduce generation. The clause 4.3.8.1 of Andhra Pradesh Code of technical Interface authorises the petitioner to make such request and it is extracted hereunder.
"4.3.8.1 High Frequency Related Emergencies When the frequency is tending to increase above the statutory upper limit, SLDC shall request the Generators to reduce generation and request SRLDC to take necessary action at Regional level. While reducing generation, merit order despatch procedure shall be followed by SLDC. In order to implement the merit MSM,J WP_1286_2020 3 order despatch, the relevant cost data shall be furnished by all CDGUs on one- month ahead basis.
The instructions to reduce generation will be issued by SLDC by Telephone communication.
Failure of a Generator to follow the SLDC instructions in this context will constitute a violation of the CTI and will entail penalties. During periods of high frequency operation, the SLDC telephone instructions to Generators shall supersede other provisions of the CTI, and all Acts, Rules and Regulations of State and Central Governments. Adequate authority shall be delegated to the duty Engineers of SLDC to enable them to take spot decisions for on-line operation of the Grid. On demand by a generator the SLDC shall confirm its verbal instruction by written instruction after the operation is completed. SLDC is responsible for complying all Codes, Acts, etc and must justify its instructions in the light of Codes, Acts, etc or must be ready to justify any deviation in dealing with an unforseen emergency threatening the security of the Grid."
Among various writ petitions, the following Solar Power Generating Companies i.e. "M/s ACME Solar Holding Ltd, M/s AROHI Solar Private Ltd, M/s ACME Jaisalmer Solar Power Ltd, M/s Dhayanithy Solar Power Private Ltd, M/s Niranjan Solar Power Private Ltd and M/s Vishwatma Solar Power Private Ltd" filed W.P.No. 9871 of 2019, M/s Azure Power India Private Ltd and M/s Azure Power Infrastructure Private Ltd filed W.P.No.9875 of 2019. M/s Walwhan Renewable Energy Ltd (formerly M/s Welspun Renewable Energy Private Ltd) filed W.P.No.10486 of 2019, M/s Hindupur Solar Park Private Ltd. filed W.P.No.11872 of 2019. In W.P. No. 11872 of 2019 I.A. No. 3 is filed to direct the respondents therein i.e., APTRANSCO to discharge their statutory and contractual obligations and refrain from arbitrarily curtailing generation of Solar power within state of A.P. Some of the generators in above writ petitions have filed I.A.'s in their respective writ petitions and they have raised the issue of alleged non-compliance of clause 4.3.8.1 of ACTI (Andhra Pradesh Code of Technical Interface) in particular about written instructions.
MSM,J WP_1286_2020 4 The petitioner further contended that the factual position of PPAs in the State of Andhra Pradesh are in the range from 250KW to a total capacity of 7300 MW, most of which are not visible PPA/Plant wise from APSLDC control room. PPA's boundary is at 33KV level for considerable number of generators. APSLDC is carrying out direct operations of 132KV level and above. This Court has passed final order in these petitions on 24.09.2019. It is also submitted that Unscheduled Interchange mechanism is not implemented in full in APSLDC control area. Therefore, procedure in line with A.P.C.T.I. (Andhra Pradesh Code of Technical Interface) is being implemented for scheduling and not inconsistent with Indian Electricity Grid Code (for short "IEGC"). Energy sent out as per Joint meter reading is considered for billing instead of scheduled energy in case of ABT (Availability Based Tariff). Recently, APSLDC has started giving written instructions in respect of backing down of Wind and Solar generation.
Subsequent to the common order dated 24.09.2019 passed in the said writ petitions; writ appeals have been filed vide W.A.Nos.383, 393, 424, 433, 435, 441, 477 of 2019 and 6 of 2020 arraying APSLDC as respondent. The Division Bench of this Court issued notices to DISCOMs and APSLDC i.e., petitioner and posted the writ appeals for further hearing on 23.01.2020. Therefore propriety requires the CERC not to proceed with the issue. But, the CERC is proceeding with the enquiry in a petition filed by respondent No.2 vide petition No.342/MP/2019.
M/s. SBG clean tech project Company Private Limited filed a petition O.P.No.61 of 2019 and I.A.No.20 of 2019 before APERC in the matter of seeking direction(s) to the Respondents to implement the "MUST RUN" status accorded to the Petitioner's Solar Project in MSM,J WP_1286_2020 5 letter and spirit, refrain from illegally curtailing the solar energy generated therefrom, and compensate the Petitioner for the alleged unlawful and arbitrary curtailment of generation from the Petitioner's Solar Project.
In terms of provisions of Section 33 (4) of the Electricity Act, the State Commission has got jurisdiction to decide the disputes between the Generation Company and petitioner, whereas respondent No.2 is invoking jurisdiction of Central Electricity Regulatory Commission - respondent No.1 in terms of IEGC and respondent No.1 is proceeding with the enquiry in the petition filed by respondent No.2. Thus, respondent No.1 is exercising jurisdiction, which is not vested on it, thereby requested to grant relief as stated supra.
The Respondent No.2 filed a detailed counter affidavit admitting about the filing of petition before respondent No.1 in terms of Sections 32 and 33 of the Electricity Act. It is contended that as the issue is purely technical in nature, same needs to be addressed or adjudicated by the CERC only and not by any other authority. Thus, respondent No.2 filed a Petition No.342/MP/2019 on two grounds, i.e, firstly to instruct the Writ petitioner - APSLDC to stop issuing instructions to "Back down" generation of the Solar power and secondly raising the issue of Scheduling Jurisdiction of Writ petitioner for issuing arbitrary instructions for curtailment of the generation of solar power and interfering with the "Must Run" status of respondent No.2. It is further submitted that the writ petitioner herein approached this Court by filing the present Writ Petition merely subverting the dispensation of justice by way of 'forum shopping' and obtained an interim order of stay of all proceedings pending before respondent No.1 filed by respondent No.2.
MSM,J WP_1286_2020 6 In guise of the orders passed by this Court, writ petitioner has caused significant loss of generation and non-realization of full tariff by respondent No.2 herein. It is further submitted that, the arbitrary curtailment of generation of Solar Power by writ petitioner further had an adverse impact on the financial stability of respondent No.2 Company as substantial investments have been made in setting up its Solar Power Project and respondent No.2 Company is not able to realize the tariff payable to it.
It is further contended that the writ petitioner failed to comply with the clauses 5.2(u) and 6.5(11) of IEGC Regulations, 2010 which ensure that the mandate of "Must Run" status to the solar and wind power projects, thereby continuously issuing telephonic instructions to respondent No.2 herein to "back down" generation of its Solar Power, illegally interfered with the "Must Run status" and respondent No.2 who was empowered to invoke regulation 1.5(iv) of IEGC which states that any non-compliance of the provisions of IEGC by the writ petitioner may be reported before the Central Electricity Regulatory Commission and respondent No.2 herein rightly approached the CERC for the arbitrary interference by the writ petitioner.
It is further alleged that the writ petitioner had been issuing the backing down instructions without instructing the Central generating station and Inter-State generating station to operate on their technical minimum which is not in accordance with clause 6.3B of IEGC Regulations 2010 which provides for Technical Minimum Schedule for operation of Central generating station and Inter-State generating stations. Hence the writ petitioner is not competent to issue any telephonic instructions to respondent No.2 herein for curtailment of generation of solar power by it.
MSM,J WP_1286_2020 7 According to IEGC Regulation 6.4.2(b) read with Section 28(1) of the Electricity Act, 2003, and the Southern Region Load Dispatch Centre, (SRLDC) is the apex body which is responsible for scheduling of power from respondent No.2 project, however the writ petitioner continues to control the scheduling of the respondent No.2's plant without any jurisdiction and such acts of writ petitioner are contrary to the terms of the TEGC Regulations, 2010.
It is further contended that prior to installation of solar power plants, connectivity approval was issued by the APTRANSCO after carrying out load flow/system studies for analyzing all the possibilities and infrastructure available to evacuate the available power to the point of consumption even under worst conditions and the APTRANSCO was required to resolve all issues pertaining to transmission constraints prior to the commissioning of the solar power plants, thus now the transmission constraint cannot be a ground for curtailment of solar power by the petitioner herein, more particularly when the responsibility of development of transmission systems lies with the APTRANSCO.
It is further contended that known transmission constraints do not come under grid security, which is a scheduling issue, for which solar projects are to be treated as 'Must Run' and only those constraints which are encountered suddenly in real time operation of grid can come under operational grid security issues, hence, non- availability of the appropriate evacuation facility or transmission constraint cannot be a ground for initiating backing down of solar generators by the writ petitioner and even the Code of Technical Interface (CTI) does not make any provision for "Must Run Status" of solar plants, and to that extent it is inconsistent with the IEGC MSM,J WP_1286_2020 8 Regulations, in terms of Section 86(1)(h) of the Act, the writ petitioner APSLDC is mandated to carry out optimum and economic grid operations in accordance with the IEGC Regulations 2010. It is further alleged that the respondent No.2 Company installed Low Volt company, Low Voltage Ride-Through (LVRT) which has the capability to operate through periods of lower grid voltage thus, in view of the above clear mandate the writ petitioner is under no obligation to back down generation or to interfere with the "Must Run Status" on the apprehension of alleged grid security.
It is further contended that the writ petitioner illegally interfered with the "Must Run Status" of the Solar Power Project of respondent No.2 Company which is in violation of clauses 5.2(u) and 6.5(11) of IEGC Regulations, 2010 and without having scheduling jurisdiction over the same. It is further submitted that the writ petitioner arbitrarily issued backing down instructions to respondent No.2 Company telephonically and without any reasons in writing which is in violation of IEGC Regulations, 2010. As per the said IEGC Regulations, the backing down instructions shall be issued by SLDC only if the grid security or the safety of personnel/equipment is endangered whereas the backing down instructions were issued by writ petitioner with respect to routine system operations or alleged non-availability of appropriate evacuation facility, either of which is not a ground to issue such instructions.
The writ petitioner participated and contested the proceedings in Petition No.342/MP/2019 before the appropriate authority i.e. Central Electricity Regulatory Commission i.e. respondent No.1 and the said petition was heard at length. The CERC directed the APSLDC to file information regarding generation and curtailment date for every time block on or before 15.02.2020 and orders are MSM,J WP_1286_2020 9 reserved in the Petition No.342/MP/2019. However, with an intent to subvert the process contemplated by law, the writ petitioner stealthily filed this writ petition just before the petition No.342/MP/2019 was reserved for orders by the CERC and challenged at that delayed stage, the jurisdiction of respondent No.1 herein in entertaining the petition vide proceedings No.342/MP/2019 filed by respondent No.2 herein.
It is contended that the action of the writ petitioner in filing the Writ Petition is not only unjustified but the petitioner has also approached this Court with unclean hands, suppressing material facts. It is further submitted that the Writ petition is not only devoid of merits but also is liable to be dismissed for non-joinder of all the parties and making respondent No.2 herein as sole necessary party excluding other necessary parties who are respondents in the petition No.342/MP/2019 before the CERC Respondent No.2, such action of the writ petitioner/Respondent No.1 clearly shows lack of good faith.
It is contended that, the writ petitioner relied upon the Common order passed by this Court on 24.09.2019 in a batch of the Writ Petitions and alleged that in view of the common orders, Writ Appeals were filed and the same are pending before this Court, hence respondent No.1 - CERC had no jurisdiction to entertain the Petition No.342/MP/2019, and that such a contention is factually and legally incorrect. In the said common order dated 24.09.2019 this Court had specifically directed the writ petitioner herein "to refrain from taking any coercive steps to stop evacuation, or arbitrarily curtailment of the power generated by wind/solar developers and to discharge its statutory functions fairly pursuant to the batch of Writ petitions filed by the wind/solar power generators and as such the MSM,J WP_1286_2020 10 Interim Order is wholly without any merits and ought to be set aside and the Writ petition ought to have been dismissed.
Finally, respondent No.2 contended that CERC alone has got jurisdiction since the agreement is between NTPC and respondent No.2 and with the APSLDC or DISCOM, requested to dismiss the petition as the petition before respondent No.1 was posted for orders, by that time interim order was obtained granting stay of further proceedings pending before respondent No.1.
During hearing, learned Advocate General appearing for the petitioner raised grounds urged in the petition while drawing the attention of this Court to various documents and provisions of IEGC regulations, Sections 31, 32, 33 and 17 of the Electricity Act and also highlighted the functions of State Commission, scope and power of sale agreement under Section 86 (b) (c) of the Act. He also contended that the CERC has no jurisdiction to decide the dispute between the Generating Company and DISCOMS, apart from that Clause 6.4.2 deals with scope and jurisdiction. Even according to this, CERC has no jurisdiction, only SERC has alone jurisdiction and relied on the judgment of Apex Court in "Central Power Distribution Company and others v. Central Electricity Regulatory Commission1"
Learned Advocate General mainly contended that the relief claimed in the petition is wrong, but the Court can mould the relief and grant appropriate writ depending upon the facts and circumstances of the case. Consequently, the petitioner is entitled to claim Writ of Prohibition and sought a direction against respondent No.1 not to proceed with the matter as it lacks inherent jurisdiction.
Sri P.Sri Ram, learned counsel for respondent No.2, also relied on same judgment in support of his contentions while drawing the 1 (2007) 8 SCC 197 MSM,J WP_1286_2020 11 attention of this Court to various provisions of IEGC, which will be referred to at appropriate stage.
Thus, the learned counsel for the petitioner and respondent No.2 relied on same judgment, but referred different provisions of IEGC, Electricity Act, so also terms and conditions of agreement between the petitioner and respondent No.2. Therefore, the crux of dispute is regarding jurisdiction, hence, various contentions raised before this Court in the writ petition and counter with regard to the other aspects of powers of DISCOMs etc. cannot be decided by this Court in view of the limited scope of the writ petition. Hence, I find that it is unnecessary to dwell upon the other contentions except to the jurisdiction of both CERC and SERC and non-joinder of necessary parties to the petition.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
1) Whether the Writ of Certiorari can be issued in the circumstances stated in the writ petition?
2) Whether the petition is liable to be dismissed for non-joinder of necessary parties?
3) Whether CERC is competent to decide the dispute between respondent No.2 and the petitioner in terms of Section 79 (1) (h) of the Electricity Act, Regulation 111 of CERC (Conduct of Business) Regulations, 1999 and Regulation 5.2 (u) of IEGC? If not, whether respondent No.1 be restrained from proceeding with application No.342/MP/2019 by issuing Writ of Prohibition?
P O I N T No.1:
Before going to decide the aspect of jurisdiction, it is appropriate to advert to the relief claimed in the petition to decide MSM,J WP_1286_2020 12 whether Writ of Certiorari or writ of prohibition can be issued in the facts and circumstances of the case.
The relief claimed in the petition is as follows:
"it is therefore prayed that this Hon'ble Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of certiorari calling the records leading upto quash the impugned proceedings pending before the 1st respondent vide petition No.342/MP/2019 filed by the 2nd respondent against the petitioner for curtailment of generation of solar power as illegal, arbitrary and unreasonable without jurisdiction, and contrary to Section 86 (1) (f) of Electricity Act and contrary to Section 33 (4) of Electricity Act and be pleased to pass such other order or orders as deem fit and proper in the circumstances of the case."
As seen from the relief claimed in the petition, the petitioner claimed only Writ of Certiorari.
Writ of Certiorari is the writ which is to be issued by the Superior Court (i.e. the High Court or the Supreme Court) to the inferior Court or Tribunal or body exercising judicial or quasi-judicial functions to remove the proceedings from such Court, Tribunal or body for examining the legality of the proceedings. If the order passed by the inferior Court or Tribunal or body exercising judicial or quasi-judicial functions is found to be illegal, the superior Court may demolish it. Whenever anybody or person having legal authority to determine questions affecting rights of subject having the duty to act judicially and acts in excess of their legal authority, certiorari, may lie to quash a decision that goes beyond jurisdiction.
Thus, Writ of Certiorari is a kind of writ that can be issued by Superior Courts only against an order passed by the Tribunal or inferior Courts. But here, no order was passed by CERC to exercise power under Article 226 of the Constitution of India to issue a Writ of Certiorari and quash the same.
Writs of Certiorari are issued by the superior Court in the exercise of its supervisory function and not in the exercise of its MSM,J WP_1286_2020 13 appellate function. In the exercise of the writ jurisdiction the superior Court cannot convert itself into a Court of appeal and cannot interfere with the finding of fact unless it is proved that it is wholly unsupported by the evidence. The Writ of Certiorari issued out of a superior Court and is directed to the Judge or other officer of an inferior Court of record. It requires that the record of the proceedings in some cause or matter pending before such inferior Court shall be transferred to the superior Court to be there dealt with in order to ensure that the applicant for the writ may have a more and speedy justice (Halsbury's Laws of England).
Admittedly, petition No.342/MP/2019 is pending before CERC for adjudication and the order is reserved by CERC. At this stage, the petitioner approached this Court and obtained interim order. Hence, question of issue of Writ of Certiorari does not arise.
In "Surya Dev Rai v. Ram Chander Rai2" the Apex Court held that writ of Certiorari under Article 226 can be issued by the High Court for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted-
(i) without jurisdiction by assuming jurisdiction where there exists none; or
(ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction; or
(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of the principles of natural justice where there is no procedure specified and thereby occasioning failure of justice.
The Court has made it clear that the Writ of Certiorari is directed against the act/order or proceeding of the subordinate 2 AIR 2003 SC 3044 MSM,J WP_1286_2020 14 Courts, it can be issued even if the lis is between two private parties. The Court has further held that be a certiorari or the exercise of supervisory, jurisdiction by the High Court under Article 227 none is available to correct mere errors of fact or of law unless the following requirements are satisfied -
(i) error is manifest and apparent on the face of the proceeding such as when it is based on clear ignorance or utter disregard of the provisions of law; and
(ii) a grave injustice or gross failure of justice has occasioned thereby.
A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.
In the present facts of the case, no order is passed and question of restraining CERC from proceeding further by this Court being a superior Court does not arise in this matter by issuing Writ of Certiorari while exercising power under Article 226 of Constitution of India for the simple reason that no order is passed or passed any order in violation of principles of natural justice or procedure prescribed under any statute.
Hence, I am in total agreement with the argument advanced by the learned Advocate General that the Writ of Certiorari is not maintainable and only Writ of Prohibition can be issued subject to entitlement.
Writ of Prohibition is a writ which is issued by a superior Court to an inferior Court or Tribunal or body exercising judicial MSM,J WP_1286_2020 15 functions preventing such inferior Court or Tribunal or body from usurping jurisdiction which is not legally vested therein or from acting in violation of the principles of natural justice or from acting under the unconstitutional law. Prohibition is a writ "issuing out of the High Court of Justice and directed to an inferior Court which forbids such Court to continue proceedings therein in excess of its jurisdiction or contravention of the law of the land (Halsbury's Laws of England 4th Edition) The object of prohibition is to restrain the inferior Courts or Tribunals or bodies exercising judicial or quasi judicial functions from exceeding their jurisdiction and, thus, to keep them within the limit of their jurisdiction. It is an order directed to an inferior Court which forbids the Court to continue proceedings therein in excess of its jurisdiction or in contravention of the law of the land as held by the Apex Court in "East India Commercial Company v. Collector of Customs3"
There is similarity between Writ of Prohibition and Writ of Certiorari. Both are issued by the superior Court to the inferior Court, or Tribunal or body exercising judicial or quasi judicial functions. Both are issued on the similar grounds. The object of both the writs is to restrain the inferior Courts or Tribunals or bodies exercising judicial and quasi judicial functions from exceeding their jurisdiction (Vide: Hari Vishnu Kamath v. Ahmad Ishaque4) The main difference between Writ of Prohibition and Writ of Certiorari is that prohibition is issued before the proceedings are completed while certiorari is issued after the decision is given by the inferior Court or Tribunal. They are issued at different stages of the 3 AIR 1962 SC 1893 4 AIR 1955 SC 233 MSM,J WP_1286_2020 16 proceedings. If the proceedings before the inferior Court or Tribunal are not completed, the aggrieved person may move the Superior Court for prohibition and the superior Court may issue prohibition to forbid the inferior Court or Tribunal from continuing the proceeding but if the inferior Court or Tribunal has heard the matter and given a decision and, thus, the proceedings are completed, the aggrieved person may move the superior Court to issue Certiorari, so as to quash the decision given by the inferior Court or Tribunal. Generally, the person whose legal right has been denied or invaded may apply for prohibition. The person aggrieved by the continuance of proceedings before the inferior Court or Tribunal or body exercising judicial or quasi judicial functions in excess of jurisdiction (Vide:
Shivpujan Rai v. Collector of Customs5") or in contravention of the law of land or in violation of the principles of natural justice may apply for the issue of prohibition (Vide: Govinda v. Union of India6).
Prohibition lies against an inferior Court or Tribunal or other body exercising judicial or quasi judicial functions. It lies in cases where the inferior Court or Tribunal or body exercising judicial or quasi judicial functions/acts without jurisdiction (Vide: L.I.C. v. City Munsif7) Thus, there are several circumstances, which permit the superior Courts to exercise such power to issue Writ of Prohibition. Those circumstances are not required to be enumerated to avoid prolixity in the judgment.
In the present facts of the case, undisputedly, petition No.342/MP/2019 filed by respondent No.2 against the petitioner questioning the curtailment of generation of solar power is pending 5 AIR 1962 SC 1983 6 AIR 1967 SC 1274 7 (1969) 2 LLJ 607 MSM,J WP_1286_2020 17 before respondent No.1, at this stage the appropriate remedy is Writ of Prohibition.
If an order is passed by CERC assuming jurisdiction though not vested in it or passed any order in violation of principles of natural justice or violating fundamental rights guaranteed under the Constitution of India, a Writ of Certiorari can be issued. Hence, I am of the considered view that Writ of Prohibition is appropriate remedy at this stage, when the petition No.342/MP/2019 filed by respondent No.2 is pending before respondent No.1. Accordingly, the point is answered P O I N T No.2:
The petitioner claimed writ of certiorari, but as discussed above, writ of certiorari cannot be issued. However, learned Advocate General contended that relief can be moulded by the Court and Writ of Prohibition can be issued since the dispute is pending before the CERC. This Court recorded a finding on point No.1, while agreeing with the contention of Advocate General.
The Court has got power to mould the relief and grant appropriate writ taking into consideration circumstances of the case.
In the present case, respondent No.2 filed petition No.342/MP/2019 before respondent No.1 - CERC claiming various reliefs and the parties to the said petition are Prayatna Developers Private Limited, petitioner therein. APSLDC is respondent No.1. APSLDC is the Apex Body to ensure integrated operation of the power system in Andhra Pradesh. APSLDC is responsible for the real-time load dispatch functions, operation and maintenance of the supervisory control and data acquisition system and energy accounting in the State of Andhra Pradesh. Respondent No.2 is NTPC, who is a party to the agreement, engaged in the business of purchase and sale of MSM,J WP_1286_2020 18 electricity and allied activities. NTPC as an intermediary seller will purchase solar power and bundle it with thermal power from the unallocated quota of Ministry of power generated at NTPC coal-based stations. NTPC can sell the power so purchased on a back-to-back basis to buying utilities. Thus, NTPC is a party to the agreement entered into with respondent No.2 herein. Whereas APSLDC is not a party to the agreement.
Respondent No.3 in the petition is NVVN, which is the subsidiary company of NTPC. NVVN has been appointed as the administrative agency by the MNRE to implement 3000 MW Grid-
connected Solar PV projects under Batch-II "State Specific Bundling Scheme" under the Jawaharlal Nehru National Solar Mission (NNNSM) Phase - II Guidelines.
Respondent No.4 in the said petition is APTRANSCO. APTRANSCO is a wholly owned company of the Government of Andhra Pradesh and vested with the functions of transmission of power in the State of Andhra Pradesh and construction of stations and transmission lines and maintenance of sub-stations.
Respondent No.5 is MNRE, which is the nodal ministry of the Government of India for all matters relating to new and renewable energy in India.
Respondent No.6 is SRLDC, which was constituted by the Government of India under Section 2 (56) and Section 27 (1) of the Act. SRLDC is the apex body to ensure integrated operation of the power system in the Southern Region comprising of States of Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu and Union Territory of Puducherry.
Respondent No.7 is SRPC, which was constituted by the Government of India under Section 2 (55) of the Act comprising of MSM,J WP_1286_2020 19 States of Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu and Union Territory of Puducherry. In terms of Section 29 (4) of the Act, SRPC may agree on matters concerning the stability and smooth operation of the integrated grid and economy and efficiency in the operation of the power system in that region.
Though respondent No.2 claimed various reliefs in petition No.342/MP/2019, all parties to the said petition were not impleaded as parties to the present writ petition.
Undoubtedly, when necessary parties are not impleaded to the writ petition, the writ petition is liable to be dismissed in limini. But, who is necessary and proper party is a question of fact depending upon the facts of each case. Proper party is a party, in whose absence effective adjudication cannot be made. Necessary party is a party, in whose absence the dispute cannot be decided.
In "Bank of California v. Superior Court8" California Court held as follows:
"First, then, what parties are indispensable? There may be some persons whose interests, rights, or duties will inevitably be affected by any decree which can be rendered in the action. Typical are the situations where a number of persons have undetermined interests in the same property, or in a particular trust fund, and one of them seeks, in an action, to recover the whole, to fix his share, or to recover a portion claimed by him. The other persons with similar interests are indispensable parties. The reason is that a judgment in favor of one claimant for part of the property or fund would necessarily determine the amount or extent which remains available to the others. Hence, any judgment in the action would inevitably affect their rights. Thus, in an action by one creditor against assignees for the benefit of creditors, seeking an accounting and payment of his share of the assets, the other creditors were held indispensable (McPherson v. Parker, 30 Cal. 455 [89 Am. Dec. 129]); and in an action [16 Cal.2d 522] by plaintiff to enforce a trust, where he claimed the property in his own right, to the exclusion of another actual beneficiary, failure to join the latter was held fatal to the judgment. (O'Connor v. Irvine, 74 Cal. 435 [16 P. 236].) Where, also, the plaintiff seeks some other type of affirmative relief which, if granted, would 8 16 Cal.2d 516 MSM,J WP_1286_2020 20 injure or affect the interests of a third person not joined, that third person is an indispensable party. Thus, in an action by a lessor against a sublessee to forfeit a parent lease because of acts of the sublessee, the sublessors (original lessees) were indispensable parties, since a decree of forfeiture would deprive them of their lease. (Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 262 [73 PaCal.2d 1163].) And in a suit to cancel illegal registration of voters, all voters whose registration was challenged were indispensable parties. (Ash v. Superior Court, 33 Cal.App. 800 [166 P. 841].) Many other cases, illustrating the reasons for compulsory joinder, may be found. (See, e. g., Mitau v. Roddan, supra; Crowell v. Cape Cod Ship Canal Co., 164 Mass. 235 [41 N.E. 290]; Lawrence v. Smith, 201 Mass. 214 [87 N.E. 623]; Florida Land Rock Phosphate Co. v. Anderson, 50 Fla. 501 [39 So. 392, 396]; Hartley v. Langkamp, 243 Pa. 550 [90 Atl. 402]; Fineman v. Cutler, 273 Pa. 189 [116 Atl. 819]; Matagorda Canal Co. v. Markham Irr. Co., [Tex. Civ. App.] 154 S.W. 1176; Franz v. Buder, supra; Weeden v. Gher, 316 Ill. 534 [147 N.E. 388]; Hauser v. Power, 351 Ill. 36 [183 N.E. 580]; notes, 48 Harv. L. Rev. 995; 23 Cal. L. Rev. 320, 340.) All of these persons are, of course, "necessary" parties, but the decisions show that they come within a special classification of necessary parties, to which the term "indispensable" seems appropriate. An attempt to adjudicate their rights without joinder is futile. Many cases go so far as to say that the court would have no jurisdiction to proceed without them, and that its purported judgment would be void and subject to collateral attack. [5] The objection being so fundamental, it need not be raised by the parties themselves; the court may, of its own motion, dismiss the proceedings, or refuse to proceed, until these indispensable parties are brought in. (Hartman Ranch Co. v. Associated Oil Co., supra; Solomon v. Redona, 52 Cal.App. 300 [198 P. 643]; Hutchins v. Security Trust etc. Bank, 208 Cal. 463, 467 [281 P. 1026, 65 A.L.R. 1059]; Florida Land Rock Phosphate [16 Cal.2d 523] Co. v. Anderson; supra; Hartley v. Langkamp, supra; Krueding v. Chicago Dock & Canal Co., 285 Ill. 79 [120 N.E. 478]; Hauser v. Power, supra; Fineman v. Cutler, supra.) [6] It follows that if the court does attempt to proceed, it is acting beyond its jurisdiction and may be restrained by prohibition. This analysis finds complete support in the well-considered case of Rundell v. McDonald, supra, where all of the heirs of the intestate were named as defendants, but the action was dismissed as to some of them. The court said (p. 728): "If, on the other hand, as appellant contends, an action such as this can be maintained only against the heirs, appellant nevertheless is in no position to complain of any defect of parties defendant, since the decree cannot injudiciously affect the other heirs. Though the heirs succeeded to the legal title as tenants in common, they held their respective undivided moieties by several and distinct titles ... The theory on which the courts proceed, therefore, is to fasten a trust on the property in favor of the promisee, and to enforce such trust against the heirs of the deceased. Under this theory each heir holds the title to which he has succeeded in trust for MSM,J WP_1286_2020 21 the promisee. In the instant case the effect of the judgment against appellant as the surviving husband was to fasten a trust on the title to which he succeeded and to compel a conveyance of that title to respondent. If, as appellant contends, an action such as this lies only against the heirs of the deceased promisor and not against his estate or personal representative, then the judgment cannot be pleaded against any of the heirs as to whom the action was dismissed. It follows, therefore, that the decree in nowise affects the rights of appellant's coheirs, and that they were not indispensable parties to the action." (See, also, to the same effect, Oles v. Wilson, 57 Colo. 246 [141 P. 489, 498].) If, in this kind of action, the court has jurisdiction to try the case, and may render a valid judgment where the plaintiff sues or maintains the suit against less than all of the distributees, it must be clear that they are not indispensable [16 Cal.2d 526] parties. So, in the present case, the absent defendants are not indispensable parties, and the court has jurisdiction to proceed without them, to determine the rights of the parties actually before it."
A Four-judge Bench Apex Court in "Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar9" has observed thus:
"The question is whether in a writ in the nature of certiorari filed under Art. 226 of the Constitution the party or parties in whose favour a tribunal or authority had made an order, which is sought to be quashed, is or are necessary party or parties. While learned Additional Solicitor General contends that in such a writ the said tribunal or authority is the only necessary party and the parties in whose favour the said tribunal or authority made an order or created rights are not necessary parties but may at best be only proper parties and that it is open to this Court, even at this very late stage, to direct the impleading of the said parties for a final adjudication of the controversy, learned counsel for the respondents contends that whether or not the authority concerned is necessary party, the said parties would certainly be necessary parties, for otherwise the High Court would be deciding a case behind the back of the parties that would be affected by its decision.
Lord Justice Slesser in The King v. London County Council [1931] 2 K.B. 215, dissected the concept of judicial act laid down by Atkin, L J., into the following heads in his judgment : "wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority - a writ of certiorari may issue". It will be seen from the ingredients of judicial act that there must be a duty to act judicially. A tribunal, therefore, exercising a judicial or quasi-judicial act cannot decide against the rights of a 9 AIR 1963 SC 786 MSM,J WP_1286_2020 22 party without giving him a hearing or an opportunity to represent his case in the manner known to law. If the provisions of a particular statute or rules made thereunder do not provide for it, principles of natural justice demand it. Any such order made without hearing the affected parties would be void. As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex hypothesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for without giving notice to it, the record of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a subordinate court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceeding. But there is an essential distinction between an appeal against a decree of a subordinate court and a writ of certiorari to quash the order of a tribunal or authority : in the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a tribunal which is ordinarily outside the appellate or revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made party to the writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition.
The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it ? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would MSM,J WP_1286_2020 23 certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party.
In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an effective order but whose presence may facilitate the settling of all the questions that may be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein."
The same principle was reiterated by the Apex Court in "Poonam v. State of U.P.10", held as follows:
"We may add that the law is now well settled that a necessary party is one without whom, no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding."
In view of the law declared by the Apex Court in the above judgments, NTPC, who is the purchaser of the solar power, and NVVN is a subsidiary company of NTPC, which is appointed as a procurement agency, are necessary parties to the petition since NTPC is under obligation to comply the contractual terms between NTPC and respondent No.2. If any adverse order is passed, certainly, it will affect the rights of NTPC and if for any reason, a finding is recorded as to the jurisdiction and incidental findings thereto, it will have its impact on the final disposal of the petition pending before CERC. If any finding is recorded, such finding adversely affects the rights of NTPC and respondent No.2 before CERC as the NTPC is an indispensable party.
In the absence of NTPC, any decision of this Court is not binding on the NTPC, who is a party to the agreement entered into with respondent No.2. Hence, I find that NTPC is a necessary party, 10 (2016)2SCC779 MSM,J WP_1286_2020 24 in whose absence the dispute as to the inherent jurisdiction of the CERC cannot be decided. On this ground alone by applying the law declared by the Apex Court in the judgments (referred above) and persuaded by the judgment of California Court, the petition is liable to be dismissed. Accordingly, the contention of the learned counsel for respondent No.2 is upheld and point is decided in favour of respondent No.2 and against the petitioner.
P O I N T No.3:
In view of my finding on point No.2, no finding need be recorded on the main issue as I have already held that such issue cannot be decided in the absence of necessary parties. Hence, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 21.09.2020 Ksp