Rajasthan High Court - Jaipur
Sks Power Generation (Chhattisgarh) ... vs State Of Rajasthan & Ors on 18 April, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
(1) D.B. SPECIAL APPEAL(WRIT) NO.604/2014
IN
S.B. CIVIL WRIT PETITION NO.18699/2013
SKS POWER GENERATION (CHHATTISGARH) LIMITED
Vs.
STATE OF RAJASTHAN & ORS.
WITH
(2) D.B. SPECIAL APPEAL(WRIT) NO.538/2014
IN
S.B. CIVIL WRIT PETITION NO.19437/2013
ATHENA CHHATTISGARH POWER LIMITED & ANR.
Vs.
STATE OF RAJASTHAN & ORS.
DATE: :: 18th APRIL, 2014
HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
Ms. Pinky Anand, Sr.Counsel
Mr. R.N.Mathur, Sr.Counsel
Mr. Atul Sharvastav,
Mr. Angadh Mirdha,
Ms. Shruti Verma,
Ms. Asha Sharma, for appellants.
Mr. Ramji Shrinivasan, Sr.Counsel assisted by
Mr. Deepak, for respondent No.5.
Mr. Meet Malhotra, Sr.Counsel assisted by
Mr. Mahendra Sandaliya, for respondent No.4.
Mr. L.L.Gupta, for respondent No.2.
Mr. S.S.Hasan,
Mr. Ravi Chirania,
Mr. Ravi Kumar with
Mr. Ashish Sharma, for respondents.
****
BY THE COURT (PER HON'BLE THE CHIEF JUSTICE):
Appalled by the summary defeasance of its assailment of the decision making process of the Rajasthan Rajya Vidyut Prasaran Nigam Limited (for short, hereafter referred to as 'the Nigam'), pertaining to long term procurement of 1000 MW power (+10%) under Case-1 bidding procedure through tariff based competitive bidding and issuance of the Letters of Intent (for short, hereafter referred to as 'the LOI') dated 24.09.2013/27.09.2013 in favour of DB Power Ltd.-PTC, Lanco Power Ltd., Babandh and Maruti Clean Coal & Power Ltd., the writ-petitioners in S.B. Civil Writ Petition Nos.19437/2013 and 18699/2013 respectively, are in appeal for redress.
We have heard Ms. Pinky Anand, learned Senior Counsel, Mr. R.N. Mathur, learned Senior Counsel assisted by Mr. Atul Sharvastav, Mr. Angadh Mirdha, Ms. Shruti Verma, Ms. Asha Sharma, Advocates for the appellants, Mr. L.L. Gupta, the learned counsel for the respondent No.2, Mr. Meet Malhotra, learned Senior Counsel assisted by Mr. Mahendra Sandaliya, Advocate for the respondent No.4, Mr. Ramji Shrinivasan, learned Senior Counsel assisted by Mr. Deepak, Advocate for the respondent No.5 & Mr. S.S.Hasan, Mr. Ravi Chirania, Mr. Ravi Kumar & Mr. Ashish Sharma, the learned counsel for the other respondents.
The essential and indispensable facts in bare minimum, to the extent necessary for the present adjudication, would, for the sake of convenience, being common in their salient attributes, be gleaned from the rival pleadings in S.B. Civil Writ Petition No.18699/2013.
The Nigam had issued a Request for Proposal (for short, hereafter referred to as 'the RFP') on 28.05.2012 for long term procurement of 1000 MW power (+10%) under Case-1 bidding procedure through tariff based competitive bidding as per Bidding Guidelines (hereafter referred to as 'Guidelines'), issued by the Government of India for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees for meeting the Base Load requirements of JVVNL, AVVNL and JPVVNL in the State of Rajasthan. Pursuant thereto, various generator firms did submit their bids, as stipulated, whereafter the Nigam opened the non-financial bids on 18.09.2012 and following necessary clarifications, the responsive bidders were shortlisted, as felt necessary. Thereafter, the Nigam sought for extension of the validity of their bids more than once. On 28.03.2013, the appellants along with 8 others, were declared as qualified bidders as per provision 3.3.1. of the RFP and their financial bids were opened on 04.04.2013 and consequent thereupon, the qualified bidders were placed, ranking them lowest to the highest, as under:-
SNo Bidders Quantity Offered (MW) Cumulative Capacity (M Lev. Tariff (Rs./Unit) L1 Maruti Clean Coal & Power Ltd.- PTC 195 195 4.517 L2 DB Power Ltd.- PTC 311 506 4.811 L3 Lanco Power Ltd. Babandh 100 606 4.943 L4 Athena Power Ltd.- PTC 200 806 5.143 L5 SKS Power Generation Pvt. Ltd.100 906
5.299 L6 Lanco Power Ltd. Vidarbha 100 1006 5.490 L7 MB Power (MP) Ltd.- PTC 200 1206 5.517 L8 KSK Mahanadi Power Ltd.475 1681
5.572 L9 Jindal Power Ltd.300 1981
6.038 L10 Lanco Power Ltd.100 2081
7.110 As three other bidders had not extended the validity of their bids, their price bids were not opened. The Nigam, according to the appellant/writ-petitioners, was thus required to transact with the 10 qualified bidders as per Clause 3.3.1 of the RFP and take the process to its logical end. Be that as it may, the Nigam, however, sought for further extension of the validity of the bid on more than three occasions, the last in the series being on 30.09.2013, which were affirmatively responded to, amongst others, by the appellants. Eventually, the Nigam declared the Maruti Clean Coal & Power Ltd.-PTC, DB Power Ltd.-PTC and Lanco Power Ltd.- Babandh as L1, L2 and L3 respectively, being the finally shortlisted successful bidders and the Letters of Intent were issued to these firms. According to the appellants/writ-petitioners, the Letters of Intent to these firms had been issued beyond the quantum of power offered by them in their bids, as enumerated hereunder:-
Sl Bidders Total Quantum (MW) Quoted Quantum (MW) Additional Quantum (MW) L1 Maruti Clean Coal & Power Ltd.- PTC @ quoted tariff 195 195 L2 DB Power Ltd.- PTC @ quoted tariff 410 311 99 L3 Lanco Power Ltd. Babandh @ discount of 5 paisa over quoted tariff.350 100 250
The appellants/writ-petitioners have averred that the residue 45 MW (1000-955) of the requisitioned capacity, had been sanctioned to L1 i.e. Maruti Clean Coal & Power Ltd.-PTC. Contending principally that the action of the Nigam not only was in violation of the imperative Guidelines, but as well on the basis of selective negotiations with the favoured firms and that thereby the bidding process was vitiated by lack in transparency, fairness, reasonableness and otherwise peremptory essentialities of a public participatory process, the appellants/writ-petitioners laid their challenge seeking to invoke an extraordinary writ jurisdiction of this Court for the following reliefs:-
(a) Annulment of the LOIs' dated 24.09.2013/27.09.2013, issued in favour of DB Power Ltd.-PTC, Lanco Power Ltd., Babandh and Maruti Clean Coal & Power Ltd.;
(b) Direction to the Nigam to strictly comply with the provisions of the Electricity Act, 2003, RFP and the Bidding Guidelines in an open and transparent manner in the matter of procurement of 1000 MW (+10%)(Requisitioned Capacity);
(c) Direction to the Nigam to award the LOI to the appellants/writ-petitioners in accordance with the RFP for their offered quantum of power.
The respondent-State, in its reply, disclosed that the Energy Department, Government of Rajasthan, vide communication No.F.2(10)Energy/2009/Pt.1, dated 19.07.2010, had approved the setting up of 1000 MW Gas based Power Generation Project at Kishoraipatan, District Bundi through tariff based competitive bidding route under Case-2 methodology on the conditions, as mentioned therein. The Rajasthan Electricity Regulatory Commission (for short, hereafter referred to as 'the Commission'), on being approached by the Nigam for approval of the quantum to be procured by it, granted its approval on 23.03.2011 to secure, in total, 1250 (+10%) MW installed capacity through bidding, which included the interim permission granted earlier in respect of Giral Unit 3 and 4 lignite based power (1) 1000 MW (+10%) under case-2 or case-1 as required and (2) 250 MW (+10%) under case-2 from Giral unit 3 and 4 lignite based power plant Barmer. This approval was conveyed to the Nigam by the Secretary Energy, Government of Rajasthan vide letter No.RVPN/Dir.(Tech.)/CE/(NPP&R)/SE/(NPP&R)/PMU/F/D.35, dated 11.04.2011, mentioning that the quantum of capacity, so affirmed, was to be procured by it (Nigam) as per the Guidelines for determination of Tariff by bidding process for procurement of power by distribution licensees. The Coordination Committee, to which the issue was thereafter referred, following due deliberations, decided that action be initiated for procurement of 1000 MW power under Case-1 through competitive bidding process as per the Guidelines of the Government of India. According to the answering respondent, the bidding process was thereafter undertaken as per the said Guidelines and it, in specific terms, emphatically refuted the imputations to the contrary. The State-respondent, with reference to Section 63 of the Electricity Act, 2003 (for short, hereafter referred to as 'the Act'), pleaded that the Guidelines had been framed thereunder, amongst others, to advance and achieve the following objectives:-
(i) Promote competitive procurement of electricity by distribution licencee;
(ii) Facilitate transparency and fairness in procurement process;
(iii) Protect consumer interest by facilitating competitive condition in procurement of electricity.
It pleaded as well that the bidding process was undertaken on behalf of various Discoms as per the Guidelines issued by the Ministry of Power, Government of India, vide No.23/11/2004-R&R (Vol.II) dated 19/1/2005, as amended on 30.03.2006, 18.08.2006, 27.09.2007, 27.03.2009 and 21.07.2010. That the RFP was also based on the Standard Bid Document issued by the Government of India, was mentioned. The answering respondent stated further that Clause 3.1 of the Guidelines specifically provided and allowed approval of the appropriate Commission, in the event of deviations from the bidding conditions, contained therein. It clarified that whereas sub-clause 3.1(iii) provided for prior approval of Commission, no such prior approval was mandatory as per sub-clause 3.1(ii) regarding deviations to the guidelines. Reference was made to the Rajasthan Electricity Regulatory Commission(Power Purchase and Procurement Process of Distribution Licencee) Regulations, 2004 (for short, hereafter referred to as 'the Regulations of 2004'), notified by the Commission, which, amongst others, predicate that the Power Purchase Agreement (for short, hereafter referred to as 'the PPA'), entered into by the distribution licensees, would be subject to Commission's scrutiny after execution under Section 86 of the Act with regard to various aspects including reasonability of cost, promotion of efficiency, economy, equitability and competition. The respondents disclosed that the Nigam had, meanwhile, filed its petition for adoption of tariff and approval of deviation from bidding guidelines before the Commission and that their challenge laid before this Court was prematured, untenable and misconceived. Referring to clause 5.17 of the Guidelines, the answering respondent also asserted that there was no cause of action to invoke the writ jurisdiction of this Court in the face of the provision for adjudication of any dispute arising out of determination of tariff or any tariff related matters by the Commission. The respondent-State did advert to as well to Section 158 of the Act pertaining to arbitration for resolution of the dispute, as involved, and pleaded further that under Section 86(b) of the Act, the Commission was empowered to regulate electricity purchase and procurement process of distribution licensees including the price at which electricity would be procured from the generating companies or licensee or from other source through agreements for purchase of power for distribution and supply within the State and under Section 86(f), to adjudicate the dispute between the licensees and generating companies and to refer the dispute for arbitration. In essence, the State-respondent, thus, not only stoutly controverted the indictment of want of transparency, reasonableness and conformity with the Guidelines in conducting the bidding process, it also questioned the maintainability of the writ petition on the ground of non exhaustion of alternative efficacious statutory remedies.
Respondent No.2, the Nigam, while generally echoing the assertions of the State-respondent, pleaded dismissal of the challenge on the plain count that the same was based on outdated guidelines of 19.01.2005, the same having thereafter being modified/amended from time to time and lastly on 21.07.2010. While admitting that it, on behalf of the Discoms referred to therein, had issued the RFP for procurement of power based on Standard Bid Document issued by the Ministry of Power, Government of India as per the Guidelines, it pleaded that after the evaluation of the non-financial bids, financial bids of all qualified bidders were opened on 04.04.2013 and after an overall assessment of the bids and recommendations of the Bid Evaluation Committee, the Letters of Intent had been issued. It elaborated that the bidders had been asked to quote components of tariff and based on these components, levelized tariff was calculated as per the provisions of Clause 3.4.8 of the RFP and the financially successful bidders were selected as per Clause 3.5 thereof. It contended that the bidding process does not stand completed by issuance of the LOI to the selected bidders, but involves as well the execution of Power Purchase Agreement, Escrow Agreement, Hypothecation Agreement and other agreements, as applicable. The answering respondent pleaded that as per Clause 6.4 of the Guidelines, signed PPA has been forwarded to the Commission for adoption of tariff in terms of Section 63 of the Act. The allegation of private negotiations by it(Nigam) with second and third lowest bidders, was emphatically denied. According to it, its action was guided by consideration of safeguarding the interest of Discoms and the consumers of the State and was strictly in accordance with the provisions of law as well. Referring to Clause 3.5.3 to 3.5.7 of the RFP, the Nigam pleaded that the procurer was thereunder obligated to purchase power at the lowest available tariff and that in the case in hand, it had selected the bidders, who had offered lowest tariff bids in a transparent manner. It referred as well to Clause 6.3 of the Guidelines making it obligatory for it to make the bids public by indicating all the components of tariff quoted by the bidders, after the PPA was signed or had become effective, whichever was later. It asserted that no false disclosure was made and no fact was withheld at any stage of the bidding process, as alleged. That the predication of promotion of competitive procurement of electricity by distributing licensee, to facilitate transparency and fairness in the procurement process, protection of consumer interest etc., as underlined by the Guidelines, was rigorously adhered to in making the selection, was pleaded. It highlighted that its action has resulted in reduction of overall tariff payable by Discoms to the sellers.
The Nigam pleaded further that as per Regulation 7 of the Regulations of 2004, any new power purchase arrangement or agreement entered into by the distribution licensee, would be subject to scrutiny by the Commission under Section 86 of the Act in respect of necessity, reasonability of cost, promotion of efficiency, economy, equitability and competition. Denying the allegation that it had violated the bidding guidelines, it asserted that tariffs quoted by the appellant/writ-petitioner were higher than those of the successful bidders, so much so, that if accepted, the same would not have been in the interest of the Discoms' financial state or that of the consumers, as thereby there would have been a loss of more than Rs.4007 crores. Pleading that the bidding process was still to be completed even after issuance of the Letters of Intent to the successful bidders, in terms of the RFP, the Nigam also impeached the maintainability of the writ petition for not availing the alternative efficacious remedy under Section 63 of the Act as well as those, detailed in the RFP and the Guidelines by way of arbitration, to be administered by the Commission.
Elaborating the preliminary objections regarding maintainability of the writ petition, the Nigam has highlighted the availability of alternative remedies under the Guidelines as well as under Section 158 of the Act by such person or persons, to be nominated by it. It also adverted to Section 86 of the Act to underline the function of the Commission under sub-section (1)(b) thereof to regulate the electricity purchase and procurement process of distribution licensees including the price at which electricity would 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 and also under Section 86(f), to adjudicate the dispute between the licensees and the generating companies and to refer the same for arbitration. It asserted as well that in the face of the alternative efficacious remedy under Section 63 of the Act, the endeavour of the appellants/writ-petitioners to invoke the writ jurisdiction of this Court was, per se, impermissible and unsustainable.
The respondent Nos.4 and 5 i.e. DB Power (Chhattisgarh) Ltd. and Lanco Power Ltd. Babandh, in their separate replies, while substantially reiterating the pleadings of the official respondents, have repudiated the challenge laid by the appellants/writ-petitioners as premature, having been made without availing the statutory alternative efficacious remedy under the Act. Contending that the Nigam under the scheme of things, was bound to apply to the Commission for approval of the Power Purchase Agreement as well as tariff determined, they pleaded that the appellants/writ-petitioners, at this stage, are not only entitled to have ample opportunity to raise their grievances qua the alleged illegalities in the power procurement process before it, but also thereafter, if still dissatisfied, to approach the Appellate Tribunal for Electricity and thereafter the Hon'ble Apex Court, if warranted. Referring to Section 63 and 86 of the Act in particular and the exercise as statutorily envisaged therein vis-vis the grievance of the appellants/writ-petitioners, the answering respondents contended that discretionary intervention of this Court under Article 226 of the Constitution of India was thus clearly uncalled for. That in the attendant facts and circumstances, as the Act provided a self contained mechanism for determination of the dispute and the issues, as raised by the appellants/writ-petitioners, no case had been made out for interference by this Court in the exercise of its power of judicial review, was stated. In categorical terms, they denied the appellants/writ-petitioners' imputations of vitiation of the power procurement process on the ground of deliberate deviations from the guidelines on irrelevant considerations, selective negotiations and their arbitrary exclusion from the pursuit. While emphatically endorsing their selection as L2 and L3 on the basis of correct and valid appraisal of their bids and suitability, they oppugned the maintainability of the writ petition also on the ground of non-impleadment of the Discoms, for whom the process had been undertaken and had executed the Power Purchase Agreement with the successful bidders. That the writ petition was not only premature but also against the public interest tested on the touchstone of financial involvements, was underlined as well.
The learned Single Judge, having regard to the pronounced emphasis on the facet of maintainability of the writ petition, in the face of the alternative remedy of arbitration and scrutiny by the Commission under Section 63 of the Act, examined the tenability of this remonstrance at the threshold. As the impugned judgment and order would reveal, apart from outlining the relevant facts, salient provisions of the Act, Guidelines, the RFP and the reliefs prayed for, were noticed as well. On an examination of the scheme of the Act outlined in Part-VII thereof, the learned Single Judge held that the requirement of opportunity of hearing to the affected parties was inbuilt in Section 63 of the Act. That the Commission had the power to determine thereunder as to whether transparent process of bidding had been undertaken in accordance with the bidding guidelines or not, was noted. It was held that Section 63 of the Act did not bar an opportunity of hearing to the interested parties. In the context of the appellants/writ-petitioners' grievance of violation of the bidding guidelines, the learned Single Judge observed that such an opportunity of hearing would be in compliance of the principles of natural justice as well. Elaborating on the scope of Section 63 of the Act, the learned Single Judge held the view that the tariff obtained through transparent bidding process would not attain finality unless adopted by the Commission, followed by the compliance of other imperatives, in accordance with the Guidelines of the Central Government. Observing that the process therefor, was yet to be completed and that this Court should not cause interference with the process in between, the learned Single Judge concluded that the fact as to whether the Commission could pass appropriate orders with reference to the bidding guidelines on coming to the conclusion that it had been violated, was based on apprehension only. It was observed further that the reliefs sought for by the appellants/writ-petitioners could be extended only if violation of and deviation from the bidding guidelines and the RFP was established, which was still to be scrutinized by the Commission. It was held that though exercise of writ jurisdiction was not an absolute bar, in the face of the alternative remedy, it was observed that the impugned action had not reached its finality, but was subject to adoption of tariff by the Commission and thus, issuance of the Letters of Intent was not decisive. Having determined thus, following operative directions were issued:-
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.
Ms.Anand has strenuously argued that the impugned decision of the official respondents in selecting the private respondents to the exclusion of the appellants for the supply of power is not only patently in contravention of the Guidelines and the relevant stipulations of the RFP, it is as well, arbitrary, irrational and vitiated by non-transparency in action in a public participatory process, and is thus, liable to be adjudged illegal and unconstitutional. As amongst others, in terms of the relevant clauses of the RFP, the lowest levelized tariff of a successful bidder has to be qua the quantum of power offered by it in its bid, the assailed action of the official respondents, in deliberately departing therefrom, on extraneous considerations to unduly favour the private respondents, and that too, on the basis of secret negotiations with them, is apparently arbitrary and discriminatory, rendering the same non est in law. Ms.Anand insisted that as the appellants, in the process involved, had been denied a level playing field with the other bidders, its fundamental right under Articles 14 & 19 of the Constitution of India is breached thereby, for which, in the attendant facts and circumstances, having regard to the scheme of the Act, its relegation to seek redressal of its grievances before the Commission under Section 63 thereof, is wholly erroneous. The learned senior counsel has argued that in view of the objective and purport of Section 63 of the Act and the limited scope of scrutiny by the Commission, as contemplated therein, the multifaceted dissensus between the parties is clearly beyond the scope thereof, and by no means, can constitute an efficacious remedy alternative to the one, sought for and grantable by this Court in exercise of its extraordinary writ jurisdiction. Referring to the provisions of Part VII of the Act dealing with Tariff, the learned senior counsel has urged that whereas Sections 62 & 64 pertain to determination of tariff, Section 63 envisages adoption thereof by the Commission, if the same had been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government. According to her, the ambit of scrutiny by the Commission is thus, largely limited, and by no means, can be construed to be a forum to adjudicate the issues raised in the present proceedings. Without prejudice to these, Ms.Anand has maintained that as on date, following the exclusion of the appellants from the bidding process and the consequential steps taken pursuant thereto, there is no bid of theirs in existence to be examined and assessed by the Commission in undertaking the exercise under Section 63 of the Act, and thus, the so called remedy before it, is obviously illusory. While contending that it had never been the prayer of the appellants before this Court to remit the matter to the Commission, the learned senior counsel has argued that in the conspectus of facts, as obtain in the case in hand, the learned Single Judge erroneously declined to exercise the jurisdiction under Article 226 of the Constitution of India, to resolve the debate involved on its merit. Ms.Anand, in particular, relied on the decision of the Apex Court in Ram and Shyam Company Vs. State of Haryana & Ors., AIR 1985 SC 1147, Tata Cellular Vs. Union of India, (1994) 6 SCC 651 and Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors., (1998) 8 SCC 1, to reinforce her pleas.
As against this, Mr.Shrinivasan, learned counsel for respondent No.5 urged that as a statutory process, to be conducted in different phases, is involved, not only the challenge before this Court is premature, it is unsustainable, in the teeth of Section 63 of the Act as well. Referring to Section 86(1)(b) of the Act, the learned senior counsel insisted that the plea of limited scope of scrutiny of the Commission vis-a-vis the standoff between the parties is wholly indefensible. According to the learned senior counsel, as per Section 86(1)(b), the procurement process is open for the scrutiny by the Commission to effectuate the legislative intent of regulating electricity purchase under the enactment, which may even ensue in annulment of the exercise undertaken. Mr.Shrinivasan argued that not only the process underway is still not finalized, any interference therewith, at this inchoate stage, would tantamount to interdiction with a statutory exercise, neither warranted nor approved in law. Having regard to the reliefs sought for in the writ petition, the learned senior counsel has maintained that the demur against relegation of the appellants to the Commission is clearly mutilative thereof, demonstrating an apparent inconsistency in its approach thus, disentitling them, even otherwise, to any discretionary relief in the exercise of this Court's writ jurisdiction. Reliance was placed on the decision of the Apex Court in Nivedita Sharma Vs. Cellular Operators Association of India & Ors., (2011) 14 SCC 337.
Mr.Shandilya, learned counsel for respondent No.4, while generally endorsing the assertions made on behalf of the respondent No.5, has argued that as the Commission is best equipped to examine and adjudicate upon all relevant facets of the ruction, no interference with the impugned judgment and order is called for.
Mr.Gupta, learned counsel for respondent No.2-Nigam has emphatically urged that the action impugned has been taken in rigorous compliance of the relevant provisions of the guidelines, RFP and Regulations of 2004, and thus, the assailment thereof, even otherwise, is wholly misplaced. As amongst others, the official respondents did strive to secure the required quantum of power at the minimum procurement price, so that the consumers are not unnecessarily financially burdened, the decision challenged being evidently in public interest, no interference therewith is warranted. The learned counsel however, without prejudice to these, asserted that Section 63 of the Act provide an alternative statutory remedy, to avail which, the matter has been rightly remitted to the Commission.
We have applied ourselves to the rival pleadings and the documents laid on record. Contentious arguments have also been duly analyzed.
Noticeably, as the impugned judgment and order would reveal, no adjudication has been undertaken on the merits of the competing assertions and the operative directions contained therein, would authenticate that not only the Commission has been directed to afford an opportunity of hearing to the appellants, but also to consider and decide the imputations of violations and deviations of the RFP and the Guidelines, as referred to therein. Thereby, not only the Commission has been required to take an appropriate decision in the matter, after considering all aspects, the letters of intent have also been made subject to the final outcome of the adjudication by it.
The learned counsel for the parties have not analyzed the factual details bearing on the surging discord, and though touched upon the same peripherally, essentially confined themselves to the perspective of alternative remedy qua Section 63 of the Act and the efficacy thereof to redress the grievances of the appellants. In adjudicating this appeal, in this demonstrable backdrop, we are thus, inclined as well to limit the instant curial audit, to this extent.
Admittedly, the respondent-Nigam had initiated the process by issuing the Request for Proposal (RFP) on 28.5.2012 (updated on 30.5.2012 & 3.8.2012) for long term procurement of power under Case-1 bidding procedure through tariff based competitive bidding (as per Bidding Guidelines issued by the Government of India, for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees) for meeting the Base Load requirements of Jaipur Vidyut Vitran Nigam Limited (JVVNL), Ajmer, Vidyut Vitaran Nigam Limited (AVVNL) and Jodhpur Vidyut Vitran Nigam Limited (JdVVNL) in the State of Rajasthan in India. The RFP inter alia defined Appropriate Commission to mean the Central Electricity Regulatory Commission (CERC) and State Electricity Regulatory Commission (SERC) or the Joint Commission referred to in Section 83 of the Act as well as Levelized Tariff to mean the tariff calculated in accordance with the provisions of Clause 3, 4 & 8 thereof. Section-2 of the RFP contained Information and Instructions for Bidders, the following clauses whereof, being relevant, are extracted hereinbelow:-
The Bidder should note that:
(a) . . . . . . . . .
(b) . . . . . . . . .
(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.).
(d) . . . . . . . . .
(e) . . . . . . . . .
(f) . . . . . . . . .
(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 3.5.1. . . . . . . . . . .
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 Levelized 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.
3.5.5. . . . . . . . . .
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.
Provided however in case only one Bidder remains at any step of the selection process and the balance Requisitioned Capacity exceeds the Minimum Bid Capacity, Financial Bid(s) of such Bidder shall be referred to Appropriate Commission and the selection of the Bidder shall then be at the sole discretion of the Appropriate Commission.
3.5.7. . . . . . . . . .
3.5.8. . . . . . . . . .
3.5.9. There shall be no negotiation on the Quoted Tariff between the Authorized Representative/ Procurer and the Bidder(s) during the process of evaluation.
3.5.10. . . . . . . . .
3.5.11. . . . . . . . . .
3.5.12. The Procurer / 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.
A cumulative reading of the extracted clauses of the RFP would attest that the procurer/authorized representative had reserved its right to accept the offer of the bidder for any volume of power up to the quantum offered by it, subject to the Minimum Bid Capacity, and considering the balance Requisitioned Capacity. The Levelized Tariff of the Qualified Bidders were to be ranked from lowest to the highest and the Bidder with the lowest Levelized Tariff was to be declared as the Successful Bidder for the quantum of power offered by it in its financial bid. The selection process of the Successful Bidder was to be repeated for the remaining Financial Bids of Qualified Bidders, until the entire requisitioned capacity was met or until the time when the balance of the requisitioned capacity was rendered less than the Minimum Bid Capacity. The selection process was to stand completed once the requisitioned capacity had been achieved through the summation of the quantum offered by the Successful Bidders or when the balance of the Requisitioned Capacity became less than the Minimum Bid Capacity. Clause 3.5.9 prohibited negotiation on the Quoted Tariff between the Authorized Representative/Procurer and the Bidder(s) during the process of evaluation. The Procurer/Authorized Representative however, as per Clause 3.5.12, did reserve to itself, its discretion, to reject all bids if the Quoted Tariff were not aligned to the prevailing market prices.
In exercise of powers conferred by Section 86(1)(b) and 181 of the Act and those incidental thereto, the Commission has framed the Regulations of 2004. Therein, amongst others, the criterion for power purchase has been stipulated in clause-4 thereof, prescribing that in general, the principle of least cost commensurate with power system stability, system voltage, frequency profile and system losses, would be adhered to. Provision for power purchase arrangements and agreements has been included in clause-7, which predicates that the same would be subject to the Commission's scrutiny (after execution) under Section 86 of the Act, in respect inter alia of necessity, reasonability of cost, conformity with the criterion of power purchase, as laid down by it and the policy directives of the State Government and National Power policies.
The parties are one, in asserting, that the bidding process is governed by the Guidelines to that effect framed by the Government of India, Ministry of Power dated 19.1.2005, and since amended on 30.3.2006, 18.8.2006, 27.9.2007, 27.3.2009 and 21.7.2010. Though the respondents, in their pleadings, sought to discount the appellants' reliance on the guidelines dated 19.1.2005 to augment their challenge to the process involved, in the face of the amendments thereto, in course of the arguments however, no cavil, on this count, was emphasized. The Guidelines, originally, dated 19.1.2005 would thus, be referred to herein as well. The learned Single Judge incidentally had adverted thereto as well, as is evident from the quoted texts therefrom.
Be that as it may, a plain perusal of the Guidelines would testify that the same had been framed under Section 63 of the Act motivated by the key objective of the enactment to promote competition in the electricity industry in the country, so much so, that the competitive procurement of electricity by the distribution licensees would reduce the overall cost of procurement of power and facilitate development of power markets. The objectives sought to be achieved by the Commission inter alia are facilitation of transparency and fairness in procurement processes and protection of consumer interests by effectuating competitive conditions in procurement of electricity. The Guidelines set out various stipulations pertaining to the preparation for inviting bids, tariff structure, bidding process, submission and evaluation of bids, arbitration for time bound resolution of disputes and awarding of contract on the conclusion of the process. Apt it would be, having regard to the formidable significance of a few of such clauses, to quote the same as hereunder:-
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 :
. . . . . . . . . .
4. Tariff Structure 4.1. For procurement of electricity under these guidelines, tariff shall be paid and settled for each payment period (not exceeding one month). A multi-part tariff structure featuring separate capacity and energy components of tariff shall ordinarily form the basis for bidding. However, for medium term procurement the procurer may, at his option, permit bids on a single part basis, and the same shall be clearly specified in the Request for Qualification (RFQ) / Request for Proposal (RFP).
5. Bidding Process Two-stage process 5.1. For long-term procurement under these guidelines, two-stage process featuring separate Request for Qualification (RFQ) and Request for Proposal (RFP) stages shall be adopted for the bid process under these guidelines. The procurer may, at his option, adopt a single stage tender process for medium term procurement, combining the RFP and RFQ processes. Procurer or authorized representative shall prepare bid documents including the RFQ and RFP in line with these guidelines and standard bid documents.
Bid submission and evaluation 5.7. To ensure competitiveness, the minimum number of qualified bidders should be at least two other than any affiliate company or companies of the procurer. If the number of qualified bidders responding to the RFQ/RFP is less than two, and procurer still wants to continue with the bidding process, the same may be done with the consent of the Appropriate Commission.
5.9. The procurer shall constitute a committee for evaluation of the bids with at least one member external to the procurer's organisation and affiliates. The external member shall have expertise in financial matters / bid evaluation. The procurer shall reveal past associations with the external member directly or through its affiliates that could create potential conflict of interest.
5.10. Eligible bidders shall be required to submit separate technical and price bids. Bidders shall also be required to furnish necessary bid-guarantee along with the bids. Adequate and reasonable bid-guarantee shall be called for to eliminate non-serious bids. The bids shall be opened in public and representatives of bidders desiring to participate shall be allowed to remain present.
5.11. The technical bids shall be scored to ensure that the bids submitted meet minimum eligibility criteria set out in the RFP documents on all technical evaluation parameters. Only the bids that meet all elements of the minimum technical criteria set out in the RFP shall be considered for further evaluation on the price bids.
5.12. The price bid shall be rejected if it contains any deviation from the tender conditions for submission of price bids.
5.15. The bidder who has quoted lowest levellised tariff as per evaluation procedure, shall be considered for the award. The evaluation committee shall have the right to reject all price bids if the rates quoted are not aligned to the prevailing market prices.
Deviation from process defined in the guidelines 5.15. In case there is any deviation from these guidelines, the same shall be subject to approval by the Appropriate Commission. The Appropriate Commission shall approve or require modification to the bid documents within a reasonable time not exceeding 90 days.
Arbitration 5.17. The procurer will establish an Amicable Dispute Resolution (ADR) mechanism in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996. The ADR shall be mandatory and time-bound to minimize disputes regarding the bid process and the documentation thereof.
If the ADR fails to resolve the dispute, the same will be subject to jurisdiction of the appropriate Regulatory Commission under the provisions of the Electricity Act 2003.
6. Contract award and conclusion 6.11. The PPA shall be signed with the selected bidder consequent to the selection process in accordance with the terms and conditions as finalized in the bid document before the RFP stage.
6.12. Consequent to the signing of the PPA between the parties, the evaluation committee shall provide appropriate certification on adherence to these guidelines and to the bid process established by the procure.
6.13. The procurer shall make evaluation of bid public by indicating terms of winning bid and anonymous comparison of all other bids. The procurer shall also make public all contracts signed with the successful bidders.
6.14. The final PPA along with the certification by the evaluation committee shall be forwarded to the Appropriate Commission for adoption of tariffs in terms of Section 63 of the Act.
While expectedly, the contents of the RFP and of the Guidelines are identical in essence and import, it is significant to notice that approval of the Commission has to be sought for prior to the initiation of the bidding process, as referred to therein, and amongst others, in the event of deviation from the bidding conditions, as contained in the Guidelines. Noteworthy as well, is that in terms of clause-6 of the Guidelines, consequent upon the signing of the Power Purchase Agreement (PPA) with the selected bidder, the evaluation committee would provide appropriate certification of adherence to these Guidelines and to the bid process established by the procurer. Thereunder, the procurer has to make the evaluation of bid public by indicating the terms of winning bid and the anonymous comparison of all other bids. It has to make public as well, all contracts signed with the successful bidders. As per clause 6.14, the final PPA along with the certification by the evaluation committee has to be forwarded to the Commission for adoption of tariffs in terms of Section 63 of the Act.
Incontrovertedly therefore, issuance of the letters of intent per se does not signal the end of the bidding process, as contemplated by the Guidelines and the ultimate dictum has to be scripted by the Commission on the completion of the exercise envisioned in Section 63 of the Act. As is evident from the pleadings of the respondent-State, the Nigam has meanwhile, applied before the Commission for adoption of the tariff and approval of deviation from bidding guidelines, as required thereunder. This discloses as well, the present stage of the bidding process. It is not the case of either of the parties that the proceedings contemplated under Section 63 of the Act, as of date, stands disposed by the Commission. It is even otherwise incomprehensible, in view of the directions embodied in the impugned judgment and order permitting the appellants to lay their grievances before it, to be considered and decided, as required by this Court.
The Act, being the bedrock of the Guidelines, which in turn, is the foundational edifice of the RFP, has a presiding presence of decisive relevance. Before the advent of this legislation, various aspects of the electricity supply industry in the country were governed by the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998. With the policy of encouraging private sector participation in generation, transmission and the distribution, and the objectives of distancing the regulatory responsibilities from the Government to the Regulatory Commission, the indispensable need for harmonizing and rationalizing the provisions of these enactments in a new self-contained comprehensive legislation was felt. Accordingly, the Act figured embodying the core features of its predecessor enactments integrating however, the novel concepts of power trading and open access. The legislature endeavoured to strike the right balance given the current realities of the power sector in the country, providing enough flexibility to the State to do so, in the manner considered appropriate. The creation of Regulatory Commissions, with the intentions outlined therefor, assured their all permeating presence in the essential areas, legislatively comprehended. The inbuilt redressal forums were accorded to make the Act, a self-sufficient Code. As its preamble would proclaim, it is an enactment to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters connected therewith or incidental thereto. Section 2(4) defines Appropriate Commission to mean, the Central Regulatory Commission referred to in sub-section (1) of Section 76 or the State Regulatory Commission referred to in Section 82 or the Joint Commission referred to in Section 83, as the case may be. State Commission, as per Section 2(64), means the State Electricity Regulatory Commission constituted under sub-section (1) of Section 82 and includes a Joint Commission constituted under sub-section (1) of Section 83. As adverted to hereinabove, Part-VII is devoted to tariff. Whereas Section 61 requires the Appropriate Commission to specify the terms and conditions for the determination of tariff, Section 62 catalogues the purpose for such determination. The procedure for determination of tariff is delineated in Section 64 of the Act. Section 63, which occupies the centre stage of the present debate, deserves to be extracted as hereunder:-
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.
An analysis of the statutory provision, proffers the following pre-dominant constituents:-
(a) The Appropriate Commission would adopt the tariff notwithstanding, anything contained in Section 62.
(b) If such tariff had been determined through a transparent process of bidding.
(c) If such process had been in accordance with the guidelines issued by the Central Government.
The language employed, in our estimate, vests the Appropriate Commission with the authority, irrespective of Section 62, to adopt a tariff, if the same had been determined through a transparent process of bidding in accordance with the guidelines issued by the Central Government. Per se, the adoption of the tariff by the Appropriate Commission has not been legislatively envisaged to be a matter of routine, and assuredly, is contingent on its satisfaction that the same had been determined through a process of bidding, not only transparent in all its essential attributes, but also ascertained to be in accordance with the guidelines issued by the Central Government. Section 86 defines the functions of the State Commission and clause (1)(a) & (b) thereof are quoted hereunder, for ready reference:-
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 retain, as the case may be, within the State.
Provided 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.
As would be evident from hereinabove, the Commission has not only, amongst others, been entrusted with the function of determining the tariff for generation, supply, transmission and wheeling of electricity, it is also required to regulate electricity purchase and procurement process of distribution of licensees, including the price at which electricity is procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State. A plain reading of these two clauses of Section 86, in our comprehension, admits of no doubt that the Commission is obligated, under the statute, to undertake a detailed exercise, while acting under Section 63 of the Act, to examine as to whether the tariff had been determined through a fair, objective and hyaline process conducted and administered in accordance with the guidelines issued by the Central Government. The apprehension thus, that the Commission is either debarred or would be inhibited to undertake this inquisition for verifying as to whether the tariff determined comports to the underlying objective of regulation of electricity purchase and procurement process of distribution licensees on the basis of professed norm of competitive bidding to reduce the overall cost of procurement of power and facilitate the development of power markets, and to protect as well the consumer interest is, in our discernment, wholly belied. Section 94 enjoins that the Commission, for the purpose of any inquiry or proceedings under the Act, would have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 inter alia for discovery and production of any document or other material object producible as evidence; receiving evidence on affidavits; requisitioning of any public record; and issuing commission for the examination of witnesses. That the Commission has also been vested with the power to enter any building or place where it has reason to believe that any document relating to the subject matter of the inquiry may be found, and seize the same, in unequivocal terms enounces the commodious amplitude of its authority in conducting its enquiries. The provision of appeal from an order made by the Commission under the Act to the Appellate Tribunal for Electricity under Section 111, and further appeal to the Hon'ble Apex Court under Section 125 of the Act conclusively designs the hierarchy of the statutory forums for redressal of any grievance stemming from any decision of the Commission in any enquiry undertaken by it under Section 63 of the Act.
The Rajasthan Electricity Regulatory Commission (Transaction of Business) Regulations, 2005 (for short, hereafter referred to as 'Regulations of 2005') framed in exercise of powers under Sections 92 & 181 of the Act by the Commission, outlines, in particular, the code for administering its proceedings, including enquiries and investigations, as enjoined by the Act. Clause 2(h) defines Proceedings to mean proceedings of all nature that the Commission may hold in the discharge of its function under the Act. Clause 19 predicates that initiation of a proceeding by it in respect of any matter, shall be by a notice issued by its office and it may give such orders and directions, as may be deemed necessary for service thereof to the affected persons for filing of replies and rejoinder in opposition etc. The concept of a notice inviting comments on the issue, is also engrafted therein. Whereas clause 21 contemplates petitions and pleadings before it, in such proceedings the mode of service of notices and processes is detailed in clause 36. The manner of filing of reply by a person to whom notice of enquiry or petition has been issued is set out in clause 44. That the Commission may decide the matter on the pleadings of the parties or may call upon them to produce evidence by way of affidavit or oral testimony, is contemplated in clause 49, and its powers to call for further information, evidence etc., is postulated by clause 50. Clause 62 empowers the Commission to pass interim orders as it may consider appropriate at any stage of proceedings. Clause 72 acknowledges the inherent powers of the Commission to make such orders, as may be necessary for meeting the ends of justice or to prevent the abuse of its process. The Regulations of 2005, as its integrant provisions would amply demonstrate, are in replication of the counterparts thereof in the Act, and are thus, of statutory bearing.
It is in this overwhelming coeval scheme of the Commission's paramount role in the realm inter alia of determination of tariff for generation, supply, transmission and wheeling of electricity as well as regulation of electricity purchase and procurement of distribution licensees, including the procurement price thereof, that the efficacy of the remedy in the enquiry before it under Section 63 of the Act, would have to be assayed.
It is no longer res integra that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not stifled by any provision thereof. However, the High Court under the said constitutional provision has a discretion, having regard to the facts of each case, to entertain or not to entertain a writ petition. Indeed, such a self-imposed restraint is a matter of convenience and discretion, rather than a rule of law. The preponderant judicial enunciation however, is that if an effective and efficacious remedy is available, the High Court would not normally exercise its extraordinary writ jurisdiction, till such remedy is exhausted, except in three contingencies i.e.(i) where the writ petition has been filed for the enforcement of any of the fundamental rights or (ii) where there has been a violation of the principle of natural justice or (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged, as has been propounded in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.(supra). In these three contingencies, alternative remedy does not operate as a bar. The discretion with the High Court, even in these contingencies, in a given fact situation not to intervene, for good reasons, however stands untrammelled. The proposition that while an alternative remedy is not an absolute bar to the entertainment of a writ petition, in the above eventualities, the High Court can still decline to entertain a writ petition under Article 226 of the Constitution of India, if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field, as is exposited in Nivedita Sharma Vs. Cellular Operators Association of India & Ors.(supra).
Having regard to the pronounced judicial view, as adumbrated hereinabove, we are of the unhesitant opinion, in the face of the exhaustive statutory provisions adverted to hereinabove, equipping the Commission to examine, adjudicate and decide the issues raised herein, that the remedy available to the appellants before it incontestably, is equally efficacious and potent. The plea contrary thereto, as urged in the attendant factual and legal conspectus thus, does not commend for acceptance.
Not only, the legislative mandate, as contained in Section 63, juxtaposed with the other provisions of the Act with the objectives thereof, authenticate against specious distinction between adoption and determination of tariff sought to be made on behalf of the appellants, their endeavour to circumscribe the ambit of the Commission's scrutiny contemplated therein, in the face of the inbuilt safeguards incorporated to ensure an extensive and complete examination of all relevant aspects having a bearing on the transparency of the bidding process as well as the competitiveness of the tariff, lacks persuasion. The remedy envisioned in Section 63 is indubitably, statutory in nature, and there is no discernible extraordinary feature or exigency, as noted in Ram and Shyam Company Vs. State of Haryana & Ors.(supra) warranting judicial intervention, in the exercise of this Court's extraordinary jurisdiction under Article 226 of the Constitution of India in supersession thereof.
The Hon'ble Apex Court in Tata Cellular Vs. Union of India (supra) had pre-eminently dwelt upon the principles and contour of judicial review. No dilation thereon is considered essential, as the present adjudication do not touch upon the denunciation on factual aspects on merit.
Undeniably, the bidding process is not yet complete, as envisaged in law and stipulated by the Guidelines. The plea that the challenge before this Court is premature thus, when viewed in the above backdrop, is of formidable bearing.
In the teeth of the unambiguous statutory enjoinments, as recited hereinabove, we are thus of the firm opinion that the learned Single Judge had not erred in declining to examine the issues on merit and in remitting the appellants to the Commission. We are thus, in complete agreement with the determination made, as evinced by the impugned judgment and order.
The appeals thus, lack in merit and are hereby dismissed. The stay applications also stand rejected.
A copy of this judgment be placed in the connected file.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J.
/KKC/Skant/
Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
KAMLESH KUMAR P.A