Andhra Pradesh High Court - Amravati
Vayu Urja Bharat Private Limited vs The State Of Andhra Pradesh on 8 April, 2026
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
NJS, J
Common order in IAs_1&2 in
WP_31417_2025
APHC010601062025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
WEDNESDAY
WEDNESDAY, THE EIGHTH DAY OF MARCH
TWO THOUSAND AND TWENTY SIX
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
I.A.Nos.1 and 2 in WRIT PETITION No: 31417of 2025
I.A.No.1 of 2025 in W.P.No.31417 of 2025
Between:
1. VAYU URJA BHARAT PRIVATE LIMITED, HAVING ITS REGISTERED
OFFICE AT UNIT No.
N . 408, FLOOR, ASHOKA BHOOPAL
CHAMBERS, H.No.1
.1-8-271
271 TO 273, 301, SARDAR PATEL ROAD,
SECUNDERABAD, REPRESENTED BY ITS AUTHORISED
SIGNATORY MR. SERVESH SINGH
SINGH.
...PETITIONER
AND
1. THE STATE OF ANDHRA PRADESH, BEING REPRESENTED BY ITS
PRINCIPAL SECRETARY,
SECRETARY ENERGY DEPARTMENT, A.P.
SECRETARIAT OFFICE, VELAGAPUDI, AMARAVATI
AMARAVATI.
2. SOUTHERN POWER DISTRIBUTION COMPANY OF A.P P.LIMITED
APSPDCL, D.No.19-13
13-65/A, SRINIVASAPURAM,
TIRUCHANOOR ROAD, CHITTOOR DISTRICT, TIRUPATI
TIRUPATI-517503
517503
...RESPONDENT(S):
Counsel for the Petitioner:
1. Mr.O.Manohar O.Manohar Reddy, Senior Counsel along with Mr.D D S SIVADARSHAN, SIVADARSHAN Advocate Counsel for the Respondent(S):
1. GP FOR ENERGY
2. Mr.VENKATA RAMA RAO KOTA SC FOR APSPDCL 2 NJS, J Common order in IAs_1&2 in WP_31417_2025 The Court made the following Common Order:
Heard Mr.O.Manohar Reddy, learned Senior Counsel appearing for the petitioner Mr.D.Satya Siva Darshan, Advocate assisted by M/s.Ankita Bafna and Biju Mattam. Also heard Ms.Jyothiratna Anumolu, learned counsel for the respondent No.2.
2. The petitioner, a 120 Megawatt (MW) Wind Power Project (for short 'the project') at Guruvepally of Marrimakula of Anantapuram District is engaged in the business of generating wind energy. It had entered into a Power Purchase Agreement(PPA) dated 28.07.2016 with respondent No.2 for sale of entire electricity generated from the Project for a period of 25 years. The tariff shall be firm at Rs.4.84 per KWH (Kilo Watt Hour) in terms of the order of the Andhra Pradesh Electricity Regulatory Commission (APERC) dated 26.03.2018 in O.P.No.13 of 2016.
3. Certain disputes with regard to non-payment of amount due to the petitioner led to filing of O.P.No.35 of 2019 before APERC and directions against respondent No.2 for expeditious release of Rs.9,57,75,159/- towards partly paid monthly invoices from March 2017 to May 2018 and Rs.113,49,11,720/- towards unpaid monthly invoices from June, 2018 till 06.03.2019 and Rs.6,47,00,015/- towards Late Payment Surcharge(LPS) along with costs were sought.
3
NJS, J Common order in IAs_1&2 in WP_31417_2025
4. The learned APERC vide its detailed order dated 31.08.2019 (Ex.P1) disposed of the said O.P., with a direction that the Distribution Company / respondent No.2 shall pay all the amounts due to the petitioner towards the tariff / price payable under the Power Purchase Agreement dated 28.07.2016 towards the electricity generated and supplied by the petitioner to the respondent from March, 2017 to 31.08.2019 today, in installments of not less than Rs.16.40 crores per month by 15th of every month commencing from 15.09.2019 till the entire liability for the principal sum is discharged. The learned APERC further directed the Distribution Company to comply with all the terms and conditions of the Power Project Agreement dated 28.07.2016 in respect of the electricity generated and supplied to it by the petitioner so long as the Power Purchase Agreement is in force including its obligation to make due payment for the delivered energy regularly.
5. The appeal preferred by the Distribution Company against the said order vide Appeal DFR No.221 of 2020 before the appellate authority (APTEL), was dismissed in limine on 25.09.2020. In the meanwhile, the petitioner filed I.A.No.19 of 2019 in O.P.No.35 of 2019 under Section 142 of the Electricity Act, 2003 r/w Clause 55 of the APERC (Conduct of Business) Regulations, 1999 seeking directions for compliance of the order dated 31.08.2019 in O.P.No.35 of 2019.
6. The learned APERC, after elaborate hearing vide orders dated 10.08.2021 (Ex.P2) disposed of the said I.A., granting six weeks' time to the 4 NJS, J Common order in IAs_1&2 in WP_31417_2025 DISCOM / Respondent No.2 for payment of the withheld amount of Rs.70.54 crores towards GBI and CUF components. In default, it also ordered that the DISCOM / Respondent No.2 shall be liable to pay Rs.1 lakh towards penalty, apart from Rs.6000/- per day from the expiry of six weeks from the date of the order for all the period during which the violation continues. The said order attained finality. The Civil Appeal preferred against the earlier order of APTEL was dismissed as withdrawn vide Order dated 21.11.2022. Be that as it may.
7. Seeking direction to the DISCOM to comply with the order dated 31.08.2019 passed in O.P.No.35 of 2019 and the order dated 10.08.2021 passed in I.A.No.19 of 2019 in O.P.No.35 of 2019 of the APERC, the petitioner filed Writ Petition No.8669 of 2023. A learned Judge of this Court by an order dated 13.12.2023 (Ex.P4) allowed the said writ petition with a direction to the DISCOM / Respondent No.2 to comply with the orders passed by the learned APERC referred to above, within a period of three months from the date of receipt of a copy of the order, after giving due credit to the payments already made. Against the said order, Writ Appeal No.350 of 2024 has been preferred and the same is pending.
8. The learned Senior Counsel referring to the orders of the learned APERC and the orders of the learned Single Judge referred to above, made elaborate submissions inter alia that the issue in the subject matter Writ Petition is with regard to deduction of amounts from the monthly invoices raised by the petitioner on the premise that it is not entitled to tariff for the 5 NJS, J Common order in IAs_1&2 in WP_31417_2025 energy supplied beyond the Capacity Utilization Factor(CUF). He submits that the 2nd respondent / DISCOM having suffered adverse orders passed by the APERC, instead of implementing the same, is deducting huge amounts towards CUF component for the subsequent periods also. He submits that due to non-availability of the Judicial Member, the learned APERC is not taking up the matters for adjudication and therefore, the petitioner is constrained to file the present writ petition.
9. Referring to the relevant conclusions recorded by the learned APERC, vide order dated 31.08.2019, the learned Senior Counsel submits that the 2nd respondent-DISCOM is liable to pay for the energy which is delivered by the petitioner, that the parties to the PPA are bound by its terms and as the orders of the learned APERC in I.A.No.19 of 2019 in O.P.No.35 of 2019 have attained finality, the 2nd respondent has to pay the amounts due to the petitioner. Drawing the attention of this Court to the relevant material on record, the learned Senior Counsel further submits that the 2 nd respondent- DISCOM suffered adverse orders in W.P.No.8669 of 2023, yet, is resorting to deduction of amounts towards CUF and compelling the petitioner to file petitions in respect of the same cause, for the period subsequent to the orders of the APERC. He submits that due to deduction of amounts in a high handed manner, the petitioner is facing financial difficulties to meet the operational expenses, that substantial sums towards interest are being paid to its bankers and any further delay in payment of the amounts in terms of the orders of the 6 NJS, J Common order in IAs_1&2 in WP_31417_2025 APERC would lead to serious repercussions. Making the said submissions, the learned counsel seeks appropriate interim reliefs as prayed for.
10. On the other hand, the learned counsel for the respondent made submissions inter alia to the effect that the Tariff includes GBI (Generation Based Incentive) and CUF, that the issue with regard to GBI is pending before the Hon'ble Supreme Court. She submits that the petitioner is not entitled to any amount towards energy supplied beyond the normative CUF of 23.5%, that none of the similarly situated Generating Companies are paid bills, beyond the normative CUF and if the petitioner disputes the same, it has to approach the APERC, like other generators. She submits that the issue with regard to CUF is sub-judice before the APTEL in a batch of appeals. In any event, the learned counsel submits that the claims if any for the period subsequent to the orders of APERC referred to above have to be made before it by raising a dispute and that the writ petition is liable to be dismissed as the same is not maintainable.
11. Considered the submissions made and perused the material on record.
12. At the outset, it is pertinent to mention that in the order in I.A.No.19 of 2019 in O.P.No.35 of 2019, seeking implementation of which, W.P.No.8669 of 2023 was filed, contentions with reference to collection of amounts towards Capacity Utilization Factor(CUF) were raised and the DISCOM sought to justify payment of the bills with a ceiling on CUF @ 23.5% as per Clause 21 7 NJS, J Common order in IAs_1&2 in WP_31417_2025 Regulation No.1 of 2015. Whereas on behalf of the Generating Company / petitioner, it was argued that in terms of Clause 2.1 of the PPA, the DISCOM is liable to pay for "all the units generated" as per the Tariff agreed under the PPA and the DISCOM cannot limit payment by placing a ceiling on the CUF. It is not out of place to mention here that the learned APERC after a detailed discussion in Page No.17 of the order dated 10.08.2021, recorded its conclusions as regards the CUF, leaving it to be agitated in appropriate proceedings, if and when raised by the aggrieved parties. While stating that it is not persuaded to approve the DISCOM's action in withholding any amount towards the CUF in the case before it, the learned APERC left the issue relating to CUF open to the DISCOM to agitate in appropriate proceedings, if it so chooses. It is not in dispute that the 2nd respondent DISCOM has not initiated any proceedings pursuant to the above said order of the learned APERC, which in fact, had attained finality. But, on the other hand, an argument was advanced by the learned counsel for the DISCOM that it is for the Petitioner Generating company to raise a dispute before the APERC and the same, in the considered view of this Court, that too after suffering an adverse order, holds no water. As a matter fact, the learned Judge in W.P.No.8669 of 2023 examined the matter with reference to the orders passed by the learned APERC mentioned supra and the judgment in the said writ petition applies in all fours to the present fact situation, covering the period subsequent to the orders of the learned APERC. No doubt, an appeal has 8 NJS, J Common order in IAs_1&2 in WP_31417_2025 been preferred against the order of the learned Single Judge, but it is not the case of the respondent-DISCOM that the judgment has been suspended / stayed.
13. In such circumstances, the arguments advanced on behalf of the petitioner outweighs the contentions of the learned counsel for the respondent-DISCOM. Therefore, keeping in view the balance of convenience and irreparable loss, this Court deems it appropriate to consider the interim reliefs prayed for by the petitioner, pending disposal of the main writ petition.
14. So far as I.A.No.1 of 2025, the petitioner is seeking a direction to make payment of Rs.67,90,20,570/- payable from February, 2022 till the date of filing of I.A.No.1 of 2024 before the learned APERC. However, in respect of the said amount, the application filed by the petitioner admittedly is pending before the learned APERC and in such circumstances, granting of the interim relief as sought for, virtually amounts to allowing the said I.A., and the same is impermissible. Therefore, the petitioner is not entitled for the interim relief sought for. Accordingly, the I.A., is rejected.
15. In so far as I.A.No.2 of 2025 is concerned, this Court, in the light of the directions of the learned APERC, dated 31.08.2019 in O.P.No.35 of 2019 and the view expressed by it in the subsequent orders dated 10.08.2021 in I.A.No.19 of 2019 in O.P.No.35 of 2019, is, prima facie of the opinion that deduction of amounts towards the CUF component is not tenable. 9
NJS, J Common order in IAs_1&2 in WP_31417_2025
16. Therefore, there shall be a direction to the respondent No.2 forthwith to refrain from withholding / deducting amounts from the monthly energy invoices raised by the petitioner towards CUF component, pending further orders in the writ petition. I.A.No.2 is, accordingly, allowed. No costs.
__________________________ JUSTICE NINALA JAYASURYA Date: 08 .04.2026 BLV 10 NJS, J Common order in IAs_1&2 in WP_31417_2025 THE HON'BLE SRI JUSTICE NINALA JAYASURYA ` I.A.Nos.1 and 2 in WRIT PETITION No: 31417of 2025 Date: 08.04.2026 BLV