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(e) To direct the Respondent Commission to devise a mechanism for payment of compensation by the Respondent No. 2/Procurer to the Appellant on account of the aforesaid Change in Law event in terms of based on the principles under Article 13 of the PPA read with Article 13.2(b) of the PPA.

6.. 1st Respondent - Commission (PSERC) filed reply, in brief as under:

(i) 1st Respondent-PSERC contends that grounds of appeals are misconceived and devoid of merit. 1st Respondent contends that the impugned orders dated 21.12.2018 and 09.01.2019 have been passed by the State Commission with due regard to regulatory jurisprudence and taking into account the provisions of the Power Purchase Agreement ("PPA") executed between the Appellants TSPL & NPL and erstwhile Punjab State Electricity Board ("PSEB") on 01.09.2008 and 18.01.2010 respectively, to which the Punjab State Power Corporation Limited ("PSPCL / Respondent No. 2") is the successor-in-interest. Inter alia, the State Commission has further specifically considered the Environmental Clearance dated 11.07.2008 received by TPSL and received by NPL dated 03.10.2008 from the Ministry of Environment & Forests ("MoEF") prior to the commissioning of its power plant as also the findings of this Tribunal in the case of 'M/s JSW Energy Limited V/s Maharashtra State Electricity Distribution Co. Ltd and Another' dated 21.01.2013 in Appeal No. 105 of 2011, which are directly and substantially applicable to the facts and circumstances of the present cases of the Appellants in view of the undeniable fact that the Environmental Clearance granted to JSW Energy Ltd. in the said case had the similar conditions as also envisaged in the present Appellants - TSPL and NPL's Environment Clearance dated 11.07.2008 and 03.10.2008 respectively. The State Commission had also considered the letter dated 30.05.2018 of the Ministry of Power which contains the exceptions to treating the impact of the Environment (Protection) Amendment Rules, 2015 under 'Change in Law' where such requirement of pollution control system was mandated under the environment clearance of the plant or envisaged otherwise before the notification of amendment of rules.

(ii) 2nd Respondent also contends that the then prevailing law required various clearances including power project to have Environment Clearance under the Notification dated 14.09.2006 issued under the Rule 5(3) of Environment Protection Rules 1986.

The bidders were aware that an Environmental Clearance would be required and the same could be subject to various conditions for construction and operation of the power project and the project developer have to comply with such conditions. That apart, other consents and Clearances were also required under various Environment laws. According to 2nd Respondent, there was no requirement that the Environment Clearance had to be obtained or made available to the bidders prior to the cut off date. TSPL/Sterlite did not raise any objection and in fact voluntarily participated in the Bidding process being well aware of the position.

(ix) 2nd Respondent-PSPCL also contends with regard to the obligations of PSPCL under the RFP or Guidelines to acquire Environmental Clearance is not relevant in the present case. The issue in the present case is not whose obligation it was to obtain the environment clearance but rather what were the implications of the conditions of such clearance. It is not the Appellants' case that it is not subject to the conditions of the EC nor that it was PSPCL who was required to comply with the conditions in the Environment Clearance. In any case, it was the Appellants responsibility to maintain the Clearances and consents. Whether the Appellants were the Independent Power Producers obtaining EC on their own or whether the Appellants through PSPCL obtained the Environment Clearance is irrelevant. What is relevant is only if the Environment Clearance (which in this case was admittedly prior to cut off date), envisaged certain obligations on part of the Appellants. Thus, according to 2nd Respondent, what has to be considered is whether the requirement of installation of FGD was envisaged prior to amendment. Further, the Environment Clearance dated 11.07.2008 and 03.10.2008 envisaged the installation of FGD.

13. Both the Appellants contend that the requirement of installation of FGD pertaining to revised emission limits is change in law in terms of Article 13 of the PPA. Since the change in consent occurs after the cut-off date by virtue of statutory promulgation, it is change in law event. According to Mr. Kapoor, the Appellant-TSPL's project was set up based on the instructions of PSEB under Case II type competitive bidding guidelines. Therefore, obligation of the procurer is very clear that all initial consents including environment clearance has to be arranged by procurer. Therefore, it was obligatory on the part of PSEB to indicate cost so far as FGD prior to cut-off date or even at a later stage. This fact is substantiated from the contents of project report given by procurer to the bidders at the stage of RPF. Since PSPCL/PSEB had the obligation to procure the environment clearance for the project (TSPL was incorporated as a Special Purpose Vehicle by PSEB on 05.04.2007 to develop and to commission the project), it was the responsibility of PSPCL/PSEB to secure environment clearance. The bid was submitted by Sterlite Energy Limited only based on the specific intimation and assurances made by PSEB, presently PSPCL. Accordingly, it was selected as the successful bidder. Emission limits of SO2 requiring FGD equipment installation was not prescribed by any law at that time i.e., 2008, therefore, no one including Appellants could visualize/anticipate possibility of revised/new norms being notified much later i.e., in the year 2015. For that matter, the Environment Clearance was made available to TSPL only after the execution of SPA and PPA. Hence, question of TSPL (now owned Sterlite Energy Limited) objecting so far as the conditions in EC would not arise. They further contend that if the terms of contract were in a simple language and were clear without any ambiguity, the terms must be read as reflected in the contract. They also contend that change in law provision under PPA do not refer to any possible anticipation by parties. Therefore, the Respondent-Commission could not have imputed knowledge of new emission norms so far as TSPL is concerned. The circumstances existed at the time of bid did not indicate any such possible anticipation of revised norms is the stand of the Appellant-TSPL.