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(b) After electing 2nd route i.e. procurement of power through competitive bidding process, the procurer has to finalize the complete bidding process including finalization of RFP and other related documents with the approval of the State Commission at least 45 days before the bid submission date. In this case, admittedly, the procurer i.e. RRVPN electing the 2nd route had adopted standard bidding documents (RFP and PPA) notified by the Central Government and the State Commission had approved the same.

16.12 When RRVPN chose to file its petition No.431/13 seeking for the adoption of the tariff quoted by the Appellant(s), after accepting the Evaluation Committee's report certifying the Appellant(s) as successful bidder under clause 3.5.3 of the Request for Proposal (RFP), the RRVPN cannot be permitted to act in any manner other than just to honour the LOI & PPA. As mentioned earlier, the only exception available to the RRVPN (R-2) under clause 3.5.12 of RFP was that it could have rejected the bids of the quoted tariff if it was found to be not aligned with the market conditions. In the present case, the same had not been done in view of the fact that the Evaluation Committee declared that the rate quoted by the Appellant(s) was aligned with the market rates. Moreover, the rates/tariff were quoted for supply of 1000 MW power as stipulated by procurer in bidding documents and cannot be assumed for lesser quantity at same terms & conditions.

17. Summary of our Findings 17.1 The first question relates to the scope of power to be exercised and the method of procedure to be followed by the State Commission under section 63 of the Act.

The powers of the State Commission are limited under Section 63 of the Act. The State Commission while dealing with the petition under Section 63 for adoption of tariff could either reject the petition if it finds that the bidding was not as per the statutory framework or adopt the tariff if it is discovered by a transparent process conducted as per Government of India guidelines. Section 63 starts with non-obstante clause and excludes the tariff determination powers of the State Commission under Section 62 of the Act. The entire focus of the competitive bidding process under Section 63 is to discover the competitive tariff in accordance with the market conditions and to finalize the competitive bidding process in accordance Central government's guidelines, standard document of Request for Proposal and the model PPA. Under Section 62 of the Act, the State Commission is required to collect various relevant data and carryout prudence check on the data furnished by the licensee/generating company for the purpose of fixing tariff. Hence determination of tariff under Section 62 is totally different from determination of tariff through competitive bidding process under Section 63. Competitive bidding __________________________________________________________________________________ process under Section 63 must be consistent with the Government of India guidelines. Any deviation from the standard Request for Proposal (RFP) and model PPA notified by the Government of India must be approved by the State Commission. This process must discover competitive tariff in accordance with market conditions from the successful bid- consistent with the guiding principles under section 61 of the Act. If the deviations are permitted by failing to safeguard the consumer interests as well as to promote competition to ensure efficiency, it will destroy the basic structure of the guidelines. In this case the above procedure has not been followed. The contention of the Respondents as well as State Commission that even after the bidding process is completed and PPA signed, the stipulated power capacity of 1000 MW for procurement can be reduced is contrary to the provisions of the Act as well as bidding guidelines. Once the petition has been filed on the recommendation of the Evaluation Committee seeking for the adoption of tariff after it is discovered, it is not open for the Respondents (Procurer) and the State Commission to reduce procurement of power stipulated in the bidding documents and PPA(s) already executed between the parties.

17.2 Regulation 7 of the RERC Regulations will have to be construed harmoniously with the mandatory and binding Guidelines. Regulation 7

(a) of the RERC Regulations cannot therefore apply in a situation, where, in conformity with the mandatory guidelines, the prior approval of the Commission has already been obtained, in respect of the quantum of power to be procured by the Competitive Bidding Process under Section 63 of the Electricity Act, 2003, as in the present case. In such a situation, the competitive bidding process has been completed in accordance with the said approval of the Commission, it will not be lawful and open to the Commission to nullify its earlier approval given in terms of the guidelines by resorting to Regulation 7 (a) of the RERC Regulation. Further, the __________________________________________________________________________________ Regulations, 2004 of RERC, cannot override the Central Government Guidelines notified on 19.01.2005 (as amended from time to time) brought out under the provisions of Section 63 of the Act. 17.3 The Respondents have primarily relied upon the phrase "consumer's interest" and have stated that after conclusion of the bidding process, the EAC recommended to procure only 600 MW instead of 1000 MW and procurement of excess power would be burden on consumers. This contention of the Respondents lacks logic & rationale and hence, not tenable. The consumers' interest is a broad term and among others, involves reliable, quality and un-interrupted power on long term basis besides being competitive. The State Commission has rightly noted in its order dated 23.03.2011 while approving the process of initiation of competitive bidding while approving RFP, draft PPA, documents and quantum of power to be procured on long term basis. The said order of the State Commission categorically noted the consumers' interest and the guidelines of the Central Government under Section 63 of the Electricity Act, 2003 envisage the interest of all stake holders including consumer interest. Hence, no other section or regulation is having any overriding power on the Section 63 which is self-contained and amply elaborated for the procurement of power by the discom through transparent competitive bidding which, in turn, safeguards the interest of all stake holders including consumers' interest.