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1. The petitioner, Orissa Power General Corporation Limited (for short, "OPGC") is a Limited Company in which the State Government of Orissa holds 51 per cent of equity shares and AES Corporation, U. S. A. holds 49 per.cent of equity shares. OPGC carries on the business of generation of electricity from thermal energy at its Thermal Station called "Ib thermal Station". The opposite party No.2, Grid Corporation of Orissa Ltd., (for short, "Gridco") is a Government company and is engaged in the business of bulk purchase and supply and transmission of electricity in the State of Orissa. The Orissa Electricity Reforms Act, 1995 (for short, "the Act, 1995") came into force with effect from 1-4-1996 and under the provisions of the Act, 1995 the opposite party No. 1, Orissa Electricity Regulatory Commission (for short, "the Commission") was established for regulating the electricity sector in the State of Orissa. Thereafter, on 13-8-1996, a Power Purchase Agreement (for short, "PPA") was entered into between the OPGC and Gridco whereunder OPGC agreed to supply electricity to the extent of the total available capacity of its Ib Thermal Station to Gridco. The PPA was approved by the Government of Orissa, Department of Energy by letter dated 24-12 1996 under Section 43A of the Electricity (Supply) Act, 1948 (for short, "the Act, 1948). Thereafter on 18-10-1998, a tripartite agreement was entered into by the Government of Orissa, Gridco and OPGC for making some changes in the provisions in the PPA relating to payment by Gridco to OPGC for supply of power. The changes suggested where that Gridco shall set up an Escrow Account Mechanism to ensure timely payment of energy bills to OPGC and such Escrow Account Mechanism inter alia shall provide that proceeds from the sale of power by Gridco in pre-determined distribution zones every month will be transferred to a separate bank account designated as the Escrow Account and after payment of dues to OPGC, any balance in the Escrow Account will be transferred to the General Account of the Gridco. The opposite party No.3, the Central Electricity Supply of Orissa Limited (for short."CESCO") carries on the business of distribution and retail supply of electricity in the electrical circles of Bhubaneswar, Cuttack, Dhenkanal and Paradeep and for the said business purchases power from Gririco under, a Bulk Supply Agreement dated 18-9-1999. An Escrow and Security Agreement was entered into between the OPGC, Gridco and Union Bank of India on 30-11-1998 providing for establishment of a Gridco Escrow Account in the Union Bank of India (opposite party No. 4) find for deposit in such Gridco Escrow Account of all amounts received by Gridco from CESCO. In the Bulk Supply Agreement dated 18-9-1999 entered into by Gridco and CESCO it was provided that CESCO will transfer all the receivables to Gridco in compliance with the Escrow Agreement and cannot utilise the same to meet the specified expenses so long as the existing Escrow arrangement continues. An Escrow Agreement was also entered into between Gridco. CESCO and Union Bank of India on 11-7-2000 which authorised the Union Bank of India, the Escrow agent, to receive all receivables for electricity sold or supplied by CESCO and payments from customers and purchase of electricity capacity/energy from CESCO in the exclusive account to be maintained by the Union Bank of India as CESCO Escrow Account and to make payment from such CESCO Escrow Account to Gridco Escrow Account and discharge all outstanding dues of CESCO to Gridco. In terms of the aforesaid Escrow arrangements, CESCO remitted all its receivables out of the sale of energy as and when received from the consumers of electricity to the Union Bank of India.

5. Mr. K.K. Raghavan, learned counsel for the OPGC, submitted that as a result of the relaxation of the Escrow Agreement between Gridco and CESCO by the commission in its different orders, OPGC is not being paid its dues for supply of power to Gridco in time and for this reason OPGC has locus standi to file the present writ petition challenging the orders passed by the Commission even though OPGC is not a party to the Escrow Agreement between Gridco and CESCO. He cited the decision of the Supreme Court in M.C. Chacko v. The State Bank of Travancore, Trivandrum, , for the proposition that a beneficiary under the contract can also enforce the contract even though he is not a party to the contract and submitted that since OPGC is a beneficiary of the Escrow Agreement between CESCO and Gridco and the Escrow Agreement has been relaxed by the orders passed by the Commission, the petitioner can always approach this Court under Article 226 of the Constitution and challenge the said orders passed by the Commission.

22. We may now consider the preliminary objection raised by Mr. Panigrahi that the writ petition filed by the OPGC against the impugned orders should not be entertained as an alternative statutory appeal on a question of law was available to OPGC under Section 39 of the Act, 1995 against the order of the Commission. Under Section 39 of the Act, 1995, any person aggrieved by any decision or order of the Commission passed under the Act, 1995 may file an appeal to the High Court on any question of law arising out of such order within sixty days from the date of communication to him of the decision or order of the Commission. Hence, a statutory remedy by way of an appeal was available to the OPGC within sixty days from the date of communication of the impugned order of the Commission. But in this case, the OPGC has averred in para 21 of the writ petition that although the OPGC requested the Commission a number of times to give a copy of the impugned order passed by it, officers of the Commission have refused to do so. Thereafter, the OPGC made a written request to the Commission on 4th October, 2001 to give a copy of the impugned order to the OPGC but the officers of the Commission once again refused to do so. A copy of the written request dated 4th October, 2001 has been annexed to the writ petition as Annexure-13. In para 9 of the counter-affidavit filed on behalf of the Commission, the averments in paragraphs 19 to 27 of the writ petition have been dealt with, but the statement in para 21 of the writ petition that, copies of the impugned orders were not given to the OPGC has not been denied. Hence, the impugned orders of the Commission were not communicated to OPGC and the OPGC had to file the present writ petition under Article 226 of the Constitution on 5-10-2001. Thereafter, the writ petition was entertained and heard from time to time and, as indicated above, an order was passed on 14-12-2001 that the Commission is to take a fresh decision on the matters covered by its various orders relating to the Escrow contract amongst the CESCO, Gridco and the Union Bank of Inr dia and the contract between the Gridco and CESCO and after such fresh decision is taken by the Commission, the decision shall be made available by the Commission for the scrutiny of the Court in this proceeding so as to enable the court to finally dispose of the matter. Pursuant to the said order passed on 14-12-2001, the Commission has reheard the matter and passed a fresh order on 30-1 -2002 and furnished a copy of the fresh order passed on 30-1-2002 to the Court. After all the aforesaid developments, at this stage, it will not be proper for the Court to refuse to entertain the writ petition only on the ground that an alternative statutory remedy by way of an appeal was available to the OPGC under Section 39 of the Act, 1995 against the impugned order.

31. The next question to be decided in this case is whether the Commission had the jurisdiction to observe that the Escrow Agreement between OPGC and Gridco was void for lack of consent by the Commission under Section 21(4) read with Section 21(5) of the Act, 1995. The plea raised by OPGC before the Commission and the observations of the Commission in this regard are quoted herein below :

"3.0 The main contention of OPGC is that, there has been a tripartite agreement between GRIDCO, OPGC and UBI, called Escrow Agreement Dt. 30-11 -1998 which has, inter alia, provided that in the event of GRIDCO's failure to make payments either through letters of credit or otherwise the amounts deposited in the GRIDCO's Escrow Account shall be automatically transferred by the escrow agent (UBI), without any further act, deed or thing to be done by GRIDCO or OPGC on a daily basis to OPGC. There is also another Escrow Agreement dt. 11-7-2000 between GRIDCO, CESCO and UBI which has provided for the first charge in favour of GRIDCO over the receivables of CESCO in terms of the Bulk Supply agreement and the Loan Agreement and GRIDCO shall be entitled to recover all the amounts due to it from the Escrow Account. Neither the escrow agent nor CESCO shall use the amount in CESCO's escrow account for any purpose other than for making the payment of all the outstanding dues from CESCO to GRIDCO. There is a Bulk Supply Agreement between GRIDCO and CESCO dt. 3-9-1999, which provides that GRIDCO's ability to supply Bulk electricity to CESCO is dependent upon and inter-related to GRIDCO securing sufficient electrical energy from generating companies and other relevant sources and in essence both are back to back arrangements with all the consequences of one flowing to the other. In view of this, any change brought about in the payment mechanism under the CESCO's escrow agreement would not only affect OPGC's right to receive payments out of the GRIDCO's escrow account but would also affect OPGC's continued generation and supply of electrical energy to GRIDCO.