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Additionally PPA has been entered into between R-2 and R-1 vide which PTC has agreed to purchase 70 MW power from the latter to be generated from its Budhil Project. Now the same power has been agreed to be sold by PTC to the Petitioner i.e. HPGCL so that in case of failure of R-1 to supply above said power, R- 2 is not bound to supply power from other sources to the Petitioner under the PSA. This fact clearly spells out that the PSA is wholly dependent on the PPA and without the PPA it is meaningless. In other words, it is safe to presume that the PSA shall sink and swim with the PPA and thus both of them are inseparable. Further Section 4.1 (v) of PSA provides that, "to not terminate the PPA except with the prior written consent of the Purchaser and subject to the terms and conditions contained in Section 15.1.2 herein", hence PTC has agreed not to terminate the PPA except with the prior written consent of the Petitioner which again goes to prove that both PPA and PSA are fully interdependent. It is worthwhile to mention here that at the time of approval of PSA, this Commission had gone through the PPA and PSA was approved keeping in mind the PPA which was annexed with its petition by HPGCL seeking approval of the PSA. ..................................................................... On examination of the facts of the present case, it transpires that in the instant case in the entire power purchased by PTC for a period of 35 years under the PPA has been resold to the Petitioner i.e. HPGCL by it and that too for the entire period so much so that PTC is not bound to supply power under the PSA from other sources if R-1 declines to supply power under the PPA. Hence there is no uncertainty that power purchased under the PPA would not be sold in the State of Haryana. Secondly, as per Section 4.1 (v) of the PSA, PTC cannot terminate the PPA without the written consent of the Petitioner i.e. HPGCL and this right of HPGCL has been recognised in the PPA. This clearly establishes an interest of HPGCL in the PPA. .................................................................. After going through the facts of the case and hearing the arguments of the parties, we are of the considered view that HERC has the jurisdiction to consider this case on merits. We are convinced that the PPA between R-1 and R-2 cannot stand in isolation because it is evident from PPA that power is being procured by R-2 not for its own self consumption or distribution. The entire power is being purchased by R-2 for onward sale to the distribution licensees in Haryana. Hence we are not in agreement with the Ld. Advocate of R-1 that we should stop at this stage till the decision of a similar case before the Hon'ble APTEL. Since we would like to hear the case on merit, we refrain from going into further details relating to linkage between PPA and the PSA at this stage.

(5) Further, section 4.1 (v) of PSA provides that, "not to terminate the PPA except with the prior written consent of the Purchaser and subject to the terms and conditions contained in Section 15.1.2 herein". Hence PTC has agreed not to terminate the PPA except with the prior written consent of the Haryana Power, the purchaser, which again goes to prove that both PPA and PSA are fully interdependent.

(6) At the time of approval of PSA, the State Commission had gone through the PPA and PSA and approved both PPA and PSA keeping in mind that the PPA was annexed with its petition by Haryana Power seeking for the approval of the PSA.

44. In the absence of mutual express consent of the parties namely, Appellant and the PTC(R-3) for the assignment of PPA in favour of the Haryana Power (R-2), there cannot be any situation under which the Haryana Power can be covered under the expression "Permitted Assignee". Hence the finding of the State Commission that Haryana Power is the "permitted assignee" is factually incorrect. Similarly, the State Commission has again committed an error by construing the clause 4.1(5) of the PSA, pursuant to which PTC has undertaken not to terminate PPA without prior consent of the purchaser namely Haryana Power.

45. According to State Commission, this clause is an example to establish PPA and PSA are fully inter-dependent. This observation, in our view is totally wrong since the right of the Appellant to terminate the PPA in accordance with the clause of the PPA is independent of the obligations of the PTC towards the Haryana Power under the PSA while exercising its right to terminate PPA. In other words, the obligations undertaken by the PTC towards the Haryana Power under the PSA in respect its right to terminate the PPA cannot be read as circumscribing the right of the Appellant to exercise its rights to terminate the PPA.