In the said writ petition (respondent No.2 in the present appeals) to supply 200 MW electricity to the respondents therein (appellants herein) within the limit of 906 MW. It further directed the respondents No.1 to 5 in the said writ petition, to immediately within two weeks thereafter, execute the Power Purchase Agreement (“PPA” for short) with PTC India for procuring 200 MW power from the power generating station of MB Power, and then to start procuring power in accordance with law. 2 On 21 September 2009, Rajasthan Rajya Vidyut Prasaran Nigam Limited (hereinafter referred to as “RVPN”) filed Petition No.205 of 2009 before the Rajasthan Electricity Regulatory Commission (hereinafter referred to as “the State Commission”) seeking approval for procurement of 1000 MW of power by a competitive bidding process.
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In the various meetings held between 17 April 2013 and 22 April 2013, the BEC had placed the bids received in ascending order, from lowest to the highest tariff as follows: 6 2.7 In the 216 Meeting of the Board of Directors of RVPN, it was decided to take an opinion from the BEC as to whether negotiations should be held to reduce tariff keeping in view of the long-term impact and quantum of the amounts involved. offered an additional capacity of 250 MW, aggregating to a total of 350 MW.” 2.11 The Board of Directors of the RVPN, in its meeting held on 27 September 2013, directed that, LoI be issued in favour of the L-1, L-2 and L-3 bidders as under, subject to the approval of the State Commission while adopting the tariff. Thereafter, RVPN filed Petition No.431 of 2013 before the State Commission under 8 Section 63 of the Electricity Act read with clause 5.16 of the Bidding Guidelines for adoption of tariff for purchase of long-term base load power of 1000 MW ( 10%) as quoted by the successful bidders (being L-1, L-2 and L-3) under the Case-I bidding process.
The said order dated 7 February 2014 9 came to be challenged by the L-4 and L-5 bidders by way of writ appeals being DB Special Appeals (Writ) Nos. The Government of Rajasthan, therefore, vide its letter dated 25 July 2014, issued to the RVPN, approved the purchase of a quantum of 500 MW power on long term basis as against the quantum of 1000 MW for which PPAs had already been executed. 21 Two separate appeals were also preferred by the L-4 and L- 5 bidders, being Appeal No 264 of 2015 and Appeal No 202 of 2015 respectively, wherein apart from challenging the reduction of quantum by the State Commission from 1000 MW to 500 MW, 11 the increase in quantum granted to the L-1, L-2 and L-3 bidders was also challenged. Vide order dated 25 April 2018, the said Civil Appeals were disposed of by this Court, upholding the decision of the learned 12 APTEL, setting aside the reduction of quantum of procurement from 1000 MW to 500 MW after the bidding process was over.
In the meantime, vide order dated 19 November 2018, this Court, on an application filed by RVPN, directed the State Commission to go into the issue of adoption of tariff in terms of 13 Section 63 of the Electricity Act and the law laid down by this Court under the said provision. No.83693 of 2020 filed by L-5 bidder-SKS Power in Civil Appeal No 2721 of 2020, an interim order 28 September 2020, came to be passed by this Court, holding that the L-5 bidder was entitled to supply power to the appellants at the tariff of Rs.2.88 per unit. 1-4 to immediately issue a Letter of Intent in favour of the Petitioner, sign the power Purchase Agreement with the Petitioner as per its bid tariff, take steps for adoption of tariff of the Petitioner and immediately commence supply of power; 15 (c) Pass such further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the instant case in the interest of justice.” 1937 of 2020 and 2721 of 2020, respondent No.1- MB Power filed an application for impleadment, on the ground that the issue of role of the State Commission in adoption of tariff being decided by this Court in the said appeals would have an impact on the writ petition filed by it before the High Court.
Thereafter, considering the assessment and requirement of power, the RUVNL filed Petition No.RERC-2097 of 2023 before the State Commission, seeking approval for procurement of 160 MW of power on medium term basis i.e., for a period of 5 years and not for 25 years on long term basis.
Vide impugned order dated 1 June 2023, the learned APTEL stayed operation of the order passed by the State Commission and directed that in the bidding process for procurement of 160 MW of power on medium term basis the bid shall neither be finalized nor shall any Letter of Intent be issued pursuant to the opening of the bids. As such, the result of Civil Appeal No.4612 of 2023 would depend upon the outcome of Civil Appeal Nos. As such, the respondent No.1-MB Power, if had any grievance, ought to have filed an application before the State Commission or the 20 learned APTEL and it could not have approached the High Court directly in its writ jurisdiction. As such, it is clear that the respondent No.1-MB Power had acquiesced the direction by the appellants dated 6 January 2015 not to renew the Bid Bond bank guarantee. Shri Chidambaram submits that the theory of “filling the bucket”, as put forth by the respondent No.1-MB Power, has no basis either in the RFP or in the Bidding Guidelines. It is submitted that the contention of the respondent No.1-MB Power that the order of this Court dated 25 April 2018 was an order in rem is erroneous. He submits that if the quoted tariff of L-4 bidder of Rs.5.143 and L-5 bidder of Rs.5.300 were misaligned, then, most certainly, the quoted tariff of L-7 bidder of Rs.5.517 was also misaligned. Shri Chidambaram submits that the State Commission while adopting the tariff is bound to take into consideration the protection of consumer interest. Singhvi, learned Senior Counsel, per contra, submits that unlike Section 62 read with Sections 61 and 64 of the Electricity Act, under Section 63 of the Electricity Act, the appropriate Commission only “adopts” tariff and does not “determine” tariff. However, in cases under Section 63 of the Electricity Act, the Central Commission is bound by the guidelines issued by the Central Government and it is required 26 to exercise its regulatory functions, albeit under Section 79(1)(b) only in accordance with those guidelines. Singhvi submits that two issues that can be considered in a case under Section 63 of the Electricity Act by the Commission are: (1) as to whether the bidding process was transparent; and (2) as to whether the bidding process was held in accordance with the guidelines issued by the Central Government. Singhvi submits that however, if this offer for supply in the first year of the bid is to be levelized for 25 years, it would come to Rs.7.91 per unit, which is around 50% higher than the 1 year tariff of the said bidder itself.
It is, therefore, submitted that, considering the aforesaid, the levelized tariff of the respondent No.1-MB Power for 25 years at Rs.5.517 per unit is indisputably market aligned even as on 2012-2013. R1 – MB Power Bid) 4.137 5.517 25 years UP – 2013 Tariff approved by BEC (Deloitte as consultant) 4.36 5.849 25 years TN – Approved Tariff 4.117 5.75 15 years Prices discovered in Rajasthan Medium Term Tender in Sept / Oct 2023 Procurer State 1 Year Quoted Tariff Levelized Tariff for 25 years PPA Duration Rajasthan – 2023 5.30 7.91 5 years Rajasthan – R1 (i.e. Singhvi submits that what this Court had directed by order dated 25 April 2018, was to adopt the tariff with regard to L-4 and L-5 bidders. Singhvi submits that insofar as the aspect with regard to “consumer’s interest” is concerned, the learned APTEL has squarely covered the same. It is, therefore, submitted that the appellants are required to procure the power going down the ladder from the bidders starting from L-1 to the one till procurement of 906 MW of power is complete. It is submitted that even in the event, this Court permits L-5 bidder to supply 100 MW power and 160 MW power for medium term in pursuance to the order passed by this Court on 26 September 2023, still the total would 33 not be beyond 766 MW. “ Prices discovered in all medium and long term bids since 2022 Procurer State 1 Year Quoted Tariff Levelized Tariff for 25 years PPA Duration Adani Mumbai– 2022 5.98 8.78 2.1 years Uttarakhand–2023 5.41 7.93 1.5 years Noida Power – 2022 5.15 7.46 3 years Mundra SEZ– 2023 5.00 6.69 15 years Haryana – 2022 5.70 to 5.75 8.36 3 years J & K – 2023 6.05 8.22 5 years Haryana – 2023 6.05 8.22 5 years NDMC – 2023 6.05 8.22 5 years Madhya Pradesh–2023 6.05 8.22 5 years Haryana – 2023 5.79 8.49 5 years Gujarat – 2023 5.18 to 5.69 6.81 15 years Uttarakhand–2023 7.97 11.72 3.5 years Noida Power – 2023 6.30 9.18 3 years”. Singhvi, therefore, submissions that, if the directions as issued by the High Court are maintained, it will be in the interests of the consumers, who will be getting the electricity at lesser prices than what has recently been emerged as a levelized price in the bidding process.
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This RFP may be withdrawn or cancelled by the Procurer/ Authorized Representative at any time without assigning any reasons thereof. The Procurer/ Authorized Representative further reserves the right, at its complete 38 discretion, to reject any or all of the Bids without assigning any reasons whatsoever and without incurring any liability on any account.” 39 3.5.5 At any step in the process in Clause 3.5.4, in case the Requisitioned Capacity has not been achieved and the offered capacity of the Bidder with the lowest Levelized Tariff amongst the remaining Financial Bids is larger than the balance Requisitioned Capacity, any fraction or combination of fractions offered by such Bidder shall be considered for selection, towards meeting the Requisitioned Capacity.
At any step during the selection of Successful Bidder(s) in accordance with Clauses 3.5.2 to 3.5.6, the Procurer / Authorized Representative reserves the right to increase / decrease the Requisitioned Capacity by up to ten percent (10%) of the quantum indicated in Clause 1.3.1 to achieve the balance Requisitioned Capacity and select the Successful Bidder with the lowest Levelized Tariff amongst the remaining Bids. 5.11 If the Successful Bidder, to whom the Letter of Intent has been issued does not fulfill any of the conditions specified in Clauses 2.2.8 and 2.2.9, the Procurer / Authorized Representative reserves the right to annul the award of the Letter of Intent of such Successful Bidder.
The Procurer / Authorized Representative, in its own discretion, has the right to reject all Bids if the Quoted Tariff are not aligned to the prevailing market prices.” It will also be relevant to refer to clause 5.15 of the Bidding Guidelines, which is as under: “5.15 The bidder who has quoted lowest levellised tariff as per evaluation procedure, shall be considered for the award. However, as the State government had recommended reduction of purchase to only 500 MW power, RVPN filed an application under Regulation 7 of the RERC Regulations 2004, for adoption of tariff of L-1 to L-3, so also allowing it to purchase only 500 MW of power as against 1000 MW. The learned APTEL in the said appeals, vide judgment and order dated 2 February 2018, set aside the order of the State Commission dated 22 July, 2015, and passed the following directions: “ORDER Hence, the Appeal Nos. Since L- 1 to L-5 were represented before this Court, we direct that they shall be entitled to supply of power in terms of the originally offered amount, mentioned above, in accordance with para 3.5 of the Request for Proposal.
Consequent to the orders passed by this Court, the State Commission vide its order dated 29 May 2018, directed RVPN/DISCOMS to file an appropriate application/petition in relation to L-3, L-4 and L-5 bidders. Thereafter, SKS Power filed an Interlocutory Application on 5 October 2018, praying for adoption of its tariff as per the orders of this Court dated 25 April 2018 and 20 September 2018. The State Commission which has reserved its judgment on 16.01.2019 will hear the parties within a period of two weeks from today and will pass orders after taking into account the order that we have passed today.” In accordance with the directions issued by this Court, the State Commission considered the rival submissions of the parties and came to a conclusion that the tariff quoted by SKS Power was not market aligned. The learned APTEL framed the following three issues in the said appeal: “ISSUE NO.1: Whether the Respondent Commission could reject the tariff/bid of the Appellant, in terms of Section 63 of the Electricity Act, 2003 and the directions issued by the Hon’ble Supreme Court? Insofar as the third issue with regard to consumers’ interest is concerned, the learned APTEL held that the said issue cannot be raised again at that stage when the same had been dealt with in detail by the learned APTEL vide order dated 2 February 50 2018 and also considered by this Court before passing the order dated 25 April, 2018.
This order dated 3 February 2020, passed by the learned APTEL has been challenged by the DISCOMS and RVPN before this Court by way of Civil Appeal No.1937 of 2020 and Civil Appeal No 2721 of 2020 respectively. It is their contention that without considering the question, as to whether the tariff was market aligned or not, the procurers were bound to accept supply from the bidders at the rates quoted by them. On the basis of the judgment of the learned APTEL, the High Court held that the respondent No.1-MB Power had a right to supply power 52 since there was a gap of 300 MW between the power procured by the procurers and the ceiling of 906 MW determined by this Court.
Secondly, unlike Section 62 read with Sections 61 and 64, the appropriate Commission does not “determine” tariff but only “adopts” tariff already determined under Section 63. It must adopt the tariff which has been determined through a transparent process of bidding, but this can only be done in accordance with the guidelines issued by the Central Government.
The reason why Section 62 alone has been put out of the way is that determination of tariff can take place in one of two ways — either under Section 62, where the Commission itself determines the tariff in accordance with the provisions of the Act (after laying down the terms and conditions for determination of tariff mentioned in Section 61) or under Section 63 where the Commission adopts tariff that is already determined by a transparent process of bidding. Whereas “determining” tariff for inter-State transmission of electricity is dealt with by Section 79(1)( d ), Section 79(1)( b ) is a wider source of power to “regulate” tariff. It could thus be seen that it has been held by this Court that unlike Section 62 read with Sections 61 and 64, under the provisions of Section 63 of the Electricity Act, the appropriate Commission does not “determine” tariff but only “adopts” tariff already determined under Section 63. 57 It has been held that, either under Section 62, or under Section 63, the general regulatory power of the Commission under Section 79(1)( b ) is the source of the power to regulate, which includes the power to determine or adopt tariff. It has further been held that, in a situation where the guidelines issued by the Central Government under Section 63 cover the situation, the Central Commission is bound by those guidelines and must exercise its regulatory functions, albeit under Section 79(1)( b ), only in accordance with those guidelines.
Section 86 of the Electricity Act empowers the State Commission to regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State. It also provides that the evaluation committee shall have the right to reject all price bids if the rates quoted are not aligned to the prevailing market prices. If the contention of the respondent No.1-MB Power that the procurer is bound to accept all the bids emerged in a competitive bidding process once the bidding process was found to be transparent and in compliance with the Bidding Guidelines is to be accepted, in our view, it will do complete violence to clause 5.15 of the Bidding Guidelines itself. L-1 bidder quotes Rs.2 per unit for 100 MW power and L-2 bidder quotes Rs.2.25 per unit for another 100 MW power and from L-3 bidder onwards, they start quoting Rs.10 per unit and above for balance 800 MW power, could the public interest be subserved by compelling the procurer to buy balance 800 MW power at Rs.10 per unit and above when the prices quoted are totally not aligned to market prices.
After due deliberations, the BEC consisting of experts found that the prices quoted by L-4 and L- 5 bidders were exorbitantly high and it would result in additional financial burden of more than Rs.1715 crore on the consumers of the State as compared to the tariff of L-1 bidder. As such, the State Commission was bound to take into consideration the Bidding Guidelines and specifically clause 5.15 thereof. Union of India and others had an occasion to consider the question, as to whether the word “any” would include “all” and vice versa. Per contra, it is submitted on behalf of the respondents that the word “any” under sub-section (2) of Section 26 of the RBI Act, cannot be interpreted in a narrow manner 66 and it will have to be construed to include “all”. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] was considering the question as to whether the phrase “any one of the Directors” as found in Section 76 of the Mines Act, 1952 could mean “only one of the Directors” or could it be construed to mean “every one of the Directors”. It is quite clear and indeed not disputed that in some contexts, “any one” means “one only it matters not which one” the phrase “any of the Directors” is therefore quite capable of meaning “only one of the Directors, it does not matter which one”. The extract from Oxford Dictionary, it is interesting to notice, speaks of an assertion “concerning a being or thing of the sort named”; it is not unreasonable to say that, the word “of” followed by a word denoting a number of persons or things is just such “naming of a sort” as mentioned there. While the phrase “any one of them” or any similar phrase consisting of “any one”, followed by “of” which is followed in its turn by words denoting a number of persons or things, does not appear to have fallen for judicial construction, in our courts or in England — the phrase “any of the present Directors” had to be interpreted in an old English case, Isle of Wight Railway Co. In an action by the Directors to restrain the requisitionists, from holding the meeting, the Court of Appeal held that a notice to remove “any of the present Directors” would justify a resolution for removing all who are Directors at the present time. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] found that the words “any one” have been commonly used to mean “every one” i.e. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838], after giving the matter full and anxious consideration, came to the conclusion that the words “any one of the Directors” was an ambiguous one.
But, argues Mr Pathak, one must not forget the special rule of interpretation for “penal statute” that if the language is ambiguous, the interpretation in favour of the accused should ordinarily be adopted. It will be unreasonable, in our opinion, to attach too much weight to this circumstance; and as for the reasons mentioned above, we think the phrase “any one of the Directors” is capable of meaning “every one of the Directors”, the fact that in other statutes, different words were used to express a similar meaning is not of any significance.
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Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] came to the conclusion that the words “any one of the Directors” used in Section 76 of the Mines Act, 1952 would mean “every one of the Directors”. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] was pronounced, the same Constitution Bench also pronounced the judgment in Banwarilal Agarwalla [ Banwarilal Agarwalla v. State of Bihar, (1962) 1 SCR 33 : AIR 1961 SC 849], wherein the Constitution Bench observed thus : ( Banwarilal Agarwalla case [ Banwarilal Agarwalla v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838], etc.) and it has been decided there that the word “any one” should be interpreted there as “every one”. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court this immunity is not only complete but is as it should be. The only limitation arises from the words “in Parliament” which means during the sitting of Parliament and in the course of the business of Parliament. It held that, once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that 76 business was immune from proceedings in any court. In Black’s Law Dictionary it is explained thus, ‘word “any” has a diversity of meaning and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject- matter of the statute’. The word “any” must be read in the context of the statute and for the said purpose, it may in a situation of this nature, means all. Nusli Neville Wadia, (2008) 3 SCC 279 : (2008) 1 SCC (Civ) 850].) Thus, in the context of a statute, the word “any” may be read as all in the context of the Income Tax Act for which the power of transfer has been conferred upon the authorities specified under Section 127.” (emphasis supplied) 127. A right of filing a suit, unless it is barred by statute, as it is barred here under Section 34 of FEMA, is an inherent right (see Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by a statute.
Therefore, in our judgment in Section 35 of FEMA, any “order” or “decision” of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law.” It has been held that, while conferring such right, a statute may impose restrictions, like limitation or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Chidambaram, learned Senior Counsel relied on the judgment of this Court in Union of India v. In the said case, the High Court was considering an appeal preferred by the Union of India wherein it had challenged the acquittal of the accused by the learned trial court, which was confirmed in appeal by the High Court.
Gupta, (1994) 1 SCC 243], gave a very wide meaning to this word finding place in Section 2(1)( o ) of the Consumer Protection Act, 1986 defining “service”. From the perusal of the various judgments, which have been referred to in detail by the Constitution Bench, it will be clear that the words “all” or “any” will have to be construed in their context taking into consideration the scheme and purpose of the enactment. For example, if in a bidding process, which is in accordance with the Bidding Guidelines and is transparent, 5 bidders emerged.
In accordance with the Bidding Guidelines, the BEC would be entitled to recommend acceptance of the bids of the first 3 bidders and reject the bids of rest of the 2 bidders whose quoted rates/prices are not found to be market aligned. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment. Suppose, if L-1 bidder quotes Rs.3 per unit and L-5 bidder quotes Rs.7 per unit, requirement to reject the bid of L-1 bidder, whose bid is found market aligned along with that of L-5 bidder, which is not market aligned, would lead to an anomalous situation. The Constitution Bench of this Court in the case of PTC India Limited (supra) has held that the Electricity Act is an exhaustive code on all matters concerning electricity. No doubt that availability of an alternate remedy is not a complete bar in the exercise of the power of judicial review by the High Courts. Glaxo Smith Kline Consumer Health Care Ltd., (2020) 19 SCC 681 : 2020 SCC OnLine SC 440], the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law. Registrar of Trade Marks, (1998) 8 SCC 1], a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
In any case, the High Court, by the impugned judgment and order, could not have issued a mandamus to the instrumentalities of the State to enter into a contract, which was totally harmful to the public interest. In as much as, if the power/electricity is to be procured by the procurers at the rates quoted by the respondent No.1-MB Power, which is even higher than the rates quoted by the SKS Power (L-5 bidder), then the State would have been required to bear financial burden in thousands of crore rupees, which would have, in turn, passed on to the consumers. As such, we are of the considered view that the mandamus issued by the Court is issued by failing to take into consideration the larger consumers’ interest and the consequential public interest. We are, therefore, of the view that the impugned judgment and order passed by the High Court is not sustainable in law and deserves to be quashed and set aside.
CIVIL APPEAL NO. 6503 OF 2022 AND CIVIL APPEAL NO. 6502 OF 2022
The appeals are, therefore, allowed. The impugned judgment and order of the Division Bench of the High Court of Judicature for Rajasthan, Bench at Jaipur dated 20th September 2021 in D.B. Civil Writ Petition No. 14815 of 2020 is quashed and set aside. The respondent No.1-M.B. Power (Madhya Pradesh) Limited is directed to pay costs, quantified at Rs.5,00,000/- (Rupees Five Lakh) in each case to the appellants. Pending applications, if any, shall stand disposed of.
CIVIL APPEAL NO. 4612 OF 2023
Since we have already set aside the judgment and order of the High Court dated 20th September 2021 in D.B. Civil Writ Petition No.14815 of 2020 and the order impugned in the present appeal is based on the said order of the High Court dated 20th September 2021, the present appeal is also allowed. The judgment and order of the learned APTEL dated 1st June 2023 is quashed and set aside.
Since we have saddled the costs in Civil Appeal Nos. 6503 of 2022 and 6502 of 2022, there shall be no order as to costs in the present appeal. Pending applications, if any, shall stand disposed of.
Case Title: JAIPUR VIDYUT VITRAN NIGAM LTD. Vs. MB POWER (MADHYA PRADESH) LIMITED
Case Number: C.A. No.-006503-006503 / 2022 (2024 INSC 23)
