TATA POWER RENEWABLE ENERGY Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, M/s.Tata Power Renewable Energy Limited, filed this writ petition, under Article 226 of the Constitution of India, to quash the Requests for Selection (RfS) dated 30.11.2020 for a capacity of 6400 MW as well as the draft Power Purchase Agreements (PPA) issued by respondent No.4 and direct respondent No.4 to issue fresh Requests for Selection, strictly in accordance with the Guidelines for Tariff Based Competitive Bidding process for procurement of power from Grid connected Solar voltaic power projects dated 03.08.2017 issued under Section 63 of the Electricity Act, 2003 (for short 'the Act').

(2.) The 3rd respondent Government had taken a decision to provide 9 hours day time free power supply to 18.37 lakhs agricultural consumers in the State and issued G.O.Ms.No.5 for establishing APGECL (4th respondent), which is 100% subsidiary of AP GENCO to act as Nodal Agency for procurement/establishing 10,000 MW solar power projects to provide free power to the agricultural consumes. Accordingly, the 3rd respondent has issued G.O.Ms.No.18 dated 15.06.2020 formulating the scheme to provide 9 hours day time power supply to the agriculture sector on sustainable basis, has decided to implement the solar power projects in the State and issued operational guidelines for implementation of the scheme. The 4th respondent shall be the executing Agency for the project and shall take action to set up 10,000 MWs solar power capacity in a phased manner in order to provide 9 hours day time free power supply to agriculture consumers and connect the scheme to the Grid. The 4th respondent shall procure the power through competitive bidding and shall monitor progress of the 10,000 MWs solar initiatives in all aspects by putting an appropriate mechanism in place. The 4th respondent shall be the nodal agency for developing solar parks under Ultra Mega Solar power projects scheme and UMREPP scheme of the Government of India and APSPCL shall provide required assistance to the 4th respondent. The 4th respondent shall prepare the DPR's and submit the same to the MNRE for obtaining Central Financial Assistance and it shall be responsible for development of solar parks either through solar power developer or any agency with the grants received from MNRE. The solar power developer shall be responsible for development of solar project and internal evaluation infrastructure within the solar park as well as their annual Operation and Maintenance (O&M). For transparent bidding process, a purchase committee is constituted. The purchase committee shall conduct the bid process, including issue of bid documents, conducting pre-bid meetings, initiating bids from developers and evaluation of bids received from the bidders. After evaluation of the tenders, the purchase committee shall submit their recommendations to the Tender approval Committee. The bids shall be invited under BOT mode with flat tariff of 15 years and prefixed reduced Tariff thereafter to meet O&M and other expenses for the balance period of 15 years. The Solar project will be transferred to the 4th respondent at the end of useful life of the project. The 3rd respondent-Government through 4th respondent shall pay monthly energy charges to the Solar Power Developers, energy charges will be paid to the projects from the date of COD for a period of 30 years (fixed Tariff for 15 years and prefixed reduced charges from 16th year). The 4th respondent is permitted to lease the lands to solar power developers by collecting annual lease charges (INR 31,000 per acre per annum). The 4th respondent shall enter into separate agreements with the licensees to supply and distribute the power to the end-consumers on payment of cost/charges as approved by the APERC as per the appropriate guidelines issued by the State Government under Section 108 of the Electricity Act, 2003 from time to time. On 30.11.2020, the 4th respondent issued impugned RFS and the impugned draft PPA pertaining to the project and invited bids from the solar power developers, duly fixing last date for submission of bids was 28.12.2020.

(3.) The case of the petitioner is that the petitioner - M/s.Tata Power Renewable Energy Limited is a company incorporated under the Companies Act, 1956 and a generating company within the meaning of Section 2 sub- section 28 of the Act. The petitioner claims to be the genuine prospective bidder and states that it is a wholly owned subsidiary of the Tata Power Company Limited (TPC) and it is technically and financially eligible to participate in the bidding process. But the impugned RfS and draft PPA are issued contrary to the provisions of the Electricity Act and competitive bidding guidelines dated 03.08.2017 issued by the Central Government under Section 63 of the Act and thereby the competitive bidding process lacks its transparency. Hence, it could not participate in the bidding process as it is prejudicial to the petitioner's right to participate.