ADANI POWER LIMITED Vs. UTTAR HARYANA BIJLI VIDYUT NIGAM LTD., DAKSHIN HARYANA BIJLI VIDYUT NIGAM LTD. AND GUJARAT URJA VIKAS NIGAM LTD.

JUDGEMENT

(1.) THE present petition filed by Adani Power Limited under Section 79 of the Electricity Act has its roots in the Power Purchase Agreements (PPAs) signed by the petitioner with the utilities in the States of Gujarat and Haryana. The petitioner has made the following prayers:

(2.) ON 1.2.2006, Gujarat Urja Vikas Nigam Ltd (GUVNL) issued a public notice inviting bids for supply of power on long -term basis. In response to the notice, Adani submitted its bid quoting a levelised tariff of Rs. 2.3495/kWh. On 4.1.2007, Adani was selected as the successful bidder. The Letter of Intent dated 11.1.2007 was issued in favour of Adani. Subsequently, the Power Purchase Agreement (PPA) dated 2.2.2007 was signed between GUVNL and Adani for supply of 1000 MW of power at the rate of Rs. 2.35/kWh. Adani signed another PPA dated 6.2.2007 with GUVNL for supply of additional 1000 MW of power at Rs. 2.89/kWh. However, the dispute raised in the present petition is limited to the PPA dated 2.2.2007. At the instance of GUVNL, Gujarat Electricity Regulatory Commission (GERC) is said to have adopted the tariff under Section 63 of the Electricity Act.

(3.) IN the instant petition, Adani has stated that at the time of submission of bid to GUVNL it calculated the tariff considering the commitment made by Gujarat Mineral Development Corporation (GMDC) to supply 4 MTPA of coal from Morga -II coal block. Adani has further submitted that despite the strenuous efforts made at various levels, including at the level of the State Government, GMDC did not sign the FSA for supply of coal. Meanwhile, Adani had signed an agreement dated 15.4.2008 with its holding company, Adani Enterprises Ltd for supply of coal imported from Indonesia to meet its shortfall in fuel supply. Adani by its letter dated 28.12.2009 terminated the PPA dated 2.2.2007 executed with GUVNL on the ground of non -materialization of supply of coal by GMDC. GUVNL, feeling aggrieved by termination of the PPA by Adani, filed a petition, being Petition No 1000/2010 under clause (f) of sub -section (1) of Section 86 and Section 95 of the Electricity Act, 2003 (hereinafter "the Act") before Gujarat Eelectricity Regulatory Commission(GERC). This petition was allowed by GERC by its order dated 31.8.2010 directing Adani to supply power to GUVNL under the PPA since Adani had already decided to use the Indonesian coal for generation of electricity at Mundra Power Project and had signed agreement for supply of coal by its holding company. An appeal (Appeal No. 184/2010) filed by Adani against the order of GERC dated 31.8.2010 before the Appellate Tribunal was dismissed by the judgment dated 7.9.2011. Adani has filed the second appeal (Civil Appeal No. 11133/ 2011) before the Hon'ble Supreme Court under Section 125 of the Electricity Act and this appeal is pending. In view of the directions of GERC, also upheld by the Appellate Tribunal, Adani is said to be supplying power to GUVNL since 2.2.2012 on commercial operation of Units 5 and 6 of Mundra Power Project.