Jindal India Thermal Power Limited vs Central Electricity Regulatory Commission & Anr.

------------------------------------------------- Appeal No.

78 of 2022 Page 1 of 20 IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction) APPEAL No.

78 OF 2022 Dated : 31st July, 2024 Present : Hon’ble Mr.

Sandesh Kumar Sharma, Technical Member Hon’ble Mr.

Virender Bhat, Judicial Member In the matter of : Jindal India Thermal Power Limited Through its Authorized Representative Plot No.

2, Pocket-C, Nelson Mandela Marg, Vasant Kunj, New Delhi – 11007 Email: [email protected] …Appellant Versus 1.

Central Electricity Regulatory Commission Through its Secretary, 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi - 110001 Email: [email protected] 2.

GRIDCO Limited Through its Chairman, Janpath, Bhubneshwar-751020 Odisha Email: [email protected] …Respondents Counsel for the Appellant(s) : Sajan Poovayya, Sr.

Counsel Matrugupta Mishra Swagitika Sahoo Ritika Singhal Vignesh Srinivasan Sanjeev Singh Thakur Ishita Thakur for App.

1 ------------------------------------------------- Appeal No.

78 of 2022 Page 2 of 20 Counsel for the Respondent(s) : Raj Kumar Mehta for Res.

2 JUDGMENT PER HON’BLE MR.

VIRENDER BHAT, JUDICIAL MEMBER 1.

The Appellant in this appeal is aggrieved by order dated 12th February, 2022 passed by the 1st Respondent – Central Electricity Regulatory Commission (CERC) whereby the petition filed by the Appellant under Section 62 of the Indian Electricity Act, 2003 for determination of tariff for its 1200 MW coal-based power project in the State of Odisha for the period from 12th February, 2015 till 31st March, 2019, has been held to be not maintainable in view of pendency of the Writ Petition No.

18150 of 2018 filed by the Appellant itself in the Hon’ble High Court of Odisha.

2.

Odisha.

The facts which are relevant for our consideration in this appeal are as under :- (i) The Appellant is a company incorporated under the Companies Act, 1956 and is a generating company within the meaning of Section 2(28) of the Electricity Act, 2003.

It is operating 2x600 MW coal-based power plant at Village-Derang, District-Angul, Odisha. ------------------------------------------------- Appeal No.

78 of 2022 Page 3 of 20 (ii) The Respondent No.

2/ GRIDCO is the nominated agency to act on behalf of the Government of Odisha to receive the delivery of power from the Appellant’s plant. (iii) Initially, the power plant was owned by Jindal Photo Limited (JPL) which had entered into Memorandum of Understanding (MOU) dated 26.9.2006 with the State Government of Odisha for setting up of the Project.

PPA dated 28.9.2006 was also executed by JPL with State Government of Odisha, wherein, the nominated agency of the State Government had the right to purchase up to 25% power sent out from the Project in terms of the PPA, and tariff for such purchase was to be determined by the appropriate Regulatory Commission.

Later on, JPL assigned the Project to the Appellant on 14.5.2008.

Constantly, fresh MOUs (Memoranda of Understanding) dated 17.10.2008 and 30.12.2010 were signed by the Appellant with the State Government.

Subsequently, Appellant also signed PPA dated 05.01.2011 and supplementary PPA dated 23.07.2013 with the State Government which were approved by Odisha Electricity Regulatory Commission (OERC) on 4th June, 2019 with some modifications. ------------------------------------------------- Appeal No.

78 of 2022 Page 4 of 20 (iv) Aggrieved by the said order of OERC, the Appellant filed Appeal No.

Appeal No.

297 of 2019 before this Tribunal and by interim order dated 28th August, 2020, this Tribunal stayed the operation of the said order as well as all consequential action taken therein.

The appeal is still pending disposal. (v) Thereafter, the Appellant filed Petition No.

26 of 2014 before OERC on 27th December, 2014 under Section 62 read with Section 86(1)(a) of the electricity Act, 2003 read with relevant Tariff Regulations for Determination of Tariff for the said project for the control period 2014-2019.

The petition had been filed before OERC because till that date the Appellant had not executed the PPA with any other entity/State Govt. except the GRIDCO.

During the pendency of the Petition before OERC, the Appellant executed multiple long-term and medium-term PPAs with Distribution Licensees situated in several States of India.

Accordingly, in pursuance to execution of these PPAs, the Appellant’s project fell under the ambit of composite scheme in terms of Section 79(1)(b) of the Electricity Act, 2003 and hence the petition was disposed of by the Commission vide order dated 26th February, 2018 while observing that the determination of tariff ------------------------------------------------- Appeal No.

78 of 2022 Page 5 of 20 for the power generated by the Appellant from the said project falls under the jurisdiction of Central Commission i.e.

CERC.

The Appellant assailed the said order of OERC before this Tribunal by way of Appeal No.

250 of 2018 which was dismissed vide judgement dated 10th January, 2022 upholding the jurisdiction of the Central Commission. (vi) Thereafter, the Appellant filed the Petition No.

276 of 2018 before the 1st Respondent-CERC under Section 62 read with Section 79(1)(b) and 79(1)(f) of the Electricity, Act, 2003 for determination of tariff for its coal based power project in Odisha.

It is in this petition that the impugned order has been passed. en passed. (vii) Soon after filing of Petition No.

276 of 2018 with the Central Commission, the Appellant also filed the Writ Petition bearing No.

18150 of 2018 before the Hon’ble High Court of Odisha on 20th November, 2018 seeking quashing of the notification dated 8th August, 2008 issued by the Govt. of Odisha as well as the MOUs dated 17th October, 2008 and 30th December, 2010 as also PPA dated 5th January, 2011 and supplementary PPA dated 23rd July, 2013.

Vide order dated 16th ------------------------------------------------- Appeal No.

78 of 2022 Page 6 of 20 May, 2019 passed in the said Writ Petition, the Hon’ble High court has directed that no coercive action shall be taken against the Appellant. (viii) Upon filing of the said Writ Petition in the Hon’ble High Court of Odisha by the Appellant, the 2nd Respondent filed IA No.

72 of 2019 in Petition No.

276 of 2018 before the 1st Respondent- CERC claiming rejection of the tariff petition as not maintainable in view of the issues raised by the Appellant in the Writ Petition as well as the prayer made therein, which, according to the 2nd Respondent, were identical to the issues involved in the Tariff Petition. (ix) Vide the impugned order, the Commission allowed the said IA No.

72 of 2019 by holding that the Writ Petition by filed by the Appellant is not maintainable in view of the pendency of the Writ Petition before the Hon’ble High Court.

3.

Accordingly, the Appellant had approached this Tribunal by way of the instant appeal assailing the said impugned order dated 12th February, 2022 of the Central Commission. ------------------------------------------------- Appeal No.

78 of 2022 Page 7 of 20 4.

We have heard Learned Senior Counsel for the Appellant as well Learned Counsel for the 2nd Respondent at length.

5. length.

5.

Learned Senior Counsel for the Appellant vehemently argued that the impugned order of the Commission is erroneous and suffers from inherent contradictions.

He submitted that the :- i.

The Appellant has been rendered remediless since the Appellant now has no forum where it can apply for tariff determination, which falls under the ambit of composite scheme.

While on one hand the Ld.

CERC has relied on this Hon’ble Tribunal’s order dated 10.01.2022 to hold that the jurisdiction to determine tariff for the Appellant’s Project lies with it, the Ld.

CERC has also disposed the Tariff Petition as being not maintainable, since, the Writ Petition is pending adjudication before the Hon’ble High Court, though seeking completely different set of prayers; ii.

The Ld.

CERC by misinterpreting Section 10 of CPC has disposed the Tariff Petition over which the Ld.

CERC itself admittedly has exclusive jurisdiction; iii.

Section 10 is applicable only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter as well as the relief sought in both the proceedings are identical.

Further, it empowers the court to stay ------------------------------------------------- Appeal No.

78 of 2022 Page 8 of 20 the proceeding rather than dismissing the same in complete mis-interpretation of Section 10 of CPC; iv.

Applicability of Section 10 is determined not only by identical subject matter but also by the relief claimed in both the suits.

In the instant matter, as a matter of fact, the relief claimed by the Appellant before the two forums, i.e., the Ld.

CERC and the High Court are completely different.

Further, neither forum can grant the relief sought before the other forum; v.

In the High Court of Orissa, the petition has been filed under Article 226 of the Constitution of India challenging the legal validity of State Government’s Notification, dated 08.08. ted 08.08.2008, and consequential MOU and PPA.

Such petition cannot be equated with the Tariff Petition filed before the Ld.

CERC under Section 79(1)(b) of the Electricity Act, 2003; vi.

CERC instead of analyzing the issues raised and the relief, sought by the Appellant before the two forums, i.e., the Ld.

CERC and the High Court, has instead focused on the submissions made before the two forums; vii.

CERC has overlooked that irrespective of the judgment passed by the Hon’ble High Court of Orissa in the Writ Petition filed by the Appellant, the tariff would still have to be determined by the Ld.

The Appellant has no alternative forum where it can go for tariff determination of its Project since the said project falls under the ambit of composite scheme; ------------------------------------------------- Appeal No.

78 of 2022 Page 9 of 20 viii.

CERC has also overlooked that it is statutorily obligated under Section 79(1)(b) of the Electricity Act, 2003 to determine tariff of generating companies, such as the Appellant which exclusively falls under the composite scheme and admittedly all disputes are being adjudicated by Ld.

CERC only.

CERC thus, cannot refuse to carry out its statutory functions on the pretext of pendency of proceedings before a High Court on a different aspect; ix.

Further, Petition No.

276/GT/2018 predates the Writ Petition, preferred by the Appellant, before the High Court of Orissa.

While the Tariff Petition was filed on 20.08.2018, the Writ Petition was filed on 20.11.2018 and hence the disposal of the Tariff Petition invoking Section 10 of the CPC is patently incorrect.

The impugned order, thus, merits to be set aside. x.

This is not a matter of parallel proceedings. oceedings.

While before the Odisha High Court, the Appellant has challenged the vires of notification dated 8th August, 2008 and certain clauses of the PPA/MOU, the Appellant had sought determination of tariff before the CERC.

The Relief sought before one forum could not have been provided by the other forum and, therefore, it is not a case of forum shopping, as sought to be contended by the 2nd Respondent.

6.

Per Contra, Learned Counsel for 2nd Respondent-GRIDCO strongly refuted the submissions of Learned Counsels for the ------------------------------------------------- Appeal No.

78 of 2022 Page 10 of 20 Appellant.

He contended that the impugned order of the Commission is absolutely justified in the facts and circumstances of the case and does not suffer from any infirmity.

He further argued that :- (i) The fact that Petition for Two Part Tariff before CERC and Writ Petition before Hon’ble High Court of Orissa have been filed by Appellant on substantially similar allegations is evident from the averments in the Tariff Petition (Pg.

58-62, Para 8-17) and Writ Petition (Pg.

172-179, Para 21-29; Prayer at Pg.

181-182). (ii) A perusal of the averments in the Tariff Petition and Writ Petition would clearly show that the Cause of action and Substratum of the case of the Appellant in the Tariff Petition and in the Writ Petition before the High Court is substantially the same namely whether in view of the provisions of Revised MOU/PPA providing for supply of Power to GRIDCO at Variable Cost, the appellant is entitled to claim two Part Tariff. (iii) The crux of the Writ Petition before the High Court and Tariff Petition before CERC is ‘Whether in respect of Power to be supplied by Jindal to GRIDCO Jindal is entitled to Variable Cost or Two Part Tariff? (iv) It is the settled position of law by a catena of Judgments of Hon’ble Supreme Court that Parallel Proceedings for similar relief before two different Forums a t Forums are not maintainable.

Reliance in this regard is placed on the judgment of Hon’ble Supreme Court in the case of State of HP Versus Surender Singh (2006) 12 SCC 484 (Para 18, Pg 7 of the Compilation); ------------------------------------------------- Appeal No.

78 of 2022 Page 11 of 20 “18.

If a candidate or a voter had the knowledge that the elected candidate was disqualified in terms of Section 122 of the Act, he may file an application.

The order of eviction may come to the notice of some other person after the election process is over.

A situation, thus, may arise where two different proceedings may lie before two different authorities at the instance of two different persons.

Two parallel proceedings, it is well settled, cannot be allowed to continue at the same time.

A construction of a statute which may lead to such a situation, therefore, must be avoided.

It will also lead to an absurdity if two different tribunals are allowed to come to contradictory decisions.” (v) It is submitted that merely by camouflaging the pleadings and prayer in the Tariff Petition and the Writ Petition the Appellant cannot avail parallel remedies simultaneously before two forums.

It is for the forum concerned to scrutinize and find out the ‘Real Substratum’ of the case by separating ‘Grain’ from the ‘Chaff’.

This is exactly what Commission has done in the impugned order. (Para 25-31, Pg 44-49) (vi) The Action of the Appellant in filing parallel proceedings before the Hon’ble Odisha High Court and before the Central Commission amounts to “Forum Shopping” which cannot be permitted and has been deprecated by the Supreme Court in several judgements. (vii) Even though the Commission has referred to Section 10 of Civil Procedure Code (CPC) in the impugned order, the order is not based squarely on Section 10(CPC). n 10(CPC).

The Commission has referred to the said legal provision only to remind itself about ------------------------------------------------- Appeal No.

78 of 2022 Page 12 of 20 the well settled principle envisaged therein that parallel proceedings before two forums are not maintainable.

7.

We have given our thoughtful consideration to the rival submissions made by Learned Counsels on behalf of the parties and have gone through the impugned order as well as the entire record.

We have also perused the written submissions filed by the Learned Counsels.

8.

The issue which arises for our determination in this appeals is :- (i) Whether the Commission was correct in holding that the Tariff Petition No.

276 of 2018 filed by the Appellant was not maintainable in view of pendency of the Writ Petition No.

18150 of 2018 filed by the Appellant before the Hon’ble High Court of Odisha?

9.

We think it pertinent to quote para 26 & 27 of the impugned order of the Commission hereunder :- “26.

Though JITPL has stated that it has only challenged the policy of the State Government before the Hon’ble High Court in the writ petition and the issues raised are substantially different, we observe that in both forums, JITPL has placed submissions with regard to its entitlement to tariff (both fixed cost and variable charges) in terms of Section 62 read with the Tariff Regulations notified by this Commission.

We notice that the issues raised by JITPL in both the forums are substantially the same.

Section 10 of the Civil Procedure Code, 1908 provides as under: “Stay of suit ------------------------------------------------- Appeal No.

78 of 2022 Page 13 of 20 No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or m they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India have jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court”.

27.

As the identity of the subject matter and the field of controversy between the parties in the proceedings before both the forums (i.e.

Hon’ble High Court and this Commission) are directly and substantially the same, there is no reason for JITPL to in parallel seek the determination of tariff of this generating station by this Commission, under Section 62 of the Act read with the 2014 Tariff Regulations notified by this Commission.” 10.

It is manifest from the reading of these two paragraphs of the impugned order that the Commission has invoked the principles envisaged under Section 10 of the Civil Procedure Code, 1908 to rule against the maintainability of Tariff Petition of the Appellant.

We are in agreement with the submissions made by Learned Senior Counsel for the Appellant that Section 10 CPC is not applicable to the instant case.

Firstly, for the reason that Section 10 CPC applies only to Civil Suits filed in Civil Courts and not to other proceedings in other Courts/Tribunals.

Therefore, it has no application to the Tariff Petition filed by a generator before the appropriate Commission.

Secondly, Section 10 CPC bars the trial of a subsequent suit, the subject matter of which is directly or substantially identical to that of a previously ------------------------------------------------- Appeal No.

78 of 2022 Page 14 of 20 instituted suit between the same parties.

That is not the case herein.

The Tariff Petition had been filed by the Appellant on 19th August, 2018 whereas the Writ Petition was filed by it in the High Court of Odisha subsequently on 20th November, 2018. ber, 2018.

Therefore, the Tariff Petition was prior in time than the Writ Petition which rules out the applicability of Section 10 CPC.

11.

This brings us to the crucial aspect as to whether the principles envisaged under Section 10, which bars continuation of two parallel proceedings arising out of same subject matter and having identical issues, could be applied to the instant case.

12.

In the Tariff Petition filed before the Commission, the Appellant has prayed as under :- “(a) Admit the present petition and permit the Petitioner to file such additional information/ submissions as may be necessary for the purpose of determination of tariff for 2014-19 under Sections 62 and 79(1)(b) of the Electricity Act, 2003 read with the CERC (Terms and Conditions of Tariff) Regulations, 2014; (b) Approve the actual capital cost of the project as submitted in this petition towards Unit-I and II of 1200 MW power plant; (c) Approve the final generation tariff (annual fixed charges and energy charges) of 1200 MW project of the Petitioner from the date of COD till 2018-19; (d) Allow the Petitioner to charge final generation tariff on month on month basis as per CERC (Terms and Conditions of Tariff) Regulations, 2014; (e) Allow pass through at actual any cess, duty, tax, government levy, royalty etc. including Electricity Duty on Auxiliary ------------------------------------------------- Appeal No.

78 of 2022 Page 15 of 20 Consumption applicable to the Petitioner for supply of power to GRIDCO as per the provisions of PPA; (f) To permit the Petitioner to recover the filing fee and publication expenses of the Petition from the respondents. (g) Condone any inadvertent omissions / errors / rounding off difference / shortcomings and permit the Petitioner to add / alter this filing and make further submissions as may be required by the Hon’ble Commission;” 13.

The Writ Petition No. tition No.

18150 of 2018 filed by the Appellant before the High Court of Odisha contains following prayers :- “(a) Admit the Writ Application; (b) Issue Rule nisi calling upon the Opp.

Parties to show cause as to why the Notification No.

8960-OPGC-PPD-TH-97/07/E dated 08.08.2008 (Annexure – 8) issued by Department of Energy, Government of Odisha (Opp.

Party No.

1) providing for supplying power at variable cost shall not be quashed being illegal, arbitrary, without authority of law, violative of Article 265, 300A and 14 of the Constitution of India and ultra vires the provisions of Sections 61 and 62 of the Electricity Act and Regulations made thereunder; (c) Issue Rule nisi calling upon the Opp.

Parties to show cause as to why Clause 3 of the Supplemental Memorandum of Understanding dated 17.10.2008 (Annexure-9) executed between State of Orissa and the Petitioner herein amending clause 1.(iii) of the MOU dated 26.09.2006, Clause 2.2.1 and Clause6.1 and 6.4 of the Power Purchase Agreement dated 05.01.2011 (Annexure-11) between the Petitioner and GRIDCO pursuant to Notification No.

8960-OPGC- PPD-TH- 97/07/E dated 08.08.2008 as well as Clause 1.0 of the Supplementary Power Purchase Agreement dated 23.07.2013 (Annexure-12) amending Clause 4.0 of the Power Purchase Agreement dated 05.01.2011 by providing for the Petitioner Company to bear the necessary interstate transmission charges, including transmission losses and other applicable charges while supplying State’sshare of power, shall not be declared as illegal and void and non-est in law and contrary to the provisions of Section 61 and 62 of the Electricity Act and Regulations made thereunder; (d) Issue Rule nisi calling upon the Opp.

Parties to show cause as ------------------------------------------------- Appeal No.

78 of 2022 Page 16 of 20 to why the Opp. y the Opp.

Parties shall not be directed to implement Clause 5(I)(xiv) {wrongly printed as Clause 5(I)(xiii)} of the Memorandum of Understanding dated 26.09.2006 in its true letter and spirit; (e) Issue Rule nisi granting consequential relief to the Petitioner; 14.

In the first blush, it would appear that the two proceedings are totally distinct from each other as the Appellant, in the Tariff Petition has sought determination of tariff for its generating station under the relevant provisions of the Electricity Act, 2003 read with relevant tariff Regulations whereas in the Writ Petition it has sought quashing of MOUs, PPAs and notification dated 8th August, 2008 issued by the Government of Odisha.

However, on deep scrutiny of the contentions of the Appellant in both the Tariff Petition as well as the Writ Petition, it comes out that the subject matter and the issues involved in both the proceedings are absolutely identical and the decision in the Tariff Petition would squarely depend upon the decision of the Hon’ble High Court of Odisha in the Writ Petition.

15.

As already noted herein above in the MOUs dated 17th October, 2008 and 30th December, 2010 as well as in the PPAs dated 5th January, 2011 and 23rd July, 2013, the Appellant has agreed to a tariff for its power project at variable cost.

However, later on it felt cheated by the State Government and considered itself entitled to claim full tariff ------------------------------------------------- Appeal No.

78 of 2022 Page 17 of 20 as per the relevant tariff Regulations.

Accordingly, it filed the Petition No.

276 of 2018 claiming tariff for its tariff power project under Section 62 read with Section 79(1)(b) of the Electricity Act, 2003 and 79(1)(f) of the Electricity Act, 2003 read with CERC Regulations, 2014 dehors the afore-stated MOUs and PPAs.

We find it profitable to quote following paragraphs of the petition hereunder :- “9. der :- “9.

While interpreting contracts, it is a settled principle of law that due regard has to be made to the intention of the parties at the time of executing the contract.

In the present case, the state government put to the notice of the Petitioner that an agreement to supply power at only variable cost be executed, and that the said State Government would get a policy/statutory backing since under the provisions of the Electricity Act, 2003, a distribution licensee cannot procure power only at variable cost.

It is stated that as per Sections 61, 62 and 86(1)(b) of the Act, the distribution licensees are mandated to procure power by payment of cost of generation, which includes variable as well as fixed costs.

The only reason why the Petitioner agreed to sign the PPA at variable cost, was because the said Petitioner was made to believe that suitable changes in the statutory scheme would be effected by the Central Government, at the instant of the State Government, thereby taking away the ability of a generating company to claim full tariff as per regulations.

Based upon the said representation, and the fact that the Petitioner had to make an investment decision, the said Petitioner agreed to supply power at variable cost only on account of the above representation of the State Government.

10.

However, the Petitioner submits that the above representation by the State Government was a manner by which the said Petitioner was agreed to supply power on variable cost based on the above said conditions.

The State Government mis-represented to the Petitioner that the statutory scheme qua tariff would be changed, and that the said Petitioner would not be entitled to fixed cost, the Petitioner agreed to execute the PPA since, a lot of investment was at stake.

Therefore, when it is apparent that the State Government made the above mis-representation, the PPA clause ------------------------------------------------ ----------- Appeal No.

78 of 2022 Page 18 of 20 mandating payment of only variable cost to the Petitioner, is a voidable clause, and when the Petitioner has brought on record the above facts, the above PPA clause has to be treated as a nullity in law.

In view of the above, the Petitioner in entitled to tariff as guaranteed under the tariff principles contained in Section 61 of the Electricity Act, 2003, which specifically mentions that generation of power has to be done on commercial principles and that a generator is entitled to its entire cost of generation.

It is further submitted that when the MOU and the PPA was entered into by the parties the power sector scenario was totally different, and the IPPs expected more bids and PPAs from the DISCOMS.

It was in this backdrop that the petitioner herein agreed to provide power to the Respondent at variable cost only.

However, the situation of power industry is totally different and no new bids are expected to come up.

Even, the Parliamentary Standing Committee on Energy in its 37th and 40th Report has accepted that the current condition of private power producers is very critical and they are suffering from a lot of setbacks.

13.

It is submitted that when the basic premise on which the provisioning of supply of power only on variable cost was to be introduced, in the absence of such policy, or statutory backing, to be notified by the Government of India, the entire gamut of supplying power on variable cost only, has no sanction whatsoever, hence non-est in the eyes of law.

Therefore, no exception can be drawn in the present case, and the Petitioner is entitled to full tariff as enumerated under Section 62 of the Electricity Act, 2003.

On account of the above mis-representation there cannot be any argument at all that the Petitioner executed the PPA / contract for variable cost, with open eyes or by taking a commercial decision. decision.

It is stated that mis- representation or fraud vitiates everything and it goes to the very root of the contract, which condition cannot be cured by any explanation whatsoever.

14.

It is settled principle of law that statute overrides the provisions of a contract.

Hence, in light of the above mis-representation by the State Government thereby the Petitioner executed the PPA at variable cost, the tariff has to be determined as per the aforementioned statutory provisions, and not by the contents of the contract which are hit by Section 23 of the contract Act, 1872.” 16.

The prayer in the Writ Petition filed by the Appellant in the Odisha High Court has already been noted herein above.

In the Writ ------------------------------------------------- Appeal No.

78 of 2022 Page 19 of 20 Petition also, the Appellant has sought quashing of these MOUs and PPAs executed by it with the State Govt. of Orissa.

17.

It is amply clear that in case the Hon’ble Odisha High Court does not agree to the contentions of the Appellant and refuses to quash the MOUs, PPAs and the Notification dated 8th August, 2008 issued by the Govt. of Odisha, the Appellant would be entitled tariff as agreed in the PPAs.

It is only in case the Hon’ble High Court finds itself in agreement with the contentions of the Appellant in the Writ Petition and quashes the PPAs, MOUs and the Notification dated 8th August, 2008 that the Appellant can claim its entitlement to full tariff for its generating situation as per the relevant provisions of Electricity Act and the Tariff Regulations.

Therefore, in our considered opinion, the Commission was correct in holding that the Tariff Petition is not maintainable at this stage as the judgement of the Hon’ble High court in the Writ Petition No.

18150 of 2018 would have a direct bearing upon the Appellant’s entitlement to tariff. to tariff.

As far as the Commission is concerned, it cannot rule upon the legality/correctness and propriety of the MOUs as well as PPAs executed between the Appellant and the Govt. of Odisha.

It has to base its determination of tariff upon these ------------------------------------------------- Appeal No.

78 of 2022 Page 20 of 20 MOUs and PPAs which are binding upon the parties unless quashed by the Hon’ble High Court in the above noted Writ Petition.

18.

In the light of the above discussion, we do not find any error or infirmity in the impugned order of the Commission.

The Appeal is devoid of any merit and is hereby dismissed.

19.

However, the Commission, instead of disposing off the Tariff Petition, ought to have adjourned it sine die to be revived after the judgement of Hon’ble High Court in W.P.

No.

18150 of 2018.

We direct accordingly.

The Appellant shall be at liberty to get the Tariff Petition No.

276 of 2018 revived after the disposal of the Writ Petition by the Hon’ble High Court of Odisha, if it is so advised.

Pronounced in the open court on this 31st day of July, 2024. (Virender Bhat) Judicial Member (Sandesh Kumar Sharma) Technical Member (Electricity) js