Eastern Power Distribution Company Of Andhra Pradesh Limited vs Tata Power Renewable Energy Limited - Order(1) - Unknown Date

15, 35,
36, 47
& 48

HIGH COURT OF ANDHRA PRADESH : AMARAVATI

MAIN CASE: W.A.Nos.388, 394, 418, 439 and 443 of 2021

PROCEEDINGS SHEET

Sl.<br>No.	DATE	ORDER	OFFICE<br>NOTE
	20.07.2021	(Taken up through video conferencing)
		I.A.No.1 of 2021 in W.A.No.418 of 2021,
		I.A.No.1 of 2021 in W.A.No.439 of 2021 &
		I.A.No.1 of 2021 in W.A.No.443 of 2021
		These are the applications for dispensing with the
		filing of certified copies of the order under appeal.
		Dispensed with for the present.
		I.As. stand disposed of.
		I.A.No.2 of 2021 in W.A.No.394 of 2021
		This is an application for dispensing with the filing
		of annexures/material papers filed in the writ petition.
		Dispensed with for the present.
		I.A. is accordingly disposed of.
		W.A.Nos.388, 394, 418, 439 and 443 of 2021
		Challenge in these appeals is to a judgment and
		order dated 17.06.2021 passed by the learned single
		Judge in W.P.No.674 of 2021, which was filed praying for
		a writ of certiorari 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 (PPAs) issued by
		the Andhra Pradesh Green Energy Corporation Limited<br>(hereinafter referred to as 'APGECL') (respondent No.4 in
		the writ petition) and for a direction to APGECL to issue
		fresh RfS strictly in accordance with the Guidelines for
		Tariff Based Competitive Bidding Process for Procurement
		of Power from Grid Connected Solar Photo Voltaic Power
		Projects dated 03.08.2017 issued under Section 63 of the
		Electricity Act, 2003 (for short, 'the Act of 2003').

Sl.<br>No.	DATE	ORDER	OFFICE<br>NOTE

		As<br>W.A.Nos.418,<br>439<br>and<br>443<br>of<br>2021<br>are
		preferred by L1 bidders who were not parties to the writ
		petition, they filed applications for grant of leave to
		appeal, which are numbered as I.A.No.2 of 2021 in the
		respective appeals.
		Mr. Deepak Chowdhury, learned counsel, appears
		for<br>the<br>applicant/appellant<br>in<br>W.A.No.418<br>of<br>2021.
		Mr. Kapil Sibal, learned senior counsel, appears for
		the applicant/appellant in W.A.No.439 of 2021.
		Mr. Mukul Rohatgi, learned senior counsel along
		with Mr. S. Vivek Reddy, learned senior counsel, appears
		for the applicant/appellant in W.A.No.443 of 2021.
		Sri S. Sri Ram, learned Advocate General, appears
		for the State authorities/appellants in W.A.No.388 of
		2021.
		Sri P. Sri Raghu Ram, learned senior counsel,
		appears<br>for<br>the<br>appellants<br>in<br>W.A.No.394<br>of<br>2021
		(respondent Nos.7 and 8 in the writ petition).
		Dr. Abhishek Manu Singhvi, learned senior counsel
		assisted by Mr. Shri Venkatesh, along with Mr. D. Prakash
		Reddy, learned senior counsel, appears for the writ
		petitioner.
		Mr. N. Harinath, learned Assistant Solicitor General
		of India, appears for Union of India.
		Mr. V.R.N. Prasanth, learned counsel appears for
		Andhra Pradesh Electricity Regulatory Commission.
		The applications for leave are not opposed by the
		learned senior counsel appearing for the writ petitioner
		and the other counsel appearing today.
		We have perused the applications and on due
		consideration, leave to appeal is granted.<br>Accordingly,
		I.A.No.2 of 2021 in W.A.No.418 of 2021, I.A.No.2 of 2021
		in<br>W.A.No.439<br>of<br>2021<br>and<br>I.A.No.2<br>of<br>2021<br>in
		W.A.No.443 of 2021 are disposed of.
		Also heard learned counsel for the parties on the
		writ appeals.
		Amongst many contentions advanced in the writ
		petition, it was projected that the writ petitioner could not
		take part in the bidding process as the impugned RfS and

Sl.<br>No.	DATE	ORDER	OFFICE<br>NOTE
		draft PPAs are contrary to provisions of Sections 63 and
		86 of the Act of 2003 and that the deviations in the
		impugned RfS and impugned PPAs had not been approved
		by the Andhra Pradesh Electricity Regulatory Commission
		(for short, 'APERC') and they oust the powers and
		jurisdiction of APERC, which is appropriate commission for
		adjudication of any disputes arising out of PPAs. It is also
		contended therein that the impugned RfS and draft PPAs
		are in gross violation of the Arbitration and Conciliation
		Act, 1996.
		The learned single Judge, by the order under
		assailment, set aside the impugned RfS and draft PPAs,
		reserving liberty to the APGECL to issue fresh RfS, if so
		advised, in accordance with the guidelines for Tariff Based
		Competitive Bidding Process for Procurement of Power
		from Grid Connected Solar Photo Voltaic Power Projects
		dated 03.08.2017 issued under Section 63 of the Act of
		2003.
		Arguments advanced on behalf of the L1 bidders,
		appellants in W.A.Nos.418, 439 and 443 of 2021, are
		primarily to the effect that they were necessary parties to
		the writ petition and the order passed in their absence is a
		nullity, being in violation of principles of natural justice
		and therefore, the impugned order cannot be sustained in
		law.<br>They<br>have<br>also<br>contended<br>that<br>the<br>reasoning
		assigned by the learned single Judge is also not tenable in
		law. It is also submitted that the parent company of the
		writ petitioner had prayed for extension of time to bid by
		a period of six weeks along with prayer for modification in
		respect of some of the conditions of the bid document but
		the same having not been accepted, the writ petition
		came to be initiated at the instance of writ petitioner and
		therefore, present is not a bona fide litigation. When the
		writ petitioner did not participate in the tendering process,
		given the projections that were made in the writ petition,
		the learned single Judge ought not to have entertained
		the writ petition. It is further contended that allowing of
		the writ petition has affected public interest.

Sl.<br>No.	DATE	ORDER	OFFICE<br>NOTE
		On behalf of the other appellants who were parties<br>to the writ petition, it is contended, amongst others, that<br>the order of the learned single Judge needs to be<br>interfered with as conclusions reached on the touchstone<br>of the provisions contained in the Act of 2003 are not<br>tenable in the facts and circumstances of the case.
		It is also submitted that in the attending facts and<br>circumstances, successful tenderers ought to have been<br>arrayed as parties and, therefore, any adjudication made<br>in their absence cannot receive judicial imprimatur.
		contra,<br>Dr.<br>Abhishek<br>Manu<br>Singhvi<br>has<br>Per<br>submitted that the order of the learned single Judge is a<br>well reasoned order and on due consideration, the learned<br>single Judge had come to the conclusion that RfS and<br>draft PPAs are not in accordance with the guidelines for<br>Tariff Based Competitive Bidding Process. He has further<br>submitted that by reason of the interim order passed in<br>the writ petition on 07.01.2021, no agreements had been<br>entered into in relation to the impugned RfS and draft<br>PPAs with successful bidders and despite such an interim<br>order operating, the successful bidders did not assail the<br>said order and also had not impleaded themselves in the<br>writ petition.
		The weighty arguments advanced by the learned<br>senior<br>counsel<br>for<br>the<br>parties<br>will<br>require<br>in-depth<br>deliberations.
		Learned senior counsel for the parties, however,<br>submit that the matter is required to be heard as early as<br>possible inasmuch as the Government intends to set up<br>solar power projects in a phased manner in order to<br>provide 9 hours day time free power supply to agricultural<br>consumers.
		Admit the appeals for hearing.
		Registry will list these cases on 16.08.2021.
		In the attending facts and circumstances of the<br>case, while suspending the impugned order 17.06.2021

Sl.	ORDER	OFFICE
No.		NOTE
	passed by the learned single Judge in W.P.No.674 of
	2021, we also direct that, as provided by the learned
	single<br>Judge<br>in<br>the<br>interim<br>order<br>07.01.2021,<br>the
	respondents in the writ petition shall not to enter into any
	agreements in relation to the impugned RfS and draft
	PPAs with successful bidders, until further orders.



	NINALA JAYASURYA, J<br>ARUP KUMAR GOSWAMI, CJ
	IBL

Eastern Power Distribution Company Of Andhra Pradesh Limited vs. Tata Power Renewable Energy Limited

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Order Issued After Hearing

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HIGH COURT OF ANDHRA PRADESH : AMARAVATI

MAIN CASE: W.A.Nos.388, 394, 418, 439 and 443 of 2021

PROCEEDINGS SHEET

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