R.F.NARIMAN,J. - (1.) The present appeals arise from a judgment of the Appellate Tribunal for Electricity dated 7th April, 2016. The facts necessary to appreciate the issues which arise in the present case, which will cover all the cases before us, will be taken only from Civil Appeal No.5348 of 2016, namely Prayas (Energy) Group v. Central Electricity Regulatory Commission.
(2.) Section 63 of the Electricity Act, 2003 provides for procurement of power and determination of tariff by a transparent competitive bidding process. Once this is done, the appropriate Commission is to "adopt" the tariff which is accepted in the competitive bid subject to guidelines that are made by the Central Government. On 19th January, 2005, the Central Government issued detailed guidelines under this provision, which were amended from time to time. On 1st February, 2006, Gujarat Urja Vikas Nigam Limited (GUVNL) issued a public notice inviting proposals for supply of power on long term basis under three different competitive bid processes. The participating bidders were to decide on the tariff and quote such tariff after competing against each other. The bidders were entitled to quote escalable or non-escalable tariff or partly escalable and partly non-escalable tariff, as was considered appropriate by them to cover their respective risks so as to obtain whatever returns are available to them. The best levelised tariff as per certain pre-disclosed criteria was to be followed in order to arrive at the lowest tender.
(3.) Haryana Utilities also initiated a separate competitive bidding process for purchase of 2000 MW on a long term basis. This was done on 25th May, 2006. The participating bidders were also entitled to quote bids on the lines of the GUVNL public notice. Both the Gujarat Electricity Regulatory Commission and the Haryana State Regulatory Commission approved the bid documents and the process proposed by GUVNL and the Haryana Utilities, after which Requests for Proposal were issued by both of them. On 2nd/4th January, 2007, Adani Enterprises Consortium submitted its bid for generation and supply of 1000 MW to GUVNL, quoting a levelised tariff of Rs. 2.3495/kWh (Rs.1/kWh as the capacity charge and Rs. 1.3495/kWh as non-escalable energy charge). In the bid, the Consortium indicated that the lead member, Adani Enterprises, had an arrangement for indigenous coal requirement of the project with Gujarat Mineral Development Corporation, as the said Corporation had been allotted a certain coal block in the State of Chhattisgarh. Also, a Memorandum of Understanding was entered into between Adani Enterprises Ltd. and a German Company for supply of non-coking coal of 3 to 5 million tons (imported coal) on a long term basis till the year 2032. A similar Memorandum of Understanding was also entered into between Adani Enterprises and a Japanese agent for supply of 3 to 5 million tons of coal again on a long term basis. The two Memoranda of Understanding were attached to the bid submitted by Adani Enterprises.;