P.S.DATTA, J. - (1.) THESE three appeals are being disposed of by this common judgment and order in view of the fact that they arise out of two separate orders but emanating from the same facts. One order namely, the order dated 30.9.2011 was passed by the Rajasthan State Electricity Regulatory Commission in Petition no RERC/255/11 and RERC/256/11 filed separately by the two appellants in Appeal no.177 of 2011 whereby the Commission declined to adopt the transmission charges arrived at by the Appellants with the M/s GMR Energy Ltd. through the competitive bidding process as contemplated in Section 63 of the Electricity Act,2003. The other Appeal, being Appeal no.181 of 2011 has been preferred by the same Appellants namely Aravali Transmission Service Company Ltd. and Maru Transmission Service Company Ltd against the order dated 24.10. 2011 passed by the State Commission whereby the Commission declined to grant transmission license for transmission of electricity. Thus, the Appellants in the Appeal No181 of 2011 and Appeal No.177 of 2011 are Aravali Transmission Service Company Ltd. and Maru Transmission Service Company Ltd., while the Appellant in Appeal No. 21 of 2012 is Rajasthan Rajya Vidyut Prasaran Nigam Ltd. which challenges the Commission's order dated 30.9.2011 whereby the Commission refused to make adoption of transmission charges arrived at through competitive bidding processes. The facts are these: -
(2.) THE Govt. of Rajasthan by a communication dated 15.10.2008 constituted a State Level Empowered Committee with a view to encouraging competition in private sectors' participation of transmission projects in the State. A Member of the Rajasthan Electricity Regulatory Commission ( RERC) was made the Chairman of the Committee and the other members were Secretary (Energy), Secretary (Planning), Chairman of a Distribution Company and the Director (Technical) of the Rajasthan Rajya Vidyut Prasaran Nigam Ltd. The functions of the Committee were as follows: - a) To identify the projects to be developed by competitive bidding. b) To facilitate preparation of bid documents and invitation of bids through a suitable agency. c) To facilitate evaluation of bids. d) To facilitate finalization and signing of TSA between developer and concerned utilities. e) To facilitate development of projects by competitive bidding for transmission.
(3.) THE State Level Empowered Committewe in its first meeting on 16.1.2009 identified the schemes to be implemented through competitive bidding process and authorized Rajasthan Rajya Vidyut Prasaran Nigam Ltd. to act as Bid Process Co -ordinator for the purpose of selection of successful bidder as Transmission Service Provider (TSP). In Appeal No.181 of 2011 and the Appeal no 177 of 2011 details have been mentioned about the three projects which were scheduled to be implemented through competitive bidding process. The second meeting of the State Level Empowered Committee was held on 26.2.2009 and in the said meeting it was decided that bidding documents approved by the Ministry of Power, Govt. of India be adopted and Rajasthan Rajya Vidyut Prasaran Nigam Ltd. may go ahead with publication of Request For Proposal (RFP) in newspapers, that single stage two envelope Bid Process be adopted, that cost of the document be fixed at Rs.10, 000/ - and lastly bids should be invited on Build, Own and Operate basis. Now, in two state level newspapers, two national level newspapers, the Indian Trade Journal and in the Financial Times, London, the notice inviting bids were published for wide circulation. On 1.3.2009, Request For Qualification (RFQ), Request For Proposal (RFP) and Transmission Service Agreement (TSA) based on Standard Bidding Documents of the Govt. of India in the Ministry of Power were issued. On 31.3.2009 pre - bid Conference was held and the revised RPF project documents were issued on 15.4.2009. The pre -signed bidding documents were issued on 10.6.2009 and draft of Share Purchase Agreement (SPA) was issued on 1.7.2009. The last date of receipt of RFP and RFQ was fixed on 4.11.2009. It is contended by the appellants that there were 10 bidders who included M/s GMR Energy Ltd. and who according to the Appellants was the lowest successful bidder. Now, Rajasthan Rajya Vidyut Prasaran Nigam LTD. having been designated as Bid Process Co -ordinator by the State Level Empowwered Committee constituted by the Govt. of Rajasthan had to carry out the function of Bid process Co -ordinator as per Clause 3.1 of the Guidelines. Accordingly, Bid Evaluation Committee (Bid Evaluation Committee) which was required to be formed by the Rajasthan Rajya Vidyut Prasaran Nigam Ltd. in its capacity as Bid Process Co -ordinator as per Claus 9.8 of the Guidelines was constituted on 29.12.2009 and this Committee was later reconstituted on 8.1.2010. The Committee consisted of different functionaries which we will notice as we will proceed with the deliberations in the sequel. The Committee, according to the Appellants, was constituted taking into considerations of the provisions of the Competitive Bidding Guidelines and the decision of the State Level Empowwered Committee to authorise Rajasthan Rajya Vidyut Prasaran Nigam Ltd. to act as Bid Process Co -ordinator. On 18.12.2010, the Bid Evaluation Committee submitted its recommendations regarding evaluation of the RFQ and the recommendations were approved by the Board of Directors of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. in its meeting on 23.2.2010. On 3.3.2010, the non -financial part of RFP was opened as was recommended by the Bid Evaluation Committee and the said recommendation was approved by the Board of Directors of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. . Similarly, the financial part of the Bid was opened on 13.5.2010 in the presence of the bidders who wished to be present, and on that day the levelized transmission charges for the projects were compared. On 18.6.2010, the Bid Evaluation Committee recommended M/s GMR Energy Ltd. for being the lowest successful bidder for issuance in their favour Letter of Intent (LOI) for the transmission projects. This recommendation was recorded in the minutes of meeting of the Bid Evaluation Committee on 18.6.2010. Accordingly, on 28.9.2010, the Board of Directors of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. upon recommendations of the Bid Evaluation Committee decided to issue LOI in favour of M/s GMR Energy Ltd. for the projects in question and the LOIs were issued on 30th September, 2010. The Board of Directors of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. by meeting held on 15.12.2010 approved transfer of 100% shareholding of Rajasthan Rajya Vidyut Prasaran Nigam Ltd. and its two nominees who are the Appellants in Appeal Nos. 171 of 2011 and 181 of 2011 in favour of M/s GMR Energy Ltd. who was the successful bidder. The successful bidder was required in terms of the LOI and RFP to provide contract performance guarantee in favour of Long Term Transmission Customers (LTTCs) who include the distribution companies of Jaipur, Jodhpur and Ajmer, to execute Share Purchase Agreement, to acquire 100% Equity Share holding of the SPV from Rajasthan Rajya Vidyut Prasaran Nigam Ltd. , to execute RFP project document including TSA with the LTTCs, to make application in the name of SPV company to the State Commission for adoption of transmission charges and to apply in the name of SPV company to the State Commission for grant of transmission license. M/s GMR Ltd. complied with all these formalities. The SPA for transfer of SPV -Aravali Transmission Service Company Ltd. (ATSCL) was signed on 19.1.2001, and the TSA was signed on the very same day. The signatories included Rajasthan Rajya Vidyut Prasaran Nigam Ltd. and LTTCs and ATSCL and M/s GMR Energy Ltd. Similarly, on 15.2.2011, SPA for transfer of SPC -Maru Transmission Service Company Ltd. (MTSCL) was signed and the signatories included Rajasthan Rajya Vidyut Prasaran Nigam Ltd. , MTSCL and GMR Energy Ltd. On 15.2.2011, TSA was also executed amongst MTSCL and LTTCs.;