SANJAY YADAV, J. - (1.)Review of order dtd. 27/2/2020 passed in Writ Petition No.4205/2019 is being sought vide present petition.
(2.)The Writ petition was directed against the communication dtd. 7/7/2018; whereby, the Power Purchase Agreement dtd. 18/9/2015 was terminated, the reason being the failure in achieving condition subsequent as well as commissioning of the 50 mw Solar PV Project. It needs a mention that earlier by communication dtd. 11/8/2017 the said agreement was terminated. However, on its being challenged in Writ Petition No.12880/2017, wherein, on the findings that the reasons assigned in the termination order were not germane to the facts and additional reasons came to fore during hearing, the order dtd. 11/8/2017 was set-aside with the liberty to pass fresh orders in terms of the Agreement. Armed with the said liberty fresh orders were passed on 7/7/2018.
(3.)It is not in dispute that the respondent is a Power Purchasing Company under the Electricity Act, 2003 and the petitioner is responsible for power procurement in the State of M.P. That in furtherance to the Solar Policy for encouraging generation of Power through Solar Power Projects an agreement was entered between the Petitioner and Respondent on 18/8/2015 captioned as Power Purchase Agreement for setting up a 50 mw Solar Photovoltic (PV) Power Plant at village Bedhsya, District Khandwa and sale of power from the said plant exclusively to present petitioner. The total permissible period to commission the Project was 24 months from the date of Agreement i.e. from 18/9/2015 to 17/9/2017. The Project involved two milestones, viz, (i) to achieve condition subsequent after signing of PPA, i.e. permission, procurement of land. Etc. and (ii) actual commission of project. The project certified to be complete much prior to 24 months i.e. .4/7/2017 and the Chief Electrical Inspector to Government. (CEIG) approved on 9/8/2017. That on the basis of undisputed facts it was found :
"13. ... From the facts on record, it is axiomatic that the period to commission the Project was 24 months i.e. from 18.09.20045 to 17/9/2017 from the date of PPA. The contract was terminated on 11/8/2017 even before expiry of the outer limit of 24 months. Earlier, PPA was terminated vide order dtd. 11/8/2017 on the ground of delay of 54 days in achieving the first milestone which was set aside by this Court in W.P.No.12880/2017. It is apt to mention that the Project involves two milestones, namely, (i) to achieve Condition subsequent after signing of PPA (Permission, Procurement of land etc.) and (ii) actual commission of Project. It is not in dispute that the Project was certified to be completed much prior to 24 months ending on 17/9/2017 and notice of commissioning was issued on 4/7/2017. The CEIG approval was also granted on 9/8/2017, Another inspection was done on 21/4/2018 after nine months of notice of commissioning and CEIG approval, in spite thereof the impugned order has been passed."