The Delhi High Court has clarified that when the Chhattisgarh State Power Distribution Company has accepted its obligation to pay the power purchase rates according to the Guidelines for “Rooftop PV & Small Solar Power Generation” of the Ministry, which was Rs. 15.84/kWh, only, and the same was finalised by the Central Electricity Regulatory Commission (CERC) as well as the Appellate Tribunal for Electricity (APTEL), then it cannot request for revision of Generation Based Incentives (GBI) under the garb of ‘mistaken understanding’ that GBI permitted revised tariff after registration.
The Court therefore upheld the contractual sanctity and the tariff rate fixed under the generation-based incentive calculation for rooftop solar projects at the time of registration, while clarifying that an agreement arrived at between the parties cannot be altered to an extent which goes against the principle of maintaining the sanctity of a contract or an agreement.
The ruling came while pointing out that the first respondent (Chhattisgarh State Power Distribution Company) had expressly waived its right by its own conduct, by accepting the decision of the appellant (Indian Renewable Energy Development Agency) that the tariff as applicable on the date of registration of the project shall be taken into account for the calculation of Generation Based Incentives (GBI) vide its letter dated June 28, 2013.
The Division Bench comprising the Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gadela observed that the ‘Doctrine of Waiver’ is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance. A waiver must always be an intentional act with knowledge. Similarly, acquiescence is put to service where a person refrains from seeking redress when a violation of his rights is brought to his notice and in that sense, acquiescence is an element in laches.
The Bench went on to explain that while exercising the power of Removal of Difficulties in giving effect to the Guidelines or the Scheme or interpretation of the scheme, the very provision of the Guidelines could not have been changed by the Committee, for the reason that such an act on the part of the Committee will amount to rewriting the Guidelines issued by the Ministry which could be altered by the Ministry and not by any Committee constituted under Clause 8 of the said Guidelines.
The Bench also noticed that the first respondent had entered into a Memorandum of Understanding with the IREDA wherein, as well, it was clearly provided that the applicable rate for computation of GBI payable to the GBI applicant shall be computed as the difference between the applicable CERC tariff rate, i.e. the tariff determined by the CERC and applicable base rate. The terms of the Agreement entered into between the parties, thus, were beyond the scope of the change or alteration by the Committee constituted under Clause 8 of the Scheme/Guidelines dated June 16, 2010.
Lastly, the Bench concluded that any claim put forth for recovery of monies would not be entertainable in proceedings under Article 226 of the Constitution of India, if such a claim by way of suit before a court of ordinary civil jurisdiction would be barred by limitation.
Briefly, in this case, with a view to giving thrust to Rooftop and other Small Solar Plants connected at the distribution network at voltage levels below 33 kV under the Jawaharlal Nehru National Solar Mission, the Ministry of New and Renewable Energy launched a Scheme/ Programme of GBI and issued Guidelines for “Rooftop PV & Small Solar Power Generation”. As per the Guidelines, the Programme Administrator, i.e., Indian Renewable Energy Development Agency (IREDA-Appellant), was to enter into a MoU with the Distribution Utility for the disbursement of GBI. The Distribution Utility was to provide a certificate of power purchased from the IREDA every month.
As far as the computation of GBI to be paid to the Distribution Utility by IREDA is concerned, the scheme stipulates that the GBI to be determined for a project is the difference between the tariff determined by the Central Electricity Regulatory Commission (CERC). Since the CERC determined the tariff for the purchase of solar power at the rate of Rs. 15.84/kWh, the IREDA communicated to the first respondent that while processing the claim of GBI, it had released the amount at Rs. 12.24/kWh, and accordingly, the amount of Rs. 16.06 lacs released extra shall be adjusted/ reconciled in future claims.
Now, even though the Ministry clarified that the tariff at the time of the registration of the project shall only be considered for payment of GBI, and the same was confirmed by the Appellate Tribunal for Electricity, the first respondent objected to the GBI being computed at the tariff of Rs. 15.84 kWh.
Appearances:
ASG Raghavendra Shankar, along with Advocates Anshuman Chowdhury and Pallavi Mishra, for the Appellant
Senior Advocate Arun Bhardwaj, along with Advocates Suparna Srivastava, Nitai Agarwal, Neha Mishra, Arshha, Shashwat Dubey, Rajesh Gogna, Priya, Shivam Tiwari, and Rebina, for the Respondent
