Case: All India Power Engineer Federation  Vs. Sasan Power Ltd. &amp; Ors. Etc

2. On 19.1.2005, the Central Government, in exercise of powers under Section 63 of the Electricity Act, 2003 issued guidelines for a tariff based competitive bid process to be initiated by distribution licensees /procurers for procurement of power from generating companies. The electricity to be procured by such procurers is for the purpose of distribution and retail supply to consumers generally. On 10.2.2006, in pursuance of these guidelines, procurers in different States, namely, appellants 1 to 3 and respondents 5 to 15 (in Civil Appeal Nos.5239-5240 of 2016) nominated Power Finance Corporation Limited, a Government of India undertaking as the Nodal Agency to complete a competitive bid process for development of an ultra mega power project based on linked coalmines using super critical technology of units of 660 mega watts (MW) each, plus or minus 20%, in Sasan District, Singrauli, Madhya Pradesh. On 10.2.2006, Sasan Power Limited was incorporated as a special purpose vehicle by Power Finance Corporation in order to implement the aforesaid purpose. On 1.8.2007, based on the competitive bidding process held by Power Finance Corporation, Reliance Power Limited, having quoted the lowest amount, was selected as the successful bidder, and a letter of intent was issued to Reliance Power Ltd. The quoted tariff, year by year, for a period of 25 years, which was accepted and incorporated as Schedule 11 in the Power Purchase Agreement dated 7.8.2007 (PPA) had tariffs at an extremely depressed rate for the first two years, after which the tariffs were fixed at a significantly higher rate. On the very day that the PPA was executed between Sasan Power Limited and the procurers for generation and sale of electricity, 100% share holding of the special purpose vehicle was acquired by Reliance Power Limited. The PPA contains detailed clauses with respect to generation of power and the tariffs payable for the period of 25 years. Apart from other provisions, we are really concerned with Article 6 read with Schedule 5 which provides for pre-conditions to be satisfied for declaration of a generating unit as Commercial Operation Date, "COD", namely readiness to commence commercial operations. This happens only when a performance test, by operating the generating unit at 95% of the contracted capacity as existing on the Effective Date on a continuous running basis for 72 hours, has been certified by an independent engineer, by giving a final test certificate to the aforesaid effect. The PPA also contains various other clauses which will be set out during the course of this judgment.3. The bone of contention in these matters is whether the COD for Unit No.3, which was the first Unit to be commissioned, had been achieved on 31.3.2013. If it had, then under Schedule 11 to the PPA, the entire first year would get exhausted in one day, i.e., 31st March being the end of the contract year, for which tariff payable would be at the rate of 69 paise per unit. If not, then it is only on and from the commencement of COD that such year would begin, which, according to the appellants before us, would only begin on 16.8.2013 when a final test certificate in accordance with Article 6 of the PPA was given by the independent engineer to the effect that 95% of the contracted capacity had been achieved for a continuous period of 72 hours. We are informed that if the COD is said to be on 31.3.2013, as has been held by the Appellate Tribunal, the consumers would have to pay a sum of over Rs. 1000 crores, being the differential tariff that would apply.4. The date for commissioning the first unit was fixed under the PPA as 7th May, 2013. However, under Schedule 11 thereof, this date was preponed to 27th November, 2012. As Sasan kept postponing this date, it appears that the commissioning tests for generating Unit No.3 commenced from 20.3.2013. Various emails were exchanged from 27.3.2013 to 30.3.2013 between Sasan and the Western Region Load Dispatch Centre (hereinafter referred to as "the WRLDC"), a statutory authority under the Electricity Act, 2003. It is the case of Sasan that though they were ready to deliver electricity on 31.3.2013 at 95% of the contracted capacity of 620 MW of the unit, they could not do so as WRLDC did not give them the necessary green signal to go ahead. They relied heavily upon the independent engineers test certificate dated 30.3.2013 to show that a COD took place on the following day, which we will consider in some detail later. At this stage, suffice it to say that a petition was filed by WRLDC before the Central Electricity Regulatory Commission (CERC) on 25.4.2013, in which it wasKindly look into the veracity of the certificate issued by the Independent Engineer in view of deliberate suppression and misrepresentation of the facts and issue suitable directions to respondent no.2 to desist from such act.2. Kindly look into the matter of Respondent No. 1 including into intentional mis-declaration of parameters related to commercial mechanism in vogue and has purported to declare the part (de-rated) capacity of 101.38 MW as commercial on the grounds of load restriction by WRLDC and issued suitable directions in the matter.3. Issue specific guidelines with respect to declaration of COD of the generators who are not governed by the CERC (Terms and Conditions of Tariff) Regulations, 2009 to be in line with CERC regulations so that the same can be implemented in a dispute free manner and eliminate any possibility of gaming by generator.4. Honble Commission may give any further directions as deemed fit in the circumstances of the case.This petition was allowed by the CERC by its order dated 8.8.2014, by which it first set out five issues asWhether the petition filed by WRLDC is maintainable?b) Whether the Certificate issued by IE is in accordance with the PPA and if not, whether IE has made deliberate suppression or misrepresentation of facts while issuing the certificate?c) Whether COD of the station as declared by SPL is in accordance with the PPA?d) Whether the Respondent No.1 has indulged in mis-declaration of parameters relating to commercial mechanism in vogue?e) Guidelines with regard to the commercial operation of a generating station which is not regulated by the tariff regulations of the Commission.The CERC answered issues (a), (b), (c), and (e) in the affirmative, and issue (d) in the negative. Ultimately the Commission arrived at the conclusion that COD had not been achieved on 31.3.2013 but had only been achieved later, on 16th August of the same year. This finding was set aside by the Appellate Tribunal by its judgment dated 31.3.2016, in which the Appellate Tribunal found that though COD had not been achieved on 31.3.2013 in accordance with the PPA, but that the procurers under the PPA had waived their right to demand performance at 95%, and that the performance of Unit No.3, which was only roughly 17% of its contracted capacity, was accepted by all the procurers, and that therefore there was a waiver of this essential condition, which would then entitle the generator to treat 31.3.2013 as the date on which commercial operation of Unit No.3 commenced. It is the correctness of this judgment which has been assailed by the various appellants before us.

Reasoning:
15. No such thing having occurred on the present facts, it is clear that there is in fact no amendment by written agreement to the PPA.The relevant section therefore that would apply on the facts of the present case is Section 63. At this stage, it is important to advert to an argument made by counsel for the appellants that Article 18.3 only refers to waivers that can expressly be made under various provisions of the agreement and not to Article 6 which, according to learned counsel, cannot be waived under the PPA. Assuming that such argument is correct, and that Article 18.3 refers only to the mode of carrying out a waiver under the PPA, yet it is clear that Section 63 would operate on the facts of this case. This is for the reason that, when read with Section 1 of the Contract Act, it becomes clear that the PPA is subject to Section 63 of the Contract Act, which would allow a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him, and accept instead of it any satisfaction which he thinks fit.It is thus clear that if on facts there is a waiver of a provision of the PPA by one of the parties to the PPA, then Section 63 of the Contract Act will operate in order to give effect to suchis clear that when waiver is spoken of in the realm of contract, Section 63 of the Indian Contract Act governs. But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.It is thus clear that if there is any element of public interest involved, the court steps in to thwart any waiver which may be contrary to such public interest.25. On the facts of this case, it is clear that the moment electricity tariff gets affected, the consumer interest comes in and public interest gets affected. This is in fact statutorily recognized by the Electricity Act in Sections 61 to 63 thereof. Under Section 61, the appropriate commission, when it specifies terms and conditions for determination of tariff, is to be guided inter alia by the safeguarding of the consumer interest and the recovery of the cost of electricity in a reasonable manner. For this purpose, factors that encourage competition, efficiency and good performance are also to be heeded. Under Section 62 of the Act, the appropriate commission is to determine such tariff in accordance with the principles contained in Section 61. The present case, however, is covered by Section 63, which begins with a non obstante clause stating that notwithstanding anything contained in Section 62, the appropriate commission shall adopt the tariff if such tariff has been determined through a transparent process of bidding in accordance with the guidelines issued by the Central Government.A perusal of the CERC tariff adoption order in the present case dated 17.10.2007 makes it clear that the tariff is adopted by the Commission only because the competitive bidding process which has been undertaken is in accordance with the guidelines so issued.30. All this would make it clear that even if a waiver is claimed of some of the provisions of the PPA, such waiver, if it affects tariffs that are ultimately payable by the consumer, would necessarily affect public interest and would have to pass muster of the Commission under Sections 61 to 63 of the Electricity Act. This is for the reason that what is adopted by the Commission under Section 63 is only a tariff obtained by competitive bidding in conformity with guidelines issued. If at any subsequent point of time such tariff is increased, which increase is outside the four corners of the PPA, even in cases covered by Section 63, the legislative intent and the language of Sections 61 and 62 make it clear that the Commission alone can accept such amended tariff as it would impact consumer interest and therefore publiccase of the appellants has throughout been, starting from 12th April, 2013, onwards, that it has never consented to Schedule 5 of the PPA and Article 6.3.1(b) parameters being lowered. It is true that Article 6.3.4 would not apply for the reason that it would come into effect only after the last recent performance test mentioned in Article 6.3.3 has been conducted. And for Article 6.3.3 to apply, a performance test must first indicate that from a units COD an increased tested capacity over and above that provided in Article 6.3.1(b) must first occur. Admittedly on facts this has not happened. What is important to note therefore is that the appellants desperately wanted power at a cheaper rate, and were willing to go to any extent to get such power, including invoking clause 6.3.4, which would not apply, and stating that anything over and above 101.38 MW ought to be treated as infirm power. It is clear under the Regulations, however, that infirm power can never be supplied to the appellants themselves but can only be supplied to the grid.Waiver is, as has been pointed out above, an intentional relinquishment of a known right. Waiver must be spelled out with crystal clarity for there must be a clear intention to give up a known right. There is no such clear intention that can be spelled out on a reading of the two emails. All that can be spelled out is that the first email of 31.3.2013 categorically states that the test result is not as per Article 6.3.1, and is not acceptable. The last sentence of this very email then refers to clause 6.3.4 and to a de-rated capacity of 101.38 MW. Thereafter, the email of 2nd April, 2013 expands on the aforesaid last sentence of the earlier email by referring to Article 6.3.4 and Article 11 proviso. This is akin to a `without prejudice acceptance of de-rated power, being a non-acceptance of the test certificate dated 30.3.2013 coupled with a desperate attempt to somehow get whatever power is available. But this does not amount to a clear and unequivocal intention to relinquish a known right.We thus find that the Appellate Tribunal is wholly incorrect in accepting the case of waiver put forward by learned counsel for Sasan, and is equally incorrect in absolving the independent engineer for the test certificate given by him on 30.3.2013. We, therefore, set aside the Appellate Tribunals judgment, and reinstate the judgment dated 8.8.2014 of the Central Electricity Regulatorysubstantial question of law has been answered by us in the course of the judgment. We have also pointed out that the Appellate Tribunals finding that the Independent Engineers test certificate can pass muster and that there is a waiver on facts is not a possible conclusion, and such finding is, therefore, perverse and hence set aside. That apart, we have also pointed out the contradictory nature of the judgment of the Appellate Tribunal, when it points out that the requirement of Article 6.3.1 is not merely for the private benefit of the procurers of electricity, but is as a matter of general policy; and then later on in the judgment finds that no question of public interest or public policy arises in the present case. In these circumstances, this plea must also be turned