M/S Star Wire (India) Vidyut Pvt Ltd vs Haryana Electricity Regulatory ...

3. The appellants had set up a 9.90 MW independent Biomass Power Plant, which was declared commercially operational on 3 rd May, 2013. The principal Regulations were notified on 3 rd February, 2011, providing for the norms and parameters for determination of tariff for various renewal energy project developers. As per Regulation 4 of the principal Regulations, the first control period of three years was to end on 31st March, 2013. The third proviso of Regulation 4 posits that in case, the regulations for the next control period were not notified after the expiry of the first control period, the tariff norms as per these regulations (principal Regulations) would continue to apply until notification of the revised regulations, 3 subject to adjustments as per the revised regulations. As the first control period had already ended, the appropriate authority initiated suo motu proceedings for revision of tariff and issued draft fourth amendment to the principal Regulations, seeking to amend Regulation 4 and including Regulation 5 of the principal Regulations. This draft amendment was issued on 29 th December, 2014. Pursuant thereto, the concerned parties submitted their response. After giving opportunity to all concerned, the Commission proceeded to pass an order dated 4th August, 2015, which attempts to analyse and adjudicate all the issues raised by the concerned parties. On the basis of the said order, the impugned Amended Regulations came to be notified. The effect whereof was to deny the applicability of tariff norms adjustments to the appellant No.1, which had commenced its commercial operations on 3rd May, 2013. The said amendment has been given prospective effect qua the appellants. It has made classification between the projects commissioned/to be commissioned in financial years 2013­14 on the one hand and 2014­15, 2015­16 and 2016­17 on the other, without any intelligible differentia or any rational basis therefor. Neither the principal Regulations nor the impugned Amended Regulations envisage classification on the basis of commissioning of 4 renewable energy projects in a particular financial year during the same control period. Similarly, the regulations do not envisage determination of separate tariff on such differentiation. Indeed, the authority has been invested with power to determine project specific tariff under Regulation 6. In the present case, however, the power exercised by the Commission is indisputably with reference to Regulation 4 namely, to determine a generic tariff for the control period commencing from 1st April, 2013 and ending with financial year 2016­17 i.e. 31st March, 2017, for a period of 4 years.

9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.

11. Accordingly, this appeal is allowed. The impugned judgment and order is set aside. The CWP No.285337 of 2015 (O&M) is restored to the file of the High Court to its original number, for being considered afresh by the High Court on its own merits in accordance with law. All pending applications are disposed of. No order as to costs.

July 2, 2019.