Jaipur Vidyut Vitran Nigam Ltd. vs Mb Power (Madhya Pradesh) Limited

2024 INSC 23 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6503 OF 2022

JAIPUR VIDYUT VITRAN NIGAM LTD. & ORS. ...APPELLANT (S)

VERSUS MB POWER (MADHYA PRADESH) LIMITED & ORS. ...RESPONDENT (S)

WITH CIVIL APPEAL NO.6502 OF 2022 CIVIL APPEAL NO. 4612 OF 2023

JUDGMENT

B.R. GAVAI, J.

CIVIL APPEAL NO. 6503 OF 2022 AND CIVIL APPEAL NO. 6502 OF 2022

1. These appeals challenge the judgment and order dated 20th

September 2021, passed by the Division Bench of the High Court

of Judicature for Rajasthan, Bench at Jaipur, in D.B. Civil Writ

Signature Not Verified Petition No. 14815 of 2020, thereby allowing the said writ petition Digitally signed by Deepak Singh

filed by MB Power (Madhya Pradesh) Limited (hereinafter referred Date: 2024.01.08 10:52:18 IST Reason:

to as “MB Power”), respondent No.1 herein. By the impugned

1 judgment and order, the High Court held that the respondent

Nos. 1 to 5 therein (appellants herein and the State of Rajasthan)

are bound to purchase a total of 906 MW electricity from the

successful bidders. It, therefore, directed the writ petitioner- MB

Power (respondent No.1 herein) and respondent No.7 - PTC India

Ltd. (hereinafter referred to as “PTC India”) in the said writ

petition (respondent No.2 in the present appeals) to supply 200

MW electricity to the respondents therein (appellants herein)

within the limit of 906 MW. It also directed the writ petitioner-

MB Power and PTC India, respondent No.7 in the said writ

petition, to file an appropriate application before the respondent

Nos. 1 to 5 in the said writ petition, within two weeks from the

date of the order, complying with the necessary requisite

conditions, including bank guarantee etc., as required in terms

of the Request for Proposal (hereinafter referred to as “the RFP”).

It further directed the respondent Nos. 1 to 5 in the said writ

petition, for issuance of Letter of Intent (“LoI” for short) in respect

of bid filed through PTC India for supplying 200 MW power from

the power generating station of the writ petitioner i.e. MB Power

at levelized tariff of Rs.5.517/Kwh, being in terms of their bid

2 qualified by the Bid Evaluation Committee (“BEC” for short) and

ranked L-7. It further directed the respondents No.1 to 5 in the

said writ petition, to immediately within two weeks thereafter,

execute the Power Purchase Agreement (“PPA” for short) with PTC

India for procuring 200 MW power from the power generating

station of MB Power, and then to start procuring power in

accordance with law. As an interim measure, it directed that the

tariff to be actually paid by the procurer-respondents before it,

shall be the interim tariff i.e. Rs.2.88 per unit, as specified by this

Court in its interim order dated 28th September 2020, passed in

I.A. No.83693 of 2020 in Civil Appeal No.2721 of 2020. It further

held that the final adoption of tariff to be paid to PTC India

(respondent No.7 before it) under the PPA shall be subject to the

final outcome of the said Civil Appeal No. 2721 of 2020, pending

before this Court.

BRIEF FACTS:

2. The facts leading to the filing of these two appeals, as

mentioned in Civil Appeal No. 6503 of 2022, are as under:

2.1 The Government of India vide Notification dated 19th

January 2005, notified the Competitive Bidding Guidelines

3 (hereinafter referred to as “the Bidding Guidelines”) under

Section 63 of the Electricity Act, 2003 (hereinafter referred to as

“the Electricity Act”). The objective of the said Bidding Guidelines

is for introduction of competition and protection of consumer

interest.

2.2 On 21st September 2009, Rajasthan Rajya Vidyut Prasaran

Nigam Limited (hereinafter referred to as “RVPN”) filed Petition

No.205 of 2009 before the Rajasthan Electricity Regulatory

Commission (hereinafter referred to as “the State Commission”)

seeking approval for procurement of 1000 MW of power by a

competitive bidding process.

2.3 On 28th May 2012, RVPN issued an RFP, inviting sellers to

participate in the competitive bidding for procurement of 1000

MW under the Bidding Guidelines.

2.4 In the month of February 2013, bids were received from the

bidders.

2.5 On 4th April 2013, based on the preliminary evaluation of

the non-financial bids by the BEC, 7 bidders were declared as

qualified for opening of the financial bids. The respondent No.1-

4

MB Power herein was not a bidder in the above process.

Respondent No.2-PTC India herein had submitted a bid for 1041

MW, which it was to procure from five different generators. PTC

India is a power-trading licensee company, which had procured

the bid document after depositing a Bid Bond.

2.6 In the various meetings held between 17th April 2013 and

22nd April 2013, the BEC had placed the bids received in

ascending order, from lowest to the highest tariff as follows:

Average Levelized Cumulativ Qualified Capacity Cumulative Rank Tariff e Capacity Bidder Name Offered Tariff (Rs/kWh) Offered (Rs/ kWh) L-1 PTC – Maruti 4.517 195 195 4.517 Clean Coal and Power Limited L-2 PTC – DB 4.811 311 506 4.698 Power Limited L-3 LPL – Lanco 4.943 100 606 4.738 Babandh Power Limited L-4 PTC – Athena 5.143 200 806 4.839 Chhattisgarh Power Ltd L-5 SKS Power 5.300 100 906 4.890 Generation (Chhattisgarh) Limited L-6 LPL – Lanco 5.490 100 1006 4.949 Vidarbha Thermal Power Limited L-7 PTC – MB 5.517 200 1206 5.043 Power (Madhya Pradesh) Ltd.

5 L-8 KSK Mahanadi 5.572 475 1681 5.193 Power Company Limited L-9 Jindal Power 6.038 300 1981 5.321 Limited L-10 LPL – Lanco 7.110 100 2081 5.407 Amarkantak Power Ltd

2.7 In the 216th Meeting of the Board of Directors of RVPN, it

was decided to take an opinion from the BEC as to whether

negotiations should be held to reduce tariff keeping in view of the

long-term impact and quantum of the amounts involved.

2.8 On 4th June 2013, the BEC gave its opinion that since the

rates quoted vary considerably, negotiations could be held with

the bidders.

2.9 Vide Resolution dated 4th June 2013, the Board of the RVPN

decided to hold negotiations with the qualified bidders.

2.10 In the negotiations, the following offers were received:

“ • L-1/Maruti Clean Coal & Power Ltd. offered an additional capacity of 55 MW, aggregating to a total of 250 MW.

• L-2/DB Power Limited, inter-alia, agreed to provide additional quantum of power to the tune of 99 MW, aggregating to a total of 410 MW.

6 • Similarly, L-3/Lanco Power Ltd. offered an additional capacity of 250 MW, aggregating to a total of 350 MW.”

2.11 The Board of Directors of the RVPN, in its meeting held on

27th September 2013, directed that, LoI be issued in favour of the

L-1, L-2 and L-3 bidders as under, subject to the approval of the

State Commission while adopting the tariff.

“S. Bidder Quoted Capacity Additional No. Tariff offered in Capacity (Rs. / Bid (MW) Offered kWh) (MW) 1 M/s PTC India Ltd 4.517 195 55 (through developer M/s Maruti Clean Coal and Power Limited) 2 M/s PTC India Ltd 4.811 311 99 (through their developer M/s DB Power Limited)4.811 3 M/s Lanco Power 4.892 100 250 Limited (Generation Source – M/s Lanco Babandh Power Limited) Total 606 404 G. Total (A+B) 1010 MW”

2.12 In consonance with the LoI, on 1st November 2013, PPAs

were signed with the L-1, L-2 and L-3 bidders. Thereafter, RVPN

filed Petition No.431 of 2013 before the State Commission under

7 Section 63 of the Electricity Act read with clause 5.16 of the

Bidding Guidelines for adoption of tariff for purchase of long-term

base load power of 1000 MW (±10%) as quoted by the successful

bidders (being L-1, L-2 and L-3) under the Case-I bidding

process.

2.13 The Energy Assessment Committee (“EAC” for short),

constituted by the Government of Rajasthan pursuant to

Regulation 3 of the Power Procurement Regulations, in its 4th

meeting held on 29th January 2014, recommended that there was

no requirement for long term procurement of 1000 MW (±10%)

power under Case-I for which PPAs had been executed and tariff

adoption petition had been filed before the State Commission.

2.14 In the meantime, the L-4 and L-5 bidders filed Writ Petitions

being CWP No. 19437 of 2013 and CWP No.18699 of 2013

respectively, before the High Court, seeking to strike down the

negotiations process and the higher quantum awarded to L-1, L-

2 and L-3 bidders.

2.15 The High Court vide judgment dated 7th February 2014,

refused to entertain the writ petitions and relegated the parties

to the State Commission. The said order dated 7th February 2014

8 came to be challenged by the L-4 and L-5 bidders by way of writ

appeals being DB Special Appeals (Writ) Nos. 538 of 2014 and

604 of 2014. The said appeals also came to be dismissed by the

High Court vide judgment and order dated 18th April 2014.

2.16 Subsequently, in its 5th meeting held on 21st May 2014, the

EAC recommended that as against the quantum of 1000 MW

power, for which PPAs had been executed and tariff adoption

petition had been filed, a demand of 600 MW power ought to be

considered, on account of availability of power from various

sources and to meet future contingencies.

2.17 The Government of Rajasthan, therefore, vide its letter

dated 25th July 2014, issued to the RVPN, approved the purchase

of a quantum of 500 MW power on long term basis as against the

quantum of 1000 MW for which PPAs had already been executed.

2.18 On the basis of the decision/recommendation of the EAC

and the direction issued by the Government of Rajasthan, RVPN

filed an application under Regulation 7 of the RERC (Power

Purchase & Procurement Process of Distribution Licensee)

Regulations 2004 (hereinafter referred to as “RERC Regulations

2004”) in Petition No.431 of 2013, to bring on record the EAC

9 decision/recommendation and the Government of Rajasthan

approval. In the said application, inter alia, it was prayed for

adoption of tariff and approval of the reduced quantum of 500

MW of power to be purchased as against the original 1000 MW of

power for which PPAs had already been executed with the

successful bidders.

2.19 Vide order dated 22nd July 2015 in Petition No.431 of 2013,

the State Commission held that the quantum of only 500 MW

power was liable to be approved considering the demand in the

State as recommended by the EAC. The State Commission also

approved the tariff quoted by the L-1 to L-3 bidders.

2.20 Aggrieved by the reduction of quantum by the State

Commission, the L-2 and L-3 bidders preferred appeals before

the learned Appellate Tribunal for Electricity (hereinafter referred

to as “the learned APTEL”) being Appeal Nos. 235 of 2015 and

191 of 2015 respectively.

2.21 Two separate appeals were also preferred by the L-4 and L-

5 bidders, being Appeal No. 264 of 2015 and Appeal No. 202 of

2015 respectively, wherein apart from challenging the reduction

of quantum by the State Commission from 1000 MW to 500 MW,

10 the increase in quantum granted to the L-1, L-2 and L-3 bidders

was also challenged.

2.22 Vide order dated 2nd February 2018, the learned APTEL

allowed the Appeal Nos. 191 of 2015 and 235 of 2015, filed by

the L-3 and L-2 bidders, holding that the reduction of quantum

by the State Commission from 1000 MW to 500 MW was

incorrect. It, therefore, directed the State Commission to pass

consequential orders for approving the PPAs for the L-2 and L-3

bidders for the higher quantum which was negotiated.

2.23 The order of the learned APTEL dated 2nd February 2018,

was challenged by the present appellants before this Court by

way of Civil Appeal Nos. 3481-3482 of 2018, on the ground that

the RFP quantum cannot be restored from 500 MW to 1000 MW.

Subsequently, Civil Appeal Nos. 2502-2503 of 2018 also came to

be filed by L-5 bidder- SKS Power Generation (Chhattisgarh)

Limited (hereinafter referred to as “SKS Power”), on the ground

that the State Commission could not have permitted the

procurement of higher quantum by the L-2 and L-3 bidders.

2.24 Vide order dated 25th April 2018, the said Civil Appeals were

disposed of by this Court, upholding the decision of the learned

11 APTEL, setting aside the reduction of quantum of procurement

from 1000 MW to 500 MW after the bidding process was over.

However, this Court held that the decision of the learned APTEL

on the quantum to be procured from individual bidders was liable

to be reversed and that the quantum originally offered by the

bidders in the bidding process has to be taken into consideration

and increase in quantum by means of negotiation was not

permissible. Insofar as L-4 and L-5 bidders are concerned, since

the tariff quoted was not considered at any stage by either the

procurer, or by RVPN or by the State Commission, this Court

directed the State Commission to go into the issue of approval for

adoption of tariff with regard to L-4 and L-5 bidders.

2.25 Subsequent to the judgment and order dated 25th April

2018, passed by this Court, the BEC came to a finding that the

tariffs quoted by the L-4 and L-5 bidders were not aligned to the

prevailing market prices.

2.26 In the meantime, vide order dated 19th November 2018, this

Court, on an application filed by RVPN, directed the State

Commission to go into the issue of adoption of tariff in terms of

12 Section 63 of the Electricity Act and the law laid down by this

Court under the said provision.

2.27 Vide order dated 26th February 2019, the State Commission

held that the tariffs offered by the L-4 and L-5 bidders were not

aligned to the prevailing market prices.

2.28 Being aggrieved by the same, SKS Power (L-5 bidder)

challenged the above order dated 26th February 2019 before the

learned APTEL by way of Appeal No.224 of 2019.

2.29 Vide the judgment and order dated 3rd February 2020, the

learned APTEL allowed the appeal of the L-5 bidder – SKS Power

and held that the State Commission had to necessarily adopt the

tariff, and had no power to consider whether the tariff was aligned

to market prices.

2.30 Aggrieved by the same, the present appellants have filed

Civil Appeal No. 1937 of 2020 and Civil Appeal No.2721 of 2020.

Initially, the present appeals were tagged along with the said

appeals. However, vide order dated 10th October 2023, the same

have been de-tagged.

13 2.31 On an interlocutory application being I.A. No.83693 of 2020

filed by L-5 bidder-SKS Power in Civil Appeal No. 2721 of 2020,

an interim order 28th September 2020, came to be passed by this

Court, holding that the L-5 bidder was entitled to supply power

to the appellants at the tariff of Rs.2.88 per unit.

2.32 It appears that subsequently thereafter on 14th December

2020, a writ petition being Writ Petition No. 14815 of 2020 came

to be filed by the respondent No.1-MB Power before the High

Court, seeking following relief:

"(a) Issue appropriate Writ or order or direction in the nature of declaration or certiorari or any other writ or direction declaring Rule 69(2)(b) of the RTPP Rules as ultra vires Article 14, 19(1)(g) and 21 of the Constitution of India as well as Section 63 of the Electricity Act, 2003;

(b) Issue appropriate Writ or order or direction in the nature of mandamus directing the Respondent Nos. 1-4 to immediately issue a Letter of Intent in favour of the Petitioner, sign the power Purchase Agreement with the Petitioner as per its bid tariff, take steps for adoption of tariff of the Petitioner and immediately commence supply of power;

14 (c) Pass such further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case in the interest of justice.”

2.33 In the appeals filed by the present appellants, i.e., Civil

Appeal Nos. 1937 of 2020 and 2721 of 2020, respondent No.1-

MB Power filed an application for impleadment, on the ground

that the issue of role of the State Commission in adoption of tariff

being decided by this Court in the said appeals would have an

impact on the writ petition filed by it before the High Court.

2.34 Vide order dated 19th April 2021, this Court directed the

said application for impleadment to be considered at the stage of

hearing of the said appeals.

2.35 By the impugned judgment and order, the said writ petition

filed by MB Power has been allowed by the High Court in terms

of the aforesaid directions.

2.36 Hence the present appeals.

CIVIL APPEAL NO. 4612 OF 2023

3. This appeal filed by Rajasthan Urja Vikas Nigam Limited

(hereinafter referred to as “RUVNL”) challenges the order dated

15 1st June 2023, passed by the learned APTEL, whereby the learned

APTEL has stayed the operation of the order dated 31 st March

2023, passed by the State Commission in Petition No.RERC-2097

of 2023.

4. The facts, in brief, leading to the filing of Civil Appeal

No.4612 of 2023, are as under:

4.1 In the year 2022, the RUVNL had proposed the procurement

of 294 MW of power on long term basis and for that purpose had

filed Petition No.2017 of 2022 before the State Commission.

4.2 Vide order dated 2nd November 2022, the State Commission

rejected the procurement of power on long term basis.

4.3 Thereafter, considering the assessment and requirement of

power, the RUVNL filed Petition No.RERC-2097 of 2023 before

the State Commission, seeking approval for procurement of 160

MW of power on medium term basis i.e., for a period of 5 years

and not for 25 years on long term basis.

4.4 Vide order dated 31st March 2023, the State Commission

granted approval to the distribution licensees in the State of

Rajasthan for procurement of 160 MW round-the-clock fuel

16 agnostic power on medium term basis by way of a competitive

bidding process.

4.5 Aggrieved thereby, the respondent No.1 herein, i.e., MB

Power (Madhya Pradesh) Limited filed Appeal No. 466 of 2023

before the learned APTEL against the order dated 31 st March

2023 passed by the State Commission, along with I.A. No.1004

of 2023 for the stay of the order.

4.6 Vide impugned order dated 1st June 2023, the learned

APTEL stayed operation of the order passed by the State

Commission and directed that in the bidding process for

procurement of 160 MW of power on medium term basis the bid

shall neither be finalized nor shall any Letter of Intent be issued

pursuant to the opening of the bids.

4.7 Aggrieved thereby, the RUVNL has filed the present appeal.

5. Vide order dated 26th September 2023, this Court had

permitted the appellant to proceed further with the tender

process for procurement of 160 MW of power for 5 years on the

basis of model bidding documents for medium term

procurement.

17 6. Vide order dated 10th October 2023, this Court had been

informed that pursuant to the aforesaid order dated 26th

September 2023, bids had been opened and the lowest bid was

at Rs.5.30 per unit. As a result, this Court had clarified that the

pendency of the present appeal would not come in the way of the

appellant in finalizing the tender and executing power purchase

agreement with the successful bidders and the appellant would

be at liberty to do so in order to overcome the difficulty of power

shortage.

7. The order of the learned APTEL dated 1st June 2023

basically relies on the judgment of the Division Bench of the High

Court of Judicature for Rajasthan, bench at Jaipur, passed in

D.B. Civil Writ Petition No. 14815 of 2020, which is a subject

matter of challenge in Civil Appeal Nos. 6503 of 2022 and 6502

of 2022. As such, the result of Civil Appeal No.4612 of 2023

would depend upon the outcome of Civil Appeal Nos. 6503 of

2022 and 6502 of 2022.

SUBMISSIONS OF THE APPELLANTS

8. We have heard Shri P. Chidambaram, learned Senior

Counsel appearing for the appellants, and Dr. A.M. Singhvi and

18 Shri C.S. Vaidyanathan, learned Senior Counsel appearing for

the respondents.

9. Shri Chidambaram, at the outset, submits that the writ

petition, filed by the respondent No.1-MB Power, was not

maintainable before the High Court in its original jurisdiction

under Article 226 of the Constitution of India. It is submitted

that, if the respondent No.1-MB Power had any grievance, it

could have either approached the State Commission or the

learned APTEL.

10. He submits that this Court in the case of PTC India

Limited v. Central Electricity Regulatory Commission,

Through Secretary1 has held that the Electricity Act is an

exhaustive code on all matters concerning electricity. The

Electricity Act provides for the forum for adjudication of all

disputes between a generator and the procurer/licensee. As

such, the respondent No.1-MB Power, if had any grievance, ought

to have filed an application before the State Commission or the

1 (2010) 4 SCC 603=2010 INSC 146

19 learned APTEL and it could not have approached the High Court

directly in its writ jurisdiction.

11. Shri Chidambaram further submitted that though L-1 to

L-5 bidders have continuously been litigating their grievances

from 2013 onwards, the respondent No.1-MB Power, since it was

not short-listed, had taken no steps from 2013 onwards. It is

submitted that, as a matter of fact, the bid of L-7 bidder was

returned and on 6th January 2015, the Bid Bond bank guarantee

was also directed to be not extended. Still, it kept silent for about

6 years. He further submits that even after the judgment and

order was passed by this Court on 25th April 2018, respondent

No.1-MB Power did not take any steps for about two years, and

for the first time, on 14th December 2020, it filed a writ petition

before the High Court. As such, it is clear that the respondent

No.1-MB Power had acquiesced the direction by the appellants

dated 6th January 2015 not to renew the Bid Bond bank

guarantee. Shri Chidambaram, therefore, submits that the writ

petition was liable to be dismissed on the ground of delay and

laches itself.

20

12. Shri Chidambaram further submits that the term

“successful bidder” has been defined in the RFP. It is submitted

that the bidder(s) selected by the procurer/authorized

representative, pursuant to the RFP for supply of power by itself

or through the project company as per the terms of the RFP, and

to whom a LoI has been issued, can only be termed as the

“successful bidder”. Since no LoI was issued to the respondent

No.1-MB Power, it could not be construed as a “successful

bidder”.

13. Shri Chidambaram submits that the theory of “filling the

bucket”, as put forth by the respondent No.1-MB Power, has no

basis either in the RFP or in the Bidding Guidelines. It is further

submitted that the said theory is a dangerous proposition

inasmuch as, it is expected that the procurer would be obliged to

accept the bids of lower ranked financial bids, irrespective of the

exorbitant tariff quoted by them. Shri Chidambaram has given

an illustration to that effect that, if in a bid to procure 1000 MW,

2 bidders can be put forward as stalking horses who would bid

lower tariffs and are ranked as L-1 and L-2. Thereafter, L-3

onwards can quote exorbitant tariffs which are not aligned to

21 market prices. He submits that this specious theory of “filling

the bucket”, which would oblige the procurer to go to the last

bidder, irrespective of their tariffs being completely exorbitant, is

very dangerous. It is submitted that, in any case, clause 3.5.12

of the RFP enables the procurer to reject any bid where the

quoted tariff is not aligned to market prices.

14. Shri Chidambaram further submits that the directions

issued by this Court vide order dated 25th April 2018, were

specifically restricted to L-1 to L-5 bidders, which were litigating.

It is submitted that the contention of the respondent No.1-MB

Power that the order of this Court dated 25th April 2018 was an

order in rem is erroneous.

15. Relying on the judgment of this Court in the case of R.

Viswanathan and others v. Rukn-ul-Mulk Syed Abdul Wajid

since deceased and others2, Shri Chidambaram submits that

the judgment in rem settles the destiny of the res itself. Whereas

an order in personam determines the rights of persons before the

Court and binds only the parties to the lis. Reliance in this

2 (1963) 3 SCR 22=AIR 1963 SC 1=1962 INSC 205

22 respect is also placed on the judgment of this Court in the case

of Deccan Paper Mills Company Limited v. Regency Mahavir

Properties & Ors.3

16. Shri Chidambaram further submits that the reliance by the

respondents on the certificate, which certified the bid evaluation

process was carried out in conformity with the provisions of the

RFP, and, therefore, it is not permissible to go into the

determination of tariff is incorrect. He submits that the

certificate is not certifying that L-7 was qualified to be selected

as a “successful bidder” or it had earned a right to have his bid

accepted irrespective of the quoted tariff. He submits that if the

quoted tariff of L-4 bidder of Rs.5.143 and L-5 bidder of Rs.5.300

were misaligned, then, most certainly, the quoted tariff of L-7

bidder of Rs.5.517 was also misaligned.

17. The learned Senior Counsel submits that the jurisdiction

under Section 63 of the Electricity Act is not that of a mere post

office. The State Commission has a power to reject the adoption

of tariff if it is not aligned to market prices. In this respect, he

3 (2021) 4 SCC 786=2020 INSC 497

23 refers to the judgments of this Court in the cases of Tata Power

Company Limited Transmission v. Maharashtra Electricity

Regulatory Commission & Ors.4 and Energy Watchdog v.

Central Electricity Regulatory Commission and others5.

18. Shri Chidambaram submits that the State Commission

while adopting the tariff is bound to take into consideration the

protection of consumer interest. Reliance in this respect has

been placed on the judgment of this Court in the case of GMR

Warora Energy Limited v. Central Electricity Regulatory

Commission (CERC) & Ors.6, wherein this Court has

emphasized the need for balancing the interest of the consumers

with that of the generators.

19. Shri Chidambaram further submits that in view of clauses

2.15.1 and 3.5.12 of the RFP and clause 5.15 of the Bidding

Guidelines, the appellants had the power to reject all price bids

if the rates quoted are not aligned to the prevailing market prices.

20. Shri Chidambaram lastly submitted that the bidders have

no vested right to contract. Article 226 of the Constitution of

4 2022 SCC Online 1615=2022 INSC 1220 5 (2017) 14 SCC 80=2017 INSC 338 6 2023 SCC Online SC 464=2023 INSC 398

24 India cannot be used to award a contract in favour of the bidder.

In this respect, he refers to the following judgments of this Court:

i. Tata Cellular v. Union of India7

ii. Rajasthan Housing Board and another v. G.S.

Investments and another8

iii. Laxmikant and others v. Satyawan and others9

21. Shri Chidambaram, therefore, submits that the impugned

judgment and order is not sustainable and is liable to be set

aside.

SUBMISSIONS OF THE RESPONDENTS

22. Dr. A.M. Singhvi, learned Senior Counsel, per contra,

submits that unlike Section 62 read with Sections 61 and 64 of

the Electricity Act, under Section 63 of the Electricity Act, the

appropriate Commission only “adopts” tariff and does not

“determine” tariff. However, in cases under Section 63 of the

Electricity Act, the Central Commission is bound by the

guidelines issued by the Central Government and it is required

7 (1994) 6 SCC 651 (para 94)= 1994 INSC 283 8 (2007) 1 SCC 477 (para 8, 9 and 11)= 2006 INSC 766 9 (1996) 4 SCC 208=1996 INSC 409

25 to exercise its regulatory functions, albeit under Section 79(1)(b)

only in accordance with those guidelines. In this respect, he

relies on the judgment of this Court in the case of Energy

Watchdog (supra) and Tata Power Company Limited

Transmission (supra).

23. Dr. Singhvi submits that two issues that can be considered

in a case under Section 63 of the Electricity Act by the

Commission are:

(1) as to whether the bidding process was transparent; and

(2) as to whether the bidding process was held in

accordance with the guidelines issued by the Central

Government.

24. He submits that once the tariff is an outcome of the bidding

process and the bidding process is transparent and held in

accordance with the Bidding Guidelines, the appropriate

Commission is mandated to adopt such tariff and it does not have

a discretion to go into the question as to whether it is market

aligned or not.

26

25. Dr. Singhvi further submits that while adopting an already

determined tariff by the bidding process as per Section 63 of the

Electricity Act, the issue of market alignment of respondent

No.1’s bid does not and cannot arise for consideration in these

proceedings.

26. Without prejudice to the aforesaid submissions, Dr. Singhvi

submits that it is not permissible for the State Commission to go

into the question of market alignment. He submitted that the

respondent No.1’s quoted tariff was market aligned not only in

the year 2013 but also today. Dr. Singhvi submits that in the

recent tender for procurement of 160 MW electricity, conducted

in pursuance to the permission granted by this Court, the lowest

bid for 1st year tariff discovered and approved by the appellants

is at Rs.5.30 per unit. It is submitted that there is a vast

difference between “1st year tariff” and “levelized tariff”. Dr.

Singhvi submits that however, if this offer for supply in the first

year of the bid is to be levelized for 25 years, it would come to

Rs.7.91 per unit, which is around 50% higher than the 1st year

tariff of the said bidder itself.

27

27. Dr. Singhvi submits that M/s Deloitte is a common

consultant insofar as the appellants and the Uttar Pradesh Power

Corporation Limited (“UPPCL” for short). He submits that, in

fact, BEC of UPPCL, in March 2013, accepted tariff up to Rs.

5.849 per unit i.e., a tariff much higher than that of respondent

No.1-MB Power. It is submitted that the bidding period in the

present case as well as in the case of UPPCL is the same. It is

submitted that, however, in 2018, the Rajasthan BEC

mischievously and selectively considered tariff only up to 2012

and compared bids of Andhra Pradesh and Kerala, which were,

in fact, discovered in 2015 and 2014 respectively. It is submitted

that similarly, in the State of Tamil Nadu, for the same period,

the equivalent levelized tariff was determined by M/s Deloitte at

Rs.5.75 per unit for 25 years and the same was accepted. It is,

therefore, submitted that, considering the aforesaid, the levelized

tariff of the respondent No.1-MB Power for 25 years at Rs.5.517

per unit is indisputably market aligned even as on 2012-2013.

28. Dr. Singhvi, relied on the following charts to show that the

levelized tariff for 25 years, as quoted by the respondent No.1-

MB Power, is very much market aligned.

28 “Market Price as of 2012-13 – at the time of Rajasthan Bid Procurer 1st Year Levelized PPA State Quoted Tariff for Duration Tariff 25 years

Rajasthan – L5 3.976 5.300 25 years (i.e. SKS) Rajasthan – 4.137 5.517 25 years L7 (i.e. R1 – MB Power Bid) UP – 2013 4.36 5.849 25 years Tariff approved by BEC (Deloitte as consultant) TN – Approved 4.117 5.75 15 years Tariff

Prices discovered in Rajasthan Medium Term Tender in Sept / Oct 2023 Procurer State 1st Year Levelized PPA Quoted Tariff for 25 Duration Tariff years Rajasthan – 5.30 7.91 5 years 2023 Rajasthan – R1 4.137 5.517 25 (i.e. L7 – MB years” Power 2012 Bid)

29. Dr. Singhvi, the learned Senior Counsel, relying on clause

3.5.9 of the RFP, submits that, no negotiations were permissible

in spite of the specific clause in the RFP and the opinion to the

29 contrary given by the consultant. It is submitted that the

appellants tried to negotiate the prices with L-1 to L-3 bidders,

which decision has been finally set aside by this Court vide order

dated 25th April 2018.

30. Dr. Singhvi submits that in view of the specific certificate

dated 4th June 2013, issued by the BEC, certifying that the

bidding procedure for the bids in question had been carried out

by the appellants in conformity with the provisions of the RFP

and the Bidding Guidelines issued by the Government of India,

it is not permissible for the appellants to take a contradictory

stand.

31. Dr. Singhvi submits that what this Court had directed by

order dated 25th April 2018, was to adopt the tariff with regard to

L-4 and L-5 bidders. By the subsequent order dated 19th

November 2018, this Court clarified and directed to decide the

tariff under Section 63 of the Electricity Act having regard to the

law laid down both statutorily and by this Court. It is submitted

that the only scrutiny that could be done by the Commission was

only with regard to the following of the twin requirements as

observed by this Court in the case of Energy Watchdog (supra). 30

32. Dr. Singhvi submits that the power to reject the bids is in

respect of all price bids. He submits that if it is found that the

bidding process was not transparent and the Guidelines were not

followed or the bids are not market aligned, then the appellants

would be entitled to reject all bids and not individually and

selectively some bids. He submits that if the interpretation as

placed by the appellants is to be accepted, it will vest an arbitrary

power with the procurer of energy to arbitrarily reject the bid of

any of the bidders. It is submitted that such an unfettered and

unchecked discretion cannot be permitted to be exercised by the

appellants/distribution companies (“DISCOMS”).

33. Dr. Singhvi submits that insofar as the aspect with regard

to “consumer’s interest” is concerned, the learned APTEL has

squarely covered the same. It has been held by the learned

APTEL that the consumers’ interest is a broad term and among

others, involves reliable, quality and un-interrupted power on

long term basis besides being competitive.

34. The learned Senior Counsel submits that the State of

Rajasthan needed 1000 MW of power when it invited the bids in

question. He submits that the DISCOMS have even fairly

31 admitted that they are still in need of power and as such, filed an

Interlocutory Application being I.A. No. 150366 of 2023 in Civil

Appeal No.4612 of 2023 (for permission to file additional

documents) seeking permission to procure power for medium

term from the State Commission. It is, therefore, submitted that

even in the larger public interest and consumer interest, the

appellants should procure the power from the respondent No.1-

MB Power. Dr. Singhvi submits that the appellants are bound to

procure 906 MW of power in view of the orders passed by this

Court on 25th of April 2018. He submits that the RFP provides

for bucket filling. It is, therefore, submitted that the appellants

are required to procure the power going down the ladder from the

bidders starting from L-1 to the one till procurement of 906 MW

of power is complete. It is submitted that since many of the

bidders had now gone into insolvency, it is only 3 bidders, which

are left in the fray. L-1 bidder is supplying 195 MW power and

L-2 is supplying 311 MW power. It is submitted that even in the

event, this Court permits L-5 bidder to supply 100 MW power

and 160 MW power for medium term in pursuance to the order

passed by this Court on 26th September 2023, still the total would

32 not be beyond 766 MW. Still the balance of 140 MW power would

remain.

35. Dr. Singhvi submits insofar as contention of the appellants

with regard to delay and laches is concerned, the same is without

substance. He submits that only after the respondent No.1 came

to know about the incapacity of L-3, L-4 and L-6 bidders to

honour their offered capacity, the occasion to revalidate the claim

of the respondent No.1 arose. The learned Senior Counsel,

relying on clause 3.5.6 of the RFP, submits that the selection

process shall continue till the requisitioned capacity has been

achieved through the summation of the quantum offered by the

“successful bidders” or when the balance of the requisitioned

capacity is less than the minimum bid capacity. It is submitted

that since there is still a gap of 140 MW, to comply with this

Court’s order dated 25th April 2018, the appellants are bound to

enter into PPAs with the qualified bidders until the entire

requisitioned capacity of 906 MW is met.

36. Dr. Singhvi relied on the following chart to show that the

prices discovered in all medium and long term bids are much

33 higher than the levelized price quoted by the respondent No.1-

MB Power.

“Prices discovered in all medium and long term bids since 2022 Procurer State 1st Year Levelized PPA Quoted Tariff for Duration Tariff 25 years Adani Mumbai– 2022 5.98 8.78 2.1 years Uttarakhand–2023 5.41 7.93 1.5 years Noida Power – 2022 5.15 7.46 3 years Mundra SEZ– 2023 5.00 6.69 15 years Haryana – 2022 5.70 to 5.75 8.36 3 years J & K – 2023 6.05 8.22 5 years Haryana – 2023 6.05 8.22 5 years NDMC – 2023 6.05 8.22 5 years Madhya Pradesh–2023 6.05 8.22 5 years Haryana – 2023 5.79 8.49 5 years Gujarat – 2023 5.18 to 5.69 6.81 15 years Uttarakhand–2023 7.97 11.72 3.5 years Noida Power – 2023 6.30 9.18 3 years”

37. Dr. Singhvi, therefore, submits that, if the directions as

issued by the High Court are maintained, it will be in the

interests of the consumers, who will be getting the electricity at

lesser prices than what has recently been emerged as a levelized

price in the bidding process. He submits that this is specifically

so when indisputably even according to the appellants they are

34 in dire need of power. Dr. Singhvi, therefore, prays for dismissal

of the present appeals.

38. Shri C.S. Vaidyanathan, learned Senior Counsel also

addressed similar arguments and prayed for dismissal of the

present appeals.

CONSIDERATIONS

39. For considering the rival submissions, it will be necessary

to refer to some of the provisions of the Electricity Act, which are

as under:

“63. Determination of tariff by bidding process. - Notwithstanding anything contained in section 62, the Appropriate Commission shall adopt the tariff if such tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government.”

xxx xxx xxx

79. Functions of Central Commission.-(1) The Central Commission shall discharge the following functions, namely:-

(a) ………………………………………

(b) to regulate the tariff of generating companies other than those owned or

35 controlled by the Central Government specified in clause (a), if such generating companies enter into or otherwise have a composite scheme for generation and sale of electricity in more than one State;

xxx xxx xxx

“86. Functions of State Commission.- (1) The State Commission shall discharge the following functions, namely: -

(a) …………….

(b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State;”

40. It will also be relevant to refer to part of the preamble of the

Bidding Guidelines notified by the Union of India vide Resolution

dated 19th January 2005, which is as under:

“These guidelines have been framed under the above provisions of section 63 of the Act. The specific objectives of these guidelines are as follows:

1. Promote competitive procurement of electricity by distribution licensees;

36 2. Facilitate transparency and fairness in procurement processes;

3. Facilitate reduction of information asymmetries for various bidders;

4. Protect consumer interests by facilitating competitive conditions in procurement of electricity;

5. Enhance standardization and reduce ambiguity and hence time for materialization of projects;

6. Provide flexibility to suppliers on internal operations while ensuring certainty on availability of power and tariffs for buyers.”

41. It will also be relevant to refer to certain clauses of the RFP,

which are as under:

“2.15 Right to withdraw the RFP and to reject any Bid.

2.15.1 This RFP may be withdrawn or cancelled by the Procurer/ Authorized Representative at any time without assigning any reasons thereof. The Procurer/ Authorized Representative further reserves the right, at its complete

37 discretion, to reject any or all of the Bids without assigning any reasons whatsoever and without incurring any liability on any account.”

xxx xxx xxx

“3.5 STEP IV- Successful Bidder(s) Selection

3.5.1 Bids qualifying in Step III shall only be evaluated in this stage.

3.5.2 The Levelized Tariff calculated as per Clause 3.4.8 for all Financial Bids of Qualified Bidders shall be ranked from the lowest to the highest.

3.5.3 The Bidder with the lowest Levelized Tariff shall be declared as the Successful Bidder for the quantum of power (in MW) offered by such Bidder in its Financial Bid.

3.5.4 The selection process of the Successful Bidder as mentioned above in Clause 3.5.3 shall be repeated for all the remaining Financial Bids of Qualified Bidders until the entire Requisitioned Capacity is met or until the time when the balance of the Requisitioned Capacity is less than the Minimum Bid Capacity.

38 3.5.5 At any step in the process in Clause 3.5.4, in case the Requisitioned Capacity has not been achieved and the offered capacity of the Bidder with the lowest Levelized Tariff amongst the remaining Financial Bids is larger than the balance Requisitioned Capacity, any fraction or combination of fractions offered by such Bidder shall be considered for selection, towards meeting the Requisitioned Capacity.

3.5.6 The selection process shall stand completed once the Requisitioned Capacity has been achieved through the summation of the quantum offered by the Successful Bidders or when the balance of the Requisitioned Capacity is less than the Minimum Bid Capacity.

Provided however in case only one Bidder remains at any step of the selection process and the balance Requisitioned Capacity exceeds the Minimum Bid Capacity, Financial Bid(s) of such Bidder shall be referred to Appropriate Commission and the selection of the Bidder shall then be at the sole discretion of the Appropriate Commission.

39 3.5.7 At any step during the selection of Successful Bidder(s) in accordance with Clauses 3.5.2 to 3.5.6, the Procurer / Authorized Representative reserves the right to increase / decrease the Requisitioned Capacity by up to ten percent (10%) of the quantum indicated in Clause 1.3.1 to achieve the balance Requisitioned Capacity and select the Successful Bidder with the lowest Levelized Tariff amongst the remaining Bids. Any increase / decrease in the Requisitioned Capacity exceeding ten percent (10%) of the quantum in Clause 1.3.1. can be made only with the approval of the Appropriate Commission.

3.5.8 The Letter(s) of Intent shall be issued to all such Successful Bidder(s) selected as per the provisions of this Clause 3.5.

3.5.9 There shall be no negotiation on the Quoted Tariff between the Authorized Representative/ Procurer and the Bidder(s) during the process of evaluation.

3.5.10 Each Successful Bidder shall unconditionally accept the LOI, and record on one (1) copy of the LOI, "Accepted Unconditionally", under the

40 signature of the authorized signatory of the Successful Bidder and return such copy to the Procurer/ Authorized Representative within seven (7) days of issue of LOI.

3.5.11 If the Successful Bidder, to whom the Letter of Intent has been issued does not fulfill any of the conditions specified in Clauses 2.2.8 and 2.2.9, the Procurer / Authorized Representative reserves the right to annul the award of the Letter of Intent of such Successful Bidder. Further, in such a case, the provisions of Clause 2.5 (b) shall apply.

3.5.12 The Procurer / Authorized Representative, in its own discretion, has the right to reject all Bids if the Quoted Tariff are not aligned to the prevailing market prices.”

42. It will also be relevant to refer to clause 5.15 of the Bidding

Guidelines, which is as under:

“5.15 The bidder who has quoted lowest levellised tariff as per evaluation procedure, shall be considered for the award.

The evaluation committee shall have the right to reject all price bids if the rates quoted are not

41 aligned to the prevailing market prices.” [emphasis supplied]

43. Successful bidder has been defined in the RFP as under:

"Successful Bidder(s)" shall mean the Bidder(s) selected by the Procurer/ Authorized Representative, as applicable pursuant to this RFP for supply of power by itself or through the Project Company as per the terms of the RFP Documents, and to whom a Letter of Intent has been issued;”

44. The impugned judgment of the High Court is basically

based on the judgment of the learned APTEL dated 3 rd February

2020 in the case of SKS Power and orders passed by this Court

as already observed herein above. After the bids were received

for procurement of 1000 MW, the BEC decided to accept the bids

of L-1, L-2 and L-3 bidders. However, as the State government

had recommended reduction of purchase to only 500 MW power,

RVPN filed an application under Regulation 7 of the RERC

Regulations 2004, for adoption of tariff of L-1 to L-3, so also

allowing it to purchase only 500 MW of power as against 1000

MW. The said application was allowed by the State Commission.

The State Commission also adopted the tariff determined through

42 the bidding process for purchase of 500 MW power vide its order

dated 22nd July 2015. The said order of the State Commission

was challenged before the learned APTEL by M/s D.B. Power Ltd

[L-2 bidder] and by M/s Lanco Power Ltd. [L-3 bidder] by way of

Appeal Nos. 235 of 2015 and 191 of 2015 respectively.

45. The learned APTEL in the said appeals, vide judgment and

order dated 2nd February 2018, set aside the order of the State

Commission dated 22nd July, 2015, and passed the following

directions:

“ORDER

Hence, the Appeal Nos. 235 of 2015 and 191 of 2015 are allowed and the State Commission’s order dated 22.07.2015 is set aside. The State Commission is directed to pass consequential order in accordance with the law keeping in view our observations made above as well as the judgments of this Tribunal rendered earlier on the aspects of the scope of Section 63 of the Act as expeditiously as possible, preferably, within 2 months from today. No order as to costs.”

46. After the learned APTEL passed the aforesaid order, M/s

D.B. Power Ltd. (L-2 bidder) filed an Interlocutory Application

before the State Commission, praying for passing forthwith

43 consequential orders in terms of the judgment of the learned

APTEL. It also sought a direction to DISCOMS to start procuring

power from it to the extent of 410 MW as per the PPA dated 1 st

November 2013.

47. When the matter was heard by the State Commission on 8th

March 2018, it was noticed that appeals against the order of the

learned APTEL were pending before this Court.

48. This Court disposed of the said appeals vide judgment and

order dated 25th April 2018, and issued the following directions:

"We are in agreement with the earlier conclusion of the APTEL. We are of the view that the direction of reduction of capacity from 1000 mw to 500 mw by the State Commission was correctly set aside. Since L- 1 to L-5 were represented before this Court, we direct that they shall be entitled to supply of power in terms of the originally offered amount, mentioned above, in accordance with para 3.5 of the Request for Proposal. The power supply will now be reduced to a total of 906 mw. The State Commission may now go into the issue of approval for adoption of tariff with regard to L-4 and L-5. All Letters of Intent (LOIs) shall stand modified in terms of the above. All the appeals shall stand disposed of in terms of the above order."

44 49. Consequent to the orders passed by this Court, the State

Commission vide its order dated 29th May 2018, directed

RVPN/DISCOMS to file an appropriate application/petition in

relation to L-3, L-4 and L-5 bidders.

50. RVPN accordingly filed an application on 27th August 2018

before the State Commission, submitting therein that the tariff of

L-4 and L-5 bidders was very high and not aligned to market

prices and, therefore, sought not to be adopted in terms of the

competitive bidding guidelines and documents.

51. In the meantime, a Contempt Petition came to be filed before

this Court by SKS Power. This Court vide order dated 20th

September 2018, in the said Contempt Petition, issued the

following directions:

" We are of the view that there is no doubt whatsoever that now the PPA has to be signed between the parties. However, the State Commission, may, as per our order, go into the issue of approval of adoption of tariff with regard to L-5, who is the party before us, and will decide the same within a period of six weeks from today.

PPA is to be signed immediately thereafter."

[emphasis supplied]

45

52. Thereafter, SKS Power filed an Interlocutory Application on

5th October 2018, praying for adoption of its tariff as per the

orders of this Court dated 25th April 2018 and 20th September

2018.

53. It was contended before the State Commission by SKS

Power that the State Commission was bound to adopt tariff as

quoted by it. However, per contra, it was contended by the RVPN

and DISCOMS that since the tariff quoted by SKS Power was not

market aligned, it could not be adopted. In view of the counter

submission, the State Commission vide its order dated 16th

October 2018, gave an opportunity to the RVPN to file an

amended application or seek direction on the issue from this

Court.

54. Accordingly, RVPN filed a Miscellaneous Application before

this Court. This Court vide order dated 19th November 2018,

passed the following order:

"Having heard learned counsels for both the parties, we only clarify that the Rajasthan Electricity Regulatory Commission [the State Commission) is to decide the tariff under- Section 63 of the Electricity Act, 2003 having regard to the law laid down both statutorily and by this Court.

46 The State Commission to finalise the aforesaid prices within a period of eight weeks from today.

The MAs are disposed of accordingly."

55. A review application was also filed on behalf of the SKS

Power. The said review application was disposed of by this Court

vide order dated 21st January 2019, with the following directions:

"------. We find that as per the Standard Bidding Guidelines the PPA is first to be signed after which the question of adoption of tariff has to be taken up.

With this clarification of the 20.09.2018 order, we dispose of the review and the M.A.

The State Commission which has reserved its judgment on 16.01.2019 will hear the parties within a period of two weeks from today and will pass orders after taking into account the order that we have passed today.”

56. In accordance with the directions issued by this Court, the

State Commission considered the rival submissions of the parties

and came to a conclusion that the tariff quoted by SKS Power

was not market aligned. The State Commission also found that,

adoption of such high rate would be against the consumer

47 interest. The State Commission, therefore, vide order dated 26th

February 2019, decided not to adopt the tariff quoted by L-4 and

L-5 bidders.

57. The said order dated 26th February 2019 of the State

Commission was challenged before the learned APTEL by SKS

Power by way of Appeal No.224 of 2019. The learned APTEL

framed the following three issues in the said appeal:

“ISSUE NO.1: Whether the Respondent Commission could reject the tariff/bid of the Appellant, in terms of Section 63 of the Electricity Act, 2003 and the directions issued by the Hon’ble Supreme Court?

ISSUE NO.2: Whether there was a sufficient proof to show that the bid of the Appellant was market aligned?

ISSUE NO.3: Whether the argument of Consumer interest be advanced by the Rajasthan Discoms in the facts of the present Appeal?”

58. The learned APTEL while answering the first issue, came to

the conclusion that the State Commission, while adopting tariff

48 under Section 63, has to only consider that the Bidding

Guidelines issued by the Central Government providing for tariff

structure were complied with or not. The learned APTEL also

held that the State Commission cannot exercise its powers de

hors such guidelines. It further held that the State Commission

has no power to reject the tariff of a bidder.

59. Insofar as the second issue is concerned, the learned APTEL

came to a finding that, since the bid of SKS Power was already

evaluated, and the subsequent certificates were issued by the

BEC confirming the transparency of the bid, it was not open for

the State Commission to go into the question, as to whether the

tariff quoted by SKS Power was market aligned or not. It further

held that, after the order dated 25th April 2018 was passed by

this Court, it was not open for the State Commission to re-

evaluate the bid.

60. Insofar as the third issue with regard to consumers’ interest

is concerned, the learned APTEL held that the said issue cannot

be raised again at that stage when the same had been dealt with

in detail by the learned APTEL vide order dated 2nd February

49 2018 and also considered by this Court before passing the order

dated 25th April, 2018.

61. Accordingly, the appeal was allowed by the learned APTEL

vide order dated 3rd February 2020 and the order dated 26th

February 2019 of the State Commission was set aside. The

learned APTEL directed that the tariff of SKS Power, as offered in

its bid, shall be adopted. The parties were directed to revive and

implement the PPA dated 4th February 2019. This order dated

3rd February 2020, passed by the learned APTEL has been

challenged by the DISCOMS and RVPN before this Court by way

of Civil Appeal No.1937 of 2020 and Civil Appeal No. 2721 of 2020

respectively.

62. The respondent No.1 in the present proceedings rests its

claim on the aforesaid orders passed by this Court and the order

dated 3rd February 2020, passed by the learned APTEL.

63. Basically, it is the contention of the respondent No.1-MB

Power that after the orders were passed by this Court, RVPN and

the DISCOMS were bound to procure electricity/power from the

bidders going down the ladder until the entire 906 MW power was

exhausted. It is their contention that once it is certified that the

50 bid evaluation process has been complied with as per the Bidding

Guidelines issued by the Central Government, it is presumed

that the process was transparent and it is not permissible for the

State Commission to go into the question of market aligned tariff

and also the consumer interest. It is their contention that

without considering the question, as to whether the tariff was

market aligned or not, the procurers were bound to accept supply

from the bidders at the rates quoted by them. It is their

submission that the power under Section 63 of the Electricity Act

restricted the scrutiny only to two aspects, viz., (1) whether the

Bidding Guidelines framed by the Union of India under Section

63 of the Electricity Act were followed; and (2) whether the

bidding process was transparent or not.

64. The High Court in the impugned judgment, relying on the

observations of the learned APTEL and the earlier orders of this

Court has come to a conclusion that, applying the test of “filling

the bucket”, the procurers were bound to take supply from the

respondent No.1-MB Power at the rates quoted by it. On the

basis of the judgment of the learned APTEL, the High Court held

that the respondent No.1-MB Power had a right to supply power

51 since there was a gap of 300 MW between the power procured by

the procurers and the ceiling of 906 MW determined by this

Court. In these premises, the High Court issued a mandamus

directing the appellants to take supply of 200 MW

electricity/power from the respondent No.1-MB Power at the

rates quoted by it.

65. We, therefore, find that, before deciding the correctness or

otherwise of the impugned judgment, it will be necessary for us

to examine the correctness of the judgment and order dated 3rd

February 2020, passed by the learned APTEL in the case of SKS

Power.

66. We have already reproduced Section 63 of the Electricity

Act. The provisions of Section 63 of the Electricity Act fell for

consideration before this Court in the case of Energy Watchdog

(supra). It will be apposite to refer to paragraphs 19 and 20 of

the said judgment, which are as under:

“19. The construction of Section 63, when read with the other provisions of this Act, is what comes up for decision in the present appeals. It may be noticed that Section 63 begins with a non obstante clause, but it is a non obstante clause covering only Section 62.

52 Secondly, unlike Section 62 read with Sections 61 and 64, the appropriate Commission does not “determine” tariff but only “adopts” tariff already determined under Section 63. Thirdly, such “adoption” is only if such tariff has been determined through a transparent process of bidding, and, fourthly, this transparent process of bidding must be in accordance with the guidelines issued by the Central Government. What has been argued before us is that Section 63 is a standalone provision and has to be construed on its own terms, and that, therefore, in the case of transparent bidding nothing can be looked at except the bid itself which must accord with guidelines issued by the Central Government. One thing is immediately clear, that the appropriate Commission does not act as a mere post office under Section 63. It must adopt the tariff which has been determined through a transparent process of bidding, but this can only be done in accordance with the guidelines issued by the Central Government. Guidelines have been issued under this section on 19-1-2005, which guidelines have been amended from time to time. Clause 4, in particular, deals with tariff and the appropriate Commission certainly has the jurisdiction to look into whether the tariff determined through the process of bidding accords with Clause 4.

53 20. It is important to note that the regulatory powers of the Central Commission, so far as tariff is concerned, are specifically mentioned in Section 79(1). This regulatory power is a general one, and it is very difficult to state that when the Commission adopts tariff under Section 63, it functions dehors its general regulatory power under Section 79(1)(b). For one thing, such regulation takes place under the Central Government's guidelines. For another, in a situation where there are no guidelines or in a situation which is not covered by the guidelines, can it be said that the Commission's power to “regulate” tariff is completely done away with? According to us, this is not a correct way of reading the aforesaid statutory provisions. The first rule of statutory interpretation is that the statute must be read as a whole. As a concomitant of that rule, it is also clear that all the discordant notes struck by the various sections must be harmonised. Considering the fact that the non obstante clause advisedly restricts itself to Section 62, we see no good reason to put Section 79 out of the way altogether. The reason why Section 62 alone has been put out of the way is that determination of tariff can take place in one of two ways — either under Section 62, where the Commission itself determines the tariff in accordance with the provisions of the Act (after laying down the terms and conditions for determination of tariff mentioned in Section 61) or under Section 63 where the Commission adopts tariff that is already determined by a transparent process of bidding. In either case,

54 the general regulatory power of the Commission under Section 79(1)(b) is the source of the power to regulate, which includes the power to determine or adopt tariff. In fact, Sections 62 and 63 deal with “determination” of tariff, which is part of “regulating” tariff. Whereas “determining” tariff for inter-State transmission of electricity is dealt with by Section 79(1)(d), Section 79(1)(b) is a wider source of power to “regulate” tariff. It is clear that in a situation where the guidelines issued by the Central Government under Section 63 cover the situation, the Central Commission is bound by those guidelines and must exercise its regulatory functions, albeit under Section 79(1)(b), only in accordance with those guidelines. As has been stated above, it is only in a situation where there are no guidelines framed at all or where the guidelines do not deal with a given situation that the Commission's general regulatory powers under Section 79(1)(b) can then be used.” [emphasis supplied]

67. It could thus be seen that it has been held by this Court

that unlike Section 62 read with Sections 61 and 64, under the

provisions of Section 63 of the Electricity Act, the appropriate

Commission does not “determine” tariff but only “adopts” tariff

already determined under Section 63. It has further been held

that, such “adoption” is only if such tariff has been determined

55 through a transparent process of bidding, and that, this

transparent process of bidding must be in accordance with the

guidelines issued by the Central Government. It was sought to

be contended before this Court in the said case that Section 63

is a standalone provision and has to be construed on its own

terms, and that, therefore, in the case of transparent bidding

nothing can be looked at except the bid itself which must accord

with guidelines issued by the Central Government. However,

rejecting the said contention, this Court observed that the

appropriate Commission does not act as a mere post office under

Section 63. It has been observed that, Clause 4, in particular,

deals with tariff and the appropriate Commission certainly has

the jurisdiction to look into whether the tariff determined through

the process of bidding accords with Clause 4.

68. This Court in the said case, in paragraph 20, further

observed that the entire Act shall be read as a whole. It has been

held that, all the discordant notes struck by the various sections

must be harmonized. It has been held that, considering the fact

that the non obstante clause advisedly restricts itself to Section

62, there is no reason to put Section 79 out of the way altogether.

56 It has been held that, either under Section 62, or under Section

63, the general regulatory power of the Commission under

Section 79(1)(b) is the source of the power to regulate, which

includes the power to determine or adopt tariff. It has been held

that, Sections 62 and 63 deal with “determination” of tariff, which

is part of “regulating” tariff. It has further been held that, in a

situation where the guidelines issued by the Central Government

under Section 63 cover the situation, the Central Commission is

bound by those guidelines and must exercise its regulatory

functions, albeit under Section 79(1)(b), only in accordance with

those guidelines. It has further been held that, it is only in a

situation where there are no guidelines framed at all or where the

guidelines do not deal with a given situation that the

Commission's general regulatory powers under Section 79(1)(b)

can be used.

69. The aforesaid view of this Court in the case of Energy

Watchdog (supra), which is a judgment delivered by two Judge

Bench, has been approved by three Judge Bench of this Court in

the case of Tata Power Company Limited Transmission

(supra).

57

70. We have already referred to Section 86(1)(b) of the Electricity

Act, which is analogous to Section 79 of the Electricity Act.

Section 79 determines the functions of Central Commission,

whereas Section 86 provides for the functions of the State

Commission. Section 86 of the Electricity Act empowers the

State Commission to regulate electricity purchase and

procurement process of distribution licensees including the price

at which electricity shall be procured from the generating

companies or licensees or from other sources through

agreements for purchase of power for distribution and supply

within the State.

71. It can thus be seen that Section 86(1)(b) of the Electricity

Act gives ample power on the State Commission to regulate

electricity purchase and procurement process of distribution

licensees. It also empowers the State Commission to regulate the

matters including the price at which electricity shall be procured

from the generating companies, etc.

72. It will also be relevant to refer to the Bidding Guidelines

notified by the Central Government vide Resolution dated 19th

January 2005. The preamble of the Bidding Guidelines

58 specifically states that, one of the objectives of the said Bidding

Guidelines is to facilitate transparency and fairness in

procurement processes and protection of consumer interests by

facilitating competitive conditions in procurement of electricity.

73. Clause 5.15 of the Bidding Guidelines is an important

clause. It provides that, the bidder who has quoted lowest

levelized tariff as per evaluation procedure, shall be considered

for the award. It also provides that the evaluation committee

shall have the right to reject all price bids if the rates quoted are

not aligned to the prevailing market prices.

74. It is thus amply clear that the evaluation committee is

empowered to consider, as to whether the rates quoted are

aligned to the market price or not, and that the evaluation

committee shall have the right to reject all the price bids if it finds

that the rates quoted are not aligned to the prevailing market

price. The orders which are relied upon by the learned APTEL,

specifically the order dated 19th November 2018 of this Court,

had specifically clarified that the State Commission was to decide

the tariff under Section 63 of the Electricity Act having regard to

the law laid down both statutorily and by this Court.

59

75. In this background, the State Commission was justified in

considering clause 5.15 of the Bidding Guidelines, which

specifically permits to reject all price bids if the rates quoted are

not aligned to the prevailing market prices.

76. The contention that this Court has ordered that the bids

quoted by the bidders are to be accepted without going into the

question of it being market aligned or not, in our view, is without

substance.

77. If the contention of the respondent No.1-MB Power that the

procurer is bound to accept all the bids emerged in a competitive

bidding process once the bidding process was found to be

transparent and in compliance with the Bidding Guidelines is to

be accepted, in our view, it will do complete violence to clause

5.15 of the Bidding Guidelines itself. If that view is accepted,

the DISCOMS will be compelled to purchase electricity at a much

higher rate as compared with other suppliers. The said higher

rate will be passed on to the consumers. As such, accepting the

contention of the respondent No.1 would result in adversely

affecting the interests of the consumers and, in turn, would be

against the larger public interest. For example, if in a bidding

60 process for 1000 MW power, 10 persons emerged as “qualified

bidders”. L-1 bidder quotes Rs.2 per unit for 100 MW power and

L-2 bidder quotes Rs.2.25 per unit for another 100 MW power

and from L-3 bidder onwards, they start quoting Rs.10 per unit

and above for balance 800 MW power, could the public interest

be subserved by compelling the procurer to buy balance 800 MW

power at Rs.10 per unit and above when the prices quoted are

totally not aligned to market prices.

78. We are, therefore, of the considered view that the learned

APTEL has grossly erred in holding that the State Commission

has no power to go into the question, as to whether the prices

quoted are market aligned or not and also not to take into

consideration the aspect of consumers’ interest.

79. When the Bidding Guidelines itself permit the BEC to reject

all price bids if the rates quoted are not aligned to the prevailing

market prices, there is no question of the State Commission

being not in a position to go into the question, as to whether the

rates quoted are market aligned or not, specifically, in the light

of ample powers vested with the State Commission under Section

86(1)(b) of the Electricity Act, which also includes the power to

61 regulate the prices at which electricity shall be procured from the

generating companies, etc. The finding of the learned APTEL, in

our view, therefore, is totally erroneous.

80. In the case of SKS Power, the BEC, consisting of following 6

members, has considered the levelized tariff quoted by L-4 and

L-5 bidders:

(i) Shri R.K. Jain, Chief Engineer (NPP & RA), RVPN,

Jaipur;

(ii) Shri Manish Saxena, Chief Controller of Accounts,

RVPN, Jaipur;

(iii) Shri M.M. Ranwa, Chief Engineer, RUVNL, Jaipur;

(iv) Shri K.L. Meena, Addl. Chief Engineer (Fuel), RVUN,

Jaipur;

(v) Shri S.K. Mathur, Chief Engineer (HQ), JVVNL,

Jaipur; and

(vi) Shri Tarun Agarwal, CA, Partner M/s Shyamlal

Agrawal & Co., Jaipur

81. It can be seen that the said Committee consisted of 4

technical members of the rank of Chief Engineer/Additional

62 Chief Engineer. It consisted of the Chief Controller of Account,

RVPN, Jaipur. It also consisted of a Chartered Accountant, who

is an expert in financial matters. After due deliberations, the BEC

consisting of experts found that the prices quoted by L-4 and L-

5 bidders were exorbitantly high and it would result in additional

financial burden of more than Rs.1715 crore on the consumers

of the State as compared to the tariff of L-1 bidder.

82. The State Commission after considering the detailed

analysis of the BEC had come to the considered conclusion that

the prices offered by SKS Power (L-5 bidder) were not market

aligned, and therefore, not in the consumers’ interest. We,

therefore, find that the learned APTEL has grossly erred in

reversing the well-reasoned order passed by the State

Commission, which was, in turn, based on the decision of the

BEC in accordance with clause 5.15 of the Bidding Guidelines.

83. We further find that it cannot be read from the orders of this

Court that the State Commission was bound to accept the bids

as quoted by the bidders till the bucket was filled. Firstly, no such

direction can be issued by this Court de hors the provisions of

Section 63 and 86(1)(b) of the Electricity Act and the Bidding

63 Guidelines. In any event, vide order dated 19th November 2018,

this Court had specifically directed the State Commission to

decide the tariff under Section 63 of the Electricity Act having

regard to the law laid down both statutorily and by this Court.

As such, the State Commission was bound to take into

consideration the Bidding Guidelines and specifically clause 5.15

thereof.

84. With regard to the contention that the power under clause

5.15 of the Bidding Guidelines can be exercised only when the

bidding process is found to be not in compliance with the Bidding

Guidelines and is not transparent in respect of all the bidders

and not in respect of some of the bidders is concerned, in our

view, the same is without substance.

85. We may in this respect refer to Section 13(2) of the General

Clauses Act, which reads thus:

“13. Gender and number.—In all Central Acts and Regulations, unless there is anything repugnant in the subject or context,— (1) …………………; and (2) words in the singular shall include the plural, and vice versa.”

64

86. Apart from that, the Constitution Bench of this Court in the

case of Vivek Narayan Sharma and others v. Union of India

and others10 had an occasion to consider the question, as to

whether the word “any” would include “all” and vice versa. The

Constitution Bench of this Court observed thus:

“113. It is strenuously urged by the learned Senior Counsel appearing on behalf of the petitioners that the word “any” used in sub- section (2) of Section 26 of the RBI Act will have to be given a restricted meaning to mean “some”. It is submitted that if sub-section (2) of Section 26 of the RBI Act is not read in such manner, the very power available under the said sub-section will have to be held to be invalid on the ground of excessive delegation. It is submitted that it cannot be construed that the legislature intended to bestow uncanalised, unguided and arbitrary power on the Central Government to demonetise the entire currency. It is, therefore, the submission of the petitioners that in order to save the said section from being declared void, the word “any” requires to be interpreted in a restricted manner to mean “some”.

114. Per contra, it is submitted on behalf of the respondents that the word “any” under sub-section (2) of Section 26 of the RBI Act, cannot be interpreted in a narrow manner

10 (2023) 3 SCC 1=2023 INSC 2

65 and it will have to be construed to include “all”.

Precedents construing the word “any”

115. A Constitution Bench of this Court in Chief Inspector of Mines v. Lala Karam Chand Thapar [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] was considering the question as to whether the phrase “any one of the Directors” as found in Section 76 of the Mines Act, 1952 could mean “only one of the Directors” or could it be construed to mean “every one of the Directors”. In the said case, all the Directors of the Company were prosecuted for the offences punishable under Sections 73 and 74 of the Mines Act, 1952. The High Court had held [Lala Karam Chand Thapar v. State of Bihar, 1958 SCC OnLine Pat 30] that any “one” of the Directors of the Company could only be prosecuted.

116. The Constitution Bench of this Court observed thus : (Lala Karam Chand Thapar case [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] , AIR pp. 847-48, paras 29-34) “29. It is quite clear and indeed not disputed that in some contexts, “any one” means “one only it matters not which one” the phrase “any of the Directors” is therefore quite capable of meaning “only one of the Directors, it does not matter which one”. Is the phrase however capable of no other meaning? If it is not, the courts cannot look further, and must interpret

66 these words in that meaning only, irrespective of what the intention of the legislature might be believed to have been. If however the phrase is capable of another meaning, as suggested viz. “every one of the Directors” it will be necessary to decide which of the two meanings was intended by the legislature.

30. If one examines the use of the words “any one” in common conversation or literature, there can be no doubt that they are not infrequently used to mean “every one” — not one, but all. Thus we say of any one can see that this is wrong, to mean “everyone can see that this is wrong”. “Any one may enter” does not mean that “only one person may enter”, but that all may enter. It is permissible and indeed profitable to turn in this connection to Oxford English Dictionary, at p. 378, of which, we find the meaning of “any” given thus:‘In affirmative sentences, it asserts, concerning a being or thing of the sort named, without limitation as to which, and thus collectively of every one of them’. One of the illustrations given is — “I challenge anyone to contradict my assertions”. Certainly, this does not mean that one only is challenged; but that all are challenged. It is abundantly clear therefore that “any one” is not infrequently used to mean “every one”.

31. But, argues Mr Pathak, granting that this is so, it must be held that when the phrase “any one” is used with the preposition “of”, followed by a word

67 denoting a number of persons, it never means “every one”. The extract from Oxford Dictionary, it is interesting to notice, speaks of an assertion “concerning a being or thing of the sort named”; it is not unreasonable to say that, the word “of” followed by a word denoting a number of persons or things is just such “naming of a sort” as mentioned there. Suppose, the illustration “I challenge any one to contradict my assertions” was changed to “I challenge any one of my opponents to contradict my assertion”. “Any one of my opponents” here would mean “all my opponents” — not one only of the opponents.

32. While the phrase “any one of them” or any similar phrase consisting of “any one”, followed by “of” which is followed in its turn by words denoting a number of persons or things, does not appear to have fallen for judicial construction, in our courts or in England — the phrase “any of the present Directors” had to be interpreted in an old English case, Isle of Wight Railway Co. v. Tahourdin [Isle of Wight Railway Co. v. Tahourdin, (1883) LR 25 Ch D 320 (CA)] . A number of shareholders required the Directors to call a meeting of the company for two objects. One of the objects was mentioned as ‘To remove, if deemed necessary or expedient any of the present Directors, and to elect Directors to fill any vacancy on the Board’. The Directors issued a notice to convene a

68 meeting for the other object and held the meeting. Then the shareholders, under the Companies Clauses Act, 1845, issued a notice of their own convening a meeting for both the objects in the original requisition. In an action by the Directors to restrain the requisitionists, from holding the meeting, the Court of Appeal held that a notice to remove “any of the present Directors” would justify a resolution for removing all who are Directors at the present time. “Any”, Lord Cotton, L.J. pointed out, would involve “all”.

33. It is true that the language there was “any of the present Directors” and not “any one of the present Directors” and it is urged that the word “one”, in the latter phrase makes all the difference. We think it will be wrong to put too much emphasis on the word “one” here. It may be pointed out in this connection that the Permanent Edition of Words and Phrases, mentions an American case Front & Huntingdon Building & Loan Assn. v. Berzinski [Front & Huntingdon Building & Loan Assn. v. Berzinski, 130 Pa Super 297 : 196 A 572 (Superior Court of Pennsylvania 1938)] where the words “any of them” were held to be the equivalent of “any one of them”.

34. After giving the matter full and anxious consideration, we have come to the conclusion that the words “any one of the Directors” is ambiguous; in some contexts, it means “only one of the Directors, does not

69 matter which one”, but in other contexts, it is capable of meaning “every one of the Directors”. Which of these two meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on a consideration of the context in which the words appear, and in particular, the scheme and object of the legislation.” (emphasis supplied)

117. The Constitution Bench in Lala Karam Chand Thapar case [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] found that the words “any one” have been commonly used to mean “every one” i.e. not one, but all. It found that the word “any”, in affirmative sentences, asserts, concerning a being or thing of the sort named, without limitation. It held that it is abundantly clear that the words “any one” are not infrequently used to mean “every one”.

118. It could be seen that the Constitution Bench in Lala Karam Chand Thapar case [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] , after giving the matter full and anxious consideration, came to the conclusion that the words “any one of the Directors” was an ambiguous one. It held that in some contexts, it means “only one of the Directors, does not matter which one”, but in other contexts, it is capable of meaning “every one of the Directors”. It held that which of these two

70 meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on consideration of the context in which the words appear, and in particular, the scheme and object of the legislation.

119. After examining the scheme of the Mines Act, 1952, the Constitution Bench of this Court further observed thus : (Lala Karam Chand Thapar case [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] , AIR pp. 848-49, paras 36-38) “36. But, argues Mr Pathak, one must not forget the special rule of interpretation for “penal statute” that if the language is ambiguous, the interpretation in favour of the accused should ordinarily be adopted. If you interpret “any one” in the sense suggested by him, the legislation he suggests is void and so the accused escapes. One of the two possible constructions, thus being in favour of the accused, should therefore be adopted. In our opinion, there is no substance in this contention. The rule of strict interpretation of penal statutes in favour of the accused is not of universal application, and must be considered along with other well-

established rules of interpretation. We have already seen that the scheme and object of the statute makes it reasonable to think that the legislature intended to subject all the Directors of a company owning coal mines

71 to prosecution and penalties, and not one only of the Directors. In the face of these considerations there is no scope here of the application of the rule for strict interpretation of penal statutes in favour of the accused.

37. The High Court appears to have been greatly impressed by the fact that in other statutes where the legislature wanted to make every one out of a group or a class of persons liable it used clear language expressing the intention; and that the phrase “any one” has not been used in any other statute in this country to express “every one”. It will be unreasonable, in our opinion, to attach too much weight to this circumstance; and as for the reasons mentioned above, we think the phrase “any one of the Directors” is capable of meaning “every one of the Directors”, the fact that in other statutes, different words were used to express a similar meaning is not of any significance.

38. We have, on all these considerations come to the conclusion that the words “any one of the Directors” has been used in Section 76 to mean “every one of the Directors”, and that the contrary interpretation given by the High Court is not correct.” (emphasis supplied)

120. It could thus be seen that though it was sought to be argued before the Court that since the rule of strict interpretation of penal

72 statutes in favour of the accused has to be adopted and that the word “any” was suffixed by the word “one”, it has to be given restricted meaning; the Court in Lala Karam Chand Thapar case [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] came to the conclusion that the words “any one of the Directors” used in Section 76 of the Mines Act, 1952 would mean “every one of the Directors”. It is further to be noted that the word “any” in the said case was suffixed by the word “one”, still the Court held that the words “any one” would mean “all” and not “one”. It is to be noted that in the present case, the legislature has not employed the word “one” after the word “any”. It is settled law that it has to be construed that every single word employed or not employed by the legislature has a purpose behind it.

121. On the very date on which the judgment in Chief Inspector of Mines v. Lala Karam Chand Thapar [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] was pronounced, the same Constitution Bench also pronounced the judgment in Banwarilal Agarwalla [Banwarilal Agarwalla v. State of Bihar, (1962) 1 SCR 33 : AIR 1961 SC 849] , wherein the Constitution Bench observed thus : (Banwarilal Agarwalla case [Banwarilal Agarwalla v. State of Bihar, (1962) 1 SCR 33 :

AIR 1961 SC 849] , AIR p. 850, para 3) “3. The first contention is based on an assumption that the word “any one” in

73 Section 76 means only “one of the Directors, and only one of the shareholders”. This question as regards the interpretation of the word “any one” in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] , etc.) and it has been decided there that the word “any one” should be interpreted there as “every one”. Thus under Section 76 every one of the shareholders of a private company owning the mine, and every one of the Directors of a public company owning the mine is liable to prosecution. No question of violation of Article 14 therefore arises.” (emphasis supplied)

122. Another Constitution Bench of this Court in Tej Kiran Jain [Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272] was considering the provisions of Article 105 of the Constitution of India and, particularly, the immunity as available to the Member of Parliament “in respect of anything said … in Parliament”. The Constitution Bench observed thus : (SCC p. 274, para 8) “8. In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of “anything said … in Parliament”. The word “anything” is of the

74 widest import and is equivalent to “everything”. The only limitation arises from the words “in Parliament” which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court this immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The Courts have no say in the matter and should really have none.” (emphasis supplied)

123. This Court held in Tej Kiran Jain case [Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272] that the word “anything” is of the widest import and is equivalent to “everything”. The only limitation arises from the words “in Parliament” which means during the sitting of Parliament and in the course of the business of Parliament. It held that, once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that

75 business was immune from proceedings in any court.

124. This Court, in LDA [LDA v. M.K. Gupta, (1994) 1 SCC 243] , was considering clause (o) of Section 2(1) of the Consumer Protection Act, 1986 which defines “service”, wherein the word “any” again fell for consideration. This Court observed thus : (SCC p. 255, para 4) “4. … The words “any” and “potential” are significant. Both are of wide amplitude. The word “any” dictionarily means “one or some or all”. In Black's Law Dictionary it is explained thus, ‘word “any” has a diversity of meaning and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject- matter of the statute’. The use of the word “any” in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all.”

125. This Court held in LDA case [LDA v. M.K. Gupta, (1994) 1 SCC 243] that the word “any” is of wide amplitude. It means “one or some or all”. Referring to Black's Law Dictionary, the Court observed that the word “any” has a diversity of meaning and may be employed to indicate “all” or “every” as well as “some” or “one”. However, the meaning which is to be given to it would depend upon the context and the subject- matter of the statute.

76

126. In K.P. Mohammed Salim [K.P. Mohammed Salim v. CIT, (2008) 11 SCC 573] , this Court was considering the power of the Director General or Chief Commissioner or Commissioner to transfer any case from one or more assessing officers subordinate to him to any other assessing officer or assessing officers. This Court observed thus : (SCC p. 578, para 17) “17. The word “any” must be read in the context of the statute and for the said purpose, it may in a situation of this nature, means all. The principles of purposive construction for the said purpose may be resorted to. (See New India Assurance Co. Ltd. v. Nusli Neville Wadia [New India Assurance Co.

Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279 : (2008) 1 SCC (Civ) 850] .) Thus, in the context of a statute, the word “any” may be read as all in the context of the Income Tax Act for which the power of transfer has been conferred upon the authorities specified under Section 127.” (emphasis supplied)

127. The Court in K.P. Mohammed Salim [K.P. Mohammed Salim v. CIT, (2008) 11 SCC 573] again reiterated that the word “any” must be read in the context of the statute. The Court also applied the principles of purposive construction to the term “any” to mean “all”.

128. In Raj Kumar Shivhare [Raj Kumar Shivhare v. Directorate of Enforcement, (2010)

77 4 SCC 772 : (2010) 3 SCC (Civ) 712] , an argument was sought to be advanced that since Section 35 of the Foreign Exchange Management Act, 1999 uses the words “any decision or order”, only appeals from final order could be filed. Rejecting the said contention, this Court observed thus : (SCC pp. 779-80, paras 19-20 & 26) “19. The word “any” in this context would mean “all”. We are of this opinion in view of the fact that this section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by statute, as it is barred here under Section 34 of FEMA, is an inherent right (see Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by a statute. While conferring such right a statute may impose restrictions, like limitation or pre- deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise.

20. Under Section 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from “any” “order” or

78 “decision” of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word “any” would mean “all”.

***

26. In the instant case also when a right is conferred on a person aggrieved to file appeal from “any” order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in our judgment in Section 35 of FEMA, any “order” or “decision” of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law.” (emphasis supplied)

129. While holding that the word “any” in the context would mean “all”, this Court in Raj Kumar Shivhare [Raj Kumar Shivhare v. Directorate of Enforcement, (2010) 4 SCC 772 : (2010) 3 SCC (Civ) 712] observed that a right of appeal is always conferred by a statute. It has been held that, while conferring such right, a statute may impose restrictions, like limitation or pre-deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. It has been held that whenever such limitations are imposed, they are to be strictly followed. It has been held that in a case where there is no limitation, the right of appeal

79 cannot be curtailed by this Court on the basis of an interpretative exercise.

130. Shri P. Chidambaram, learned Senior Counsel relied on the judgment of this Court in Union of India v. A.B. Shah [Union of India v. A.B. Shah, (1996) 8 SCC 540 : 1996 SCC (Cri) 688] . In the said case, the High Court was considering an appeal preferred by the Union of India wherein it had challenged the acquittal of the accused by the learned trial court, which was confirmed in appeal by the High Court. The learned trial court and the High Court had held that the complaint filed was beyond limitation. This Court reversed the judgments of the learned trial court and the High Court.

131. This Court while interpreting the expression “at any time” observed thus : (A.B. Shah case [Union of India v. A.B. Shah, (1996) 8 SCC 540 : 1996 SCC (Cri) 688] , SCC p. 546, para 12) “12. If we look into Conditions 3 and 6 with the object and purpose of the Act in mind, it has to be held that these conditions are not only relatable to what was required at the commencement of depillaring process, but the unstowing for the required length must exist always. The expression “at any time” finding place in Condition 6 has to mean, in the context in which it has been used, “at any point of time”, the effect of which is that the required length must be maintained all the time. The

80 accomplishment of object of the Act, one of which is safety in the mines, requires taking of such a view, especially in the backdrop of repeated mine disasters which have been taking, off and on, heavy toll of lives of the miners. It may be pointed out that the word “any” has a diversity of meaning and in Black's Law Dictionary it has been stated that this word may be employed to indicate “all” or “every”, and its meaning will depend “upon the context and subject-matter of the statute”. A reference to what has been stated in Stroud's Judicial Dictionary, Vol. I, is revealing inasmuch as the import of the word “any” has been explained from pp. 145 to 153 of the 4th Edn., a perusal of which shows it has different connotations depending primarily on the subject-matter of the statute and the context of its use. A Bench of this Court in LDA v. M.K. Gupta [LDA v. M.K. Gupta, (1994) 1 SCC 243] , gave a very wide meaning to this word finding place in Section 2(1)(o) of the Consumer Protection Act, 1986 defining “service”. (See para 4)” (emphasis supplied)

132. Shri Chidambaram rightly argued that the word “any” will have to be construed in its context, taking into consideration the scheme and the purpose of the enactment. There can be no quarrel with regard to the said proposition. Right from the judgment of the Constitution Bench of this Court in Chief Inspector of Mines v. Lala Karam Chand

81 Thapar [Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 : AIR 1961 SC 838] , the position is clear. What is the meaning which the legislature intended to give to a particular statutory provision has to be decided by the Court on a consideration of the context in which the word(s) appear(s) and in particular, the scheme and object of the legislation.”

87. From the perusal of the various judgments, which have

been referred to in detail by the Constitution Bench, it will be

clear that the words “all” or “any” will have to be construed in

their context taking into consideration the scheme and purpose

of the enactment. What is the meaning which the legislature

intended to give to a particular statutory provision has to be

decided by the Court on a consideration of the context in which

the word(s) appear(s) and in particular, the scheme and object of

the legislation. We have no hesitation to hold that the word “all”

used in clause 5.15 of the Bidding Guidelines, read with the

legislative policy for which the Electricity Act was enacted and

read with Section 86(1)(b) of the Electricity Act, will have to be

construed to be the one including “any”. As such, the contention

in that regard is to be rejected.

82

88. In any case, applying the principle of literal interpretation,

the evaluation committee/BEC would be entitled to reject only

such of the price bids if it finds that the rates quoted by the

bidders are not aligned to the prevailing market prices. It does

not stipulate rejection of all the bids in the bidding process. For

example, if in a bidding process, which is in accordance with the

Bidding Guidelines and is transparent, 5 bidders emerged. Out

of the said bidders, the rates quoted by only 3 bidders are market

aligned and the rates quoted by rest of the 2 bidders are not

market aligned. In accordance with the Bidding Guidelines, the

BEC would be entitled to recommend acceptance of the bids of

the first 3 bidders and reject the bids of rest of the 2 bidders

whose quoted rates/prices are not found to be market aligned.

We, therefore, reject the contention in this behalf.

89. We further find that the Court, while interpreting a

particular provision, will have to apply the principles of purposive

construction. The Constitution Bench of this Court in the case of

Vivek Narayan Sharma (supra) after surveying various

judgments on the issue has held thus:

83

“148. It is thus clear that it is a settled principle that the modern approach of interpretation is a pragmatic one, and not pedantic. An interpretation which advances the purpose of the Act and which ensures its smooth and harmonious working must be chosen and the other which leads to absurdity, or confusion, or friction, or contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment must be eschewed. The primary and foremost task of the Court in interpreting a statute is to gather the intention of the legislature, actual or imputed. Having ascertained the intention, it is the duty of the Court to strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary, the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment. Ascertainment of legislative intent is the basic rule of statutory construction.”

90. It could thus be seen that it is a settled principle that the

modern approach of interpretation is a pragmatic one, and not

84 pedantic. An interpretation which advances the purpose of the

Act and which ensures its smooth and harmonious working must

be chosen and the other which leads to absurdity, or confusion,

or friction, or contradiction and conflict between its various

provisions, or undermines, or tends to defeat or destroy the basic

scheme and purpose of the enactment must be eschewed.

91. If the contention that clause 5.15 of the Bidding Guidelines

will come into play, which permits the Evaluation Committee to

reject “all” price bids and not “any” one of them is accepted, it

will lead to nothing else than resulting in absurdity. Suppose, if

L-1 bidder quotes Rs.3 per unit and L-5 bidder quotes Rs.7 per

unit, requirement to reject the bid of L-1 bidder, whose bid is

found market aligned along with that of L-5 bidder, which is not

market aligned, would lead to an anomalous situation. Could the

consumer be deprived of the electricity to be procured from L-1

at a market aligned price only because some of the bidders have

quoted much higher prices and are not market aligned. In our

view, such an interpretation would result in defeating one of the

main objects of the enactment, i.e., protection of the consumer.

85

92. It is needless to state that this Court, time and again, in

various judgments including the one in the case of GMR Warora

Energy Limited (supra) has recognised the requirement of

balancing the consumers’ interest with that of the interest of the

generators. It will not be permissible to take a lopsided view only

to protect the interest of the generators ignoring the consumers’

interest and public interest.

93. We find that the High Court was not justified in entertaining

the petition. The Constitution Bench of this Court in the case of

PTC India Limited (supra) has held that the Electricity Act is an

exhaustive code on all matters concerning electricity. Under the

Electricity Act, all issues dealing with electricity have to be

considered by the authorities constituted under the said Act. As

held by the Constitution Bench of this Court, the State Electricity

Commission and the learned APTEL have ample powers to

adjudicate in the matters with regard to electricity. Not only that,

these Tribunals are tribunals consisting of experts having vast

experience in the field of electricity. As such, we find that the

High Court erred in directly entertaining the writ petition when

the respondent No.1, i.e., the writ petitioner before the High

86 Court had an adequate alternate remedy of approaching the

State Electricity Commission.

94. This Court in the case of Reliance Infrastructure Limited

v. State of Maharashtra and others11 has held that while

exercising its power of judicial review, the Court can step in

where a case of manifest unreasonableness or arbitrariness is

made out.

95. In the present case, there is not even an allegation with

regard to that effect. In such circumstances, recourse to a

petition under Article 226 of the Constitution of India in the

availability of efficacious alternate remedy under a statute, which

is a complete code in itself, in our view, was not justified.

96. No doubt that availability of an alternate remedy is not a

complete bar in the exercise of the power of judicial review by the

High Courts. But, recourse to such a remedy would be

permissible only if extraordinary and exceptional circumstances

are made out. A reference in this respect could be made to the

judgments of this Court in the cases of Radha Krishan

11 (2019) 3 SCC 352=2019 INSC 63

87 Industries v. State of Himachal Pradesh and others12 and

South Indian Bank Ltd. and others v. Naveen Mathew Philip

and another13.

97. We may gainfully refer to the observation of this Court in

the case of Radha Krishan Industries (supra), wherein this

Court has laid down certain principles after referring to the

earlier judgments:

“24. The High Court has dealt with the maintainability of the petition under Article 226 of the Constitution. Relying on the decision of this Court in CCT v. Glaxo Smith Kline Consumer Health Care Ltd. [CCT v. Glaxo Smith Kline Consumer Health Care Ltd., (2020) 19 SCC 681 : 2020 SCC OnLine SC 440] , the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law. However, certain exceptions to this “rule of alternate remedy” include where, the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of the fundamental principles of judicial procedure; or has resorted to invoke provisions, which are repealed; or where an order has been passed in violation of the

12 (2021) 6 SCC 771=2021 INSC 266 13 2023 SCC OnLine SC 435 =2023 INSC 379

88 principles of natural justice. Applying this formulation, the High Court noted that the appellant has an alternate remedy available under the GST Act and thus, the petition was not maintainable.

25. In this background, it becomes necessary for this Court, to dwell on the “rule of alternate remedy” and its judicial exposition. In Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-10, paras 14-

15) “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”.

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High

89 Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” (emphasis supplied)

26. Following the dictum of this Court in Whirlpool [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court noted that : (Harbanslal Sahnia case [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , SCC p. 110, para 7) “7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative

90 remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn.v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.” (emphasis supplied)

27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

91 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.

27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

92 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition.

However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

28. These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad [Chand Ratan v. Durga Prasad, (2003) 5 SCC 399] , Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of India [Rajasthan SEB v. Union of India, (2008) 5 SCC 632] among other decisions.”

98. This Court has clearly held that when a right is created by

a statute, which itself prescribes the remedy or procedure for

enforcing the right or liability, resort must be had to that

particular statutory remedy before invoking the discretionary

remedy under Article 226 of the Constitution of India.

99. Recently, this Court in the case of M/s South Indian Bank

Ltd. & Ors. (supra) has also taken a similar view. 93

100. There is another ground on which the High Court ought to

have refused to entertain the petition. The bid of L-7 bidder was

returned and the Bid Bond bank guarantee was also directed not

to be extended vide the communication dated 6th January 2015.

The judgment and order passed by this Court, on which reliance

is placed by respondent No.1, is also delivered on 25th April 2018.

However, the respondent No.1 did not take any steps from 6 th

January 2015 and in any case, from 25th April 2018 till 14th

December 2020, on which date the petition came to be filed

before the High Court. No doubt that the petition need not be

dismissed solely on the ground of delay and laches. However, if

petitioner approaches the Court with delay, he has to satisfy the

Court about the justification for delay in approaching the Court

belatedly. In our considered view, the High Court ought not to

have entertained the petition also on the ground of delay and

laches.

101. In any case, we find that the High Court was not justified in

issuing the mandamus in the nature which it has issued. This

94 Court in the case of Air India Ltd. v. Cochin International

Airport Ltd. and others14 has observed thus:

“7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489] , Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India [(1981) 1 SCC 568] , CCE v. Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax) 75] , Tata Cellular v. Union of India [(1994) 6 SCC 651] , Ramniklal N. Bhutta v. State of Maharashtra [(1997) 1 SCC 134] and Raunaq International Ltd. v. I.V.R. Construction Ltd. [(1999) 1 SCC 492] The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures

14 (2000) 2 SCC 617=2000 INSC 39

95 laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned.

Even when some defect is found in the decision- making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene.”

102. It could thus be seen that this Court has held that the

award of a contract, whether it is by a private party or by a public

body or the State, is essentially a commercial transaction. In

arriving at a commercial decision, considerations which are

paramount are commercial considerations. It has been held that

the State can choose its own method to arrive at a decision. It

can fix its own terms of invitation to tender and that is not open

to judicial scrutiny. It has further been held that the State can

enter into negotiations before finally deciding to accept one of the

offers made to it. It has further been held that, price need not

96 always be the sole criterion for awarding a contract. It has been

held that the State may not accept the offer even though it

happens to be the highest or the lowest. However, the State, its

corporations, instrumentalities and agencies are bound to adhere

to the norms, standards and procedures laid down by them and

cannot depart from them arbitrarily. Though that decision is not

amenable to judicial review, the court can examine the decision-

making process and interfere if it is found vitiated by mala fides,

unreasonableness and arbitrariness. It has further been held

that even when some defect has been found in the decision-

making process, the court must exercise its discretionary power

under Article 226 with great caution and should exercise it only

in furtherance of public interest and not merely on the making

out of a legal point. The court should always keep the larger

public interest in mind in order to decide whether its intervention

is called for or not. Only when it comes to a conclusion that

overwhelming public interest requires interference, the court

should intervene.

103. As has been held by this Court in the case of Tata Cellular

(supra), the Court is not only concerned with the merits of the

97 decision but also with the decision-making process. Unless the

Court finds that the decision-making process is vitiated by

arbitrariness, mala fides, irrationality, it will not be permissible

for the Court to interfere with the same.

104. In the present case, the decision-making process, as

adopted by the BEC was totally in conformity with the principles

laid down by this Court from time to time. The BEC after

considering the competitive rates offered in the bidding process

in various States came to a conclusion that the rates quoted by

SKS Power (L-5 bidder) were not market aligned. The said

decision has been approved by the State Commission. Since the

decision-making process adopted by the BEC, which has been

approved by the State Commission, was in accordance with the

law laid down by this Court, the same ought not to have been

interfered with by the learned APTEL.

105. In any case, the High Court, by the impugned judgment and

order, could not have issued a mandamus to the

instrumentalities of the State to enter into a contract, which was

totally harmful to the public interest. Inasmuch as, if the

power/electricity is to be procured by the procurers at the rates

98 quoted by the respondent No.1-MB Power, which is even higher

than the rates quoted by the SKS Power (L-5 bidder), then the

State would have been required to bear financial burden in

thousands of crore rupees, which would have, in turn, passed on

to the consumers. As such, we are of the considered view that

the mandamus issued by the Court is issued by failing to take

into consideration the larger consumers’ interest and the

consequential public interest. We are, therefore, of the view that

the impugned judgment and order passed by the High Court is

not sustainable in law and deserves to be quashed and set aside.

CIVIL APPEAL NO. 6503 OF 2022 AND CIVIL APPEAL NO. 6502 OF 2022

106. The appeals are, therefore, allowed. The impugned

judgment and order of the Division Bench of the High Court of

Judicature for Rajasthan, Bench at Jaipur dated 20th September

2021 in D.B. Civil Writ Petition No. 14815 of 2020 is quashed

and set aside. The respondent No.1-M.B. Power (Madhya

Pradesh) Limited is directed to pay costs, quantified at

Rs.5,00,000/- (Rupees Five Lakh) in each case to the appellants.

107. Pending applications, if any, shall stand disposed of.

99 CIVIL APPEAL NO. 4612 OF 2023

108. Since we have already set aside the judgment and order of

the High Court dated 20th September 2021 in D.B. Civil Writ

Petition No.14815 of 2020 and the order impugned in the present

appeal is based on the said order of the High Court dated 20th

September 2021, the present appeal is also allowed. The

judgment and order of the learned APTEL dated 1st June 2023 is

quashed and set aside.

109. Since we have saddled the costs in Civil Appeal Nos. 6503

of 2022 and 6502 of 2022, there shall be no order as to costs in

the present appeal.

110. Pending applications, if any, shall stand disposed of.

…….........................J. [B.R. GAVAI]

………….…….........................J. [PRASHANT KUMAR MISHRA] NEW DELHI;

JANUARY 08, 2024

100