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2018 (3) TMI 1935 - DELHI HIGH COURTAgreement for Supply of Coal - Non-execution of Fuel Supply Agreement (FSA) - direction to CIL to supply coal to the writ petitioner of the requisite grade - LOA issued to the petitioner as GCPP cannot be transferred only by reason of the fact that it stands converted to an IPP - HELD THAT:- The only logic/rationale supplied in support of its decision both by SLC (LT) and the competent authority, is that, the petitioner had bypassed the queue of IPPs, who were awaiting recommendations for issuance of LOA in their favour. According to both authorities this had resulted in the petitioner acquiring tangible and intangible benefits of an LOA holder even though it never functioned as a GCPP. The switch over, according to both UOI and CIL, was made only to fast track its fuel supply. The learned ASG in rejoinder had sought to buttress her case by seeking to place reliance on letter dated 6.10.2014 addressed by UOI to the petitioner. According to me, the submission made based on contents of letter dated 6.10.2014 is, prima facie, not sustainable for the reason that at the given point in time when UOI indicated to the petitioner that even though its category had changed, an FSA could not be executed in its favour since its name was not included in the list of 78000 MW coal based thermal power plants, subsequently underwent a change; a fact which is discernable upon perusal of CEA communication dated 3.12.2015. The communication dated 6.10.2014 was based on an earlier decision of CEA of 21.6.2013. This position stood altered, which was, as indicated above, clarified by CEA on 3.12.2015. CEA, to put it pithily, clarified that the petitioner, amongst others, was covered in balance 30000 MW capacity. Also, the learned senior counsel appearing for CIL had alluded to the fact that the petitioner could have access to coal via the Special Forward e-Auction mechanism. In this behalf, learned counsel drew my attention to status report filed on behalf of CIL. A perusal of the status report would show that CIL had offered to supply coal to the petitioner pursuant to order dated 31.01.2018 at the notified price stipulated for the power sector, with an added premium pegged at the rate of 50.74%. Clearly, the attempt of CIL was to render the direction issued by this Court inefficacious. Since, the petitioner, prima facie, fulfils the conditions for execution of an FSA in its favour, the direction to issue coal could only be at the notified price subject to other standard and usual conditions being fulfilled by it - the interlocutory application and the review application for vacation and/ or recall of order are dismissed.
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