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TMI Blog2018 (3) TMI 1935X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In C.M. No.7039/2018, the relief sought is to vacate the interim order dated 31.01.2018. In R.A. No.102/2018, more or less, the same relief is sought, though, worded differently. The UOI seeks review/ recall of order dated 31.01.2018. 4. Therefore, it would be necessary to briefly recapitulate the direction that was issued by me, on 31.01.2018. After hearing the counsels for contesting parties, I had directed CIL to supply coal to the writ petitioner of the requisite grade as referred to in prayer clause (b) of C.M. No.46291/2017 via its subsidiary Southern Eastern Coalfields Limited (hereafter referred to as "SECL"). Attendant observations were also made, which form part of order dated 31.01.2018. 4.1 Since, in essence, the arguments advanced, albeit, at some length by the counsels for the parties are primarily rooted in the order dated 31.01.2018 (as corrected for typographical errors via dated 21.2.2018), the relevant part of the said order is set forth hereafter: - "...3) The immediate grievance of the petitioner is that even though it has been issued a Letter of Assurance (LOA) as far back 24/25.6.2008 and its plant stands commissioned since April 2014, respondent No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisaged under clause B(ii) of the very same policy. 7) Having heard learned counsel for the parties, it would be relevant for the purpose of dealing with the interlocutory application to extract the clauses of the SHAKTI Policy on which reliance has been placed by the petitioner: (A) Under the old regime of LoA-FSA: i. FSA may be signed with the pending LoA holders after ensuring that the plants are commissioned, respective milestones met, all specified conditions of the LoA fulfilled within specified timeframe and where nothing adverse is detected against the LoA holders. The outer time limit within which the power plant of LoA holders must be commissioned for consideration of FSA shall be 31.03.2022, failing which LoA would stand cancelled. Coal supply to these capacities may be at 75% of ACQ. The coal supply to these capacities may be increased in future based on coal availability. ii. The 583 pending applications for LoA need not be considered and may be closed. (B) The following shall be considered under a New More Transparent Coal Allocation Policy for Power Sector, 2017-SHAKTI (Scheme for Harnessing and Allocating Koyala (Coal) Transparently in India): (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-requisites of clause A (i) of the SHAKTI Policy. 13) Besides this, I had also asked Mr. Jain whether the petitioner could be given coal in pursuance of provisions of clause B(ii). 13.1) Mr. Jain, on instructions, informs me that the auction envisaged under clause B(ii) was a onetime auction and, therefore, the petitioner cannot get coal at the "notified price" via auction route postulated under clause B(ii) of the SHAKTI Policy. 14) Given these circumstances, the petitioner is placed in a rather peculiar position. While its power plant (Unit-I) is up and about it is I am told hurtling towards a shut down, if not already shut down, because of lack of assured fuel supply. 15) Before I conclude, I may also advert to another submission made by Mr. Jain, which is that the petitioner has been presently running Unit-I by buying coal in spot auctions. Mr. Jain's submission in effect is that the petitioner could continue to obtain coal from such spot auctions. 16) To my mind while that may be so, however, viability of any Power Plant would depend upon the price at which it obtains the fuel necessary to make it opprable (sic. operable). Since, auction as envisaged under cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the competent authority has accepted the recommendation of SLC (LT), which is, that the LOA issued to the petitioner as GCPP cannot be transferred only by reason of the fact that it stands converted to an IPP. In other words, what is sought to be emphasized is that since there is no LOA in existence, based on which supplies could be sought by the petitioner vis-a-vis Unit-I, the order dated 31.01.2018 as a logical sequitur needed to be recalled. 7. As a matter of fact, both Ms. Maninder Acharya, learned ASG and Mr. Jagdeep Dhankar, Senior Advocate who appeared for CIL, in sum, made a somewhat identical submission, though paraphrased differently, which was that with the issuance of order dated 15.2.2018 by the competent authority, the circumstances which obtained on 31.01.2018 had undergone a significant change. As a matter of fact, it was contended both on behalf of UOI as well as CIL that the petitioner would have to, if it hopes to succeed in the main petition, challenge the order dated 15.2.2018, passed by the competent authority. 8. Mr. Sibal, on the other hand contended that the grievance of the petitioner remains the same inasmuch as what was shown to the Court on 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GCPP cannot be transferred upon its conversion to IPP. However, in the backdrop of adequate coal availability scenario and to further the objective of SHAKTI Scheme, MoC may explore the feasibility so that the PP may obtain coal linkage as an IPP under provisions of the SHAKTI Scheme. 11. In the context of the aforesaid, Mr. Sibal, in my view, has correctly brought to my notice the following documents which would show that the LOA issued to the petitioner continued to hold good even after it was categorised as an IPP. The documents, which were referred in this behalf are as follows: - (i) Letter dated 1.4.2014, issued by Western Coalfields Limited (WCL) to the petitioner; (ii) Letter dated 11.11.2014 issued by WCL to SECL. (ii)(a) In this letter, it is clearly indicated that the petitioner, that is, the LOA holder had achieved the prescribed milestones stipulated under LOA, consequent upon the change of category from GCPP to IPP; (iii) The communication dated 3.12.2015, addressed by Central Electricity Authority (CEA) to Ministry of Power, wherein, inter alia, the following is stated: - ".....In addition to above Butibori Unit 1 was changed from CPP to IPP by Standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the petitioner had approached this Court with a grievance that even though it fulfilled every criteria stipulated under the SHAKTI Policy for execution of a Fuel Supply Agreement (FSA), the respondents had not moved forward and, thus, deprived it of the opportunity of accessing fuel at the notified price. 16. The respondents, do not, as indicated above, dispute that the petitioner has commissioned Unit-I and, as adverted to above, according to WCL and/ or SECL met all milestones and conditions specified in the LOA. The objection taken by UOI and CIL that the LOA issued to the petitioner as GCPP would not enable it to gain access to fuel in its new avatar as an IPP, cannot be sustained as the documents placed on record demonstrate quite clearly that the petitioner has been treated all along as an LOA holder, a position which obtained even after it got converted from GCPP to IPP. 16.1 An attempt, though, was made by SLC (LT) to change this position at its meeting held on 19.1.2018. As alluded to above SLC (LT)'s recommendation of 19.1.2018 received the competent authorities' imprimatur on 15.02.2018. 16.2. The only logic/rationale supplied in support of its decision both b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess this submission, learned ASG also relied on paragraph 17 of the order dated 15.2.2018, issued by the competent authority. 19. A careful perusal of paragraph 17 of the said order would show that the Ministry of Coal had informed the competent authority that a complaint had been received against the petitioner via letter dated 3.2.2014 which, apparently, was also addressed to CBI and CVC. 19.1 This complaint raised the very same issue which has been dealt with above, that is, the petitioner had bypassed the queue of IPPs by having its category changed from GCPP to IPP. Therefore, clearly, the complaint received by the aforementioned three authorities made a grievance qua the petitioner only in respect of this aspect of the matter. There was, even according to the ASG, on record, no allegation of corruption or of a practice of like nature. Nothing adverse had been found or noted by any of the three authorities. As a matter of fact, this complaint, as rightly contended by Mr. Sibal, was not forwarded to the petitioner to seek its response. Importantly, the submission made by Mr. Sibal that the complaint was not put to the petitioner, was not contradicted either by learned AS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 24. As indicated above, since, according to me 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. In this behalf Mr. Sibal, on instructions has clearly indicated that the petitioner would furnish the required security deposit and also furnish, if asked for, a bank guarantee. I was informed by Mr. Jagdeep Dhankar that the bank guarantee would have to be furnished equivalent to 6% of the value of the coal, which I was told, would be equivalent to Rs. 14.40 crores. Mr. Sibal, stated unequivocally, that the petitioner would have no difficulty in agreeing to this condition as well. 25. Thus, for the moment, CIL will supply coal bearing in mind the aforesaid and the other usual terms and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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