APTEL Dismisses Gujarat Discoms Plea Against Renew Power

In a ruling that was interesting both for the issues it addressed as well as the long history of litigation it hopefully closes, the Appellate Tribunal for Electricity (APTEL) has dismissed a review appeal in a case filed by multiple Gujarat discoms against Renew Power, GERC (Gujarat Electricity Regulatory Commission)  and the Wind Independent Power producers association among others.

The petition by 5 of the Gujarat discoms was mainly around the issue of GERC’s power and competency to relook a PPA signed between the discoms and Renew Power and others, and to review GERC’s order of 2015 on this issue, besides APTEL’s own order in 2018.

The dispute had already travelled from the state regulator to the central regulator, APTEL, and even the Supreme Court, which had dismissed the matter with an option to refer it back to APTEL for review/rectification in 2019.

While all this was happening, the discoms had conveniently paid Renew as per the claimed terms from their end, besides charging ESS on its customers.

While APTEL has finally dismissed the appeal (again), with no other recourse now, one hopes this saga of litigation is finally put to rest.

However, it is interesting to see how this case serves to demonstrate just how many pitfalls await, or can be created by discoms if they take it on themselves to do so. The complete lack of accountability for pursuing disputes that have a very weak foundation, or none at all, as in this particular appeal, needs to be looked at by both state, and central governments.

These lines, from the judgement place the issue in clear terms.

5.22 The bare perusal of the Review Petition, it is significant to note that the entire grounds, pleadings, arguments etc. were made by the Review Petitioner/Appellant in the main Appeal also to contest on the same prayers/issues which were duly considered, analysed, evaluated and adjudicated by this Tribunal in detail after hearing all the parties at a considerable length of time. From the contents of the review petition, as well as the written submissions of the Review  Petitioner thereon, it is crystal clear that neither additional nor fresh ground has been made by the Review Petitioner now which otherwise substantiate its pleadings for reviewing the judgment dated 06.12.2018 and passing any modified judgment therein.

5.23 We have gone through all the materials placed before us relating to the original Appeal as well as the material contained in Review Petition and also critically analysed our findings in the judgment impugned. What thus transpires is that without establishing any of the mandatory criteria for review of the impugned judgment of this Tribunal, the Appellant under the guise of the present review petition is seeking to re-open the entire case for achieving a supposed objective of favourable decision which is impermissible under the review jurisdiction as held by the Apex Court in a number of cases.

5.24 In view of the above, what emerges conclusively is that the case in the review petition neither relates to any discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the review petitioner or could not be produced by him at the time when the judgment was pronounced nor any mistake or error apparent on the face of the judgment has specifically been pointed out and nor any other sufficient reason or ground has been made out by the Review Petitioner. It is also significant to note that a judgment has to be seen in its entirety and should not be assailed based on certain paragraphs, only on pick and choose methodology. Instead, it has to be read in close conjunction of previous orders of the State Commission which stand affirmed by the said judgment as in the present case.

One hopes that discoms and perhaps even some developers who will be tracking this get the message to accept an unfavourable judgement gracefully, and move on without clogging up the legal system further.

It should certainly be interesting to track how the two parties resolve the issue now, especially the matter of pending dues that Renew Power will possibly claim now. One can only hope that it will not require yet more visits to the courts to arrive at a number.