Indian Wind Power Association, Hyderabad v. State of Andhra Pradesh
2019-09-24
D.V.S.S.SOMAYAJULU
body2019
DigiLaw.ai
ORDER : D.V.S.S. Somayajulu, J. 1. In this batch of writ petitions, the petitioners, who are power generators of both Solar and Wind Power, are challenging the action of the State DISCOMs, (the respondents) in approaching the APERC and of the APERC for entertaining an application for relief purportedly under Sections 61-D, 86-1(b) and 86-1(f) of the Electricity Act, read with Regulation 55(1)(2) of APERC Business Regulation 2 of 1999, Articles 23 to 25 of Regulation 1 of 2015 and the provisions of the Power Purchase Agreements. This application OP No. 17 of 2019 was moved before the APERC seeking the following reliefs: (i) To amend the Regulation 1 of 2015 by specifying the reduced norms and parameters as follows: A. Capacity Utilization Factor (CLIF) 26.5% B. Return On Equity (ROE) 14% C. Loan Tenure 13 years D. Interest on term loan 9.23% E. Depreciation (Remaining spread for the balance period considering 10% salvage value) 5.28% (13 years) F. Interest on Working Capital 11.66% (ii) To pass orders amending the Wind Power tariff determined vide orders, dated 1.8.2015 and 26.3.2016 respectively considering the amended norms and parameters in the Regulation 1 of 2015. (iii) To pass orders effecting the reduced/amended tariff in the PPAs entered by APDISCOMs with the Wind Power generations, post issuance of Regulation 1 of 2015. 2. The prayer in the lead Writ Petition No. 2401 of 2019 is as follows: "......... to issue a writ, order or direction specifically a writ of certiorari by calling for records of proceedings in OP No. 17 of 2019 pending before the 4th respondent instituted by the 2nd and 3rd respondents as without jurisdiction illegal and a colorable exercise of power and being violative of the petitioners' rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India and quash the same and pass.........." 2. The prayer in the other WP No. 5710 of 2019 is against the APERC itself in taking the case on file, numbering the same, proceeding to hear the same, etc. 3. Pursuant to the Government of India and the Government of Andhra Pradesh initiatives to develop and to establish renewable and alternative sources of energy a number of policies have been enacted over a period of time.
3. Pursuant to the Government of India and the Government of Andhra Pradesh initiatives to develop and to establish renewable and alternative sources of energy a number of policies have been enacted over a period of time. Sweeping changes have been brought in the electricity generation and the distribution areas in order to streamline the procedures for generation; transmission, etc., and to provide for an independent regulatory mechanism for determination of tariff, etc. The Electricity Act, 2003 has also been enacted by the Government of India. Brief facts of the writ petitions: 4. The petitioners in these writ petitions are generators. They have entered into power purchase agreements. Since the history of the case is not very relevant only the salient features are being brought out. In WP No. 2401 of 2019 the 1st petitioner is the Association of Wind Power Generators in India and it is espousing the cause of A.P. Wind Power Generators. In WP No. 5710 of 2019 the petitioner is a generator of Wind Power, who has established a plant at Ananthapuram District. Since, the cause is the same in the batch of writs these two writ petitions were taken up for hearing and heard. The petitioners have responded to the initiatives/requests of the Government of Andhra Pradesh (GoAP) and set up generating plants in the State of Andhra Pradesh. They have entered into power purchase agreements with the respondents (DISCOMs), who distribute the power. 5. The APERC is empowered under the Electricity Act, 2003 to fix the tariff. In the case on hand also in both these cases the APERC passed orders on 1.8.2015 fixing the tariff as Rs. 4-83 paise per unit with accelerated depreciation and at Rs. 4-20 paise per unit with accelerated depreciation. The same was also slightly modified later for the next year. The contention of the petitioners is that the life of the project established by them is 25 years. They submit that taking into consideration, the investment made by them and various other factors including the useful life of the project, APERC fixes the tariff after a public hearing and deliberations. Based on these tariff agreements called Power Purchase Agreements (PPAs) are entered into. 6. As per petitioners, the exercise of fixing tariff is vested with the APERC alone which has to fix the same after hearing all the parties concerned including the general public.
Based on these tariff agreements called Power Purchase Agreements (PPAs) are entered into. 6. As per petitioners, the exercise of fixing tariff is vested with the APERC alone which has to fix the same after hearing all the parties concerned including the general public. This was already done and so as per them it cannot be undone. According to them, the terms and conditions of the Power Purchase Agreements (PPAs) are sacrosanct and binding. Neither the State Government nor the DISCOMs have the right to change, alter or modify the terms of the Power Purchase Agreements, etc., more so unilaterally. 7. In the recent past, the GoAP felt that the tariffs being claimed by the petitioners and others are very high. Therefore, the Government directed the DISCOMs to enter into negotiations with the generators, and reduce the tariffs. A High Level Negotiation Committee (HLNC) was also formed pursuant to the G.O. Ms. No. 63, dated 1.7.2019 for negotiations with the power generators. A batch of writ petitions have been filed challenging the power of the State to issue the G.O. Ms. No. 63, letter, dated 12.7.2019 and other directions and those are being heard separately. The DISCOMs also moved the APERC by filing OP No. 17 of 2019. The prayers made in OP No. 17 of 2019 are set out earlier. Questioning the DISCOMs action in approaching the APERC same and the right of APERC to entertain/hear the same, the present writ petitions are filed. Submissions: 8. Sri Sanjay Sen, learned Senior Counsel has taken the lead and argued the matters. Sri P. Raghuram, learned Senior Counsel has also argued the matter at length after Sri Sen. 9. The learned Senior Counsel Sri Sen points out that the prayers made in OP No. 17 of 2019 are relatable to the legislative power and the judicial power of the Commission. According to him the prayer to amend Regulation 1 of 2015 is legislative whereas the prayer in Part (b) seeking orders amending the tariff is judicial. According to the learned Senior Counsel the petitioners are calling upon the APERC to exercise legislative power and to amend Regulation 1 of 2015 and thereafter they want the relief on the judicial side. Learned Senior Counsel submits that these two functions of the Commission namely the legislative jurisdiction and the quasi-judicial jurisdiction are independent and cannot be clubbed together.
According to the learned Senior Counsel the petitioners are calling upon the APERC to exercise legislative power and to amend Regulation 1 of 2015 and thereafter they want the relief on the judicial side. Learned Senior Counsel submits that these two functions of the Commission namely the legislative jurisdiction and the quasi-judicial jurisdiction are independent and cannot be clubbed together. He argues that an application to direct the Legislature to act in a particular manner cannot be entertained. He also submits that a delegated legislation cannot operate with retrospective effect with regard to the tariff. Coming to the prayer sought, he submits that as on date of filing of the application, there is no amendment and that as per the settled law a relief will be granted basing on the right and the law that exists on the date of the filing of the application. In the case on hand, he submits that the petitioners are seeking a prayer of amendment on the basis of the power that is not yet exercised available. As far as the prayer (b) is concerned, the learned Senior Counsel also vehemently argued that the prayer sought for amendment of the Regulation is contrary to law and that the retrospective revisiting of tariff would affect the vested rights of the petitioners also. Besides stressing the point that the terms of a concluded contract are sacrosanct and binding, he relies upon the principles of promissory estoppel, which according to him, apply to a "State" also. He also points out that the power purchase agreements are settled in 2015 and signed by both the parties. Since then, till date, the bills have been processed on the basis of the power purchase agreements. At this stage, the learned Senior Counsel submits that the respondents want the contract to be reopened and renegotiated. He submits that this is legally and factually impermissible. He also points out from the reading of the Regulations that the power to relax a Regulation does not extend to reworking the tariff. Learned Senior Counsel also relies upon the earlier orders passed in OP No. 5 of 2015 by the APERC which clearly clarify that the order passed therein shall only apply to the power purchase agreements entered into after 1.4.2017 and that they will in any way effect the power purchase agreements which have been concluded earlier.
Learned Senior Counsel also relies upon the earlier orders passed in OP No. 5 of 2015 by the APERC which clearly clarify that the order passed therein shall only apply to the power purchase agreements entered into after 1.4.2017 and that they will in any way effect the power purchase agreements which have been concluded earlier. The learned Senior Counsel also points out that this order has not been challenged and has become final. Learned Senior Counsel also submitted written notes. In the first note the learned Senior Counsel has reiterated what has been reproduced earlier as his arguments and in the second note the learned Senior Counsel set out why the two judgments referred therein i.e., Gujarat Urja Vikas Nigam Limited v. Tarini Infrastructure Limited and others, (2016) 8 SCC 743 and Tarini Infrastructure Limited v. Gujarat Urja Vikas Nigam Ltd. and others, (2012) APTEL 119, are not attracted to the facts of the case. Hence, he concludes by saying that the APERC has no jurisdiction to entertain and or adjudicate the petition OP No. 17 of 2019 in any manner whatsoever. 10. Sri P. Raghuram, learned Senior Counsel appearing for the petitioner in WP No. 2401 of 2019 also argued on similar lines. He points out that the public notice issued vide APERC clearly states that the application has been filed to "revise" the tariff for the wind power purchase. He points out that this is contrary to the prayer made in the application itself wherein the petitioners wanted an amendment of Regulation 1 of 2015 and a further order of amendment of the wind power tariff. It is his contention that the public notice clearly shows that the APERC has already. entered into the merits of the matter without even deciding about its jurisdiction in the matter. Therefore, he stresses the need to issue an appropriate writ at this stage itself. Learned Senior Counsel submits that the terms of the PPA and the rate that has been fixed are sacrosanct and that they cannot be revisited at all. He also submits that in the earlier OP No. 5 of 2015 the APERC has entertained the application and decided the same. He points out that prayer (a) in the earlier Application No. 5 of 2015 is as follows: "To curtail the control period of Regulation 1 of 2015 for a period upto 31.3.2017".
He also submits that in the earlier OP No. 5 of 2015 the APERC has entertained the application and decided the same. He points out that prayer (a) in the earlier Application No. 5 of 2015 is as follows: "To curtail the control period of Regulation 1 of 2015 for a period upto 31.3.2017". Learned Senior Counsel points out that this matter was discussed by the Commission and ultimately the Commission held that the said Regulation shall remain in force upto 31.3.2017 only and will not have any force with effect from 1.4.2017. Hence, learned Senior Counsel submits that the present set of petitioners, who have, already entered into agreements, cannot be again asked to submit the jurisdiction of APERC. He also points out that the APERC does not have the power or the authority to entertain this petition. In addition, he also submits that the doctrine of promissory estoppel operates and that concluded agreements cannot be reopened at this stage. He argues that a retrospective amendment cannot be granted. He very vehemently concludes that the APERC does not have the power to grant the reliefs claimed and concludes that the 2003 Act does not confer the power on the APERC "to refix" the rates which were already determined. He argues that the "APERC" is functus officio after perusing the earlier orders. 11. The learned Advocate General appearing for the State and the DISCOMs, on the other hand, argues that all these issues can be raised before the APERC. He submits that the tariff order is a temporary order which as per Regulation 25 (A.P. Electricity Regulation Commission terms and conditions) can be altered, varied, modified or amended. Learned Advocate General relies upon Regulation 25 and states that the power to alter, vary, amend, etc., is given to the APERC. He also relies upon the very heading of the APERC Regulations, dated 31.7.2015, which clearly state that there are the terms and conditions for the financial year 2015-16 to financial year 2019-20. He also relies upon Regulation 1(2) and states that the Regulations shall be in force from the date of publication in the Gazette unless reviewed or extended earlier. He points out that "Tariff" was fixed as per the Regulation and the same can be reviewed, altered, varied or amended.
He also relies upon Regulation 1(2) and states that the Regulations shall be in force from the date of publication in the Gazette unless reviewed or extended earlier. He points out that "Tariff" was fixed as per the Regulation and the same can be reviewed, altered, varied or amended. Learned Advocate General also points out that the earlier orders that were passed by the Commission in earlier cases showed that the Commission had the power to enter into these areas of controversy. He relies upon OP No. 5 of 2015 and the resultant order passed by the APERC which held that the earlier order of the Commission, dated 30.3.2015 stood nullified with effect from 1.4.2017. The learned Advocate General, therefore, contends that the Commission has the power to give directions in necessary cases. He also relies upon Section 86(f) of the Electricity Act, 2003, wherein it is spelt out that the power to adjudicate upon the disputes between the licensees and the generating companies and to refer the dispute for arbitration is conferred specifically on the Commission. He also relies upon Section 86(1)(a) and (b) to argue the power to determine the tariff and to regulate electricity purchase and procurement includes the power to enter into and decide the plea of the nature raised by the respondents. Learned Advocate General submits that this power which is specifically vested in the ERC by the statute should be allowed to be exercised and that this Court should not at this stage itself quash the entire proceedings. He submits that issues of highly complex technical nature and law which are involved should be left to the APERC to determine. Learned Advocate General also relies upon the judgment of a learned Single Judge of this Court reported in A.P. Gas Power Corporation Limited v. A.P. Electricity Regulatory Commission and others, 2005 (6) ALD 368 : AIR 2006 AP 12 , wherein the learned Single Judge held that the power conferred on the said Commission to act as an effective Grievance Redressal Forum in matters relating to the generation, distribution, transmission of electricity and tariff fixation. Learned Advocate General points out that the learned Single Judge held that this power should be exercised without any delay. He points out that the APERC has the power to determine all the issues-both the so-called preliminary issue and the final.
Learned Advocate General points out that the learned Single Judge held that this power should be exercised without any delay. He points out that the APERC has the power to determine all the issues-both the so-called preliminary issue and the final. He points out that these are best lift to the APERC. Learned Advocate General submits that as the petitioners did not come forward to negotiate with the Negotiation Committee, the DISCOMs had no option but to approach the APERC in view of their contention that the price being paid to the petitioners is exorbitant. He submits that in order to bring down the exorbitantly high tariffs being charged the respondents had no choice but to approach the APERC which has the statutory and technical competence to decide this issue. He points out that the APERC consists of a retired Judge of the High Court and also technical members, who have the capacity and expertise to decide the dispute. Lastly, the Advocate General relies upon the case of Gujarat Urja Vikas Nigam Limited v. Tarini Infrastructure Limited and others (supra) and argues that the Hon'ble Supreme Court of India clearly held that the Court should lean in favour of flexibility and not towards inviolability in terms of power purchase agreements. The learned Advocate General relies upon this judgment of the Hon'ble Supreme Court of India to argue that there is a power given to the APERC to amend the tariff that has been fixed and that the Hon'ble Supreme Court of India, clearly held that the tariff fixed cannot be understood to be binding for the entire period of the contract. He relies upon a finding of the Hon'ble Supreme Court of India which held that the power of regulation given to the ERC is very wide and that the Court should lean in favour of flexibility in the terms of the power purchase agreements particularly insofar as the tariff is concerned, if public interest and surrounding circumstances require a review. Hence, learned Advocate General argues that all these matters should be left open for decision by the APERC and that the writ petitions should be dismissed. Determination: 12. In the first set of writ petitions the directions of the Government including the minutes of meeting, dated 26.6.2019, G.O. Ms. No. 63, dated 1.7.2019 and the letter, dated 12.7.2019 are the subject-matter of the dispute.
Determination: 12. In the first set of writ petitions the directions of the Government including the minutes of meeting, dated 26.6.2019, G.O. Ms. No. 63, dated 1.7.2019 and the letter, dated 12.7.2019 are the subject-matter of the dispute. The petitioners there who represent the generators (both solar and wind power) have argued that the State does not have the power to issue directions. Orders in those set of writ petitions have been pronounced separately. 13. As far as the present writ petitions are concerned, as can be seen from the submissions of the learned Senior Counsels, the essential question raised is about the jurisdiction of the A.P. Electricity Regulatory Commission to enter into these areas of controversy. It is their contention that the prayers made in this application, OP No. 17 of 2019 are not proper and that they cannot be granted by the APERC. Both the learned Senior Counsels, who took the lead argued that there is a mixture of legislative function and the quasi-judicial function with APERC. According to them, the power to amend Regulation in terms of prayer (a) is seeking a direction to the APERC to enact a "particular law" or a Rule. It is an exercise a legislative power for the enforcement of which an application does not lie in a Court. They also strongly contend that the very fact that a prayer of this nature is made clearly shows that this is not the law as on the date of filing of the application. Both learned Senior Counsels submit that a relief can be claimed only on the basis of a "law" that exists on the date of the application. It is their contention that as such "law" does not exist the prayer (a) in OP No. 17 of 2019 cannot be granted. They also submit in the alternative that this is a legislative function and that a judicial order cannot be passed directing the exercise of legislation function in a particular manner. Apart from this, they also state that revising the tariff retrospectively cannot also be granted. They argue that the terms of the PPA are sacrosanct and that they cannot be reviewed like this. They both lay stress on the submission that the integrity of the contract (PPA) must be preserved at all costs.
Apart from this, they also state that revising the tariff retrospectively cannot also be granted. They argue that the terms of the PPA are sacrosanct and that they cannot be reviewed like this. They both lay stress on the submission that the integrity of the contract (PPA) must be preserved at all costs. Learned Senior Counsels also argued that the petitioners are seeking amendment of fixed tariff on the basis of the some alleged prices/tariffs which were discovered subsequently. Therefore, they argue that on the basis of alleged rates discovered later a tariff that has already been fixed and acted upon over the years cannot be reviewed. They question the very jurisdiction of the Commission to entertain this application and to grant the relief. 14. On the other hand, the learned Advocate General submissions are that these all matters which have to be agitated before the APERC. He argues that the APERC has the power to decide these issues including the so-called preliminary issues of jurisdiction. The earlier orders passed by the APERC lead to the conclusion that in certain cases parties/generators have sought modification of the tariff and that such a power was also exercised by the Commission. The law relied upon by the learned Advocate General namely Tarini's case (supra), also suggests that the Court should lean in favour of flexibility rather than in-flexibility in such contracts. The learned Senior Counsel Sri Sen appearing for the petitioners attempted to distinguish this case and filed a written note on this itself. 15. In view of the case law relied upon which is reproduced hereunder at this stage, this Court does not also wish to enter into the merits or demerits of the matter, The issue involved and findings of the Hon'ble Supreme Court of India in Gujarat Urja Vikas Nigam Limited v. Tarini Infrastructure Limited and others (supra), are as follows: (a) The issue involved in this appeal was whether the tariff fixed under a PPA (Power Purchase Agreement) is beyond review and correction by the State Electricity Regulatory Commission, under the Electricity Act, 2003. Dismissing the appeals of the distribution licensee, the Supreme Court Held: (b) Not only the tariff fixed is subject to periodic review, furthermore the above Regulations provide for taking into consideration the force majeure events. Any force majeure is considered as an uncontrollable factor.
Dismissing the appeals of the distribution licensee, the Supreme Court Held: (b) Not only the tariff fixed is subject to periodic review, furthermore the above Regulations provide for taking into consideration the force majeure events. Any force majeure is considered as an uncontrollable factor. In fact Regulation 23 provides that the approved aggregate gain or loss on account of uncontrollable factor shall be passed through as an adjustment in the tariff over such period as may be specified in the order of the Commission. (Para 14) (c) When the tariff order itself is subject to periodic review it is difficult to see how incorporation of a particular tariff prevailing on the date of commissioning of the power project can be understood to bind the power producer for the entire duration of the plaint life (20 years) as has been envisaged by Clause 4.6 of PPA in the case of Junagadh. That apart, modification of the tariff on account of air-cooled condensers and denying the same on account of claimed inadequate pricing of biogas fuel is itself contradictory. (Para 16) (d) In view of Section 86(1)(b) the Court must lean in favour of flexibility and not read inviolability in terms of PPA insofar as the tariff stipulated therein as approved by the Commission is concerned. It would be a sound principle of interpretation to confer such a power if public interest dictated by the surrounding events and circumstances require a review of the tariff. The facts of the present case, as elaborately noted at the threshold of the present opinion, would suggest that the Court must lean in favour of such a view also having due regard to the provisions of Sections 14 and 21 of the General Clauses Act, 1898. Under Section 21 of the General Clauses Act, where by any Central Act, a power to make rules is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind any rules so made. The power to amend the rules is therefore, comprehended with the power to make rules.
The power to amend the rules is therefore, comprehended with the power to make rules. (Para 18) (e) By virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. It would be too narrow a view to accept that chargeability once fixed cannot be altered (Para 19). The above extracts are from the Manupatra Citation. 16. This Court finds that OP No. 1 of 2017 and OP No. 5 of 2017 were heard and disposed off earlier by the APERC. APERC also passed an order, dated 13.12.2017 in the matter of 41 PPAs holding that Articles 5 and 11.2 give the power to APERC to regulate the terms of the PPA. They also gave liberty to the DISCOMs to seek modification/amendment to the terms (Para 63(e)/63(f)). This Court also finds that Clause 25 of Regulation 1 of 2015 states that the Commission may at any time vary, alter, modify or amend any provisions of these Regulation. Clause 23 talks of a reasoned order being passed by APERC to relax a provision of the Regulation either on its own motion or on the application by an interested person. The provisions of the Act also seen to suggest that tariff/tariff related issues can be fixed; and "regulated" also. The power to review its decisions/directions are conferred by Section 94(6) on APERC and Section 86(1)(b) of the 2003 Act gives the power to "regulate" electricity purchase., Whether this is a one-off power or it survives to enable the re-determination of tariff is a moot question. Section 86(1)(b) confers the power on the Commission to adjudicate on disputes. The Hon'ble Supreme Court of India in Gujarat Urja Vikas's case (supra), held that inviolability does not appear to be there in the terms of the PPAs and that some flexibility is needed. All of these would seem to suggest that the APERC does have some power in these areas.
The Hon'ble Supreme Court of India in Gujarat Urja Vikas's case (supra), held that inviolability does not appear to be there in the terms of the PPAs and that some flexibility is needed. All of these would seem to suggest that the APERC does have some power in these areas. The second Gujarat Urja Vikas Nigam Limited v. Solar Semiconductor Power Company (India) Private Limited and others, (2017) 16 SCC 498 , at first blush seems to suggest otherwise but a closer reading shows that in Para 37 it was held that "generic tariff that is once determined can be amended by following the same procedure". Similarly in Para 69 the power of review as per Section 94 was discussed and it was left open to the parties to agitate their rights/contentions before the Regulatory Commission. Issues of investment losses to the generators, public, etc., if tariff is modified were dealt with in Para 70/71 of the reported judgment but these were left I open to be decided by the Commission. 17. Apart from this in the case of PTC India Limited v. Central Electricity Regulatory Commission thr. Secy., (2010) 4 SCC 603 , which is relied upon by the learned Advocate General the Hon'ble Supreme Court held that while power fixation appears to be legislative in character it is appealable under Section 111. Thus, the judgment of the Hon'ble Supreme Court holds that this legislative function of the APERC is amendable to a judicial check. The provision of a further remedy before the Hon'ble Supreme Court of India is also provided. The two judgments of the Hon'ble Supreme Court in Gujarat Urja Vikas's case (supra), are also suggesting that the ERC has the power to re-determine the "tariff" under certain circumstances. Article 5 of Power Purchase Agreement filed @ Page 242 pertaining to petitioner No. 4 in WP No. 2401 of 2019 states that the terms and conditions of the Agreement are: (a) subject to the provisions of Electricity Act, 2003 and its amendments and (b) subject to "Regulation" by APERC. Article 11.2 of the PPA also talks of amendments as per the respective orders of the APERC. 18. In addition, this Court is of the opinion that a piece meal adjudication of this complex issue should not be done.
Article 11.2 of the PPA also talks of amendments as per the respective orders of the APERC. 18. In addition, this Court is of the opinion that a piece meal adjudication of this complex issue should not be done. As rightly pointed out the ERC is being headed by a distinguished and experienced retired High Court Judge, who is assisted by two technical experts. The legal and factual issues raised in OP No. 17 of 2019 in the opinion of this Court need a judicial and also a technical evaluation. The provision for an appeal to APTEL (Section 111) and to the Hon'ble Supreme Court provides adequate safeguards in the opinion of this Court. Therefore, this Court is of the opinion that both the legal issues raised (about the competency/power of APERC) and prayer (a) in OP No. 17 of 2019 and the other issues raised in prayer (b) are best left to be decided by the APERC itself. 19. Judicial restraint is called for at this stage. The following passage (Para 36) from Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) and others v. CSEPDI-Trisha Consortium and others, (2017) 4 SCC 318 , is very relevant: "At this juncture we are obliged to say that in a complex fiscal evaluation the Court has to apply the doctrine of restraint. Several aspects, clauses, contingencies, etc., have to be factored. These calculations are best left to experts and those who have knowledge and skills in the field. The financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants. The Courts cannot really enter into the said realm in exercise of power of judicial review. We cannot sit in appeal over the financial consultant's assessment. Suffice it to say, it is neither ex facie erroneous nor can we perceive as flawed for being perverse or absurd." 20. Hence, this Court is of the opinion that this batch of writ petitions should be disposed off with the following directions: (a) The APERC shall determine the issues raised in OP No. 17 of 2019.
Suffice it to say, it is neither ex facie erroneous nor can we perceive as flawed for being perverse or absurd." 20. Hence, this Court is of the opinion that this batch of writ petitions should be disposed off with the following directions: (a) The APERC shall determine the issues raised in OP No. 17 of 2019. The petitioners are also given the liberty to raise every defence permissible under law including the defence about the lack of jurisdiction of the Commission and/or that the power of the Commissioner does not extend to grant the reliefs that are claimed by the DISCOMs in OP No. 17 of 2019. All legal and factual objections to the jurisdiction can be raised. (b) It is needless to say that the Commission shall have to follow the procedure stipulated under the Electricity Act, 2003 and any other applicable law and pass orders according to the same. (c) Lastly, in view of the fact that there are allegations that the huge payments due to the generators have been held up and as the State is also arguing that the prices claimed are excessive and that the DISCOMs have sustained huge losses and will continue to lose heavily in view of the present tariff regime, the Commission is directed to complete the proceedings in a time bound manner and finish the entire proceedings within six months from the date of receipt of the copy of this order. Requests for adjournments should be dealt with strictly but in accordance with law. (d) In view of the importance of the issues raised and their impact on the investment climate and the future of the economy of the nascent State of Andhra Pradesh it is hoped that the APERC will decide the issue within the stipulated time frame without being influenced in any manner by the opinions expressed by this Court, which are solely for the purpose of disposal of this batch of petitions only. 21. With these observations, these writ petitions are dismissed. No order as to costs. 22. As a sequel, pending miscellaneous petitions, if any, shall stand closed.