Gmr Chhattisgarh Energy Ltd and Anr v. Union of India and Ors

PRATEEK JALAN, J

S. RAVINDRA BHAT, J APRIL 15, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 29.11.2018 Pronounced on: 15.04.2019 + W.P.(C) 4555/2017, CM Appl. Nos. 39665-66/2017 & 21597/2018 ESSAR POWER M.P. LTD. & ANR ..... Petitioners versus UNION OF INDIA & ORS ..... Respondents + W.P.(C) 4556/2017, CM Appl. No. 18764/2018 & 48019- 20/2018 GMR CHHATTISGARH ENERGY LTD & ANR ..... Petitioners versus UNION OF INDIA & ORS ..... Respondents + W.P.(C) 4557/2017, CM Appl. No. 18770/2018 GMR CHHATTISGARH ENERGY LTD & ANR ..... Petitioners versus UNION OF INDIA & ORS ..... Respondents Present:- Mr. Parag P. Tripathi, Sr. Advocate with Mr. Rishi Agrawala, Mr. Karan Luthra, Ms. Niyati Kohli, Ms. Mishika Bajyapayee and Mr. Akshay Bajpai, Advocates for the Petitioners in W.P.(C) 4555/2017. Mr. Neeraj K. Kaul, Sr. Adv. with Mr. Rishi Agrawala, Mr. Karan Luthra, Ms. Niyati Kohli, Mr. Samar Kachwaha, Mr. Chanan Parwani and Mr. Ram Chandramadan, Advocates for Petitioners in W.P. (C) 4556/2017. Mr. Sudhanshu Batra, Sr. Adv. with Ms. Richa Kapoor, Mr. Kunal Anand, Ms. Ayushi Rajput, Mr.Shivam Tyagi and Mr. Amritpal S. Gambhir, Advocates for Petitioners in W.P.(C) Nos. 4556/2017 & 4557/2017. Ms. Maninder Acharya, ASG with Mr. Ripu Dhaman Singh Bhardhwaj, CGSC alongwith Mr.Sahil Sood, Mr. Harshul Choudhary and Mr.Viplav Acharya, Advocates for the Respondents/UOI. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE PRATEEK JALAN MR.JUSTICE PRATEEK JALAN % 1. These three petitions raise common questions regarding the tender process initiated by the Respondent, Union of India (hereinafter referred to as "the UOI") in respect of various coal mines, pursuant to the judgment of the Supreme Court in Manohar Lal Sharma v. Principal Secretary & Ors, reported in (2014) 9 SCC 516 (judgment dated 25.08.2014), and in (2014) 9 SCC 614 (judgment dated 24.09.2014). The three petitions have therefore been heard together and are disposed of by this common judgment. 2. By the aforesaid judgments, the Supreme Court cancelled the allocation of several coal mines by the UOI. The UOI thereafter promulgated two ordinances namely the Coal Mines (Special Provisions) Ordinance, 2014 and the Coal Mines (Special Provisions) Second Ordinance, 2014 which were ultimately replaced by the Coal Mines (Special Provisions) Act, 2015 (hereinafter referred to as "the 2015 Act"), notified on 30.03.2015. It also framed the Coal Mines (Special Provisions) Rules, 2014 on 11.12.2014. Under the said statutory regime, an order was issued on 26.12.2014 providing for the methodology for fixing the floor/reserve price for auction and allotment of coal mines/ blocks. 3. The petitioners in the present petitions are successful bidders for various coal blocks which were put to auction by the UOI after cancellation of the allotments in favour of the prior allottees. The auctions were held in February, 2015. The petitioners furnished bid security by way of bank guarantees at the time of bidding, and furnished performance bank guarantees upon being declared successful in the tender. They also entered into agreements entitled "Coal Mines Development and Production Agreement" with the UOI (hereinafter, "CMDPA") and paid "upfront payments" and "fixed amounts" required thereunder. Vesting orders in respect of the coal blocks in question were also issued in their favour. 4. The grievance with which they approached the Court was that the UOI had issued a notification dated 16.04.2015 (hereinafter, "the said notification"), whereunder the fixed capacity charges payable for procurement of electricity were required to be capped at a ceiling to be determined in consultation with the concerned Electricity Regulatory Commission under Section 63 of the Electricity Act, 2013. The petitioners contented that the capping of the capacity charges was an entirely new condition imposed upon them after the auction had concluded and the CMDPA had been signed. Although the validity of the said notification was challenged in the present petitions,