Power To Notify Tiger Reserve As Buffer Zone Is Vested With State Govt U/s. 38V Of Wildlife Protection Act: SC
The Supreme Court while deciding a batch of appeals has said that the power to notify a Tiger Reserve as a Buffer Zone is vested with the State Government under Section 38V of the Wildlife (Protection) Act, 1972.
The Court noted that any order or notification, rule, or regulation by an Indian Governmental Instrumentality would constitute ‘Law’.
The two-Judge Bench comprising Justice B.R. Gavai and Justice Vikram Nath held, “… any order or notification, rule or regulation by an Indian Governmental Instrumentality would constitute ‘Law’. It cannot be disputed that Government of Maharashtra, Government of India and various statutory authorities would fall under the term ‘Governmental Instrumentalities’. … It is to be noted that the power to notify a Tiger Reserve as a Buffer Zone is vested with the State Government under Section 38V of the Wildlife (Protection) Act.”
The Bench observed that having participated in the proceedings of the meeting of the Expert Committee, MSEDCL (Maharashtra State Electricity Distribution Company Limited) cannot be permitted to take a stand contrary to the decision of an Expert Committee.
Senior Advocate M.G. Ramchandran appeared on behalf of the appellant i.e., MSEDCL while Senior Advocate Sajjan Poovayya appeared on behalf of the respondent i.e., APML.
Brief Facts -
The appeals were filed by MSEDCL against APML (Adani Power Maharashtra Limited) challenging the judgment passed by the APTEL (Appellant Tribunal for Electricity). APML and MSEDCL had entered into four long-term Power Project Agreements (PPA) pursuant to the competitive bidding process conducted by the appellant.
APML had applied to the Ministry of Coal, Government of India for allotment of Lohara Coal Blocks and a Letter of Allocation (LoA) was issued. However, thereafter, APML informed MSEDCL regarding its inability to supply power under the PPA at the agreed tariff due to the cancellation of Lohara Coal Blocks and also informed regarding the occurrence of a force majeure event in terms of Article 12 of the PPA and consequently, a termination notice was issued.
The questions that arose for consideration before the Apex Court were:
(i) Whether ‘Change in Law’ relief on account of NCDP 2013 should be on ‘actuals’ viz. as against 100% of normative coal requirement assured in terms of NCDP 2007 OR restricted to trigger levels in NCDP 2013 viz. 65%, 65%, 67%, and 75% of Assured Coal Quantity (ACQ)?
(ii) Whether for computing ‘Change in Law’ relief, the operating parameters be considered on ‘actuals’ OR as per technical information submitted in a bid?
(iii) Whether ‘Change in Law’ relief compensation is to be granted from 1st April 2013 (start of Financial Year) or 31st July 2013 (date of NCDP 2013)?
The Supreme Court after considering the above issues asserted, “… deallocation of Lohara Coal Blocks was not on account of any fault of APML and this is recognized by CIL itself, inasmuch as it has returned the Bank Guarantee which was furnished by APML. … We find that no interference would be warranted with the concurrent findings of MERC and APTEL that deallocation of Lohara Coal Blocks would amount to ‘Change in Law’ event as defined under the PPA.”
The Court noted that APTEL referred to the report of the Expert Committee appointed by MERC, which recommended the determination of the price of coal from Lohara Coal Blocks using the “transfer pricing method” which is one of the commonly used methods.
“It could thus be seen that the finding of APTEL is based on the report of the Expert Committee, which was ignored by MERC. … We, therefore, find no reason to interfere with the said finding with regard to methodology of arriving at the compensation payable on account of ‘Change in Law’ event”, held the Court.
Accordingly, the Court dismissed the appeals.
Cause Title- Maharashtra State Electricity Distribution Company Limited v. Adani Power Maharashtra Limited and Others