UTTAR PRADESH ELECTRICITY REFORMS (AMALGAMATION AND MERGER OF STATE GENERATING COMPANIES) SCHEME, 2023

 

PREAMBLE

IN exercise of the power conferred by sub section (4), (5), (6) of Section 131, Section 133 and other applicable provisions of the Electricity Act, 2003 (No. 36 of 2003) read with sub sections (4), (5), (6), (7) of Section 23 of the Uttar Pradesh Electricity Reforms Act, 1999 (UP Act No. 24 of 1999), the Governor hereby makes the following Scheme for purpose of transfer and vesting by way of amalgamation and merger of the functions and undertakings including the undertakings of Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited (UPRVUNL) and Jawaharpur Vidyut Utpadan Nigam Limited (Jawaharpur VUNL) with the U.P. Jal Vidyut Nigam Limited (UPJVNL) and for matters incidental and ancillary thereto and for determining the terms and conditions on which such transfer or vesting or revesting shall be made.

Scheme - 1. Short title, extent and commencement.

(1)     This Scheme will be called the Uttar Pradesh Electricity Reform (Amalgamation and Merger of State Generating Companies) Scheme, 2023.

(2)     It extends to the whole of the State of Uttar Pradesh, and shall also apply to the functions, the properties, interests, rights, liabilities, obligations, proceedings and personnel of Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited, Jawaharpur Vidyut Utpadan Nigam Limited and the U.P. Jal Vidyut Nigam Limited wherever situated outside the State.

(3)     It shall come into force on and from the date of its notification in the Official Gazette.

Scheme - 2. Definitions.

(1)     In this Scheme, unless there is any repugnancy in the subject or context:-

(a)      "Act" refers to the Electricity Act, 2003 (No. 36 of 2003) as amended from time to time;

(b)      "Assets" includes generating stations, plants, machinery, equipment including associated transmission lines, transformers, switch gear, switch yard, cables, facilities, towers, meters, information technology systems and reservoirs, dams and hydraulic works, spares, consumables, raw materials, fuel, civil work installations, works in progress, scraps and land, buildings, offices, stores, furniture, fixtures, vehicles, residential quarters, guest houses and amenities and installations pertaining thereto, other moveable and immoveable assets, etc.

(c)      "Commission" means the Uttar Pradesh Electricity Regulatory Commission;

(d)      "Effective Date of Transfer" means the 01-04-2022 as notified by the Government of Uttar Pradesh for transfer and vesting by way of amalgamation and merger of the functions and Undertakings under this Scheme.

(e)      "Jawaharpur VUNL" means Jawaharpur Vidyut Utpadan Nigam Limited a Government company within the meaning of the Companies Act, 2013, with CIN U40102UP2009SGC038142.

(f)       "Liabilities" shall include liabilities, debt, dues, obligations and other outgoing/outstandings including statutory liabilities and Government levies of whatever nature and contingent liabilities which may arise in regard to the dealings before the Effective Date of Transfer;

(g)      "Personnel" means staff, workmen, employees, officers and managers by whatever name called and shall include those on deputation to other organizations or institutions.

(h)     "Proceedings" shall include all proceedings of whatever nature, suits, appeals, complaints, petitions, applications, conciliatory proceedings, arbitrations or any other proceedings whether civil or criminal or otherwise;

(i)       "Property" means all assets including power systems, dams, tunnels, intake and outlet structures of water conductor systems, generating stations with associated plant, machinery, equipment, transmission towers, lines, transformers, breakers, land, building, offices, stores, installations, furniture, fixtures, vehicles, residential quarters and guest houses and amenities and installations pertaining thereto and other movable and immovable assets, cash in hand, cash at bank, investments, book debts- corporeal and incorporeal, tangible and intangible assets, benefits, consents, authorities, registrations, patents, trademarks and powers of every kind, nature and description whatsoever, privileges, liberties, easements, advantages, approvals, contracts, deeds, schemes, bonds, agreements and other instruments and interest of whatever nature and wherever situate;

(j)       "Resulting Entity" or "Amalgamated Entity" shall mean the Entity after the amalgamation and merger of the State Generating Companies under this Scheme, i.e. UPJVNL;

(k)      "Schedule" shall mean the schedules appended to this Scheme.

(l)       "Scheme" means this Uttar Pradesh Electricity Reform (Amalgamation and Merger of State Generating Companies) Scheme, 2023;

(m)    "State" means the State of Uttar Pradesh;

(n)     "State Generating Companies" shall mean the UPJVNL, UPRVUNL and Jawaharpur VUNL;

(o)      "State Government" means the Government of Uttar Pradesh;

(p)      "Terminal Benefits" means the Gratuity, Pension, Dearness Allowance, Leave Encashment and other applicable benefits including the right to have the appropriate revisions in the above benefits consistent with the practice that were prevalent in the UPRVUNL, UPJVNL, Jawaharpur VUNL;

(q)      "Undertaking" means the business unit with functions and activities, assets, liabilities, obligations, proceedings and personnel related thereto;

(r)      "UP Reforms Act" shall mean the Uttar Pradesh Electricity Reforms Act, 1999 (UP Act No. 24 of 1999);

(s)      "UPJVNL" means U.P. Jal Vidyut Nigam Limited, a Government company within the meaning of the Companies Act, 2013, with CIN U31901UP1985SGC007135;

(t)       "UPRVUNL" means the Uttar Pradesh Rajya Vidyut Utpadan Nigam Ltd. a Government company within the meaning of the Companies Act, 2013 with CIN U40101UP1980SGC005065.

(2)     Words and expressions used in this Scheme and not defined in this Scheme but defined in the Electricity Act, 2003 or UP Reforms Act, 1999 shall have the same meaning as ascribed to it in the said Acts.

Scheme - 3. Amalgamation, merger and vesting of UPRVUNL and Jawaharpur VUNL in UPJVNL.

(i)       Subject to the provisions of this Scheme and with effect from 01.04.2022 as the Effective Date of Transfer, the functions and undertakings of UPRVUNL and Jawaharpur VUNL along with all Assets, Liabilities, Properties, Proceedings and Personnel shall stand transferred to by way of amalgamation and merger and vested in UPJVNL, for all intents and purpose, without any further act, deed or thing to be done by any person or authority including the State Government, UPJVNL, UPRVUNL or Jawaharpur VUNL.

(ii)      The transfer and vesting of the Undertakings under sub-clause (1) shall constitute an amalgamation and merger of the undertakings on as is where is basis and as a going concern, in terms of this transfer scheme, for all intents and purpose, without any further act, deed or thing to be done by the State Government or UPJVNL, UPRVUNL or Jawaharpur VUNL or any other person or authority.

(iii)     The Amalgamation, merger, transfer and vesting of the Undertakings and the Resulting Entity under this Scheme shall operate and be effective pursuant to action of the State Government of Uttar Pradesh notifying this Scheme and without any further act, deed or thing to be done by the State Government or UPJVNL, UPRVUNL or Jawaharpur VUNL or any other person or Authority including the creditors or other persons dealing with the UPJVNL, UPRVUNL and Jawaharpur VUNL.

(iv)    On the amalgamation, merger, transfer and vesting of the functions and Undertakings on the Effective Date of Transfer, the following shall be effective:-

(a)      the Resulting Entity i.e. UPJVNL shall take necessary steps to file necessary declaration with the Registrar of Companies for the said purpose.

(b)      UPRVUNL and Jawaharpur VUNL shall stand liquidated without winding up and the Resulting Entity, UPRVUNL and Jawaharpur VUNL shall file necessary declaration and comply with the formalities provided for under the Companies Act, 2013 or any other law for the time being in force for such liquidation without winding up of UPRVUNL and Jawaharpur VUNL.

(c)      The Resulting Entity shall be entitled to exercise all rights and privileges and be liable to pay all taxes and charges including ground rent and fulfil all obligations, in relation to or applicable to the Undertakings of UPRVUNL and Jawaharpur VUNL as from the Date of Transfer.

(d)      The Resulting Entity shall be entitled to the mutation/substitution of the title to the properties, assets and interests of to be applied for and to be made and duly recorded in the name of the Resulting Entity by the appropriate authorities pursuant to this notification.

(e)      All debts, liabilities, contingent liabilities, duties and obligations, secured or unsecured, whether provided for or not in the books of accounts or disclosed in the balance sheets of UPRVUNL and Jawaharpur VUNL, shall be deemed to be that of Resulting Entity and the same shall be duly discharged by the Resulting Entity.

(f)       All contracts, deeds, bonds, agreements, schemes, arrangements and other instruments of whatsoever nature including the Power Purchase Agreement entered into by UPRVUNL and Jawaharpur VUNL with Procurers and other contracts entered for provision of services of personnel in relation to UPRVUNL and Jawaharpur VUNL, or to which UPRVUNL and Jawaharpur VUNL is a party or to the benefit of which UPRVUNL and Jawaharpur VUNL may be eligible, and which are subsisting or having effect immediately before the Effective Date of Transfer, shall remain in full force and effect against or in favour of the Resulting Entity and may be enforced as fully and effectually as if, instead of UPRVUNL and Jawaharpur VUNL, the Resulting Entity had been a party or beneficiary or obligee thereto, as the case may be.

(g)      All rights and obligations of UPRVUNL and Jawaharpur VUNL under the Power Purchase Agreement entered into with the Procurers shall stand transferred and vested with the Resulting Entity from the Effective Date of Transfer and the Procurers shall procure and deemed to have procured electricity from the Resulting Entity.

(h)     Any contingent liabilities arising out of or in connection with the assignment of any tax/levy deferrals by UPRVUNL and Jawaharpur VUNL to any third party shall be deemed to be that of the Resulting Entity.

(i)       All leases or other like agreements and all other agreements entered into in relation thereto or in connection therewith, by or behalf of UPRVUNL and Jawaharpur VUNL shall stand assigned and transferred to and vested in the Resulting Entity without further act or deed, as if the Resulting Entity is a party thereto, and the Resulting Entity shall be entitled to exercise all rights and privileges and shall be liable to perform all obligations thereunder.

(j)       All permits, quotas, rights, entitlements, licenses including but not limited to those relating to trademarks, tenancies, patents, copy rights, privileges, powers, facilities of every kind and description of whatsoever nature in relation to UPRVUNL and Jawaharpur VUNL or to which UPRVUNL and Jawaharpur VUNL is party, or to the benefits of which UPRVUNL and Jawaharpur VUNL may be eligible shall be enforceable as fully and effectually as if, instead of UPRVUNL and Jawaharpur VUNL, the Resulting Entity had been a party or beneficiary or obligee thereto.

(k)      Any statutory licenses, no-objection certificates, grants, concessions, exemptions, permissions or approvals or consents required to carry on operations of UPRVUNL and Jawaharpur VUNL, or granted to UPRVUNL and Jawaharpur VUNL including, but not limited to Excise, Customs, Sales Tax, Service Tax, GST, Professional Tax, Contract Labour registration shall stand vested in or transferred to the Resulting Entity without further act or deed along with and upon the vesting of Undertakings, pursuant to this notification.

(l)       The benefit of all statutory and regulatory permissions, approvals or consents required to carry on the operations of UPRVUNL and Jawaharpur VUNL, shall vest in and become available to the Resulting Entity pursuant to this Scheme.

(m)    All suits, claims, actions and proceedings of whatsoever nature by or against UPRVUNL and Jawaharpur VUNL pending and / or instituted on or before the Effective Date of Transfer shall neither abate nor shall in any way be prejudicially affected by reason of the functions and Undertakings, having been transferred to or vested in as provided in this notification and the same shall be continued and be enforced by and/or against the Resulting Entity as effectually as if the same has been pending and/or arising against and/or instituted by or against UPRVUNL and Jawaharpur VUNL.

(n)     The Resulting Entity shall be entitled to file/revise its tax returns and to claim refund/credits and/or set off all amounts paid by UPRVUNL and Jawaharpur VUNL under the relevant income tax, sales tax, service tax, GST or any other tax laws, whether or not arising due to any inter-company transactions. The rights to make such revisions in the tax returns and to claim refunds/credits are expressly reserved in favour of the Resulting Entity. With effect from the Effective Date of Transfer, all taxes payable by UPRVUNL and Jawaharpur VUNL including all or any refunds of the claims shall be treated as the tax liability or refunds/claims, as the case may be, of the Resulting Entity.

(o)      From the Effective Date of Transfer and till such time as the name of the Resulting Entity is entered as the account holder in respect of all the bank accounts of UPRVUNL and Jawaharpur VUNL in the relevant banks' books and of records, the Resulting Entity shall be entitled to operate the bank accounts of UPRVUNL and Jawaharpur VUNL.

(p)      Upon the coming into effect of this Scheme in accordance with the provisions hereof, the borrowing limits, of the Resulting Entity as on Effective Date of Transfer, without any further act or deed on the part of Resulting Entity shall stand enhanced by the borrowing of UPRVUNL and Jawaharpur VUNL, and if so required, these limits as enhanced may be increased from time to time by the Resulting Entity, by obtaining shareholders' approval in accordance with the provisions of the Companies Act, 2013.

(q)      All the loans advanced and other facilities sanctioned to UPRVUNL and Jawaharpur VUNL by the bankers/financial institutions prior to the Effective Date of Transfer which are partly drawn/utilised shall become the loans/advances/facilities sanctioned to the Resulting Entity and the said loans and advances shall be drawn/utilised either partly or fully by UPRVUNL and Jawaharpur VUNL from the Effective Date of Transfer and all the loans/advances and/or other facilities so drawn UPRVUNL and Jawaharpur VUNL shall on the Effective Date of Transfer be treated as the advances and loans made available to the Resulting Entity and any balance in the said accounts shall be transferred to the Resulting Entity and all the obligations of UPRVUNL and Jawahar VUNL under any loan agreement shall be construed and shall become the obligation of the Resulting Entity without any further act or deed on the part of UPRVUNL and Jawaharpur VUNL or the Resulting Entity or any other person.

(r)      Upon the coming into effect this scheme, the Resulting Entity shall be entitled to realize all the money and complete and enforce all pending contracts and transactions in respect of UPRVUNL and Jawaharpur VUNL in the name of the Resulting Entity in so far as may be necessary until the transfer of rights and obligations of UPRVUNL and Jawaharpur VUNL.

Scheme - 4. Accounting Treatment.

(1)     The transfer and vesting and consequent amalgamation and merger of the undertaking in the Resulting Entity would be accounted for by applying the pooling of interest method of accounting as contained in the "Indian Accounting Standard 103: Business Combinations" issued by the Institute of Chartered Accountants of India.

(2)     The Resulting Entity shall record the assets and liabilities of UPRVUNL and Jawaharpur VUNL vested in it pursuant to this Scheme, at their book value as on the Date of Transfer.

(3)     To the extent that there are inter-corporate loans or balances between UPJVNL and UPRVUNL/Jawaharpur VUNL, the obligations in respect thereof shall be discharged and corresponding effect shall be given in the books of account and records of Resulting Entity for the reduction of any assets or liabilities, as the case may be. There will be no accrual of interest or other charges in respect of any such inter- company loans or balances with effect from the Effective Date of Transfer.

(4)     Notwithstanding the above, the Resulting Entity in consultation with its auditors is authorized to account any of these balances in any manner whatsoever, if considered more appropriate.

(5)     The authorised share capital of all the three companies UPRVUNL, Jawaharpur VUNL and UPJVNL shall be aggregated as the total Authorised Share Capital of the Resulting Entity.

(6)     The issued, subscribed and paid up capital of the Resulting Entity shall be the net of the Assets and Liabilities of the Resulting Entity and the shares representing such issued capital as provided in Schedule A to this Scheme, shall be issued in the name of State Government and the six nominees designated by the State Government, to have the minimum number of shareholders under the provisions of the Companies Act, 2013.

Scheme - 5. Transfer of Personnel.

(i)       The transfer of Personnel shall be subject to the terms and conditions contained in Section 133 and other applicable provisions of the Act.

(ii)      The Personnel of UPRVUNL, including those deputed to Jawaharpur VUNL as on Effective Date of Transfer shall stand transferred to the Resulting Entity on the same terms and conditions as would have been applicable immediately prior to transfer. The Personnel of UPRVUNL shall maintain their respective cadres as was existing prior to Effective Date of Transfer distinct and separate from the cadre of the Personnel in UPJVNL existing prior to Effective date of Transfer, even after the Effective Date of transfer.

(iii)     On such transfer and subject to the provisions of the Act and other provisions of this Scheme, the personnel shall form a part of the Resulting Entity but their rank, scale of pay and inter-se seniority as existing in the UPRVUNL, respectively on the Effective Date of Transfer date shall be maintained in the Resulting Entity and the retirement benefits and other facilities shall in no way be reduced than the one existing in the UPRVUNL respectively, on the Effective Date of Transfer.

(iv)    The transfer of the personnel shall be subject to the following conditions, namely:-

(a)      That the personnel shall be governed by the applicable Rules and Regulations existing as on the Effective Date of Transfer till the same is varied or revised in accordance with law;

(b)      The terms and conditions of the services applicable to the personnel on transfer shall not in any way be less favourable than or inferior to those applicable to them immediately before the Transfer Date. Accordingly, the salary, allowances and other pecuniary benefits including terminal benefits applicable on the Effective Date of Transfer shall be protected and shall not be changed in any manner;

(c)      All such personnel shall have continuity of service in all respects;

(d)      All benefits of service accrued before the Effective Date of Transfer shall be fully recognized and protected and taken into account for all purposes including for payment of any and all terminal benefits of such Personnel;

(e)      The transfer of Personnel shall be further subject to the orders that may be passed by the Courts in the proceedings pending as on the Transfer Date in regard to their seniority or other matters concerning the service conditions of such personnel;

(f)       Any proceedings including disciplinary proceedings pending against any Personnel as on the Transfer Date or which may be initiated in relation to misconduct, lapses or acts of commission or omission committed before the Transfer Date shall not abate by reason of transfer of such Personnel and the same may be continued by the Resulting Entity as if the same had been initiated by Resulting Entity; and

(g)      The outstanding claims of employees shall not be extinguished because of this Transfer Scheme.

(v)      Where UPRVUNL, has established a provident fund or any other fund, for the benefit of the Personnel employed by it, the moneys relatable to the Personnel whose services are transferred, by or under this Scheme to Resulting Entity standing as on Effective Date of Transfer to the credit of such fund shall on the date of vesting of the Undertakings in Resulting Entity, continue as before until such time that an alternate mechanism is developed as acceptable to the Personnel of UPRVUNL and the same is implemented.

Scheme - 6. Rights and Obligations of third parties restricted.

Except as provided otherwise in this Scheme, from the Effective Date of Transfer, the rights and obligations of all persons in relation to any matter forming part of this Scheme and subject matter of amalgamation and merger shall be restricted to Resulting Entity and notwithstanding anything to the contrary contained in any deed, documents, instruments, agreements or arrangements which such person has with the UPRVUNL or Jawaharpur VUNL, he or she shall not claim any right or interest against the UPRVUNL or Jawaharpur VUNL, as the case may be.

Scheme - 7. Pending Suits, Proceedings etc.

(1)     All Proceedings of whatever nature by or against UPRVUNL or Jawaharpur VUNL, as the case may be, pending on the Effective Date of Transfer shall not abate or discontinue or otherwise in any way prejudicial be affected by reason of the transfer under this Scheme and the proceedings shall be continued, prosecuted and enforced by or against the Resulting Entity to whom the same are assigned in accordance with this Scheme and orders issued thereunder.

(2)     The proceedings covered under sub-clause (1) above shall be continued in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against UPRVUNL or Jawaharpur VUNL, as the case may be, if the transfers specified in this Scheme had not been made.

Scheme - 8. Exemption from Taxes, duties and levies.

The transfers under this Scheme and its implementation shall be exempted from all taxes, duties, levies of the State Government and its local bodies.

Scheme - 9. Misclleneous.

(i)       The amalgamation and merger of Undertakings under this scheme shall be provisional.

(ii)      The final Scheme shall be issued within one year from the date of issuance of this Scheme or the any other period decided by Government of Uttar Pradesh. Further while finalising the Scheme, Government of Uttar Pradesh may amend, vary, modify, add, delete or otherwise change terms and conditions of the Scheme in such manner and on such terms and conditions as Government of Uttar Pradesh may consider appropriate.

(iii)     On issue of such Scheme so finalised, the transfer of undertaking, properties, interests, rights, liabilities and proceedings made in accordance with the scheme shall become final.

Scheme - 10. Change in the Name.

The Resulting Entity i.e. UPJVNL shall take necessary steps to change the name of the Company from U.P. Jal Vidyut Nigam Limited to U.P. Rajya Vidyut Utpadan Nigam Limited. Accordingly, after completion of the process, the name of the Company shall be U.P. Rajya Vidyut Utpadan Nigam Limited.

Scheme - 11. Transfer by Operation of Law.

The transfers under this Scheme shall operate and be effective on and from the Effective Date of Transfer, without any further act, deed or thing to be done by the State Government, UPJVNL, UPRVUNL, Jawaharpur VUNL, or any other person, subject to the terms and conditions of this Scheme.

Scheme - 12. Decision of State Government to be final.

(1)     If any doubt, dispute, difference or issue arises in regard to the transfers under this Scheme, the decision of the State Government thereon shall be final, subject to the provisions of the Act.

(2)     The State Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of the Act, as may appear to be necessary for removing the difficulties arising in implementing the transfers under this Scheme.

SCHEDULE A

(Financials, Share Capital and Balance Sheet)

Consolidated Balance Sheet as on March 31, 2022 of Resulting Entity-