[Cites 39, Cited by 0]
Himachal Pradesh High Court
M/S Tissa Hydro Power Private Limited vs H.P. State Electricity Regulatory ... on 23 March, 2026
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
( 2026:HHC:8409
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 8610 of 2025 alongwith
connected matters
Decided on: 23rd March, 2026
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1. CWP No.8610 of 2025
.
M/s Tissa Hydro Power Private Limited .....Petitioner
Versus
H.P. State Electricity Regulatory Commission
and Ors. .....Respondents
of
-------------------------------------------------------------------------------------
2. CWP No.1520 of 2026
M/s Shiv Shakti Solar Power Project .....Petitioner
rt Versus
H.P. State Electricity Regulatory Commission
and another .....Respondents
-------------------------------------------------------------------------------------
3. CWP No. 1522 of 2026
M/s Sher-E-Punjab Solar Power Project
.....Petitioner
Versus
H.P. State Electricity Regulatory Commission
and another .....Respondents
-------------------------------------------------------------------------------------
4. CWP No. 1003 of 2026
M/s Richmit Solar Power Project
.....Petitioner
Versus
H.P. State Electricity Regulatory Commission
and another .....Respondents
-------------------------------------------------------------------------------------
5. CWP No. 1019 of 2026
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Shri Mahunag Solar Power Project
.....Petitioner
Versus
.
H.P. State Electricity Regulatory Commission
.....Respondents
and another
-------------------------------------------------------------------------------------
6. CWP No. 1519 of 2026
Siya Solar Power Project
.....Petitioner
of
Versus
H.P. State Electricity Regulatory Commission
and another rt .....Respondents
-------------------------------------------------------------------------------------
7. CWP No. 1521 of 2026
M/s Bajrang Constructions Solar Power Project
.....Petitioner
Versus
H.P. State Electricity Regulatory Commission
and another .....Respondents
-------------------------------------------------------------------------------------
8. CWP No. 11256 of 2025
M/s Chevron Hydel (P) Ltd.
.....Petitioner
Versus
H.P. State Electricity Board Ltd.
and another .....Respondents
-------------------------------------------------------------------------------------
9. CWP No. 13220 of 2025
M/s IQU Power Company Private Limited
.....Petitioner
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Versus
H.P. State Electricity Regulatory Commission
And Ors. .....Respondents
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10. CWP No. 14042 of 2025
.
M/s Door Sanchar Hydro Power Pvt. Ltd.
.....Petitioner
Versus
H.P. State Electricity Regulatory Commission
and Ors. .....Respondents
of
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11. CWP No. 14086 of 2025
M/s Aleo Manali Hydro Power Pvt. Ltd.
.....Petitioner
rt
Versus
H.P. State Electricity Regulatory Commission
and Ors. .....Respondents
-------------------------------------------------------------------------------------
12. CWP No. 13223 of 2025
M/s Awa Power Company Pvt. Ltd.
.....Petitioner
Versus
H.P. State Electricity Regulatory Commission
and Ors. .....Respondents
-------------------------------------------------------------------------------------
13. CWP No. 13095 of 2025
M/s Neogal Power Company Pvt. Ltd.
.....Petitioner
Versus
H.P. State Electricity Regulatory Commission
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and Ors. .....Respondents
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14. CWP No. 10230 of 2024
M/s Greenko HIM Kailash Hydro Power Pvt. Ltd.
.....Petitioner
.
Versus
H.P. State Electricity Regulatory Commission
and Ors. .....Respondents
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15. CWP No. 2024 of 2026
M/s Hamal Hydel Project Braza Tyre.
.....Petitioner
Versus
of
H.P. State Electricity Regulatory Commission
and Ors.
rt .....Respondents
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Coram
Ms. Justice Jyotsna Rewal DuaWhether approved for
reporting?1
For the Petitioners: Mr. Rajneesh Maniktala, Mr. Suneet
Goel, Senior Advocates, Mr. Ajay
Vaidya, Ms. Shalini Thakur, Mr.
Dinkar Bhaskar, Mr. Shivalik Bhaik,
Mr. Vivek Negi, with Mr. Amit Kumar
Dhumal and Ms. Parul Negi,
Advocates.
For the Respondents: Mr. N.K. Sood, Senior Advocate with Mr.
Vinay Mehta, Advocate, for respondent-
HPERC.
Ms. Sunita Sharma, Senior Advocate
with Mr. Dhananjay Sharma, Mr.
Abhishek Verma and Mr. Saurav
Upadhyay, Advocates, for respondent-
HPSEBL.
1
Whether reporters of print and electronic media may be allowed to see the order? Yes.
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Mr. Vikas Chauhan, Advocate, for
respondents-Bonafide Himachalies
Hydro Power Developers Association in
CWP Nos. 8610/2025 & 10230/2024
------------------------------------------------------------------------------------
Jyotsna Rewal Dua, Judge
.
All these petitions are based upon almost similar
pleadings, claiming almost similar reliefs arising out of
similar cause of actions, hence, are taken up together.
2. Grievance of the petitioners emanates from an
of
order passed by the respondent--Himachal Pradesh
Electricity Regulatory Commission (HPERC), Shimla on
rt
23.02.2024 in Suo Motu Petition No. 08/2023, fixing
normative Operation & Maintenance (O&M) charges.
Challenge has also been laid to the consequent demand
notices issued to the petitioners by the respondent--
Himachal Pradesh State Electricity Board Limited.
A petition under Section 86 of the Electricity Act,
2003 was filed before the HPERC by the 'Bonafide
Himachalies Hydro Power Developers Association'. This
petition, bearing No. 29/2023, pertained to the adjudication
of a dispute between independent power producers and the
H.P. State Electricity Board Limited concerning Operation &
Maintenance (O&M) charges being levied by the Board in
respect of inter connection facility/bay provided to the
generating companies, who had set up Small Hydro Electric
( 2026:HHC:8409
Power Projects in the State. HPERC decided the petition on
16.10.2023, observing that the proposal to fix normative
O&M charges of bay(s) was required to undergo a prior
publication process by floating the proposal on the website
.
of HPERC, so as to provide equal opportunity to all
stakeholders to file their objections/suggestions. Pursuant
to the directions issued in the order dated 16.10.2023, a
proposal was placed before the Commission, which was
of
registered as Suo Motu Petition No. 08/2023, on the subject
of Fixation of normative O&M charges to be paid by the Small
rt
Hydro Power Project(s) and other RE generators connected at
Sub-Stations owned by the Distribution Licensee where
maximum nominal voltage level at any point in such Sub-
stations does not excess 33 kV. The Commission proceed to
fix normative O&M charges to be paid by Small Hydro Power
Producers and other Renewable Energy Generators selling
power to the Distribution Licensee, as well as Renewable
Energy Developers selling power under open access for
utilizing its infrastructure. HPERC invited public objections
and suggestions by issuing public notices in newspapers as
well as on its website. HPERC, vide its letter dated
06.11.2023, requested all major stakeholders, including the
Small Hydro Project Welfare Association, State Government,
Directorate of Energy HIMURJA, and the Distribution
( 2026:HHC:8409
Licensee, to submit their objections/suggestions in terms of
the aforesaid public notices. HPERC received
comments/suggestions on the draft proposal from some of
the stake holders. 'Bonafide Himachalies Hydro Power
.
Developers Association' approached HPERC for sharing data
inputs, which was allowed to be collected from HPSEBL.
Public hearing in the matter was held on 06.12.2023.
Thereafter, order was passed by HPERC on 23.02.2024 in
of
Suo Motu Petition No. 08/2023 fixing normative O&M
charges. Petitioners are aggrieved against order dated
rt
23.02.2024 passed by the HPERC in Suo Moto Petition No.8
of 2023, as also the consequent demand notices issued to
them by the HPSEBL on the strength of above order.
3. According to the petitioners, HPERC lacks the
jurisdiction to issue the impugned order fixing O&M charges.
The impugned order has re-written the contracts entered into
between the parties fixing the O&M charges for use of
interconnection facilities. It has also been submitted that
though in some cases, O&M charges agreement have been
entered into between parties and those agreements have
been rewritten by HPERC under the impugned order, but in
number of the cases, such agreements have not been
executed between the parties, O&M charges could not have
been fixed under the impugned order without hearing the
( 2026:HHC:8409
petitioners. As per the petitioners, in view of the grievance
raised, the writ petitions are maintainable. Reliance was
placed upon Haryana Power Purchase Centre Versus
Sasan Power Limited and others 2 & PTC India Limited
.
Versus Central Electricity Regulatory Commission 3 as
also upon Radha Krishan Industries Versus State of
Himachal Pradesh and others4 and Whirlpool
Corporation Versus Registrar of Trade Marks, Mumbai
of
and others5 on the point that alternate remedy is not a bar
where order rt impugned, has been passed without
jurisdiction.
Whereas, according to the respondents:- the
O&M charges duly form part of tariff charges. They are a
component of the aggregate revenue requirement provided
under Rule 34 of the H.P.E.R.C (Terms and Conditions for
Determination of Hydro Generation Tariff) Regulations,
2024. The Rule is as under:-
"34. Aggregate Revenue Requirement (ARR).
34.1 The ARR of a hydro generating station shall comprise of
the following elements: (a) Operation and Maintenance
Expenses; b) Return on Equity Capital; c) Tax on Return
on Equity; d) Interest on Loan Capital; e) Interest on
Working Capital; and f) Depreciation."
(2024) 1 SCC 247
(2010) 4 SCC 603
(2021) 6 SCC 771
(1998) 8 SCC 1
( 2026:HHC:8409
The HPERC (Promotion of Generation from the
Renewable Energy Sources and Terms and Conditions for
Tariff Determination) Regulations, 2017 provides: -
"12. Tariff design.- (1) The single part levellised tariff structure
.
shall be followed for the renewable energy technologies:
Provided that for renewable energy technologies
having fuel cost component, like biomass power projects
and non-fossil fuel based cogeneration, single part tariff
with two components, i.e. fixed cost component and fuel
cost component, shall be determined. (a) The following
fixed cost components shall be included for determining
the tariff.- (b) Return on equity; (c) Interest on loan
of
capital; (d) Depreciation; (e) Interest on working capital;
and (e) Operation and maintenance expenses.
28. Operation and maintenance expenses.-- (1) Operation
and maintenance expenses mean the expenditure
rt
incurred on operation and maintenance of the project, or
part thereof, and includes, without limitation, the
expenditure on manpower, establishment (including
employees expense, administrative and general
expenses), repairs, spares, consumables, insurance and
overheads as well as the taxes, duties and other levies
on any or all such activities.
(2) Operation and maintenance expenses shall be
determined for the tariff period based on normative
operation and maintenance expenses specified in
Chapter-V of these Regulations for the small hydro
projects and as stipulated in relevant orders of the
Commission for other renewable technologies.
State Commission or Central Commission, as
the case may be, determines tariff under the governing law
primarily the Electricity Act, 2003. O&M charges are
recognized components of Tariff, alongwith (a) return on
equity (b) interest on loans (c) depreciation (d) interest on
working capital. The Commission generally specifies
normative O&M expenses through tariff regulations and
( 2026:HHC:8409
allows excalation factors i.e. inflation linked increase year
to year. The Commission may also consider actual against
norms depending upon tariff framework. The Commission
issues Tariff regulations as per its Regulatory framework
.
i.e. Multi Year Tariff Regulations which include (a) Lay
down formulae and norms for O&M (b) avoid arbitrary
claims by utilities (c) Ensure efficiency and consumer
protection.
of
It has been further emphasized that
determination of O & M charges by the Commission does not
rt
amount to rewriting the contract under the Electricity Act.
Tariff determination is statutory function of the Commission
and the Statute can always override the contracts, if
executed between the parties. Determination of tariff is in
exclusive domain of Commission. Regulatory intervention
does not amount to altering or rewriting the contracts but
enforcing the statutory schemes. Placing reliance upon
Jaipur Vidyut Vitran Nigam Limited and Others Vs. MB
Power (Madhya Pradesh) Limited and Others 6, The State
of Himachal Pradesh and Anr. Vs. JSW Hydro Energy
Limited & Ors.7 and Himachal Pradesh Electricity
2024 (8) SCC 513
Civil Appeal No.12883 of 2024, decided on 16.07.2025
( 2026:HHC:8409
Board Ltd. Vs. Kundan Hydro (Lui) Pvt. Ltd. & Anr.8,
prayer was made to dismiss the petitions being not
maintainable in view of availability of statutory appeal
against the impugned order.
.
4. HPERC has carried out the impugned exercise of
fixing normative O & M charges order dated 23.02.2024 in
terms of power vested in it under Section 86 of the Electricity
Act (reproduced at para 4(ii)(a) of this judgment). Admittedly
of
order dated 16.10.2023 passed by HPERC, is subject matter
of appeal No. 920 of 2023 pending before Appellate Tribunal
rt
for Electricity (APTEL). Against the impugned order dated
23.02.2024 passed by HPERC, petitioners have statutory
remedies available to them under Section 111 of the
Electricity Act, 2003 by preferring an appeal/revision to the
Appellate Tribunal. The Section reads as under:-
"111. Appeal to Appellate Tribunal.--(1) Any person
aggrieved by an order made by an adjudicating
officer under this Act (except under section 127) or
an order made by the Appropriate Commission
under this Act may prefer an appeal to the
Appellate Tribunal for Electricity:
Provided that any person appealing against the
order of the adjudicating officer levying any penalty
shall, while filing the appeal, deposit the amount of such
penalty:
Provided further that where in any particular
case, the Appellate Tribunal is of the opinion that the
deposit of such penalty would cause undue hardship to
such person, it may dispense with such deposit subject
LPA No. 492 of 2024 decided on 09.01.2026
( 2026:HHC:8409
to such conditions as it may deem fit to impose so as to
safeguard the realisation of penalty.
(2) Every appeal under sub-section (1) shall be filed
within a period of forty-five days from the date on which
a copy of the order made by the adjudicating officer or
the Appropriate Commission is received by the aggrieved
person and it shall be in such form, verified in such
.
manner and be accompanied by such fee as may be
prescribed:
Provided that the Appellate Tribunal may
entertain an appeal after the expiry of the said period of
forty-five days if it is satisfied that there was sufficient
cause for not filing it within that period.
(3) On receipt of an appeal under sub-section (1), the
Appellate Tribunal may, after giving the parties to the
of
appeal an opportunity of being heard, pass such orders
thereon as it thinks fit, confirming, modifying or setting
aside the order appealed against.
(4)rt The Appellate Tribunal shall send a copy of every
order made by it to the parties to the appeal and to the
concerned adjudicating officer or the Appropriate
Commission, as the case may be.
(5) The appeal filed before the Appellate Tribunal
under sub-section (1) shall be dealt with by it as
expeditiously as possible and endeavor shall be made by
it to dispose of the appeal finally within one hundred and
eighty days from the date of receipt of the appeal:
Provided that where any appeal could not be
disposed of within the said period of one hundred and
eighty days, the Appellate Tribunal shall record its
reasons in writing for not disposing of the appeal within
the said period.
(6) The Appellate Tribunal may, for the purpose
of examining the legality, propriety or correctness
of any order made by the adjudicating officer or the
Appropriate Commission under this Act, as the case
may be, in relation to any proceeding, on its own
motion or otherwise, call for the records of such
proceedings and make such order in the case as it
thinks fit."
4(i) In Radha Krishan Industries4, Hon'ble Apex
Court summarized the principles of law regarding
( 2026:HHC:8409
maintainability of writ petition before the High Court under
Article 226 of the Constitution vis-à-vis the rule of alternate
remedy as under:-
"27. The principles of law which emerge are that:
.
27.1. The power under Article 226 of the Constitution to
issue writs can be exercised not only for the enforcement
of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain
a writ petition. One of the restrictions placed on the power
of the High Court is where an effective alternate remedy
is available to the aggrieved person.
of
27.3. Exceptions to the rule of alternate remedy arise
where: (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part III
of the Constitution; (b) there has been a violation of the
principles of natural justice; (c) the order or proceedings
rt
are wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not divest the
High Court of its powers under Article 226 of the
Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an
efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right
or liability, resort must be had to that particular statutory
remedy before invoking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience and
discretion.
27.6. In cases where there are disputed questions of
fact, the High Court may decide to decline jurisdiction in
a writ petition. However, if the High Court is objectively
of the view that the nature of the controversy requires the
exercise of its writ jurisdiction, such a view would not
readily be interfered with."
4(ii)(a) In Kundan Hydro (Luni) Pvt. Ltd. Vs. State of
H.P. through its Additional Chief Secretary (MPP &
( 2026:HHC:8409
Power) & Anr.9, respondents had questioned
maintainability of the writ petition as under: -
"5(iii) Maintainability of Writ Petition
5(iii)(a) Respondents have also questioned the
.
maintainability of the writ petition. According to the
respondents, the Electricity Act, 2003 is an exhaustive
legislation which provides complete machinery for
adjudication of the disputes between the distribution licensee
and generating companies or to refer the same for arbitration
under section 86(1)(f) of the Act. Being relevant, the Section is
extracted hereinafter: -
of
"86. (1) The State Commission shall discharge the following
functions, namely: -
(a) determine the tariff for generation, supply, transmission
rt
and wheeling of electricity, wholesale, bulk or retail, as the
case may be, within the State:
Providing that where open access has been permitted to a
category of consumers under section 42, the State
Commission shall determine only the wheeling charges and
surcharge thereon, if any, for the said category of
consumers;
(b) regulate electricity purchase and procurement process of
distribution licensees including the price at which electricity
shall be procured from the generating companies or
licensees or from other sources through agreements for
purchase of power for distribution and supply within the
State;
(c) facilitate intra-state transmission and wheeling of
electricity;
(d) issue licences to persons seeking to act as transmission
licensees, distribution licensees and electricity traders with
respect to their operations within the State;
CWP No. 7177/2024 decided on 10.09.2024
( 2026:HHC:8409
(e) promote cogeneration and generation of electricity from
renewable sources of energy by providing suitable
measures for connectivity with the grid and sale of
electricity to any person, and also specify, for purchase of
electricity from such sources, a percentage of the total
.
consumption of electricity in the area of a distribution
licence;
(f) adjudicate upon the disputes between the licensees, and
generating companies and to refer any dispute for
arbitration;
(g) levy fee for the purposes of this Act; (h) specify State Grid
Code consistent with the Grid Code specified under clause
of
(h) of sub-section (1) of section 79;
(i) specify or enforce standards with respect to quality,
continuity and reliability of service by licensees;
rt
(j) fix the trading margin in the intra-State trading of
electricity, if considered, necessary; and
(k) discharge such other functions as may be assigned to it
under this Act.
(2) The State Commission shall advise the State Government
on all or any of the following matters, namely :-
(i) promotion of competition, efficiency and economy in
activities of the electricity industry;
(ii) promotion of investment in electricity industry;
(iii) reorganization and restructuring of electricity industry in
the State;
(iv) matters concerning generation, transmission,
distribution and trading of electricity or any other matter
referred to the State Commission by that Government.
(3) The State Commission shall ensure transparency while
exercising its powers and discharging its functions.
(4) In discharge of its functions the State Commission shall
be guided by the National Electricity Policy, National
Electricity Plan and tariff policy published under Section 3."
According to the respondents, the issue involved in
the matter has to be considered & decided in accordance with
( 2026:HHC:8409
Regulation 17 of the HPERC Regulations-2017 by filing
appropriate proceedings before the HPERC. Writ petition is
therefore not maintainable. Placing reliance upon Noble
Resources Ltd. vs. State of Orissa & anr.10; State of U.P.
& ors. vs. Bridge & Roof Company (India) Ltd.11; and New
.
India Assurance Co. Ltd. vs. Vipin Behari Lal
Srivastava12, it has been contended that writ petition stems
from a contractual dispute, therefore, is beyond the purview of
Article 226 of the Constitution."
Opposing the issue of maintainability raised by
the respondent, petitioner had stressed that: -
of
"Whereas according to the petitioner, plea of non
maintainability of the writ petition, is a misconceived
contention in view of settled law that existence of an
rt
alternate remedy is not a bar on maintainability of the writ
petition under Article 226 of the Constitution. The present
case involves rank arbitrariness leading to perversity on
part of respondents in attempting to enforce a third party
contract against a non-signatory, contrary to law &
applicable Regulations. The writ petition, therefore, is
maintainable."
Holding that petitioner was not seeking to
determine tariff for sale/purchase of electricity generated at
its power plant but raising the issue whether PPA in question
would bind the petitioner, the objection of maintainability
was turned down as under: -
"5(iii)(b) Petitioner in the instant case is not seeking to
determine tariff for sale/purchase of the electricity
generated from LHEP 4.50 MW. The question involved in the
(2006) 10 SCC 236
(1996) 6 SCC 22
(2008) 3 SCC 446
( 2026:HHC:8409
lis is as to whether the PPA dated 31.05.2000 can be held
to be binding upon the petitioner.
In M.P. Power Management Company Limited,
Jabalpur vs. Sky Power Southeast Solar India Private
Limited & ors13 the appellant had challenged the judgment
.
passed by the High Court whereby an order passed by the
appellant terminating PPA entered into by the appellant &
respondent, was quashed. Hon'ble Apex Court held that
PPA is not a statutory contract. The mere fact that relief is
sought under a contract which is not statutory will not
entitle the State in a case by itself to ward off scrutiny of its
action or inaction under the contract, if complaining party is
of
able to establish that such action/inaction is per se
arbitrary. It was also held that an action will lie when
State's action relates to the stage prior to the contract being
rt
entered into. Even after the contract is entered into there can
be a variety of circumstances which may provide a cause of
action to a party to the contract with the State to seek relief
by filing a writ petition. Relevant paras from the judgment
are as under......"
Kundan Hydro9 was allowed with following
directions: -
"7. The Result
The sum total of above discussions is that this writ petition
succeeds. Following directions are issued:-
(i) Impugned communication dated 16.07.2024 is
quashed and set aside.
(ii) It is held that Power Purchase Agreement dated
31.05.2000 executed between respondent No. 2-HPSEBL
and M/s Subhash Projects & Marketing Limited (Original
Project Developer) is not binding upon the petitioner and
cannot be enforced against it.
(iii) Respondent No. 2 is directed to execute a Power
Purchase Agreement with the petitioner in respect of the
entire Project capacity of 4.50 MW at the HPERC determined
tariff applicable as on Scheduled Commercial Operation
(2023) 2 SCC 703
( 2026:HHC:8409
Date of the Project in accordance with law and complete all
codal formalities in furtherance thereof without
unnecessary delay.
(iv) In order to avoid loss of electricity generated at the
Project, it is ordered that till the determination of tariff as on
the date of commissioning of the Project by the HPERC in
terms of direction No. (iii) above, the petitioner shall be
.
permitted by the respondents to sell the electricity generated
from its Power Project to third parties after adjusting the free
power supply to the respondents in accordance with law."
4(ii)(b) The above decision was overturned in Himachal
Pradesh Electricity Board Ltd. vs. Kundan Hydro (Luni)
of
Pvt. Ltd & Anr.14 holding, as per Section 86(b) of the
Electricity Act, it is the function of State Electricity
Regulatory Commission to regulate electricity purchase and
rt
procurement process of distribution licenses including the
price at which electricity is to be procured and to determine
tariff. The exercise undertaken in Kundan Hydro (Luni)9 was
held to be that of tariff determination, which falls within the
exclusive domain of Electricity Regulatory Commission.
Relevant paras from the decision are as under: -
"31. As per Section 86(b) of the Electricity Act, 2003, the
functions of the State Electricity Commission are to regulate
electricity purchase and procurement process of distribution
licensees including the price at which electricity is to be
procured and to determine the tariff. Section 86(1) (a) & (b)
of the said Act reads as under:-
xxx xxx xxx
36. This aspect apparently skipped the notice of the
learned Single Judge while allowing the writ petition. It is
LPA No. 492/2024 decided on 09.01.2026
( 2026:HHC:8409
thus apparent that the Writ Court has taken over the
exercise as such of tariff determination which falls within
the exclusive domain of the Electricity Regulation
Commission and therefore an error of law has occurred
while issuance of the necessary directions. It is not for this
.
Court to substitute its opinion as to whether the petitioners
have to sell power at what rate and therefore the fixation of
tariff by the learned Single Judge was not justified. The
Project having not seen the light of the day and not being
commissioned for all these years, it was an exercise which
was to be determined by the Electricity Regulatory
Commission rather than forcing the Board as such to enter
of
into an Agreement at the prevalent rates and re-fixing the
terms of the Contract as such. It was beyond the purview of
the Writ Court on the ground by granting relief 7(iii) that the
rt
action was arbitrary and would thus be an exercise by
which the power of the Commission has been taken over
and the directions have been issued by the Writ Court which
is not permissible.
38. The judgment was delivered recently only on
16.07.2025 and therefore, the learned Single Judge did not
have the benefit of the said judgment. Another judgment
arising from this Court in KKK Hydro Power Limited case
(supra) also while dealing with the issue of tariff fixation at
the rate of Rs.2.87 and 2.95 per kWh and while dealing with
the Appellate Tribunals order has held that while referring
to Section 86(1) (b) of the 'Act' that the fixing of the price of
purchase of electricity is not a matter of private negotiations
and Agreements between the generating company and a
distribution licensees, while upholding the order of the
Appellate Tribunal the Apex Court had come to the
conclusion that it required no determination for the 3
Megawatts Hydel Power Projects but only for the additional
1.9 Megawatts was required to be re-determined.
39. In Ramayana Ispat Private Limited and
another Vs. State of Rajasthan & Others (2025) 8 SCC
747, the statutory scheme of the Electricity Act, 2003 and
( 2026:HHC:8409
the regulations framed by the State Commission were held
to be facilitating intra-Sate transmissions and wheeling of
electricity and for maintaining disciplines in power
scheduling and ensuring that consumers do not gain unfair
advantage by evading scheduling norms and for equitable
.
treatment of all market participants while safeguarding the
integrity of the power grid. The relevant part reads as
under:-
"67. Furthermore, the 2003 Act, envisages a balance
between the rights of open access consumers and the
operational concerns of the power sector. The 2016
Regulations, while imposing certain conditions, do not
of
outright deny open access but ensure that its
implementation is equitable and does not jeopardise grid
discipline. Open access remains available to consumers
who comply with regulatory prerequisites, including
rtscheduling obligations and financial commitments. Thus,
the appellant's assertion that their right to open access is
foreclosed is misplaced. The 2016 Regulations are
consistent with the legislative intent of the 2003 Act,
ensuring that open access is exercised in a manner that
does not compromise system stability, fairness, or economic
viability. Therefore, the regulatory framework does not
foreclose open access but rather operationalises it within
reasonable constraints essential for sustaining the
electricity sector.
68. The statutory scheme under the 2003 Act mandates that
regulations framed by State Commissions must serve the
larger public interest. The respondents have successfully
established that the impugned Regulations serve this
purpose by ensuring equitable treatment of all market
participants while safeguarding the integrity of the power
grid.
69. RERC derives its authority from the 2003 Act, which
vests in it the power to frame regulations governing open
access, scheduling, and penalties. Section 86(1)(c) of the
2003 Act specifically empowers State Commissions to
facilitate intra-State transmission and wheeling of
electricity. Furthermore, Section 181 empowers the
Commission to make regulations consistent with the 2003
( 2026:HHC:8409
Act and its objectives. The impugned Regulations have been
framed in exercise of these statutory powers. The
requirement for scheduling, imposition of penalties, and
limits on drawl are not arbitrary but are measures falling
within the regulatory ambit of the Commission to ensure
grid stability and fair competition. The 2003 Act envisions a
.
structured and fair mechanism for open access while
ensuring that market participants do not engage in practices
detrimental to the larger consumer base. Moreover, under
Section 42 of the 2003 Act, the State Commission has the
mandate to regulate open access in distribution and specify
the charges and conditions applicable. The respondents
have demonstrated that these conditions are necessary for
of
maintaining discipline in power scheduling and ensuring
that open access consumers do not gain an unfair
advantage over other consumers by evading scheduling
norms or penalties.
rt
70. The Jodhpur Bench in common order dated 29-8-2016,
which has been challenged before us in Civil Appeals
Nos.7965 and 7966 of 2019, has rightly upheld the validity
of the 2016 Regulations holding that any inconvenience
caused or even some hardship faced by the captive power
generators shall not make the Regulations illegal. The High
Court also rightly pointed out that the appellants have failed
to establish that the impugned Regulations are in
contravention of their rights protected under Part III or any
other provision of the Constitution of India or that the
Regulations have been enacted without having the
competence to do so or they are manifestly arbitrary or
unreasonable. It has been rightly held by the High Court
that the 2016 Regulations are in consonance with the
objects of the 2003 Act and have been framed as per the
competence available under Section 181 read with Section
42 of the 2003 Act."
Finally appeal was allowed as under holding the
writ petition to be not maintainable: -
( 2026:HHC:8409
"40. It is thus, apparent that the learned Single Judge has
mis-directed itself by choosing to decide the issue on merits
and also rejected the plea of alternate remedy on the ground
that there was an arbitrary action as such. The Board as
such had only recommended that the matter should be
.
placed before the Electricity Regulatory Commission,
keeping in view the power as such of the Commission to fix
the tariff and once the Regulations had come into force, it
was for the Commission to see as to what would be the rate
of the tariff to be fixed between the Board and the petitioner
under the policy dated 15.05.2018 which makes it
mandatory for the Board to purchase the electricity from
of
Projects below 10 MW.
41. Therefore, the judgment passed by the learned Single
Judge is not liable to be upheld and the appeal is liable to
rt
be allowed. Accordingly, we set aside the judgment dated
10.09.2024 and relegate the parties to its alternate remedy
as suggested by the appellant-Board dated 16.07.2024.
Needless to say, it is for the Regulatory Commission as such
to fix the tariff as such, keeping in mind all the relevant
parameters and the fact that project has been hanging fire
since the year 2000. Neither the Board nor the State or the
petitioners can be prejudiced on account of the 25 years
having been passed and the interest as such would have to
be adjudicated, keeping in mind this aspect by the expert
body.
42. The appeal stands disposed of accordingly, as
indicated hereinabove, along with pending miscellaneous
applications, if any."
4(iii). Jaipur Vidyut Vitran Nigam Ltd.6 held that
High Court was not justified in directly entertaining the writ
petition when the petitioner had an adequate alternate remedy
( 2026:HHC:8409
of approaching the State Electricity Commission. It was
observed as under:-
"127. It is needless to state that this Court, time and again, in
various judgments including the one in the case of GMR
Warora Energy Limited (supra) has recognised the
.
requirement of balancing the consumers' interest with that
of the interest of the generators. It will not be permissible
to take a lopsided view only to protect the interest of the
generators ignoring the consumers' interest and public
interest.
128. We find that the High Court was not justified in
entertaining the petition. The Constitution Bench of this
Court in the case of PTC India Limited (supra) has held that
of
the Electricity Act is an exhaustive code on all matters
concerning electricity. Under the Electricity Act, all issues
dealing with electricity have to be considered by the
authorities constituted under the said Act. As held by the
Constitution Bench of this Court, the State Electricity
rt
Commission and the learned APTEL have ample powers to
adjudicate in the matters with regard to electricity. Not
only that, these Tribunals are tribunals consisting of
experts having vast experience in the field of electricity. As
such, we find that the High Court erred in directly
entertaining the writ petition when the respondent No.1,
i.e., the writ petitioner before the High Court had an
adequate alternate remedy of approaching the State
Electricity Commission.
129. This Court in the case of Reliance Infrastructure Limited v.
State of Maharashtra and others15 has held that while
exercising its power of judicial review, the Court can step
in where a case of manifest unreasonableness or
arbitrariness is made out.
130. In the present case, there is not even an allegation with
regard to that effect. In such circumstances, recourse to a
petition under Article 226 of the Constitution of India in the
availability of efficacious alternate remedy under a
statute, which is a complete code in itself, in our view, was
not justified.
131. No doubt that availability of an alternate remedy is not a
complete bar in the exercise of the power of judicial review
by the High Courts. But, recourse to such a remedy would
be permissible only if extraordinary and exceptional
circumstances are made out. A reference in this respect
(2019) 3 SCC 352
( 2026:HHC:8409
could be made to the judgments of this Court in the cases
of Radha Krishan Industries v. State of Himachal
Pradesh and others16 and South Indian Bank Ltd.
and others v. Naveen Mathew Philip and another17."
After referring in para 132 to Radha Krishan
.
Industries v. State of H.P.4 and principles laid down therein, it
was held as under:-
"98. This Court has clearly held that when a right is created
by a statute, which itself prescribes the remedy or
procedure for enforcing the right or liability, resort must
be had to that particular statutory remedy before
of
invoking the discretionary remedy under Article 226 of
the Constitution of India."
4(iv). Following issues arose for determination in
rt
Power Grid Corporation of India Limited Versus Madhya
Pradesh Power Transmission Company Limited & Ors.18:-
"30. Having heard the learned counsel appearing for the
parties and having gone through the materials on record,
the following questions fall for our consideration:
i. Whether the CERC, while exercising its functions
under Section 79(1) of the Act, 2003, is
circumscribed by statutory regulations enacted
under Section 178 of the Act, 2003?
ii. Whether the CERC exercises regulatory or
adjudicatory functions under Section 79 of the Act,
2003? In other words, what is the scope of the
CERC's power to regulate inter-state transmission
of electricity and determine tariff for the same
under clauses (c) and (d) of Section 79(1)?
iii. Whether the grant of compensation by the CERC
for the delay vide the orders dated 21.01.2020
and 27.01.2020 respectively, is a regulatory or
adjudicatory function and to what extent are the
principles of natural justice applicable to the
exercise of such functions?
(2021) 6 SCC 771
2023 SCC OnLine SC 435
Civil Appeal No.6847 of 2025, decided on 15.05.2025
( 2026:HHC:8409
iv. Whether the High Court was justified in admitting
the writ petition filed by the respondent no. 1
herein challenging the order dated 21.01.2020 of
the CERC when there existed an alternative
remedy under Section 111 of the Act, 2003?"
.
Apex Court held that determination of tariff is an
adjudicatory function of Electricity Regulatory Commissions.
Even though determination of tariff like price fixation is a
legislative act, yet such determination is appealable under the
Electricity Act indicative of the fact that it is an adjudicatory
of
function. The orders passed under regulatory powers are
appealable. Relevant portions are as under:-
rt
"50. This Court in PTC (supra) has held that the
determination of tariff under Section 79(1) is an
adjudicatory function of the CERC for the following
reasons:
(i) First, the actual determination/fixation of tariff is
done by the appropriate commission between the parties
before it under Section 62 of the Act, 2003. Although
Section 61 is the enabling provision for framing of
regulations while keeping in mind the generic
propositions provided thereunder, yet the determination
of tariff in respect of a specific generation unit, asset,
transmission line, etc, is done by virtue of the power
emanating from Section 62. Therefore, the determination
of tariff is specific to an individual case and is not of
general application under the Act, 2003. This is in
consonance with the test laid down in Sitaram Sugar Co.
Ltd. v. Union of India, reported in (1990) 3 SCC 223
wherein it was held that one of the factors to determine
if an order was issued in exercise of an adjudicatory
function, is to ascertain whether it was specific to an
individual or of general application.
(ii) Secondly, even though determination of tariff like
price fixation is a legislative act, yet such determination
has been made appealable to the APTEL under Section
111. The terms of the Act, 2003, therefore, clearly
indicate that determination of tariff is an adjudicatory
( 2026:HHC:8409
function. The relevant observations of this Court in PTC
(supra) are reproduced below:
"26. The term "tariff" is not defined in the 2003 Act.
The term "tariff" includes within its ambit not only
the fixation of rates but also the rules and
regulations relating to it. If one reads Section 61
with Section 62 of the 2003 Act, it becomes clear
.
that the appropriate Commission shall determine
the actual tariff in accordance with the provisions of
the Act, including the terms and conditions which
may be specified by the appropriate Commission
under Section 61 of the said Act. Under the 2003
Act, if one reads Section 62 with Section 64, it
becomes clear that although tariff fixation like price
fixation is legislative in character, the same under
of
the Act is made appealable vide Section 111. These
provisions, namely, Sections 61, 62 and 64 indicate
the dual nature of functions performed by the
Regulatory Commissions viz. decision-making and
rtspecifying terms and conditions for tariff
determination.
49. On the above analysis of various sections of the 2003
Act, we find that the decision-making and
regulation-making functions are both assigned to
CERC. Law comes into existence not only through
legislation but also by regulation and litigation.
Laws from all three sources are binding. According
to Professor Wade, "between legislative and
administrative functions we have regulatory
functions". A statutory instrument, such as a rule or
regulation, emanates from the exercise of delegated
legislative power which is a part of administrative
process resembling enactment of law by the
legislature whereas a quasi-judicial order comes
from adjudication which is also a part of
administrative process resembling a judicial
decision by a court of law. (See Shri Sitaram
Sugar Co. Ltd. v. Union of India [(1990) 3 SCC
223].)
50. Applying the above test, price fixation exercise is
really legislative in character, unless by the terms
of a particular statute it is made quasi-judicial as in
the case of tariff fixation under Section 62 made
appealable under Section 111 of the 2003 Act,
though Section 61 is an enabling provision for the
framing of regulations by CERC. If one takes "tariff"
as a subject-matter, one finds that under Part VII of
the 2003 Act actual determination/fixation of tariff
( 2026:HHC:8409
is done by the appropriate Commission under
Section 62 whereas Section 61 is the enabling
provision for framing of regulations containing
generic propositions in accordance with which the
appropriate Commission has to fix the tariff. This
basic scheme equally applies to the subject-matter
"trading margin" in a different statutory context as
.
will be demonstrated by discussion hereinbelow."
(Emphasis supplied)
57. The respondent no. 1 has averred that the CERC
cannot conflate its powers of regulation with its
adjudicatory functions and a regulation cannot be brought
into force by way of a judicial order. In the specific case of
Nuclear Power Corporation (supra), we are inclined to
of
agree with the submission of the respondent no. 1 to the
extent that a regulation cannot be done through the
process of adjudication. However, could it be said that
there is a blanket ban on the CERC to exercise its
regulatory functions by way of orders under Section 79(1)?
rt
In light of this Court's dictum in AERA (supra), our answer
to this question must be an emphatic 'No'.
58. We are of the view that even though the orders
under Section 79 may not always be limpid as regards the
matters where CERC is exercising its regulatory functions
yet this cannot be the reason to conclude that the CERC
passes all orders in its capacity as an adjudicator. The
nomenclature "judicial order(s)" as used in Nuclear Power
Corporation (supra) does not change the nature of a
specific order that the CERC gives in its capacity as a
regulator and the courts must understand the true import
of an order to determine the nature thereof.
59. The CERC granted liberty to the appellant herein to
claim compensation from the respondent no. 1 to deal with
a situation caused due to an unprecedented event not
covered by any guidelines, regulations or contractual
provisions between the parties. The dictum of this Court in
paragraph 20 of Energy Watchdog (supra), indicates that
in such a situation where there is an absence of
regulations and guidelines, the Act, 2003 mandates the
CERC to strike a judicious balance between the parties
keeping in mind commercial principles and consumers'
interest, in exercise of its general regulatory powers under
Section 79(1).
60. The aforesaid leaves no manner of doubt in our
mind that though the CERC's orders dated 21.01.2020
and 27.01.2020 respectively were for determination of
tariff, yet the order granting liberty to the aggrieved
( 2026:HHC:8409
appellant to claim compensation from the defaulting party
is a consequence of a regulatory lacuna in the 2014 Tariff
Regulations and therefore, is an instance of regulation of
tariff between the parties.
61. Since the CERC was not adjudicating the issue of
delay between the parties but was only regulating the
consequences of the delay to the commissioning of the
.
transmission elements, we are of the view that there was
no requirement for a specific prayer in this regard. As a
natural corollary, there was also no occasion for the
respondent no. 1 to be afforded an opportunity to be heard
at that stage. In our considered view, any dispute
pertaining to the levy of transmission charges incurred
before the concerned transmission assets were put to use,
would arise only upon the appellant raising bills to the
of
respondent no. 1 in this regard. In such a scenario, it
cannot be said that there was a contravention of the
principles of natural justice by the CERC.
62. As regards the contention of the respondent no. 1
that the validity of a regulation cannot be looked into by
rt
the statutory authorities under the Act, 2003, we are of the
view that the said submission was made without
considering the general regulatory power under Section
79(1). While we are in agreement with the submission of
the respondent no. 1 that the vires of a regulation under
Section 178 cannot be challenged before an authority that
is the creation of the parent statute, the same cannot be
said so for a specific regulation effected under Section
79(1).
63. It is apposite to mention that the sources of power
for enactment of a regulation under Section 178 and
regulatory order under Section 79(1) are different. The
former emanates from the power of delegated legislation
whereas the latter is an ad hoc power which is limited to
the specific parties and situation in context of which the
order is given. Since the regulatory powers under Section
79(1) are of an ad hoc nature and are not of general
application, the orders thereunder are made appealable
under Section 111.
64. In view of the aforesaid exposition of law, we find
that this Court's observations in Whirlpool (supra) are of
no avail to the respondent no. 1 as the present matter falls
in none of the cases enumerated therein. Therefore, there
was no occasion for the High Court to admit the writ
petition of the respondent no. 1."
( 2026:HHC:8409
4(v) It would also be appropriate to refer to State of
Himachal Pradesh & Anr. Vs. JSW Hydro Energy Limited
& Ors.7 wherein the Hon'ble Apex Court considering the
expertise and specialization of CERC as a statutory regulator
.
and the wide ranging jurisdiction it exercises under the
Electricity Act, held the writ petition to be not maintainable
before the High Court. Relevant observations are as under: -
(a) The Electricity Act, 2003 is a complete and
of
comprehensive code for regulating the generation,
transmission, distribution, trading and use of electricity. One
rt
of the core features of the Act is that it unbundles the
functions of electricity generation, transmission, and
distribution that were erstwhile performed by State
Electricity Boards19 into separate utilities, and provides for
their regulation through independent Regulatory
Commissions20. (para 7 of the judgment)
(b) The need for an independent and transparent
regulatory mechanism was felt due to the regulatory failures
under the erstwhile legal regime21, wherein SEBs constituted
by the State Governments were entrusted with regulation 22.
Hereinafter "SEBs
PTC (supra), para 17.
Electricity Act, 1910 (hereinafter "the 1910 Act"); the Electricity (Supply) Act, 1948
(hereinafter "the 1948 Act").
K.C. Ninan v. Kerala State Electricity Board, (2023) 14 SCC 431, para 6.
( 2026:HHC:8409
It was experienced that various problems plagued the power
sector, including lack of rational retail tariffs, high level of
cross-subsidies, poor planning and operation, inadequate
capacity, neglect of consumer interest, and limited
.
involvement of the private sector's skills and resources23. It
is in this context that the Electricity Regulatory Commissions
Act, 199824 was enacted to reform the governance of the
sector by establishing an independent and transparent
of
regulatory mechanism.25 (para 8 of the judgment)
(c) Finally, the Act provides for the constitution of
rt
permanent expert bodies, i.e., Central and State Electricity
Regulatory Commissions, to regulate the production,
transfer and use of electricity, as well as for the development
of the sector through private sector participation and
competitiveness to subserve consumer interests.
Considering the specialised nature of functions performed by
these bodies, the Act also provides for an appellate forum to
challenge the Central and State Commissions' decisions, i.e.,
the APTEL, which can appreciate the technicalities and
nuances of the sector. (para 9.6 of the judgment)
Statement of Objects and Reasons of the Electricity Regulatory Commissions Act, 1998
Hereinafter "the 1998 Act".
W.B. Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715, para 52; PTC
(supra), para 17; Sesa Sterlite Ltd. v. Orissa Electricity Regulatory Commission, (2014) 8 SCC
444, para 22.
( 2026:HHC:8409
(d) While the Electricity Act has done away with the
licensing requirement for generating companies, it continues
to regulate electricity generation as the tariff at which the
generating company supplies electricity to a distribution
.
licensee is determined by the Central or State Commission,
as is appropriate, as per Section 62(1)(a) read with Section
79 and Section 86 of the Act26. We will further deal with the
tariff determination function of the CERC at a later stage."
of
(para 13 of the judgment)
(e) ..........CERC as an Expert and Specialised
rt
Regulator, and Extent of Judicial Interference: In order to
appreciate the issue on maintainability of the writ petition, it
is necessary to take note that postmodern legislation
institutionalises governance through regulation. Under the
Electricity Act, we see such a statutory incorporation of the
regulators through the CERC and the State Commissions
that are expert and specialised bodies to perform wide-
ranging regulatory functions27. (para-26 of the judgment).
Section 62(1)(a) of the Electricity Act reads: "Section 62. (Determination of tariff): --- (1)
The Appropriate Commission shall determine the tariff in accordance with the provisions of
this Act for - (a) supply of electricity by a generating company to a distribution licensee:
Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix
the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of
an agreement, entered into between a generating company and a licensee or between licensees,
for a period not exceeding one year to ensure reasonable prices of electricity;..."
See PTC (supra), para 17; Sai Renewable (supra), paras 36 and 38; Reliance Infrastructure
Ltd. v. State of Maharashtra, (2019) 3 SCC 352, para 38.
( 2026:HHC:8409
(f) ........The jurisprudence on regulation is that
independent regulators, armed with statutory powers and
duties, were established to reduce the government's control
and interference with the market while safeguarding
.
consumer interests, preventing abuse of monopoly, and
enabling private participation in the sector. Therefore, the
regulator has socio-economic obligations of ensuring
accessibility of goods and services, as well as the duties
of
towards the development of the industry by promoting
efficiency and competition 28. The nature of functions and the
rt
jurisdiction of these regulatory bodies are wide and extensive
as they perform a mix of legislative, executive and
administrative, and judicial functions29. Concomitantly, they
are sufficiently empowered under the statute, and legislative,
executive and adjudicatory powers are telescoped into one
institution. Regulators have the power to lay down rules and
regulations; issue licenses; fix prices and scope and areas of
operation; investigate and prosecute offences, and impose
penalties; adjudicate disputes and interpret the law;
implement and enforce the statute, the rules and regulations
made thereunder, and their decisions; and exercise
H.W.R. Wade and C.F. Forsyth, Administrative Law (11th edn, Oxford University Press
2014), 116-117.
ibid, 124.
( 2026:HHC:8409
incidental and ancillary powers to deal with all aspects
relating to the sector30. (para-27 of the judgment)
(g) ............Specifically, in the context of the CERC
under the Electricity Act, Section 79 sets out its functions,
.
including tariff determination. The relevant portion is
extracted hereinbelow:
"Section 79. (Functions of Central Commission): --- (1) The
Central Commission shall discharge the following functions,
of
namely:- *** (b) to regulate the tariff of generating companies
other than those owned or controlled by the Central
Government specified in clause (a), if such generating
companies enter into or otherwise have a composite scheme
rt
for generation and sale of electricity in more than one
State..." (para-28 of the judgment).
(h) ........"Tariff" has not been defined under the
Electricity Act, but it has been interpreted by this Court on
several occasions. This Court in PTC (supra) held that "tariff"
does not only mean fixation of rates but also the rules and
regulations relating to it....... (para-29 of the judgment).
(i) ........This Court has time and again emphasised
that since tariff determination, including the power to make
regulations for this purpose, has been entrusted to a
specialised and expert regulator constituted under the
statute itself, it would not be proper for constitutional courts
ibid; Cellular Operators Assn. of India v. Union of India, (2003) 3 SCC 186, para 33; U.P.
Power Corpn. Ltd. v. NTPC Ltd., (2009) 6 SCC 235, paras 4, 22, 48.
( 2026:HHC:8409
to interfere and assume these functions, or to examine tariff
fixation on its merits and substitute its own determination
for the one made by the expert body after duly considering
all material circumstances31. We are of the opinion that this
.
is necessary not only to ensure that these specialised
functions are performed by expert regulators but to also
facilitate a systematic and consistent development of sectoral
laws. (para-32 of the judgment).
of
(j) In this light, when a constitutional court is
interpreting statutes, rules, or regulations that fall within the
rt
regulator's domain, it must bear in mind the need to enable
the regulator to exercise comprehensive jurisdiction. Courts
must not impair the functioning of the regulator by taking
away certain aspects of the sector outside the regulator's
scope, thereby fragmenting regulation and creating plurality
of jurisdictions. It is in the interest of good governance
through regulation to ensure that there is no proliferation of
remedies and there are no parallel, multiple remedial forums.
Further, this also ensures that the sectoral law is developed
in a coordinated and systematic fashion by the regulator that
Sai Renewable (supra), paras 38, 40, 41; Reliance Infrastructure Ltd (supra), para 38;
Transmission Corpn. of A.P. Ltd. v. Rain Calcining Ltd., (2021) 13 SCC 674, para 66;
Maharashtra State Electricity Distribution Co. Ltd. v. Adani Power Maharashtra Ltd., (2023) 7
SCC 401, paras 118-121.
( 2026:HHC:8409
is equipped to deal with not only legal issues but also has
specialised knowledge in other areas. (para-33 of the judgment).
(k) The above principles are also reflected in a recent
decision of this Court in Jaipur Vidyut Vitran Nigam Ltd.6.
.
Here, the High Court exercised writ jurisdiction and directed
distribution companies to procure power from bidders, who
are generating companies, at the prices quoted in their bids
till the requisite quantum of power was procured. Allowing
of
the appeal of the distribution companies, this Court held that
the High Court was not justified in entertaining the writ
rt
petition as the Electricity Act is an exhaustive code and all
issues dealing with electricity must be considered by the
expert bodies, i.e., the Regulatory Commissions constituted
under the Act. The relevant portion is extracted hereinbelow:
"128. We find that the High Court was not justified in
entertaining the petition. The Constitution Bench of this
Court in PTC has held that the Electricity Act is an
exhaustive code on all matters concerning electricity. Under
the Electricity Act, all issues dealing with electricity have to
be considered by the authorities constituted under the said
Act. As held by the Constitution Bench of this Court, the
State Electricity Commission and the learned APTEL have
ample powers to adjudicate in the matters with regard to
electricity. Not only that, these Tribunals are tribunals
consisting of experts having vast experience in the field of
electricity. As such, we find that the High Court erred in
directly entertaining the writ petition when Respondent 1
i.e. the writ petitioner before the High Court had an
( 2026:HHC:8409
adequate alternate remedy of approaching the State
Electricity Commission.
129. This Court in Reliance Infrastructure Ltd. v. State of
Maharashtra has held that while exercising its power of
judicial review, the Court can step in where a case of
.
manifest unreasonableness or arbitrariness is made out.
130. In the present case, there is not even an allegation with
regard to that effect. In such circumstances, recourse to a
petition under Article 226 of the Constitution of India in the
availability of efficacious alternate remedy under a statute,
which is a complete code in itself, in our view, was not
justified." (emphasis supplied)
of
(Para 34 of the judgment)
The Hon'ble Apex Court further held that under
rt
the Electricity Act, the statutory regulator has been
entrusted with discharging the function of tariff
determination, including making regulations for the purpose
and interpreting the same. Constitutional courts must
enable the regulator to comprehensively regulate all aspects
of the sector such that remedies are not fragmented and
certain issues are not left outside the regulator's domain. The
regulator has the expertise, specialisation, and institutional
memory to conduct such an interpretative exercise to further
the objective of the regulatory regime and systematically lay
down legal principles. In this light, the High Court should not
have entered into the domain of interpreting these
Regulations which deal with tariff determination, as the
same falls within the exclusive domain of the CERC. The
( 2026:HHC:8409
Electricity Act itself provides the appellate mechanisms by
establishing a specialised and permanent tribunal, namely
the APTEL, and an appeal before this Court, against the
CERC's orders. In view of the existence of a statutory
.
regulatory forum, the High Court should not have
entertained the writ petition by interpreting the CERC
Regulations.
5. For the forgoing, in view of statutory remedy
of
available to the petitioners, these writ petitions are disposed
of reserving liberty to the petitioners to seek appropriate
rt
remedy in accordance with law. The period spent in pursuing
these writ petitions shall not be computed for purposes of
limitation.
All the pending miscellaneous application(s), if
any, to also stand disposed of.
Jyotsna Rewal Dua
March 23, 2026 Judge
rohit
