NTPC Renewable Energy Limited vs Rajasthan Electricity Regulatory Commission & Ors
- Court
- Appellate Tribunal For Electricity
Court-2
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL NO.400 OF 2022 & IA NO.1590 OF 2026
Dated: 22.10.2026
Present: Hon’ble Mr. Virender Bhat, Judicial Member
Hon’ble Mr. Ajay Talegaonkar, Technical Member
In the matter of:
NTPC Renewable Energy Limited
Through its Additional General Manger (Commercial)
Having Registered office at :
Engineering Office Complex (EOC),
Sector-24, Noida, Uttar Pradesh – 201301
Email: [email protected] … Appellant
Versus
1. Rajasthan Electricity Regulatory Commission
Through its Secretary
Vidhyut Viniyamak Bhawan,
Sahakar Marg, Near State Motor Garage,
Jaipur, Rajasthan – 302001
Email: [email protected]
2. Rajasthan Urja Vikas Nigam Limited
Through its Chief Engineer
Vidyut Bhawan, Janpath, Jyothi Nagar,
Jaipur, Rajasthan – 302005
Email: [email protected] , [email protected]
3. Solar Energy Corporation of India Limited
Through its General Manager (C&P)
6th Floor, Plate-B, NBCC Office Block Tower-2,
East Kidwai Nagar, New Delhi – 110023
____________________________________________________________________________________
Appeal No.400 of 2022 Page 1 of 21
Email: [email protected] , [email protected]
4. AEW India North One Private Limited
Through its Director
rd
3393, 3 Floor, Ranjet Nagar, South Patel Nagar,
Central Delhi – 110008
Email: [email protected]
5. Green Infra Wind Energy Limited
Through its Director/Board Member
5th Floor, Tower C, Building No. 8, DLF Cybercity,
Gurugram Haryana – 122002
Email: [email protected] … Respondent (s)
Counsel on record for the Appellant(s): Shri Venkatesh
Suhael Buttan
Siddharth Joshi
Abhishek Nangia
Vineet Kumar
Punyam Bhutani
Simran Saluja
Ashutosh Kumar Srivastava
Bharath Gangadharan
Jayant Bajaj
Nihal Bhardwaj
Siddharth Nigotia
Kartikay Trivedi
Shivam Kumar
V.M. Kannan
Jatin Ghuliani
Anant Singh Ubeja
Mohit Mansharamani
Rishabh Sehgal
Kunal Veer Chopra for App. 1
Counsel on record for the Respondent(s): Anand K. Ganesan
Swapna Seshadri
Amal Nair
Sugandh Khanna
Kritika Khanna
For Res. 2
Anushree Bardhan
____________________________________________________________________________________
Appeal No.400 of 2022 Page 2 of 21
Tanya Sareen
Srishti Khindaria
Surbhi Kapoor
Aneesh Bajaj
For Res. 3
J U D G M E N T
PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. Assail, in this appeal, is to the order dated 31.08.2022 passed by the
st
1 respondent Rajasthan Electricity Regulatory Commission (hereinafter
referred to as “the Commission”) in petition no.1905/2021 whereby the
Commission has refused to recognize (i) directions issued by the Hon'ble
Supreme Court in Order dated 19.04.2021 (Great Indian Bustard case)
requiring the power generators to install bird flight diverters, and (ii) the
enhancement of Grid Connectivity Charges under the Rajasthan Electricity
Regulatory Commission (Terms and Conditions for Determination of Tariff
from Renewable Energy Sources) Regulations, 2020 (hereinafter referred to
as the “RERC Renewable Energy Regulations, 2020”), as Change in Law
events affecting the power generators including the appellant herein.
2. The appellant had initially raised both these pleas in the appeal.
However, on 21.07.2026, when the appeal had come up for hearing, learned
counsel for the appellant restricted the scope of the appeal to the claim of
____________________________________________________________________________________
Appeal No.400 of 2022 Page 3 of 21
the appellant with regards to entitlement for compensation on account of
increase in Grid Connectivity Charges as a Change in Law event alone.
3. Undisputedly, the bid deadline in the instant case was 28.10.2020. At
that time RERC Renewable Energy Regulations, 2015 were in force.
Regulation 48 of these regulations prescribed Grid Connectivity Charges @
Rs.2 lakh per MW. Subsequently, RERC Renewable Energy Regulations,
2020 were notified on 02.11.2020. Vide Regulation 89.1 read with
Regulation 48 of these regulations, the Grid Connectivity Charges were
enhanced to Rs.2.5 lakh per MW. Accordingly, the appellant has paid
Rs.11.75 crores towards enhanced Grid Connectivity Charges instead of
Rs.9.40 crores as would have been payable in terms of RERC Renewable
Energy Regulations, 2015.
4.
The Commission, in the impugned order, has refused to acknowledge
the increase in Grid Connectivity Charges as a Change in Law event on the
ground that as per the Power Purchase Agreement (PPA) executed between
the appellant and the respondent no.3 Solar Energy Corporation of India
Limited (in short “SECI”), it is the responsibility of the solar power developer
i.e. the appellant to obtain grid connectivity and to bear the risks as well as
costs incidental to it.
____________________________________________________________________________________
Appeal No.400 of 2022 Page 4 of 21
5. We have heard Mr. Shri Venkatesh, learned counsel for the appellant,
nd
Mr. Amal Nair, learned counsel for the 2 respondent and Ms. Anushree
rd
Bardhan, learned counsel for the 3 respondent. We have also perused the
written submissions filed by the learned counsels.
6. learned counsel for the appellant would argue that merely because
obtaining grid connectivity was contractually the responsibility of the
appellant does not mean that the statutory enhancement in the Grid
Connectivity Charges would not constitute Change in Law event in terms of
the PPA provisions in this regard. He submitted that RERC Renewable
Energy Regulations, 2020 were notified after the bid deadline and these
squarely fall within the definition of the term “law” under the PPA, which
expressly includes any statute, ordinance, regulation, notification, rule or
other instrument having the force of law. To buttress his submissions on this
aspect, the learned counsel has relied upon the judgment of the Hon'ble
Supreme Court in GMR Warora Energy Limited v. CERC and Ors. (2023) 10
SCC 401.
7. On behalf of the respondents, it is argued that the claim of the appellant
with regards to increase in Grid Connectivity Charges as Change in Law
event is not maintainable at all for the reason that the appellant had not
raised any such claim during the proceedings before the Commission. It is
____________________________________________________________________________________
Appeal No.400 of 2022 Page 5 of 21
pointed out that the impugned order has been passed by the Commission
qua three different power generators, one of which was the appellant and
the claim with respect to enhancement of Grid Connectivity Charges
constituting a Change in Law event under the PPAs was raised by the other
two generators on which the Commission had returned its findings in the
impugned order. It is argued that the appellant cannot be permitted to raise
such a claim for the first time in its appeal before this Tribunal. On merits it
is argued that the Commission has rightly held that since the grid connectivity
was the responsibility of the appellant and the associated risks/costs
incidental to the grid connectivity were to be borne by the appellant, the
increase in Grid Connectivity Charges cannot be recognized as a Change in
Law event affecting the power generators. It is further pointed out that even
otherwise also, the claim of the appellant is not maintainable for the reason
that no notice, as required under Article 12.3 of the PPA, was served by the
appellant upon the respondents. On these submissions, the learned
counsels for the respondents urged us to dismiss the appeal.
8. In rejoinder, learned counsel for the appellant submitted that Article 12
of the PPA does not prescribe issuance of notice as a condition precedent
for claiming relief for the Change in Law event. He would further submit that
having resisted the claim of respondent nos.2 and 3 in this regard before the
____________________________________________________________________________________
Appeal No.400 of 2022 Page 6 of 21
Commission, they are precluded from contesting the entitlement of appellant
under the said Change in Law event on the technical plea of absence of
notice. On this aspect, the learned counsel as relied upon the judgment of
this Tribunal dated 15.09.2022 in appeal no.256/2019 & Batch M/s
Parampujya Solar Energy Pvt. Ltd & Anr v. CERC & Ors. The learned
counsel would also dispute the contention agitated on behalf of the
respondents that the appellant had not specifically claimed the assessment
of impact of Grid Connectivity Charges before the Commission.
Our Analysis: -
9. In order to analyze and appreciate the rival contentions and
submissions advanced on behalf of the parties, it is necessary to advert
briefly to the events and circumstances in which the instant appeal has been
filed by the appellant.
10. The respondent no.3 SECI issued Request for Selection (RFS) on
16.07.2020 for selection of solar power developers for setting up of 1070MW
Grid Connected Solar PV Power Project in the State of Rajasthan (Tranche-
III) under Tariff Based Competitive Bidding (TBCB). In terms of the RFS,
28.10.2020 was declared as last date for bid submission.
____________________________________________________________________________________
Appeal No.400 of 2022 Page 7 of 21
11. The appellant was declared successful bidder on 28.12.2020 by SECI
and a Letter of Award (LOA) was issued to it for development of 470MW
solar power project.
12. Meanwhile, the Commission notified RERC Renewable Energy
Regulations, 2020 on 02.11.2020.
13. Respondent no.3 SECI entered into two PPAs, both dated 03.06.2021
with the appellant for 320MW and 150MW respectively pursuant to the
competitive bidding process. Thereafter, SECI entered into back-to-back
Power Sale Agreements (PSAs) dated 13.07.2021 with respondent no.2
RUVNL for resale of 1070MW solar power including 470MW procured from
the appellant.
nd
14. The 2 respondent Rajasthan Urja Vikas Nigam Limited filed petition
no.1905/2021 before the Commission on 24.09.2021 under Section 53 of the
Electricity Act, 2003 for adoption of tariff for 1070MW Solar PV Power to be
charged by the three discoms operating in the State of Rajasthan, for which
rd
bidding was conducted by the 3 respondent SECI.
15. It appears that during the pendency of the petition, one of the solar
th
power developers namely M/s Green Infra Wind Energy Pvt. Ltd (5
respondent) filed an application before the Commission for its impleadment
____________________________________________________________________________________
Appeal No.400 of 2022 Page 8 of 21
as a respondent. Vide order dated 23.07.2021, the Commission directed
impleadment of all successful generators as respondents to the petition.
Accordingly, the appellant also, being a successful bidder, was impleaded
as a respondent to the petition before the Commission.
16. Upon impleadment as respondents to the petition, the power
generators urged the Commission to declare some events, as mentioned in
the replies filed by them, as Change in Law events in terms of the PPAs
executed by them with SECI. Prayer was also made for extension of
timelines for the period of pendency of the petition before the Commission.
However, vide order dated 23.07.2021, the Commission adopted the tariff
while deeming it not appropriate to look into the merits of the Change in Law
claims raised by the generators. The generators were given liberty to file
fresh petitions to raise such claims at appropriate time.
th
17. The said order dated 23.07.2021 was challenged by the 5 respondent
Green Infra Wind Energy Ltd before this Tribunal by way of appeal
no.251/2021. The appeal was disposed of vide order dated 12.10.2021
directing the Commission to hear the parties in relation to the Change in Law
events also as agitated by them in their replies and to render a fresh decision.
The relevant portion of the said order of this Tribunal is extracted
hereinbelow: -
____________________________________________________________________________________
Appeal No.400 of 2022 Page 9 of 21
“16…………it is the duty of the State Commission to inquire
into such claim at the first opportune time and bring in suitable
corrections, may be first by declaration and followed up by
detailed tariff orders. If the event referred to actually constitutes
change in law within the four corners of its definition under the
PPA, there is no reason why it cannot be duly recognized as a
change in law at the stage of tariff adoption, the actual impact
and extent of the relief admissible to be determined at the
appropriate stage.
17. For the forgoing reasons, we allow the appeal finding the
impugned Order to be an adjudication that is incomplete and
proceedings wherein the appellant had sought the
abovementioned declarations having remained inchoate. The
State Commission is directed to hear the parties further in the
light of the above observations and pass further orders
specifically in relation to the three change in law event claims
presented by the appellant, rendering its decision as
expeditiously as possible, preferably within two months from
today.”
____________________________________________________________________________________
Appeal No.400 of 2022 Page 10 of 21
18. Upon such remand by this Tribunal, the Commission conducted a fresh
hearing in the petition. It is pertinent to note here that M/s AEW India North
th
One Private Limited (4 respondent) also filed a separate petition bearing
no.1933/2021 for recognition of Change in Law events agitated therein. The
petition was clubbed with the main petition no.1905/2021. Following Change
in Law claims were agitated b the generators before the Commission: -
(a) declaration that the increase in rates of Basic Custom Duty (BCD) on
the import of solar invertors pursuant to Ministry of Finance notification
dated 01.02.2021, whereby the exemption notification dated
06.01.2011 has been rescinded, as a Change in Law event under the
PPA;
(b) declaration that Ministry of Finance GST notification as a Change in
Law event under the PPA;
(c) declaration that the order of the Hon'ble Supreme Court in Great Indian
Bustard case qualifies as a Change in Law event under the PPA; and
(d) declaration that increase in Grid Connectivity Charges from Rs.2 lakh
per MW to Rs.2.5 lakh per MW in terms of RERC Renewable Energy
Regulations, 2020 as a Change in Law event.
____________________________________________________________________________________
Appeal No.400 of 2022 Page 11 of 21
19. In terms of the remand order dated 12.10.2021 of this Tribunal, the
Commission restricted the claims of the power generators to following three
Change in Law events only: -
“(i) Increase in rates of Basic Customs Duty on import of Solar
Inverters pursuant to the MoF Notification No. 07 dated
01.02.2021, whereby Customs duty exemption notification No.
01 dated 06.01.2011 has been rescinded.
(ii) Levy of Basic Customs Duty on import of Solar Cells,
Modules/Panels pursuant to MNRE Office Memorandum dated
09.03.2021.
(iii) The direction issued by Hon'ble Supreme Court of India by
its Order dated 19.04.2021 in Writ Petition (Civil) No. 838 of
2019 titled M.K. Ranjitsinh & Ors. vs. Union of India & Ors. in
terms of which all existing and future overhead low and high
voltage power lines in the Priority and Potential habitats of
Great- Indian Bustard are necessarily required to be laid
under- ground.”
____________________________________________________________________________________
Appeal No.400 of 2022 Page 12 of 21
20. Vide order dated 13.12.2021, the Commission acknowledged the
events at (i) and (ii) above Change in Law events. With regards to the event
at (iii) hereinabove, the Commission held that the prayer of the solar power
developers was not justified as the bid for procurement of solar power was
not location specific and accordingly disallowed their claim in this regard.
21. Aggrieved by the said order dated 13.12.2021 of the Commission in so
far as it disallowed the claim of the solar power developers to recognize the
order dated 19.04.2021 of the Hon'ble Supreme Court in Great Indian
Bustard case as a Change in Law event and did not consider the other
Change in Law events agitated by them, the solar power developers
approached this Tribunal by way of appeal no.344/2021 and appeal
no.9/2022. Both these appeals were disposed of vide judgment dated
28.01.2022 directing the Commission to pass further orders on the remaining
Change in Law claims of the power generators while reserving their right to
challenge the denial to the relief vis-à-vis the judgment of Hon'ble Supreme
Court in Great Indian Bustard case.
22. Accordingly, a fresh hearing was conducted by the Commission. We
may note her that initially only the respondent no.4 AEW India had raised the
issue of enhancement of Grid Connectivity Charges in its petition
____________________________________________________________________________________
Appeal No.400 of 2022 Page 13 of 21
no.1933/2021 which had been clubbed along with the main petition
1905/2021. Upon remand by this Tribunal vide judgment dated 28.01.2022,
the 5th respondent Green Infra also filed an application seeking fresh hearing
for consideration of the claim of enhancement of Grid Connectivity Charges
as a Change in Law event.
23. It is, therefore, evident that only the respondent nos. 4 and 5 had
agitated the claim for recognizing the enhancement of Grid Connectivity
Charges as a Change in Law event before the Commission and no such
claim had been raised by the appellant herein. This is indicated by the
perusal of Paragraph no.51 of the impugned order also which is extracted
hereinbelow: -
“51. It is submitted by AEW India that the increase in the Grid
Connectivity charges from Rs 2.0 Lakh/MW to Rs 2.5
Lakh/MW as per regulation 89 of the RERC RE Tariff
Regulations,2020 issued on 02.11.2020 after the cut-off date
28.10.2020. Therefore, this increase may be treated as
change in law and additional expense incurred by them be
compensated. In addition, GIRPL through their IA has also
prayed that they are also entitled to compensation on account
of the change in law and prayed to grant in principle approval
____________________________________________________________________________________
Appeal No.400 of 2022 Page 14 of 21
for increase in grid connectivity charges from Rs 2.0 Lakh to
Rs.2.5 Lakh/MW pursuant to RERC RE Tariff Regulations as
change in law event under the PPA.”
24. Such claim of the respondent no.4 and 5 has been rejected by the
Commission in the impugned order on the following reasoning: -
“55. In the above proceedings RVPN has requested to
increase the Grid connectivity charges from Rs. 2 Lakh to Rs.
3 Lakhs per MW or actual bay cost, whichever is higher
considering the prevailing cost trends. The cost for grid
connectivity varies with change in cost of material and
equipment used for this purpose. Further, from the provisions
of the PPAs, it is evident that the grid connectivity is the
responsibility of the SPDs and risks and cost incidental to it
have to be borne by them as rightly submitted by SECI.
56. In light of the above, we are of the view that in terms of the
PPA and foregoing discussion the increase in Grid connectivity
charges have to be borne by the SPDs and their claim for
declaration of increase in Grid Connectivity Charges as
change in law is not accepted.”
____________________________________________________________________________________
Appeal No.400 of 2022 Page 15 of 21
25. Considering the said situation where the appellant, despite having
knowledge about the increase in Grid Connectivity Charges by virtue of
RERC Renewable Energy Regulations, 2020, did not raise any claim for
compensation on account of such Change in Law event before the
nd
Commission either in its reply to petition of 2 respondent RUVNL or by way
of an application as was done by the two other Solar Power Generators i.e.
respondent nos.4 and 5 herein, the appellant is precluded from raising any
such claim in the instant appeal for the first time. Manifestly, the appellant
had enough opportunity to agitate such claim before the Commission but
failed/neglected to do so. Nothing has been contended on behalf of the
appellant in this regard as to what prevented it from raising the claim before
the Commission despite having knowledge as well as the opportunity. It is
a trite law that any substantive claim can not be raised for the first time in an
appeal when no such claim was raised before the court/forum of original
jurisdiction.
26. In order to maintain the instant appeal before this Tribunal, the
appellant was required to demonstrate that he was aggrieved by the relevant
portion of the impugned order. Since, concededly, the appellant had not
agitated claim for compensation on account of increase in the Grid
Connectivity Charges as a Change in Law event, the appellant cannot claim
____________________________________________________________________________________
Appeal No.400 of 2022 Page 16 of 21
to be aggrieved by the relevant portion of the impugned order whereby such
claim raised by respondent nos.4 and 5 has been rejected. The fact that the
appellant did not raise any such claim before the Commission would indicate
that it was not interested in claiming benefit of the increase in Grid
Connectivity Charges as Change in Law event, and therefore, the appellant
cannot be heard to say that it has been prejudicially affected by the impugned
order on this aspect.
27. Therefore, the claim of the appellant for compensation due to increase
in Grid Connectivity Charges as a Change in Law event having been raised
for the first time in the appeal does not merit any consideration and must fail
on this score alone.
28. Even otherwise also, we do not find appellant entitled to claim relief for
the Change in Law event in question as per Article 12 of the PPA as,
concededly, no notice has been served by it upon the respondents SECI or
RUVNL with regards to such claim. Article 12.3 of the PPA is very
categorical in this regard and is extracted herein below: -
“12.3 Notification of Change in Law
12.3.1 If the SPD is affected by Change in Law in accordance
with Article 12 and wishes to claim a Change in Law
____________________________________________________________________________________
Appeal No.400 of 2022 Page 17 of 21
under this Article, it shall give notice to the SECI and
Buying Utility (s) of such Change in Law as soon as
reasonably practicable (but no later than 60 days from
the date of occurrence of such Change in Law).
12.3.2 Any notice service pursuant to this Article 12.3.1 and
12.1.3, shall provide, amongst other things, precise
details of the Change in Law and its effect on the Project
Cost, supported by documentary evidences including
Statutory Auditor Certificate to this effect so as to
establish one to one correlation and its impact on the
Project Cost.”
(Emphasis supplied)
29. This contractual provision makes it mandatory for an affected party to
serve a Change in Law notice upon the SECI and the buying utility (RUVNL
in this case) as soon as practicable but not later than 60 days from the date
of occurrence of the Change in Law event. The word used is “shall” which
indicates that SECI and RUVNL were necessarily to be put to notice before
claiming relief under the Change in Law event. Article 12.3.2 even specifies
the details to be provided in the notice. This contractual requirement cannot
be waived for the reason that the waiver, if done, would tantamount to
____________________________________________________________________________________
Appeal No.400 of 2022 Page 18 of 21
disregarding an important clause of the PPA upon which the parties had
agreed at the time of execution of the PPA. In view of this specific clause in
the PPA, the argument on behalf of the appellant that issuance of notice is
not a condition precedent for claiming relief under Change in Law and that
the respondent nos.2 and 3 are precluded from contesting the claim of
appellant on this technical ground, does not appear to have any force or
merit.
30. On this aspect, heavy reliance has been placed on behalf of the
appellant in the previous judgment of this Tribunal dated 15.12.2022 in
appeal no.256/2019 and batch titled Parampujya Solar Energy Pvt. Ltd and
Anr. v. CERC and Ors. Upon perusal of the said judgment, we find the facts
of that case clearly distinguishable from the facts involved in this case. In
that case, the power generator had not claimed any relief under Change in
Law event against the Chhattisgarh discom, and therefore, had not made the
discom a party in the petition. It is vide order dated 20.09.2018 passed by
the Commission during the proceedings of the petition that the Chhattisgarh
discom was impleaded as a necessary party to the petition. It is, in these
circumstances that this Tribunal held that impleadment of Chhattisgarh
discom as a party to the petition tantamounted to putting it at notice, and
therefore, the contention of the discom that in the absence of prior notice, as
____________________________________________________________________________________
Appeal No.400 of 2022 Page 19 of 21
required under PPA, claim for Change in Law is not maintainable against it,
was repelled. In the instant case, the petition before the Commission was
filed by the discom itself for adoption of tariff, during the course of which the
solar power developers including the appellant were impleaded as
respondents to the petition. Being a respondent along with the other two
th
power generators namely AEW India North One Pvt. Ltd. (4 respondent
th
herein) and Green Infra Wind Energy Ltd. (5 respondent herein), the
appellant was aware that these two generators have raised claim for
compensation on account of increase in Grid Connectivity Charges as a
Change in Law event. Initially, vide order dated 13.12.2021, the Commission
did not consider the said Change in Law claim of the respondent nos.4 and
5. However, a fresh hearing on this aspect was conducted by the
Commission upon remand by this Tribunal vide judgment dated 28.01.2022
in appeal no.344/2021 and appeal no.9/2022 filed by these two power
generators in this regard. All these proceedings were taking place in the
presence of the appellant but still the appellant remained in deep slumber
and did not file any claim on this aspect.
31. Therefore, the observation of this Tribunal in the above referred
Parampujya judgment are totally inapplicable to the facts of the instant case.
____________________________________________________________________________________
Appeal No.400 of 2022 Page 20 of 21
32. It is also argued on behalf of the appellant that merely because
obtaining grid connectivity was contractually the responsibility of the
appellant does not mean that the statutory enhancement in these charges
would not constitute Change in Law. These arguments have been advanced
for the reason that the Commission has, in the impugned order, held that in
terms of the PPA, the increase in Grid Connectivity Charges has to be borne
by the solar power developers and their claim for declaration of increase in
such charges as Change in Law cannot be accepted. Pertinently, these
observations have been made by Commission on the claim made by
respondent nos.4 and 5 in this regard. As already noted hereinabove, no
such claim was made by the appellant before the Commission. While prima
facie finding no fault in these observations of the Commission, we are of the
opinion that a detailed discussion in this regard would be appropriate in the
appeals, if any, filed by the respondent nos.4 and 5 against the impugned
order.
33. Bearing in mind the above discussion, we do not find any merit in the
appeal and accordingly dismiss the same as such.
nd
Pronounced in the open court on this the 22 day of October,
2026.
(Ajay Talegaonkar) (Virender Bhat)
Technical Member (Electricity) Judicial Member
REPORTABLE / NON-REPORTABLE
tp
____________________________________________________________________________________
Appeal No.400 of 2022 Page 21 of 21