APTEL Rejects NTPC’s ₹2.35-Crore Claim Over Rajasthan Grid-Charge Hike, Raised For First Time On Appeal

In brief

The question

1. Whether NTPC REL could raise for the first time on appeal a claim for compensation due to increased grid connectivity charges as a Change in Law event

The court held

The Tribunal held that NTPC REL’s Change in Law claim was not maintainable because it had not been raised before the Commission and, in any event, the required PPA notice had not been given.

It also directed

It found no merit in the appeal and dismissed it.

01Facts

NTPC Renewable Energy Limited (NTPC REL) bid to develop a 470 MW solar project, with a bid deadline of 28 October 2020.

¶ 3

At that time, the Rajasthan Electricity Regulatory Commission’s 2015 Renewable Energy Regulations prescribed grid connectivity charges of ₹2 lakh per MW. Regulations notified on 2 November 2020 increased the charges to ₹2.5 lakh per MW; NTPC REL paid ₹11.75 crore rather than the ₹9.40 crore that would have been payable under the earlier rate.

¶ 10–13

In proceedings concerning tariff adoption, other project developers sought recognition of the increased charges as a Change in Law event. The Commission rejected that claim, reasoning that grid connectivity and its associated costs were the developers’ responsibility.

¶ 18–24

NTPC REL appealed. It had not, however, raised its own claim for the increased charges before the Commission, and it had not given the notice contemplated by Article 12.3 of its PPA.

¶ 23, 25, 28

02Issues

i.1. Whether NTPC REL could raise for the first time on appeal a claim for compensation due to increased grid connectivity charges as a Change in Law event

¶ 25–27

ii.2. Whether NTPC REL’s failure to give notice under Article 12.3 of the PPA barred its Change in Law claim

¶ 28–31

iii.3. Whether the Commission’s reasoning that increased grid connectivity charges were for the developers’ account could be challenged by NTPC REL in this appeal

¶ 32

03Law Applied

A substantive claim that was not raised before the forum of original jurisdiction cannot ordinarily be raised for the first time on appeal.

¶ 25

Under Article 12.3.1 of the PPA, a developer seeking Change in Law relief “shall” notify SECI and the buying utility as soon as reasonably practicable, and no later than 60 days after the event; Article 12.3.2 requires details of the event and its effect on project cost, supported by documentary evidence.

¶ 28

The Tribunal distinguished M/s Parampujya Solar Energy Pvt. Ltd. v. CERC, Appeal No. 256 of 2019 & batch, where impleadment of the discom during the proceedings was treated as notice in the circumstances of that case.

¶ 30–31

The Tribunal did not decide the substantive merits of whether the increased charges constituted a Change in Law event for NTPC REL.

¶ 32

Provisions in the judgment · 1 · Linked ones open on LawLens

Electricity Act, 2003 Section 53

04Reasoning

NTPC REL had the opportunity to seek relief before the Commission but did not do so, despite participating in proceedings in which other developers raised the same issue. It therefore could not claim to be aggrieved by the Commission’s rejection of those developers’ claims or introduce its own claim for the first time on appeal.

¶ 25–27

Independently, Article 12.3 imposed a mandatory notice requirement, and NTPC REL had not notified SECI or the buying utility of its claim. M/s Parampujya Solar Energy did not assist NTPC REL because the circumstances there—particularly the later impleadment of the discom—were materially different.

¶ 28–31

Since NTPC REL had not raised the claim before the Commission, the Tribunal declined to decide the merits of the Commission’s allocation of grid connectivity costs.

¶ 32

05Holding

The Tribunal held that NTPC REL’s Change in Law claim was not maintainable because it had not been raised before the Commission and, in any event, the required PPA notice had not been given.

¶ 27–31

It found no merit in the appeal and dismissed it.

¶ 33

LawLens.APTEL

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