Appellate Tribunal For Electricity
M/S Jsw Hydro Energy Limited vs Secretary Himachal Pradesh ... on 9 March, 2026
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL NO.327 OF 2021 & IA No.1237 OF 2025
Dated : 09.03.2026
Present: Hon'ble Ms. Seema Gupta, Officiating Chairperson
Hon'ble Mr. Virender Bhat, Judicial Member
In the matter of:
M/s JSW Hydro Energy Limited
Karcham Wangtoo, H.E. Project,
Shollu Colony, Post Office Tapri - 172104
Distt. Kinnaur (HP)
Also at
M/s JSW Hydro Energy Limited
4th Floor, NTH Complex,
Shaheed Jeet Singh Marg,
Qutub Institutional Area,
New Delhi - 110067
Email : [email protected] ... Appellant
Versus
1. Secretary
Himachal Pradesh Electricity Regulatory Commission
Vidyut Aayog Bhawan, Block No. 37,
SDA Complex, Kasumpti, Shimla - 171009,
Himachal Pradesh
Email: [email protected]
2. Chief Engineer (System Operations)
Himachal Pradesh State Electricity Board
Vidyut Bhawan, Shimla - 171004
Himachal Pradesh
_________________________________________________________________________________
Appeal No.327 of 2021 Page 1 of 9
Email: [email protected];
[email protected] ... Respondent (s)
Counsel on record for the Appellant(s) : Aman Anand
Aman Dixit
Abhimanyu Maheshwari
Counsel on record for the Respondent(s) : Anand K. Ganesan
Swapna Seshadri
Amal Nair for Res. 2
JUDGMENT
PER HON'BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. The appellant is aggrieved by the order dated 28.09.2021 passed by 1st respondent Himachal Pradesh Electricity Regulatory Commission (hereinafter referred to as the Commission) in appellant's petition no.10 of 2021 wherein the appellant had sought declaration that notifications dated 16.07.2005 and 09.09.2005 issued by Department of Pollution Control, Government of Himachal Pradesh read with order dated 07.09.2020 passed by Nation Green Tribunal (NGT) in OA no.425/2019 which enhanced the minimum water discharge obligation from existing 5 cusecs (0.14 cumecs) to 15% of the minimum inflow observed in lean season (~0.72 cumecs), constitutes change in law event.
2. The Commission had framed following two issues for its determination:
_________________________________________________________________________________ Appeal No.327 of 2021 Page 2 of 9 "(1) Whether, there is increase in the minimum discharge obligation of the project, as a result of a change in Law?
(2) Whether the Petitioner is entitled to claim revision of the energy charges for the Project on account of increase in mandatory release of 0.14 cumecs, as a result of change in Law?"
3. On issue no.1, the Commission in the above noted impugned order held that the amendments/modifications pertaining to the requirement of minimum water discharge of 15% instead of discharge of 5 cusecs squarely falls under the definition of change in law in terms of clause 20.21(b)(ii) of the Power Purchase Agreement (PPA) executed between the parties. However, the Commission decided the issue no.2 against the appellant holding that the increase in minimum water discharge obligation has not resulted in any increase in cost as the actual generation was much in excess of the design energy from January, 2021, thus, there being no reduction in design energy generation of the project as given in the PPA. Accordingly, the Commission denied the consequential relief of adjustment in tariff to the appellant.
4. The case of the appellant is that considering the increase in the minimum discharge obligation, the net saleable design energy ought to have been _________________________________________________________________________________ Appeal No.327 of 2021 Page 3 of 9 considered by the Commission as 1028 MUs for calculation of energy charges with effect from January, 2021 in place of 1213.18 MUs as set out in the PPA.
5. We have heard learned counsels appearing for the appellant and the 2nd respondent and have gone through the impugned order. We have also perused the written submissions filed by the learned counsels.
6. During the course of arguments by the learned counsels, it came out that while determining the tariff for the appellant's power project (i.e. Baspa-II 300MW hydroelectric project) for the 5th control period (Financial Year 2024-25 to Financial Year 2028-29), the Commission vide order dated 12.06.2024 in petition no.27/2024, inter alia, directed the Directorate of Energy, Government of Himachal Pradesh to constitute a committee of experts familiar with the subject matter (hydrology and hydropower) to analyze the hydrological data and based on such analysis, to compute the design energy of the appellant's power project with further direction that the Directorate of Energy, Government of Himachal Pradesh would review the design energy of appellant's power project on the basis of the report of the said committee.
7. Feeling aggrieved by these directions given by the Commission in the said order dated 12.06.2024, the appellant filed writ petition bearing Writ Petition(C) No.13925 of 2024 in the High Court seeking setting aside of these directions _________________________________________________________________________________ Appeal No.327 of 2021 Page 4 of 9 and withdrawal of the letters dated 05.08.2024 and 14.08.2024 issued by the Directorate of Energy, Government of Himachal Pradesh in pursuance to these directions. The writ petition was disposed off by the High Court vide judgment dated 02.12.2024 without going into the merits of the case while affording liberty to the appellant to file a representation before the Commission within a period of four weeks which was to be decided by the Commission within a period of three months after hearing the parties.
8. Accordingly, the appellant submitted a representation before the Commission on 03.01.2025 which was heard and decided by the Commission vide order dated 01.04.2025 holding that since the design energy had been fixed by Central Electricity Authority (CEA), the CEA alone is competent to revise the design energy based on the hydrological data and the energy generated over and above the design energy by the project. Thus, the Commission opined that the hydrology and design energy need to be reassessed by CEA instead of Department of Energy. Accordingly, Para 4.59 of the order dated 12.06.2024 was modified, which, after modification reads as under: -
"4.59 From the above Table, it has been quite evident that the Baspa HEP has generated more energy than the design energy for the seventeen (17) years out of the last twenty (20) years. Also, it can be seen that the lesser energy generation to that of the design energy was only for the initial _________________________________________________________________________________ Appeal No.327 of 2021 Page 5 of 9 three years of the operation of the Plant. From the year 2006-07 onwards, there has not been even a single year when the actual generation has been less than the design energy. This clearly shows that hydrological series computed for generation of energy needs review. The Applicant has not disputed the energy generation as contained in Table No. 23, as discussed above. The Project cost is about Rs. 1600 Crore, as evident from the Representation. The TEC has been accorded by the CEA, therefore, the Commission is of the firm view that the design energy of the Plant needs to be studied by the CEA based on the latest details/data available. Therefore, the Commission hereby directs the CEA to constitute a Committee of experts familiar with the subject matter (hydrology and hydropower) for the purpose which shall analyse the hydrological data and based on such analysis, compute the design energy generation from the Project. This Committee shall submit its report, within three months from today i.e. 01.04.2025 to the CEA with a copy to the Commission. The CEA based on the recommendations in report of the said Committee shall review the design energy of the Baspa-II HEP taking into consideration the Energy Generation (based on monthly billing to the HPSEBL) as contained in Para 4.58 of the order dated 12.06.2024 in Petition No. 27 of 2024. A copy of the order dated 12.06.2024 be sent to the CEA alongwith the reference. The _________________________________________________________________________________ Appeal No.327 of 2021 Page 6 of 9 CEA is further directed to submit the report to the Commission within a period of three months."
9. Thus, the Commission has directed the reassessment of the design energy of the appellant's power project by CEA albeit with regards to tariff cycle i.e. FY 2024 to FY 2029.
10. It was submitted by learned counsel for the appellant that since the matter for reassessment of design energy of the project based on past hydrological data and performance is already pending before the CEA in terms of the above noted order dated 01.04.2025 of the Commission, the CEA may be directed to compute the impact of change in law in the design energy and the net saleable energy with effect from January, 2021 also.
11. On behalf of the respondent no.2 also it was submitted by the learned counsel that the parties are free to approach CEA for revision in design energy of the power project and such revision, if any, will be considered by the Commission for revision of primary energy charges subject to prudence check.
12. Taking note of the aforementioned development that has taken place after the filing of the instant appeal and having regard to the above noted submissions of the learned counsels for the parties, we feel of the opinion that this matter should also be referred to the committee constituted by CEA in pursuance to the _________________________________________________________________________________ Appeal No.327 of 2021 Page 7 of 9 order dated 01.04.2025 of the Commission with the direction to compute the impact of change in law event on the design energy and net saleable energy of the appellant's power project with effect from January 2021 also upon analysis of the past hydrological data.
13. Hence, we set aside the impugned order of the Commission qua issue no.2 and direct the committee constituted by CEA in pursuance to the order dated 01.04.2025 of the Commission to analyze the past hydrological data and on the basis of such analysis, to compute the impact of change in law on the design energy and the net saleable energy of the appellant's power project with effect from January, 2021 also. The committee shall submit its report now to CEA within three months from the receipt of this order with a copy to the Commission. Thereafter, the Commission shall determine the consequential relief of adjustment in tariff, if any, to be granted to the appellant with effect from January, 2021.
14. The Registry is directed to send copy of this judgment to CEA for forthwith compliance.
15. The Directorate of Energy, Government of Himachal Pradesh is directed to send complete record to the CEA along with primary and secondary energy generation and year-wise rates for the same within 15 days from the date of this _________________________________________________________________________________ Appeal No.327 of 2021 Page 8 of 9 order. The Department shall also make available to CEA any other data required by it.
16. The appeal along with pending application stands disposed off in these terms.
Pronounced in the open court on this the 09th day of March, 2026.
(Virender Bhat) (Seema Gupta)
Judicial Member Officiating Chairperson
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REPORTABLE / NON-REPORTABLE
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