Jind Bio-Energy LLP & Anr vs Haryana Power Purchase Centre & Anr on 9 September 2026

J U D G M E N T

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. Both these cross appeals relate to the procurement of power from paddy straw-based biomass projects in Haryana pursuant to the Request for Proposal (RfP) issued by Haryana Renewable Energy Development Agency (in short “HREDA”) under the Renewable Energy Policy of the State. Since the issues involved in both the

appeals are integrally connected, we consider it appropriate to dispose of both these appeals vide this common judgement.

2. In appeal No. 348 of 2019, Appellants M/s Jind Bio-Energy LLP and M/s Fatehabad Bio-Energy LLP have laid challenge to the orders dated 3rd January, 2019 and 4th April, 2019 passed by Haryana Electricity Regulatory Commission in petition Nos. 45 of 2018 & 10 of 2019 respectively. In Appeal No. 95 of 2022, Haryana Power Purchase Centre (in short “HPPC”) has assailed order dated 15th January, 2019 passed by the Commission in Petition No. 31 of 2019. Description of parties

3. M/s Jind Bio-Energy LLP & M/s Fatehabad Bio-Energy LLP are the Appellant Nos. 1 & 2 respectively in Appeal No. 348 of 2019 and Respondent Nos. 2 & 3 respectively in Appeal No. 95 of 2022. It needs to be explained here that the two companies namely M/s Jyoti Renewable Energy Private Limited and M/s Srinivas Sanpla had submitted their bids in pursuance to RfP floated by HREDA for setting up of a paddy straw based power projects in Haryana and were allotted the projects with capacity of 9.9 MW each by the High Powered Committee in its meeting held on 11th January, 2018. Subsequently,

they requested for the implementation of the projects through their Special Purpose Vehicles (SPVs) namely M/s Jind Bio-Energy LLP and M/s Fetahabad Bio-Energy LLP, which was allowed.

4. Haryana Power Purchase Centre (“HPPC”), Respondent No. 1 in Appeal No. 348 of 2019 and Appellant in Appeal No. 95 of 2022 is a power procurement agency established for procuring electricity from various sources for the purpose of supply to the distribution licensees in the State of Haryana. HPPC represents the distribution licensees for the purpose of power purchases from various sources within and outside the State of Haryana.

5. Haryana Renewable Energy Development (“HAREDA”), Respondent No. 2 in Appeal No. 348 of 2019 and Respondent No. 6 in Appeal No. 95 of 2022 is the nodal agency to implement the various centrally and state sponsored schemes/projects in the area of renewable energy in the State of Haryana.

6. Hind Samachar Ltd. (“HSL”), Respondent No. 3 in Appeal No. 348 of 2019 and Respondent No. 4 in Appeal No. 95 of 2022 is a company formed under the provisions of the Companies Act, 2013,

which also had submitted its bid for setting up of the paddy straw based power project in Haryana.

7. M/s SAEL Kaithal Renewable Energy Private Ltd. (formerly M/s Sukhbir Agro Energy Ltd.), Respondent No. 4 in Appeal No. 348 of 2019 and Respondent No. 5 in Appeal No. 95 is a company formed under the provisions of the Companies Act, 2013, which also had submitted its bid for setting up of the paddy straw based power project in Haryana.

8. Haryana Electricity Regulatory Commission (“HERC” or “the Commission”), Respondent No. 5 in Appeal No. 348 of 2019 and Respondent No. 1 in Appeal No. 95 of 2022 is the State Electricity Regulatory Commission constituted under Section 82 of the Electricity Act, 2003. Background and Factual Matrix of the Case Appeal No. 348 of 2019

9. As already noted hereinabove, this appeal has been filed by M/s Jind Bio-Energy LLP and M/s Fatehabad Bio-Energy LLP assailing therein the orders dated 3rd January, 2019 and 4th April,

2019 passed by the Commission in petition Nos. 45 of 2018 & 10 of 2019 respectively.

10. Initially, in 2015, National Green Tribunal (“NGT”) in Application No. 118 of 2013 directed all states to promote the utilization of crop residue as raw material for power generation. The NGT further directed the States to devise an appropriate mechanism for collection, transportation and utilization of crop residue for appropriate purposes including power generation.

11. Thereafter, on 27.10.2016, in the Note of Approval pertaining to the Request for Proposal (RfP) was placed before the Government of Haryana, it was recorded that the tariff applicable for the relevant year would be adopted as the ceiling tariff for the purposes of bidding of the discount and any escalation due to fuel price would be permitted by HERC.

12. By the letter dated 23.11.2016, the Director of HAREDA, Government of Haryana, addressed a communication to the HPPC informing that the proposal for the promotion of biomass-based power projects had been approved by the Government of Haryana

and requested HPPC to furnish its comments on the RFP and the draft Power Purchase Agreement ("PPA").

13. Pursuant thereto, HPPC addressed a communication to the Director, HAREDA furnishing its comments on the RFP and draft PPA. HPPC further stated that the approval of the draft PPA should be obtained from HERC prior to the selection of bidders through the bidding process.

14. On 18.04.2017, the Central Electricity Regulatory Commission (“CERC”) issued the Renewable Energy Tariff Order for Financial Year 2017-18 in Petition No. 05/SM/2017 (Suo Moto), wherein it determined the levelised tariff for biomass-based power projects commissioned in 2017-18 for their useful life at Rs.10.13.

15. Vide communication dated 20.07.2017, HERC addressed a letter to the Director, HAREDA stating that the HERC was a part of the special dispensation and had approved the RFP floated by HAREDA. HERC further stated that the benchmark tariff would be the generic tariff determined by CERC or HERC.

16. By communication dated 21.07.2017, HERC requested HPPC to submit an action taken report regarding the biomass-based power projects proposed to be set-up in Haryana.

17. On 01.08.2017, HAREDA issued the RFP, which provided that the tariff would be determined by the HERC and that the ceiling tariff would solely be considered for the purposes of determining the discount.

18. Following the aforesaid, on 11.01.2018, the High Powered Committee, chaired by the Chief Secretary, Government of Haryana convened a meeting with the government officials and representatives of the bidders after the bidding for discount had been completed in accordance with the RFP issued by HAREDA.

19. On 19.04.2018, the developers namely M/s Hind Samachar Ltd., M/s Jind Bio-Energy LLP, M/s Sukhbir Agro Energy Ltd. And M/s Fatehabad Bio-Energy LLP executed a Memorandum of Understanding with HREDA for implementation of the project.

20. Thereafter, on 28.09.2018, HPPC filed Petition No. HERC/PRO 45 of 2018 before HERC seeking approval for signing of PPAs with the developers, namely, M/s Hind Samachar Ltd., M/s

Jind Bio-Energy LLP, M/s Sukhbir Agro Energy Ltd. and M/s Fatehabad Bio-Energy LLP, for the procurement of 49.8 MW of power from paddy straw biomass-based power projects @ tariff finalised by High Powered Committee of the Government of Haryana along with the grant of the financial assistance to DISCOMs.

21. The Petition was disposed of vide order dated 03/01/2019 thereby according approval to the PPAs to be signed by HPPC with the developers subject to the condition that tariff consented to by the developers shall not be revisited.

22. Subsequently, on 12.02.2019, M/s Jind Bio-Energy LLP and M/s Fatehabad Bio-Energy LLP filed an application, being Case No. HERC/PRO-10 of 2019 before HERC seeking clarification of the said order dated 03.01.2019.

23. In the meantime, while the application seeking clarification was pending before HERC, the Appellants contend that they were compelled by HPPC to execute the PPA dated 22.02.2019.

24. The clarification application was dismissed by the Commission vide order dated 4th April, 2019 thereby affirming that the ceiling tariff forming the basis of selection of developers shall be considered by

the Commission at the time of determination of tariff under Section 62 of the Electricity Act, 2003 and in no case the tariff over and above the ceiling limit shall be allowed.

25. Aggrieved by these findings of the State Commission, Appellants have preferred the present appeal.

Appeal No. 95 of 2022

26. On 14.06.2019, M/s Jind Bio-Energy LLP and M/s Fatehabad Bio-Energy LLP filed Petition No. HERC/PRO-31 of 2019 before HERC seeking directions to the Appellant to execute a fresh agreement incorporating modifications to the terms of the Agreement executed between the parties.

27. It appears that in the PPA dated 22.02.2019 executed between the developers and HPPC in pursuance to the order dated 3rd January, 2019 passed in above noted petition No. 25 of 2018, the definition of “Tariff” was given as under :- “Tariff” means year to year rate payable by the Discom @ tariff determined by HERC w.r.t. CoD of the project factoring the discount offered by the IPP as a part of the RfP for every kW of delivered energy at the metering point

subject to the ceiling tariff i.e. annual generic tariff of HERC for the year 2017-18 with appropriate factoring of the discount negotiated with the bidders as a part of the RfP.”

28. According to the developers namely M/s Jind Bio-Energy LLP & M/s Fatehabad Bio-Energy LLP, the said definition of tariff in the PPAs is not in consonance with the “Definition of Tariff” given in the approved PPAs which were approved by the Commission vide order dated 3rd January, 2019 and, therefore, fresh PPAs needs to be executed as per the directions given by the Commission in the said order dated 3rd January, 2019.

29. The abovementioned petition, Petition No. HERC/PRO-31 was disposed of by the State Commission by the Impugned Order dated 15.07.2019, whereby the parties were directed to modify the PPAs dated 22.02.2019 to bring those in tune with the order dated 03.01.2019.

30. Aggrieved by these findings of the State Commission requiring modification of the PPA, HPPC filed this present appeal before us. Our Analysis

Appeal No. 348 of 2019

31. A short question that arise for our consideration in Appeal No. 348 of 2019 is, “Whether the ceiling tariff used as a maximum rate for the purpose of discount in the bid process carried out by HREDA would also transform itself into the maximum cap limiting the power of the Commission in the tariff determination process for the bio-mass generators”.

32. Being mindful about the harmful impact caused by burning of paddy straw /wheat stubble in the fields and in order to encourage setting up of paddy straw based biomass power projects in pursuance to the directions issued by National Green Tribunal, New Delhi, HREDA issued Request for Proposal (RfP) in the month of August, 2017 inviting proposal for setting up of paddy straw based bio mass power projects of Build, Own and Operate (BOO) basis in the State of Haryana through e-tendering process in two bid system i.e. Technical Bid and Financial Bid. Initially, only six projects of 5MW to 15 MW capacity each were proposed to be set up in the Ambala, Karnal Kurukshetra, Jind, Kaithal and Fatehabad district of the State

on pilot basis such that the total aggregate capacity was about 50 MW.

33. As already noted hereinabove, M/s Jind Bio-Energy & M/s Fatebhabad Bio-Energy (Appellant Nos. 1 & 2 respectively in Appeal No. 348 of 2019) through their parent companies namely M/s Jyoti Renewable Energy Pvt. Limited and M/s Srinivas Sanpla respectively had submitted their bids in pursuance to the above noted RfP and were allotted the projects with capacity of 9.9 MW each by the High Powered Committee in its meeting held on 11th January, 2018.

34. Clause 1.6 of the RfP relates to the tariff on which the bids were to be submitted by the prospective bidders and is extracted hereinbelow :- “1.6 Tariff:

1.6.1 As per the HERC RE Regulations, the ceiling tariff applicable shall be the tariff notified by the Hon’ble Commission for the year in which the project is commissioned on year to year basis, for the entire life of the project. The tariff for sale of power from such projects under this bidding process will be on the basis of discount offered on the yearly

applicable ceiling tariff approved/notified for the same by the HERC in the year or their commissioning. The bidders should make suitable assumptions and estimations to arrive at such a projected tariff on their own depending on the projected year of commissioning of their project. The discount should be given in Indian Rupees only. In case, at the time of commissioning of project, the applicable tariff is not issued at the time of bidding, applicable tariff is not issued by HERC and tariff for the relevant period has been determined by CERC, then the applicable tariff shall be the tariff issued by CERC. 1.6.2 The tariff determined by the Commission shall be the ceiling tariff and depending on the RPO of the obligated entity in Haryana, as determined by the Commission, HAREDA may invite bids and evaluate the same on the basis of discounts offered by the bidders on the tariff determined by the Commission. Consequently the shortlisted bidder

will have to file a petition under Section 62 of the Electricity Act 2003 before the Hon’ble HERC for fixation of tariff for the allocated project and the discount offered shall be applicable on the tariff fixed by the Hon’ble Commission for the said project for the entire duration of PPA. Discoms/HPPC will sign PPA based on tariff discovered through above procedure. Therefore, the prospective bidders are required to offer their maximum discount on the annual generic tariff of HERC/CERC of the year 2017-18 which shall be considered as the ceiling tariff to arrive at the lowest tariff. In case, the generic tariff for paddy straw based projects is not issued by HERC seven days prior to the last date for submission of bids then the generic tariff notified by the CERC for paddy straw based power projects for Haryana State shall be taken as the ceiling tariff and the discount is to be offered on this tariff only. The bidder with

maximum discount for a district will be selected. In case of any bidder offering maximum discount in more than one district, it will be selected for the district where it has quoted maximum discount and further in case of same discount for two districts, the proposal for higher capacity will be selected for allotment. In case, two firms quote same discount, in same district, the firm with higher capacity will be selected and if still there is a tie, the decision of the competent authority will be final based on higher net worth. For every district, the second highest bidder will be placed on waiting list and in case the highest bidder fails to implement the project as per the schedule, the project may be allotted to the second highest bidder.” (Emphasis supplied)

35. As per clause 1.6.1, the “Ceiling Tariff” applicable shall be the tariff notified by the Haryana Commission for the year in which the project is commissioned and in case at the time of commissioning of

the project, the applicable tariff is not issued by the Haryana Commission, the tariff for the relevant period as determined by the Central Electricity Regulatory Commission (CERC) shall be the applicable tariff. Thus, the bidders were called upon to make suitable assumptions to arrive at such projected tariff depending on the projected year of the Commissioning of their project.

36. The second sentence of this clause 1.6.1. i.e. “the Tariff for sale of power from such projects under this bidding process will be on the basis of discount offered on the yearly applicable ceiling tariff approved/notified for the same by HERC in the year of their commissioning” clearly indicates that the tariff for sale of power from bio-mass generators will have to be determined on the basis of discounts offered by the selected bidders over the generic ceiling tariff approved by the Commission in the year of the commissioning of these power projects. It nowhere indicates that the ceiling tariff so determined by the Commission in the year of commissioning of these power projects, would be maximum cap for the tariff to be determined for these power projects during the entire duration of PPA and their tariff cannot go beyond the ceiling tariff. Manifestly, the generic tariff approved by the Commission in the year of commissioning of these

power projects was relevant only for the purpose of offering discount by the bidders and the same was not material at the time of determination of the tariff of these projects by the Commission under Section 62 of the Electricity Act, 2003 as envisaged under Clause 1.6.2 of the RFP.

37. Clause 1.6.2 provides that the short-listed bidder i.e. the bidder who emerges successful and to whom power project is allotted, shall have to approach the Commission for determination of tariff under Section 62 of the Electricity Act, 2003 and the discounts offered by that bidder in the bid shall be applicable on such tariff to be fixed by the Commission for the said project for entire duration of PPA.

38. Thus, the applicability of “Ceiling Tariff” flows from the RfS document itself which forms the foundational basis of the bidding process.

39. A conjoint reading of clauses 1.6.1 & 1.6.2 of the RfP envisages following steps for determination of tariff for a power project allotted to a successful bidder :- (a) The bidders had to take into account the annual generic tariff approved by the Haryana Commission in the year of

commissioning of the power projects, which was to be considered as the “Ceiling Tariff”; (b) The bidders were required to offer the maximum discount on such generic tariff – ceiling tariff;

(c) In case, generic tariff for paddy straw based projects had not been issued by the Commission seven days prior to the last date of submission of bids, the generic tariff notified by the Central Commission for such power projects for Haryana had to be taken as ceiling tariff and discount was to be offered on the same; (d) The bidders who would offer maximum discount for a district were to be selected; (e) The successful bidders were required to approach the Commission for fixation of tariff for the allocated project under Section 62 of the Electricity Act, 2003 and the discount offered by them was to be applicable on such tariff to be fixed by the Commission for the entire duration of the PPA.

40. The second sentence of Clause 1.6.2. of the RFP reads as “consequently the short listed bidder will have to file a petition under Section 62 of the Electricity Act, 2003 before the Hon’ble HERC for fixation of tariff for the allocated project and the discount offered shall be applicable on the tariff fixed by the Hon’ble Commission for the said project for the entire duration of the PPA” thereby making it manifest that the discount offered by the bidder at the time of bidding shall be applicable on the tariff fixed by the Commission for project of a bidder for the entire duration of the PPA. Therefore, what was to be applicable throughout the entire duration of the PPA is the “Discount” offered by the selected bidder and not the “Ceiling Tariff” on which such discount was offered by the bidder. The language used in this clause also nowhere indicates that the “Ceiling Tariff” which was to be considered by the bidders for offering discount while submitting the bid, would translate into upper cap/limit for the tariff to be determined by the Commission on yearly basis for such power project and the tariff so to be determined by the Commission would not go beyond such cap/limit.

41. Manifestly, a meaningful and purposeful reading of the Clause 1.6.1 & 1.6.2 of the RfP would reveal that no ceiling on the tariff to

be determined by the Commission under Section 62 of the Electricity Act, 2003 for such bio-mass power projects was intended and it was left to the Commission to determine the tariff for such projects on early basis without being influenced or without taking into consideration the “Ceiling Tariff” which was to be taken into account by the bidders while offering the discounts.

42. The stand taken by HREDA before the Commission as well as before this Tribunal also supports such interpretation of these clauses of the RfP. In the reply filed by HREDA to the appeal, it has been stated as under : “13. That it is submitted that:

a. The Power Purchase Agreement (PPA) should be as per the draft PPA attached with the Request for Proposals (RfP) document, which was approved by the Hon'ble Commission/HERC.

b. In the projects under consideration in the petition, only paddy straw is to be used as fuel as per orders of the HERC and thus variable cost on account of fuel cost is involved, which cannot be predicted for 20 years at the

time of preparation of the detailed project report/proposal. There are many factors like transport, manpower, demand etc., which may affect the cost of paddy straw in future and will escalate the variable cost.

c. So, as per the RfP, the tariff for sale of power from such projects under this bidding process was on the basis of the discount offered on the yearly applicable tariff to be approved/notified for the same by the HERC in the year of their commissioning and accordingly, the Power Purchase Agreement (PPA) needs to be amended to make projects viable and successful.” (Emphasis Supplied)

43. Thus, according to the HREDA also, the bio-mass power projects would not be viable or successful in case “Ceiling Tariff” is made applicable during the entire duration of the PPAs. For this reason, HREDA has stated in the reply that the PPA needs to be amended in order to make the projects viable and successful. In its reply filed before the Commission, the HREDA has very clearly stated as under :-

"So, as per the RfP, the tariff for sale of power from such projects under this bidding process was on the basis of discount offered on the yearly applicable ceiling tariff approved /notified for the same by Ld. HERC in the year of their commissioning, the ceiling tariff of Rs.8 per unit was mentioned only to select developers on the maximum on the tariff offered by them." (Emphasis supplied)

44. Therefore, it is clear beyond any doubt that the “Ceiling Tariff”, as per the RfP, was applicable only to select the bidders on the maximum discount on such tariff to be offered by them and the same was not applicable on the determination of the tariff by the Commission subsequently, as provided under Clause 1.6.2 of the RfP.

45. Since the bidding process was initiated by HREDA and the RfP was also issued by HREDA, its comments with regards to the above noted clauses of the RfP become very material and cannot be brushed aside. The principle of “Contemporanea Expositio” i.e. interpreting a statute or any other document by reference to the

exposition it has received from contemporary authority, is fully applicable to the instant case. Therefore, the interpretation sought to be given by the HREDA to the above noted clauses of the RfP nevertheless carry considerable weight and is persuasive. In this regard, we find it apt to rely upon the following paragraph in the judgement of the Hon’ble Supreme Court in Desh Bandhu Gupta & Co. v. Delhi Stock Exchange Association Ltd., 1979, 4 SCC 565;

9. It may be stated that it was not disputed before us that these two documents which came into existence almost simultaneously with the issuance of the notification could be looked at for finding out the true intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquidated. The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction (Maxwell 12th ed. P. 268). In Crawford on Statutory Construction (1940 ed.) in para 219 (at pp. 393-395) it has been stated that administrative construction (i.e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly

referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight; it is highly persuasive. In Baleshwar Bagarli v. Bhagirathi Dass the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha has been stated by Mookerjee, J. thus:

It is a well-settled principle of interpretation that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it… I do not suggest for a moment that such interpretation has by any means a controlling effect upon the courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a court would without hesitation refuse to follow such construction.”

46. Similarly, the Hon’ble Supreme Court in another judgement titled Afcons Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited & Anr. (2016) 16 SCC 818 has observed on this aspect as under :- "15. We may add that the owner or the employer of a project, having authored the tender documents, is the best

person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions . It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."

47. In the instant case, we do not find any factual error or legal infirmity in the interpretation sought to be given by HREDA to the above noted “RfP” clauses and therefore, we concur with the same. We do not find any reason to take a different view than what is canvased by HREDA on the aspect of the applicability of “Ceiling Tariff”.

48. We may note that the Commission vide its order dated 13th November, 2025 passed in petition No. 44 of 2025 has fixed the levelized tariff for M/s Jind Bio-Energy LLP at Rs.9.96 per unit for the entire life of the project but has applied a ceiling of Rs.8 per unit. The

levelized tariff for M/s Fatehabad Bio-Energy LLP has been fixed at Rs.10.50 per unit by the Commission vide separate order dated 20th November, 2025 passed in Petition Nos. 45 & 35 for the entire life of project but the ceiling of Rs.8 per unit has been applied. Therefore, it is manifest that the Commission itself has determined the tariff which is higher than the ceiling tariff of Rs.8 per unit which has been applied to the projects of these two appellants.

49. We may also note that as there was no generic tariff determined for paddy straw based projects issued by the Haryana Commission, the bidding was done on the basis of the tariff issued in this regard by the Central Electricity Regulatory Commission. Accordingly, the ceiling tariff of Rs.8 per unit was taken from the CERC Renewable Energy tariff order dated 18th April, 2017 applicable for the Financial Year 2017-18.

50. In case, the ceiling of Rs.8 per unit is considered as the “Ceiling Tariff” irrespective of the tariff determined each year by the Commission under Section 62 of the Electricity Act, 2003 in terms of Clause 1.6.2 of the RfP, the entire basis of the RfP would be changed for the reason that the ceiling tariff has been taken from the CERC order dated 18th April, 2017 which was the basis of bidding at

levelized tariff. It needs no mention that the variable cost of generation of power may vary which has to be considered on actual basis minus the discount offered by the bidder, without which the entire project will be unviable. In case the intention was to make the “Ceiling Tariff”, upon which bidders were supposed to offer discount, applicable for the entire duration of the PPA then levelized tariff would have been chosen for offering the discount as opposed to the first year tariff. We may note that the tariff determined by Central Commission vide order dated 18th April, 2017 for the Financial Year 2017-18 was chosen for the bid since no other data was available at the time of bidding. It is evident that none of these projects would have been commissioned earlier than 24 months from the date of signing of PPA i.e. in the year 2021-22 and, therefore none of them would be successful and profitable on the basis of tariff that was determined five years prior to the date of their commissioning.

51. It was argued on behalf of the HPPC that the tariff framework based on “Ceiling Tariff” and the discount mechanism as per the RfP document was accepted by the generators including the Appellants herein by executing PPAs dated 22nd February, 2019 and, therefore, once a PPA is executed on the basis of tariff approved by the

Commission, its terms cannot be re-written to create a new bargain. The argument has been noted only to be rejected. The PPAs executed between the Appellants and the HPPC do not specify any tariff payable by HPPC. Clause 38 of Article 1 of the PPA defines “Tariff” as the rate payable by the discom as approved by HERC for every kWh of delivered energy at the metering point. Article 3.3 of the PPA provides that the seller shall raise invoices on the HPPC for the energy sold by the seller to HPPC as per the tariff described in Article 2.1.2. As per Article 2.1.2, no additional payment on any account of whatsoever shall be payable by the HPPC except those approved by the appropriate Commission/Court of Law. Therefore, whether the Appellants are entitled to the tariff actually determined by the Commission under Section 62 of the Electricity Act, 2003 without any cap/limit of “Ceiling Tariff” upon which discount was offered by them in the bid process, has to be determined only in terms of the relevant clauses of the RfP which have been discussed and analyzed hereinabove. It is manifest that in holding that the cap of “Ceiling Tariff” would not be applicable on the yearly tariff to be determined by the Commission under Section 62 of the Electricity Act, 2003 of the bio-mass power project, we will not be re-writing any new bargain for

the parties de hors the provision of the RfP and the same would be absolutely in consonance with the provisions of the PPA which take colour from the provisions of the RfP document.

52. Hence, we are unable to countenance the findings of the Commission in the impugned order that the “Ceiling Tariff” forming the basis of selection of developers cannot be different than the ceiling tariff to be considered by the Commission while determination of tariff for such power projects on the petitions to be filed by successful bidders. We, therefore, hold that the Commission, while determining tariff for such projects on yearly basis, cannot apply any cap/limit and the tariff so determined may go above the “Ceiling Tariff” on the basis of which discounts were offered by the selected bidders. Appeal No. 95 of 2022

53. Assail, in this appeal, is to the order dated 15th July, 2019 passed by the Haryana Commission in petition No. 31 of 2019 thereby directing the parties to modify the PPA signed on 22nd February, 2019.

54. It appears that in the PPA dated 22.02.2019 executed between the developers and HPPC in pursuance to the order dated 3rd

January, 2019 passed in above noted petition No. 25 of 2018, the definition of “Tariff” was given as under :- “Tariff” means year to year rate payable by the Discom @ tariff determined by HERC w.r.t. CoD of the project factoring the discount offered by the IPP as a part of the RfP for every kW of delivered energy at the metering point subject to the ceiling tariff i.e. annual generic tariff of HERC for the year 2017-18 with appropriate factoring of the discount negotiated with the bidders as a part of the RfP.” (Emphasis supplied)

55. In the petition filed by the power generators M/s Jind Bio- Energy LLP & M/s Fatehabad Bio-Energy LLP, it was contended that the expression “subject to Ceiling Tariff i.e. annual general tariff of HERC in the year 2017-18” in the above stated definition of “Tariff” had been included by HPPC contrary to the order dated 3rd January, 2019 of the Commission passed in case No. 25 of 2018 vide which the draft PPA was approved by the Commission.

56. Upon comparing the definition of the term “Tariff” in the draft PPA approved by the Commission vide order dated 3rd January, 2019

and in the PPA executed between the parties on 22nd January, 2019, the Commission observed that HPPC has deviated from the definition of term “Tariff” as approved in the order dated 3rd January, 2019 and, therefore, the PPA dated 22nd January, 2019 executed between the parties is not as per the approved PPA. Accordingly, the Commission directed the parties to modify the said PPA.

57. It is argued on behalf of the HPPC that the Commission erred in ignoring that the power generators did not object to said definition of “Tariff” in the PPA dated 22nd February 2019 at the time of signing of the PPA duly executed with free-will and consent. Therefore, the objection raised before the Commission by them to said definition of term “Tariff” was an after thought. It is submitted that the Commission has ignored the basic fact that PPA is a contract which has legal sanctity and unless its terms are held illegal, the same cannot be reopened by the Commission after the same has been validly executed between the parties.

58. These arguments are devoid of any substance. It is a settled legal principle that a PPA becomes effective only upon approval by the Regulatory Commission even though it may have been signed by the parties much earlier. Similarly, a PPA executed by the parties subsequent to the approval of draft PPA by Commission must, in all

respects, be in tune with the approved draft PPA. Any deviation therefrom, even if minor, would render the same otiose and inapplicable.

59. In the instant case, paragraph 11(ii) of the order dated 3rd January, 2019 passed by the Commission in Petition No. 45 of 2018 vide which the draft PPA was approved by the Commission is relevant and is extracted hereinbelow :- “ii) The Commission has perused the draft PPAs for four paddy straw based power projects submitted for its approval. The Commission has noticed a few aberrations in the same as under:-

a) The definition of Tariff needs to be changed to read that the tariff payable to the IPP shall be the year to year tariff determined by the Commission w.r.t. CoD of the project and the discount offered by the IPPs as part of the RFP shall be deducted from the year to year tariff determined by the Commission.”

60. It is, therefore, evident that the Commission, in the said order, had clearly observed that the tariff payable to the power generators shall be the year to year tariff determined by the Commission with respect to COD of the projects and the discount offered by the IPPs as part of the RfP shall be deducted from the year to year tariff

determined by the Commission. Thus, patently, the definition “Tariff” in the PPAs dated 22nd February, 2019 executed between the parties is not in consonance with the definition of “Tariff” given in the approval order dated 3rd January, 2019 of the Commission. The Commission has rightly observed that in defining the terms “Tariff” in the PPAs dated 22nd February, 2009, HPPC has deviated from what was observed and held by the Commission in the PPA approval dated 3rd January, 2019. Therefore, no error or infirmity can be found in the impugned order of the Commission directing the parties to modify the PPA dated 22nd February, 2019 to bring it in tune with the said approval order.

61. Accordingly, we do not find any merit in the appeal filed by HPPC.

Conclusion

62. In the light of the above discussion, we allow the Appeal No. 348 of 2019 holding that the Commission, while determining tariff for the power projects of the Appellants on yearly basis cannot apply any cap/limit and the tariff so determined may go above the “Ceiling Tariff” on the basis of which discounts were offered by the selected bidders. At the same time, we do not find any error or infirmity in the order dated 13th July, 2019 passed by the Commission, which has been impugned in Appeal No. 95 of 2022 and accordingly, said appeal is hereby dismissed. Pronounced in the open court on this 9th day of September, 2026.

(Virender Bhat)

(Seema Gupta)

Judicial Member

Technical Member

✓ REPORTABLE / NON REPORTABLE

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