Rama Shanker Awasthi vs Uttar Pradesh State Electricity Regulatory Commission & Ors on 2 September 2026

J U D G M E N T

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The appellant, a consumer in the State of Uttar Pradesh, has assailed the order dated 27.01.2022 passed by the 1st respondent Uttar Pradesh Electricity Regulatory Commission (hereinafter referred to as “the Commission”) whereby the Commission dismissed the review petition filed by the appellant seeking review of tariff order dated 07.10.2008 vide which the Commission had approved the capital cost of the power project of the 2nd respondent M/s Jaiprakash Power Ventures Limited and had determined tariff for the same.

2. Facts of the case, briefly stated, are that the 2nd respondent developed and commissioned a run of the river underground hydroelectric power project with an installed capacity of 400MW (4x100MW) located across river Alaknanda in district Chamoli in the State of Uttarakhand. A Power Purchase Agreement (PPA) dated 16.01.2007 was executed between the 2nd respondent and the 3rd respondent Uttar Pradesh Power Corporation Limited (UPPCL) for the sale of the entire power from the project, which was approved by the Commission. Thereafter, the 2nd respondent filed petition no.443/2007 seeking approval of capital cost to the tune of Rs.1682.72

crores as on the Commercial Operation Date (COD) of the project, which was duly approved by the Commission vide order dated 05.04.2007 read with order dated 12.04.2007.

3. Subsequently, the 2nd respondent filed Petition No.550/2008 seeking approval of Rs.1715.58 crores as capital cost of the power project and determination of tariff based on the same. The petition was disposed of by the Commission vide order dated 07.10.2008 thereby granting reliefs as sought by the 2nd respondent with further directions to the 3rd respondent UPPCL to continue making payments to 2nd respondent based on PPA dated 16.01.2007 as well as relevant orders of the Commission.

4. In the year 2021, the appellant approached the Commission with petition no.1702/2021 under Section 94(1)(f) of the Electricity Act, 2003 read with Regulation 51 of Uttar Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 2019 for review of the said order dated 07.10.2008 passed in petition no.550/2008. The review petition has been rejected by the Commission vide impugned order dated 27.01.2022, which has been assailed in the instant appeal.

5. We have heard Mr. Anand K. Ganesan, learned counsel for the appellant, Mr. B.P. Patil, learned senior counsel appearing for the 2nd

respondent and Mr. Aditya K. Singh, learned counsel for the 3rd respondent. We have also perused the written submissions filed by the learned counsels.

6. On being questioned as to how the instant appeal is maintainable as having been filed against an order rejecting the review petition, the learned counsel for the appellant argued that the appellant’s petition before the Commission was, in substance, a petition for invocation of plenary statutory powers of the Commission to determine tariff under Section 62(1)(a) and 86(1)(a) & (b) of the Electricity Act, 2003. It is his submission that the appellant’s petition before the Commission was not actually a petition for review of the tariff order dated 07.10.2008, and therefore, the Commission has erred in applying the standards applicable to petitions filed under Order XLVII Rule 1 of the Civil Procedure Code. He would argue that revision of tariff is distinct from review of tariff order and since the tariff determination is a continuous process, the Commission is empowered to amend or alter the tariff order whenever circumstances so warrant, either suo motu or upon an application by any concerned person/entity. He submitted that the Commission ought to have exercised its jurisdiction in public interest for determination of correct tariff for the sale of power to the distribution licensee i.e. the 3rd respondent.

7. We do not feel convinced with these submissions made by the learned counsel for the appellant as these are not only devoid of any merit but also are not borne out from the record.

8. The petition filed by the appellant before the Commission was captioned as: - “IN THE MATTER OF: Petition under Section 94(1)(f) of the Electricity Act, 2003 read with Regulation 51 of the Uttar Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 2019 for review of the order dated 07.10.2008 passed by the Hon’ble Commission in Petition no.550/2008.” (Emphasis supplied)

9. Section 94(1)(f) empowers a State Regulatory Commission to review its decisions, directions, and orders. It is a power conferred upon the Commission akin to power of review available to the civil courts under Order XLVII Rule 1 of the Code of Civil Procedures 1908. Therefore, manifestly the appellant’s petition before the Commission was for review of the tariff order dated 07.10.2008 and not for revision or alteration of the tariff. Further, the prayers made in the petition are also important to note and are extracted hereinbelow: -

“a) admit the present Review Petition after condoning the delay, if any;

b) review the Impugned Order dated 07.10.2008 to the extent that it violates this Commission's own regulations, as enacted from time to time, by allowing JPVL to charge and recover from UPPCL such rates for the sale of electricity from the Project that are computed without the approval of this Commission.

c) Initiate a fresh scrutiny and tariff determination exercise in respect of JPVL by giving effect to the generation tariff regulations of this Hon'ble Commission from 2009 onwards, to examine whether the rates being charged since 01.04.2009 for sale of electricity by JPVL are in accordance with the parameters prescribed by the generation tariff regulations as enacted by this Commission, from time to time;

d) In view of the prayer (c) above, direct JPVL to refund all excess recoveries, that are not in consonance with the parameters prescribed by the Regulations of this Commission since 01.04.2009 till date, to UPPCL along with 18% interest.

e) Direct JPVL to file a fresh application for determination of tariff in terms of the Commission's 2019 generation Tariff Regulations for sale of power from its Project to UPPCL.”

(Emphasis supplied)

10. Prayer (a) and (b) clearly indicate that the petition was for review of the order dated 07.10.2008. Prayers (c) and (d) are ancillary to the prayers (a) and (b) and would have kicked in only in case the Commission made up its mind to review the order dated 07.10.2008 by granting the prayers (a) and (b). Therefore, the prayers made before the Commission were effectively for review of the tariff order dated 07.10.2008.

11. Learned counsel for the appellant has failed to point out anything from the record to show or suggest that the appellant had approached the Commission for tariff revision and not for review of the tariff order dated 07.10.20008. In fact, the appellant had begun its submissions before the Commission, as noted in the impugned order, by stating that the impugned tariff order is erroneous on the face of record as the same was passed in violation of 2004 Tariff Regulations which constitutes an error apparent on the face of record. The grounds raised by the appellant in its petition before the Commission have been noted in Paragraph nos.4 to 12 of the impugned order. Paragraph nos.11 and 12 are material on the aspect under consideration and are extracted hereinbelow: - “Jurisdiction of this Commission

11. In terms of Section 94(1)(f) of the Act, this Commission has the power to review its own orders/ decisions. Further,

in terms of Regulation 51(a) of the CBR, 2019, this Hon'ble Commission has the requisite power to review its own orders. The Regulation 51, in relevant part, has been extracted below:

"51. Review of the decisions, directions, and orders: a. Any person aggrieved by a direction, decision or order of the Commission, from which (i) no appeal has been preferred or (ii) from which no appeal is allowed, may file a review, subject to provisions of Civil Procedure Code, within ninety (90) days of the date of the direction, decision or order, as the case may be to the Commission."

12. The invocation of the power of review of this Hon'ble Commission is not contingent upon the party who seeks such invocation. In other words, there is no bar in respect of who can approach this Hon'ble Commission seeking a review of its own orders that have been envisaged in the aforementioned provisions. This principle is clearly borne out of the terms used in Regulation 51 itself, which states that "Any person aggrieved by a direction, decision or order of the Commission,..... may file a review." It is clear that this could be any person who is aggrieved and is not limited, in any manner, to such a person being a generating company, a licensee, or being parties to the main dispute.” (Emphasis supplied)

12. It is limpid from perusal of these two paragraphs of the impugned order that the appellant had actually approached the Commission for seeking review of the tariff order dated 07.10.2008 in terms of Section 94(1)(f) of the Act read with Regulation 51(a) of UPERC(Conduct of Business) Regulations, 2019. It is nowhere the case of the appellant that the contents of these Paragraphs of the impugned order are false and incorrect. Therefore, it does not lie in the mouth of the appellant to contend before this Tribunal that the petition filed by the appellant before the Commission was actually for revision of tariff and not for review of the tariff order dated 07.10.2008.

13. We may also note that on the basis of the contentions raised in the petition by the appellant, following two issues were framed by the Commission for its consideration: - “17. The Commission has framed the following issues for deciding the admissibility / maintainability of the Review Petition and has dealt in the succeeding paras below:

Issue I: Whether the Review Petition is barred by Limitation Issue II: Whether there is any error apparent on the face of the record i.e., the Commission's order dated 07.10.2008 in Petition No. 550 of 2008.”

14. The appellant has nowhere raised any grievance with regards to formulation of these two issues by the Commission for its consideration.

15. Considering the tone and tenor of the averments made by the appellant in its petition before the Commission and the submissions made on his behalf during the hearing of the petition before the Commission, there does not remain any iota of doubt with regards to the fact that petition filed by the appellant was actually for review of the tariff order dated 07.10.2008 and not for revision of tariff. As already noted hereinabove, the petition has been rejected by the Commission vide impugned order dated 27.01.2022. Since Rule 7 of Order XLVII of the Code of Civil Procedure, 1908 bars filing of appeal against an order rejecting the review petition, the instant appeal is clearly not maintainable and liable to be dismissed forthwith.

16. Accordingly, the appeal is hereby dismissed as being not maintainable. All pending applications, if any, also stand disposed of accordingly.

Pronounced in the open court on this the 02nd day of September, 2026.

(Virender Bhat) Judicial Member

(Seema Gupta) Technical Member (Electricity)

REPORTABLE / NON-REPORTABLE

tp