DCM TEXTILES vs DAKSHIN HARYANA BIJLI VITRAN NIGAM LIMITED & Ors on 13 January 2026

JUDGEMENT

PER HON’BLE MRS. SEEMA GUPTA, TECHNICAL MEMBER (ELECTRICITY)

1. Appeal No. 237 of 2019 has been filed by M/s DCM Textiles, a Unit of DCM Nouvelle Limited challenging the order dated 22.04.2019 in Case No. HERC/PRO-51 of 2017 passed by the Haryana Electricity Regulatory Commission.

2. Appeal No. 368 of 2022 has been filed by Haryana Vidyut Prasaran Nigam Limited, challenging the order dated 22.04.2019 in Case No. HERC/PRO-51 of

2017 (hereinafter referred as “Impugned Order”) passed by the Haryana Electricity Regulatory Commission.

3. Since these two appeals are cross appeals against the same order and are integrally connected, these are being disposed of by this Common Judgement.

4. For the sake of convenience, the description of the parties is given here under as per appeal No.237 of 2019. Description of Parties (Appeal No.237 of 2019)

5. The Appellant, M/s DCM ( Referred as Appellant – DCM) Textiles is a Large Industrial Consumer of Dakshin Haryana Bijli Vitran Nigam Limited, the Respondent No 1.

6. Dakshin Haryana Bijli Vitran Nigam Limited, (hereinafter referred as “DHBVN/ Respondent No 1) is a Haryana Government owned electricity distribution company that supplies electricity to several districts of South Haryana. Respondent No.2 - Haryana Vidyut Prasaran Nigam Limited (hereinafter referred as “HVPNL/ Appellant – HVPNL (in Appeal No 368 of 2022)/Respondent No.2 is the State’s Power transmission utility of Haryana State, responsible for operating and maintaining Haryana’s intra-State electricity transmission system and Respondent No.3 is the Haryana Electricity Regulatory Commission (hereinafter referred as “State Commission/ HERC).

Factual matrix of the Appeals

7. Appellant-DCM ( Appeal 237 of 2019 ) requested for increase of contract demand from 12500 KVA to 15050 KVA on 132 KV Level independent Feeder from DHBVN, and HERC, vide its order dated 17.04.2025, accorded the approval for extension of the contract demand and change of feeder from 33 kV to 132 kV, subject to the condition that appellant shall bear the cost in terms of Haryana Electricity Regulatory Commission (Duty to Supply Electricity on request, Power to recover to expenditure incurred in providing supply and Power to require security) Regulations, 2005 ( “Supply Regulation 2005”) and subsequent amendments thereof or its re-enactment. HVPNL - Respondent No.2 agreed to supply the same from Beer Hisar at 132 KV Level through independent feeder vide letter dated 04.05.2016. The new Regulations “Haryana Electricity Regulatory Commission (Duty to Supply Electricity on request, Power to recover expenditure incurred in providing supply and power to require security) Regulations, 2016 ( “Supply Regulation 2016”) came into force on 11.07.2016 The Appellant-DCM filed a Petition before HERC for application of “Supply Regulation 2016” with regard to bearing of the cost of augmentation of 132 KV Line from Beer Sub-Station, Hisar to Industrial Area 220 KV Sub-Station, Hisar. During the pendency of this petition before the HERC, the HVPNL-Respondent No.2, vide letter dated 20.07.2018 submitted calculations in respect of the cost payable by the Appellant-DCM to the Respondent No 1, with a copy marked to Appellant-DCM, which included the cost of the transformer to be installed at 220 kV Industrial Area Hisar substation. In addition, Respondent No 2 also demanded supervision charges from the Appellant, which were paid by the Appellant on 23.08.2018 under protest.

8. The State Commission, passed the order on 22.04.2019, Impugned in the appeals and held that since application for enhancement of the contract demand

was submitted by the Appellant on 27.05.2014, the Supply Regulation 2016 shall not be applicable and held that Appellant is liable to bear proportionate cost of augmentation of power transfer capacity 50 MVA to 100 MVA at 220 KV Industrial Area ( IA) Hissar Sub-station and of replacement of conductor of one 132 kV ckt between 220kV IA Hissar substation to – 132 KV Beer substation. Appellant- DCM is aggrieved by the finding in the Impugned Order that “Supply Regulation 2005” shall be applicable, while undisputedly demand was raised by Respondent subsequent to “Supply Regulation 2016” came in force and liability affixed on the Appellant to bear proportionate cost of augmentation of transformer at 220 kV IA Hissar substation and of conductor of 132 kV Line between 220 kV IA Hissar substation and 132 kV Beer substation and accordingly filed Appeal No 237 of 2019.

9. Appellant – HVPNL ( in Appeal 368 of 2022 ) is aggrieved by the Impugned Order with regard to sharing of only proportionate cost of conductor of 132 kV line between 220 kV IA Hissar substation and 132 kV Beer substation by the DCM, while DCM has undertaken to bear entire cost of such replacement of conductor and accordingly filed Appeal No 368 of 2022. DISCUSSION AND ANALYSIS

10. We have heard Mr. Fanish K. Jain, learned counsel on behalf of Appellant –DCM, Ms Nikita Choukse learned counsel on behalf of Appellant -HVPNL . We have also perused the impugned order, the documents placed on record, and the written submissions filed by the learned counsels on behalf of Appellant, and Respondent - HVPNL.

11. Schematic Diagram of arrangement for supply of Power to DCM Hissar is as given below:

Single Line Diagram/ Connectivity of the infrastructure for providing supply to DCM HISA

12. The main issue which emerges for consideration is the applicability of proportionate cost of augmentation of Transformer at 220 KV Industrial Area (IA) Hissar substation and the proportionate cost of replacement of conductor on 132 kV line between 220 kV IA Hissar substation and 132 kV Beer substation on Appellant – DCM for enhancement of its contract demand from 12.5 MVA to 15.05 MVA at 132 kV.

13. It is an admitted fact that Appellant - DCM, having contract demand of 12.50 MVA was getting supply at 33 kV HTM, Hissar substation within its premise, which 220 kV Industrial Area HISSAR Substation 132 kV ARYA NAGAR Substation 132 KV BEER Substation 132 KV DCM HISSAR Substation

in turn was getting supply from 220 kV BBMB Hissar substation through 33 kV Line. Appellant-DCM vide its application dated 27.05.2014, requested DHBVN for enhancement of its contract demand from 12.50 MVA to 15.05 MVA and desired to have such supply at 132 kV. Consequent thereto, DHBVN filed a petition before HERC dated 20.01.2015, seeking approval of HERC, as under Regulation 3.2 and 3.2.1, of Electricity Supply code, 2014, supply for a contract load up to 25 MVA, connection at 33 kV is to be provided, and providing connection at other voltage is subject to the approval of the State Commission.

14. The State Commission, vide its order dated 17.04.2015, granted permission to provide the supply to DCM at 132 kV for its contract demand of 15.05 MVA. Based on the details submitted by DHBVN, it was decided that a 132 kV substation shall be built in the vicinity of existing 33 HTM Hissar substation in DCM premises and since it is not possible to feed this 132 kV substation from 132kV Beer substation due to right of constraints in laying 132 kV line from Beer substation to this new substation, it was decided that this 132 kV substation in DCM premises shall be fed from 220 kV IA Hissar substation through a 132kV radial line of about 8 kms, for which right of way was available. The aforesaid permission was subject to following Conditions, as noted from the order dated 17.04.2015 passed by the State Commission: i) “Provided 132 KV sub-station shall be erected by the consumer at its own cost and in his own land. ii) The consumer shall bear full cost of erection of 132 KV line and its controlling equipment. The expenditure would be recovered as per provision under Regulation No. HERC/12/2012 called as the Haryana Electricity Regulatory Commission (Duty to supply electricity on request, Power to recover expenditure incurred in providing supply & Power to require security) or its reenactment. thereof iii) The material procured and the design of the installation shall conform to the standards and specifications of the distribution/transmission licensee

as per provision under Regulation 4.4.3 (2) (c) of the Electricity Supply Code notified by the Commission. iv) The line and controlling equipment after energization, would become the property of the licensee of the area as per provision under Regulation 4.7 of the Haryana Electricity Regulatory Commission (Duty to supply electricity on request, Power to recover expenditure incurred in providing supply & Power to require security) Regulations, 2005 and subsequent amendments thereof or its reenactment. v) The existing 33 KV sub-station, HTM in the premises of the consumer would continue as such.”

15. The Chief Engineer (Commercial) DHBVN, vide its letter dated 15.05.2015, conveyed the approval of HERC to CE (OP), DHBVN, along with the conditions stipulated therein, with a copy thereof endorsed to the Appellant - DCM.

16. Subsequently, the Appellant- DCM vide its letter dated 03.11.2015, requested HVPNL, with a copy to DHBVN, requested that the 132 kV connection may be provided from 132 kV Beer substation and agreed to bear the cost of this arrangement including the cost of replacement of conductor of one circuit of 132 kV line between 132 kV Beer substation to 220 kV IA Hissar substation. The relevant extract of the said letter is reproduced hereinbelow, “1. We are ready to construct 132 KV feeder bay at 132 KV S/Stn, Beer at our own cost under Self execution scheme for which the space is available at 132 KV S/Stn., Beer.

2. We are ready to convert 132 KV Beer on D/C tower to 132 KV live on Multi Ckt. Tower from tower location No 1 to 4 under self execution scheme at our own cost.

3. To overcome any loading constraint at 132 KV S/Stn., Beer, we also undertake to bear to cost for replacement of the existing conductor of one Ckt. of 132 KV line from 220KV S/Stn, IA Hisar to Beer with conductor of higher current carrying capacity. This work is also intended to be executed by us under self-execution scheme at our own cost.”

17. HVPNL, vide its letter dated 04.05.2016 addressed to Chief Engineer/PD&C, DHBVN with a copy marked to M/s DCM, approved the change in feeding source for DCM from 220 kV IA Hissar to 132 kV Beer substation and following was stipulated in the approval:

i) Creation of 132 kV substation DCM Hissar by DCM and to deposit proportionate cost as per sanctioned contract demand of 15.05 MVA in respect of augmentation of 1X50 MVA 220/132kV Transformer with 1x100 MVA 220/132 kV transformer at 220 kV Industrial Area Hissar substation.

ii) Creation of 132 kV line from 132 kV Beer substation to proposed 132kV DCM Hissar at the cost of DCM

iii) 132 kV line bay at 132 kV Beer substation at the cost of DCM

iv) Replacement of existing conductor on 132 kV line from 220kV IA Hissar substation to 132 kV Beer substation on existing tower at the cost of DCM It was further stated that M/s DCM, to enter into tripartite agreement with HVPNL & DHBVN for construction of bays/ substations/feeder and deposit all applicable supervision charges and deposit work charges before commencement of the works.

18. Demand for the above works was not raised and, in the meantime, on 11.07.2016, the State Commission notified the “HERC Duty to supply Electricity on Request, Power to recover expenditure incurred in providing Supply and power to required security) Regulations 2016” (“Supply Regulations, 2016”), which came into force on 19.07.2016 upon their publication in the Official Gazette. Subsequently, on 19.01.2017, DHBVN, vide its letter dated 19.01.2017, sought clarification from State Commission on whether charges to be deposited by

Consumer under “Supply Regulation 2016”, should be made applicable on application received on or after 19.07.2016, and/or demand notice issued on or after 19.07.2016.

19. The Appellant –DCM, vide its letter dated 02.02.2017 and 16.03.2017 addressed to HVPNL and DHBVN, requested for issuance of demand notice in line with “Supply Regulation, 2016” and appellant-DCM vide its letter dated 26.05.2017 to HVPNL, with a copy to DHBVN, referring to “Supply Regulation 2016”, requested for withdrawal of proportionate cost of augmentation of Transformer at 220 kV IA Hissar substation and proportionate cost of augmentation of conductor on 132 kV line from 220kV IA Hissar substation to 132 kV Beer substation and reduction in corresponding supervision charges. The Appellant – DCM in June 2017 then filed a petition (No 51 of 2017) before HERC seeking clarification and implementation of provision of 4.4 and 4.7 of “Supply Regulation, 2016”, which culminated in passing of the Impugned Order dated 22.04.2019. In the meantime, on 02.04.2018, the Appellant submitted an undertaking to deposit the required proportionate cost, in case petition is decided against them and requested for execution of work and it was only on 20.07.2018, demand for estimated cost (in line with their letter dated 04.05.2016) was communicated by HVPNL to Appellant – DCM.

20. The Appellant DCM is aggrieved by levy of proportionate cost for augmentation of transformer at 220 kV IA Hissar substation and for replacement of conductor on 132 kV line from 220 kV IA Hissar substation to 132 kV Beer substation and applicability of “Supply Regulation, 2005”. The Appellant-DCM has contended that the demand was neither calculated nor raised during the subsistence of the “Supply Regulations, 2005”, and the said Regulations stood repealed upon the coming into force of the “Supply Regulations, 2016” dated

19.07.2016, and Respondent Nos. 1 and 2 cannot be permitted to raise any demand under the repealed Regulations, particularly in the absence of any saving clause in the Supply Regulations, 2016 preserving actions under the Supply Regulations, 2005, Therefore, after repealing of the “Supply Regulation, 2005”, the demand could have been raised only under “Supply Regulation, 2016” which is also in conformity with the order dated 17.04.2015 passed by the HERC. Learned counsel on behalf of Appellant – DCM contended that HERC was not justified in holding that since the Appellant has requested for enhancement of contract demand vide application dated 27.05.2014 i.e. prior to issuance of “Supply Regulations, 2016”, the matter is to be dealt as decided as per the provisions of HERC “Supply Regulations, 2005”, while HERC in the approval order dated 17.04.2015, had specifically mentioned that expenditure would be recovered as per provisions under “Supply Regulations, 2005” and subsequent amendments thereof or its re-enactment.

21. Per Contra, Learned Counsel on behalf of HVPNL submitted that from the order of the State Commission dated 17.04.2015, it can be derived that DCM will bear full cost for erecting the 132 kV line and its controlling equipment and mode of recovery was made subject to the “Supply Regulations, 2005” and subsequent amendments thereof or its re-enactment. The applicable Regulations in effect at the time of grant of approval were the “Supply Regulations, 2005”. The said Order of the State Commission was never challenged, neither on the finding of bearing full cost, nor on the applicability of the HERC “Supply Code 2014” that existed even before application was made and accordingly it has been rightly held in Impugned Order with regard to Applicability of “Supply Regulation, 2005”. Regarding the contention of DCM with regard to applicability of Regulations 4.2.2 and 4.2.3 of the Haryana Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2014 (“Supply Code 2014”) for recovery of cost, learned

counsel for HVPNL submitted that the said contention was never urged before the State Commission, either during the first round of proceedings culminating in the order dated 17.04.2015, or at the stage of passing of the Impugned Order. There is no dispute on the part of the Appellant –DCM with regard to bearing the cost of 132 kV line from 132 kV Beer substation to 132 kV Hissar DCM, 132 kV bay at Beer substation and creation of 132 kV DCM Hissar substation at their own cost. The issue of sharing of cost of Augmentation of Transformer at 220 kV IA Hissar substation and sharing the cost of change of conductor of above referred 132 kV line is deliberated in following paragraphs: Sharing of proportionate cost of augmentation of Transformer at 220 kV IA Hissar substation

22. It is of relevance to reproduce relevant paragraphs from “Supply Code 2014”, and “Supply Regulation, 2005”, as under. Supply Code 2014 “4.2 Licensee's obligation to strengthen / upgrade / augment the distribution system and the mode of recovery of the cost thereof 4.2.1 The licensee is responsible for ensuring that its distribution system is upgraded, extended and strengthened to meet the demand for electricity in its area of supply including the growth of such demand. 4.2.2 The licensee shall bear the cost for strengthening, augmentation and up-gradation of the system, to meet the demand of general areas, through its annual revenue requirements (ARR) and the licensee shall seek to recover these costs from the consumers by submitting appropriate tariff proposal before the Commission while submitting the ARR. However, for individual consumers, the provisions of Regulations 4.2.3 and 4.2.4 shall apply. 4.2.3 The cost of extension of distribution main and its up-gradation up to the point of supply for meeting demand of a consumer, whether new or

existing, and any strengthening/augmentation/up-gradation in the system starting from the feeding substation for giving supply to that consumer, shall be payable by the consumer or any collective body of such consumers as per the Regulations framed by the Commission under Section 46 of the Act. 4.2.4 In case of a new connection, the consumer shall bear service connection charges, i.e. the cost of extension of service line from the distribution main to the point of supply.” Supply Regulation 2005 “4.1 The Licensee shall be responsible to lay down the distribution system up to thirty meters from the terminal pole and no charges shall be recoverable from the applicant on this account except as provided under these regulations. The Licensee shall provide the service cable up to 30 meters from terminal pole to the metering cubicle. 4.2 The Licensee shall not claim any payment or reimbursement from the applicant for any expenditure incurred or to be incurred by the Licensee in terms of or under any scheme approved by the Commission or when such expenditure is otherwise allowed to be recovered through tariff by the Licensee as a part of the revenue requirements of the Licensee. 4.3 Subject to the provisions of the Act and these regulations and subject to such directions, orders or guidelines issued by the Commission, every Licensee is authorised to recover, from an applicant requiring supply of electricity any expenditure that the Licensee shall be required to reasonably incur in providing any electric line or electric plant in addition to those specified in sub regulations 4.1 & 4.2 for the purpose of giving such supply to the applicant. Such charges shall be calculated in accordance with these regulations and shall be termed as Service Connection Charges. 4.5 After receipt of application for supply of electricity, the Licensee shall issue a demand note to the applicant informing him of the details of Service Connection Charges on account of the following: - ………… 4.5.3 In case the applicant requests for supply of electricity through ar. independent feeder, the charges of Controlling Circuit Breaker, metering cubicle complete with CT's & PTs and Meter and Terminal Equipment required at the sub station-end, Electric Line up to the metering cubicle.

Electric Plant and metering cubicle complete with CTs, PTs & meter at the consumer-end.”

23. We take note that the proposal for meeting enhanced contract demand of 15.05 MVA of the Appellant- DCM at 132 kV level was specifically approved by State Commission vide its order dated 17.04.2015, as in terms of “Supply Code, 2014”, for contract demand up to 25 MVA is ordinarily required to be provided at 33 kV, unless specifically approved by the State Commission. As per the proposal approved in the order of the State Commission, power was to be supplied from 220 kV IA Hissar Substation through laying of 132 kV line from there to new 132 kV substation at DCM Hissar and cost of the 132 kV line as well as that of 132 kV Hissar DCM substation is to be borne by the Appellant-DCM. In the approval order dated 17.04.2015, there is no mention for sharing the cost of augmentation of Transformer at 220 kV IA Hissar substation by Appellant-DCM; presumably in terms of “Supply code, 2014” as referred above, it is the licensee who shall bear the cost of strengthening, augmentation and up-gradation of the system, which shall be recovered through ARR of the licensee. Furthermore, it is noted from the letter dated 16.12.2014, from Chief Engineer HVPNL to Chief engineer DHBVL that approval has been accorded for creation and augmentation of transformer infrastructure at HVPNL for feeding various 33 kV substations of DHBVNL, which included augmentation of transformer at 220 kV IA Hissar substation, the relevant extract of the said letter is reproduced below: “Subject: Creation/augmentation of transmission infrastructure at HVPNL end to facilitate the feeding of 33 kV substations identified to be augmented and/or created by DHBVNL for the financial year 2017-18 in respect of Hisar District. Subsequent to joint exercise of officers from both the utilities i.e. DHBVNL & HVPNL carried out to identify the locations where augmentation and creation of 33 kV substations and corresponding infrastructure required at HVPNL end is required mainly to facilitate the running of 11 kV Agriculture feeders in' two

groups: to cater the future load growth and to provide relief to 132/11 kV transformers besides improvement in reliability, the following proposals were finalized and placed before WTDS HVPNL. The WTDs HVPNL has accorded the approval on following works as under: S.no. Description code

3. Augmentation of 220 kV substation 1A Hisar from (1x100 MVA) + (1x50 MVA) 220/132kV +(1x10/16 MVA) 132/11 K transformers to (2x100 MVA) 220/132 kV +(1x10/16-MVA) 132/11 kV + (1x20/25 MVA) 132/33 kV transformers in FY 2017-18. Note: (a) 100 MVA 220/132 kV and 20/25 MVA 132/33 KV transformers spared from the system may be utilized to execute the above said augmentation. 2A2661* & 2A2662

24. In terms of “Supply Code, 2014”, as noted above, licensee is responsible for ensuring that its distribution system is upgraded/ strengthened to meet the demand of electricity in its area of supply and licensee is to bear the cost on this account to be recovered through ARR. The above approval clearly indicates that proposed augmentation works at 220 KV IA Hissar substation is not for specifically meeting Appellant’s enhanced contract demand but also for general augmentation. In fact, such an approval has been accorded, even prior to State Commission order dated 17.04.2015 for enhancement of contract demand of Appellant- DCM. In our view, in terms of Regulation 4.2, of “Supply Regulation 2005”, as referred above, recovery of cost of such augmentation, which is otherwise approved, is not permitted to be recovered from the Appellant/ Applicant. Further, this Tribunal has posed a specific query, whether recovery of cost of augmentation of transformers at 220 kV IA Hissar substation, is covered as part of ARR of HVPNL, however no response has been submitted by HVPNL

and it can therefore be inferred that cost of such an augmentation of transformer at 220kV IA Hissar substation is being recovered by HVPNL as part of its ARR and otherwise also in terms of “Supply Regulation, 2005”, such a cost cannot be claimed from the applicant.

25. This tribunal, in its judgement dated 02.03.2016 in Appeal No. 108 of 2015, “ Dada Ganpati Gaur Products Pvt. Ltd. v. Haryana Electricity Regulatory Commission & Ors”; (MANU/ET/0021/2016), reliance placed by Appellant – DCM, has deliberated the issue whether consumer is liable to pay for augmentation of power transformer of a transmission licensee as per “Supply Code, 2014”. After examining the various provisions of “Supply code, 2014” and “Supply Regulation, 2005”, it has been held that appellant is not liable to share the cost of proposed augmentation of transformer at 132 kV Sikander; relevant paragraph of the judgement is as given below : “10.9 (c) Thus, the Transmission Licensee has proposed to undertake the augmentation of 132 KV sub-station Sikanderpur to accommodate all the works mentioned in the Memorandum of proposal sent by Chief Engineer (P&D), DHBVNL, Hisar to Chief Engineer, HVPNL, Panchkula in his letter dated 05.10.2012. This clearly indicates that the proposed augmentation works at 132 KV Sikanderpur is not only due to Appellant load of 1.5 MVA but also due to various other improvement works. Hence, we are disagreeing with the contention of the Commission regarding the obligation of Appellant with respect to share cost of the proposed augmentation of 10/16 MVA to 20/25 MVA power transformer at 132 KV Sikanderpur. 10.10 As per Regulation 4.3 of HERC Supply Code Regulation, the erection of 33 KV line from 33 KV Rasulpur Theri to consumer’s load point (3.1 kms line) was completed by the Appellant duly paying the supervision charges of Rs. 39,750/- and completed the line work including erection of 33 KV VCB and other metering cubicles etc. at 33/11 KV sub-station at Rasulpur Theri at Appellant’s cost. Regarding the share cost of augmentation of power transformer (10/16 MVA to 20/25 MVA) at the feeding sub-station i.e. 132 KV Sikanderpur. The Chief Engineer (Commercial), DHBVN, Hisar clearly

mentioned in his letter dated 19.09.2013 to Chief Engineer, HVPNL, Panchkula that the existing power transformer is capable/sufficient to feed the Appellant’s load. Thus, the Appellant/Petitioner as per the Clause 4.3 of the Duty to Supply Electricity on Request Regulations (HERC/12/2005) and Clause 4.2.3 of HERC Supply Code Regulations paid towards transmission cost from feeding sub-station i.e. 132 KV Sikanderpur to consumer’s premises and the Appellant is not responsible for augmentation works at 132 KV substation of Transmission Licensee”.

26. Learned Counsel on behalf of HVPNL has disputed the reliance placed by the Appellant-DCM on the applicability “Supply Code 2014”, contending that as same was in force at all material times and the Appellant-DCM had never invoked, relied upon, or asserted the applicability of the “Supply Code, 2014”, same is not permissible to be relied upon for the first time before this Tribunal as it is a well-settled principle that the Court cannot create any new case at the appellate stage for either of the parties and reliance was placed in this regard on the judgment of the Supreme Court in “Rama Kt. Barman v. Mohd. Mahim Ali”; 2024 SCC OnLine SC 4083 as well as this Tribunal judgement dated 18.01.2019, in “ACB (India) Limited v. Gujarat Electricity Regulatory Commission & Ors.”;, Appeal No. 279 of 2015 . It is an established principle that new facts cannot usually be raised for the first time at the appellate stage, as appeals are not meant to introduce fresh factual disputes however new legal plea stand on a different footing. Statutory provisions, rules, and regulations have a binding effect even if they are pleaded for the first time at the appellate stage. It has been consistently held that pure questions of law, especially those involving statutory provisions or regulation can be raised at any stage even for the first time and must be applied by the court irrespective of whether they were pleaded earlier. The HERC (Electricity Supply Code) Regulations, 2014 ( “Supply Code 2014”), being statutory in nature, have binding effect and can be raised for the first time at the appellate stage. In fact the, DHBVNL application to State Commission for seeking approval of enhancement of Contract demand for the

Appellate-DCM is also considering the provisions of “Supply Code, 2014” and therefore the Appellant referring to the applicability of “Supply Code, 2014” cannot held to be creating a new case at the Appellate stage or against the law. We find it unnecessary to delve any further on this contention of Respondent HVPNL, as our observations are not solely based on the provisions of “Supply Code, 2014”

27. In view of above deliberation, and considering the above referred judgement of this Tribunal dated 02.03.2016 in Appeal No. 108 of 2015, in Dada Ganpati ( Supra) and in terms of State Commission order dated 17.04.2015, “Supply Code, 2014” and “Supply Regulation, 2005”, sharing the cost of augmentation of transformer at 220 kV IA Hissar substation is not applicable to the Appellant – DCM and State Commission has erred in the Impugned Order in affixing the liability on Appellant – DCM to share proportionate cost of augmentation of transformer at 220 kV IA Hissar substation and is liable to be set aside. Proportionate Cost of change of conductor on 132 kV line between 220kV Hissar IA substation and 132 kV Beer Substation

28. As per the State Commission Order dated 17.04.2015, 132 kV supply to Appellant DCM was to be provided by laying a 132kV line from 220 kV IA Hissar to 132 kV new DCM Hissar substation and cost was to be borne by Appellant- DCM. However, on 03.11.2015, Appellant-DCM approached HVPNL to extend power supply to 132 kV DCM Hissar from 132 kV Beer substation instead of 220 kV IA Hissar substation, and Appellant- DCM proposed to construct 132 kV line from 132 Beer substation to 132 kV DCM Hissar at its cost as well bear cost of 132 kV bay at Beer and cost of replacement of existing conductor of one ckt of 132 kV line from 220 kV IA Hissar substation to 132 kV Beer substation with higher capacity conductor to take care of supply constraint, which was approved by HVPNL vide its letter dated 04.05.2016. It is an admitted fact that Appellant –

DCM pursued with HVPNL/DHBVN to raise demand notice. In the meantime, “Supply Regulation, 2016” was enacted, which came into effect from 19.07.2016. Relevant clauses of supply regulation 2016 are as given below: “4. POWER TO RECOVER EXPENDITURE 4.1 Subject to the provisions of the Act and these Regulations and subject further to such directions, orders or guidelines issued by the Commission, every distribution licensee is entitled to recover from an applicant requiring a supply of electricity or modification in existing connection, any expenses reasonably incurred by the distribution licensee in providing any electric line or electrical plant used for the purpose of giving that supply. The service connection charges or the actual expenditure to recover such expenses shall be computed in accordance with these Regulations. ……… 4.3 The licensee shall be responsible for ensuring that its distribution system is upgraded, extended and strengthened to meet the demand for electricity in its area of supply including future growth of such demand. 4.6 The cost of extension of distribution main and/or its up-gradation up to the point of supply for meeting the demand of a consumer, whether new or existing, and any strengthening/augmentation/up-gradation in the system starting from the feeding substation for giving supply to that consumer, shall be payable by the consumer or any collective body of such consumers as per these Regulations. 4.7 However, cost of augmentation of substation or creation of a new substation or cost of augmentation of the line feeding the substation from where the supply is to be given shall not form part of cost to be recovered from the consumer or collective body of consumers as per Regulation 4.6. 4.8 After receipt of application, complete in all respects, requiring supply of electricity and sanction of the load demand, the licensee shall issue a demand notice to the applicant in accordance with the provision under Regulation 4.4.3 of the Electricity Supply Code informing him of the details of charges to be paid by him on account of the following.”

29. In terms of Clause 4.7 of “Supply Regulation, 2016”, the cost of the augmentation of line feeding the substation from where supply is to be given shall not form part of the cost to recovered from the consumer. The Appellant – DCM has contended that since no demand was raised, and after re-enactment of “Supply Regulation, 2016” and repeal of “Supply Regulation, 2005”, with no saving clause, demand should be raised in terms of “Supply Regulation, 2016” in which cost of change of conductor is not payable by them and contended that in a situation of a conflict between the two legislations, the principles embodied in legal maxim, “Lex Posterior derogat Priori” shall prevail. The State Commission, in the Impugned Order has held that since the application of enhancement of demand from 12.5 MVA to 15.05 MVA at 132 kV was submitted on 27.05.2014 prior to issuance of “Supply Regulation, 2016”, accordingly matter has to be dealt and decided as per provisions of “Supply Regulation, 2005” and Appellant-DCM is liable to share proportionate cost for change of conductor on referred 132 kV line and it has also been submitted by Respondent that State Commission order dated 17.04.2015 has attained finality. Learned Counsel for HVPNL has contended that Regulation 4.3 of the “Supply Regulations, 2005” expressly empowers the Licensee to recover expenditure from an applicant where such expenditure is incurred solely and specifically to provide supply to that particular consumer; and in case the cost of replacement of the conductor, which was specifically arranged for the Appellant-DCM, is allowed to be considered in the Annual Revenue Requirement (ARR) of the Respondents, the additional expenditure borne on this account would have a cascading effect on the electricity retail supply tariff, thereby unjustly burdening other consumers for infrastructure from which they derive no benefit and accordingly Appellant- DCM should be liable to pay the full cost of replacement of the conductor, for which undertaking was given by them. With regard to delay in raising the demand notice, learned Counsel on behalf of HVPNL submitted that State Commission

took serious view on the delay in raising the demand and levied fine on the officials responsible for non-issuance of Demand note within stipulated period as per “Supply Regulation, 2005” and such delay in issuing demand notice cannot extend to imply that the regulatory regime under which the application of the Appellant-DCM was processed, can be asserted to be replaced by a subsequent amendment.

30. The phrase Lex Posterior derogat Priori means that the new regulation overrides the old one if there is a conflict. However, timing of the action matters. In the present case, as per order of the State Commission dated 17.04.2015, the 132 kV line was to be drawn from 220 KV IA Hissar substation to 132 kV DCM Hissar substation for meeting the enhanced demand on 132 kV and it is only on the request of Appellant-DCM, and subject to its offer of bearing the cost of change of Conductor of the subject line, it was agreed to lay 132 kV line from Beer Substation instead of from 220 kV IA Hissar substation to 132 kV DCM Hissar substation along with change of conductor of 132 kV line from 220 kV IA Hissar substation to 132 kV Beer substation ( referred subject line) . Thus, upgradation of 132 kV line from 220 kV IA Hissar to 132 kV Beer substation through change of conductor is to supply power to the Appellant-DCM is at the request of Appellant-DCM and rights and liabilities of parties were finalised prior to enactment of “Supply Regulation, 2016”. It was only the procedural requirement of raising demand which was left. In this context, we would like to refer Nova constitutio futuris formam imponere debet, non praeteritis- A new law ought to regulate the future, not the past. New law are presumed to operate prospectively, not retrospectively, unless legislature expressly states otherwise. Applying new laws to past events could unfairly alter rights or obligations that were already settled under the old law. When a new regulation or statute is enacted, it governs future actions, rights, and obligations. Past actions, transactions, or liabilities remain governed by the law that was in force at the time

they occurred. This principle protects legal certainty and prevents retroactive hardship. It is settled proposition of law that amendments to statutes or regulations, unless expressly retrospective, are always prospective ( “Gujrat Urja Vikas Nigam Limited v. Renew Wind Energy (Rajkot) Private Limited’; 2023 SCC OnLine SC 411; “CIT v. Vatika Township (P) Ltd”; (2015) 1 SCC

1) ; “Green Infra Wind Solutions Ltd. v. A.P. ERC”;, 2024 SCC OnLine APTEL 135, ). It is an admitted fact that no new application for enhancement of load was made by Appellant-DCM under “Supply Regulation, 2016”. Thus in our view, the rights, liabilities, penalties has been typically determined by the regulation in force at the time of the approval of the scheme for catering to the enhanced demand. Therefore, as liability was crystallized under the old regulation, the basis of liability remains under the old law and if the demand is raised later, the procedure may follow the new regulation, unless the new regulation explicitly preserves the old procedure for past actions.

31. Learned Counsel on behalf of Appellant – DCM has contended that since the State Commission Order dated 17.04.2015 mentions that Supply Regulations, 2005 and subsequent amendments thereof or its re-enactment shall be applicable so accordingly demand has to be raised in terms of “Supply Regulation, 2016”. In view of above deliberations, we do not find merit in these submission as enactment of “Supply Regulation, 2016” cannot take away vested substantive rights retroactively, unless the amendment is expressly retrospective or it extinguish those rights; whereas same is not discernible from the “Supply Regulation, 2016”. We are therefore of the considered view that there is no error in the Impugned Order with regard to applicability of “Supply Regulation, 2005” not of “Supply Regulation, 2016” for enhancement of contract demand of Appellant-DCM at 132 kV level.

32. Learned counsel for HVPNL has contended that Appellant-DCM should be liable to bear full cost of change of conductor on 132 kV line between 220 kV IA Hissar substation to 132 kV Beer substation as it was done at the request of Appellant-DCM and considering the undertaking given by Appellant-DCM to bear its full cost. As noted above, as per the approval of State Commission, 132 kV feeder was to be provided from 220 kV IA Hissar substation up to 132 kV DCM Hissar, and it was at the request of Appellant –DCM along with the undertaking to bear the cost of such conductor change, to take care of overloading problem, same was agreed to. Therefore, the change of conductor to higher capacity on the referred line is for meeting the enhanced load of Appellant and no documents have been furnished by Appellant- DCM, that it was part of general upgradation of licensee’s network. It has already been held above, that “Supply Regulation, 2005” shall be the applicable regulation for the enhancement of contract demand of Appellant-DCM, and in terms of Regulation 4.4 of “Supply Regulation, 2005”, formula for proportionate cost is applicable when there are two or more than two applicants in the same premises; referred regulation is reproduced below for easy reference: “ 4.4 In the event electricity supply is required by two or more applicants in the same premises through extension of common Distribution System and the expenditures in respect thereof are not covered under Regulation 4.1 & 4.2, the Licensee shall apportion such expenditure amongst ail such applicants based on the connected load of each applicant”

33. As noted above, the replacement of the conductor on the referred line has been undertaken for facilitating enhanced contract demand of Appellant-DCM and no document with regard to requirement for such upgradation for other customers has been placed before us and Appellant – DCM has also given the undertaking to bear entire cost of this conductor change to facilitate supply through 132 kV line from 132 kV Beer substation to DCM Hissar 132 kV

substation instead of from 220kV IA Hissar substation to DCM Hissar 132 kV Substation, as approved vide State Commission Order dated 17.04.2015. In view of the above, Appellant- DCM is liable to bear entire cost of change in conductor on the subject line. The State Commission has not referred to any Regulation, which provided the liability of Appellant –DCM to share only proportionate cost for the change of conductor on subject line, while appellant –DCM was the sole Applicant and Impugned Order is therefore liable to be interfered with on this account.

CONCLUSION

34. In view of the above deliberations, the Impugned Order is modified to the extent that Appellant –DCM is not liable to share proportionate cost towards augmentation of Transformer at 220 kV IA Hissar substation, however, the Appellant – DCM is liable to bear applicable entire cost of change of conductor of one circuit of 132 kV line from 220 kV IA Hissar substation to 132 kV Beer substation, as agreed by the Appellant–DCM.

36. The Captioned Appeals and pending IAs, if any, are disposed of in these terms. PRONOUNCED IN THE OPEN COURT ON THIS 13th OF JANUARY, 2026. (Virender Bhat) Judicial Member (Seema Gupta) Technical Member (Electricity) REPORTABLE / NON-REPORTABLE