M/s Technocrats and Managers Society of Advanced Learning and Gramothan vs Rajasthan Electricity Regulatory Commission & Ors on 3 September 2025

J U D G M E N T

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. Both the captioned appeals have been filed against the common order dated 13th June, 2019 passed by 1st Respondent – Rajasthan Electricity Regulatory Commission (hereinafter referred to as “the Commission”) and arise out of identical facts and circumstances.

Hence, both the appeals are proposed to disposed off vide this common judgement.

2. The Appellants in both the appeals are captive power generators having installed 500 kw solar photo voltaic captive power plants each for their captive use.

3. The 2nd Respondent is a Distribution Licensee in Jaipur within whose area the solar power projects of the Appellants are located. The 3rd Respondent is a company established by the Government of Rajasthan under the provisions of Rajasthan Power Sector Reforms Act, 1999 and State Transmission Utility (STU).

4. The 4th Respondent – Rajasthan Urja Vikas Nigam Limited is a company incorporated under the Companies Act by Rajasthan Government in the year 2015 to carry out trading business for State Power Sector Discoms.

5. The 5th Respondent is a State Load Despatch Centre (SLDC) for the State of Rajasthan performing statutory functions as provided under the relevant provisions of Electricity Act, 2003.

6. The 6th Respondent State Power Committee had been constituted by 3rd Respondent – STU under Regulation 4.1 of Rajasthan Electricity Regulatory Commission (Rajasthan Electricity Grid Code) Regulations,

2008 for its effective implementation. The 7th Respondent is another Distribution Licensees in the State of Rajasthan.

7. The location of generating stations of the Appellants and their captive generation unit fall within the are of Respondent Nos. 7 & 2 respectively.

8. The captive power plants of the Appellants were commissioned on 6th April, 2017.

9. The power evacuation permission for the power plants of the Appellants was granted by Respondent No. 3 vide letter dated 27th March, 2017. Subsequently, the Appellants entered into Wheeling and Banking Agreement (WBA) dated 29th March, 2017 with Respondent No. 2 for feeding the power into the grid for their captive use.

10. Even though, the power project for the Appellants was commissioned on 6th April, 2017 the Long Term Open Access (LTOA) agreements were executed by them with Respondent No. 3 only on 4th October, 2017 for transmission of power from their captive plants.

11. It appears that the power plants of the Appellants had started generating electricity on the date of commissioning i.e. 6th April, 2017 and had been injecting power into the grid since that day without

waiting for formal execution of LTOA agreement. Accordingly, the Appellants raised their respective invoices seeking energy adjustment as per the Wheeling and Banking agreement (WBA) dated 29th March, 2017 for the period from 6th April, 2017 to 4th October, 2017. However, these invoices were returned by Respondent No. 4 vide letters dated 16th October 2017 and 17th October, 2017 stating that the invoices are not as per Clause 5(A) of WBA. The Respondent No. 4 also took the stand that the Appellants were not entitled to any energy adjustment for the period from 6th April, 2017 to 4th October, 2017. In doing so, the Respondent No. 4 also relied upon the undertaking dated 30th March, 2017 furnished by the Appellants at the time of seeking LTOA wherein they undertook not to claim for any adjustment and shall supply free energy generated from their captive power plants to Jodhpur Discom till the execution of LTOA.

12. In these circumstances, the Appellants had approached the Commission by way of two separate petitions bearing No. 1427 of 2018 and 1425 of 2018 respectively seeking energy adjustment with regards to the energy injected into the grid from their respective power plants between 6th April, 2017 and 4th October, 2017 along with further

ancillary reliefs. A similar petition bearing No. 1428 of 2018 was also filed by another captive power generator namely M/s Radha Mohan Builders Private Ltd. The Commission has disposed off all the three petitions vide common impugned order dated 13th June, 2019 thereby holding that after submitting the undertaking to the Discoms that they shall supply free energy generated from their respective plants till grant of open access, there is no obligation upon the Discoms to compensate the three captive power generators for the energy injected into the grid till grant of LTOA.

13. The two appellants have assailed the said common order of the Commission before this Tribunal by way of these two separate appeals.

14. We have heard Learned Counsel for the Appellants and the Learned Counsels appearing for the Respondents. We have also perused the written submissions filed on behalf of Appellants and Respondent Nos. 2, 4 & 7. Our analysis

15. A short issue which arises for our consideration in these two appeals is whether the Appellants are entitled for adjustment of energy that was fed into the grid from their respective power plants from the

date of commissioning of the plants i.e. 6th April, 2017 till the date of execution of LTOA agreements i.e. 4th October, 2017.

16. Manifestly, the Appellants had started injecting power generated by the captive power plants into the grid from the date of commissioning of the power plant itself i.e. 6th April, 2017 without waiting for the execution of formal LTOA agreement with Respondent No. 4, which ultimately came to be executed on 4th October, 2017. Clause 5(A) of WBA dated 29th March, 2019 executed by the Appellants separately with Respondent No. 2 assumes importance in this regard and is extracted hereinbelow. “5(A) Transmission and wheeling of energy: This agreement is effective from the date of signing of the Agreement i.e. Date of Agreement. Adjustment of wheeled energy generation from Solar Power Project to Company will be given from the date of Commissioning of Solar Power Project or date of signing of this agreement whichever is later subject to grant of open access by RRVPNL.” (Emphasis Supplied)

17. The word “subject to grant of open access by RRVPNL” appearing at the end of this clause are the bone of contentions between

the parties. According to the Appellant these words in clause 5(A) cannot be taken as the third condition to be specified for adjustment of wheeled energy from the captive power plants. It is submitted that the clause specifically provides that the adjustment of wheeled energy generated in the captive power plants would be given from the date of commissioning of the power plants or date of signing of WBA agreement whichever is later. Referring to Section 9(2) of Electricity Act, 2003 it is argued on behalf of the Appellants that right to open access of a captive generator is only qualified by availability of transmission facilities by the CTU or STU, as the case may be. It is submitted that since in the instance case, STU i.e. Respondent No. 5 has, by way of letter dated 27th March, 2017, confirmed the availability of transmission facility, the only criteria for grant of open access to be was met and, therefore, the adjustment of energy could not have been denied citing extraneous reasons. Reliance is placed upon the judgement of Hon’ble Supreme Court in Maharashtra State Electricity Distribution Company Limited Vs. JSW Steel Ltd. (2022) 2 SCC 742, in which it has been held as under :- “9. On a fair reading of Section 9, it can be seen that captive generation is permitted under sub-section (1) of Section 9. As per sub-section (2), every person, who has

constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use, but of course subject to availability of adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, as the case may be. So, the captive generation/captive use is statutorily provided/available and for which a permission of the State Commission is not required. The submission on behalf of the appellant that the captive generation under Section 9 is subject to the regulations as per first proviso to sub-section (1) of Section 9 and that even open access for the purpose of carrying electricity from his captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, as the case may be, sub-section (4) of Section 42 shall be applicable and such captive users are liable to pay the additional surcharge leviable under sub-section (4) of Section 42, has no substance and has to be rejected outright. Construction and/or maintenance and operation of a captive

generating plant and dedicated transmission lines is not subjected to any permission by the State Commission. As provided under Section 9 of the 2003 Act, any person may construct, maintain or operate a captive generating plant and dedicated transmission lines.

10. Merely because the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company or the open access for the purpose of carrying electricity from the captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, it cannot be said that for captive generation plant, the State Commission's permission is required. Right to open access to transmit/carry electricity to the captive user is granted by the Act, and is not subject to and does not require the Sate Commission's permission. The right is conditioned by availability of transmission facility, which aspect can be determined by the

Central or State transmission utility. Only in case of dispute, the State Commission may adjudicate.”

18. We are unable to countenance these arguments advanced on behalf of the Appellants. The above noted clause 5(A) of the WBA unequivocally provides that “Adjustment of wheeled energy generation from solar power projects to Company will be given from the date of Commissioning of Solar Power Project or date of signing of this agreement whichever is later subject to grant of open access by RRVPNL”. The words “subject to” clearly denote that whatever appears before these words is conditional and depending upon what is mentioned thereafter. As per the Black’s Law Dictionary also, the expression “Subject to” connotes “conditional and depending on something or the necessity of undergoing something”.

19. Hence, it is crystal clear that in view of the provisions of clause 5(A) of the WBA, adjustment of energy pumped into the grid from the captive power plants of the Appellants was to be given either from the date of their commissioning or from the date of signing of the WBA, whichever is later but subject to the condition that open access had been granted to them.

20. The Appellants have misinterpreted the judgement of the Hon’ble Supreme Court in MSEDCL case (supra) to contend that once availability of transmission facility is expressed by CTU or STU, there is no need for an LTOA agreement and the energy injected into the grid in the absence of an LTOA cannot be left out of adjustment. The argument is preposterous. What the Hon’ble Supreme Court has observed in the said judgement is that right to open access to transmit/carry electricity to the captive user granted under sub-section

(2) of Section 9 is only conditioned by the availability of transmission facility, which aspect can be determined by the CTU or STU, as the case may be, and does not require the permission of State Commission. But it nowhere says that a captive power producer is free to exercise its right to open access as and when the availability of transmission facility is approved by the CTU or STU, without applying for LTOA or in the absence of execution of a proper LTOA agreement with the Distribution Licensees.

21. The fact that the Appellants applied for LTOA for their captive power plants on 21st March, 2017 clearly indicate that they were having the knowledge that they could not wheel energy from their captive power plants in the absence of formal LTOA to be granted by the

Distribution Licensees. We note that the “Detailed Procedure” for long term access approved by the Commission on 18th May, 2016 reads as under :- “(3) Processing of Application for LTOA on Intra-State Network:

(i) The application, if found in order, shall be processed in the manner specified in regulation 10 of the Open Access Regulations, 2016.

(ii) Time frame for processing the application by RVPN shall be sixty (60) days from the date of receipt of application. However, in case system strengthening of transmission/ distribution system is required to provide open access, then the application shall be processed within ninety (90) days of the receipt of application.

(iii) In case the Applicant is a consumer of the Distribution Licence, RVPN, shall seek NOC from concerned Distribution Licensee online.

(iv) In case NOC is not received from the concerned Distribution Licensee within thirty (30) days from the date of issue of letter from RVPN then it shall be deemed that Discom has no objection for grant of open access applied.

(v) On approval of open access, the customer shall seek approval for grant of connectivity and parallel operation with the grid, it not done already. The customer shall install

ABT complaint meters at injection and drawal point and furnish a certificate from RVPN or concerned Distribution Licensee, as the case may be, to the effect that ABT compliant meters are in place at both injection and drawal points as per relevant Regulations along with details of metering arrangements, if not done already.

(vi) On approval of open access, the open access customer shall enter into a commercial agreement as per regulation 13 of Open Access Regulations, 2016 in the formats prescribed (Annexure-2 & Annexure-3), before the commencement of LTOA.

(vii) Security deposit shall be made before the commencement of LTOA.

(viii) In case of any change in the aforesaid agreements for open access supply, the open access customer shall enter into a supplementary agreement in the formats prescribed (Annexure-4 and Annexure-5).”

22. Thus, the Appellants were well aware that the application for LTOA submitted by them on 21st March, 2017 could at best be processed within 60 days from the date of receipt i.e. till 21st May, 2017, but despite the same, they chose not to wait for LTOA permission and

started injecting power into the grid from the date of commissioning of the power plant itself.

23. Further, the Government of Rajasthan (Energy Department) notified the Rajasthan Solar Energy Policy in the year 2014 which became effective on 8th October, 2014. The relevant extracts of the said policy read as under :- “7.1 Setting up of Solar Power Plants sanctioned under guidelines of MNRE / National Solar Mission (NSM): The State will promote setting up of Solar Power Plants sanctioned under the guidelines of MNRE / National Solar Mission (NSM). …………… 7.4 Utility Grid Power Projects for Captive use / sale to 3rd Party / States other than Rajasthan through Open Access for promotion of investment in Rajasthan: The State will promote Solar Power Producers to set up Solar Power Plants of unlimited capacity for captive use or sale of power to 3rd party / States other than Rajasthan. Such Power Producer will also be eligible for RE (Solar) Certificate as per

orders / regulations of appropriate Commission issued in this regard. …………. 19.3 Third party sale / captive use / sale to other States through Open Access (Clause 7.4): (I) In case of third party sale / sale to other state, the Power Purchase Agreement will be executed between the Power Producer and the procurer on mutually agreed rates. A separate agreement will be executed for Wheeling of power with Discoms of Rajasthan. The transmission agreement with RVPN will be executed separately, if the Solar Power Producer intends to use the system of RVPN.

(ii) In case of captive use, agreement will be executed for wheeling and banking of power with Discoms of Rajasthan. The transmission agreement with RVPN will be executed separately, if the Solar Power Producer intends to use the system of RVPN.”

24. The combined reading of Clauses 7.4 & 19.3 of the said solar policy, 2014 reveals that in addition to execution of WBA, captive power generators were also required to execute an LTOA agreement that the

Respondent No. 3 Rajasthan Vidyut Prasaran Nigam Ltd. (RVPNL) as the transmitting system of RVPNL was intended to be utilized.

25. Hence, the contention on behalf of the Appellants that they were entitled to inject power into the grid in the absence of LTOA agreement is baseless and contrary to the Regulations as well as the Solar Policy issued by the Government of Rajasthan.

26. Coming to the undertaking dated 30th March, 2017 submitted by the Appellants at the time of applying for LTOA. The undertaking reads as under :- “M/S. Technocrats and Managers Society for Advanced Learning & Gramothan. is setting up a 0.5 MW Ground Mounted Solar PV Project at Village Sarah Kishnayat, Tehsil Kolayat, Dist. Bikaner under Captive Mechanism M/S. Meel Hotel Pvt. Ltd. hereby undertake that the long-Term Open Access (LTOA) shall be executed later with SLDC/RVPN and hence it shall be submitted RDV after the commissioning the project. We shall not claim for any energy adjustment and shall supply the free energy generated from our plant to Jodhpur Discom before submission of LTOA subject to Permission of RW Kindly grant us the Permission to

synchronize and commission the project in this financial year only in order to avall the fiscal benefit.” (Emphasis supplied)

27. By way of the said undertaking, the Appellants have very clearly undertaken not to claim for any energy adjustment and to supply free energy generated from their captive power plants to Jodhpur Discom before execution of LTOA agreement. In case, as argued on behalf of the Appellants, there was no requirement at all for seeking LTOA before pumping energy into the grid from their respective captive power plants, we wonder where was the need for them to submit such an undertaking. Furnishing such an undertaking makes it limpid that the Appellants were conscious about the fact that they were not authorized to inject energy into the grid from their captive power plants before grant of LTOA and, therefore, they volunteered to supply free power to the Jodhpur Discom till grant of LTOA.

28. It was argued on behalf of the Appellants that the undertaking has no relevance as the same has exhausted itself. It was submitted that the undertaking was given so that the Appellant could be permitted to Commission the captive power plants within the Financial Year to avail

fiscal benefits which did not happen and, therefore, the same has become meaningless and infructuous.

29. We do not find any force in the arguments of the Appellants. The contents of the undertaking have to be looked into in the context in which the undertaking was submitted on 30th March, 2017. Perusal of the contents of the undertaking would indicate that the Appellants were desirous of synchronizing and commissioning their captive power plants within Financial Year 2016-17 in order to avail the fiscal benefits. They were conscious of the fact that they may not be permitted to comission the power plants in the absence of LTOA agreements and, therefore, volunteered to supply free power so generated from power plants to the Jodhpur Discom till grant of LTOA. Therefore, once the Appellants had submitted the undertaking for not claiming benefit of the energy fed into the grid before execution of LTOA in order to claim some fiscal benefits under the Solar Policy, 2014, they are precluded from claiming charges for such energy later on.

30. On behalf of the Appellants, reliance was placed upon the two judgement of this Tribunal i.e. Appeal No. 213 of 2023 M/s TGV SRAAC Ltd. Vs. Andhra Pradesh Electricity Regulatory Commission decided on 26th February, 2024 and Appeal No. 103 of 2021, (Greenko

Maha Wind Energy Pvt. Ltd. vs. MERC and Ors., decided on 22nd January, 2024 to content that power injected into the grid from the generating units without any objection or demur on the part of Respondent Distribution Licensees, even though in the absence of formal LTOA agreement, cannot be said to be infirm and the Distribution Licensees cannot be permitted to evade payment of such power in these circumstances. We find that the reliance placed on behalf of the Appellants on these two judgements of this Tribunal is totally misplaced as they were rendered any absolutely distinct facts and circumstances. In the TGV SRAAC case, this Tribunal referred to Section 70 of the Contract Act as explained by the Hon’ble Supreme Court in B.K. Mondol judgement and held as under :- “20. When we apply the concept of Quasi Contract as well as the doctrine of unjust enrichment envisaged under Section 70 of the Contract Act, as explained by the Hon’ble Supreme Court in the above noted judgement of B.K. Mondal, to the facts of the instance case, we find that the Appellant is entitled to the payment of power injected into the grid from its wind generation units during the period as noted hereinabove. This is not a case where the appellant had

been injecting power into the Grid in the absence of any agreement at all. The facts of the case clearly indicate that initially the Appellant was evacuating power into the grid under valid wheeling agreements which expired on 26th March, 2016 and 27th March, 2017. The facts would further indicate that the Appellant continued the injection of power into the grid even after the expiry of these wheeling agreements in the hope that fresh LTOA would be executed between the respondents for which it had started communicating with them. Ultimately, fresh Short Term Open Access agreements were executed between the parties between 7 th June, 2019. Meanwhile, power continued to be injected into the grid from the wind power generating units of the Appellant without any objection or demur on the respondents and the respondents even utilized the same by selling it to the consumers thereby deriving financial benefit from it. The Appellant had vide letter dated 18th March, 2016 (i.e. before the expiry of the agreement dated 26th March, 2016) requested the respondents for permission for “Carrying”

power from the points of generating stations to the destination point and for entering into fresh wheeling agreements. The respondents advised the Appellant for change of CTPT and metering equipment at both ends for renewal of wheeling agreements which was duly done by the Appellant under the supervision of officials of 2nd and 3rd Respondents. The Appellant also filed prescribed application in this regard accompanied by requisite fee for the renewal of the wheeling agreements, even though belatedly. It is, therefore, evident that injection of power into the grid by the Appellant from 26th March, 2016 was under bonafide belief that the wheeling agreements would be renewed sooner or later and with the legitimate expectation of the appellant that it would be compensated for such power. Certainly, it was not a gratuitous act on the part of the Appellant. At no point of time was any objection raised by the officials of 2nd & 3rd Respondent and they even continued to avail benefit of such power by selling it to consumers. Therefore, all the ingredients of Quasi Contract envisaged under Section 70 of

the Contract Act, as explained by the Hon’ble Supreme Court in B.K. Mondol judgement, are fulfilled in the present case.

21. We do not feel impressed by the arguments raised on behalf of the respondents that such injection of power into the grid by the Appellant in the absence of contract or authorization creates grid indiscipline and, therefore, cannot be accounted for. We feel that the 2 nd and 3rd Respondents also were responsible for so called grid indiscipline, if any, in this case. They were aware about the fact that initial agreements executed with the Appellant have expired and the Appellant continues to inject power into the grid. It was for them, to avoid grid indiscipline, to object to such evacuation of power into the grid by the Appellant and to stop the same or at least to notify the appellant to desist from doing so. They did neither. To the contrary, they continued accepting power from Appellant’s wind generating power units stoically and even utilized the same. Thus, they too were contributing towards grid indiscipline. It also needs to be borne in mind that the power units involved

herein are wind power generating units which are considered as ‘Must Run Unit’. As these units are connected to the grid, power must be injected into the grid unless stopped at the point of connection to the grid by the respondents, which they did not do. In view of such conduct of the respondents in accepting the power from the wind power generating units of the Appellant even after expiry of the initial wheeling agreement and utilizing the same by selling it to the consumers, it does not lie in their mouth to say that they are not liable to account for the same towards the Appellant.”

31. Thus in the said case, this Tribunal found that initially the Appellant was evacuating power into the grid under the valid wheeling agreements which expired on 26th March, 2016 and 27th March, 2017 but the Appellant continued injection of power into the grid even after expiry of these wheeling agreements in the hope that fresh LTOA would be executed between it and the respondents for which it had started corresponding with them. Ultimately, fresh STOA agreement was executed between the parties on 7th June, 2019. In these circumstances, this Tribunal came to the conclusion that it was not a case where the Appellant had been injecting power into the grid in the

absence of any agreement at all. Further, the respondents were also aware that the initial agreements had expired and the Appellant continues to inject power into the grid despite the expiry of the agreements. That is not the case herein. In the instant case, the Appellants started injecting power into the grid on the date of commissioning of the power plants without waiting for formal execution of LTOA agreements which was mandatory in view of Clause 5(A) of the WBA as well as the solar Policy, 2014. Further, in the TGV SRAAC case, there was no evidence that the Appellant intended to supply power gratuitously to the respondent discoms whereas in the instance case, the Appellants by way of undertaking dated 30th March, 2017 had specifically undertaken to supply free power generated from their power plants to the Jodhpur Discom till execution of LTOA agreement.

32. Further it has been brought to our notice that the said judgement of this Tribunal has been stayed by the Hon’ble Supreme Court by order dated 5th August, 2024 passed in Civil Appeal No. 8522 of 2024.

33. In so far as the Greenko case is concerned, this Tribunal has held as under :- “28. We are unable to affirm these findings of the Commission in the impugned order. We have held

hereinabove that in this case, EPA remained to be executed between appellant and the MSEDCL not due to any fault / inaction on the part of appellant but on account of arbitrary as well as unjust approach of the MEDA. Further, in paragraph 19 of the impugned order, already reproduced hereinabove, the Commission has observed that in absence of a valid EPA or agreement, even though generator provides forecast / schedule asper RE F&S Regulations, such schedule cannot be accepted as there is no identified counter party to use such energy injected into the grid. However, in the instant case, the injection of power into the grid from subject WTG by the appellant and its scheduling has been duly accepted by MSEDCL without any demur for 5 years till the WTG was disconnected on 11.06.2020. Admittedly, MSEDCL did not intimate the appellant at any point of time that the energy pumped from the subject WTG into the grid cannot be accepted as the same is being done without a valid EPA. Moreover, the WTG was formally commissioned on 31.10.2015 in pursuance to the PTC issued by MSEDCL itself on the recommendation of MEDA and connected to the

MSEDCL Grid at common metering point at 220/33 KV Khanapur Sub-Station. Since then, MSEDCL continued to receive energy from the WTG uninterruptedly, without asking the appellant to produce registration certificate from MEDA and to execute EPA. It is not the case of MSEDCL that it has not supplied the power received from subject WTG to its consumers for gain. In fact, for some period of time, it has also issued credit notes to appellant for such power. Therefore, in such a scenario MSEDCL cannot be permitted to evade payment to the appellant for the power received in its grid from the WTG in question”

34. It is evident that in the said case this Tribunal found that the wind power had been injecting into the grid by the Appellant with the consent of the Discom as credit notes were also issued by the discom to the Appellant for some period. In the instant case, there does not appear to be any consent on behalf of the Rajasthan Discoms for injection of power into the grid by the Appellants from their captive power plants. Further, the submission of the undertaking dated 30th March, 2017 by the Appellants in the instant case makes it totally distinct from the facts of the above noted case, signifying the intention of the Appellants to

supply power gratuitously to the Discoms till the execution of the LTOA agreements.

Conclusion

35. In view of the above discussion, we do not find any error or infirmity in the impugned order of the Commission. The appeals are sans any merit and are accordingly dismissed. Pronounced in the open court on this 3rd day of September, 2025. (Virender Bhat) (Sandesh Kumar Sharma) Judicial Member Technical Member (Electricity)  REPORTABLE / NON REPORTABLE js