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2025 Supreme(Online)(Del) 7653
IN THE HIGH COURT OF DELHI AT NEW DELHI
DEVENDRA KUMAR UPADHYAYA, C, Tushar Rao Gedela, JJ
INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY LIMITED – Appellant
Versus
CHHATTISGARH STATE POWER DISTRIBUTION CO. LTD & ORS. – Respondent
LPA 434/2025 | LPA 468/2025
For the Appellants/Petitioners: Mr. Raghavendra Shankar, Mr.Anshuman Chowdhury, Ms. Pallavi Mishra, Mr. Rajesh Gogna, Ms.Priya, Mr. Shivam Tiwari, Ms.Rebina
For the Respondents: Mr. Arun Bhardwaj, Mrs. Suparna Srivastava, Mr. Nitai Agarwal, Ms. Neha Mishra, Ms.Arshha, Mr. Shashwat Dubey
The Generation Based Incentive must be computed based on the tariff determined by the CERC, as it cannot be altered by subsequent committee decisions, and claims may be waived through acquiescence.
Headnote:(A) Guidelines for Rooftop PV & Small Solar Power Generation Programme, 2010 - Generation Based Incentive (GBI) - Appellant contends GBI should be calculated based on a tariff rate of Rs. 15.84/kWh as per decision of Committee dated 15.03.2013. Respondent claims it should be Rs. 17.91/kWh. Court held that the Committee's decision alters the Guidelines and is not binding as per the original provisions stating GBI must be based on the difference between CERC determined tariff and Base Rate. (Paras 40-62)
(B) Waiver and Acquiescence - The court examined whether the respondent's claims were waived under acquiescence due to acceptance of previous tariff decisions. It found that the respondent had acted inconsistently with its rights in seeking relief, failing to challenge previous decisions, thus waiving their claims for GBI based on revised tariff rates. (Paras 55-58)
Facts of the case:
The respondent, a Distribution Utility, sought computation of GBI based on a revised tariff. Previous agreements and decisions suggested a lower base rate. The court evaluated multiple agreements around GBI computation and prior dismissals in appellate courts.
Findings of Court:
The court found the claims were barred by waiver of rights and that the original tariff could not be altered by committee decisions. The learned Single Judge's conclusions were set aside, prevailing the appellant's arguments.
Issues: The two main issues were the validity of the committee's decision on GBI computation and whether the respondent had waived its right to challenge based on prior decisions.
Ratio Decidendi: The decision of the committee did not hold as the guidelines were misinterpreted; also, the respondent's delayed action and lack of challenge to prior decisions led to waiver of its claims.
Result: Appeals allowed and the order of the learned Single Judge is set aside.
DEVENDRA KUMAR UPADHAYA, C.J.
1. Since in these two intra-court appeals the same judgment and order dated 21.05.2025, passed by the learned Single Judge allowing W.P.(C) No. 4527/ 2017, is under challenge, both the matters have been taken up together and are being decided by the common judgment and order which follows:
FACTS
2. With a view to give thrust to Rooftop and other Small Solar Plants connected at distribution network at voltage levels below 33 kV under the Jawaharlal Nehru National Solar Mission, Ministry of New and Renewable Energy (hereinafter referred to as the ‘Ministry’) of Government of India launched a Scheme/ Programme of Generation Based Incentives (hereinafter referred to as ‘GBI’), and accordingly, issued guidelines for the said purpose on 16.06.2010 known as Guidelines for ‘Rooftop PV & Small Solar Power Generation Programme (hereinafter referred to as the ‘Guidelines’)
3. As per the Guidelines, there are three players to work the said Scheme, namely (i) the Project Proponent which would be selected for development of solar power projects to be connected to distribution network, (ii) the Local Distribution Utility in whose area the plant is located and (iii) the Programme Administrator (Indian Renewable Energy Development Agency Limited, IREDA) which was to enter into a Memorandum of Understanding with the Distribution Utility for disbursement of GBI. The Programme Administrator, IREDA, is responsible for registration of projects seeking GBI, maintenance of a transparent system of the registered projects, issuance of certificates confirming GBI and disbursement of GBI to the Distribution Utility.
4. The Project Proponent is the developer/ owner of the Rooftop PV or other Small Solar Generation Project who wishes to participate in the Scheme/ Programme and is responsible for applying for pre-registration, execute documents, apply for registration, intimate the Programme Administrator about the achievement of milestones, comply with its obligations and reporting requirements, fulfil its financial obligations, operate the solar power plant and provide appropriate facility/ instrumentation/ metering arrangements to enable remote monitoring of generation of power. The role of the Distribution Utility is to enter into a Memorandum of Understanding (MoU-1) with the Project Proponent for the purchase of power at rates to be determined by the concerned State Electricity Regulatory Commission (hereinafter referred to as the ‘SERC’). The Distribution Utility was to enter into another Memorandum of Understanding (MoU-2) with the Programme Administrator (IREDA) for availing GBI. The Distribution Utility was also to provide certificate of power purchased from the Project Proponent to the Programme Administrator on monthly basis.
5. Thus, under the scheme, the Distribution Utility is to purchase power from the Project Proponent, and thereupon, it is to claim GBI from the Programme Administrator (IREDA) on fulfilment of certain requirements.
6. The issue raised in the writ petition filed by the respondent No.1 – petitioner (Chattisgarh State Power Distribution Company – the Distribution Utility) relates to the computation of GBI to be paid to the Distribution Utility by IREDA, the appellant. The prayer made in the writ petition is extracted hereunder:
“a. Issue a writ of mandamus or any other writ, order or direction in the nature thereof to the Respondent Nos. 1 & 2 to pay Generation Based Incentive to the Petitioner as per the GBI Policy dated 16.06.2010, that is, by computing GBI as the difference between the tariff determined by the CERC vide order dated 26.04.2010 in Petition No. 53/2010 (i.e. Rs. 17.91/kWh) and the Base Rate (i.e. Rs. 5.665/ kWh), including for captive consumption of solar power generated (to be measured on AC side of the inverter), with effect from the date of commissioning of the solar power plants established by the Respondent Nos. 6 & 7 respectively, and to pay the balance GBI due a
