Order RA-02 of 2026 in P. No. 84 of 2025 | Order dated 08.10.2026 | Coram: Shri Mukesh Garg (Chairman) and Shri Shiv Kumar (Member)
Introduction
The Haryana Electricity Regulatory Commission (HERC) has dismissed a review petition filed by Realtech Infrastructure Ltd. against its final order of 27 March 2026. The Commission did not examine the merits. It held the petition barred by limitation and non-maintainable, because the prescribed review filing fee was paid late and no application for condonation of delay was ever filed.
The order, passed on 8 October 2026 in Case No. HERC/RA-02 of 2026, is a reminder that procedural compliance can decide a case before its substance is considered. It also leaves unanswered two questions the petitioner raised: whether a refund ordered by a regulator must carry interest, and whether bank guarantees must be returned once the demand they secured has been set aside.
Background: The Original Dispute
The dispute concerns an IT Park project at Anangpur Village, Sector 37, Faridabad, being developed under License No. 281 of 2007. The license was originally issued to M/s Dove Infrastructure Pvt. Ltd. for a single integrated area of about 8.50 acres. Realtech Infrastructure Ltd. (RIL) holds beneficial interest in a portion of the project, which it described as 46% of the FAR. The remainder is held by a co-shareholder, M/s ABW Infrastructure Ltd.
In its original petition (P. No. 84 of 2025), RIL challenged a demand by Dakshin Haryana Bijli Vitran Nigam (DHBVN). Under Memo No. CH-51/GC-149 dated 16.12.2024, DHBVN had demanded ₹1,97,29,558 as the differential cost of external infrastructure between 33 kV and 11 kV, calculated on 33 kV estimates.
RIL argued that:
- Its share of the project required an ultimate load of only 2640.64 kW / 2934.04 kVA, against the sanctioned load of 5742.19 kW / 6380.21 kVA for the whole project.
- A load of that size qualifies for supply at 11 kV under the HERC Supply Code.
- It had already borne about ₹1,16,96,495 towards the 11 kV estimate.
- It had paid ₹46,92,714 on 14.05.2024 as the first instalment of the differential cost, and had furnished bank guarantees of ₹42,43,000 and ₹11,39,871, totalling ₹53,82,871.
DHBVN countered that the license is a single integrated entity and that Sales Circular No. D-21/2020 and the HERC Single Point Supply Regulations, 2020 require the electrification plan to be approved for the complete scheme. It also relied on Regulation 3.2.2 of the Supply Code, which puts the differential cost on the consumer where supply at 11 kV is given in place of 33 kV.
The Final Order of 27 March 2026
On 27.03.2026 the Commission allowed RIL’s petition provisionally. It accepted that the matter rested on the principle that statutory regulations cannot be set aside for individual commercial hardship, and that RIL remained liable as a joint developer under a single license. But it found that enforcing total liability would be “unduly burdensome” given the impasse created by NCLT and Enforcement Directorate proceedings against the majority shareholder.
The Commission directed that:
- Revised electrification plan: DHBVN would consider and approve a revised plan based on the reduced load of 2640.64 kW / 2934.04 kVA for the project as a whole. Since that load qualifies for 11 kV supply, the 33 kV/11 kV differential cost would not apply.
- Provisional arrangement: The arrangement would be revocable if the co-shareholder, M/s ABW Infrastructure Ltd., commences development and the total project load qualifies for 33 kV. The project would then be reassessed holistically under the single license, and proportionate differential cost would apply.
- Refund or adjustment: The ₹46,92,714 deposited by RIL would be adjusted against existing liabilities or, alternatively, refunded “in accordance with the applicable rules.”
- Demand set aside: The demand notice of ₹1,50,36,844 for the balance differential cost was declared infructuous and set aside.
The order was silent on interest and on the bank guarantees, even though RIL’s original prayers had sought interest at 18% per annum and the withdrawal of the demand.
The Review Petition
RIL filed a “limited” review under Section 94(1)(f) of the Electricity Act, 2003, read with Regulations 57 and 65 to 70 of the HERC (Conduct of Business) Regulations, 2019. It said it was not reopening the merits and sought only two things:
- Interest on the ₹46,92,714, preferably at 18% per annum from 14.05.2024 until refund or adjustment.
- Release of the two bank guarantees, which it said were furnished against a demand that no longer exists.
Grounds
RIL argued that the omission was an error apparent on the face of the record. It said a refund without interest defeats restitution, that DHBVN had been unjustly enriched by holding the money for nearly two years, and that the amount was paid under protest. It also pointed out that DHBVN itself charges consumers a late payment surcharge of 18% per annum, so denying interest to a consumer was inequitable.
It relied on Virender Sharma v. Director, Enforcement Directorate (Delhi High Court, 2012), Urban Improvement Trust, Bikaner v. Mohan Lal (Supreme Court, 2009), South Eastern Coalfields Ltd. v. State of M.P. (Supreme Court, 2003), and a HERC order in Lanco Amarkantak Power Ltd. v. HPPC. In written submissions it added a UPERC decision in Noida Power Company Ltd. v. UPPTCL, an APTEL judgment in Essar Power Gujarat Ltd. v. GERC, and a 2026 Bombay High Court ruling involving Bharti Airtel and Vodafone Idea on the return of bank guarantees. These authorities are as described in the order. Their accuracy is not examined there, since the Commission did not reach the merits.
DHBVN’s Defence
DHBVN raised both procedural and substantive objections:
- Limitation: The petition is dated 11.04.2026 and was registered on the portal on 23.04.2026, but the fee was deposited only on 04.06.2026. DHBVN said the real date of institution is therefore 04.06.2026, beyond the 45-day limit, and that no condonation application had been filed.
- No error apparent: Declining interest was a deliberate exercise of discretion, since interest had been specifically prayed for in the original petition. The direction to refund “in accordance with the applicable rules” was complete and not an omission.
- No wrongful retention: The demand was validly raised under Regulation 3.2.2, and the Commission’s own order recognised DHBVN as legally justified in treating RIL as jointly liable. Relief was granted only because of the “genuine impasse” caused by insolvency proceedings against the co-developer. Restitution principles, DHBVN argued, presuppose wrongful or illegal retention.
- Bank guarantees: This was a fresh relief that cannot be sought in review, and the remedy for non-adjudication is an appeal under Section 111 of the Act before APTEL.
- Late payment surcharge: It is a regulatory levy on consumers and cannot be equated with interest on refundable amounts held by a utility.
DHBVN relied on Kamlesh Verma v. Mayawati [(2013) 8 SCC 320] and Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. for the narrow scope of review jurisdiction.
The Procedural Journey
The procedural history matters most in this order.
- 11.04.2026: The date on the review petition.
- 23.04.2026: The petition was registered on the Commission’s portal.
- 19.05.2026: The Commission heard IA No. 13 of 2026, in which RIL sought exemption from the ₹50,000 review filing fee. RIL’s counsel argued that court fee had been paid in the main petition. The Commission held that a review petition is an independent proceeding and must comply with the prescribed fee requirements. It also noted that exemption without exceptional grounds would invite similar claims in every review petition.
- 26.05.2026: The Interim Order disposed of IA-13, refusing exemption and directing deposit of the fee within one week, failing which the petition would be treated as non-maintainable.
- 04.06.2026: RIL deposited the fee, after the one-week period.
- 18.06.2026: DHBVN filed its reply.
- 25.08.2026: The matter was heard. DHBVN’s counsel argued limitation. The Commission observed that the review had not been filed within limitation, directed RIL to file submissions by 11.09.2026, and reserved the order.
- 02.09.2026: An interim order recording the above.
- 11.09.2026: RIL filed written submissions covering both limitation and merits.
- IA-47 of 2026: DHBVN applied to recall the interim order of 02.09.2026, saying the hearing was confined to limitation, that it had no opportunity to respond on merits, and that its own appeal against the 27.03.2026 order is pending before APTEL as DFR No. 425 of 2026, with a hearing listed for 12.10.2026.
RIL’s Answer on Limitation
RIL’s written submissions made several arguments:
- Limitation should be counted from presentation on 11.04.2026, which was within 45 days of the order. Paying the fee on 04.06.2026 was a cure of a procedural defect and not a fresh institution.
- The delay in paying the fee was due to the pending exemption application.
- The interim order of 26.05.2026 was never served on it by email or any other mode, though Regulation 26(4) contemplates email service. Regulation 57(1) also reckons the 45 days from “receipt” of the order.
- The Commission’s website was migrating from the “gov.in” to the “org.in” domain, which hindered access to the order.
- It paid the fee promptly on becoming aware of the direction and informed both the Commission and DHBVN.
- Regulation 72 empowers the Commission to extend time for sufficient reason, and Regulation 73 provides that non-compliance does not invalidate proceedings unless it results in miscarriage of justice.
- In the alternative, any delay should be condoned.
The Commission’s Decision
The Commission’s reasoning is concise. It records that it examined the petition, replies and rejoinders and heard both sides. It then identifies maintainability and limitation under Section 94(1)(f) of the Act and Regulation 57 as the primary issue, and reasons as follows:
- Its Interim Order of 26.05.2026 had held that review proceedings are maintainable only upon fulfilment of the statutory conditions under Order XLVII Rule 1 and Section 114 CPC, and had directed deposit of the fee within one week, failing which the petition would be treated as non-maintainable.
- The fee was deposited only on 04.06.2026.
- No application for condonation of delay under Regulation 72 was ever made.
- In the absence of such an application and an order condoning the delay, the petition cannot be deemed instituted within limitation.
The Commission accordingly dismissed the review petition “on maintainability and limitation in strict adherence to prevailing regulatory frameworks,” and disposed of DHBVN’s IA-47 as infructuous.
Analysis and Key Takeaways
The observations below are commentary on the order and not part of it.
1. Procedure can decide the case. The merits of interest on refunds and the release of guarantees were never examined. The decision turns on a payment made a few days late and a condonation application that was never filed. For practitioners, the lesson is to file a formal Regulation 72 application whenever there is any doubt about timing, even while arguing in the alternative that no delay exists. RIL’s written submissions asked for condonation, but only in the alternative and within its written arguments, and the Commission wanted a formal application.
2. A fee exemption application does not stop the clock. The Commission treated the review petition as an independent proceeding that must meet the fee requirement. Litigants before state commissions should assume that a pending exemption request does not suspend limitation or excuse non-payment.
3. The date of “institution” remains contested. RIL said the petition was presented on 11.04.2026 and the fee was a later cure. DHBVN said it was validly instituted only on payment. The order does not engage in detail with the argument that presentation, not fee payment, fixes the date of filing, nor does it discuss Regulation 73 or the service and website-migration arguments. Whether that approach holds on appeal, should RIL pursue one, may attract scrutiny.
4. Interest on refunds and return of guarantees remain open. Because the Commission did not decide the merits, there is no ruling on whether a regulator’s refund direction must carry interest, or whether bank guarantees automatically fall once the underlying demand is set aside. DHBVN’s arguments that interest is discretionary and that review cannot supply unadjudicated relief were likewise not tested. Parties in similar disputes should therefore seek express directions on interest and security in the original prayer and press for them at the final hearing.
5. The larger dispute continues at APTEL. DHBVN’s appeal against the 27.03.2026 order (DFR No. 425 of 2026) was listed for hearing on 12.10.2026. The outcome there could reshape the entire arrangement, including whether the provisional 11 kV approval and the refund directions survive.
Conclusion
Order RA-02 of 2026 shows that review jurisdiction is narrow, and that procedural defaults in invoking it can end a petition before its arguments are heard. For Realtech Infrastructure Ltd., the dismissal leaves the interest and bank guarantee claims unresolved at the Commission. For DHBVN, it removes a challenge to the March 2026 order, though that order remains under appeal. For lawyers and developers in the power sector, the message is to treat fee payment, limitation and condonation as substantive requirements and not formalities.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. It is based on the text of the order as provided and readers should consult the original order for authoritative detail.