APTEL Clarifies: Captive Generators Must Secure Open Access Before Claiming Dues

The Appellate Tribunal for Electricity (APTEL) has dismissed appeals filed by two captive solar developers in Rajasthan, ruling that they cannot claim compensation for electricity injected into the grid before securing long-term open access (LTOA). The order effectively upholds an earlier decision of the Rajasthan Electricity Regulatory Commission (RERC).

The dispute involved M/s Technocrats and Managers Society of Advanced Learning and Gramothan and Meels Hotels Pvt. Ltd., both of which operate 500 kW captive solar plants. The companies had sought energy adjustment for the six-month period between April 2017, when their projects were commissioned, and October 2017, when the LTOA agreements were formally executed.

What the petitioners said? 

The developers argued that their Wheeling and Banking Agreement with Jaipur Discom entitled them to the adjustment of energy from the date of commissioning. They insisted that the clause linking this entitlement to the grant of open access by Rajasthan Rajya Vidyut Prasaran Nigam (RVPNL) should not be treated as a hard condition. They also leaned on Section 9(2) of the Electricity Act, 2003, and a Supreme Court ruling in the MSEDCL–JSW Steel case, claiming that captive generators enjoy an automatic right to open access provided transmission capacity exists.

Adding weight to their plea, the appellants maintained that an undertaking they had given in March 2017 — agreeing to supply free power to Jodhpur Discom until LTOA was approved — should be considered void, as the fiscal incentives that motivated them to commission the projects before March-end never materialised. They also cited earlier APTEL rulings in the TGV SRAAC and Greenko cases to argue that power injected into the grid without objection from Discoms ought to be compensated.

APTEL's Observations

The tribunal, however, sided firmly with the regulator. It noted that Clause 5(A) of the WBA left no room for ambiguity: energy adjustment was explicitly conditional upon the grant of open access. The bench, comprising Judicial Member Virender Bhat and Technical Member Sandesh Kumar Sharma, observed that while the Supreme Court had ruled that State Commission approval was not required for open access, it had never suggested that generators could bypass the execution of an LTOA agreement altogether.

The judges stressed that both Rajasthan’s solar policy and the detailed procedure for intra-state LTOA made it mandatory to sign a commercial agreement before drawing or injecting power through the network. They placed particular emphasis on the undertaking of March 2017, in which the companies had voluntarily agreed to supply electricity free of charge to Jodhpur Discom until the LTOA was finalised. Having availed themselves of the benefits of early commissioning, the appellants could not later retract that commitment, the tribunal ruled.

Past Judgements 

APTEL also dismissed the reliance on past judgments. In both the TGV SRAAC and Greenko cases, there had been no undertaking to supply power gratuitously, and in some instances the Discoms had even issued credit notes, signalling tacit consent. By contrast, in the Rajasthan matter, the petitioners injected power without formal consent and against the backdrop of a binding undertaking to supply it free.

Concluding that the claims lacked legal or regulatory basis, the tribunal upheld the RERC’s order and dismissed both appeals. The decision reinforces the principle that captive power producers in Rajasthan must adhere strictly to open access protocols and cannot expect retrospective compensation for grid injections made outside the framework of valid agreements.