APTEL Dismisses BESCOM's Stay Plea Over Delayed Challenge to KERC Tariff Order, Cites Acquiescence and Lack of Urgency

APTEL refused to stay a 2021 KERC order restoring PPA tariff of Rs.5.07/kWh to a solar developer, finding BESCOM had slept on its rights for over four years.

The Appellate Tribunal for Electricity (APTEL) on 20 May 2026 dismissed an interim application filed by Bangalore Electricity Supply Company Ltd (BESCOM) seeking a stay of a Karnataka Electricity Regulatory Commission (KERC) order dated 30 December 2021. That order had condoned a 114-day delay in commissioning a 20 MW solar power project by M/s Brics Renewable Energy Pvt. Ltd. and held the developer entitled to the PPA tariff of Rs.5.07 per kWh. APTEL found that BESCOM had not only accepted the order for over one and a half years and paid differential tariff to the developer, but had also approached the wrong forum before eventually filing this appeal. With the PPA running until 2041, the Tribunal held that no case for interim stay had been made out.

The Tariff Dispute and the KERC Order

M/s Brics Renewable Energy Pvt. Ltd. operates a 20 MW solar power project and had entered into a Power Purchase Agreement with BESCOM. The developer sought extension of the Scheduled Commissioning Date (SCOD) before KERC, citing three force majeure events: introduction of GST (62 days), delay in signing a supplementary PPA (96 days), and delay in issuing evacuation approval (555 days).

KERC ruled against the developer on the first two grounds but condoned the delay attributable to the third — the delay in issuing evacuation approval. On that basis, KERC held the developer entitled to the agreed PPA tariff of Rs.5.07 per kWh rather than the lower generic tariff of Rs.4.36 per unit. The differential between the two rates formed the financial core of the dispute.

APTEL, after perusing the impugned order, noted that it prima facie concurred with KERC's reasoning on the evacuation approval ground, though it expressly declined to give detailed reasons so as not to prejudice either party at the stage of final disposal.

BESCOM's Conduct: Payment, Wrong Forum, and Prolonged Delay

BESCOM did not challenge the KERC order for approximately one year and seven months after it was passed on 30 December 2021. During that period, BESCOM paid Rs.1,14,11,059 to the developer in November 2022 towards differential tariff for the period from January 2018 to October 2022 — the difference between the PPA tariff and the generic tariff.

When BESCOM eventually moved to challenge the order, it filed a writ petition before the Karnataka High Court on 30 June 2023. The High Court never stayed the impugned KERC order at any point during the pendency of that petition. BESCOM continued paying tariff to the developer in terms of the KERC order throughout. The writ petition was ultimately dismissed as withdrawn on 15 April 2024.

BESCOM filed the present appeal before APTEL on 22 July 2024, approximately three months after the writ petition was withdrawn. Even after filing the appeal, BESCOM did not press the interim application with any urgency. The Tribunal noted that adjournments had been sought regularly, on several dates by BESCOM itself, leaving the interim application pending for close to two years.

The Equity Principle: Law Aids the Vigilant

APTEL's reasoning on the stay application turned entirely on equitable principles rather than the merits of the underlying tariff dispute. The Tribunal invoked the Latin maxim vigilantibus non dormientibus jura subveniunt — law helps those who are awake, not those who sleep on their rights — to frame its refusal.

The Tribunal held that interim stay, being equitable relief, cannot be granted to a party that shows no urgency and commits delay in approaching the appropriate forum. It observed that once a party waits for months and even partly complies with the impugned order, it can fairly be assumed that there was no real urgency or genuine ground for assailing the order. Delay, the Tribunal held, suggests acquiescence, and granting a stay at that stage would unfairly prejudice the other side.

Applying this to BESCOM's conduct, the Tribunal found the distribution company's approach lackadaisical at every stage: no challenge for nearly nineteen months, payment of differential amounts, a writ petition before the wrong forum, no stay obtained from the High Court, withdrawal of that petition, and then a further two-year delay in prosecuting the interim application before APTEL itself.

The Tribunal addressed the three-part test for interim stay directly. It accepted that BESCOM appeared to have made out a prima facie case on the grounds raised in the appeal. However, it held that a prima facie case alone is not sufficient when the other two factors — likelihood of irretrievable loss and balance of convenience — are not in the applicant's favour. On both counts, APTEL found against BESCOM.

Condonation of Delay Does Not Assist the Stay Plea

BESCOM had obtained condonation of delay in filing the appeal itself, by APTEL order dated 30 September 2024. The Tribunal clarified that this had no bearing on the interim stay application. Condonation of delay in filing the appeal and entitlement to interim relief are separate inquiries, and the former does not tilt the balance of convenience in the appellant's favour on the latter.

Recovery Through the PPA Itself

The Tribunal also pointed to a practical safeguard that weighed against irretrievable loss. The PPA between BESCOM and the developer is valid for 25 years, running until 2041. Under the agreement, the developer is bound to supply the entire power generated to BESCOM throughout that period. The Tribunal held that if BESCOM ultimately succeeds in the appeal, it would have sufficient time within the remaining PPA tenure to recover the differential tariff amounts from the developer. This further undermined any claim of irretrievable prejudice in the absence of a stay.

Order

APTEL dismissed IA No. 1262 of 2024, refusing to stay the KERC order dated 30 December 2021. The Tribunal directed that nothing said in the interim order shall be treated as its opinion on the merits of the appeal, which will be considered at the time of final disposal.

On the main appeal — Appeal No. 482 of 2024 — the Tribunal noted that pleadings are already complete and directed the Registry to include the matter in the “List of Finals” to be taken up in turn.

The order was pronounced in open court on 20 May 2026 by Hon'ble Mr. Virender Bhat, Judicial Member.