NPCIL v. CERC: no electricity-regulator jurisdiction over atomic-power tariff

The facts in brief

Nuclear Power Corporation of India Limited (NPCIL), a Central public-sector generating company, supplies power to Gujarat Urja Vikas Nigam Limited (GUVNL), the procuring licensee, under two long-term Power Purchase Agreements. The first, dated 22 September 2005, covers 125 MW from Kakrapar Units 1–2 and 274 MW from Tarapur Units 3–4. The second, dated 16 December 2008, covers 160 MW from Tarapur Units 1–2. Charges under both agreements were referenced to the tariff notification issued by the Department of Atomic Energy (DAE) under the Atomic Energy Act, 1962, with rates subject to adjustment as advised by DAE under the agreements' Clause 7.

A dispute arose over the effective tax rate on Return on Equity, following the DAE tariff notification of 8 February 2012 and subsequent Central-Government notifications. GUVNL took the grievance to CERC in Petition No. 98/MP/2023. By interim order dated 13 January 2024, CERC — after construing both the Atomic Energy Act and the Electricity Act — held that it possessed jurisdiction under Section 79(1)(f) to adjudicate disputes between GUVNL, as licensee and procurer, and NPCIL, as generator, arising under the two agreements. NPCIL appealed to APTEL in Appeal No. 134 of 2024, seeking to set aside that interim jurisdictional finding before any adjudication on the merits could proceed.

The jurisdictional architecture of Section 79

Section 79 of the Electricity Act, 2003 confers a bundle of functions on CERC. Section 79(1)(a) empowers the Commission to regulate the tariff of generating companies owned or controlled by the Central Government, and of others operating in more than one State. Section 79(1)(f) empowers the Commission to adjudicate disputes involving such generating companies and to refer them to arbitration.

The Tribunal's analysis turned on the relationship between these two clauses. Adjudicatory jurisdiction under clause (f), it reasoned, is not free-floating; it is parasitic on the regulatory jurisdiction under clause (a). The Commission adjudicates disputes about tariffs that it has the power to regulate. Where the tariff in question is one the Commission has no power to regulate, the dispute about it falls outside the Commission's adjudicatory reach as well.

Why the atomic-power tariff sits outside CERC

The pivot is the special statutory scheme for atomic energy. Tariff for electricity generated from atomic power stations is fixed not by the regulatory Commission but by the Central Government, acting through the Department of Atomic Energy, under Section 22(1)(b) of the Atomic Energy Act, 1962. The two Power Purchase Agreements themselves provided that charges would be referenced to the DAE tariff notification and adjusted as DAE advised. The rate-fixing authority, in other words, was the Central Government under a sectoral special statute, not CERC under the general electricity legislation.

From this the Tribunal drew its conclusion. If CERC cannot regulate the tariff for atomic-station electricity under Section 79(1)(a) — because that function belongs to the Central Government under the Atomic Energy Act — then it cannot adjudicate a dispute about the fixation of that tariff under Section 79(1)(f).

The interim order asserting jurisdiction was therefore made without jurisdiction and could not stand.

Where the displaced dispute goes

Setting aside CERC's jurisdiction did not leave GUVNL without a forum. The Tribunal located the displaced remedy in two places. First, the Power Purchase Agreements contained their own arbitration clause, the natural home for a contractual dispute over charges. Second, drawing on the classic exposition in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, the Tribunal observed that a dispute which does not concern the enforcement of a statutory right, and for which no special statutory remedy is provided, falls to be resolved by the civil court in a suit under Section 9 of the Code of Civil Procedure. Where a special statute neither creates the right asserted nor supplies a tribunal to enforce it, the general jurisdiction of the civil court is not ousted.

The Tribunal was careful to clarify that its order does not disable GUVNL from pursuing such other remedies as are available in law. The holding is jurisdictional, not merits-determinative: it decides who may adjudicate, not who wins.

Interim jurisdictional orders are appealable

A procedural feature of the decision deserves note. CERC's finding on jurisdiction was an interim order, made before any adjudication of the tariff dispute on its merits. The Tribunal treated that interim jurisdictional finding as appealable to APTEL and capable of being set aside in advance of the merits. A respondent dragged before a forum that lacks jurisdiction need not litigate the merits to conclusion before challenging the forum's competence; the threshold question of jurisdiction can be taken up and resolved on its own. Permitting an interim jurisdictional finding to be tested at once spares the parties a full tariff adjudication that might, in the end, be a nullity for want of jurisdiction.

The interaction of two statutes

At a deeper level the decision is an exercise in reconciling two statutes that both speak to electricity from atomic stations. The Electricity Act, 2003 is the general law of the power sector, vesting the regulatory commissions with tariff and adjudicatory functions. The Atomic Energy Act, 1962 is a special statute governing the atomic-energy field, under which the Central Government, through the Department of Atomic Energy, fixes the tariff for power from atomic stations. Where a general and a special statute both touch a subject, the special statute ordinarily governs the field it specifically occupies.

The Tribunal applied that logic to the tariff question. The fixation of rates for atomic-station electricity is a matter committed by the special statute to the Central Government under Section 22(1)(b) of the Atomic Energy Act. The general regulatory commission's tariff powers under the Electricity Act do not displace that special allocation. And because the commission has no power to regulate the tariff, it acquires no derivative power to adjudicate disputes about its fixation. The two statutes are read so that each operates in its own sphere: the Electricity Act governs the ordinary run of generation tariffs, while the atomic-station tariff remains within the special regime of the Atomic Energy Act.

The Power Purchase Agreements reinforced rather than displaced that allocation. Both referenced the DAE tariff notification and provided for adjustment as DAE advised. The parties had themselves tied the charges to the special-statute regime, so the dispute over the effective tax rate on Return on Equity was, at bottom, a dispute about the operation of a Central-Government-fixed tariff — precisely the matter the Tribunal held to lie outside CERC's adjudicatory reach.

Why the order matters

This is the corpus's first standalone APTEL order, and it establishes APTEL's appellate review of CERC jurisdictional findings. More importantly, it supplies a clean jurisdiction-mapping rule: where a sectoral special statute fixes a tariff through the Central Government, the general electricity regulator's adjudicatory jurisdiction under Section 79(1)(f) does not reach a dispute about that tariff. Adjudicatory jurisdiction is parasitic on regulatory jurisdiction — no Section 79(1)(a) regulation, no Section 79(1)(f) adjudication. It is the corpus's first worked example of the link between those two clauses.

The order draws a clean boundary around the atomic-power sector, insulating DAE-fixed tariffs from CERC adjudication and routing such disputes to arbitration or the civil court. It is a doctrinally pivotal jurisdiction decision rather than a tariff-quantum ruling, and a useful teaching vehicle for the proposition that adjudicatory power follows regulatory power. A further appeal lies to the Supreme Court under Section 125 of the Electricity Act, so finality remains open; but as a Chairperson-led APTEL judgment, the decision now governs CERC's handling of atomic-station tariff disputes.

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Sources

1. APTEL signed judgment PDF (primary source): https://aptel.gov.in/sites/default/files/2025-03/JUDGMENT%20IN%20APPEAL%20NO%20134%20OF%202024%20dtd%2027-03-2025.pdf
2. Appellate Tribunal for Electricity — About APTEL: https://www.aptel.gov.in/en/about-aptel
3. Mondaq, "Infrastructure, Projects and Energy Newsletter — August to October 2025": https://www.mondaq.com/india/renewables/1712098/
4. Central Electricity Regulatory Commission — official site: https://cercind.gov.in/