25Th February vs State Of H.P. And Others on 25 February, 2026

Himachal Pradesh High Court

Decided On: 25Th February vs State Of H.P. And Others on 25 February, 2026

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

                                                                                              2026:HHC:4153


     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                     CWP No.2052 of 2026
                                        Decided on: 25th February, 2026
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    Bhavik Jain and others                                          .....Petitioners




                                                                                                .

                                                        Versus

    State of H.P. and others                                      .....Respondents





    -------------------------------------------------------------------------------------
    Coram

    Ms. Justice Jyotsna Rewal Dua




                                                              of
    Whether approved for reporting? 1

    For the Petitioners:    rt                Mr. Ajay Vaidya, Advocate.
    For the Respondents: Ms. Seema Sharma, Deputy Advocate
                         General, for respondents No.1 and 3.

                                   Mr. Raman Ravi Verma, Advocate, for
                                   respondent No.2.
    ------------------------------------------------------------------------------------
    Jyotsna Rewal Dua, Judge

Petitioners have invoked jurisdiction under

Article 226 of the Constitution of India for assailing an

order passed by the Himachal Pradesh Real Estate

Regulatory Authority (RERA)-respondent No.2 on

12.12.2025.

2. Learned counsel for the petitioners contends

that provisions of the Real Estate (Regulation and

Development) Act, 2016 (in short ‘the Act’) have been

wrongly applied to the case of the petitioners. The same are

1
Whether reporters of print and electronic media may be allowed to see the order? Yes.

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not applicable to them as the land in question falls in a

deemed planning area and is not part of notified planning

area under the Himachal Pradesh Town & Country

Planning Act; Number of plots sold by the petitioners does

.

not exceed 8 and the total land development by the

petitioners does not exceed 2500 square meters.

3. It is not in dispute and is also apparent from the

perusal of the impugned order passed by RERA that

of
objections to the applicability of the Act raised herein were

also urged before the said authority. RERA considered these
rt
objections of facts and law. The issues were deliberated

upon and thereafter the impugned order was passed on

12.12.2025, holding the petitioners to have contravened

Section 3 of the RERA Act by developing & selling plots in a

real estate project without mandatory registration and in

violation of statutory provisions. Certain other directions

were also issued in the aforesaid impugned order. Learned

counsel for the parties have apprised that proceedings in

question are still continuing before RERA.

4. The order passed by RERA is assailable before

the Real Estate Appellate Tribunal, however, petitioners

have invoked extraordinary jurisdiction of this Court to lay

challenge to the same. For the maintainability of this writ

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petition in the face of availability of efficacious alternate

remedy, reliance has been placed upon Central Council

for Research in Ayurvedic Sciences & Anr. Versus

Bikartan Das & Ors.2. Hon’ble Apex Court in this decision

.

has considered the legal position governing exercise of

jurisdiction under Article 226 of the Constitution against

the decisions of Tribunals, Bodies or Officers. The operative

paras of the decision are as under:-

of
“77. The purpose of certiorari, as we understand, is only
to confine the inferior tribunals within their jurisdiction, so
as to avoid the irregular exercise, or the non-exercise or the
illegal assumption of it and not to correct errors of finding
rt
of fact or interpretation of law committed by them in the
exercise of powers vested in them under the statute. The

accepted rule is that where a Court has jurisdiction it has
a right to decide every question which crops up in the case
and whether its decision is correct or otherwise, it is
bound to stand until reversed by a competent Court. This
Court in G. Veerappa Pillai v. Messrs Raman and Raman

Ltd. Kumbakonam, Tanjore District and Others, (1952) 1
SCC 334 observed:

“26. Such writs as are referred to in Article 226 are

obviously intended to enable the High Court to
issue them in grave cases where the subordinate
tribunals or bodies or officers act wholly without

jurisdiction, or in excess of it, or in violation of the
principles of natural justice, or refuse to exercise a
jurisdiction vested in them, or there is an error

apparent on the face of the record, and such act,
omission, error, or excess has resulted in manifest
injustice. However extensive the jurisdiction may
be, it seems to us that it is not so wide or large as
to enable the High Court to convert itself into a court
of appeal and examine for itself the correctness of
the decision impugned and decide what is the
proper view to be taken or the order to be made.”

2

Civil Appeal No.3339 of 2023, decided on 16.08.2023

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78. In view of the aforesaid discussion, we have reached
to the conclusion that the impugned order passed by the
High Court is not sustainable in law and the same
deserves to be set aside.

79. In the result, the present appeal is allowed. The
impugned order passed by the High Court dated
17.12.2020 in the Writ Petition (C) No. 30620 of 2020 is

.

set aside.”

Present is a case where admittedly alternate

remedy of appeal provided under the Statute is exercisable

by the petitioners against the order impugned herein. It is a

of
case where alleged errors of law projected for the

petitioners, are actually based upon facts. RERA has

deliberated upon facts and given its findings. The so called
rt
errors are not self evident. Even if petitioners’ allegations

are to be considered, matter would require thorough

examination of facts and law. In Radha Krishan

Industries Versus State of Himachal Pradesh and

others3, Hon’ble Apex Court summarized the principles of

law pertaining to maintainability of writ petition before the

High Court under Article 226 of the Constitution vis-à-vis

the Rule of alternate remedy as under:-

“27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any other
purpose as well.

27.2. The High Court has the discretion not to entertain
a writ petition. One of the restrictions placed on the

3
(2021) 6 SCC 771

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power of the High Court is where an effective alternate
remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise
where: (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part III
of the Constitution; (b) there has been a violation of the
principles of natural justice; (c) the order or proceedings

.

are wholly without jurisdiction; or (d) the vires of a

legislation is challenged.

27.4. An alternate remedy by itself does not divest the
High Court of its powers under Article 226 of the

Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an
efficacious alternate remedy is provided by law.

of
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the
right or liability, resort must be had to that particular
statutory remedy before invoking the discretionary
remedy under Article 226 of the Constitution. This rule
rt
of exhaustion of statutory remedies is a rule of policy,
convenience and discretion.

27.6. In cases where there are disputed questions of
fact, the High Court may decide to decline jurisdiction in
a writ petition. However, if the High Court is objectively
of the view that the nature of the controversy requires
the exercise of its writ jurisdiction, such a view would

not readily be interfered with.”

Further with respect to maintainability of writ

petition vis-à-vis availability of alternate remedy, while

allowing the appeal and dismissing the writ petition,

following was held by the Hon’ble Division Bench in

Himachal Pradesh Electricity Board Ltd. Versus

Kundan Hydro (Luni) Pvt. Ltd. & another4:-

“37. Keeping in view the law laid down in JSW Hydro
Energy Limited case (supra), wherein the question was
framed about the maintainability of the writ petition and

4
LPA No.492 of 2024, decided on 09.01.2026

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reference was made to the earlier decision in Jaipur
Vidyut Vitran Nigam Ltd., and Others Vs. MB Power (M.P.)
Ltd., and Others (2024) 8 SCC 513 and it has been held
that the statutory Regulatory Authority has been entrusted
to discharge the function to deal with tariff determination
within the exclusive domain, while interfering with the
order of this Court. The relevant paragraphs reads as

.

under:-

34. The above principles are also reflected in a recent
decision of this Court in Jaipur Vidyut Vitran Nigam Ltd. v.

MB Power (M.P.) Ltd. Here, the High Court exercised writ

jurisdiction and directed distribution companies to procure
power from bidders, who are generating companies, at the
prices quoted in their bids till the requisite quantum of
power was procured. Allowing the appeal of the

of
distribution companies, this Court held that the High Court
was not Justified in entertaining the writ petition as the
Electricity Act is an exhaustive code and all issues dealing
with electricity must be considered by the expert bodies,
i.e., the Regulatory Commissions constituted under the
rt
Act. The relevant portion is extracted hereinbelow:

“128. We find that the High Court was not

justified in entertaining the petition. The
Constitution Bench of this Court in PTC has
held that the Electricity Act is an exhaustive
code on all matters concerning electricity.
Under the Electricity Act, all issues dealing

with electricity have to be considered by the
authorities constituted under the said Act. As
held by the Constitution Bench of this Court,

the State Electricity Commission and the
learned APTEL have ample powers to
adjudicate in the matters with regard to

electricity. Not only that, these Tribunals are
tribunals consisting of experts having vast
experience in the field of electricity. As such,

we find that the High Court erred in directly
entertaining the writ petition when Respondent
1 i.e. the writ petitioner before the High Court
had an adequate alternate remedy of
approaching the State Electricity Commission.

129. This Court in Reliance Infrastructure Ltd.
v. State of Maharashtra has held that while
exercising its power of judicial review, the
Court can step in where a case of manifest
unreasonableness or arbitrariness is made out.

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130. In the present case, there is not even an
allegation with regard to that effect. In such
circumstances, recourse to a petition under
Article 226 of the Constitution of India in the
availability of efficacious alternate remedy
under a statute, which is a complete code in
itself, in our view, was not justified.” (emphasis

.

supplied)

35. Grant of Relief by the High Court : Applying these legal
principles, we will now analyse whether the High Court
could have granted relief of aligning the Implementation

Agreement with the CERC Regulations, 2019 by exercising
writ jurisdiction. The High Court proceeded on the basis
that: (i) the appellant-State is a deemed licensee; (ii) the
CERC Regulations, 2019 are relevant not only for

of
determination of tariff but also for other purposes and are
binding on the appellant-State; and (iii) the 13% cap on
free power supply under Note 3, Regulation 55 has the
effect of overriding the free power supply clause in the
Implementation Agreement since a similar clause in the
rt
PPA and PSAs stands overridden as per the CERC’s order
dated 17.03.2022.

36. On the first aspect of whether the appellant-State is a
deemed licensee, it is clear from the impugned order that
the High Court has only cited the statutory provisions on
licensing but has neither delved into this issue nor arrived
at any express conclusion regarding the same. This is

perhaps because the parties did not raise or argue the
issue before it. However, before us, respondent no. 1
strongly contends that the appellant-State is a deemed

licensee, and the appellant has disputed the same.

37. We are of the opinion that this issue need not be

determined on merits, but is relevant to show respondent
no. 1’s conduct in taking contrary positions by filing the
writ petition. On the one hand, it is claiming that the
appellant being a deemed licensee is a regulated entity

under the Electricity Act. The sequitur of this would be that
the appellant, and its contractual rights and liabilities, are
subject to the CERC’s regulatory jurisdiction. However,
respondent no. 1 never sought relief against the appellant-
State before the CERC, as we have indicated above, and
instead filed a writ petition. Considering the contradictory
positions of respondent no. 1, it cannot be allowed to
approbate and reprobate, or blow hot and cold at the same
time to secure relief under the law.

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38. The second aspect pertains to the interpretation of
CERC Regulations, 2019 by the High Court. We have
already dealt with the interpretation of the Regulations
hereinabove, and will presently deal with the same in the
context of maintainability of the writ petition. Under the
Electricity Act, the statutory regulator has been entrusted
with discharging the function of tariff determination,

.

including making regulations for the purpose and

interpreting the same. Constitutional courts must enable
the regulator to comprehensively regulate all aspects of the
sector such that remedies are not fragmented and certain
issues are not left outside the regulator’s domain. The

regulator has the expertise, specialisation, and
institutional memory to conduct such an interpretative
exercise to further the objective of the regulatory regime

of
and systematically lay down legal principles. In this light,
the High Court should not have entered into the domain of
interpreting these Regulations which deal with tariff
determination, as the same falls within the exclusive
domain of the CERC. The Electricity Act itself provides the
rt
appellate mechanisms by establishing a specialised and
permanent tribunal, namely the APTEL, and an appeal
before this Court, against the CERC’s orders. In view of the

existence of a statutory regulatory forum, the High Court
should not have entertained the writ petition by
interpreting the CERC Regulations, 2019.

39. Equally, we are of the opinion that the High Court

incorrectly relied on the CERC’s order dated 17.03.2022 to
grant relief to respondent no. 1. As explained above, the
CERC’s order only deals with the PPA and PSAS despite
taking note of Article 5.1 of the Implementation Agreement.

Upon reading the order, it is clear that its effect is not that
of restraining respondent no. 1 from supplying free power

beyond 13%. Hence, it does not in any way adversely
affect or prejudice the-contractual rights of the appellant-
State. Hence, the High Court could not have proceeded on

the basis of this order to grant the relief of modifying the
Implementation Agreement.

40. In view of the above reasons, we hold that CERC
Regulations, 2019 do not prohibit respondent no. 1 from
supplying free power beyond 13% to the appellant-State,
and the Implementation Agreement does not stand
overridden by the operation of these Regulations. Further,
a writ petition before the High Court for aligning the
Implementation Agreement with the CERC Regulations,
2019 and the CERC’s order dated 17.03.2022 is not
maintainable. Once respondent no. 1’s prayer for relief

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was rejected by the CERC and it specifically held only the
PPA and PSAs to stand overridden, which finding was not
further appealed, it would not be open for respondent no.
1 to seek modification of the Implementation Agreement by
way of a writ petition before the High Court.

38. The judgment was delivered recently only on 16.07.2025
and therefore, the learned Single Judge did not have the

.

benefit of the said judgment. Another judgment arising from

this Court in KKK Hydro Power Limited case (supra) also
while dealing with the issue of tariff fixation at the rate of
Rs.2.87 and 2.95 per kWh and while dealing with the

Appellate Tribunals order has held that while referring to
Section 86(1) (b) of the ‘Act’ that the fixing of the price of
purchase of electricity is not a matter of private negotiations
and Agreements between the generating company and a

of
distribution licensees, while upholding the order of the
Appellate Tribunal the Apex Court had come to the conclusion
that it required no determination for the 3 Megawatts Hydel
Power Projects but only for the additional 1.9 Megawatts
was required to be re-determined.

rt

39. In Ramayana Ispat Private Limited and another Vs. State
of Rajasthan & Others (2025) 8 SCC 747, the statutory

scheme of the Electricity Act, 2003 and the regulations
framed by the State Commission were held to be facilitating
intra-Sate transmissions and wheeling of electricity and for
maintaining disciplines in power scheduling and ensuring
that consumers do not gain unfair advantage by evading

scheduling norms and for equitable treatment of all market
participants while safeguarding the integrity of the power
grid. The relevant part reads as under:-

“67. Furthermore, the 2003 Act, envisages a
balance between the rights of open access

consumers and the operational concerns of the
power sector. The 2016 Regulations, while
imposing certain conditions, do not outright
deny open access but ensure that its

implementation is equitable and does not
jeopardise grid discipline. Open access remains
available to consumers who comply with
regulatory prerequisites, including scheduling
obligations and financial commitments. Thus,
the appellant’s assertion that their right to open
access is foreclosed is misplaced. The 2016
Regulations are consistent with the legislative
intent of the 2003 Act, ensuring that open
access is exercised in a manner that does not
compromise system stability, fairness, or

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economic viability. Therefore, the regulatory
framework does not foreclose open access but
rather operationalises it within reasonable
constraints essential for sustaining the
electricity sector.

68. The statutory scheme under the 2003 Act
mandates that regulations framed by State

.

Commissions must serve the larger public

interest. The respondents have successfully
established that the impugned Regulations
serve this purpose by ensuring equitable

treatment of all market participants while
safeguarding the integrity of the power grid.

69. RERC derives its authority from the 2003
Act, which vests in it the power to frame

of
regulations governing open access, scheduling,
and penalties. Section 86(1)(c) of the 2003 Act
specifically empowers State Commissions to
facilitate intra-State transmission and wheeling
rt
of electricity. Furthermore, Section 181
empowers the Commission to make regulations
consistent with the 2003 Act and its objectives.

The impugned Regulations have been framed in
exercise of these statutory powers. The
requirement for scheduling, imposition of
penalties, and limits on drawal are not arbitrary
but are measures falling within the regulatory

ambit of the Commission to ensure grid stability
and fair competition. The 2003 Act envisions a
structured and fair mechanism for open access

while ensuring that market participants do not
engage in practices detrimental to the larger
consumer base. Moreover, under Section 42 of

the 2003 Act, the State Commission has the
mandate to regulate open access in distribution
and specify the charges and conditions

applicable. The respondents have demonstrated
that these conditions are necessary for
maintaining discipline in power scheduling and
ensuring that open access consumers do not
gain an unfair advantage over other consumers
by evading scheduling norms or penalties. 70.
The Jodhpur Bench in common order dated 29-
8-2016, which has been challenged before us in
Civil Appeals Nos.7965 and 7966 of 2019, has
rightly upheld the validity of the 2016
Regulations holding that any inconvenience

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caused or even some hardship faced by the
captive power generators shall not make the
Regulations illegal. The High Court also rightly
pointed out that the appellants have failed to 38
establish that the impugned Regulations are in
contravention of their rights protected under Part
III or any other provision of the Constitution of

.

India or that the Regulations have been enacted

without having the competence to do so or they
are manifestly arbitrary or unreasonable. It has
been rightly held by the High Court that the
2016 Regulations are in consonance with the

objects of the 2003 Act and have been framed
as per the competence available under Section
181 read with Section 42 of the 2003 Act.”

of

40. It is thus, apparent that the learned Single Judge has
mis-directed itself by choosing to decide the issue on merits
and also rejected the plea of alternate remedy on the ground
that there was an arbitrary action as such. The Board as
such had only recommended that the matter should be
rt
placed before the Electricity Regulatory Commission, keeping
in view the power as such of the Commission to fix the tariff

and once the Regulations had come into force, it was for the
Commission to see as to what would be the rate of the tariff
to be fixed between the Board and the petitioner under the
policy dated 15.05.2018 which makes it mandatory for the
Board to purchase the electricity from Projects below 10 MW.

41. Therefore, the judgment passed by the learned Single
Judge is not liable to be upheld and the appeal is liable to be
allowed. Accordingly, we set aside the judgment dated

10.09.2024 and relegate the parties to its alternate remedy
as suggested by the appellant-Board dated 16.07.2024.
Needless to say, it is for the Regulatory Commission as such

to fix the tariff as such, keeping in mind all the relevant
parameters and the fact that project has been hanging fire
since the year 2000. Neither the Board nor the State or the

petitioners can be prejudiced on account of the 25 years
having been passed and the interest as such would have to
be adjudicated, keeping in mind this aspect by the expert
body.”

Petitioners have an efficacious alternate remedy

against the impugned order under the Act. Section 43(5)

read with Section 44 of the Act provide adequate safeguards

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to the petitioners against the impugned order. It is for the

petitioners to seek appropriate statutory remedy available

to them in law against the impugned order and for urging

their grievances raised in this writ petition.

.

5. In view of above, this writ petition cannot be

entertained in light of efficacious statutory remedy available

to the petitioners against the impugned order under the

Real Estate (Regulation and Development) Act, 2016.

of
Accordingly, this writ petition is dismissed alongwith

pending miscellaneous application(s), if any.

                    rt

                                              Jyotsna Rewal Dua
    February 25, 2026                               Judge
         Mukesh








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