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2026 DAILYLAW 16709 (HP)

Bhavik Jain v. State of H. P.

2026-02-25

Jyotsna Rewal Dua

body2026
JUDGMENT : Jyotsna Rewal Dua, J. 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 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 objections to the applicability of the Act raised herein were also urged before the said authority. RERA considered these 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 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., Civil Appeal No.3339 of 2023, decided on 16.08.2023. 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:- “77. Versus Bikartan Das & Ors., Civil Appeal No.3339 of 2023, decided on 16.08.2023. 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:- “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 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.” 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. 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 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 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 others, (2021) 6 SCC 771 , 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 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. 27.5. 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. 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 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. & another, LPA No.492 of 2024, decided on 09.01.2026:- “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 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. 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 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 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. 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. 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 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 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. 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. 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 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 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. 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 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 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. 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. 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 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 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 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 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 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.” 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 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. 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 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. Accordingly, this writ petition is dismissed alongwith pending miscellaneous application(s), if any.