Supreme Court: In a batch of writ petitions and civil appeals, three distribution companies supplying electricity to consumers in the National Capital Territory of Delhi, namely, BSES Rajdhani Power Ltd., BSES Yamuna Power Ltd., and Tata Power Delhi Distribution Limited challenged the manner in which the Delhi Electricity Regulatory Commission had determined the tariff for the retail supply of electricity over the years, which had led to the creation and continuation of a “regulatory asset.”, the division bench of PS Narasimha and Sandeep Mehta, JJ. concluded the following:
- Electricity is a public good, and its generation, transmission, and distribution must be regulated to ensure equitable and universal access. Being a material resource under Article 39 of the Constitution, its governance must be guided by the Directive Principles in Part IV.
- Regulatory Commissions and governments were held equally bound by this constitutional mandate. The Court stressed the need for independence, efficiency, and objectivity in the functioning of Commissions, cautioning against regulatory failure and regulatory capture.
- Tariff determination was recognised as an exclusive regulatory function, requiring expertise and flexibility. The creation of a regulatory asset was considered a governance tool and a deferred right of revenue recovery for distribution companies, carrying with it an obligation on regulators to manage and liquidate it efficiently.
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Disproportionate and prolonged regulatory assets were deemed indicative of regulatory failure, ultimately burdening consumers. The applicable legal framework, comprising the Electricity Act, National Tariff Policy, Rules, Regulations, and APTEL precedents, was found to impose binding statutory obligations on the regulators.
The Court underscored that ineffective or externally influenced decision-making by Commissions led to regulatory failure. Their actions were subject to judicial review and oversight by APTEL, which also held significant powers under Section 121 to issue binding orders for enforcement of regulatory norms.
Finally, the Court reaffirmed the boundaries and duties associated with regulatory assets and emphasised that the regulatory regime under the Act was a complete legal code, effective only if actively and consistently enforced.
Therefore, the Court issued the following directions:
- Tariff had to be cost-reflective as a fundamental principle.
- Revenue gaps between approved Annual Revenue Requirement (‘ARR’) and actual revenues were to occur only in exceptional cases.
- The regulatory asset was not to exceed a reasonable percentage, with 3% of ARR set as the guiding benchmark under Rule 23 of the Electricity Rules.
- Any new regulatory asset created was to be liquidated within three years, using Rule 23 as a guideline.
- The existing regulatory asset (as of 01-04-2024) was to be liquidated within four years, again guided by Rule 23.
- Regulatory Commissions were directed to provide a roadmap and trajectory for liquidation, including carrying costs, and to conduct intensive audits into the reasons for continued non-recovery.
- Commissions were also instructed to follow the principles laid down in the judgment and comply with APTEL’s directions.
- APTEL was to exercise its powers under Section 121 to issue orders or directions ensuring performance of duties by the Commissions, in line with this judgment and its earlier orders dated 11-11-2011 and 14-11-2013.
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APTEL was also directed to register a suo motu petition under Section 121 to monitor compliance with directions (5) and (6) until the completion of the prescribed period.
With these directions, the Court disposed of the writ petitions and civil appeals challenging APTEL’s order dated 11-03-2014.
Background
Initially, the Delhi Vidyut Board was responsible for the generation, transmission, and distribution of electricity in the NCT of Delhi. However, following the enactment of the Delhi Electricity Reform Act, 2000 and the Delhi Electricity Reform (Transfer Scheme) Rules, 2001, these functions were unbundled and assigned to separate entities. Until 2007, Delhi Transco Limited (‘DTL’) handled bulk procurement and supply of power, after which the responsibility shifted to the distribution companies.
The Delhi Electricity Regulatory Commission (‘DERC’) adopted the Multi Year Tariff (‘MYT’) framework to ensure greater certainty in tariff determination. In 2004, DERC first created a regulatory asset through tariff orders to address revenue gaps. Over the years, subsequent tariff and truing-up orders reflected a steady rise in the regulatory asset across all three distribution companies—BRPL, BYPL, and TPDDL, with carrying costs contributing to the accumulation. As of 31-03-2024, the total regulatory asset stood at Rs. 27,200.37 crores.
To mitigate the impact, DERC introduced various measures such as tariff hikes, Deficit Recovery Surcharge (‘DRS’), Fuel Price Adjustment Charge, and Power Purchase Adjustment Charge.
Analysis and Decision
The Court examined the limited question concerning the law governing the creation of a “regulatory asset” during the process of tariff determination by the Electricity Regulatory Commissions. It also considered the impact of such creation on the rights and liabilities of the stakeholders, the limits within which a regulatory asset may operate, and the regulatory duties it imposes on the Regulatory Commissions.
The Court further clarified that, through these proceedings, it was not adjudicating upon the rights and liabilities of the parties, which would be addressed in the pending civil appeals against the orders of the Appellate Tribunal for Electricity.
Concept of a Regulatory Asset
A “regulatory asset” in the context of electricity tariff determination referred to an intangible asset created by the Regulatory Commissions to account for uncovered revenue gaps when a distribution licensee was unable to recover its reasonably incurred costs through tariff revenue. This shortfall was excluded from the tariff for that particular year and was instead allowed to be recovered in future years.
Such assets were typically created when projected tariff revenue was insufficient to meet the distribution company’s expenses and return on investment, and immediate recovery, via tariff hikes or subsidies, was not feasible. To prevent tariff shocks to consumers, only a portion of the gap was recovered in the current year, while the rest was deferred as a regulatory asset.
Although not a statutory concept under the Electricity Act, regulatory assets were measures adopted by Regulatory Commissions exercising their powers under the Act, and were guided by applicable laws, regulations, policies, and judicial interpretations.
The Court considered the legal position and status of a regulatory asset, the rights and liabilities of stakeholders, the consequences of regulatory failure to manage the regulatory asset as a reasonable measure, and the appellate and review powers of APTEL and the Court to ensure accountability and restitution.
Electricity is a public good and is regulated under the Act
The Court observed that, since electricity was a material resource, the State had a public interest in ensuring that its ownership and control were distributed in a manner that best served the common good. Consequently, the public policy governing the purchase, sale, and distribution of electricity was not driven by market forces of demand and supply but regulated by statute. The legal regime for tariff determination, restructuring, and review consisted of the Electricity Act, 2003; the policies and plans formulated under Section 3 of the Act; the rules made by the Central and State Governments; the regulations framed by the Regulatory Commissions; and the precedents laid down by APTEL and the Supreme Court.
Tariff determination is governed by the Act, which entrusts this function to independent Regulatory Commissions
The Court noted that the Electricity Act unbundled the generation, transmission, and distribution of electricity, while simultaneously institutionalising key functions such as the grant of licences and tariff determination through the establishment of Regulatory Commissions. These Commissions were granted autonomy under the statute, supported by expert human resources, continuity through seal and succession, plurality in composition, and accountability through transparency. With these powers and autonomy, the Regulatory Commissions were identified as the primary duty bearers for implementing the provisions of the Act.
The Court further held that tariff determination was the exclusive domain of the Regulatory Commissions. In discharging their functions, the Central and State Electricity Regulatory Commissions determined tariffs for the supply of electricity by generating companies to distribution licensees, for transmission, wheeling, and retail sale. Section 61 of the Act laid down guiding principles for good governance in the development, sale, and distribution of electricity, including the progressive reduction of cross-subsidies and protection of consumer interests.
The tariff determination process was expected to follow sound commercial principles, encourage competition, promote efficiency, ensure economic use of resources, and optimise investments all aimed at safeguarding consumers. The Court emphasised that Section 61 also acknowledged the risk of undue political influence in the electricity sector, and thus required Commissions to ensure that tariffs progressively reflected the actual cost of electricity supply.
Collaborative effort of the Regulatory Commissions to balance social justice obligations with efficiency
The Court observed that the Electricity Act contemplated multiple stakeholders, namely, the Central Government, State Governments, Regulatory Commissions, the Appellate Tribunal, statutory policy makers, and the utilities, functioning as a plurality of collaborators. These authorities were expected to work together to fulfil the objectives of the Act, with Regulatory Commissions sharing in the State’s social justice obligations.
Recognising electricity as a public good, the Court held that Regulatory Commissions were required to engage in joint and collaborative efforts with other statutory authorities to ensure wider access to electricity in both urban and rural areas, and to promote affordability through rationalisation of tariffs. The statutory authorities were expected to act in cohesion to achieve the common goal of ensuring the availability of electricity across various regions and terrains, and to provide cheaper and more affordable electricity to economically weaker sections of society.
At the same time, the Court affirmed that Regulatory Commissions were to retain their independence and autonomy, particularly with respect to tariff determination, which remained solely within their jurisdiction.
Tariff fixation takes into account multiple variables and requires flexibility. Regulatory asset is a measure adopted during tariff fixation that recognises right of recovery
The Court stated that a regulatory asset was adopted as a measure by the Regulatory Commissions when the gap between the revenue required by a distribution company to cover its costs and the actual revenue realised through immediate tariffs was so significant that recovering it at once would not only burden consumers but also result in a tariff shock. By adopting this mechanism, the Commission allowed the utility to recover the shortfall through future tariff determinations. These regulatory assets represented costs incurred by power distribution companies that were recognised as recoverable from consumers in future tariffs but were not immediately charged through current bills.
The Court further noted that the creation of a regulatory asset was also an accounting treatment. Such assets were recorded in the company’s balance sheet and liquidated over a defined period through tariff adjustments or government subsidies. This mechanism enabled the utility to defer the cost rather than expense it immediately. The recognition of a regulatory asset also allowed distribution companies to secure bridge financing from banks and financial institutions, as the deferred amount was assured to be recovered in future financial years
Factors leading to an unmanageable regulatory asset, and consequent ‘regulatory failure’
The Court observed that while determining tariffs, Regulatory Commissions faced challenges such as sudden increases in fuel costs, infrastructure investments, and extraordinary expenditures. Delays in filing the Annual Revenue Requirement (ARR) and ineffective truing-up procedures created uncertainties and a lack of accountability. Despite statutory provisions requiring timely payment of subsidies by State Governments, such payments were often delayed.
The Court noted that Regulatory Commissions, instead of making firm decisions based on their statutory mandate, often managed tariffs by creating regulatory assets beyond permissible limits. This raised concerns about their independence and autonomy, partly due to issues in the appointment process. Although individual Commissioners could assert independence, transparency and accountability were essential, with decisions subject to scrutiny by APTEL and the Supreme Court.
The Court held that while creating regulatory assets was part of the tariff fixation process, it must be done reasonably. Excessive and prolonged accumulation of regulatory assets threatened sector governance, harming both utilities’ rights and consumer interests. Regulatory Commissions had a dual duty to ensure efficient recovery of regulatory assets and to manage them within tariff principles. Failure to comply with statutory and appellate directions constituted regulatory failure.
Law that governs creation, continuation and liquidation of regulatory asset
The Court stated that, in matters relating to the creation, management, and liquidation of regulatory assets, Regulatory Commissions were bound by the mandate of the Electricity Act, the National Electricity Policy, the National Tariff Policy, the Electricity Rules, the applicable Tariff Determination Regulations, and precedents set by APTEL. The Court noted that the Central Government had recently notified the Electricity (Amendment) Rules, 2024, which introduced Rule 23 specifically addressing regulatory assets. Prior to this notification, the Government had sought comments from various statutory authorities, including the CEA, Central and State Commissions, State Governments, and power utilities, highlighting the recognised need for a statutory rule governing the conditions for the creation and management of regulatory assets.
The Court noted that Rule 23 of the Electricity (Amendment) Rules, 2024, had been introduced after detailed consultations with stakeholders and served a crucial normative function. Issued under Section 176 of the Electricity Act, the rule was binding on Regulatory Commissions, whose tariff-related regulations under Sections 178 and 181 must be consistent with the Act and the rules made under it.
The Court emphasised that creation of regulatory assets, as part of tariff determination under Sections 61, 79, and 86, must not exceed reasonable limits. Rule 23, aligned with Clause 8.2.2 of the National Tariff Policy, 2016, mandated that regulatory assets should not exceed 3% of the approved ARR and must be liquidated within three years from 01-04-2024. Existing regulatory assets were to be liquidated within a maximum of seven years from the same date.
The Court directed Regulatory Commissions to prepare a roadmap for liquidation, including carrying costs, and to conduct strict audits of distribution companies that had failed to recover regulatory assets over time, warning that unchecked accumulation of such assets harmed all stakeholders, especially consumers.
The Court further examined the accountability of the Regulatory Commissions and the powers of APTEL. It reiterated that Regulatory Commissions were required to call for the ARR, ensure timely tariff determination, and conduct truing-up exercises promptly, even by exercising suo motu powers when necessary.
In cases of non-compliance, APTEL had both the power and duty to seek explanations, enforce accountability, and monitor the actions of the Regulatory Commissions. The Court also directed APTEL to invoke its powers under Section 121 to ensure compliance with the legal principles governing regulatory assets. If Commissions failed to comply, APTEL was expected to issue appropriate orders, directions, or instructions to hold them accountable.
[BSES Rajdhani Power Limited v. Union of India, 2025 SCC OnLine SC 1637, decided on 06-08-2025]
Advocates who appeared in this case :
For Appellant(s): Mr. Shri Venkatesh, Adv. Mrs. Kanika Chugh, Adv. Mr. Ashutosh Kumar Srivastava, Adv. Mr. Nihal Bhardwaj, Adv. Mr. Aashwyn Singh, Adv. Mr. Nitin Saluja, AOR Mr. Kapil Sibal, Sr. Adv. Mr. Amit Kapur, Adv. Mr. Anupam Varma, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Mr. Rahul Kinra, Adv. Mr. Aditya Ajay, Adv. Ms. Isnain Muzamil, Adv. Mr. Karun Sharma, Adv. Ms. Rajkumari Divyasana, Adv. Mr. Kapil Sibal, Sr. Adv. Mr. Buddy A. Ranganadhan, Sr. Adv. Mr. Amit Kapur, Adv. Mr. Anupam Varma, Adv. 1 of 6 Mr. Rahul Kinra, Adv. Mr. Aditya Gupta, Adv. Mr. Aditya Ajay, Adv. Mr. Sanjay Nair S., Adv. Ms. Isnain Muzamil, Adv. Mrs. Shefali Tripathi, Adv. Ms. Manisha Singh, Adv. Mr. Girdhar Gopal Khattar, Adv. Mr. Sanjay Nair S, Adv. Ms. Manish Singh, Adv. Ms. Shefali Tripathi, Adv. Mr. Avinash Das, Adv. Mr. Sidharth Sethi, AOR
For Respondent(s): Mr. Satya Mitra, AOR Mr. Vivek Singh, AOR Mr. Siddhartha Chowdhury, AOR Mr. Pramod Dayal, AOR Mr. R. Venkataramani, Attorney General for India Mr. S. Wasim A. Qadri, Sr. Adv. Mr. Lakshmi Raman Singh, AOR Mr. Tamim Qadri, Adv. Mr. Saeed Qadri, Adv. Mr. Shraveen Kumar Verma, Adv. Mr. Saahil Gupta, Adv. Mr. Danish Ali, Adv. Mr. B. Krishna Prasad, AOR Mr. K. M. Natraj, ASG Mr. Piyush Beriwal, Adv. Mr. Rajat Nair, Adv. Mr. Shyam Gopal, Adv. Ms. Shradha Deshmukh, Adv. Ms. Chinmayee Chandra, Adv. Mr. Gurmeet Singh Makker, AOR Mr. K.S. Subba Reddy, Adv. Mr. Mahi Pal Singh, Adv. Mr. D.S. Reddy, Adv. Mr. K. V. Mohan, AOR Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv. Mrs. Dhruv Yadav, Adv. Mr. Nikhil Nayyar, Sr. Adv. Ms. Pritha Srikumar Iyer, AOR 2 of 6 Mr. Naveen Hegde, Adv. Ms. Neha Mathen, Adv. Mr. Kshitij Maheshwari, Adv. Mr. Abhyudaya Shishodia, Adv. Ms. Mansi Binjrajka, Adv. Ms. Saumya Sinha, Adv. Mr. Abhishek Vikas, AOR Ms. Kritika, Adv. Mr. Utkarsh Bhushan, Adv. Mr. Ankit Roy, AOR Mr. Adarsh Tripathi, AOR Mr. Vikram Singh Baid, Adv. Mr. Ajitesh Garg, Adv. Mr. B. K. Satija, AOR Ms. Pallavi Langar, AOR Mr. Chinmoy Pradip Sharma, Sr. A.A.G. Ms. Diksha Rai, AOR Mr. Piyush Vyas, Adv. Ms. Purvat Wali, Adv. Mr. Irfan Hasieb, Adv. Mr. Vijay Deora, Adv. Mr. Aditya Agarwal, Adv. Mr. Ravi Sharma, AOR Mrs. Shirin Khajuria, Sr. Adv. Ms. Bhavana Duhoon, AOR Mr. Anshul Syal, Adv. Ms. Swati Tiwari, Adv. Mr. Naveen Kumar, AOR Ms. Stuti Bisht, Adv. Mr. Nitesh Bhandari, Adv. Mr. Maitreya, Adv. Mr. Prabhat Kumar Rai, Adv. Mr. Aditya Goyal, Adv. Mr. Ujjawal Kumar Rai, Adv. Ms. Nidhi Singh, Adv. Ms. Isha Baloni, Adv. Ms. Bhavika, Adv. Ms. K. Enatoli Sema, AOR 3 of 6 Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Ms. Ashly Harshad, Adv. Mr. Nitin Gaur, Adv. Mr. Anshuman Ashok, AOR Mr. Anshul Singh, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Shrirang B. Varma, Adv. Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Mr. Adarsh Dubey, Adv. Ms. Chitransha Singh Sikarwar, Adv. Mr. Shashank Shekhar Singh, AOR Mr. Abhinav Singh, Adv. Mr. Mayank Sapra, AOR Ms. Lalima Das, Adv. Mr. Vivek Jain, A.A.G. Mr. Rajat Bhardwaj, A.A.G. Mr. Rajat Bhardwaj, Adv. Mr. Karan Sharma, AOR Ms. Baani Khanna, AOR Mr. Sameer Abhyankar, AOR Mr. Rahul Kumar, Adv. Mr. Aakash Thakur, Adv. Ms. Ripul Swati Kumari, Adv. Mr. Gaichangpou Gangmei, Adv. Mr. Arjun D. Singh, Adv. Mr. Maitreya Mahaley, Adv. Mr. Yimyanger Longkumer, Adv. Ms. Darshana Deepak Das, Adv. M/s Ag Veritas Law, AOR 4 of 6 Mr. Kunal Chatterji, AOR Ms. Maitrayee Banerjee, Adv. Mr. Rohit Bansal, Adv. Mr. Varij Nayan Mishra, Adv. Mr. Pashupathi Nath Razdan, AOR Ms. Maitreyee Jagat Joshi, Adv. Mr. Astik Gupta, Adv. Ms. Akanksha Tomar, Adv. Ms. Mandakini Ghosh, AOR Mr. Nikilesh Ramachandran, AOR Mr. Lokesh Sinhal, Sr. A.A.G. Mr. Akshay Amritanshu, AOR Mr. Nikunj Gupta, Adv. Ms. Drishti Saraf, Adv. Ms. Aakanksha, Adv. Ms. Drishti Rawal, Adv. Mr. Sarthak Shrivastava, Adv. Mr. Mayur Goyal, Adv. Ms. Ishika Gupta, Adv. Mr. Sarthak Arya, Adv. Mr. Pradeep Misra, AOR Mr. Daleep Dhyani, Adv. Mr. Suraj Singh, Adv. Mr. Shashi Bhushan Kumar, AOR Ms. Advaita Bhushan, Adv. Mr. Aditya Singh-1, AOR Ms. Rashi Bansal, AOR Mr. M. T. George, AOR Mr. Sahil Chandra, AOR Mr. Rutwik Panda, AOR Ms. Anshu Malik, Adv. Ms. Nikhar Berry, Adv. Ms. Sunieta Ojha, AOR Ms. Gargi Kumar, Adv. Mr. Zoheb Hossain, AOR 5 of 6 Mr. Somanadri Goud Katam, AOR Mr. Rajat Srivastav, Adv. Mr. Sirajuddin, Adv. Mr. C. K. Rai, AOR Mrs. Anuradha Roy, Adv. Mr. Vinay Kumar Gupta, Adv. Mr. Sumit Panwar, Adv. Mr. Shiva Singh, Adv. Mr. Sriram Krishna, AOR Mr. B. K. Satija, AOR
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