Kalyan Jyoti Sengupta, J.

1. By the above batch of writ petitions, basically and broadly the challenge is the vires of Section 26(2) and (9) of the Andhra Pradesh Electricity Reforms Act, 1998 (hereinafter referred to as ‘Act 1998’) to the extent it empowers the respondent – Andhra Pradesh Electricity Regulatory Commission (hereinafter referred to as ‘the Commission’) to frame fuel surcharge formula by way of Regulations, and the validity of Clause 45-B of the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 (hereinafter referred to as ‘the Regulations’) as substituted by Regulation 1 of 2003, prescribing a formula for fuel surcharge adjustment (FSA), and the orders of the Commission dt.2.11.2012 determining FSA for the first quarter of 2012-2013.

2. From a perusal of all the petitions and the grounds of attack in the eye of law are more or less similar and identical. On the question of validity of Section 26(9) of Act 1998, it is asserted that it is bad as there is no clear-cut definition of the term ‘fuel surcharge adjustment’. The impugned Regulation 1 of 2003 is challenged on the ground that the same read with Regulation 9 of 2004, is valid for one year from the appointed date in view of Section 61 of the Electricity Act, 2003 (hereinafter referred to as ‘Act 2003’). These Regulations framed under Act 1998 which is included as Serial No.3 in the Schedule to Act 2003 cannot survive in terms of Section 185 to the extent it is inconsistent with the latter Act by which all the earlier Acts stood repealed. The inclusion of fixed costs and other costs incurred in the procurement of power by the distributing companies cannot form part of the FSA, they being the items specifically includable in the Aggregate Revenue Requirement for the next year in terms of Regulation 4 of 2005. The impugned Regulations insofar as they seek to add other non-fuel related expenses into the FSA runs contra to sub-rule (6) of the same Regulation which seeks to restrict FSA only to cost of fuel and its transport and does not include any other cost. The conditions impugned, of the Regulations are also contrary to provision of Section 26(9) of Act 1998 which prohibits amendments to tariffs more frequently than once in a year except in respect of changes expressly permitted under the terms of any fuel surcharge formula prescribed by Regulations and did not empower the Regulatory Commission to fix formulae which go beyond the fuel surcharge in the absence of said expression being defined in the Act.

3. The grant of exemption to the un-metered agricultural consumers and not taking their quantum of consumption of power into account for the purpose of computation of FSA is ultra vires the Act 2003 inasmuch as the scheme of the said Act is to do away with cross-subsidies unmetered connections and to make concerned State Governments bear such subsidies by itself and not to pass on the same to the consumers.

4. The short background fact which led to filing of the aforesaid series of writ petitions is that the above Regulations being Regulation No.2 of 1999 dt.5.7.1999 was framed under Act 1998. In these Regulations initially there was no mention of terms and conditions of determination of tariffs or any fuel surcharge formula. Thereafter, this Regulation was amended by the Andhra Pradesh Electricity Regulatory Commission (Conduct of Business) First Amendment Regulations, 2000, being Regulation No.8 of 2000, dt.28.2.2000. By this amendment, Chapter VI-A dealing with tariffs was inserted comprising of Clauses 45-A to 45-C. Clause 45-B provided for FSA and the terms and conditions relating thereto. The formula inserted in Clause 45-B was based upon summing up the total differences in the fuel costs for the purchasing of energy in a quarter from the various sources from the base values adopted in the most recent tariff order. The total differences in such cost was distributed over the energy sold to all categories of con