JUDGMENT

P.R. Ramachandra Menon, CJ. - Vires of the Regulation No. 33(6)(b)(iii) of the CERC (Connectivity and Intra-State Open Access) Regulations, 2011 (Annexure P/4) ( for short ''the Regulations'' ) framed by the 1 st Respondent-Chhattisgarh State Electricity Commission ( for short, ''the Commission'' ) in exercise of the power under Section 181 of the ELECTRICITY ACT , 2003 ( for short ''the Act, 2003'' ) is put to challenge in this writ petition. It is contended that the said Regulation is ultra vires to the Act, 2003; contrary to the Tariff Policy notified by the Central Government under Section 3 of the Act, 2003 and also violative of Part III of the Constitution of India. The Petitioner also seeks to issue an appropriate writ or order directing the 1 st Respondent-Commission to determine the ''voltage-wise'' cost of service of the 2 nd Respondent Distributor Company/Licencee in the area for the purpose of computation of Retail Supply Tariff and Cross Subsidy Surcharge.

2. The pleadings and prayers are sought to be rebutted by filing separate returns by both the Respondents. The Petitioner has filed a rejoinder as well.

3. We have heard Shri Sajan Poovayya, learned Senior Counsel supported by Shri Sachin Singh Rajput for the Petitioner, whereas the version of the 1 st and 2 nd Respondents was put forth by Shri Raj Kumar Mehta and Shri K.R. Nair, respectively. In fact, the matter was heard elaborately on different dates, including the final hearing held on 15.11.2019. Written notes of argument were presented by the Petitioner as well as the 1 st Respondent.

4. The Petitioner Company is an Extra High Voltage (EHV) consumer of electricity, also having a Captive Power Plant (CPP) with a capacity of 1410 MW at Korba in Chhattisgarh. The field of generation and supply of electricity in the pre-independence India was governed by the provisions of the ELECTRICITY ACT , 1910, which also provided for growth of Electricity Industry through private licencees. After independence, the Electricity (Supply) Act, 1948 came into force, which provided for constitution of a State Electricity Board vested with the responsibility of arranging supply of electricity in the States. Later, on finding that the performance was going down and there was failure in the matter of taking decision on tariffs in an independent manner and that the cross-subsidies had reached untenable levels, Electricity Regulatory Commission Act was enacted in the year 1998. On finding the necessity to have the fields covered by all the above three enactments under a common umbrella, the ''Act, 2003'' was enacted with a significant addition of newer concepts like ''power trading'' and ''open access''.

5. The term ''open access'' is defined under Section 2(47) of the Act, 2003. The said concept implies freedom to procure power from any source of choice of the consumer, other than the distribution licencee of the area of the consumer by using the distribution system of such distribution licencee, subject to satisfaction of wheeling charges and cross-subsidy surcharge, as specified. The scope of the said concept has been explained by the Apex Court in SESA Sterlite Limited v. Orissa Electricity Regulatory Commission & Others; {(2014) 8 SCC 444} . The Petitioner company is stated as procuring electricity from the State of Maharashtra availing the facility of open access. The 1st Respondent-Commission passed Annexure P/9 order dated 12.06.2014 determining the cross-subsidy charges (CSC) at the rate of Rs. 1.278 per kwh for EHV category of consumers like the Petitioner, in terms of Annexure P/4 Regulations. This was sought to be challenged by filing review petition under Section 94(1)(f) of the Act, 2003 before the 1st Respondent. Pursuant to the order passed by the 1st Respondent, 50% of the amount covered by CSC bills/invoices is stated as satisfied by the Petitioner. However, after considering the merits, the 1 st Respondent dismissed the review petition and upheld the c