2024:CGHC:32493-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WA No. 100 of 2023

1 - M/s Chhattisgarh State Power Distribution Company Limited A State Government Undertaking Registered By The Registrar Of Companies Mp And Cg With Registration No. U40108 Ct 2003 Plc 15822 Having Its Registered Office At Vidyut Sewa Bhawan Dangania, Raipur Chhattisgarh. Through Its Superintendent Engineer, Premlal Sidar, S/o Late C.R. Sidar Aged 52 Years Presently Posted At Chhattisgarh State Power Distribution Company Limited, At Korba.

... Appellant versus

1 - State Of Chhattisgarh Through The Tehsildar, Korba, District - Korba Chhattisgarh, (Res. No. 1 In Original Petition).

2 - M/s. Bharat Aluminium Company Limited Having Its Registered Office At Balco Nagar, Korba Chhattisgarh. 495684 Through Its Dy. Head Legal Having Office, At M/s Bharat Aluminium Company Limited, R/o Balco Nagar, Korba, (Pet. In Original Petition)

... Respondents For Appellant : Mr. Naman Nagrath, Senior Advocate assisted by Mr. Abhinav Kardekar, Advocate For Res. No. 1/State : Mr. R. S. Marhas, Additional Advocate General For Res. No. 2 : Mr. Kishore Bhaduri, Senior Advocate assisted by Mr. Mridul Chakravarty and Mr. Harshit Singh, Advocates Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Mr. Justice Bibhu Datta Guru

Order on Board

Per Bibhu Datta Guru, Judge

27.08.2024 Heard Mr. Naman Nagrath, learned Senior Advocate assisted by Mr.

Abhinav Kadekar, learned counsel appearing for the petitioner. Also heard Mr. R. S. Marhas, learned Additional Advocate General appearing for respondent No. 1/State as well as Mr. Kishore Bhaduri, learned Senior Advocate assisted by Mr. Mridul Chakravarty and Mr. Harshit Singh, learned counsel for the respondent No. 2.

2. The appellant has preferred the instant writ appeal under Section 2 (1) of the Chhattisgarh High Court (Appeal to Division Bench Act, 2006) assailing the order dated 06.12.2022 passed by the learned Single Judge in Writ Petition (C) No. 4812 of 2021 (M/s Bharat Aluminium Company Limited Vs. State of Chhattisgarh & another) by which the learned Single Judge has quashed the demand notice dated 1.9.2021 issued by Respondent No.

1/ Tahsildar to respondent No. 2/Company.

3. Brief facts of the case, which are necessary for adjudication of this appeal, are that the respondent No. 2//writ petitioner, appellant herein, established a captive generating plant under Section 9 of the Electricity Act, 2003 (henceforth 'the Act, 2003) having installed capacity of 2010 MW for the purpose of carrying electricity to the destination of its own use or its captive users. The respondent No. 2 / appellant herein was an extra high voltage consumer connected to the distribution network of appellant/CSPDCL till 30.9.2013 and had been essentially processed power under open access for the purpose of meeting its base load requirement. After 30.9.2013, the respondent No. 2/appellant was connected with the central transmission utility which is continuing presently. For the same, the respondent No. 2/ appellant has been paying all the open access charges including Cross Subsidy Surcharge (in short “CSS”) to the petitioner. The Chhattisgarh State Electricity Regulatory Commission (CSERC) has notified the Regulations, 2011 regarding methodology for determination of CSS and other open access charges payable by open access consumers in the State of Chhattisgarh. The CSERC issued tariff orders for financial year 2013-14, 2014-15, 2015-16 thereby approving the retail supply tariff of the appellant for the said financial years. The CSERC has also notified the CSERC tariff Regulations, 2015. Appellant imposed CSS upon the respondent No. 2 for the open access power, procured during financial year 2013-14, 2014-15 and 2015-16 and raised bills total amounting to Rs.90,19,21,948/- which is in the nature of electricity charges which are paid by open access consumers to the distribution licensee including by a consumer/company owning the captive generating plant if they fail t