O R D E R

Shri Kaurav, learned Sr.Counsel at the outset submits that although as per Sec.111 of the Electricity Act, 2003 (Act of 2003) there exists an alternative remedy of appeal, this petition may be entertained because said remedy is not efficacious in nature.

[2] To elaborate, it is submitted that the petitioner and respondent No.2 both are admittedly “utility” and “licensees”. An electricity line was required to be laid by petitioner in western region between Indore and Ujjain (distance is 45 kms). The cut-off date initially fixed was 28/7/2018 to complete the said work which was admittedly extended till 11/1/2019. Sec.9 of the Act of 2003 describes functions of Central Commission. Power to make regulations are mentioned in Sec.178. Sec.179 makes it obligatory to place the regulations in the floor of parliament. The Central Electricity Regulatory Commission (Commission) was required to take a decision as per Regulations of 2014. The commission by impugned order dated 27/1/2020 erred in issuing the following directions:-

“Sharing of Transmission Charges

70. In case of Assets-1A, 1B and Asset-2, the transmission charges from their COD, i.e. 12.8.2018, 12.8.2018 and 2.8.2018 respectively upto the COD of downstream transmission system under the scope of MSETCL shall be borne by MSETCL and the transmission charges for Asset-3 from 11.1.2019 up to the COD of downstream transmission system under the scope of MPPTCL shall be borne by MPPTCL and thereafter the transmission charges allowed in this order, as provided in Regulation 43 of the 2014 Tariff Regulations, shall be shared by the beneficiaries and long term transmission customers in terms of the Central Electricity Regulatory Commission (Sharing of Inter State Transmission Charges and Losses)

Regulations, 2010 as amended from time to time.”

(emphasis supplied)

[3] The bone of contention of petitioner is that in view of (2010) 4 SCC 603 PTC India Ltd. Vs. Central Electricity Regulatory Commission is clear that the decision of Central Commission must be in conformity with Regulations u/S.178 of the Act of 2003 wherever such regulations are applicable. Measures u/S.79(1), therefore, have got to be in conformity with Regulations u/S.178 of the Act. For the same purpose reliance is placed on para

92(iii) of judgment which reads as under:-

“92.(iii) A regulation under Section 178 is made under the authority of delegated legislation and consequently its validity can be tested only in judicial review proceedings before the courts and not by way of appeal before the Appellate Tribunal for Electricity under Section 111 of the said Act.”

(emphasis supplied)

[4] By placing reliance on Regulation 178, it is contended that the impugned orders are not in conformity with the said Regulations. The Commission has taken decision beyond the scope of said Regulations and, therefore, its exercise is without authority and competence. The order passed beyond jurisdiction can be assailed before this Court without availing the alternative remedy.

[5] The next contention is that a similar question cropped up before the appellate forum constituted u/S.111 of Act of 2001

and the appellate forum held as under:-

“10.5 Accordingly, in absence of specific provisions in the Sharing Regulations/Tariff Regulations, 2014 to deal with the situation under question the Central Commission through exercise of its regulatory powers has prescribed a principle for sharing of transmi9ssion charges of the Transmission System of the Respondent No.2 in the Impugned Order. Thus, it is observed that by way of exercising its regulatory power by a way of judicial order(s) the Central Commission has laid down the principles of payment of transmission charges in such an eventuality. However, it is felt that the Central Commission in the impugned Order has abruptly concluded the payment liability on the Appellant just by referring to its earlier orders and not establishing the linkage with the present case explicitly. This Tribunal would li