M/s Dilip Re- rolling Pvt. Ltd v. The Telangana State Electricity Regulatory Commission

Order

. Petitioner is a private limited company incorporated under the provisions of the Companies Act, 1956. It has established a composite industrial unit (induction furnace and re-rolling) in Survey Nos. 21 to 24 of Gunded Village, Balanagar Mandal, Mahaboobnagar District and are engagcd in the manufacture of M.S. Ingots, M.S. Rods, etcetcra lor rvhich purpose, they obtained a High Tension Servicc Connection bearing No. MBN-719 from the 3.'t rcspondent, Petitioner is stated to be availing power at 33 KV voltage level from the 3.d respondent. The case ol petitioner is that it is a scheduled consumer of the 2"d respondent distribution company, a deemed licenSee under the Provisions of the Electricity Act, 2OO3 (for short, 'the ActJ. The Scheduled Consumers are those, who avail power from the 2.d respon,Jent source and also from other sources both intra or inter-state purchases by using the Distribution Lines etcetera of the 2"d responclent. Section 42 of the Act obligates the distribution companies like thc 2"d respondent to allow to use open access corridor to its schedulcd consumers i-e. to draw power purchased from the third partics '{ I through transmission / distribution lir-res o[ the 2.d respondcnt 'I distribution company. To avail open access hcility, thc uscrs have to pa5' the follou,ing charges:- il Wheeling charges as determined b-y the 1sr respondent ii) Surcharge to meet the requirement of current level of < ross subsid\' $ithin the area of supply of the distribution company. iii) Addiliona[ surcharge on the wheeling charges as ma1 be specifie<l b1' the State Cornmission. Wheeling charges are determined by the Regulatory Commission in exercise of powers conferred uncter Section 26 of the Indian Electricity (A.P. Amendment) Act, 1!)98 and Sections 61 and 62 of the 2OO3 Act read with A.P.E.R.C (Terms ancl Conditions for determination of Tariff for Wheeling and Retail Sale of trlcctricity) Regulation, 2OO5. Insofar as Cross Subsidv Surchzrrge is concerned, charges for the lery of said surcharge is to compensate the distribution companies like the 2nd respondrlnt to replenish the cost of the cross subsidy extended by the distribution companies to particular category or categories of consumers, as Cross Subsidy Surcharge being actual expenditure incurred for extending cross subsidies. Thereforr:, its quantihcation depends upon the actual loss incurred by the 2"d respondent qua the cross subsidies provided lo a class o[ consumers. As per the 3'd Proviso to Section 42, the surcharge and cross subsidy shall be reduced in the manrrer as mar. be specified lrlr the 1$ respondent commission. tt shzrll be the duty of the l.,respondent to see that cross subsidies are reduccd. h Yr I I . -!;.' While so, on 07.O2.2O15, the 2"4 respondent filed A.R.R. (Actual Revenue Requirement) proposals with the l.t respondent. Simultaneously, the 2nd respondent llled F.P.T. (Filing for Proposed Tariff) along with A.R.R. I-rlings in terms of Regulation No. 4/2005, The 2"d respondent determined the Cross Subsidy Surcharge sought to be levied by it at 30 paise per unit and 11 paise per unit in respect of 33 KV voltage and 132 KV voltagc consumers respectively. In this conncction. it is relevant to mention that as per Second Proviso to Section 42 of 2003 Act, the 2"d respondent alone has to assess and determine the Cross Subsidy Surcharge element for the loss sustained by iL qua tl:.e expenditure incurred by it in extending the cross subsidies to consumers and the l"t respondent has no role to determine the same at a higher rate sought to be levied by the 2"d respondent. The proposals were therefore, placed before the State Advisory Committee constituted under Scction 27 of 2OO3

Act, which Committee confirmed the Cross Subsidy Surcharge assessed and determined by the 2"d respondent distribution company. However, without any authority, the crstu,hile Commission passed order dated 27.O3.2O15 in O.P. No. 76 and 77 of 2Ol5 insofar as the 2"d respondent distribution company is concerned by fixing the Cross Subsidy Surcharge leviable at Rs. I .29 paise per unit and 93 paise per unit in respect of 33 KV voltage and 132 KV voltage consumers respccLit'cly. Assailing .A ,t -1 the validity of the above order, a spate of writ peritions came to be fited in this Court which uide common order in Writ Petition No. 26609 ol 2015 and batch dated 29.10.20 18 allowed batch of Writ Petitions. As against the same, the 2od respondent filed t, Writ Appeals No. 1672 of 2Ol9 and batch, which rvere dismissed by a Division Bench uide judgment dated 11.03.2019. Assailing the said .juclgment, the 2"d respondent Iiled S.L.P. (C) Nos. 14047 1406612019 and the Hon'ble Supreme Cc,urt by order dated O7. I1.2023 remitted the matter to tho Regulatory Commission to decide the issue after lollowing due process prescribed under law and affording opportunity to the parties concerned within three months from the date of hling a certified copy of the order by either of the parties. Surprisingly, petitioner received notice datcd

24.O1.2024 from the 1.t respondent wherein it formulated new proposal in the matter of levy of Cross Subsiclv Surcharge proposing to lery Rs. 1.32 Ps. and 94 paise per unit in respect of 33 KV ancl 132 KV voltage consumers, though it has no power to do so. It cannot frame any proposals and submil the same to itsell and then determine the lery by the 2"4 resp,rnfls11. th. 2',d respondent distribution company has not come up with any fresh dctermination of Cross Subsidy Surcharge u,h ir:h in fact, it cannot do so in vie$, of the remand of the matter, it has to stick as to its proposals submitted on 07.O2.2O15. Fur-ther, Cross t, t, I l 5 Subsidy Surcharge being a compensatory element has already been assessed and determined by the 2"d respondent distribution company in the proposals and confirmed by thc State Advisory Committee in its meeting held on O4.O3.2O 15. After receipt of notice from the lst respondent, pe titioner submitted representation dated 12.O2.2024 requesting the lst respondent for supply of minutes of the mecting dated O4.O3.20 15 of the State Advisory Committce. Howevcr, the l.t respondent failed to supply a copy of the samc lor the reasons best known to the signatory of the counter affidavit, but a copy of the same is filed along with the counter affidavit f-rled on behalf of the 2"d respondent. That hearing w,as concluded on 28.02.2024 and after conclusion of the arguments on behalf of the consumers, the Chairman of the l"t respondent 'l requested the representative of the 2nd respondent, ',r,ho '*'as prcsent on the said day, to proceed with the arguments. However, the said representative except stating that proposals initiated by the 1st respondent may be frnalized, has not stated anything. However, the Chairman directed him to {ile counter afhdavit within two weeks and to serve the copy on the other side so as to enable them fiie reply. But till today, no counter affidavit is served on petitioner and like consumers. However, the l"t respondent passed the order dated 19.O4.'20'24 in O.P.No. 76 of 2Ol5 impugned in this Writ Petition. In the said o order, a mention is made that counter has been filed on behalf of the 2n| respondent.

2. Whilc issuing notice belore admission, this Court by order dated O2.O5.2O24 granted interim stay of all further proceedings pursuant to the order dated 19.O4.2O24 in O.P.No. 76 of 2015 passed by the 1"t respondent in resoect of the 2"d respondent including disconnection of petitioner's power supply. The said order s'as extended from time to time and the same is in lorce till todav.

3. On behalf of the l't respondent, th,: Commission Secrctary states in the counter that the impugned order was passed in compliance with the directions of the Hon'ble Supreme Court in Civil Appeal Nos. 75i7-7536 of 2023, vide judgment datedoT. 11.2023, rvherein it is observed that no opportr-rnitv h:rd been given and no public notLr:e had been issued while increasing the CSS, hence, the view taken by the learned Single Judge as affirmed by the Division Bench is not correct. The High Court should not have taken r.rpon itself to determine the tariff of CSS, rather it should have br:en left to the expert bodv n hich is the Commission. Further. there was a remedy of appeal available to the respondents to challenge the order of thc Commission, if so aggrieved, on admissible grounds. ln the light of the clear lindings and observations of the Hon'bl<' Sr-rprcme Court, these Writ Petitiorrs are not I t, t, 1 maintainablc before this Court. Furthermore, the order impugned is appealable under Section 1 I I of the 2003 Act before the Appellate Tribunal for Electricity (ATE). Since the determination of tariffs or CSS for open access is a technical order made under the 2O03 Act, this Court would not reappraise the matter when there is alternative remedy available. lt is stated, the High Court for the state ol Andhra Pradesh and Telangana in M/s Southern Pouer Distribution Compang of Andhra Pradesh a. Appellate Trtbunal Jor Electricitg (Writ Petition No. 10184 of 2018) had clearly established that whcn a statutory remedy is available, a writ petition is not maintainable. This conclusion was reached by the Hon'ble Court after thoroughly considering relevant case law from both this Court and the Hon'ble Supreme Court. According to this respondent, the issue on hand involves complex technical and financial matters, which have been thoroughly cxamined and decided by the expert body. This Court has consistently recognized its limitations in reviewing such issues whcn they have been decided by experts in the field. In support of this position, reliance is placed on the judgment of the Hon'ble Supreme Court in West Bengal Electricitg .,, t 'l Regulatory Commission u. CESC Ltd.l The relevant observation is as follows: ' We have also noticed carefully the decis)or)s relied upon by learned corrnsel for the respondent-compan!'. u'hich havc held that an appeal Court $'hose po\4ers are not hedged in by any limitation, is free to independently consider the evidence and satisfy itselI rvhr:rher the arndings and conclusions arrived at by the Court of the first insta-'rce are proper or not. These judgments cited b,v the learned counsel for the ccmpany also hold that the appellate Court is competent to adjudicate all questions of fact and law and record its own findings and that it can re appreciate and re evaluate the evident:e and arrivc at its o\\,n finding and r:on,:lusions. These enunciations ol law foltnal in the judgments cited by the leirned counsel for the respondent company. in our opinion, in no wal conflict q,ith the decisions on rvhich we have placed reliance hereinabove. It cannot be disputed that \\'hen the appellate power is not hedged in b1 an-r' restriction, the appellale Cl)Llrt can independentl_r, reconsider the evidence, but the line of decisions relred on by us shorv that the rule of prudcnct in law is that such appellate power is not to be exercised for the purpose of substituting one subjective satisfaction with another, lvithout there berng any specific reason for such substitution. Further, in regard to the exerorse of appellate power against the orders of expert Tribunals, on facts, thc .rppellate Court which is not irn expert forum should be doubl_r careful while interfering with such expert f<rrum s findings on facts...-.

46. We notice that the Commission constitut{rcl under Section 17 of the 1998 Act is an cxpert bod-v and the determination of tariff which has to be nrade l-r-v the commission involves a ven h,lihll- technical procedure, requiring working knowiedge of lau', enginer:ring, finance, commerce' eclrnomics and management A perusal of the rep'lrt of the ASCI as well as thal of the Commission abundantl] proves this fact. Therefore, we think it qoul<l be more appropriate and effective if a statutorj' appeal is provided to a similar expert body, so that the various questions rvhich are factual and lechnical that arise in such an appeal, g(1 appropriate corlsideration thc first apPeltate stage also.... Without meaning any \ disrespect of the Judges of the High, Court, we think ueither the High Court nor the Supreme Court would in reality be appropriate appellate ' AIR 2002 sc :i588 t, t, 9 forums in dealing with this type of factual and technical matters." (emphasis supplied) lt is also stated, the Hon'ble Supreme Court in U.P. 'i Pouter Corporqtion Lirnited. v. Nationql Thermal Power Corporation Limited2 hcld as follows: '' I 2 looking to the observations made by this court to the effect that the Central Commission constituted under sec. 3 of the Act is an expert body n hich has been cntrusted with the task of determination of Tarift and as determination of Tariff involves highly technical procedure requiring not only working knowledgc of lar,r,, but also Engineering, finance, Commerce, Economics and management, this court u'as firmly of the view that the issues ivith regard to determination of Tariff should be left to the said expert body and ordinarily the High Court and even this court should not interfere with the determination of Tariff'. (emphasis supplied) In view of the same, it is stated that Writ Petition may be dismissed giving liberty to petitioner to approach the ATB. It appears, petitioners have chosen to file these writ petitions !!,hich this Court entertains with a nominal fee of Rs.100/- whereas before the ATE, they have to pay court fee of Rs. 1 lac per each case. lt is stated, pursuant to the direction of the Hon'ble Apex Court, this respondent published a notice on its website on 24.01 .2024 to initiate fresh determination of CSS for Fy 20 1 5- t 6 and sent individual notices to petitioner separately on O2.O2.2O24; in order to adherc to the timeline and avoid delays, notified draft CSS rates lor Fy 20iS-16 to benefit stakeholders; (20 i.1.1 r 2 scc 4oo ,i { l0 .f to ensure transparency and avoid allegations of unilateral action, they openly shared the draft figures an<l r-rnd6p512n61in* with all stakeholders before f-rnalizing the decisior.r. It is stated, petitioner seems to have .misunderstood or rnislcd about lhe statutory provisions of the Act, 2O03. Section 64 outlines the procedure for tariff determination. Although the proposals were initially fi led in 2O 15 and determined within the statutory timeframe, matter was remanded to the answerir-rg respondent due to the petitioners' litigation. This remand recluired to restart the process from the stage where preliminary conr:lusions were reached, provide an opportunity for stakeholcle r input, and make a hnal decision. Therefore, the procedure arlopted by the answering respondent is in accordance with legal r,:quirement. I1 is further stated that insofar as the State of Telangana is concerned, the Telangana Electriciw Reforms Act, 1998 woulcl also apply. Section 26 thcreof at claus,: (5) provides a s below. "26. Licensee's revenues and tariffs:- (5) Every licensee shatl provide to the Commiss:ion in a format as specified by the Commission at least 3 months before the ensuing financial year full details of its calculation for that finarrciel -vear of the expected aggregate revenue from charges which it believes it rs permitted to recover pursuant to the terms of its licence and thereafter 1 shall furnish suchfurtherinformationastheCommissionmalreason;rbhrequireto assess the licensee s calculation. Within 90 days of the datr: on r'vhich the licensee has furnished all the information that the Commissiorr requires, the Commission shall notify the licensee either-- I I t, t, (al that it accepts the licensee's tariff proposals and revenue calculations; or (b) that it does not consider the licensee's tariff proposals and revenue calculations to be in accordancc with the methodolory or procedure in its licence, and such notice to the licensee shall,- {i) specify fully the reasons why the Commission considers tirat the licensee's calculation does not comply w-ith thb methodotogr or procedures specified in its licence or is in an-v way incorrect, and (ii) propose a modification or an alternative calculation of the expected revenue fiom charges, which the licensee shall accept." This provision clearl,v allorvs for modifications to the proposals made b) answering Respondent and thc submission of revised figures for determining the CSS for FY 2015 16. Therefore, the petitioners' contention that such modifications are impermissible is contrary to the law and cannot be upheld. lt is stated, in public hearings, this respondent invites objections / suggestions uia public notices, not counter affidavits. The procedure followed was to require distribution companies to respond to submissions made by the petitioners, which were submitted as rcplies on Ol .O4.2024. This process adheres to procedural norms and legal requirements, refuting any claims of procedural irregularity. They are Iegally- empowered to initiate proceedings for determination of tariffs and CSS in the absence of proposals. The \.{irit petitioners' contention lacks legal merit and should be dismissed. The assertion that the 2",1 respondent must submit proposals before the 1"t respondent can fix the tariff is incorrect. The provisions cited by petitioner concerning thc CSS use the tqrm "specify," whereas Section 62 of the 2O03 Act uses the 'i ,t ,{ .r t, t, l term ''determine," and Section 64 uses the noun foim. The term "specified" in Sections 39 (2) (d) (ii), 40 (c) (ii) and a2 Q) is defined in Clause 2 (621 to mean "specified by regulations made by the answering respondent." This indicatcs a distinct difference between "determine" and "specify." Thr' answering respondent's authority to determine tariffs, as provided under se'ction 62, includes CSS. Due to disputes raised tr.1r petitioner and subsequent orders from the Hon'ble Supreme Court, they initiated proceedings suo moht and notified the dnrft proposals itself as t he allegation earlier was that the answering respondent did not place the draft figures in the ptrblic domain and passed orders without hearing the earlier parties. Petitioners' arguments confuse the concepts of d(ltermination and specification, thus, their claims regarding procerl ural errors are un lounded. The allegations of legal malice suggesting t, fav<luritism t.orvards the 2"d respondent are unfounrlcd. Despite the 2"4 respondent's initial proposals in 2O15 being minimal, this respondent determined rates higher than thosr' proposals. This is onlS' an attempt to circumvent the Hon'ble Supreme Court's order. This Court in Bharat Kumar o. APERCa acknowledgt d that the regulatory framcwork c,l)erates ()n t 2ocro 1o1 elo I t z I --l principles of transparency and natural justice, which this { respondent has adhered to. Legal malice would only occur if the authority acted beyond or failed to exercise its powers. It is stated that this respondent followed proper procedures, provided transparency and ensured stakeholder participation. Therefore, the writ petitioners' claims are without merit and should be dismissed. It is lurther stated, petitioner emphasizes the meeting held by the answering respondent with the State Advisory Committee (SAC), which is purcly advisory and was not relied upon when determining the CSS. The relevance of this advisory meeting to the current impugned order is unclear, as nothing from it was quoted or relied upon in the decision making process. This respondent, while exercising its statutory power to determine CSS, has the authority to re-fix or deviate from initial .proposals based on a prudent check according to the norms and procedure. It is stated that petitioner's focus on the advisory committee minutes is misguided, as the Committee's role is advisory and not binding on them in matters like CSS determination. Petitioner's attempt to suggest any infirmity based on these minutes is unfounded as the minutes were not relied upon in the impugned order. Regarding ground (f), the petitioners seem to misconstrue the reasoning behind the { 'i I I L t, t. I,+ Hon'ble Supreme Court's remand, falsely asserting that it was solely due to slakeholders not being info::med of the figures. [n reality, the remand was issued because this Hon'ble Court lacked the expertise to interfere with the e;<pcrt body's detcrmination and it is appropriate for the expert body to revisit the same. The answering respondent properly initiated the proceedings bl' notifying the draft CSS figtrres to all stakcholders before reaching a final decision. The petitioners' allegations of bias and legal malice against the Mernbers of the Commission are not only baseless but also improper, as these Mcmbers wer(: not named as party respondcnts. The u,rit petitions should be dismissed for these unwarranted allegations. Furthermore, ground (G) (H) and (l), which involves thc non-supplv ol SAC meeting minutes, holds no material relcvance to the impugned order. The SAC's advislrn. rolc does not impact the [rnal order, and the report was publicly available even before the CSS determination was set :tside. The petitioners' claims regarding the SAC minutes app€irr to be a tactic to evade the liability of the CSS. Petitioners contend that this respondcnl lacks thc authority to determine CSS, asserting that this res ltonsibilitl' Iies with respondent No.2. This argument ovet'looks the provisions of the Act, 20O3, which clearly entrust th,l power to detcrminc the CSS to the State Commission, not to any other l-i entity. Specifrcally, Section 42 mandates that the State Commission introduce open access and determine associated charges, including CSS. The relevant portion of the provision is as follows: "

42. Duties of distribution Licensee and open access:- ( I ).... (2) The State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date bl'' it and in specifying the extent o[ open acccss in successive phases and in determining the charges for wheeling, it shall have due regard to all relevant factors including such cross subsidies, and other operational constraints: Provided that such open access may be atlowed before the cross subsidies are eliminated on payment of a surchargc in addition to the charges for wheeling as may be determined bl. the State Commission:...." Thus, determination of CSS is unequivocally vested in this respondent. Furthermore, the answering respondent is not obliged to accept the ligures submittecl by the 2*t respondent No. 2, instead, it retains the right to independently review and decide upon the CSS, ensuring transparency in the process as required by the remand order from the Supreme Court. Draft figures were made available to all stakeholders belore a final decision was reached, after considering their input. Therefore, the petitioner's contentions on this ground are both irrelevant and baseless. Petitioner argues that this respondent relied on cost components rather than audited improperly Iigurcs lor 'l ,l ,^ ,l t, I, t, l(r determining the CSS. However, the determination in question pertains to llnancial year 2O i5- 16, which necessitates using cost componcnts since audited irgures are only rrvailable aftcr completior-r of financial year. The CSS determination made at the bcginn ing of the linancial year is, therefore, zrppropriately based on proposals and normative values. This approach is consistent $,ith established practice and petitioner's contention is incorre(-'t :rnd contrary to these principles. Additionally, petitioner c hallcnges the use of National Tariff t)olicy (NTP) forrnula for CSS computation, suggesting that the 2n,] respondent m.r-y not need to impose a cross subsidy on open access consumers at a[ or only at a lower rate. However, the NTP is recognized as law by the Hon'ble Supreme Corrrt, and the nrrsu'ering rcspondent is obligated to follow it. If petitioner disagreed u ith the NTP methodologr, they should have contestcd it directly in the appropriate legal forum. The claim that responclent No. 2 clid not collect CSS in previotts years is also trnsupportecl. Petitioner contended that this respondenl rejected the proposals of rhe 2na respondent without justil'ication and subsequentl-r' formulated new proposals, allegedly in ';iolation ol the Electricitl Act, 2OO3, and without the empowernrent of the Hon'lrlc Suprcmc Court. This claim appears to dis'egard the Suprc-me Colrrt s judgment, which clearly establishecl that ./ t1 detcrmination of CSS falls exclusively within the jurisdiction of the answering respondent which acted in accordance with the directions of the Hon'ble Supreme Court, particularly after the earlier order in 2O 15 was set aside due to the failure to disclose draft figures to stakeholders. Consequently, the answering respondent proceeded to determine CSS for the financial year 2015-16 from the appropriate stage. Therefore, the actions taken by the answering respondent are lully compliant with the Act, 20O3, applicable rules and regulations, and the directions of the Hon'ble Supreme Court. The petitioners' submissions on this ground are unfounded and without any legai basis. Petitioner's contention about the allegcd deviation from National Tarift Policy (NTP), which calls for a progressive reduction of CSS up to 2Oo/o, is misplaced. The Act, 20O3 was amended by Act No. 26 of 2OO7 on 15.06.2O07, omitting the words "and eliminated" and the associated time period from the relevant clauses. Moreover, the NTP of 2006, as referenced by petitioner, was only applicable until 20 1.5. Therefore, the arguments presented in this ground lack merit and should be dismissed. Similarly, petitioner's assertion that no CSS should have been levied for FY 2015-16, and that CSS should have reached 'zero,' is erroneous. The amendment to Act, 2O03 rcmoved the requirement for elimination ol cross subsidies, making it clear that CSS cannot be 'zero.' NTP of 2O 16 also 'l ,i 'l ,i t, t, I l8 supports irnposition of CSS. As such, this contention is without merit. Lastlv. petitioner argues that CSS could be zero based on an embedded cosf- formula, but the answerinq respondent allegedlv irllou,ed CSS in excess of this calculation. This iergument fails to recognize that the formula <:onsiders the prevailing tarifi, u,hich is not'zero,'and CSS is cak:ulated based on 2Oo/n of t hc tariff. Therefore, the petitioners' crrntentions in thesc grounds are baseless and should be rejected. It is thereforc prayccl to direct petitioner company to pay CCS as per thc orders of the Commission to the respondent t:ompany for compensating loss incurred by them which is pencling.

4. Thc Chief General Manager of TGSPDCL filed counter on bt'half of Respondents 2 to 4 stating almost on similar lines as that of the lst respondent witlt regard to availability of irlternative remedy. It is stated, the Oommission has power lo dt:termine the tariff for retail sale of electricity undcr Secti, rn 62 of the 2003 Act. The Commission while determining tht-- Tarilf may differentiate according to the nature of supply :rnd the purpose for which the supply is required in accordance u'ith scction 62(3) of Electricity Act, 2OO3. It is stated, TGSPDCL and TGNPDCL have submitted CSS calculations with the proposed figr-Lres for FY 2015-16 in tl-rt:ir filings dated 07.O2.2O15, based on which, the Commission computcd thc CSS considering the sarce fr:rmula -/ I I9 as adopted by TS DISCOMs, by order dated 27.03.2015. As per the directions of the Supreme Court, the Commission computed afresh CSS with the approved figures of FY 2015-16 inviting comments/objections on their fresh proposal through public notice dated 24.O1.2024 duly following the procedure prescribed under law and affording due opportunities to the parties concerned. The Commission has considered more accurate figurcs (considering the decimals up to 4 digits) which resulted in marginal increase in Cross Subsidy Surcharge from Rs. 1.29 Ps to Rs. 1.32 Ps in respect of33 KV consumers. lt is stated, computation of accurate CSS by the Commission by considering the more accurate figures (decimals up to 4 digits), and the same has resulted in marginal increase in Cross Subsidy Surcharge from Rs. I.29 Ps to Rs. 1.32 Ps in respect of 33KV consumers. The Commission has already placed the copies of minutes dated 04.03.2015 in the Commission's Website for the viewing of the stakeholders in the year 20 15 itself. In this connection it is to submit that the Commission conducts the meeting with State Advisory Committee members on the ARR filings o[ the TG DISCOMs every year before determination of Retail Tariff. The Commission is empowered to determine the tariff including Cross Subsidy Surcharge under Sections 62 & 6+]Based on thc directions of the Hon'ble Supremc Court, the '{ 'l i T I' t, t, l0 Commission has proposed CSS afresh by considt:ring the more accurate figures (dccimals up to 4 digits) with already available data filed b-y thc Telerngana State DISCOMs in 20 t5 and invited comments / olrjections from the stakeholders as per the procedure laid in thc conduct of Business Regulation 2015. The Commission has dctermined afresh as per the ,:rders of the Supreme Court taking into consideration the objections filed by petitioner and the replies of DISCOM based on the approved figures for FY 20 15 16. The Commission proposr:d a tariff in paper publication and has called for objections, hence, the contention of pctitioner that Commission has takerr up on itself to arrive at thc CSS before considering the objec tions of the stakeholders is lalse and the same is denied. The Commission has published the proposed Tariff and called for objections which were dulr, taken into account before passing the orders dated i9.O4.2O2,1 in OP. No. 76 of 2015. After conclusion of public hearing on 28.02.2024 for fresh determin;ition of CSS, the Commission directed Respondent Company to submit written replies to the objections of Petitioner rvithin a week. Accordingiy, the I?espondent company submitted written replies to the objections raised during the public hcaring held on 2a.O2.2024 to the Commission and thc same were hosted in the websites of the Commission and the Respondent Company. -d I It is stated, there is no breach of Act by the Commission in Lhe process of issue of Determination of Cross subsidy surcharge order lor FY 2015-16 and Principles of Natural .Justicc are not violated. The Commission has discretion to revise the projections of the Licensees and compute parameters such as sales projections, energ, requirement, power purchased quantum, power purchase cost etc., which witl dctcrmir-rc the retail tariff and cross subsidy surcharge and rectify the errors found if any. Therefore, there is a likely possibility of change in the value of the CSS based on the approved figures of the commission. The Commission has placed the copics of minutes of State Advisory Committee dated O4.O3.2O 15 in the Commission's Website for the view of the stakeholders. Bascd on the hlings of TS DISCOMs in 20 15, the Commission computed CSS for 33 KV consumers at Rs. 1.29 Ps as per the procedure taid in National Tariff Policy 20O6. There is no legal malice on the part of the Commission as per the operativc portion of the relevant order of the Hon'ble Supreme Court datt'd 07.l 1.2023. lt is stated that there was marginal increase in CSS in thc fresh proposals of Commission as compared to that deLermined in 20 l5 duly considering the accurate data up to 4 decimals. Public hearing was conducted on 28.02.2024 and final orders were pzrssed on 19.04.2024 in OP. No. 76 of 2O15 { { 't ,t t, t, I, and OP. No. 77 of 2O15 as per the procedure laid in the National Tariff Policy 20O6, considcring thc objections raised by the parties cluring the public hearing. It is stated, the Electricity Act 2OOll and National Tarifl Policy 2OO6 empower the Respondent Company to collect the Cross Subsidy Surcharge determined by thc Oommission to compensa te the loss in casc of switching over by [he consumers and is not additional revenuc. Hence, it is prayed to direct Petitioner Company to pay Cross Subsidy Surcharge as per the orders of rhe Hon'ble Commission to the Responclent Company for compensating the loss incurrcd by them dr-rr' to switching over of Petitioner Company to Open Access rvhich is still pending since 2015. In the repll', petitioncr stated that the Hon'ble Supreme Court re manded the mattcr to the 1$ re'spondent for fresh consideration of thc issue, therefore, it is obvious that the scope of the remand alu,ays shor,rlcl bc confined to the lis which arose and considered during the earlicr round of litigation i.e., fixation of l-righer cross subsicil' surcharge at Rs. 1.29 Ps. per unit and Rs. 0.93 paise per unit in respect of 33 KV and 132 KV consumers respectively, as against the proposals of the 2"d respondent Lo collect Rs.0.3O paise pcr unit and Rs. O.11 paise per unit fi-om 33 KV AND 732 KV voltage consumers respectively. But the I "' respondcnt cannot expand t-he scope o[ I \ the lis involved and decided in the earlier round of litigation. The said approach is per se and ex facie illegal. Even under the provisions of the A.P. Electricity Reforms Act i998, the Electricity Act, 2OO3 and the Rcgulations and Rules framed thereunder, the lst respondent does lack power and jurisdiction to expand the scope of the proposals submitted by the f"a respondent to collect cross subsidy surcharge. Moreover, the lst respondent framcd neu' proposals and submitted the same to itself for consideration and determination, which act is contrary to the orders of thc Honourable Supreme Court as well as 1998 Act, the 2OO3 Act and Regulations made thereunder. As against the impugned order, an Appeal lies to the Appellate Tribunal for Electricity (ATE) under Section 111 of 2003 Act cannot be countenanced inzrsmuch as when there is breach of the principles ol-natural justice, the mandatory statutory provisions and violation ol the Fundamental RightS, the citizens can invoke the extra ordinary jurisdiction of this Honourable Court under Article 226 o[ thc Constitution of India. The rule of exclusion of writ jurisdiction due to availabiiity of a,n alternative remedy is rule of discretion and not onc of compulsion and in appropriate cases, writ petitions can be maintained irrespective of availability' of alternative remedy. The Hon'ble Supreme Court in M/s Agro Industries Deaelopment Corporation Linited v. i I i I I I t I ,t ,t -ll Jahon Khana considered this issue and renclere tl the judgment in thc above lines. Determining the Cross Subsidv Surcharge other than what is required and sought b)' thc :lnd respondent amounts to allowing the 2"d respondcnt to becomt: unjustly rich at the cost of the open access users and accordingly, the said exercise is ex facie per se illegal. Moreover, the principle underlying under Section 42 is to make available the open access power relatively at a competitive ratc ar.ld the action of the Commission in the present case runs contran,to the same. The grounds raised in the Writ Petition are ptrrely legal in nature and on the admitted fact scenario and therefore, no complexities of technical and financial issues are involved in the matter as erlleged by the 1"t respondent. The zrverrnent that the order under challenge 111 the Writ Petition inr.olved complex technical :rnd financial matters, u'hir--lr havc bcr:rr thorougl-r11' examined and decided with the expcrt bodr. cannot be questioned before this Honourablc Court is highlv untenable in view of the fact that the grounds raiscd in thc \\-rit petition inasmuch as the order passed by the 1't respondent is challenged on legal grounds as is demonstrated in the writ petition. Therefore, the judgments of the Hon'ble Supreme Court relied on by the 1{ respondent hervc no application to the fact situation in lhe present case. [t is not trttc to say thilt in order ' zoozl t o; scc as t, I t, l -)i to avoid payment of substantial court fee of Rs. 1 1ac and additional costs in filing the Appea] before the Appellate . Tribunal for trlectricity, pctitioner filed the present writ petition inasmuch as the order impugned the present writ petition is passed in utter breach of principles of natural justice, mandatory statutory provisions and violating the Fundamental Rights guaranteed to petitioner under the Constitution. Apart from that, the wav in rvhich the lst respondent favoured the 2"'l respondent in the matter of determination of cross subsidy surcharge by determining thc same at a rate higher than what is required and sought by the 2"d respondent basing on the statutory audited ligures, w,hich figures are approved by the 1"t respondent itself on the carlicr occasion and now coming up with fresh proposals on its olr,n in an illegal fashion beyond its power and jurisdiction as envisaged under 2OO3 Act enabling the cross subsidy further necessitated petitioner to approach this Court by way of filing the present writ petition. At any rate, the 1"t respondent cannot determine the surcharge more than what is required and calculated by the 2nd respondent by taking into consideration the power procured by the scheduled consumers (open access consumers) and the Cross Subsidy Surcharge leviable thereon. Petitioner is advised that permitting the 2"d respondent to collect more Cross Subsidy Surcharge than \,vhat is required dnd sought by it amounts to allowing the I I 'i ,l I 'i l() 2nd respondent to become unjustly rich at the co:it of thc open acce ss users zlnd accordingly, is ex facie per -se illegal. In this conncction it is relevant to mention that distributirn companics like the 2nd respondent allow its consumers tl, avail power through lhird parties by using open acccss c,rrridor of the distribution companies on payment of surchargc t,r take care of the requirement of current level of cross subsidv irnd hxed cost arising oLlt the licensees' obligation to supph'. llersically, the Cross Subsidy is a compensatory component for thc subsidics provided to vulnerable sections of the socier-v and to recover the fixed cost. Taking the above aspects into considr:r'rr t ion, the 2n(l respondent submitted proposals to recover cross s,ubsidy at 30 paise and I 1 paise per unit in respect of its 33 [i'v' and 132 KV consumers respectively, since the same woul<l sufhce its requirement. It did not want to sacldle its open erccess consumers with more cross subsidy surchargc irmount than rvhat is rr:qr-rired by it However, on account o[ the lopsided approach of the 1"t respondent. [n order to take advantagc of the situation, the 2"4 respondent is now staking t:lirim for highcr Cross Subsidy Surcharge unnecessarilv. Thi action of respondent in coming up with a lresh proposal enhrncing Cross Subsidy Surch:rrge levy at Rs. 1.32 ps. per unit in iespect of 33 IiV voltage consumers and Rs. 0.93 paisc per unll in respect o[ 132 KV voltage consumers, after remanding the rrr.rtter by thc _./\./ t, t, t, 7l Hon'ble Supreme Court is purcly an act in contravening the orders of the Supreme Court. As pcr the orders of the Apex Court, the lst respondent has to ultimately decide sustainability on the earlier order passed by the Commission permitting the 2",t respondent to collect Rs. 1.29 Ps. pcr unit and 93 Ps. per unit in respect of 33 KV and 132 KV voltage consumers respectively as against the actual requirement of the 2no respondent, 3O paise per unit and I I pasic per unit in respect of 33 KV and 132 KV vol*rge consumers respectively. The required Cross Subsidy Surcharge as aforementioned has been worked out basing on the statutory-audited figures as approved by the 1st respondent. At any rate, the l.t rcspondent altered the audited hgures whimsically so as to make the 2"d respondent stand to gain unjustly. When the 2nd respondent itself does not want to collect highcr Cross Subsidy Surcharge than what was hxed by the earlier Commission, the earlier committee ought not to have travcrscd beyond the requirement of the 2nd respondent. In the counter affidavit filed on behalf of the lst respondent in the earlier round of litigation, it was mentioned that proposals rvere submitted on 07.O2.2O15, thereafter on 04.03.2015, thcre was a meeting conducted with the advisory committee and thercafter, the orders in O.P. No. 76 and 77 of 2015 dated 23.03.2O15 u,ere passed. in the above order, there is no mention about conduct of mecting by the 2"d t '{ t8 respondent u,ith the State Advisory Committee. Tht purport and purpose of the alleged meeting is not known or communiczrted to the aflcctcd parties like petitioner. Despit< pctitioner's c:ounsel seeking supply of copy of the minutes :[ thc zrlleged mceting c:onducted by the 1.t respondent with thc State Advisory Committee, the lst respondent has nol- Seen supplied copy of the same to our counsel for the reasons bcst known to the 1't respondent. Though, the 1st respondent fe,rlccl to supph' copy of the minutes of the meeting held by thc l;tate Advisorv Committe(' with the 1"1 respondent on O4.O3.2O l5 er copl oI the same is fiied bclorc this Court by the 2"4 respondr:nt along rr-ith its countcr affidavit. A perusal of the same clincht's that the 2 d respondent presented A.R.R. Tariff filings for the vczrr 2Ol-t-1,6 before the State Advisory Committee. On the A.R.R. Taritf F'itings FAPCCI's representative raised certain objections as to the lery of Cross Subsidy basing on the said tariff filings. Further, in the said meeting, the Chairmarr of the 1'r Respondent Commission stated that A.R.R. Tarill' lilings ri'ere presented by the 2nd respondent for the Iinancial rcar 2015-16. Accordingly, the Commission accepted the proposrlls of the 2"d respondent in toto without any deviation. Havinyl adopted the proposals of the 2"a respondent, the previous Cornmission ought not to have fixed higher cross subsidy than what u':rs proposcd by the 2.d rcspondent. ln the light of the sarn< the present I i \ t, t, t, l9 Commission ought not to have ventured to fix Cross Subsidy Surcharge over and above 3O paise per unit and 11 paise per unit in respect of 33 KV and 132 KV voltage consLtmers respectively for the financial year 2O l5- 16. Petitioner was advised that the 1"t respondent cannot approbate and reprobate on the same issue. It is stated, the Supreme Court never directed any statutory authority to traverse beyond thc scopc of any legal frame and to act thereon. Under special circumstances, the Supreme Court grants relief to a party to meet thc ends of justice by invoking Article 142 of the Constitution of India Therefore, the understanding of the 1'' respondent that it can traverse beyond the scope of 2O03 Act and the relevant regulations made thereunder is sheer outcome of legal malice and presumably an attempt to makc the 2"d rcspondent to stand to gain for no reason over and above the 2",1 respondent's requirement. It is also stated, Sectio n 26 of the Telangana Electricity Reforms Act, 1998 deals with fixation of tariff and has nothing to do anything with the determination of Cross Subsidy Surcharge. However, the statutory-auditcd figures as regards the aggregate revenue requirement and other relevant data submitted and approved in terms of te rms and conditions for determination of tariff for wheeling and retail sale of Electricity Regulation 2O05, which Rcgulation is framed under *i 1 -/ 'i ,l ,t l0 Sections 61 and 62 read with Section i81(2) ol the Act, will be taken into consideration. Public hearing was !-onducted on 2A.O2.2O),4 and by that time the 2"d respondent neither flled any coulrter nor furnished remarks to the rlovel proposal brought into existence by the 1"t respondent. At least the representative of the 2"d respondent who u,ers present on 2a.O2.2Oi'.4 did not venture to submit anything despite the Mcmbers of the Commission requesting him. He simply statecl that whatever proposal submitted by ths 1st respondent to itseli for dctermination of Cross Subsidy Surcharge ma]' be confirmed. However, the Chairman of the Commission required him to filc'counter within two weeks and serve copies on all the concerned so as to enable them to file reply. Horvever, the 2"d respondent did not serve any counter or remtrrks as orallv directed bv the Chairman even till today. The statement of I he Secretary of the Commission that on 28.O2.'.t-O24, the l sl responde rrt has not directed the 2"d respondent's representativc to file counter affidavit is not true. In the contexl. petitioner is advised that the said statement is a mis-statemert deliberatell' made rvithout any fear of facing perjury. It is infrrrmed by their counsel and representatives of M/s Davashree Ispat Private Limitecl, M/s Jeevaka Industries Private Limitcd and M/s Scan Encrgr Pnvate Limited, who were present on the said day that the Chairman of the Commission specifical$ directed t, t, I, representative of the 2nd respondent to lile counter affidavit within two weeks. That is the reason why their counsel filed Memo dated 27 .O4.2O24 duly brining to the notice of the Commission that despite the direction of the Commission, the 2"d respondent has not served any counter affidavit. But, however, in the impugned order, it is mentioned that thc 2nd respondent filed counter afl-rdavit. / remarks. As per t he procedurc envisaged under the Act and Regulations, the 2nd respondent has to submit proposals to the lsi rcspondcnl seeking determination of Cross Subsidy Surcharge and thereafter, the 1st respondent shall invite objections / rcmarks from the concerned and then only has to determinc the Cross Subsidy Surcharge to be collected by the 2.'d respondent. However, in the present case, the l"t respondent submittcd proposals to itself (without even any request by the 2nd respondent) and required the 2nd respondent to submit remarks, which procedure is unknown to the mandatory procedure as contemplated under the Act and Rules. Apart from the above, admittedly and evidently, no counter affidavit / remarks r,r.ere submitted by the 2"d respondent by 28.O2.2O2a, on which date public hearing was closed by the 1"t respondent nor any counter affidavit / remarks served upon the petitioner or its counsel till writ petition. Ho'"vever, the 1st o[ the present the filing respondent hzrs taken the remarks submitted b-y the 2"a r( 'l .t -ll respondent into consideration and passed the impugned order, as such, thc impugned order is liable to be set aside since the same is passed in utter contravention of the mandatory statutory procedure envisaged under the Act anrl Regulations and also in utler breach of the Principles of Natural Justice. It is not true t() say that the lst respondent does hrrve power to initiate proceedings for determination of Cross Subsidy Surchargc or tariff in the absence of the proposals of the 2"d respondent. Unless and until there are proposals submitted by the distribr-rtion companies like the 2'd respondent seeking determinatir>n of Cross Subsidy Surcharge or tariff as the case may be, the cause of action in the said context does not arise af all. At any rate, the respondent cannot play dual role of a licensee an<l a regulator, which action traverses beyond the scope of 20()3 Act apart from being unconstitutiona l. The 2OO3 Act does nol confer such kind of omnipotent powe r to the I sr respondent zrs is being presumed and assumed by the deponent o[ the counter affidavit. The averment that in the absence of th,3 proposals submitted bv the 2"d respondent in the matter of either determination of tariff or specification of Cross Subsidy Surchargc as the case may be , the 1"t respondent can formulatc proposals proposing to determine tariff or specify t he leq. of Cr5si Subsidy Surcharge to meet the current levels of Cross \ L I, L Subsidies for a given year is rather hypothetical, misconceived or misunderstood, inasmuch as when there were no proposals from the 2"d respondent, it is rather high-handed to state that 'l the 1$ respondent can frame proposals for fixing the Cross Subsidy Surcharge even in the absence of proposed requirement of Cross Subsidy Surcharge component by the 2"d respondent. This averment of the lst respondent reflects the autocratic exercise of the powers by the lst respondent beyond the scope of Act and Regulations. Apart from that, the Honourable Supreme Court ncver directed the 1"t respondent to initiate " suo motu" proccedings and on the other hand, the matter is simply remanded and the 1'r respondent directed to act upor-l r.r, hen a ,t certi{ied copy of the order is liled before the lst respondent either by open access consumers or the 2"d respondent. Howevcr, though nobody has approached the lst respondent, it is assumed and presumed jurisdiction on its own and formulatcd a new proposal with which the 2"d respondcnt has no Interest at all. Though, the Honourable Supreme Cor-rrt passed orders directing the 1st respondent to consider the issue as per law, the lattcr passed the impugned order in deviation of the statutory scheme apart from the Principles of Natural Justice violating the Fundamental Rights guaranteed to the petitioner and like open access consumers. 'i I i I f, L t, t, t1 It is stated, the action of the 1$ respondent at the first instanct: in determining higher Cross Subsrdy Surcharge rate is purely an act tainted with legal malice, inasmuch as under the Schcme of the Act and Regulations, rvhen the 2"d respondent submits proposals basing on the statutory audited figures claiming Cross Subsidy Surcharge, which is compensat on' in nature at a particular rate, the l " respondent cannot compe I the 2"d respondent. to collect more (lross Subsidy Surcharge than what is proposed and require(l by the 2"d respondent. Such an approach is unknown to any canons ol legal principles. Moreover, it is not for the I st rospondent to decide whzrt is the requirement of the 2nd respondr:nt in arriving at the fixed charges in the matter of Cross Subsirly Surcharge which is a c()mpensatory component- The act of the erstwhile commission or the present commission is tainte<l with sheer legal malice. During the earlier round of litigation, there was a vague men tion :rbout the alleged meeting of the i .t respondent with the Slatc Advisory Committee on O4.O3.20I 5 before the orders in O. P. dated 27.03.2015 came to be passed and secondly, after remand of the matter shockingly the lst respondent altoge ther came up u,ith a new prollosai though such proposal u,as not submitted by the 2"4 rcspondent nor even the sam(.' \\'as known to the officials of the 2n,l respondent. \Apart from thert when the counsel for petitioner sought for i.z l-i furnishing a copy of the same by Iiiing a Memo., the same has not been supplied for the reasons best known to the 1sr ,l respondent. Since the scenario either before or after remand of the matter is one and the same and re-visitation of facts and circumstances o[ the previous round of litigation is just and nccessary for adjudication of lis. The l.t respondent having conducted a meeting with State Advisory Committee on

04.03.2015, after submission of Cross Subsidy Surchargc fixation proposals for the year 2015-16, ought to have furnished a copy of the minutes of the meeting to the petitioner. In this regard, it is also relevant to submit that the said meeting is also ,t placed reliancc in the counter affidavit liled on behalf of the 2nd respondent during earlier round of litigation. But, however, the lst respondent failed to furnish a copy of the same even to this Court. The statement of the l"t respondent in the present counter alfidavit that the role of the State Advisory Committee is also advisory in nature and therefore, it was not relied on shows the lopsided approach of the l.t respondent meddling with thc rights of the consumers defeating the object with which the statutory bodies like the 1$ respondent are established. As submitted in the preceding paragraphs, having relied on the alleged meeting of the 1't respondent, as State Advisory Committee on 04.O3.2O15, the 1st respondent now came up with a plea that the decision / opinion of the State Advisory ," ,i t, t, t, l(r Committee is not binding on the 1st respondertt. During the earlier round of litigation, in the counter affidavit of the 2nd re spondent, thcre was mention about the meeting of the lst respondent with Statc Advisory Committee on 0.|,.03.2015 and that was sought to bc relied on. ln the present counter afndavit, the 1.t respondent states that the decision of the State Advisory Committec is not binding. These kinds of contradictory statements have dcfinitely adverse affect on arry democracy governed by Rule of Lat,. As submitted in the proceeding paragraphs, the Hon'ble Supreme Court never pennitted the 1"t respondent to assume thc role of the 2"d responrlent. For the best reasons known to the respondent from da,r one is bent upon to help the 2nd respondent by fixing the Oross Subsidy Surcharge that what w,as proposed and require<l by the 2"4 respondent. Alter remand, the lst respondent \r'ent a step further bv expanding thc scopc of the issuc and ,rssumed the role of the 2',,1 respondent by dra'*'ing proposal on its own and required the 2"d respondent to submit comments, rvhich is very much on unknown procedure. The same is sought to be relied on by the 1"t respondent by taking shelter of lhe orders of the Supreme Court. All the above would go to show tlrat all is not well with the i st respondent and therefore, legal nralice ground is raised and pleaded by petitioner in the present rvrit petition. However, as no personal malice is alleged as igainst an,v members of the lst rcspondent Commission, there is no need of making any ol them as parties in personal capacity. Thc power of the l st respondent to determine the Cross Subsidy Surcharge basing on the proposals and requiremcnt of the 2"<l respondent is not in dispute, but however as the lst respondent traversed beyond the requirement of the Cross Subsidy Surcharge by the 2nd respondent and enhanced the same from 30 paise to Rs. 1.29 paise per unit and 11 paise per unit to 93 paise per unit in respect of 33 KVA and 132 KV voltage consumers respectively, even without any additional proposals, the orders of the earlier commission was challenged. The matters are remitted and consequently the l st respondent has to conduct de noua enquiry from the stage of submission of proposals by the 2"a respondent and the legal intricacies involved therein. Definitely, the 1"t respondent should confine its enquiry as to the actual requirement.of the 2"d respondent as to the Cross Subsidy Surcharge component for the year 2015-

16. Unnecessarily and unwontedly, the 1st respondent expanded the scopc o[ order of Honourable Supreme Court in an illegal t and high-handed fashion and the same is sheer outcome of act of legal malice and consequently, the impugned order is liable to be set at naught on this ground alone. It is also stated, it is either misconceived on the part of thc 1$ respondent to state that the Hon'ble Supreme '( .A 1 i, t, t, -r8 Court has relieved the issue and then reman,ied; such an understanding of the 1't respondent is crvptic and whimsical. The Apex Court simply remitted the matter to the I st respondent lor fresh consideration, which means the l'r respondent has to confine the scope of enquiry to the proposal subrnitted by the 2"d responde nt on 07.02.20 15, the meeting held bt:tween the ls respondent ernd the State Advisory Committee on O4.O3.2015 and the order passed by the earlier comnrrssion dated

27.O3.2O15, but not to traverse even by an inch thereafter. The way in which the lst respondent is assuming and presuming the power which are not vested in the l.t res;pondent and conferring the an extra-ordinary jurisdiction on it is an act perversily. It is stated, though an Appeal lies as against the order impugned, in view of the cxtra-ordinary circumstances like breach ol mandatory statutory provisions, the principles of natural justice and violation of Fundamental Rights guaranteed to the petitioner are involved, petitioner is cc,nstrained to approach this Court by way of filing the writ pe tition. The 1't respondent failed to furnish a copy of the propos:rls of the 2"d respondent submitted on 07 .O2.2015 and copies or' the minures of meeting o[ the lst respondent hcld with the Srate Advisory Committee, despite specific rcquest made by thc petitior-rer Apart from tl-rat, by the time thc hearing of the matter rvas -\ ,/ j9 closed on 28.02.2024, no remarks were submitted on behalf of the 2"d respondent nor any counter affidavit was filed or even a single submission was made by anybody representing the 2nd respondent. That is the reason wh.y petitioner's counsel hled Memo dated 27.O4.2O24 in the Office of the 1$ respondent by duly bringing to their notice as to the above and requested to furnish a copy of the counter affidavit filed, ii any, on behalf of the 2"d respondent, but, there is no response from the Office of the 1"t Respondent till date. Thc said fact is neither denied nor controverted in thc counter affidavit.

5. Sri D.V. Nagarjuna Babu, learned Senior Counsel appearing on behalf o[ Sri Chandra Shekhar Rao, learned counsel for petitioner submits that this Court has ample power to entertain this writ Petition under Article 226 of the Constitution despitc availability of alternative remedy to a party to lis in case thc said party seeks enforcement of its Fundamental Rights, where the action challenged is contrary to the Principles of Naturul Justice, \,ithout any jurisdiction, etcetera. In this connection, lcarned Senior Counsel relied on ,i i the judgments of the Hon'ble Supreme Court in M.P. Agro Industries Deuelopment Corporation Limited a. Jahan t, Y, I, -10 Khans anrl U.P. Potoer Transmission Corporation Limited a. C.G. Pouter and Industriorl Solutions Limited6. It is submitted, thc 1", respondent is dcvoid of any power and authority to formulate proposals on its ovvn and determinc the Cross Subsidy Surcharge to be levi(td by thc 2na respondent inasmuch as none of the provisions ol the Act nor the Regulations made thereunder do empc\irer the lst respondent to resort to such kind of arbitrary excr(:ise iI powcr. Under the third Proviso of Section a2Ql of the 2003 Act, the l't respondent is obligated to specify tlte progressive reduction of the Cross Subsidy Surcharge. The '' rcspondent cannot take shelter under the orders of the Apex Court to deviate from the mandatory procedure as envisallcd under the Act and Rules and in fact the Apex Courl never permittcd the 1* respondent to traverse beyonci the scope ol- r:he Act and Regulations while passing an order under Article 141 of the Constitution of India. According to learned Senior Counsel the scopc of the enquiry, after remand, has to be conlined to the aspect whether Cross Subsidy Surcharge sought to be lcvied by the 2"'t respondent on the actual or not. Though tlcre u'as no "'redditiona I proposals submitted by the 2"a n::;pondent, the ' r2007) l0 SCC 38 6 (2021) 6 S(lC 1.5 t 't previous Commission lxed higher Cross Subsidy Surcharge than the assessed and sought by the 2*! respondent. The proposals submitted by the 2nd respondent were approved by the State Advisory Committce in its meeting on 04.03.2015. In that view of the matter, the previous Commission ought to have restricted the levy of Cross Subsidy Surcharge as per the proposals submitted by the 2na respondent inasmuch as Cross Subsidy Surcharge is compensation to which distribution licensees are entitled and assessed basing on the quantum of cross subsidy extended by the distribution companies on certain categories of consumers. Therefore, the said levy shall be on actuals only, but cannot be bascd on hypothetical. Justifying his submissions, reliance is placed on Sesa Sterlite Limited a. Orissor Electricitg Regulatory CotnmissionT. The impugned action ofthe lst respondent traversed beyond the scope and ambit of the provisions of the Act and Regulations. Any act to be done in particular manner, the act must be done in that manner alone, but not otherwise. The judgment in State of Kerala a. Kerdld Rare Earth and. Mineral-s Limlteds was relied on in this rcgard. Another argument put forward by learned Senior Counsel is that the 1"t rcspondent is bound to act within the r2O 14) 8 SCC 444 20 1661 SCC 323 'i 'A I t, Y, Y, ,t l four corners of the 2003 Act as laid down tlv the Hon'ble Supreme Court in A.P. Electricitg Regulatory Commission a. R.V.K. Energg Private Limitede. The impugned order is tainted s,ith legal malice since while passing the same, the 1"t respon,Jcnt travcrsed bcyond thc scope and ambit of the 2003 Act and Regulations made thereunder. Further, the impugned order is not passed in furtheranr:e of public interest, inasmuch as u p-keeping thc public interest does not mean to favour the 2"d respondent at the cost of the open access consumers like thc petitioner, contencls learned Senior Counsel. Hc takes r:ue from the judgment in A.P. Southern Pouer Distrlbution Com4tang Limited and o,nother os. InduJd National Power Corporation Limited.to and Kalabha,rathi Adtertising I/s Hemanth Vimalnath Narichanial 1.

6. On the other hand, learned Advocatr: (]cneral and Sri P. Pritsad representing the 1.t respondent TGERC ancl Sri N. Sre,.ldhar Reddy, learned Standing Counsel for TGSPIICL primaril_v object the Writ Petition on the ground of maintainabilitl' when an efficacious alternative r',:medy under Se ction 1 I I of the 20O3 Act is available. In this c onnection, he relied crn r he judgment of the Hon'ble Suprcme (lourt in PIC ' (200{3) 17 SCC 769 "' tzo2zl ; s(.rc 484 ' tZol0) .l S('C 437 +) 't India Ltd. a. CERCI2. Apart from this, the learned Standing counsel argued that the Court under Article 32 does not have the power to revise the tarifl charges or determine them. [n support of this contention, he relied on the judgment of the Hon'ble Supreme Court in Association of lndustrial Electricity Users v. State of A.P.l3 He lurther argued that the State Regulatory Commission has the power to fix the tariff and is not bound under the conditions (Kerala State Etectricitg Board u. 'i Jhabua Pouer Ltd.ra).

7. Having considered the respective submissions and perused the record, it may be noted that the impugned order dated 19.O4.2024 passed by the 1"t rcspondent-State Electricity Regulatory Commission in O.P.No.76 of 2O15, determining the Cross Subsidy Surcharge (CSS) for Financial Year 2015-16 at Rs.1.32 per unit (33 KV) and Rs.O.94 per Unit (132 KV), despite the 2nd respondent's proposal of Rs.O.3O and Rs.O.1 1 per Unit, respectively; is challenged on the ground of jurisdiction, contending that the Commission has no j urisdiction to formulate its own proposal, the Commission failed to follow due process, acted contrary to the orders of remand of the Hon'ble Supreme Court and also violatcd the principles of natural justice. The said contention is controverted by Respondents 1 to '' (20lo) 4 scc 60l "(:oo:)rscczrr rr 2024 SCC Onlinc SC 2819 'l .t t, t. t, l.l 4 contending that they complied with the orders :f the Hon'ble Suprcmc Court, in that the Authorities issued draft proposarls, helcl publlc hearings, and that petitioner has an alternative remedy bcforc the Appellate Tribunal for Ekc tricity undcr Scction I 1 I ol the Electricity Act, 2003.

13. [1 is relevant to note, at this juncturr-', that under Section 612 ol the Act, the Commission alone may determine tariff, incltrding CSS and Section 111 provides an Appeal to Appellatt: 'l'ribunal against such orders. The Hon'blc Supreme Court in PTC India Ltd.'s ca.se (supra) held that lariff fixation is a quasi legislative/ technical function vested in specialized rcgulatory l>o<lies and that Courts should discourage bypassing of statu[orv remedies through Writ Petitions. [,ikeu.ise, in ?ransmission Corporation oJ A.P. u. Sci RPPrs, the Court emphasizerl that judicial review of tariff decisions is; limited and thc Courts u'ould not interfere unless the impugnt'd irction of thc Commission is arbitrary, illegal or contrary to th( Act.

9. Though in Mafatlal Industries Ltd. v. Union o.f Indiat6, Whirlpool Corporation v. Registrar o;f Trade Marks. Ind.ustrial Consumers' Association u. KSERC, ir was hcld thiit there is rro bar to entertain a Writ Petition under Article 226 dcspite existence of an alternative remedy, it mzw be noted \ho,t ,r..trt, ol grievance espoused plays a pivotal role in '' (lot t) I I sc( -.J " AIII Online 191)(i S( ll6li l5 cxercising writ jurisdiction despite availability of alternative reme dy. I0. At this juncture, it is relevant to note that in Jaipur Vidgut Vitrdn Nigam Limited vs. MB Power (Madhga Pradesh) LimitedlT, the Hon'blc Supreme Court h:rd categorically held as follows " 128. We find that the High Courl u)as not justifed in entertaining the petition. The Oortstituttort Bench of this Court in PTC IPTC India Ltd a. CERC, (2O1O) 4 SCC 6O3: 2O7O INSC 1461 has held that the Electicity Act is an exhaustiue code on all matters concerning electicitg. Under the Electicitg Act, all issues dealing utth electricity haue to be considered bg the authoities constituted under the said AcL As held bg the Constitution Bench of this Courl, the State Electricitg Commission and tLLe learned APTEL haue ample powers to adjudicate in the matters ulith regard to electicitg. No onlg that, these Tibunak are tribunals consistirtg of experts hauing uast expeience in the field of electicitg. As such" ute find that the High Court ened in directlg entertaining the wit petition tuhen Responclent 1 i.e-, the u.trit petitioner before the High Court had an adequate alternate remedg of approaching the State Ele ctricity Co mmis sio n. " II The Regulatory Commission, unde r Sectior-r (r 1 of the AcL has power to frame terms and conditions for tariff '- r1gp.rlt scc: r: ,i ,t 'i ,I l6 determination; and under Secticrn 62, has the power to cleterminc tariff on an Application made by: compzrny or tr liccnsce. Further, the remand ()rder dated generating

07.11.2023 of the Hon'ble Supreme Court was concerned with the justifiabilitv br otherwise of the CSS rates fixed at Rs. 1.29 / Rs.O.93 givrn the DISCOMs' proposal of Rs.O.30 7' Rs.O. 1 1. In vielr' of thc n.rlure of grievance espoused by the pe titioner with rcgard to tl.rt: :rlleged jurisciictional overreach stating that the 1$ respondcnt-Comnission cannot determine tariffs u'rthout there bcing propo-;als fronr the gencrating company/DISCOM, the w'rit petition is 1.r..,r se r'raintainable.

12. Having said so, it is to be noted that in the matters of this nature , pertaining to electricity tariffs, and Cross Subsidy Surchargc lc','ilcl b-r,thc elcctricify authoritie s/ regulatory bodies for r,r'hcelirrg po\vcr using the distribution lirr:s to the consumers, tlre Hon'ble Supreme Court in the very same judgments ir' Jaipur Vidgat Vitran Nigann Limited (supr@) and PTC India Ltd (supra) further held that thr: Tribunals consisting of cxperts have vast experience in the field of electricity and thc High Court erred in directly entellaining the Writ l)etition ',r'hcn respondent no. I i.e. writ petitio:rer therein beforc thc High Court had an adequate alternate remedy of apprr>;rchinu r hc Statc- Eleotricity Commission t, f, t, 17 'l

13. In light of the law laid down by the Hon'ble Supremc Court in the above two judgments, this Court is not inclined to entertain the Writ Petition, bypassing the primary statutory remedy before the Appellate Tribunal.

14. I 5. Accordingly, the writ petition is dismissed. No costs. Consequently, the interim order which was extended from time to time stands dissolved automatically. I To, SD/-L.LAKSHMI BABU DEPUTY REGISTRAR //TRUE COPY// I I SECTION OFFICER 1 One CC to SRI G CHANDRA SHEKHAR RAO 2 One CC to SRl. P PRASAD (SC FOR TSERC) [OPUC] 3. One CC to SRI R. VINOD REDDY TSSPDCLIOPUCI ; i;" CCs to GP for Energy, High Court for the State of Telangana at cate [OPUC] Hyderabad [OUT] Two CD CoPies 5 KKS LS W I HIGH COURT DATED:31 10712025 4: ORDER WP.No.123C)4 oI 2024 1!rE ST4 16: (o\r ( t'" [7 ill]U fl[t D S nAI r'.-' > Z a -r+ DISMISSING THE WRIT PETITION WITHOUT COSTS

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