Karnataka Power Transmission … vs M/S Shamanur Sugars Limited on 30 April, 2026

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    Karnataka High Court

    Karnataka Power Transmission … vs M/S Shamanur Sugars Limited on 30 April, 2026

                                              -1-
                                                         WA No. 927 of 2023
    
    
    
                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    
                             DATED THIS THE 30TH DAY OF APRIL, 2026
    
                                           PRESENT
                          THE HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE
                                              AND
                            THE HON'BLE MR. JUSTICE C.M. POONACHA
                              WRIT APPEAL NO. 927 OF 2023 (GM-KEB)
                   BETWEEN:
    
                   1.   KARNATAKA POWER TRANSMISSION
                        CORPORATION LIMITED
                        A COMPANY REGISTERED UNDER THE
                        PROVISIONS OF THE COMPANIES ACT, 1956
                        HAVING ITS REGISTERED OFFICE AT
                        KAVERI BHAVAN
                        BENGALURU - 560 009
    
                   2.   STATE LOAD DISPATCH CENTRE, KPTCL
                        HAVING ITS REGISTERED OFFICE AT
                        NO. 28, RACE COURSE ROAD
                        BENGALURU - 560 009
                                                                ...APPELLANTS
    Digitally      (BY SRI S. SRIRANGA, SENIOR ADVOCATE FOR
    signed by K     SMT. SUMANA NAGANAND, ADVOCATE)
    P SWETHA
    Location:      AND:
    High Court
    of Karnataka   1.   M/S SHAMANUR SUGARS LIMITED
                        A COMPANY INCORPORATED UNDER
                        THE PROVISIONS OF COMPANIES ACT, 1956
                        HAVING ITS REGISTERED OFFICE AT
                        NO.374, 4TH MAIN, P.J. EXTENSION
                        DAVANGERE - 577 002
    
                   2.   CENTRAL ELECTRICITY
                        REGULATORY COMMISSION
                                    -2-
                                                 WA No. 927 of 2023
    
    
    
        3RD AND 4TH FLOOR
        CHANDERLOK BUILDING
        36, JANPATH, NEW DELHI - 110 001
                                                      ...RESPONDENTS

    (BY SRI SHRIDHAR PRABHU, ADVOCATE FOR R-1 &
    SRI PRADEEP NAYAK, ADVOCATE FOR R-2)

    THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
    KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE
    ORDER DATED 22/05/2023 PASSED BY THE LEARNED SINGLE
    JUDGE IN W.P. NO.46495/2012 AND CONSEQUENTLY ALLOW THE
    WRIT PETITION.

    SPONSORED

    THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED

    FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,

    JUDGMENT WAS PRONOUNCED AS UNDER:

    CORAM: HON’BLE MR. VIBHU BAKHRU ,CHIEF JUSTICE
    and
    HON’BLE MR. JUSTICE C.M. POONACHA

    C.A.V. JUDGMENT
    (PER: HON’BLE MR. VIBHU BAKHRU ,CHIEF JUSTICE)

    INTRODUCTION

    1. The appellants have filed the present intra-court appeal

    impugning a judgment dated 22.05.2023 [hereinafter ‘the

    impugned order’] passed by the learned Single Judge of this

    Court dismissing the writ petition filed by the appellants-

    W.P.No.46495/2012 (GM-KEB).

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    WA No. 927 of 2023

    2. Appellant No.1 – Karnataka Power Transmission Corporation

    Limited [hereinafter referred to as ‘KPTCL’], is a Government

    Company and its shares are held by the State of Karnataka. It is

    the State Transmission Utility as defined under Section 39 of the

    Electricity Act, 2003 [hereinafter referred to as ‘the Act’]. KPTCL is

    engaged in the business of transmission of electricity in the State of

    Karnataka, and its functions are set out under Sections 39(2) and

    40 of the Act. Appellant No. 2 – the State Load Despatch Centre

    [hereinafter referred to as ‘SLDC’], constituted under Section 31 of

    the Act. KPTCL operates the SLDC as per the first proviso to

    Section 31(2) of the Act. The primary function of the SLDC is to

    ensure integrated operation of the power system in the State of

    Karnataka.

    3. Respondent No.1, M/s.Shamanur Sugars Limited [hereinafter

    ‘SSL’], is a company incorporated under the provisions of the

    Companies Act, 1956, having its registered office at Davangere,

    Karnataka. SSL is a generating company and has established a

    bagasse-based co-generation power plant with a capacity of 20

    MWs. Respondent No.2 is the Central Electricity Regulatory

    Commission [hereinafter referred to as ‘CERC’], constituted under
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    WA No. 927 of 2023

    Section 76 of the Act to discharge the functions enumerated under

    Section 79 of the Act.

    4. The appellants had filed the writ petition, from which the

    present appeal arises, challenging an order dated 09.10.2012

    (hereafter ‘the CERC’s order’) passed by the CERC in Petition No.

    124/MP/2011. SSL had filed the said petition, inter alia, challenging

    the amended condition, Clause (m) (hereafter referred to as ‘the

    impugned condition’ or ‘the impugned clause’), inserted by the

    SLDC in the Standing Clearance and No-Objection Certificate

    [hereinafter referred to as ‘SC/NOC’] issued to SSL for inter-State

    open access transmission. The CERC set aside the impugned

    clause and directed the appellants to settle the dues of SSL from

    January, 2010 onwards in accordance with Regulation 20 (5) of the

    CERC (Open Access in Inter-State Transmission) Regulations,

    2008 [hereinafter referred to as ‘the Open Access Regulations’].

    The appellants, inter alia, contended that (i) the CERC lacks the

    jurisdiction to pass the said order; (ii) the SLDC’s action in inserting

    the said clause was statutory in nature and not administrative ; and

    (iii) Regulation 8 of the Open Access Regulations is ultra vires the

    provisions of the Act. The learned Single Judge dismissed the writ

    petition by the impugned order. The learned Single Judge upheld
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    WA No. 927 of 2023

    the CERC’s order and further directed the State Government to

    establish a separate independent entity to function as the SLDC.

    5. Before considering the import of the reliefs sought by the

    appellants in the writ petition and the challenge raised in the

    present appeal, it is relevant to set out the factual context in which

    the controversy involved in the writ petition and the present appeal

    arises.

    PREFATORY FACTS

    6. SSL commissioned a 2,500 TCD sugar plant along with a 20

    MW bagasse-based co-generation power plant, which commenced

    commercial operations in September 1999. On 07.03.1998, SSL

    entered into a Power Purchase Agreement [hereinafter referred to

    as ‘the PPA’] with KPTCL for selling surplus power of 10 to 15

    MWs to the State grid. The PPA was for a term of ten years.

    7. The PPA came to an end in September 2009. Thereafter, SSL

    was under no obligation to sell power to KPTCL or its successors.

    SSL, after meeting its captive load, commenced selling its surplus

    power on short-term open access through bilateral sales and the

    Power Exchange to consumers outside Karnataka. Accordingly,
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    SSL applied for SC/NOC from the SLDC as mandatorily required

    for short-term open access under the Open Access Regulations.

    8. The initial SC/NOC granted by the SLDC to SSL contained a

    clause, Clause (m), which reads as follows:

    “(m) Payment will not be made if power is supplied in
    excess of 5% of the approved schedule by
    KPTCL/ESCOMs.”

    9. SSL states that the said initial Clause(m) was broadly in

    consonance with the Open Access Regulations. It is further stated

    that in consideration of the support provided to the grid from

    September to December 2009, SSL received approximately

    `11,00,000/- as UI charges from the appellants. However, SSL

    contends that the calculation method was not shared with it.

    Additionally, SSL states that it did not receive the UI charges from

    January to March 2010.

    10. In or about March 2010, SSL applied afresh for SC/NOC from

    the SLDC for selling power through the Power Exchange. The

    SC/NOC thereafter issued by the SLDC, with effect from

    01.04.2010 contained the impugned clause, which reads as under:

    “Clause (m) – for any excess generation, the rates
    fixed by KERC for old plants only will be paid and not
    as per UI rates. However, for shortfall in generation as
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    WA No. 927 of 2023

    compared to the scheduled generation, the firm will
    pay UI rates.”

    11. On 21.02.2011 (It is incorrectly mentioned as 09.05.2011 in the

    synopsis), SSL filed a petition, Petition No.124/MP/2011, before the

    CERC under Section 79(1)(f) of the Act read with Regulation 26 of

    the Open Access Regulations, inter alia, seeking the following

    reliefs:

    “(a) declare that clause (m) Introduced as the additional
    condition in the standing clearance issued by the
    Respondent No. 2 to the. Petitioner from 1ª April, 2010
    (being Annexures B (colly)) are contrary to the CERC
    (short term open access transmission) Regulation 2008
    and the CERC (Unscheduled Interchange charges and
    related matters) Regulations 2009; and

    (b) direct the Respondent to compute the Ul charges for the
    transactions made by the Petitioner from January, 2010 till
    date and settle the same in terms of the CERC
    (Unscheduled Interchange charges and related matters)
    Regulations, 2009, as amended from time to time;

    (c) direct the Respondent to give detailed energy accounts
    and necessary supporting documents towards UI
    settlements to the Petitioner for each settlement period.

    (d) Pass such other or further orders as this Hon’ble
    Commission may deem fit and proper in the facts and
    circumstances of the case.”

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    WA No. 927 of 2023

    RIVAL CONTENTIONS BEFORE CERC

    12. The appellants contend that the said impugned condition was

    imposed to regulate injection and drawal of power by SSL, having

    regard to its history of drastic deviation from the approved

    schedule, resulting in sharp increases and decreases in grid

    frequency, in the interest of grid security and to curb ‘gaming’

    activities. It is stated on behalf of the appellants that the generation

    pattern of SSL prior to the insertion of the impugned clause, was

    erratic and demonstrated gross negligence on SSL’s part in

    following the approved schedule, thereby causing danger to the

    grid. The appellants also state that generators with an installed

    capacity of less than 25 MWs, such as SSL (with a capacity of 20

    MWs), were not subject to the Regulations pertaining to

    Availability-Based Tariff (ABT) and were not required to

    compulsorily install SCADA (Supervisory Control and Data

    Acquisition), making monitoring of their injections and drawals

    through ABT impossible.

    13. SSL, counters the said submissions and contends that the

    impugned clause is contrary to Regulation 20(5) of the Open

    Access Regulations and the CERC (Unscheduled Interchange

    Charges and Related Matters) Regulations, 2009 (referred to as
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    WA No. 927 of 2023

    ‘the UI Regulations’). SSL contends that SLDC cannot impose

    conditions for determining tariffs and charges for power sold on

    inter-State open access; nor can it impose restrictions on UI

    charges receivable in the hands of the generator and link them to

    the tariff determined by the KERC. SSL further contends that the

    impugned clause is arbitrary, inasmuch as while the generator

    would be required to pay at the prevailing UI rate for shortfall in

    actual generation in relation to scheduled generation, it would

    receive a lesser rate — being the KERC rate for old plants — for

    over-injection, which was contrary to the symmetry envisaged by

    Regulation 20(5).

    14. As noted above, SSL filed the petition before CERC. SSL

    contended that since its surplus power was being sold on inter-

    State open access to consumers outside Karnataka, the dispute fell

    within the jurisdiction of the CERC.

    15. On being notified by the CERC about the said proceedings, the

    appellants entered appearance and filed their Statement of

    Objections dated 24.08.2011 before the CERC. It was the

    appellants’ case that:

    (a) the SLDC had been constituted under Section 31 of the
    Act, with duties and functions enumerated in Section 32 of

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    WA No. 927 of 2023

    the Act, and its primary duty was to ensure integrated
    operation of the power system in the State of Karnataka;

    (b) Section 33 of the Act provides that the directions issued
    by the SLDC are binding and are to be complied with by
    every licensee, generating company, generating station,
    sub-station and any other person connected to the grid;

    (c) having regard to the history of SSL in deviating from the
    approved schedule of injection and drawal of electricity, the
    SLDC imposed the said condition to regulate injection and
    drawal of power so as to ensure grid safety and security;

    (d) SSL had the tendency of drastic deviation from the
    approved schedule resulting in sharp increase and
    decrease in grid frequency; and

    (e) the power generation pattern which resulted in the
    imposition of the additional condition was placed before the
    CERC.

    16. The appellants also filed a statement before the CERC,

    wherein they further elaborated upon the pattern of deviations by

    SSL. They contended that there was absolute negligence on the

    part of SSL in not following the approved schedules, which resulted

    in random over-drawal and injection of power, endangering grid

    security. It was also pointed out that generators with a capacity of

    less than 25 MW were not subject to the Regulations pertaining to

    Availability-Based Tariff (ABT) and that SSL, being a co-generation

    plant of 20 MW capacity, did not fall under the purview of

    ABT/SCADA.

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    WA No. 927 of 2023

    17. SSL filed a rejoinder to the Statement of Objections before the

    CERC, denying the allegations that it was not complying with the

    schedule and endangering grid security. It was contended by SSL

    that it had at all times tried to abide by the schedule approved by

    the SLDC and that the appellants had failed to present any

    sustainable reasoning for inserting the impugned condition or for

    non-payment of UI charges. SSL further contended that the data

    placed on record by the appellants was selective, covering only a

    chosen few days, and was therefore not reliable for ascertaining its

    conduct.

    18. During the hearing on 20.12.2011, the CERC raised a query as

    to whether the State of Karnataka had implemented Availability-

    Based Tariff (ABT). The CERC further directed the appellants to file

    an affidavit on oath indicating under which provision of the

    Regulations the additional clause had been inserted and whether

    the KERC had framed any such Regulations.

    19. Pursuant to the aforesaid direction of the CERC, the appellants

    filed an affidavit dated 05.01.2012, in which it was submitted that:

    (i) the rationale behind inclusion of the impugned clause was to

    regulate injection and drawal of power by generators so as to

    effectively monitor the grid to ensure grid safety and security at all

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    WA No. 927 of 2023

    times; (ii) SSL had a tendency to deviate drastically from the

    approved schedule resulting in sharp increase/decrease in the grid

    frequency; (iii) the SLDC was entitled to give directions under

    Section 33 of the Act for integrated grid operation and had taken

    precautionary measures to ensure that generators having obtained

    open access follow their schedule so as to ensure grid stability; (iv)

    the generation pattern of SSL prior to and pursuant to insertion of

    the impugned clause was annexed; and (v) as per the order of the

    KERC dated 20.06.2006 and the Grid Code issued by the KERC,

    all generators with installed capacity of 25 MW and above fall

    under the purview of ABT, and generators having an installed

    capacity less than 25 MWs are not required to compulsorily install

    ABT/SCADA. It was further submitted that there were numerous

    independent power producers within the State of Karnataka whose

    gross exportable capacity exceeded 700 MW, and if all variations in

    supply were not in keeping with schedules, it would have a

    disastrous effect on the stability of the grid.

    CERC’s ORDER

    20. On 09.10.2012, the CERC passed the CERC’s order in Petition

    No.124/MP/2011. The CERC, after considering the submissions of

    the parties, noted that in terms of Regulation 20(5) of the Open

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    Access Regulations, unless specified otherwise by the concerned

    State Commission, the UI rate for an intra-State entity shall be

    105% (for over-drawals or under-generation) and 95% (for under-

    drawals or over-generation) of the UI rate at the periphery of the

    regional entity. The CERC observed that there was no intra-State

    ABT (Availability Based Tariff) in the State of Karnataka and that

    the KERC had not prescribed any limit for over-drawals or under-

    generation and under-drawals or over-generation by any intra-State

    entity. The CERC, therefore, held that the SLDC was bound to

    comply with the Open Access Regulations when issuing SC/NOC

    for open access in inter-State transmission of electricity, and that

    any deviation from Regulation 20(5) was a violation of the said

    Regulations.

    21. The CERC further observed that the impugned condition

    (modified Clause (m) of the SC/NOC), which provided that any

    excess generation would be paid at the rates fixed by KERC for old

    plants only, had no basis and was arbitrary. The CERC noted that

    while the SLDC would receive UI charges for over-injection by the

    intra-State generators from the RLDC at the rate applicable to the

    prevailing frequency, it would make payments to the generators at

    the rates fixed by KERC for old plants, thereby making a profit on

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    account of the provisions of the amended Clause (m). The CERC

    also observed that the said provision was discriminatory, inasmuch

    as while the generator would pay at the prevailing UI rate for a

    shortfall in actual generation relative to scheduled generation, it

    would receive a lower rate than the UI rate for over-injection.

    22. The CERC held that it is a settled principle of law that statutory

    regulations cannot be changed through administrative instructions

    and that in case of conflict between statutory regulations and

    administrative instructions, the former shall prevail. The CERC

    accordingly set aside the impugned clause and directed the

    appellants: (i) to align the SC/NOC for open access to inter-State

    transmission with the provisions of the Open Access Regulations

    and the UI Regulations framed by the CERC; and (ii) to settle the

    dues of SSL from January 2010 onwards in accordance with

    Regulation 20(5) of the Open Access Regulations, after sharing the

    relevant injection and drawal data with SSL.

    WRIT PETITION – W.P.No. 46495/2012

    23. Aggrieved by the CERC’s order dated 09.10.2012, the

    appellants filed W.P.No.46495/2012 (GM-KEB) before this Court

    on 17.11.2012. The appellants contended that:

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    WA No. 927 of 2023

    (i) the CERC failed to appreciate that the action of the

    SLDC in inserting the impugned clause was statutory in

    nature under Sections 32 and 33 of the Act and not

    administrative;

    (ii) the CERC, being a statutory authority, could not sit in

    appeal over the statutory functions of another statutory

    authority, namely the SLDC, constituted under the very

    same enactment;

    (iii) in case of conflict between statutory action and

    Regulations, the statutory action will prevail over the

    Regulations; and

    (iv) the appellants also contended that the CERC had no

    jurisdiction to entertain the petition filed by SSL.

    24. On 05.04.2013, the appellants were permitted, by order of this

    Court, to amend the Writ Petition so as to include an additional

    prayer, being prayer 1(a), seeking a declaration that Regulation 8

    of the CERC (Open Access in Inter-State Transmission)

    Regulations, 2008 dated 25.01.2008 as ultra vires to the Act. The

    specific contention raised in support of the said prayer was that the

    said Regulation seeks to regulate the activities of the SLDC

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    WA No. 927 of 2023

    de hors Sections 31 to 33 of the Act, and that the powers vested in

    the SLDC under Part V of the Act cannot be curtailed by the CERC

    through the device of subordinate legislation.

    25. In the Writ Petition, SSL filed its Preliminary Statement of

    Objections, raising, inter alia, the following contentions: (i) the

    appellants had submitted to the jurisdiction of the CERC during the

    proceedings before it and had not challenged the CERC’s

    jurisdiction at the initial stage; (ii) the appellants had an alternative

    and efficacious remedy by way of an appeal to the Appellate

    Tribunal for Electricity under Section 111 of the Act; (iii) a statutory

    body cannot seek quashing of a statutory provision in a parent Act

    or a subordinate legislation; and (iv) the CERC had rightly decided

    the matter before it. SSL relied upon the decision of this Court in

    Karnataka Power Transmission Corporation Limited v. R.K.

    Powergen Private Limited1 and the decision of the Apex Court in

    Uttar Pradesh Power Corporation Limited v. NTPC Ltd. and

    Others2, in support of its contention regarding the availability of an

    alternative remedy.

    26. The CERC also filed its Statement of Objections. It was

    contended on behalf of the CERC that: (i) the CERC has the
    1
    2006 (2) KarLJ 608
    2
    2011 (10) SCALE 499

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    WA No. 927 of 2023

    necessary powers to regulate all inter-State electricity transmission;

    (ii) the Open Access Regulations were validly framed under

    Section 178 of the Act and fall squarely within its scope; (iii) the

    KERC would have jurisdiction only in respect of intra-State

    transmission; (iv) when there is an inter-State element, the KERC,

    which exercises jurisdiction within the State of Karnataka, cannot

    have extra-territorial jurisdiction and it is for that reason that the

    CERC is vested with jurisdiction over inter-State transmission of

    power; and (v) the challenge to the vires of Regulation 8 of the

    Open Access Regulations was untenable and devoid of merits.

    IMPUGNED ORDER

    27. The learned Single Judge noted the following eight points for

    consideration:

    (i) Whether the CERC would have the power to

    regulate the transmission and distribution of power on

    intra-State lines?

    (ii) Whether the CERC would have the power to regulate

    the transmission and distribution of power on inter-State

    lines?

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    (iii) Whether the disputes in the present matter could be

    raised under Section 79(1)(f) of the Electricity Act?

    (iv) Whether the SLDC can regulate inter-State electricity

    transmission by exercising its statutory powers?

    (v) Whether there is a conflict of interest between KPTCL

    and SLDC?

    (vi) Whether the order passed by the CERC in Petition No.

    124/MP/2011 suffers from any illegality requiring interference

    at the hands of this Court?

    (vii) Whether the petitioners would have to be relegated to

    an appeal before the Appellate Tribunal in lieu of Section 111

    of the Electricity Act?

    (viii) What order?

    28. In regard to Points No. 1 and 2, the learned Single Judge

    referred to Sections 79 and 86 of the Act and held that from a

    comparison of the two provisions, it is clear that the jurisdiction of a

    State Commission is limited to the transmission of electricity within

    the State, that is, intra-State, whereas under Section 79 of the Act,

    the powers of the Central Commission relate to inter-State

    transmission, determination of tariff, and functioning of licensees.

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    WA No. 927 of 2023

    The learned Single Judge held that the KERC would have power to

    regulate the transmission and distribution of power on all intra-

    State lines, while the CERC would have power to regulate the

    transmission and distribution of power on all inter-State lines, and

    as a corollary, the KERC would not have power to regulate inter-

    State transmission, which can only be regulated by the Central

    Commission.

    29. With respect of Point No. 3, the learned Single Judge observed

    that the present dispute is one relating to inter-State transmission,

    inasmuch as the power/electricity is produced in the State of

    Karnataka and distributed outside the State of Karnataka. The

    learned Single Judge held that the CERC would have the powers

    under Section 79(1)(f) of the Act to adjudicate issues relating to

    inter-State transmission and distribution of electricity. The learned

    Single Judge further observed that the decisions relied upon by the

    appellants — Indo Rama Synthetic Ltd.3, Kamachi Sponge &

    Power Corporation Ltd.4, and Sal Steel5 — were all in matters

    relating to intra-State transmission, wherein the regulation and/or

    schedule formulated by the respective SLDC was within the State.

    3
    2011 SCC OnLine APTEL 77
    4
    Appeal No. 120/2016
    5
    2010 SCC OnLine Guj 3584

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    WA No. 927 of 2023

    None of those decisions related to inter-State transmission;

    therefore, they would have no bearing on the present matter.

    30. In respect of Point No. 4, the learned Single Judge, after

    examining Sections 31, 32 and 33 of the Act, held that the

    functions of the SLDC under Section 32 of the Act and the power to

    issue directions as provided under Section 33 of the Act, are

    restricted to intra-State transmission and do not extend to inter-

    State transmission. The learned Single Judge concluded that the

    SLDC cannot regulate inter-State electricity transmission by

    exercising its statutory powers under the Act.

    31. With respect to Point No. 5, the learned Single Judge observed

    that in terms of Section 31 of the Act, a separate company is

    required to be established by the State to operate the SLDC. The

    learned Single Judge noted that despite the Act having come into

    force in the year 2003 and twenty years having elapsed there from,

    no action had been taken in that regard and the SLDC continued to

    operate under the State Transmission Utility. The learned Single

    Judge expressed the opinion that there is bound to be conflict

    between the State Transmission Utility and the functioning of the

    SLDC, and directed that the State establish a separate entity for

    operating the SLDC so that it can function independent of the State

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    Transmission Utility at the earliest, and at any rate within a period

    of six weeks from the date of receipt of the impugned order. The

    Registrar General was directed to forward a copy of the order to

    the Chief Secretary, Government of Karnataka.

    32. With respect to Point No. 6, the learned Single Judge held that

    in view of the findings on the preceding points, the impugned

    condition imposed by the SLDC was bad in law and not authorised.

    The learned Single Judge observed that, since the dispute between

    the parties relates to inter-State generation, transmission, and

    distribution, the CERC, not the KERC, had the jurisdiction to decide

    the dispute. The learned Single Judge held that since the CERC

    had taken into consideration all the relevant aspects, there was no

    infirmity in the CERC’s order.

    33. With respect to Point No. 7, the learned Single Judge noted

    that the matter had been pending since the year 2012, had been

    taken up on merits, and all contentions which had been raised were

    considered. The learned Single Judge held that relegation of the

    petitioners (the appellants herein) to the Appellate Tribunal after a

    period of eleven years would amount to a travesty of justice, and

    accordingly declined to relegate the appellants to the statutory

    appellate remedy.

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    WA No. 927 of 2023

    34. In view of the above, the learned Single Judge dismissed the

    Writ Petition.

    35. It is material to note that the impugned order does not contain

    any finding with respect to the prayer seeking a declaration that

    Regulation 8 of the Open Access Regulations is ultra vires the

    provisions of the Act.

    SUBMISSIONS

    36. Sri S. Sriranga, the learned Senior Counsel appearing for the

    appellants, contended that the CERC’s order was without

    jurisdiction and contrary to the provisions of the Act. He contended

    that the impugned condition was imposed by SLDC in exercise of

    statutory powers and therefore, the same could not be set aside by

    CERC, which is also another statutory body constituted under the

    Act. He also contended that in case of a conflict between any

    directions in exercise of statutory powers and the regulations, the

    statutory action would prevail.

    37. Next, he submitted that the CERC could not set aside an action

    of another statutory authority under the Act. He further submitted

    that the regulations made by the CERC were ultra vires the Act, as

    they conflicted with the powers conferred on the SLDC under

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    WA No. 927 of 2023

    Sections 31 to 33 of the Act. He also submitted that SSL had

    indulged in ‘gaming’, which would put the grid at risk. He contended

    that SLDC is responsible for the optimal scheduling and dispatch of

    electricity within a State and is required to monitor grid operations.

    It exercises supervision and control over the intra-state

    transmission system and is required to issue such directions as

    may be required. He submitted that the impugned clause has been

    imposed in exercise of such powers and thus, setting aside the

    same would in effect run contrary to the provisions of the Act.

    REASONS AND CONCLUSION

    38. At the outset, we may now note the reliefs sought by the

    appellants in the Writ Petition as also in the present appeal. In the

    Writ Petition No. 46495 of 2012 (as amended), the appellants

    sought the following reliefs:

    “(a) Quash the order dated 09.10.2012 passed

    by the 2nd Respondent (CERC) in Petition No.

    124/MP/2011 (Annexure-E);

    (b) Declare that Regulation 8 of the CERC

    (Open Access in Inter-State Transmission)

    – 24 –

    WA No. 927 of 2023

    Regulations, 2008 dated 25.01.2008 is ultra vires of the

    Act;

    (c) Declare that the order dated 09.10.2012

    passed by the 2nd Respondent in Petition No.

    124/MP/2011 (Annexure-E) is without jurisdiction;

    (d) Declare that the 2nd Respondent, in

    exercise of powers under Section 79 of the Act, cannot

    sit in appeal over the directions issued under Sections

    31 and 32 of the said Act;

    (e) Declare that the 2nd Respondent

    constituted under the provisions of the Electricity Act,

    2003 cannot decide or declare the veracity of the

    decisions taken by another statutory authority i.e., the

    2nd Petitioner (SLDC), which is also constituted under

    the provisions of the Act”

    39. In the present appeal (Writ Appeal No. 927 of 2023 filed on

    07.08.2023), the appellants pray that this Court be pleased to set

    aside the impugned order dated 22.05.2023 passed by the learned

    Single Judge in W.P. No. 46495 of 2012.

    40. The principal questions to be addressed are:

    – 25 –

    WA No. 927 of 2023

    (i) Whether Regulation 8 of the Open Access

    Regulations is ultra vires the Act?

    (ii) Whether the CERC’s order is without

    jurisdiction?

    (iii) Whether the impugned condition is valid?

    STATUTORY FRAMEWORK

    41. Before proceeding further, it is necessary to briefly note the

    statutory framework governing the present dispute. The Act is a

    comprehensive enactment relating to, inter alia, the generation,

    transmission, distribution, trading and use of electricity.

    42. In PTC India Limited v. Central Electricity Regulatory

    Commission6, the Supreme Court had observed:

    “17. The 2003 Act is enacted as an exhaustive
    code on all matters concerning electricity. It provides
    for “unbundling” of SEBs into separate utilities for
    generation, transmission and distribution. It repeals
    the Electricity Act, 1910; the Electricity (Supply) Act,
    1948
    and the Electricity Regulatory Commissions Act,
    1998
    . The 2003 Act, in furtherance of the policy
    envisaged under the Electricity Regulatory
    Commissions Act, 1998
    (the 1998 Act), mandated the
    establishment of an independent and transparent
    regulatory mechanism, and has entrusted wide-
    ranging responsibilities with the Regulatory

    6
    (2010) 4 SCC 603

    – 26 –

    WA No. 927 of 2023

    Commissions. While the 1998 Act provided for
    independent regulation in the area of tariff
    determination; the 2003 Act has distanced the
    Government from all forms of regulation, namely,
    licensing, tariff regulation, specifying Grid Code,
    facilitating competition through open access, etc.

    18. Section 3 of the 2003 Act requires the Central
    Government, in consultation with the State
    Governments and the Authority, to prepare the
    National Electricity Policy as well as tariff policy for
    development of the power system based on optimum
    utilisation of resources. The Central and the State
    Governments are also vested with rule-making powers
    under Sections 176 and 180 respectively, while the
    “Authority” has been defined under Section 2(6) as the
    regulation-making power under Section 177. On the
    other hand, the Regulatory Commissions are vested
    with the power to frame policy, in the form of
    regulations, under various provisions of the 2003 Act.
    However, the Regulatory Commissions are
    empowered to frame policy, in the form of regulations,
    as guided by the general policy framed by the Central
    Government. They are to be guided by the National
    Electricity Policy, the tariff policy as well as the
    National Electricity Plan in terms of Sections 79(4) and
    86(4) of the 2003 Act (see also Section 66).”

    43. Part V of the Act deals with the transmission of electricity.

    Whereas Sections 25 to 29 of the Act contain provisions

    concerning inter-State transmission, Sections 30 to 33 relate to

    intra-State transmission.

    44. Section 31 of the Act provides for the constitution of State Load

    Despatch Centres. In terms of Section 31(1) of the Act, the State

    Government is required to establish a centre to be known as the

    State Load Despatch Centre for the purposes of exercising the

    – 27 –

    WA No. 927 of 2023

    powers and discharging the functions under Part V of the Act.

    Section 31(2) of the Act provides that the SLDC shall be operated

    by a Government company or any authority or corporation

    established or constituted by or under any State Act, as may be

    notified by the State Government, with a proviso that until such

    notification is issued, the State Transmission Utility shall operate

    the SLDC.

    45. Section 32 of the Act enumerates the functions of the SLDC.

    Section 32(1) of the Act, posits that the SLDC shall be the apex

    body responsible for ensuring the integrated operation of the power

    system in a State. Section 32(2) of the Act provides that the SLDC

    shall, inter alia, be responsible for optimum scheduling and

    despatch of electricity within a State in accordance with the

    contracts entered into with the licensees or the generating

    companies operating in that State, monitor grid operations, keep

    accounts of the quantity of electricity transmitted through the State

    grid, exercise supervision and control over the intra-State

    transmission system, and be responsible for carrying out real-time

    operations for grid control and despatch of electricity within the

    State through secure and economic operation of the State grid in

    accordance with the Grid Standards and the State Grid Code.

    – 28 –

    WA No. 927 of 2023

    46. Section 33 of the Act deals with compliance with the directions

    issued by the SLDC. Section 33(1) of the Act provides that the

    SLDC may give such directions and exercise such supervision and

    control as may be required for ensuring integrated grid operations

    and for achieving the maximum economy and efficiency in the

    operation of the power system in that State. Section 33(2) of the

    Act makes it obligatory upon every licensee, generating company,

    generating station, sub-station and any other person connected

    with the operation of the power system to comply with the

    directions issued by the SLDC. Section 33(4) of the Act provides a

    dispute resolution mechanism, stipulating that any dispute arising

    with reference to the quality of electricity or safe, secure and

    integrated operation of the State grid, or in relation to any direction

    given under sub-section (1), shall be referred to the State

    Commission for decision, with the proviso that pending such

    decision, the directions of the SLDC shall be complied with. Section

    33(5) of the Act provides for a penalty not exceeding Rupees Five

    Lakhs for non-compliance with the directions of the SLDC.

    47. The CERC is constituted under Section 76 of the Act. Section

    79 of the Act enumerates the functions of the CERC, which include,

    inter alia: (a) regulating the tariff of generating companies owned or

    – 29 –

    WA No. 927 of 2023

    controlled by the Central Government; (b) regulating the tariff of

    generating companies, other than those covered under clause (a),

    which enter into or otherwise have a composite scheme for

    generation and sale of electricity in more than one State.; (c)

    regulating the inter-State transmission of electricity; (d) determining

    tariff for inter-State transmission of electricity; (e) issuing licences

    to persons to function as transmission licensees and electricity

    traders with respect to their inter-State operations; and (f)

    adjudicating upon disputes involving generating companies or

    transmission licensees in regard to matters connected with clauses

    (a) to (d) above and referring any dispute for arbitration. Section

    178 of the Act confers powers upon the CERC to make regulations

    consistent with the Act and the rules, so as to carry out the

    provisions of the Act.

    48. The Karnataka Electricity Regulatory Commission [hereinafter

    referred to as ‘KERC’] is the State Commission constituted under

    Section 82 of the Act. The functions of the State Commission are

    enumerated under Section 86 of the Act and include, inter alia,

    determination of tariff for generation, supply, transmission and

    wheeling of electricity within the State, regulation of electricity

    purchase and procurement, facilitation of intra-State transmission

    – 30 –

    WA No. 927 of 2023

    and wheeling of electricity, issuance of licences to persons with

    respect to their operations within the State, and adjudication of

    disputes between the licensees and generating companies. It is

    pertinent to note that the jurisdiction of the State Commission under

    Section 86 of the Act is confined to intra-State matters.

    49. On 25.01.2008, the CERC notified the Open Access

    Regulations7, framed in exercise of powers conferred upon it under

    Section 178 of the Act. The said Regulations lay down the

    procedure and terms and conditions for the grant of open access to

    the inter-State transmission system. Regulation 8 of the Open

    Access Regulations provides for the SLDC’s concurrence in

    bilateral and collective transactions. In terms of Regulation 8(2), a

    State utility or an intra-State entity proposing to participate in

    trading through a power exchange is required to obtain a no-

    objection or prior standing clearance from the SLDC. Regulation

    8(3) of the Open Access Regulations sets out the procedure for

    obtaining such concurrence or no-objection, including timelines for

    the SLDC to process applications and grounds on which refusal

    may be communicated.

    7
    CERC (Open Access in Inter-State Transmission) Regulations, 2008

    – 31 –

    WA No. 927 of 2023

    50. Regulation 20 of the Open Access Regulations contains

    provisions for Unscheduled Interchange (UI) Charges. In terms of

    Regulation 20(4) of the Open Access Regulations, any mismatch

    between the scheduled and the actual drawal at drawal points and

    the scheduled and the actual injection at injection points for the

    intra-State entities is to be determined by the concerned State

    Load Despatch Centre and covered under the intra-State UI

    accounting scheme. Regulation 20(5) of the Open Access

    Regulations provides that unless specified otherwise by the

    concerned State Commission, the UI rate for an intra-State entity

    shall be 105% (for over-drawals or under-generation) and 95% (for

    under-drawals or over-generation) of the UI rate at the periphery of

    the regional entity. Regulation 20(6) stipulates that no charges,

    other than those specified under the said Regulations, shall be

    payable by any person granted short-term open access under the

    said Regulations.

    CERC

    51. Part X of the Act provides for the constitution, powers and

    functions of the Central Commission. Section 76 of the Act

    provides for Constitution of the CERC.

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    WA No. 927 of 2023

    52. Section 79 of the Act sets out the functions of CERC. It is

    relevant to refer to the said section and the same is reproduced

    below:

    “79. Functions of Central Commission. – (1) The
    Central Commission shall discharge the following
    functions, namely:-

    (a) to regulate the tariff of generating companies
    owned or controlled by the Central Government;

    (b) to regulate the tariff of generating companies
    other than those owned or controlled by the Central
    Government specified in clause(a), if such generating
    companies enter into or otherwise have a composite
    scheme for generation and sale of electricity in
    morethan one State;

    (c) to regulate the inter-State transmission of
    electricity ;

    (d) to determine tariff for inter-State transmission of
    electricity;

    (e) to issue licenses to persons to function as
    transmission licensee and electricity trader with
    respect to their inter-State operations;

    (f) to adjudicate upon disputes involving generating
    companies or transmission licensee in regard to
    matters connected with clauses(a) to (d) above and to
    refer any dispute for arbitration;

    (g) to levy fees for the purposes of this Act;

    (h) to specify Grid Code having regard to Grid
    Standards;

    (i)to specify and enforce the standards with respect
    to quality, continuity and reliability of service by
    licensees;

    (j) to fix the trading margin in the inter-State trading
    of electricity, if considered, necessary;

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    WA No. 927 of 2023

    (k) to discharge such other functions as may be
    assigned under this Act.

    (2) The Central Commission shall advise the
    Central Government on all or any of the following
    matters, namely :-

    (i) formulation of National electricity Policy and
    tariff policy;

    (ii) promotion of competition, efficiency and
    economy in activities of the electricity industry;

    (iii) promotion of investment in electricity industry;

    (iv) any other matter referred to the Central
    Commission by that Government.

    (3) The Central Commission shall ensure
    transparency while exercising its powers and
    discharging its functions.

    (4) In discharge of its functions, the Central
    Commission shall be guided by the National Electricity
    Policy, National Electricity Plan and tariff policy
    published under section 3.”

    53. Under Section 178 of the Act, CERC is also empowered to

    make regulations consistent with the Act and Rules generally to

    carry out the provisions of the Act. It is relevant to refer to Section

    178 of the Act which is reproduced below:

    “178. (Powers of Central Commission to make
    regulations).- (1) The Central Commission may, by
    notification make regulations consistent with this Act
    and the rules generally to carry out the provisions of
    this Act.

    (2) In particular and without prejudice to the
    generality of the power contained in sub-section (1),
    such regulations may provide for all or any of following
    matters, namely:-

    – 34 –

    WA No. 927 of 2023

    (a) period to be specified under the first proviso to
    section 14;

    (b) the form and the manner of the application
    under sub-section (1) of section 15;

    (c) the manner and particulars of notice under sub-
    section (2) of section 15;

    (d) the conditions of licence under section 16;

    (e) the manner and particulars of notice under
    clause (a) of sub-section (2) of section 18;

    (f) publication of alterations or amendments to be
    made in the licence under clause(c) of sub-section (2)
    of section 18;

    (g) Grid Code under sub-section (2) of section 28;

    (h) levy and collection of fees and charge from
    generating companies or transmission utilities or
    licensees under sub-section (4) of section 28;

    (i) rates, charges and terms and conditions in
    respect of intervening transmission facilities under
    proviso to section 36;

    (j) payment of the transmission charges and a
    surcharge under-sub-clause (ii) of clause (d) of sub-
    section (2) of section 38;

    (k) reduction 1[***] of surcharge and cross
    subsidies under second proviso to sub-clause (ii) of
    clause (d) of sub-section (2) of section 38;

    (l) payment of transmission charges and a
    surcharge under sub-clause(ii) of clause(c) of section
    40
    ;

    (m) reduction 2[***] of surcharge and cross
    subsidies under the second proviso to sub-clause (ii)
    of clause (c) of section 40;

    (n) proportion of revenues from other business to
    be utilised for reducing the transmission and wheeling
    charges under proviso to section 41;

    (o) duties of electricity trader under sub-section (2)
    of section 52;

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    WA No. 927 of 2023

    (p) standards of performance of a licensee or class
    of licensees under sub-section (1) of section 57;

    (q) the period within which information to be
    furnished by the licensee under sub-section (1) of
    section 59;

    (r) the manner of reduction of cross subsidies
    under clause (g) of section 61;

    (s) the terms and conditions for the determination
    of tariff under section 61;

    (t) details to be furnished by licensee or generating
    company under sub-section (2) of section 62;
    (u) the procedures for calculating the expected
    revenue from tariff and charges under sub-section (5)
    of section 62;

    (v) the manner of making an application before the
    Central Commission and the fee payable therefor
    under sub-section (1) of section 64;

    (w) the manner of publication of application under
    sub-section (2) of section 64;

    (x) issue of tariff order with modifications or
    conditions under sub-section (3) of section 64;
    (y) the manner by which development of market in
    power including trading specified under section 66;
    (z) the powers and duties of the Secretary of the
    Central Commission under sub-section (1) of section
    91
    ;

    (za) the terms and conditions of service of the
    Secretary, officers and other employees of Central
    Commission under sub-section (3) of section91;
    (zb) the rules of procedure for transaction of
    business under sub-section (1) of section 92;
    (zc) minimum information to be maintained by a
    licensee or the generating company and the manner
    of such information to be maintained under sub-
    section (8) of section 128;

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    WA No. 927 of 2023

    (zd) the manner of service and publication of
    notice under section 130;

    (ze) any other matter which is to be, or may be,
    specified by regulations.

    (3) All regulations made by the Central
    Commission under this Act shall be subject to the
    conditions of previous publication.”

    54. In PTC India (supra), the Supreme Court has explained that

    the Act contemplates three kinds of delegated legislation. First, is

    Section 176 of the Act, which empowers Central Government to

    make rules to carry out the provisions of the Act and the State

    Governments are also empowered to make Rules under Section

    170 of the Act. Second, is Section 177 of the Act by virtue of which

    the Central Electricity Authority is empowered to make regulations

    consistent with the Act and the Rules made thereunder. Third, is

    the power of the CERC to make regulations in exercise of powers

    under Section 178 of the Act. The State Electricity Regulatory

    Commissions are also empowered to make regulations under

    Section 181 of the Act.

    55. The Supreme Court explained the role of the CERC as under:

    “53. Applying the abovementioned tests to the scheme of
    the 2003 Act, we find that under the Act, the Central
    Commission is a decision-making as well as regulation-
    making authority, simultaneously. Section 79 delineates
    the functions of the Central Commission broadly into two
    categories –mandatory functions and advisory functions.

    – 37 –

    WA No. 927 of 2023

    Tariff regulation, licensing (including inter-State trading
    licensing), adjudication upon disputes involving generating
    companies or transmission licensees fall under the head
    “mandatory functions” whereas advising the Central
    Government on formulation of National Electricity Policy
    and tariff policy would fall under the head “advisory
    functions”. In this sense, the Central Commission is the
    decision-making authority. Such decision-making under
    Section 79(1) is not dependent upon making of regulations
    under Section 178 by the Central Commission. Therefore,
    functions of the Central Commission enumerated in
    Section 79 are separate and distinct from functions of the
    Central Commission under Section 178. The former are
    administrative/adjudicatory functions whereas the latter are
    legislative.

    54. As stated above, the 2003 Act has been enacted in
    furtherance of the policy envisaged under the Electricity
    Regulatory Commissions Act, 1998
    as it mandates
    establishment of an independent and transparent
    Regulatory Commission entrusted with wide-ranging
    responsibilities and objectives inter alia including protection
    of the consumers of electricity. Accordingly, the Central
    Commission is set up under Section 76(1) to exercise the
    powers conferred on, and in discharge of the functions
    assigned to, it under the Act. On reading Sections 76(1)
    and 79(1) one finds that the Central Commission is
    empowered to take measures/steps in discharge of the
    functions enumerated in Section 79(1) like to regulate the
    tariff of generating companies, to regulate the inter-State
    transmission of electricity, to determine tariff for inter-State
    transmission of electricity, to issue licences, to adjudicate
    upon disputes, to levy fees, to specify the Grid Code, to fix
    the trading margin in inter-State trading of electricity, if
    considered necessary, etc. These measures, which the
    Central Commission is empowered to take, have got to be
    in conformity with the regulations under Section 178,
    wherever such regulations are applicable. Measures under
    Section 79(1), therefore, have got to be in conformity with
    the regulations under Section 178.”

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    WA No. 927 of 2023

    56. It is apparent from the above that the CERC performs its

    functions at four levels: administrative, legislative, advisory, and

    adjudicatory.

    57. Bearing the aforesaid in mind, we may proceed to examine the

    import of the impugned condition; whether it is in conflict with the

    regulations made by CERC; and whether the regulations in

    question fall within the scope of functions of the CERC.

    IMPUGNED CONDITION

    58. As noted at the outset, the impugned condition, which is central

    to the present dispute, provides that “for any excess generation,

    the rates fixed by KERC for old plants only will be paid and not as

    per UI rates. However, for shortfall in generation as compared to

    the scheduled generation, the Firm will pay UI rates.” The import of

    this impugned condition is that it substitutes the UI charges payable

    to a generating entity for electricity, with rates fixed for old,

    depreciated plants. The principal controversy centres on whether

    the SLDC has jurisdiction to do so, given that SSL has used open

    access for inter-state transmission of electricity and the CERC has

    framed the Open Access Regulations and the UI Regulations.

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    WA No. 927 of 2023

    UNSCHEDULED INTERCHANGE (UI) CHARGES

    59. It is thus necessary to consider the nature of the UI charges

    and the CERC’s jurisdiction to frame the regulations concerning UI

    charges.

    60. In Central Power Distribution Co. v. Central Electricity

    Regulatory Commission8,the Supreme Court had explained the

    Unscheduled Interchange as under:

    “10. In addition to two charges, a third charge
    contemplated in the ABT Scheme is for the
    Unscheduled Interchange of power (UI charges).
    UI charges are payable depending upon what is
    deviated from the schedule and also subject to the
    Grid conditions at that point of time. This element
    was introduced to bring about the effective
    discipline in the system. Under this system UI
    charges will be payable, if:

    (i) a generator generates more than the
    schedule, thereby increasing the frequency;

    (ii) a generator generates less than the
    schedule, thereby decreasing the frequency;

    (iii) a beneficiary overdraws power, thereby
    decreasing the frequency;

    (iv) a beneficiary underdraws power, thereby
    increasing the frequency.”

    11. It is thus clear from the above that UI charges
    are a commercial mechanism to maintain Grid
    discipline. UI charges penalise whosoever
    8
    (2007) 8 SCC 197

    – 40 –

    WA No. 927 of 2023

    caused Grid indiscipline, whether generator
    (NTPC) or distributor, is subject to payment of UI
    charges who are not following the schedule. UI
    charges are not payable if the appellants
    maintain their drawal of electricity consistent
    with the schedule given by themselves.

    Therefore, there is no merit in the contention of the
    appellants that UI charges are by way of penalty.”

    [emphasis added]

    61. The CERC has framed the UI regulations in exercise of the

    powers conferred upon it under Section 178 of the Act.

    62. The CERC, in the Statement of Reasons explaining the various

    provisions of UI regulations 2009, has inter alia stated as follows:

    “UI pricing is expected to serve the twin objectives
    of specifying settlement rate for deviations from
    schedules in normal operating range and ensuring
    ‘grid discipline’ on the one hand while ensuring
    maximisation of generation at optimal cost for grid
    participants on the other. Further, UI pricing
    mechanism should discourage grid participants
    from using UI mechanism as trading instrument.”

    63. The UI Regulations were also amended to provide for

    addressing the issue of ‘gaming’, which the learned senior counsel

    appearing for the appellants had stated was the principal reason for

    the SLDC insisting on imposing the impugned condition.

    64. Regulation 2(ee) of the UI Regulations, which defines ‘gaming’

    reads as under :

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    WA No. 927 of 2023

    “(ee) ‘gaming’ in relation to these regulations, shall
    mean an intentional mis-declaration of declared
    capacity by any generating station or seller in
    order to make an undue commercial gain through
    Unscheduled Interchange charges.”

    65. Regulation 6 of the UI Regulation that provides for addressing

    the issue of gaming is set out below:

    “6. Declaration, scheduling and elimination of
    gaming

    The provisions of the Grid Code and the Central
    Electricity Regulatory Commission (Open Access
    in inter-State Transmission) Regulations 2008, as
    amended from time to time, shall be applicable for
    declaration of capacity, scheduling and elimination
    of gaming.

    The generating station, as far as possible, shall
    generate electricity as per the day-ahead
    generation schedule finalised by the Regional
    Load Despatch Centre in accordance with Grid
    Code. Provided that the revision in generation
    schedule on the day of operation shall be
    permitted in accordance with the procedure
    specified under the Grid Code.

    “Provided that the revision in generation schedule
    on the day of operation shall be permitted in
    accordance with the procedure specified under the
    Grid Code and Central Electricity Regulatory
    Commission (Open Access in. inter-State
    Transmission) Regulations; 2008, as the case may
    be.

    (5) In response to changes in grid frequency and
    inflow fluctuations, the hydro generating stations
    shall be free to deviate from the given schedule,
    without causing grid constraint, and compensation
    for the difference between the actual net energy

    – 42 –

    WA No. 927 of 2023

    supplied and the scheduled energy (ex-bus) over
    a day shall be made by the concerned Regional
    Load Despatch Centre in the day-ahead schedule
    for the 4th day

    (day plus 3)

    (6) The Commission may, either suo motu or on a
    petition made by RLDC, initiate proceedings
    against any generating company or seller on
    charges of gaming and if required, may order an
    inquiry in such manner as decided by the
    Commission. When the charge of gaming is
    established in the above inquiry, the Commission
    may, without prejudice to any other action under
    the Act or regulations thereunder, disallow any
    Unscheduled Interchange charges received by
    such generating company or the seller during the
    period of such gaming.”

    CERC’S JURISDICTION – UI REGULATIONS

    66. The question whether the CERC has the power to frame the UI

    regulations is no longer res integra.

    67. In Central Power Distribution (supra), the Supreme Court

    had explained that under Section 79 (1)(h) of the Act, the CERC

    would have the power to specify the Grid Code and the various

    sections “under the Electricity Act would clearly show beyond any

    doubt the powers of Central Commission and jurisdiction in regard

    to the Grid, the scheduling and dispatch”. The court had also held

    – 43 –

    WA No. 927 of 2023

    that CERC was responsible for regulating the inter-State

    transmission of electricity.

    68. We may note that the Supreme Court had framed the following

    questions for consideration:

    “(A) Whether the application of availability-based
    tariff (ABT) in relation to Unscheduled Interchange
    (UI) charges, which otherwise is not a component
    of tariff in terms of Regulation 15 of the Central
    Electricity Regulatory Commission (Terms and
    Conditions of Tariff) Regulations, 2004 and they
    are liable to be held as beyond the jurisdiction of
    the Central Electricity Regulatory Commission
    (CERC)?

    (B) As such the impugned order passed by the
    Appellate Tribunal for Electricity has completely
    ignored the fact that CERC order, which was
    passed suo motu and ex parte, is non est and
    without jurisdiction?

    (C) Can the availability-based tariff as established
    and provided in the order of CERC by its order
    dated 4-1-2000 be implemented under the
    provisions of the Electricity Act, 2003, particularly
    when there is no provision under the statute that
    allows CERC to levy Unscheduled Interchange
    charges? and

    *** *** ***

    (G) Whether in the present facts and
    circumstances as regards the Simhadri SPTS
    Thermal Station of National Thermal Power
    Corporation (NTPC) which admittedly supplies
    power to the State Grid and has no connection
    with the management of the National Grid, can
    CERC in such circumstances exercise, particularly

    – 44 –

    WA No. 927 of 2023

    when matters relating to the State Grid fall within
    the role and function of the State Electricity
    Regulatory Commission?

    69. The said questions were answered in the following terms:

    “(A) 22.1. The application of availability-based
    tariff and imposition of Unscheduled Interchange
    (UI) charges are essential part of the functions of
    the Central Commission under Section 79(1)(h) of
    the Electricity Act, 2003 which reads “to specify
    Grid Code having regard to the grid standards”,
    and sub-section (2) of Section 28 read with
    Section 178(2)(g) dealing with the Central
    Commission’s powers to frame Grid Code. The
    maintenance of Grid discipline envisaged under
    the Grid Code is regulated by the mechanism of
    ABT and UI charges. There is no basis for the
    appellant to contend that unless something is a
    part of tariff the Central Commission cannot
    exercise powers and functions. ABT and UI
    charges are commercial mechanism to control the
    utilities in scheduling, dispatch and drawal and UI
    charges are tariff or charges payable for
    deviations. In the facts and circumstances
    mentioned above the legal position is clear and
    there is no ambiguity in respect of the jurisdiction
    of the Central Commission.

    (B) 22.2. The circumstances under which the
    order of the Central Commission was made, the
    previous orders passed by the Central
    Commission and the fact that the order challenged
    by the appellant was only an order fixing a
    prospective date for implementation of ABT in the
    case of generating station supplying to single
    State and not an order deciding the right or
    obligations. It is therefore not correct for the
    appellants to say that the order was passed ex
    parte or suo motu in violation of any principles of

    – 45 –

    WA No. 927 of 2023

    natural justice or otherwise the order is bad or non
    est. As mentioned above after the order of the
    Central Commission was passed, the second
    respondent and the State Load Dispatch Centre
    (SLDC) in the State of Andhra Pradesh had
    deliberated on the steps to be taken for
    implementation. SLDC was acting on behalf of the
    appellants. The appellants and SLDC did not raise
    any objection or otherwise plead any difficulty in
    the implementation of ABT and UI mechanism at
    the relevant time. Even now, except for pleading
    hypertechnicalities, the appellants have not shown
    any legal prejudice they suffer on account of the
    implementation of ABT for the Simhadri generating
    station of NTPC. The question of law has been
    raised mechanically without any factual bearing or
    implication.

    (C) 22.3. As already noticed, the Central
    Commission has the power and function to evolve
    commercial mechanism such as imposition of UI
    charges to regulate and discipline. It is well settled
    that a power to regulate includes within it the
    power to enforce. (See Indu Bhushan
    Bose v. Rama Sundari Debi
    [(1969) 2 SCC 289 :

    AIR 1970 SC 228] , K. Ramanathan v. State of
    T.N. [(1985) 2 SCC 116 : 1985 SCC (Cri) 162]
    , V.S. Rice and Oil Mills v. State of A.P. [AIR 1964
    SC 1781] and Deepak Theatre v. State of
    Punjab [1992 Supp (1) SCC 684] .)

    (G) 22.4. In the facts and circumstances as
    alluded, and as per the scheme of the Electricity
    Act, 2003
    mentioned above, the Central
    Commission has the plenary power to regulate the
    Grid, particularly in the context of the Grid being
    integrated and connected across the region
    comprising of more than one State. The State Grid
    cannot be isolated and can be seen as
    independent from the region.

    – 46 –

    WA No. 927 of 2023

    70. The Open Access Regulations have been framed for regulating

    access through the transmission system. The said regulations are

    also intrinsically linked with the maintenance of the grid as well as

    the object to facilitate trading in electricity. The Act mandates

    CERC to specify regulations for transmission, pricing, as well as

    the terms and conditions for regulating inter-State transmission.

    71. It is apposite to refer to the following extract from the

    Statement of Reasons of the Open Access Regulations:

    “1. Non-discriminatory access over the
    transmission system is a pre-requisite for power
    trading, bilaterally and through energy exchanges,
    on scheduled basis among utilities, permitted
    consumers and generators located in the different
    States or regions of the country. Not only does it
    enable better utilization of available resources but
    also facilitates the harnessing of untapped sources
    of power including captive, co- generation and
    merchant generating capacity. In a deficit
    scenario, it is desirable to tap all the possible
    sources of power.

    2. In exercise of power conferred under Section
    178
    of the Electricity Act 2003 (the Act), the
    Commission had notified the Central Electricity
    Regulatory Commission (open Access in Inter-
    State Transmission) Regulations, 2004 (the
    regulations), which was operationalized with effect
    from 6.5.2004. The open access in transmission
    was introduced for the first time in the country.
    This enabled the trading of electricity to be carried
    out on scheduled basis in an orderly manner at a
    reasonable transmission cost. The Regulations

    – 47 –

    WA No. 927 of 2023

    were amended in February 2005, based on the
    operational experience of the first order.
    Subsequently, a minor amendment was carried
    out in December, 2006 to prevent blocking of
    transmission capacity.

    3. The Commission had issued guidelines for
    setting up of Power Exchange in February, 2007
    and accordingly need had arisen to revamp open
    access regulations in order to accommodate
    collective transactions emanating from power
    exchange as well as conventional bilateral trading.
    Accordingly, new draft regulations on Open
    Access in Inter-State transmission were published
    on 18.12.2007 inviting comments from the
    stakeholders.”

    72. Section 42(2) of the Act mandates that the State Commission

    introduce open access in phases.

    73. In PTC India (supra), the Supreme Court had observed that:

    “22. One of the most important features of the
    2003 Act is the introduction of open access under
    Section 42 of the Act. Under the open access
    regime, distribution companies and eligible
    consumers have the freedom to buy electricity
    directly from generating companies or trading
    licensees of their choice and correspondingly the
    generating companies have the freedom to sell.”

    74. The functions of the CERC include the function to regulate the

    inter-state transmission as well as determining the tariff for such

    inter-state transmission. Apart, from regulating the grid, the CERC

    is also empowered to make regulations for levy and collection of

    – 48 –

    WA No. 927 of 2023

    fees and charges from generating companies, transmission utilities

    or licensees and also make regulations regarding transmission.

    75. In terms of Section 178(1) of the Act, the CERC has the power

    to make regulations consistent with the Act and the Rules to carry

    out the provisions of the Act. Since, the CERC has plenary power

    in respect of the Grid, we are unable to accept that the framing of

    the Open Access Regulations is beyond the powers of delegated

    legislation vested with the CERC.

    76. We consider it apposite to refer to the observations made by

    the Supreme Court in Central Power (supra)

    “18. Under Section 79(1)(h) the Central
    Commission has the power to specify Grid Code.
    It also provides that the function of the State
    Commission to specify State Grid Code under
    Section 86(1)(h) should be consistent with the Grid
    Code specified by the Central Commission and
    therefore the power of the State Commission is
    subservient to the power of the Central
    Commission. Section 2(32) defines Grid as
    interconnected transmission lines. The expression
    used interconnected has a significant meaning.
    Sub-section (1) of Section 28 deals with the
    function of RLDC (Regional Load Dispatch Centre)
    to ensure integrated operation of the power
    system in the region concerned. The term power
    system is of wide import. It is not confined to inter-
    State transmission lines but extends to even
    supply lines, distribution, main service lines, etc.
    However, sub-section (3) of Section 28 deals with
    duties of RLDC using the expression “within the
    region” or “in the region”. Obviously it includes
    both “inter-State” and “intra-State” lines and is not

    – 49 –

    WA No. 927 of 2023

    restricted to inter-State lines. Section 29 of the Act
    empowers RLDC to give directions and exercise
    such supervision and control to any person for
    ensuring stability of Grid operation. It also provides
    that the State Load Dispatch Centre shall duly
    enforce such directions. Sub-section (3) of Section
    33
    of the Act provides that the State Load
    Dispatch Centre shall comply with the directions of
    RLDC.

    19. A fascicule reading of the above provisions
    would clearly show that the scheme of the
    Electricity Act is that RLDC is required to follow
    the principles, guidelines and methodologies
    specified by the Central Commission and all
    persons including the distribution licensees like the
    appellants herein are required to follow the
    directions of RLDC. RLDC can enforce such
    directions through SLDC. In turn SLDC is required
    to follow the directions of RLDC.”

    77. The CERC has the necessary powers to issue orders and

    frame regulations for the purposes of open access, which is facet

    of transmissions through the grid. The CERC is empowered to

    make the Grid Code and set out the guidelines and methodologies

    in respect of wheeling and optimum scheduling and dispatch of

    electricity. The Regional Load Dispatch Centres (RLDCs) are

    required to comply with these guidelines and methodologies. The

    RLDCs exercise supervision and control over inter-State

    transmission system, and the SLDCs exercise control over intra-

    State transmission system. However, SLDCs are required to

    comply with the directions of RLDCs, which, as stated earlier are to

    comply with the guidelines and methodologies specified by CERC.

    – 50 –

    WA No. 927 of 2023

    78. The appellants’ grievance in this regard is in respect of

    Regulation 8 of the Open Access Regulations. The same is set out

    below:

    “8. (1) Wherever the proposed bilateral transaction
    has a State utility or an intra-State entity as a
    buyer or a seller, concurrence of the State Load
    Despatch Centre shall be obtained in advance and
    submitted along with the application to the nodal
    agency. The concurrence of the State Load
    Despatch Centre shall be in such form as may be
    provided in the detailed procedure.

    (2) When a State utility or an intra-State entity
    proposes to participate in trading through a power
    exchange, it shall obtain a “no objection” or a prior
    standing clearance from the State Load Despatch
    Centre in such form as may be prescribed in the
    detailed procedure, specifying the MW up to which
    the entity may submit a buy or sell bid in a power
    exchange.

    (3) 9[(a) For obtaining concurrence or ‘no
    objection’ or prior standing clearance an
    application shall be made before the State Load
    Despatch Centre who shall, acknowledge receipt
    of the application, either by e-mail or fax, or any
    other usually recognised mode of communication,
    within twenty four hours from the time of receipt of
    the application:

    Provided that where the application has been
    submitted in person, the acknowledgement shall
    be provided at the time of submission of the
    application.

    9

    Substituted vide Central Electricity Regulatory Commission (Open Access in inter-
    State Transmission) (Amendment) Regulations 2009, published in the Gazette of India
    (Extraordinary) Part III, Section 4 (No. 86) on 29.5.2009

    – 51 –

    WA No. 927 of 2023

    (b) While processing the application for
    concurrence or ‘no objection’ or prior standing
    clearance, as the case may be, the State Load
    Despatch Centre shall verify the following, namely-

    (i) existence of infrastructure necessary for time-

    block-wise energy metering and accounting in
    accordance with the provisions of the Grid Code in
    force, and

    (ii) availability of surplus transmission capacity in
    the State network.

    (c) Where existence of necessary infrastructure
    and availability of surplus transmission capacity in
    the State network has been established, the State
    Load Despatch Centre shall convey its
    concurrence or ‘no objection’ or prior standing
    clearance, as the case may be, to the applicant by
    e-mail or fax, in addition to any other usually
    recognised mode of communication, within three
    (3) working days of receipt of the application:

    Provided that when short-term open access has
    been applied for the first time by any person, the
    buyer or the seller, the State Load Despatch
    Centre shall convey to the applicant such
    concurrence or ‘no objection’ or prior standing
    clearance, as the case may be, within seven (7)
    working days of receipt of the application by e-mail
    or fax, in addition to any other usually recognised
    mode of communication.]
    10
    [(3A) In case the State Load Despatch Centre
    finds that the application for concurrence or ‘no
    objection or prior standing clearance, as the case
    may be, is incomplete or defective in any respect,
    it shall communicate the deficiency or defect to the

    10
    Inserted vide Central Electricity Regulatory Commission (Open Access in inter-State
    Transmission) (Amendment) Regulations 2009, published in the Gazette of India
    (Extraordinary) Part III, Section 4 (No.86) on 29.05.2009.

    – 52 –

    WA No. 927 of 2023

    applicant by e-mail or fax, in addition to any other
    usually recognised mode of communication, within
    two (2) working days of receipt of the application:

    Provided that in cases where the State Load
    Despatch Centre has communicated any
    deficiency or defect in the application, the date of
    receipt of application shall be the date on which
    the application has been received duly completed,
    after removing the deficiency or rectifying the
    defects, as the case may be.

    11

    (4) [In case the application has been found to
    be in order but the State Load Despatch Centre
    refuses to give concurrence or ‘no objection’ or
    prior standing clearance as the case may be, on
    the grounds of non-existence of necessary
    infrastructure or unavailability of surplus
    transmission capacity in the State network, such
    refusal shall be communicated to the applicant by
    e-mail or fax, in addition to any other usually
    recognized mode of communication, within the
    period of three (3) working days or seven (7)
    working days, as the case may be, from the date
    of receipt of the application, specified under clause
    (3), along with reasons for such refusal:

    Provided that where the State Load Despatch
    Centre has not communicated any deficiency or
    defect in the application within two (2) days from
    the date of receipt of application or refusal or
    concurrence or ‘no objection’ or prior standing
    clearance, as the case may be, within the
    specified period of three (3) working days or seven
    (7) working days, as applicable, from the date of
    11
    Substituted vide Central Electricity Regulatory Commission (Open Access
    in inter-State Transmission) (Amendment) Regulations 2009, published in the
    Gazette of India (Extraordinary) Part III, Section 4 (No.86) on 29.5.2009.

    – 53 –

    WA No. 927 of 2023

    receipt of the application, concurrence or ‘no
    objection’ or prior standing clearance, as the case
    may be, shall be deemed to have been granted:

    Provided further that where concurrence or ‘no
    objection’ or prior standing clearance, as the case
    may be, is deemed to have been granted by the
    State Load Despatch Centre, the applicant while
    making application 12shall submit to the nodal
    agency an affidavit (in the format provided in the
    detailed procedure), duly notarised, declaring that-

    (a) the State Load Despatch Centre has
    failed to convey any deficiency or defect in
    the application or its refusal or concurrence
    or ‘no objection’ or prior standing clearance,
    as the case may be, within the specified
    time,

    (b) necessary infrastructure for time-block-

    wise energy metering and accounting in
    accordance with the provisions of the Grid
    Code in force, is in place; and enclosing
    with the affidavit –

    (i) a copy of the complete application after
    removal of deficiency or rectification of
    defects, if any communicated, made to the
    State Load Despatch Centre for seeking
    concurrence or ‘no objection’ or prior
    standing clearance, as the case may be,
    and

    (ii) a copy of the acknowledgement, if any,
    given by the State Load Despatch Centre,
    or any other evidence in support of delivery

    12
    Omitted vide Corrigendum dated 10.6.2009 to Central Electricity Regulatory
    Commission (Open Access in inter-State Transmission) (Amendment)
    Regulations 2009, published in the Gazette of India (Extraordinary) Part III,
    Section 4 (No. 86) on 29.5.2009.

    – 54 –

    WA No. 927 of 2023

    of the application to the State Load
    Despatch Centre.]”

    79. A conjoint reading of the powers of CERC under Section 79

    and 178 of the Act with the scheme of Sections 28(2) and 33(3) of

    the Act clearly indicates that CERC has the jurisdiction to frame

    Regulation 8 of the Open Access Regulations, which is intended to

    provide for the methodology, discipline, and other attendant

    matters relating to the use of the transmission system.

    80. In view of the above, the question whether Regulation 8 of the

    Open Access Regulation is ultra vires the Act is answered in the

    negative.

    81. The next aspect to consider is whether the Open Access

    Regulations are in conflict with the exclusive powers conferred on

    SLDC.

    82. We may now examine the functions and powers of SLDC.

    Section 31 of the Act provides for establishment of SLDC. Section

    32 of the Act provides for the functions of SLDC and Section 33 of

    the Act contains provisions regarding compliance with the

    directions issued by the SLDC. Sections 32 and 33 of the Act are

    relevant and are set out below:

    – 55 –

    WA No. 927 of 2023

    “32. Functions of State Load Despatch Centres.-
    (1) The State Load Despatch Centre shall be the
    apex body to ensure integrated operation of the
    power system in a State.

    (2) The State Load Despatch Centre shall –

    (a) be responsible for optimum scheduling and
    despatch of electricity within a State, in
    accordance with the contracts entered into with
    the licensees or the generating companies
    operating in that State;

    (b) monitor grid operations;

    (c) keep accounts of the quantity of electricity
    transmitted through the State grid;

    (d) exercise supervision and control over the intra-

    State transmission system; and

    (e) be responsible for carrying out real time
    operations for grid control and despatch of
    electricity within the State through secure and
    economic operation of the State grid in
    accordance with the Grid Standards and the State
    Grid Code.

    (3) The State Load Despatch Centre may levy and
    collect such fee and charges from the generating
    companies and licensees engaged in intra-State
    transmission of electricity as may be specified by
    the State Commission.

    33. Compliance of directions.- (1) The State
    Load Despatch Centre in a State may give such
    directions and exercise such supervision and
    control as may be required for ensuring the
    integrated grid operations and for achieving the
    maximum economy and efficiency in the operation
    of power system in that State.

    (2) Every licensee, generating company,
    generating station, sub-station and any other

    – 56 –

    WA No. 927 of 2023

    person connected with the operation of the power
    system shall comply with the directions issued by
    the State Load Despatch Centre under sub-

    section (1).

    (3) The State Load Despatch Centre shall comply
    with the directions of the Regional Load Despatch
    Centre.

    (4) If any dispute arises with reference to the
    quality of electricity or safe, secure and integrated
    operation of the State grid or in relation to any
    direction given under sub-section (1), it shall be
    referred to the State Commission for decision:

    Provided that pending the decision of the State
    Commission, the directions of the State Load
    Despatch Centre shall be complied with by the
    licensee or generating company.

    (5) If any licensee, generating company or any
    other person fails to comply with the directions
    issued under sub-section(1), he shall be liable to a
    penalty not exceeding rupees five lacs.”

    83. In terms of Section 32(2) of the Act, SLDC is, inter alia,

    responsible for optimum scheduling and despatch of electricity

    within a State. It is required to monitor the grid operations and

    exercise supervision and control over intra-state transmission

    systems. In terms of Section 32(3) of the Act, the SLDC is also

    empowered to levy fees from generating companies and licensees

    engaged in intra-state transmission of electricity. Under Section 33

    of the Act, the SLDC is also empowered to give directions and

    exercise supervision and control as may be required for ensuring

    – 57 –

    WA No. 927 of 2023

    the integrated grid operations and for achieving maximum economy

    and efficiency in the operation of power systems in the State.

    84. We may at this stage also refer to Regulation 20 of the Open

    Access Regulations, which has not been challenged. The same is

    set out below:

    “20. (1) All transactions for State utilities and for
    intra-State entities scheduled by the nodal agency
    under these regulations, shall be accounted for
    and included in the respective day-ahead net
    interchange schedules of the concerned regional
    entity issued by the Regional Load Despatch
    Centre.

    (2) Based on net metering on the periphery of
    each regional entity, composite UI accounts shall
    be issued for each regional entity on a weekly
    cycle and transaction-wise UI accounting, and UI
    accounting for intra-State entities shall not be
    carried out at the regional level.

    (3) The State utility designated for the purpose of
    collection / disbursement of UI charges from/to
    intra-State entities shall be responsible for timely
    payment of the State’s composite dues to the
    regional UI pool account.

    (4) Any mismatch between the scheduled and the
    actual drawal at drawal points and scheduled and
    the actual injection at injection points for the intra-

    State entities shall be determined by the
    concerned State Load Despatch Centre and
    covered in the intra-State UI accounting scheme.
    (5) Unless specified otherwise by the concerned
    State Commission, UI rate for intra-State entity
    shall be 105% (for over-drawals or under
    generation) and 95% (for under-drawals or over
    generation) of UI rate at the periphery of regional
    entity.

    – 58 –

    WA No. 927 of 2023

    (6) 13[No charges, other than those specified under
    these regulations shall be payable by any person
    granted short-term open access under these
    regulations.]

    85. Regulation 20(5) of the Open Access Regulations is relevant,

    as it expressly sets out the UI charges payable in case of over-

    supply of electricity. The impugned condition imposed by SLDC is

    in conflict with this clause.

    86. The dispute is regarding the impugned condition inserted in

    SC/NOC issued by the SLDC. A plain reading of the said clause

    indicates that the same seeks to substitute the charges payable for

    excess generation for UI rates. The SLDC does not have power to

    fix any tariffs or charges for inter-state transmission of electricity.

    As noted above, in terms of Sections 31 and 32 of the Act, the

    SLDC can levy and collect fees and charges engaged in relation to

    intra-state transmission of electricity. However, the SLDC cannot

    determine the rates of electricity. Thus, we find no infirmity with the

    view of the learned Single Judge that the SLDC had exceeded its

    jurisdiction in substituting the UI rates for inter-state transmission

    by CERC with the rate fixed for old plants.

    13

    Substituted vide Central Electricity Regulatory Commission (Open Access in inter-
    State Transmission). (Amendment) Regulations 2009, published in the Gazette of India
    (Extraordinary) Part III, Section 86) on 29.5.2009. Section 4 (No.86) on 29.5.2009.

    – 59 –

    WA No. 927 of 2023

    87. We pointedly asked the learned counsel for the appellants as

    to what were those rates which would be applicable in the present

    case. He responded that the same would have to be assessed on

    the basis of the value of the generating plants. Although, the SLDC

    is charged with the function of monitoring the grid operations, it is

    also to keep accounts of quantity of electricity transmitted through

    the grid. Its functions are necessarily aligned with the Regional

    Load Despatch Centre, which in turn is required to follow the

    principles and guidelines set out by the CERC.

    88. The contention that the SLDC has imposed the impugned

    condition not in exercise of its administrative powers but, in

    exercise of its statutory powers, and the same could not be

    overridden by the regulations, is without merit. First of all, the

    impugned condition was not in conformity with the powers vested

    with the SLDC. Secondly, the regulations framed by the CERC, are

    subordinate legislation. Thus, unless the regulations are set aside

    as beyond CERC’s competence or as manifestly arbitrary, they

    must be complied with, including by the concerned authorities.

    89. In the present case, the impugned condition is in conflict with

    the UI Regulations read with the Open Access Regulations. As

    noted above, the jurisdiction of the CERC to frame UI regulations

    – 60 –

    WA No. 927 of 2023

    has been upheld by the Supreme Court and the said question is no

    longer res integra. In view of the above, the impugned condition

    cannot be sustained, and the CERC’s order setting aside the

    impugned condition has been rightly upheld by the learned Single

    Judge. The question whether the impugned clause is valid is

    answered in the negative.

    90. The last question to be addressed is whether the CERC has

    the jurisdiction to adjudicate the subject disputes. In terms of

    Section 79(1)(f) of the Act, the CERC is also required to adjudicate

    the disputes involving generating companies in regard to matters

    connecting with clauses (a) to (d) of Section 79(1) of the Act. Under

    clause (c), the CERC is charged with the function of regulating the

    interstate transmission of electricity. Thus, disputes involving

    generating companies or transmission licensees and relating to the

    inter-state transmission of electricity would fall within the jurisdiction

    of CERC. In the present case, the dispute relates to substituting the

    UI rate fixed for inter-state transmission of electricity inter alia as a

    measure to address “gaming” as contended on behalf of the

    appellants. These are covered under the UI Regulations and the

    Open Access Regulations.

    – 61 –

    WA No. 927 of 2023

    91. It is also relevant to refer to Regulation 26 of the Open Access

    Regulations, which sets out the redressal mechanism. The said

    Regulation, as in force prior to 29.05.2009, read as under:

    “26. Unless the dispute involves the State Load
    Despatch Centre and the intra-State entities of the
    concerned State and falls within the jurisdiction of the
    State Commission, all disputes arising under these
    regulations shall be decided by the Commission based
    on an application made by the person aggrieved.”

    92. The said Regulation was amended with effect from 29.05.2009.

    Post the amendment, the aforesaid regulation was substituted to

    read as follows:

    “26. All disputes arising under these regulations shall
    be decided by the Commission based on an
    application made by the person aggrieved.”

    93. It is material to note that by virtue of the pre-amendment

    Regulation 26 of the Open Access Regulations, adjudication of

    disputes arising under the said Regulations involving the State

    Load Despatch Centre and intra-State entities of the concerned

    State, which fall within the jurisdiction of the State Commission,

    were excluded from the jurisdiction of the CERC and were required

    to be adjudicated by the respective State Commissions. However,

    SSL’s petition before the CERC was filed on 21.02.2011, which

    was after the Open Access Regulations were amended on

    – 62 –

    WA No. 927 of 2023

    29.05.2009. Therefore, Regulation 26, was in force post-

    amendment, and was applicable.

    94. In view of the above, the question whether CERC’s order is

    without jurisdiction, is answered in the negative.

    95. In view of the above, the present appeal is dismissed.

    Sd/-

    (VIBHU BAKHRU)
    CHIEF JUSTICE

    Sd/-

    (C.M. POONACHA)
    JUDGE

    KPS.

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